Hasra'ah and Witnesses

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The Purpose of Hasra’ah

By: Rabbi Avi Lebowitz

The Gemora cites various verses as the source for the requirement of hasra’ah (warning).

The Maharatz Chayus points out that there are two sources for hasra’ah. The first is a sevara, - this serves to make sure that the person is aware of the severity and consequences of his actions. Included in the hasra’ah is both the education of the halachah, and the awareness of the action that he is about to do. The second source is the verses that the Gemora quotes which serve as a gezeiras hakasuv, whether they apply or not, that no punishment can be carried out unless there is a warning.

The Maharatz Chayus deduces this from Tosfos who is bothered why the Gemora has to find a source for hasra’ah, to which they answer that it is needed for a non-chaver (someone who isn’t educated in the laws). It is obvious from logic that he requires hasra’ah, because otherwise, he would have no idea whether the action that he is doing is prohibited by the Torah, but, a chaver, who is well educated, knows very well what he is doing and understands the consequences. He shouldn’t require hasra’ah if not for the fact that the Torah would demand it as a gezeiras hakasuv. The verses are the rationale for requiring the details of hasra’ah, such as killing him within the time of an utterance (and perhaps having to accept the hasra’ah).

Based on this, he points out that Tosfos, who asks regarding the source for hasra’ah by an ir hanidachas (subverted town), is difficult. Who says that ir hanidachas has the gezeiras hakasuv requirement of hasra’ah that would involve the details? Perhaps it would only have the sevara aspect of hasra’ah to differentiate between unintentional and deliberate, so that no source is necessary. Clearly, Tosfos assumes that the type of hasra’ah necessary by ir hanidachas is the gezeiras hakasuv type - with all the details, and not just the determination that he was aware of the consequences of his actions.

The Rambam, however, doesn’t seem to follow this same approach. The Gemora 8b and 41a quote Rabbi Yosi bar Yehudah, who says that a Torah scholar doesn’t require hasra’ah, since the sole purpose of hasra’ah is to differentiate between unintentional and deliberate. This would imply that the Rabbis, who hold that even a Torah scholar requires hasra’ah, would hold that hasra’ah is a gezeiras hakasuv, and NOT just to distinguish between unintentional and deliberate. However, the Rambam (Sanhederin 12:2) writes: A torah scholar and an unlearned man require hasra’ah, for the sole purpose of hasra’ah is to differentiate between unintentional and deliberate. This seems to be very strange. The Rambam cites the rationale of Rabbi Yosi bar Yehudah, yet requires hasra’ah even for a chaver! Why?

The Kesef Mishneh and Lechem Mishneh explain that according to the Rambam, the Rabbis don’t disagree with Rabbi Yosi bar Yehudah in principal; rather, they hold that because of his concern, we require hasra’ah even by a chaver who knows the law, since he may not be aware of the action he is about to do. The Rambam clearly learns that the concept of hasra’ah is only meant to make him aware of his actions, and educate him about the halachah, not just a gezeiras hakasuv. Nevertheless, the Rambam requires hasra’ah within the time of an utterance of the action, implying that this concept isn’t merely a gezeiras hakasuv, but an actual concern that he may have a very short term memory. It seems that the Rambam doesn’t buy into the two sources for hasra’ah approach; rather, he understands that the rationale for the sources of hasra’ah cited in the Gemora is to differentiate between unintentional and deliberate - to educate and inform.

HALACHAH ON THE DAF

Eidim P’sulim

The Gemora learns that even if there are a hundred witnesses that witnessed an event, but included in those witnesses were relatives or otherwise disqualified witnesses, then the all the witnesses may not testify. Rebbe clarifies that this is only true when the relatives or otherwise disqualified witnesses also gave the warning, but if they merely witnessed an event along with others, they can’t nullify the testimony of the other witnesses. Rashi explains that by giving the warning, they show that they too want to be considered witnesses, therefore they negate the other witnesses’ testimony, since part of the witnesses are disqualified.

Who is considered disqualified for testimony?

1) Relatives - Relatives: There are many different scenarios; we will only touch on a few.

We learn that relatives cannot be considered witnesses from the verse: Fathers shall not die through their sons. The Chachamim derived from this verse that the father cannot die due to testimony from his son, and vice versa. Aside from a son there are other relatives that cannot testify; a) brothers, b) grandson, c) first cousins, d) second cousins. All these cases apply to females as well, meaning a sister cannot testify on a brother and vice versa etc. (Choshen Mishpat 33:2)

If one cannot testify regarding a woman (for example a sister), he is similarly prohibited from testifying for her husband, and conversely, if one cannot testify for a certain man, he also may not testify for his wife (ibid 33:3). However, he may testify for that spouse’s relative (ibid 33:5).

