Question: May tort damages be proven based on the testimony of a woman?
Short Answer: Unless both parties expressly agree, tort damages may not be proven based on a woman’s testimony.
Explanation:
I. Real Witnesses
The Mishnah (Bava Kama 14b) requires two kosher witnesses to testify before the victim may collect damages from the tortfeasor. An eved and an akum are not kosher witnesses, despite the eved being obligated in mitzvos and the akum having “yichus.”
The Shulchan Aruch (Choshen Mishpat 408:1-2) codifies this halachah and holds that you need two kosher witnesses before you can collect damages. Simple logic is insufficient. For example, if you see a dead gored ox lying next to an ox that is a muad to gore, you may not assume that the dead gored ox was killed by the muad next to it. In order for the owner of the dead ox to collect damages, he would need two kosher witnesses to testify that the ox nearby gored his ox.
Indeed, the Rambam (Hilchos Nizkei Mamon 8:13-14) elaborates that we require two kosher witnesses despite knowing that it is unlikely to have such witnesses, as there are usually only avadim and shepherds in the field at the time the damage is done.
II. The T’rumas HaDeshen
The T’rumas HaDeshen (353) discusses a case where two women are having an argument regarding which one of them purchased a certain seat in the women’s section in shul. One woman brings one male witness in support of her position, while the other woman brings two female witnesses. The T’rumas HaDeshen ruled that we may rely upon women for such issues that only women would know the truth, such as seats in the women’s section.
The T’rumas HaDeshen brings a proof from the Rambam (above), that we only do not rely upon an eved and an akum by torts, where there is a concern for false testimony. Indeed, anyone could hire pasul witnesses to testify that they were victims of a tort. However, with respect to seats in a shul and other similar random cases, we do rely on females and other non-kosher witnesses.
III. Application of T’rumas HaDeshen
The Rama (Choshen Mishpat 35:14) relies on this T’rumas HaDeshen and holds that one may rely on the testimony of women for matters that are uniquely in the knowledge of women. The Vilna Gaon (Biurei HaGra) supports this ruling from the Gemara (Kiddushin 73b) that we rely upon a midwife to testify about the status of a newborn baby, as there are no men around in the birthing room.
The Sm”a (35:30) questions the ruling of the Rama based on the later Shulchan Aruch (Choshen Mishpat 408), which appears to rule that women are never allowed to testify, and the Rama over there makes no comment. To answer, the Sm”a invokes the same distinction of the T’rumas HaDeshen (and cites to it as well), that torts are different, as we cannot believe women or other non-kosher witnesses because we are concerned that this will lead to the hiring of false witnesses.
The Sm”a concludes that the reader should see what the Sm”a writes later on (in Choshen Mishpat 408). The Sm”a (Choshen Mishpat 408:1) notes the ruling of the Rama and appears to apply this leniency to torts as well, as he does not mention the distinction. [However, it is also possible that the Sm”a simply relies upon his earlier comment (in Choshen Mishpat 35) setting forth that this leniency does not apply to torts].
IV. Practically Speaking
The Mishneh Halachos (Chidushei Mishnah, Gitten, p.39) cites the Shev Yaakov who suggests, if not for the opinion of the Rambam, that a woman is kosher to be a witness for torts. The Gemara (Bava Kama, above) only excludes avadim and akum, but implies that a woman is a kosher witness for torts.
More practically, the Piskei Choshen (N’zikin 10:41) appears to apply the Rama even to torts, as he cites the Rama as arguing on the Shulchan Aruch in his sefer on N’zikin, but does not mention the Sm”a’s limitation. See also Mishpetei Uziel (Choshen Mishpat 3:20).
Rabbi Ephraim Glatt, Esq. is the Associate Rabbi at the Young Israel of Kew Gardens Hills, and he is a Partner at McGrail & Bensinger LLP, specializing in commercial litigation. Questions? Comments? Email This email address is being protected from spambots. You need JavaScript enabled to view it..
