Sources:
The Tur (Choshen Mishpat, siman 92) cites a responsum of the Rosh (klal 7, siman 7‘), who was asked concerning Reuven, who had become obligated to take an oath to Shimon. Shimon asked that a cherem be imposed in the synagogue upon anyone who knew whether Reuven had violated the oath, in order to disqualify him. The Rosh replied: Heaven forbid that such a thing should occur in Israel—to shame a fellow Jew publicly. Even the one requesting the cherem deserves rebuke, for he has cast aspersions upon him and mentioned a disqualifying stigma about him. The Beis Yosef (ibid.) raised a difficulty from a responsum of the Rashba (vol. 3, siman 93), concerning one who became obligated in Beis Din to take a Torah oath to his fellow, and the claimant says that he is suspected regarding oaths and that he has witnesses who know this but are unwilling to testify unless a cherem is imposed in the synagogue that anyone who knows testimony that he is suspect should come and testify. Is Beis Din obligated to do so or not? The Rashba replied: Regarding one suspected concerning oaths, his opponent takes an oath and collects. These witnesses who refuse to testify cause a prohibition, for they cause Beis Din to administer an oath to one who is suspect and cause this person to lose money by withholding their testimony. If they do not testify for him, they are liable according to the laws of Heaven. If they are unwilling, the claimant may administer an oath in the synagogue that anyone who knows testimony concerning this should come and testify for me, for although they are not witnesses for the claimant, this person’s money depends on their testimony; had they testified on his behalf, he would have taken an oath and collected. The Beis Yosef resolved this in Bedek HaBayis, and so rules the Shulchan Aruch (ibid., se’if 6), that there is no dispute between the Rosh and the Rashba. There is a distinction where he says that he has witnesses concerning the matter, but they are unwilling to testify without the imposition of a cherem. This is likewise written by the Sma (ibid., se’if katan 20). The Bach writes, and this is cited as halachah by the Shach (ibid., se’if katan 7), that this applies specifically where he brings the witnesses to Beis Din and they refuse to testify, [that is, for example, because they fear the suspect and the like]. Only then may Beis Din impose a cherem. The Taz likewise writes that it is insufficient for him merely to claim with certainty that he has witnesses, for there is still concern that anyone may say he has witnesses and shame him publicly. Therefore, Beis Din must know that there is proof for his words—for example, those witnesses came before Beis Din and said that they know, or it is clearly known to Beis Din that they are evading coming. The Tumim distinguishes between the claimant himself making such an announcement in Beis Din and Beis Din making the announcement. This is difficult, for in any event Beis Din would permit the claimant to make such an announcement; and if they do not permit it, how could he do such a thing in Israel without Beis Din’s permission? Furthermore, even if he himself announces the imposition of a cherem without Beis Din’s consent, it is not within his power for people to give such weight to his words. All the words of the poskim indicate otherwise than his view.
This response was translated automatically from Hebrew and has not yet been reviewed by a person. Therefore, it may contain inaccuracies and should not be considered a definitive reference.
This response was translated automatically from Hebrew and has not yet been reviewed by a person. It may therefore contain inaccuracies and should not be considered a definitive reference.