Mechutanim may testify for each other (ibid 33:6).

2) Oivrei Aveirah - One Who Committed a Sin: If one transgressed any prohibition that is punishable by either death or lashes, he is disqualified for testimony until he repents. It makes no difference if he sinned due to desire, or if he sinned as an act of rebellion (ibid 34:2).

If one transgressed a Rabbinic prohibition, he is disqualified only on a Rabbinic level (there are halachic differences between them).

3) Other P’sulei Eidus: A minor is disqualified for testimony, even if he is very bright. One leaves the status of a minor once he shows signs of physical maturity, usually when he turns thirteen years old.

One who is incoherent in a certain issue is also disqualified (ibid 35:8). If he is mentally deranged, he is also disqualified (ibid 35:10).

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POST 2000!!!!!!! --- Testimony

Real Estate Testimony

Mar Zutra says that one between thirteen and twenty may testify on matters related to movable property, but not on real estate. Rashbam says that someone that age does not have a clear understanding of transactions involving real estate.

Tosfos (155b Lo amru) disagrees, and says that a lack of business sense should not prevent one from testifying. Instead, Tosfos says that he is only unsuited for a formal appraisal of real estate. Tosfos notes that the Gemora says that one at this age is overly impressed by money, and will therefore underestimate the value of the field.

The Shulchan Aruch (HM 35:3) rules that one who is below twenty, and does not exhibit any business sense, may not testify on real estate cases, seemingly like the Rashbam.

The Shach (3) says that the Shulchan Aruch only is referring to cases of real estate appraisal, in line with Tosfos.

The Gemora says that one under eighteen or twenty may not sell his father’s property.

Rashbam and the Rif say that this is limited to his father’s property, since he will decrease the equity inherent in that property by selling at such a young age. However, if he purchased property himself, he may sell it.

Rabbeinu Tam (155a Mochair) says that this applies equally to his own property, since he will sell it as well for a severely discounted price.

The Shulchan Aruch (HM 235:1) rules like Rabbeinu Tam.

How Old and how Sharp?

Rava rules that if someone understands business, he may sell real estate even before the minimum age. The Shulchan Aruch (HM 235:8) therefore rules that one above the age of thirteen who understands business may sell real estate.

For selling movable property, the Gemora cites the age of pe’utos, at which a child’s transactions are valid. The Gemora (Gittin 59a) defines this as ranging from 6-10, based on the sharpness of the child.

The Shulchan Aruch (HM 235:1) rules that as young as six, if a child understands business, he may conduct transactions.

The Rosh learns that the Gemora in Gittin is stating that until the age of ten we must investigate to see if the child understands enough, but from the age of ten and older, we assume a child understands enough, unless he acts irrationally.

The Rambam does not include the distinction at the age of ten, but simply says that a young child’s transactions are valid, if he understands.

The Gr”a (2) explains that the Rosh learns that the Gemora in Gittin was only requiring a level of sharpness until the age of ten, but not beyond.

The Rambam learns that the Gemora in Gittin is to be read as a continuing list of ages, depending on the sharpness of the child. Although the Gemora stopped at the age of ten, the intent was that at any age between six and thirteen, a child’s transactions may be valid, based on the sharpness of the child.

The Shulchan Aruch rules like the Rambam, while the Rama quotes the Rosh’s distinction.

The Shulchan Aruch (OH 199:10) rules that a boy at the age of pe’utos may be counted as the last one for a zimun.

The Magain Avraham (6) defines this as nine or ten, possibly based on the Rif’s formulation.

The Yechave Da’as (4:13) rules that this can be as young as six, as long as the child understands whom he is blessing.

HALACHOS FROM THE DAF

By: Meoros HaDaf HaYomi

The Testimony of a Minor that could make him Bar Mitzvah

Our sugya explains that a minor cannot serve as a winess, as the Torah says: “And the two men will stand” – i.e., men who are qualified to testify but not minors (the verse could have just said “And the two will stand”).

