Jewish Law Responds to American Law 139
An early attempt at definition is found in the Mishnah with regard to the legal capacity of a minor to acquire lost or abandoned property found by that minor. In the discussion concerning the definition of a minor, Samuel gives a circumscribed definition stating that no minor is capable(has the capacity) to acquire such property. R. Johanan contends that the definition of a minor is not one of specific age but rather of financial independence from the household:“a minor who is not maintained by his father is regarded as a major.”
Both Jewish law and Anglo-American law distinguish between witnesses to an event or crime and witnesses to an agreement or contract. In spite of the distinction drawn above, in the matter of the capacity of a minor to act as a witness to an action, event or crime, the law follows a more clearly defined pattern.
A person is incompetent as a witness until he reaches the age of 13. Between the ages of 13 and 20, he is competent as a witness with regard to moveable property, but in respect of immovable property he is competent only if he is found to have the necessary understanding and experience(BB 155b; Yad. Edut. 9:8; Sh.Ar. HM 35:3). From the age of 20, all disqualification by reason of age is removed.*
The law concerning the legal capacity to be a competent witness to a transaction is the same as that relating to being competent to enter into marriage. As marriage is a legally binding contract, only parties who have legal competence may enter into it. After the groom has reached the age of thirteen years and one day, he is no longer a minor(katan) and may contract a valid marriage. As there is legal capacity to enter into a contract, there is legal capacity to be a witness to such a contract. It is immediately apparent that Jewish law subordinates itself to the statutory law in accord with the principle of dina de-malkhuta dina,“the law of the government is the law.”* This principle of Jewish law, dina de-malkhuta dina, is a standard by which halakhah measures its own ability to maintain its authority in a non-Jewish environment. Thus, Jewish law accedes to the statutes of the various states with regard to the age required for legal capacity to enter into marriage, to enter into other contracts and to act as
a valid witness to a legal transaction.