The Witnesses have an Interest in the Case

By: Meoros HaDaf HaYomi

The Reinterment of HaGaon Rav Mordechai Benet zt”l

The Gemora, here and often elsewhere, disqualifies anyone suspected of having an interest in a case from serving as a witness or dayan.

The Chasam Sofer zt”l was known for his sensitivity to this issue, which he expressed at the burial of HaGaon Rav Mordechai Benet. The Gaon, whom the Chasam Sofer called the “teacher of all Israel” (Responsa, VI, Likutim, 37), passed away in 5589 far from his town of Nikolsburg, Moravia – now in the Czech Republic – and was buried in Lichtenstadt. His family and members of his community claimed he had instructed them to bury him in Nikolsburg or, at least, Prague and asked the Chasam Sofer’s permission to move the body. The Chasam Sofer, though, replied that all Nikolsburg were unfit to be witness, as they had an interest in the affair, wanting to pray at his grave especially as he had assured them that whenever they needed anything they should pray at his grave. Still, he allowed the reinterment since they claimed he had asked to be buried alternatively in Prague and this admission showed they had no personal interest (Responsa, ibid, and see Responsa Shoel Umeshiv, I, 231).

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Zohar and the Gemora

The Gemora cites a braisa: There is greater stringency in oaths than in vows, and greater stringency in vows than in oaths. There is greater stringency in vows, for vows apply to objects necessary for the performance of a mitzvah just as to optional matters, which is not so regarding oaths (which do not take effect if one would take an oath against performing a certain mitzvah). And there is greater stringency in oaths, for oaths are valid with respect to matters that have substance and matters that are intangible, which is not so regarding vows (which do not take effect on intangible things).

It is noteworthy that the Zohar writes exactly the opposite. An oath, he says, can only take effect on a davar she’yeish bo mamash, something that has substance, whereas a vow can take effect even on a matter that lacks substance.

The Shoel U’meishiv in his haskamah to the sefer Beis Yisroel cites from the Neizer Yisroel that it is a printer’s mistake and the correct version of the Zohar is the way the Gemora states.

Reb Reuven Margoliyos disagrees and cites a Ramban in Shavuos who hints to the version that we have in the Zohar. The Ramban writes that according to Sod, vows do not take effect on matters of substance, whereas an oath will be effective on matters of substance.

In the sefer Mei Hashiloach, he explains the Zohar in a manner that is identical to our Gemora. We find in the Zohar that a davar she’yeish bo mamash frequently means something that has the ability to reproduce. The reason that an oath can take effect even on intangible matters is because an oath is an issur gavra, one is prohibiting himself from the object. The oath, therefore, is taking effect upon the person. The meaning of the Zohar is that an oath takes effect on the person, for he is a davar she’yeish bo mamash, i.e. man has the ability to reproduce; objects do not! An oath takes effect upon the person and not on the object. A vow, on the other hand, takes effect even on a davar she’ein bo mamash, something that does not have the ability to reproduce, i.e. objects. For by a vow, one is prohibiting the object upon himself (issur cheftza), and therefore, the vow takes effect upon the object, not upon the person.

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Pious and Righteous

The Gemora (Nedarim 10a) states: Rabbi Yehudah said in a braisa: The early pious ones were eager to bring a chatas offering, because the Holy One, blessed be He, never caused them to stumble. What did they do? They arose and made a nedavah vow of nezirus to the Omnipresent, so they should be liable to bring a chatas offering to the Omnipresent (when the nezirus was completed; this was considered virtuous).

Shoel U’meishiv asks: Tosfos writes in several places in Shas that Hashem does not cause the righteous to stumble only in respect to prohibitions dealing with eating; however, they may stumble by other prohibitions. If so, it is still possible for them to bring a chatas offering, when they stumble in other prohibitions, so why were they compelled to take a vow of nezirus?

He answers that Tosfos only said that in regards to the righteous people. They may stumble in other prohibitions. However, the pious people are on a much higher level and Hashem would not allow them to stumble in any prohibition.

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