In his Minchas Chinuch, HaGaon Rav Yosef Babad asks an interesting question: There is a halachic rule that a beis din must accept the testimony of any witnesses who comes to them. Now, as explained in tractate Rosh HaShanah, there is a mitzvah to determine the beginning of each month according to witnesses who testify that they have seen the new moon. The mitzvah was in practice till 4119, when Rabbi Hilel ben Rabbi Yehuda Nesiah – called Hillel II – convened a special beis din to fix our present calendar to overcome the worry that there would not be an expert beis din and other conditions necessary for determining Rosh Chodesh each month, due to the long galus.

The Minchas Chinuch raises the question of two young men who come to beis din at the end of Nisan, claiming they saw the new moon and that that day, then, should be announced as 1 Iyar. The beis din, however, discovers that the witnesses will celebrate their thirteenth birthday on 1st Iyar. As long as the beis din does not announce that day as 1 Iyar, they remain minors but if they accept their testimony, they are considered adults and that day may be announced as 1 Iyar. May or must the beis din accept their testimony?

Indeed, the Minchas Chinuch asserts that the matter is up to the beis din. They may accept the testimony, as once they announce that day as 1 Iyar, the witnesses are retroactively qualified. Still, they are not obligated to accept their testimony, as when they came to the beis din, they were minors (see Minchas Chinuch, ibid, that this solution is according to one answer of Tosfos in Makos 2).

Another question related to our sugya arises from Rashi’s commentary on Bava Kamma 88a (s.v. Pesulah l’edus). Rashi adds his own idea as to why the Torah disqualifies minors as witnesses. A minor, he explains, can’t be punished by beis din and if his testimony is revealed as false, he cannot be penalized. He therefore cannot testify, as the halachah is that a beis din may accept only such witnesses that can be refuted. Why, then, did Rashi feel the need to add to the above exclusion of a minor on the strength of the verse “And the two men will stand” and, on the other hand, since Rashi’s reasoning is so wonderfully valid, why must we learn the halachah from the verse at all?

The Acharonim offer several solutions: HaGaon Rav David Rapaport suggests a case that necessitates Rashi’s reasoning in addition to the halachic interpretation of the verse: If a beis din accepted the testimony of two witnesses and a doubt was later raised as to if they were adults or minors, we must behave as the halachah requires in any instance of a doubt – to act strictly in the case of a prohibition stemming from the Torah. According to Rashi, though, we have no need to behave strictly as the rule is that a beis din cannot punish anyone for a doubtful transgression. The witnesses could have been minors when they testified and, as such, can’t be punished if their testimony is revealed as false. A beis din may accept only such witnesses as can be refuted and their testimony is definitely invalid (Hagahos Tzemach Tzedek on Responsa Rabbi Akiva Eiger, 1st edition, 176).

HaGaon Rabbi Akiva Eiger approaches the question from the other direction. Why do we need the verse if we learn the same halachah from Rashi’s reasoning? Indeed, though, not all testimonies proven false are punishable. Someone who testified, for example, that he saw the new moon and was discovered to have lied did not mean to harm anyone physically or financially and goes unpunished. We need the verse, therefore, to exclude minors from testifying in any instance.

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Laws of Heaven

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The Gemora (Bava Kamma 22b) cites a Mishna: If one sends out a fire in the hands of a deaf-mute, an imbecile or a minor (and it consequently burned someone’s haystack), he is not liable to pay according to the laws of man, but he is liable according to the laws of Heaven. If, however, he sent out the fire in the hands of a competent person, the competent person is liable to pay for the damages.

It would seem that in the case where the sender sent the fire with a competent person, the sender is not liable at all, even under the laws of Heaven!

The Ram”a (C”M: 32:2) rules that if one sends out false witnesses to testify against someone, and they cause that fellow a loss, the sender is not liable at all, even under the laws of Heaven. This is because we say that there cannot be a shliach to commit a transgression.

The Sha”ch disagrees and maintains that the sender will be liable to pay under the laws of Heaven. He explains the distinction between the two cases. The sender will always be liable under the laws of Heaven. The only reason that the sender is not required to pay at all in the case of the fire is because once the competent person is liable to pay, there is no place for the sender to be liable as well!

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From their Mouth's and not from their Writings

The Gemora (Gittin 71) states that testimony is valid only from the mouths of the witnesses, not on the basis of any documents. It is evident that writing is not the same as talking.

The Gemora Chagigah (10b) cites Shmuel who 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.

Reb Akiva Eiger discusses some other practical applications for this principle.

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Validity of Signatures

The Mishna had stated: The witnesses sign the get to benefit the public.

