America’s current vice president is known for flip-flopping.
Recently, she decided to copy a tax proposal of Donald’s Trump’s to not tax tips. This is despite being part of an administration that aggressively pursued a policy to enforce the taxation of tips.
While politicians flip-flopping certainly rubs voters the wrong way, flip-flopping in court is even worse.
Notably, the Gemara in Kesubos (18b) states that witnesses can’t change their given testimony due to the rule of “eino chozer umagid” – that once a witness gives testimony, he cannot change that testimony.
Similarly, the Gemara in Bava Basra (31a) states that when claimants present an argument in court, they cannot change their claim if their new argument contradicts their previous claim.
The Rashbam explains that this is because of the principal of hoda’as baal din k’meah eidim – that admission by a defendant is like 100 witnesses. The initial claim therefore has the power of 100 witnesses and cannot be changed by a subsequent contradictory claim.
The Shach and Meiri explain differently.
They note that if one claimant changes his claim, his claim appears to be less truthful in the eyes of judges and is therefore a weaker claim.
What if the New Claim May Not Contradict the Old Claim?
The Gemara in Bava Basra raises the following question:
What if someone changes their claim but says that the subsequent claim is actually an explanation of the earlier claim?
For example: Say Reuven and Shimon begin with a claim that a piece of property belonged to their parents. Then, Shimon subsequently claims that it didn’t actually belong to his parents. Rather, he only meant to say that the property was clearly under his ownership as if it had been an ancestral field.
Is Shimon allowed to alter his claim and say that he was only explaining his initial claim?
This is a debate among the Amoraim.
Ulla says that a claimant may alter his claim as long as it can be interpreted as an explanation of the earlier claim. Nehardea disagrees.
The halacha follows the opinion of Ulla.
Do They Always Disagree?
The Gemara presents exceptions to both opinions.
Even according to Ulla – who normally maintains that one could present an explanatory claim – one can’t present an explanatory claim if the claimant left the courtroom and only presented the explanatory claim when he returned.
The reason for this is that the claimant likely learned about this claim after leaving court.
Additionally, as noted above, Ulla agrees that one can only present a claim that can be used to explain a previous claim. Not if it would be a complete contradiction.
On the other hand, even according to Nehardea – who hold that one cannot present an explanatory claim – one could present an explanatory claim if it didn’t contradict the first claim in any way.
For example, say that Reuven claims said “this field belonged to my father” while Shimon says that it was his father’s.
If Reuven clarifies his claim and says that “my father bought it from Shimon’s father,” that would be a valid claim even according to Nehardea.
Changing From One Claim to Another – If Both Exempt A Person
Generally, this discussion has revolved around a case where an initial claim obligated a person and the second explanatory claim would exempt him.
However, what if both the initial claim and the explanatory claim exempt someone equally? Can one change their claim in such a case? This would be a question both according to Nehardea – who hold that one cannot present an explanatory claim – and Ulla, who would agree that one cannot present an explanatory claim if the second claim contradicted the first or was only provided after the claimant left beis din.
This is a debate amongst the Rishonim: The Ri Migash says that even Ulla would agree that the claim can be changed. However, the Reah disagrees.
Is Changing a Claim the Same as Changing Testimony?
As mentioned, there is a rule called eino chozer umagid – that witnesses cannot change their testimony. Similarly, we had concluded that if a claimant wanted to make a new claim that would contradict his earlier claim, it would not be allowed.
Are these two rules based on the same principles?
According to the Shach and Meiri, definitely not, as they hold that the issue with changing a claim was only that it made the claim seem less truthful. As opposed to the inability to change testimony, which is an iron-clad rule not based on how truthful the testimony would look.
R’ Elchanan Wasserman (Bava Basra 114) explains that even if one would hold like the Rashbam, that a contradictory claim wouldn’t work because of the principle of hodaas baal din k’meah eidim – the reason why the claimant can’t change the claim isn’t due to the rule of eino chozer umagid. Rather, it’s based on the reality that a claimant’s admission is only believed like 100 witnesses in court because it obligates him. However, if a claimant is trying to change his claim and offer a new claim for his own benefit, he is ineligible as a witness due to his status as a karov – a relative.