We pick up today in the middle of a rather long discussion of the role of witnesses in verifying official contracts. The moment of writing a contract and the time of fulfilling it (usually collecting money) may be at quite a distance. If one party claims not to trust the document, they will wind up in court trying to verify the validity of the document or the events that led to its writing.
One fascinating topic that arises is the question of the imperfection of human memory. If my signature is on the contract, I may be called into court to testify. How much can I be expected to remember and how might I honestly and fairly jog my memory? The discussion opens:
The sages taught: A person may write his testimony in a document and testify on its basis even after several years.
The assumption here is that the person can’t possibly remember that much about events that took place years earlier, but he can still give fresh testimony based on the written document. This is awfully vague. Must the person recognize his signature or remember signing? Or does the document need to help the person remember all the details of the events?
Rav Huna said: And that is if he remembers the testimony on his own.
Rabbi Yohanan said: Even if he does not remember the testimony by himself.
Rabba said: Conclude from this statement of Rabbi Yohanan: With regard to these two witnesses who know testimony in a certain case, and one of them forgot the testimony, one witness may remind his fellow.
Rav Huna specifies that the witness may jog his own memory by using the document as an aid. But Rabbi Yohanan argues that the witness doesn’t need to remember by himself. Rabba suggests that Rabbi Yohanan means to say that the second witness (the standard number of witnesses to a document is two) may actively remind his fellow witness about their past testimony. If there was no original signed document to back up the original testimony and legitimize the friend’s assistance, certainly one could not testify based on this kind of re-awakened memory.
And what if the litigant reminds the witness, “Don’t you remember, you were wearing a blue hat the day I lent him the money? I picked you up in the wagon and we drove together to court to sign the documents?” Opinions abound, but the consensus is that this goes too far: A fellow witness or the document can jog your memory, but one of the interested parties in the case may not.
All of these discussions on the last few pages (and the next few) about testimony and contracts in doubt revolve around questions of what we can expect from an average decent person who might be tempted to cut a corner, but is not criminally inclined and wouldn’t lie outright or falsify documents. Can we trust a recovered memory? How can a person be accurate about the fuzzy past when they are being fed details by an interested party? After all, memory is fickle and maybe even malleable.
The Gemara also wonders: What if we are dealing with a bright young Torah scholar? Maybe this person can be trusted to have accurate recall, even after their memory has been jogged by an interested party. Maybe they are more able to differentiate between true recall and planted evidence. A story will help illustrate:
It’s similar to that case involving Rav Ashi, who knew testimony relating to Rav Kahana.
Rav Kahana said to Rav Ashi: Does the master remember this testimony?
Rav Ashi said to him: No.
Rav Kahana said to him: Didn’t the incident transpire in such and such a manner?
Rav Ashi said to him: I don’t know.
Ultimately, Rav Ashi remembered the testimony and testified for Rav Kahana. He saw that Rav Kahana was hesitant (to accept his testimony on his behalf). Rav Ashi said to him: Do you think that I am relying on you? I made an effort, and I remembered the incident.
Rav Ashi reassured his friend: I’m not saying this simply because you reminded me. I invested my own time in trying to recall, and I remembered on my own. The great Rav Ashi, then, can be trusted to recall circumstances correctly, even when fed information first by an interested party. Can most of us?
Read all of Ketubot 20 on Sefaria.