The Gemora asks (Daf Yomi: Gittin 36a) : Do the witnesses only have to sign on the Get because of “Tikun Ha’Olam” – “benefiting the world?” This is a Torah law! This is evident from the verse, “And it should be written in a document and signed!”

Rabbah says: The Mishna’s statement is needed according to Rabbi Elozar, who holds that the witnesses for the giving of the document cause the document to take effect. Even according to him, Chazal instituted that witnesses should also sign the Get because of tikun ha’olam. This is because there are times when the witnesses of the giving of the Get might have died or went overseas (and at least the witnesses signed will be able to contradict the ex-husband in case he claims that he did not divorce her).

Rav Yosef says: Even according to Rabbi Meir (who holds that the witnesses for the giving of the document cause the document to take effect), they decreed that witnesses should specify their names in a Get, due to tikun ha’olam. This is as the braisa states: Originally, people would sign, “I, So-and-so (without writing his name), have signed as a witness.” If there was a different document with the same handwriting that was verified to be authentic, this document would also be valid. If not, it is not valid. Rabban Gamliel said: They made a great decree when they instituted that witnesses should specify their names in a Get, due to tikun ha’olam.

The mefarshim ask on the Rambam in Hilchos Edus (3:4), who states that the requirement for witnesses to sign on a document is only mi’divrei sofrim (a Rabbinical obligation). The Gemora expressly states that this is a Biblical requirement!?

The Megillas Sefer answers that when the Gemora states that it is Biblically required, it is not being completely accurate, for the verse where this obligation is derived from is a verse in Yirmiyah. The Gemora only meant to ask that from the Mishna it would seem that the witnesses sign only because of Rabban Gamliel’s decree, when in truth, this was established generations beforehand!

The Pnei Yehoshua answers that it is only a Biblical requirement according to Rabbi Meir, who holds that the witnesses who sign the document are those who render it effective. However, the Rambam rules in accordance with Rabbi Elozar, who holds that the witnesses who observe the delivery of the document are those who render it effective. Therefore, the Rambam writes that the signatures are only a Rabbinical requirement.

The Nesivos Hamishpat, Chasam Sofer and others answer that the Rambam is only referring to proof documents, since the witnesses are obligated to testify in Beis Din so that the judges will have the ability to cross examine them. Testimony is valid only from the mouths of the witnesses, but not on the basis of any documents or writings. However, regarding a document that is made to affect something, either a marriage, divorce, sale etc., the Rambam will agree that the signatures of the witnesses are Biblically required.

Reb Chaim Brisker adds that a document, like a get, which later will be used as proof that the woman got divorced can still be Biblically valid. For once the document rendered an effect, it is as if it has been investigated in Beis Din, and would not any longer be disqualified because of the rule that testimony must come from their mouths and not from their writings.

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Inheritance Based Upon the Testimony of only One Witness

The Gemora (Kesuvos 107a) cites the following case: If one witness said that the husband had died; since she is also allowed to remarry with one witness, she can be supported on the basis of this witness. However, his sons and daughters cannot split the estate based on the testimony of a single witness. They therefore do not have right to receive support from the estate.

Tosfos comments: That the Gemora in Bava Metzia (38b) states that when we hear that he has died, we can send down relatives to his estate; that is only to eat the produce, but he is not permitted to sell the property. So too, over here; we allow them to be sustained from the produce, but they are not allowed to sell the estate in order to be supported.

The Tashbatz writes that one witness is believed to allow the relatives to inherit the estate since it is something that will become public knowledge, and we are not concerned that he will lie. That which the Gemora says that we do not allow an inheritance based upon the testimony of one witness; that is only when the witness testifies that he heard about the death from another witness. Nevertheless, even this testimony will be valid to permit the wife to remarry.

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Perhaps they Repented

The Maharik (shoresh 33) writes concerning a case where one witness testifies that a certain shochet was slaughtering improperly and the shochet himself contradicts the witness; since the witness is not believed, he himself is permitted to eat all future meat slaughtered by this shochet. This is not comparable to a case where a witness testifies regarding wine that is forbidden on account of it being yayin nesech because here there is a possibility that the shochet will repent and slaughter properly.

The Pri Chadash (Y.D. 1, 14) asks: Why don’t we apply the principle of “shavya a’nafshei chaticha d’issura,” one who states that something is forbidden, even if he is not believed in respect to everyone else, renders the object forbidden to him (as is evident from the Gemora in Kesuvos 9a)? All the meat slaughtered by this shochet should be forbidden to this witness!?

