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Reversing a Claim in Court

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          The gemara in Bava Batra (31a) addresses a litigation in which two parties are disputing ownership of a field.  Initially, each stakes his claim to the field based on the fact that his father had owned it.  After only one of them can furnish eidim (witnesses) to this effect, the other party alters his claim.  “Indeed it belonged to your father (and not mine and hence I cannot supply eidim), but I purchased it from your father.”  He supports this latter claim of having purchased the land from the other’s father by the fact that he has been living on the land for three years.  Were we to render a verdict based upon his subsequent claim, he would triumph.  Yet, it is by no means certain that we allow him to lodge this second claim at all.  To what extent may a litigant offer one claim and, after realizing it will fail, submit a new one?  This is known as the question of to’en ve-chozer ve-to’en (lodging multiple claims) and is the subject of a machloket between Ulah, who permits this change and Naharda (a place), which does not.  This article will attempt to examine the basis of the machloket.

            As is the case with any machloket we begin by determining which position seems the most “rational” one.  Our duty then becomes to offer some logic to defend the alternate position.  In this case I believe the lenient position makes most intuitive sense.  Why, indeed, should we not permit one to change course in midstream, provided that he can furnish evidence to support his new claim?  What drives Naharda’s position and accounts for their view?

            In general, judiciary restrictions may be based upon one of two factors.  Sometimes Beit Din disallows evidence or claims because of the “suspicion” factor.  Someone who is a proven liar will obviously not be allowed to offer testimony, because we suspect that he is fabricating evidence.  Alternatively there are many demands of ‘protocol’ which must be followed.  For example, a woman may not offer testimony because of a formal stipulation.  This in no way reflects any reduced reliability or trustworthiness.  Similarly, Beit Din cannot initiate a litigation at night.  There are some formal procedural rules which oftentimes constrain.  Many laws lie right along the border between these two categories of restrictions.  For example, the ban on relatives of the defendant testifying might be based either upon suspicion or might be based upon a formal disqualification stipulated by the Torah.

             Naharda’s voiding of a changed claim would appear to lend itself to either category.  Perhaps we disallow a second claim because the sudden change arouses suspicions of prevaricating.  If indeed the claim is the truth why wasn’t it proffered at the start?  Even if the claim is ‘partially’ substantiated it is treated with skepticism and rejected.  This would view the disqualification as a factor of “suspicion”.  Alternatively, we might not allow a second claim for purely procedural concerns.  Beit Din allows one, and only one, claim.  Once a claim has been lodged, it cannot be retracted.

(Note: Those who received the shiur on keivan she-higid - the inability of eidim to provide a second testimony - recall a similar question being raised.)

            Answering this question entails locating instances in which only one of the factors is applicable, thus enabling us to identify the logic upon which the halakha is based.  What would happen, for example, if the new claim does not arouse undue suspicions.  For example, the Rambam in his responsa (#412) cites a case in which Shimon defends himself against Reuven, asserting that he has already repaid his debt.  After this claim is disproved, Shimon changes his tune and declares that he does not have to pay since a shmitta year has already transpired and all debts have been canceled.  The Rambam responds that though, in general, we might concur with Naharda that altered claims are rejected, that is only because we suspect the second claim of being false.  When this clearly is not so (such as in the case of the passing of a shmitta year - which is an objective fact) the second claim is allowed.  The Rambam clearly decided that Naharda’s restriction was not formal, but merely based on suspicions.

                 Furthermore, the Rema (CM 80) asserts that even Naharda would not allow a second claim even if it is verified by eidim.  In our case in Bava Batra, the eidim did not testify to his claim per se of having purchased the field from the plaintiff’s father.  Instead they merely testify to his having squatted for three years - which usually indicates to us that indeed a sale was made.  In such an instance, Naharda disqualifies based upon suspicions which override their indirect evidence.  However, when eidim directly support the second claim it is accepted.  Evidently, the Rema felt, that Naharda’s concerns were procedural rather than evidentiary.  Protocol disallows a reversal of claim, even, if supported by eidim.

