Tuesday, April 17, 2007

Daf Yomi - Chagigah 10 - TAKING A VOW THROUGH WRITING

Shmuel states that one who resolves to make a vow must express the vow with his lips; otherwise, it is meaningless.

The Noda b’Yehudah (Y”D I: 66) inquires if an oath that was written down but not expressed would be valid as an oath. His underlying question is: Do we regard his written word as an expression of his lips?

This should be dependent on a dispute between the Rambam and Rabbeinu Tam regarding the validity of testimony from a written document. The Rambam maintains that testimony must be from the mouth of the witnesses and a document will not be Biblically acceptable for testimony. Rabbeinu Tam disagrees and holds that one who is physically capable of testifying may testify through the means of a document.

He concludes, however, that even the Rambam would agree that writing is considered testimony and yet, a written document cannot be accepted by Beis Din. The logic for this is as follows: An act of writing can constitute speech, but only during the time that it is being written. Beis Din will only accept an oral testimony when they hear it directly; hearsay is disqualified. Witnesses who signed a document are testifying, but Beis Din is not present at that time. If they would sign in front of Beis Din, that would be considered valid testimony.

With this principle, you can answer what would seemingly be a contradiction in the Rambam. He rules in Hilchos Eidus (3:7) that testimony must be from the mouth of the witnesses and a document will not be Biblically acceptable for testimony; yet later in Perek 9:11, he writes that one is required to testify with his mouth or at least that he is fitting to testify with his mouth. This would imply that if he is fitting to testify with his mouth, he would be permitted to testify through the means of a document. According to the Noda b’Yehudah’s explanation, it can be said that the Rambam allows witnesses to testify through the means of a document, but only if they sign the document when Beis Din is present.

Accordingly, we can say that an oath taken through writing will be binding.

4 comments:

ben said...

is this the general discussion of kesivah kedibbur, R' Akiva Eiger, writing sefirah, Ramban regarding Yisro shooting arrow with letter to Moshe?

Avromi said...

yes, it is a topic that a lot can be written about.

Beth said...

Can you enlighten us mortals with that arrow shooting episode? Thanks

ben said...

It is said that Yisro said to Moshe, I am your father-in-law, Yisro, I have come to you. The question is, how did Yisro enter the Jewish camp if they were surrounded by the Clouds of Glory? The Ramban writes that Yisro sent a letter. Here's his words:
(ו) ויאמר אל משה אני חותנך יתרו בא אליך שלח לו הדבר באגרת כתוב בה כן, כי השליח לא יאמר אני חותנך, אבל יאמר הנה חותנך יתרו בא אליך וכן לא יתכן שיאמר לו ככה פה אל פה, כי יאמר הנה באתי אליך, ואין דרך להזכיר שמו אני פלוני, כי בראותו אותו יכירנו, וכמהו ויאמר חירם מלך צר בכתב וישלח אל שלמה (דהי"ב ב י):

so someone suggests that we see from here that writing is like talking. I believe it's Reb Akiva Eiger but I'll leave the rest to Reb Avrohom.