JUDAICA - Wisdom In Torah

ounce of his own than nine ounces of his neighbor’s (BM 38a);
nor will he sell and dispose of any of his goods unless he has to
(BB 47b). No man commits a wrong unless for his own benefit
(BM 5b) and the purpose of an act is its normal consequence
(“everybody knows why the bride gets married”; Shab. 33a).
No person is lighthearted in the hour of his death (BB 175a), or
defrauds the Temple treasury (hekdesh; Shevu. 42b; Ar. 23a).
Apart from such general presumptions, there are special ones
relating to particular contracts or offices, as for example the
presumption that an agent has duly performed the duties of
his agency (Git. 64a), or that a priest has duly performed the
duties of his office (TJ, Shek. 7:2, 50c).
PRESUMPTIONS OF CREDIBILITY (NE’EMANUT). Much
stronger than these general and special presumptions of conduct
are two further categories of presumptions, which are –
theoretically at least – irrebuttable (comparable to, but not
identical with, the Roman praesumptiones iuris et de iure). One
is the presumption of credibility (ne’emanut) and the other is
the presumption of common sense (umdana mukhaḥat).
The presumption of credibility is primarily based on the
notion that the party or witness concerned has an intimate
knowledge of the matter in issue and has no reason to distort
it. Thus, where a man says he has divorced his wife, his word
is taken as conclusive for the court to permit her remarriage –
because the matter is within his own knowledge, and he has
no reason to distort it, as he could even now divorce her any
time (BB 134b–135a, but see Maim. Gerushin 12:5; Sh. Ar., EH
152:1; see also *Divorce). Or, a woman is believed when she
says that her first husband has divorced her – because the
matter is within her own knowledge and she need not have
disclosed her previous marriage at all (ha-peh she-asar hu
ha-peh she-hittir; Ket. 2:5). Or, an action will not lie for land
which the defendant had told the plaintiff he had bought from
the plaintiff ’s father, although the defendant could not prove
the purchase: he will be believed that he bought it, because
he need not have disclosed that it had ever belonged to the
plaintiff ’s father in the first place (Ket. 2:2). The law would be
different where the ownership of the plaintiff ’s father could
be proved by witnesses (ibid.).
Some of these irrebuttable presumptions of credibility are
based on Scripture, e.g., where a father says he has given his
daughter in marriage (Deut. 22:16: “I gave this man my daughter
to wife”; Ket. 22a), or a father’s nomination of his firstborn
son (BB 127b, following Deut. 21:17). There are, however, also
presumptions of credibility which rank in weight with the rebuttable
presumptions of conduct – that is, they are capable of
being displaced by express evidence to the contrary. A man is
presumed not to lie about matters which are easily ascertainable
(Yev. 115a); and a man is presumed to remember matters
which are extraordinary and astonishing (Hul. 75b). Conversely,
a man whose words were proved false on one point,
will no longer be believed on other points in the same case;
notwithstanding any presumption in his favor, he will be required
to adduce express proof for the other points (BM 17a;
evidence
Maim. Yad, Gerushin 13:1). Credibility is also presumed for
statements made for purposes unconnected with the litigation
(mesi’aḥ lefi tummo: Git. 28b; cf. BK 114f.). A man is believed
where his statement (e.g., that he had become a convert
on his own, without a bet din) disqualifies him (Yev. 47a), but
no such statement is accepted as proof of disqualification of
anybody else, even his wife or children (ibid.).
PRESUMPTIONS OF COMMON SENSE (UMDANA MUKHAHAT).
The presumption of common sense applies to bring acts or
conduct into conformity with reason or propriety: the presumption
is that a person acts reasonably and properly, notwithstanding
any outward appearance to the contrary; and his
acts will therefore be judged not according to appearances, but
according to what, in reason and propriety, they ought to have
been. Thus, a man is presumed not to give away the whole of
his property during his lifetime; hence where a dying person
disposed of all his property and then recovered, his act
will not be enforced by the courts, and he is regarded as having
acted in the mistaken belief that he was going to die (BB
146b). The same applies to transactions made for an ulterior
motive; where a woman had given away her property in order
to deprive her future husband of his legal rights thereto,
and on divorce reclaimed the property, the court is reported
to have torn the deed of gift into pieces (Ket. 78b; Maim. Zekhiyyah
u-Mattanah 6:12). A husband giving his property to
his wife is irrebuttably presumed to have made her only his
trustee and not to have deprived himself and his children of
all his property (BB 131b; for a list of these presumptions see
Piskei ha-Rosh Ket. 11:9).
PRESUMPTIONS OF CONDITIONS (UMDANA BE-GILLUI
DA’AT). While these presumptions apply whether or not the
mistake or motive was expressed or admitted, there are other
cases in which these or similar presumptions apply only where
such mistake or motive can be inferred from express statements
made at the time of the transaction (umdanot be-gillui
da’at). Thus, where a man disposed of his property, mentioning
that he had decided to emigrate, and then he did not
in fact emigrate, he will be presumed to have disposed of his
property only conditional on his emigration (Kid. 49b). Or,
where a man had made a will bequeathing his property to
strangers, because he had heard that his sons had died, and
then it appeared that they had not died, his will was set aside
as having been made by mistake (BB 132a). Even where a vendor
had stated, at the time of the sale, that he sold in order to
have the money for a certain purpose, and that purpose could
not afterward be effected, he was held entitled to have the sale
set aside (Ket. 97a). It has been said that reservations giving
rise to such presumptions must, however, always be reasonable:
the man desiring to emigrate, for instance, could have
the sale or gift of his landed properties set aside if the emigration
did not transpire, but not the sale of his personal effects
which he would be assumed to take with him on his emigration
(Tos., Ket. 97a).
ENCYCLOPAEDIA JUDAICA, Second Edition, Volume 6 579