               A position which views the disqualification in a similar light to the Rambam is that of the Ketzot Ha-Choshen (80:2), who questions the motive for recanting a claim.  Generally, a claim is changed because the defendant realizes that it has been disproved and unless he offers a different claim he will lose the case.  What happens if the defendant doesn’t realize the direction the case is taking and innocently changes his verdict?  The Ketzot rules that even Naharda would allow such changes to be made.  Evidently, he agrees with the Rambam and the Rema in casting Naharda’s rule as one based upon the suspicions which have been aroused.  Were these suspicions to be allayed, a change would be tolerated.

                On the other hand, the gemara itself furnishes a case in which Naharda would bow to Ulah and allow switches to be made.  If the initial claim was not presented to Beit Din but tendered before eidim, the defendant can subsequently submit a new claim to Beit Din.  The simplest way to explain this exception is that the initial statement is not considered a formal claim as it was proposed outside of Beit Din.  Naharda, then, indeed adopt a formal law which limits defendants to only one claim.  In this case, however, only one official claim was offered.  If Naharda suspected any change of being false, they should be just as suspicious even if the first statement was made outside of Beit Din.

SUMMARY:

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               Interestingly enough, then, from the gemara one might infer that Naharda’s rule is formal and procedural.  From the exceptions mentioned by the Rambam and the Ketzot, though, one has to conclude that it is based purely upon the suspicions which his wavering arouses.  See afterword for a possible alternative manner to interpret the gemara’s exception.

                 Having interpreted Naharda’s position (at least according to several views) as being based upon suspicion we can now turn our attention to Ulah’s stance.  Does he outright reject any and all possible objections to changing a claim?  Or might he, at least theoretically, envision some situation in which claims may not be altered?  One could posit that he fundamentally disagrees with Naharda, maintaining that altered claims need not engender suspicion, yet he still admits certain procedural deviations which cause the defendant to lose the right to change his claim.

               The gemara qualifies Ulah’s position in a way which might suggest as much.  The gemara asserts that even Ulah would disallow a change if the defendant left Beit Din and then re-entered.  Might this not indicate that after a claim has been FULLY LODGED and the next stage of the litigation has been reached, it is “set in stone” and cannot be retracted?  As long as the defendant has not left court, his claim is still being deliberated and he may update his statements.  His leaving, though, marks an objective point in the proceeding at which his claim becomes entrenched.

           This reasoning is plausible, and it suggests to us that Ulah does recognize to some form of legal protocol which inhibits a second claim.  The gemara, however, appears to offer a contradictory reason for this limitation:  We suspect that upon leaving he conferred with friends who instructed him in this claim.  The literal reading of this gemara does indicate, then, that the problem with his leaving stems from the arousal of suspicions.  Hence, the one case where Ulah restricts new claims is based not upon procedural constraints but instead upon concerns regarding their truth of the secondary claim.  Our reasoning, which seemed logical, is apparently contradicted by the gemara itself.

          An additional statement of the Ri Migash might indicate the understanding of Ulah which we normally suggested.  According to him, Ulah allows a change only if eidim have not contradicted the initial claim.  If they have, then even Ulah admits that a second claim may not be lodged.  Does Ulah see this as a formal constraint which does not allow a second claim to be posited?  Based on this, we could suggest that a claim is only completed after the defendant leaves Beit Din or eidim come to comment upon it.  Until that point is reached, any further statement is viewed as an update rather than an entirely new claim.

METHODOLOGICAL POINTS:

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1.                  Once again, it is important to note that disqualifications in Beit Din usually fall into one of two categories - those based upon suspicion and those based upon procedural requirements.

2.                 Isolating a case where we might suspend our suspicions would help determine the root of the problem.

3.  Be on the lookout for qualifying factors which might not affect the degree of reliability, such as leaving court.

 

AFTERWORD:

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             The gemara claims that according to Naharda a claim may be repeated if the first time it were initially tendered outside of court.  The article suggested that this indicated a  procedural ban on offering Beit Din two claims.  If the first claim were presented only to eidim and not in court, this issue of protocol does not apply.  Alternatively, we might justify this exception even if the standard inability to change claims is based upon suspicion.  The defendant may claim that he neglected strict accuracy in his first testimony precisely because it was not in court.  He might then have grounds for offering what he calls his “real” testimony and having it be accepted.

 

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