Bava Basra 44 - 50
A Two-Edged Bias
|The Case:||Reuven borrows money from Shimon and his only field thus becomes mortgaged to his creditor. Reuven then sells this field to Levi, clearly declaring that if it is subsequently claimed by a creditor he will have no responsibility for compensation. Yehuda attempts to take the field from Levi on the grounds that the field was stolen from him. Reuven knows that Yehuda's claim is unfounded and wishes to testify in court on behalf of Levi.|
|The Rule:||Reuven is disqualified from testifying because of suspected partiality. He has a vested interest in Levi retaining the field so that his creditor, Shimon, will be able to confiscate it as payment for his debt.|
|Whether or not Reuven testifies on behalf of Levi he stands no risk of other property being taken in payment of the debt since he owns no other property. His only possible interest in testifying in behalf of Levi is his desire to protect his creditor from losing the opportunity to collect his debt. But by so testifying he will expose the buyer, Levi, to the risk of a loss of his property to confiscation without compensation. Why should we consider him more partial to protecting the creditor than the buyer and therefore disqualify him?|
|If the field is lost to Yehuda's claim Reuven is in danger of being what King David describes in Psalm 37 as "the wicked man who borrows and who does not repay" since his creditor will have no field to collect from. The loss which the buyer Levi may suffer from the confiscation of the creditor concerns him much less for he already informed him in advance that he was entering into a high risk deal with no hope for compensation. Reuven's bias is therefore clearly in favor of his creditor and he cannot testify in his behalf.|
- Bava Basra 52a
Coercion or Liberation?
A Jew who refuses the order of a Beis Din to divorce his wife with a get may be subjected to physical pressure until he complies. Rambam (Laws of Divorce 2:20) thus explains why such a get is valid even though it was apparently given under duress:
Only when one sells, gives away something or does anything he is not obligated to do under duress is he considered to be acting against his will. When he is pressured into doing something which the Torah requires or avoiding something forbidden he is actually acting according to his true will which his evil inclination has attempted to enslave. The Jew who wishes to be a part of his holy nation and to do what is right but refuses to obey the order to divorce is a prisoner of his evil inclination. Pressure is applied to weaken the hold of his captor and this liberated Jew is considered as having expressed his true will when he complies with the order of the court.
- Bava Basra 48a