Ketubot 22a: Hapeh She’assar Hu Hapeh Shehitir

When the lady who escaped from behind the iron curtain to the United States said that she had been married but had received a valid divorce, her new American fianc? was concerned. Which statement should he believe … married or divorced? If married, it would be fruitless to continue the relationship because relations between a married woman and a man who is not her husband are prohibited. But could he rely on her unverified statement that she was divorced when, due to her inaccessible background, there was no way to prove it?

If the Eastern European lady had said nothing, nobody would have known that she was once married. It was she herself who was honest enough to volunteer this inconvenient information. Accordingly, the halachah considers her sufficiently credible to qualify her unsolicited statement that she was once married, by adding that she had received a divorce.

This halachic principle is known as: “Hapeh she’assar hu hapeh shehitir,” or simply – “Hapeh,” which means, “the mouth that uttered the prohibition is the mouth that grants the permission.” The principle of Hapeh is applied, therefore, in this situation where a person volunteers unsolicited information about herself, such as “I was married,” when there is no way of verifying such information.

If left unqualified, such a statement would be against the person’s interest because it would prevent her from marrying her fianc?. But by virtue of Hapeh, such a person is believed to qualify her statement so that it is no longer against her interest.

Another application of Hapeh is the case of witnesses who testify in court that the signatures certifying the authenticity of a note of indebtedness are indeed their signatures — where there is no other independent way of verifying the genuineness of their signatures. However, they immediately qualify their statement and add that they were forced to sign the note upon the pain of death.

For a note of indebtedness to be enforceable, it must be signed by two witnesses who can testify that they witnessed the lender lending money to the borrower. A note of indebtedness written by the borrower which does not bear the signatures of such witnesses is unenforceable, even if it is written and signed by the borrower himself. This is because a note of indebtedness, if properly drawn up, is a very powerful instrument. It gives the lender the right to collect the loan by seizing land from a third-party purchaser who purchased it from the borrower after the date of the note.

The justification for this is that the third-party purchaser knew or should have known that a note of indebtedness gives the lender a lien over the borrower’s land. But the third-party can only know this if the existence of the note of indebtedness is made public knowledge. And the way it is made public knowledge is by having the loan transaction witnessed by two witnesses who sign the note of indebtedness in evidence that they had witnessed the loan and have publicized it. If the court has no way of recognizing the signatures of such certifying witnesses from an independent source, such as comparing their signatures to signatures of the same witnesses already on file and verified in court, and the only way to verify their signatures is by listening to their own testimony that the signatures are indeed their genuine signatures; then, based on the principle of Hapeh, the certifying witnesses are believed to add that they were coerced to sign. The result would be that the note of indebtedness is unenforceable.

Whereas, according to most halachic opinions, the qualifying statement of the litigant herself, such as the lady in the case described above, may be made some time after her initial statement, the qualifying statement of a witness must be made toch kedei dibur, immediately.

Some consider the principle of Hapeh to be a subset of the principle of Migo.

The Migo principle says that a court should believe the statement of a litigant — in his own defense — where he could have come up with a better defense. For example, the lender sued the borrower and claimed that he lent him money. But the lender does not produce an enforceable note of indebtedness because the genuineness of the witnesses’s signature on the note has not been independently verified. Now, the borrower admits to the court that he borrowed the sum of money referred to in the note, but claims — in his defense — that he has already repaid it.

Had the borrower been lying, he could have invented a better lie — namely — that the lender never lent him any money or that the signatures of the witnesses on the note were forged. As long as the borrower would have been prepared to take a rabbinical oath of denial, “Shevuat Heseit,” that he never borrowed any money from the plaintiff — the borrower — in the absence of a valid note of indebtedness, would have won the case. Thus, if borrower chose the weaker defense of: “Yes, I borrowed money from you, but I repaid you,” he must be telling the truth and the court — based on the principle of Migo — will rule in his favor.

The principle of Hapeh, then, is also a form of Migo, because had the lady wanted to lie — she could have just remained silent. According to this opinion, the only difference between Hapeh and Migo is that Migo is only available as a defense to a suit; whereas Hapeh is available even when the volunteered statement was not in response to a suit or was in response to a suit brought with no preliminary evidence.

Other opinions maintain that Hapeh has nothing to do with Migo. Hapeh is based on the fact that the person who qualifies the statement is the sole source of the unqualified statement and the court has therefore no choice but to believe her.

There are those who reject the principle of Migo on the grounds that perhaps the litigant never actually thought of the better defense or that, perhaps, he deliberately chose the worst defense, because he wanted to avail himself of the Migo principle.

Everybody, however, accepts the principle of Hapeh. That is because, being an unsolicited, voluntary statement, it is more credible than the Migo statement which is elicited from the defendant under the pressure of litigation. Hapeh, unlike Migo, is available in matters of marriage and divorce.

Raphael Grunfeld, a partner at the Wall Street law firm of Carter Ledyard & Milburn LLP, received Semichah in Yoreh Yoreh from Mesivtha Tifereth Jerusalem of America and in Yadin Yadin from Harav Haga’on Dovid Feinstein, Zt”l. This article is an extract from Raphael’s book “Ner Eyal: A Guide to Seder Nashim, Nezikin, Kodashim, Taharot and Zerai’m” available for purchase at www.amazon.com/dp/057816731X  or by emailing Raphael at [email protected].