The Pri Megadim (Sifsei Daas, ibid, 41) answers that the Maharik is referring to a case where the witness retracted and said that he had testified falsely. In such cases, the principle of “shavya a’nafshei chaticha d’issura” does not apply.

Rav Elyashiv answers: The reason why one can render the object forbidden with the principle of “shavya a’nafshei” is not because he is believed in respect to himself; rather, it is because it is regarded as an oath. The witness is taking a vow forbidding himself from this particular object. Accordingly, he explains that the witness who testified regarding the shochet it making a vow that he will not eat the meat from this animal, however, he will not be prohibited, on account of his vow, against eating from any other animal that this shochet slaughters.

The Mishna Lemelech (Hilchos Shechitah 1:26) challenges the ruling of the Maharik from our Gemora (Kesuvos 44a) which discusses a case where two deeds were given over regarding the same field. The ruling is that the second deed cancels the first one. Rafram explains that the recipient has admitted to the other that the first deed is invalid. Accordingly, the Gemora continues that these witnesses must be regarded as legally unfit for further evidence concerning this recipient since he is stating that they put their signatures to an invalid document. We do not say that they should be valid witnesses later, for perhaps they repented. What is the difference between the two cases?

The Shaar Hamishpat (92:7) answers: The Maharik rules that all meat slaughtered by this shochet will be permitted to eat by the witness because there is a double doubt; perhaps, he has slaughtered the animal properly and perhaps he repented. Just because he slaughtered improperly (according to the witness’ testimony) one time, it is not logical that we should prohibit his slaughtered meat forever. However, in respect to testimony, once the recipient has stated that these witnesses testified falsely, they will be disqualified to offer testimony for him forever. Even according to those that hold that we can apply the principle of a double doubt in regards to monetary judgments, here, it will not apply. What can be said? Perhaps the witnesses will testify truthfully and perhaps they repented. This logic is not applicable by testimony, for testimony functions as a proof, and if we are uncertain if the witnesses repented or not, they cannot be accepted as witnesses because we have no proof that they are testifying truthfully. Therefore, they will not be believed for all future testimonies regarding this recipient.

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Did Rav Ashi Deny Knowing Testimony in Beis Din?

There is a known rule throughout Shas that once a person has finished testifying, he cannot go back and alter his testimony. In our Gemora (Kesuvos 20), Rav Ashi denied knowing testimony for Rav Kahana, but later remembered and testified? How could he do so? Didn’t he already testify that he didn’t know? The Hagaos Ashri (#16) states that it is therefore clear that he did not deny knowing testimony in Beis Din. Other Rishonim, however, argue that the rule above is only if someone actually testified regarding events that happened. However, if he says he is not aware of the events and later remembers, this is not called going back and changing what he had said. He simply remembered that he knew testimony.

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BLACKMAILING FATHER TESTIFIES THAT HE MARRIED OFF HIS MINOR DAUGHTER

The Gemora (Kesuvos 17b – 18a) states: If two witnesses said that they were coerced to testify falsely on account of a threat to their finances, they are not believed.

The Gemora asks: What is the reason for this?

The Gemora answers: It is because that a person is not believed to establish himself as an evil person. (Rashi explains that every witness is assumed to be reliable; by issuing a self-incriminating statement, he will be disqualifying himself from further testimony. Just as a person cannot testify regarding his relative, he may not testify about himself because he is related to himself.)

The following question was raised to the poskim years ago: A man testified in Beis Din that he married off his minor daughter, but he refused to state the identity of this man. His intention was to put pressure on his wife for her to accept a divorce without receiving any alimony payments and to have equal visitation rights for the children. Do we accept his testimony and consider the girl as a married woman?

Rav Eliyahu Pesach Ramnik, Rosh Yeshiva of Ohavei torah in Far Rockaway applied the principle of ‘a person is not believed to establish himself as an evil person’ as the basis for his ruling. He explained: The father, who is testifying that he married off his minor daughter is establishing himself as a wicked person for several different reasons. Firstly, if in truth, he has married her off in order to extort money from his wife, using a mechanism of the Torah in this manner causes a tremendous desecration of Hashem’s name, and if the wife does not concede to his demands, the child will remain an agunah her entire life. This will result in an even bigger chilul Hashem. Secondly, he is transgressing the prohibition of paining another fellow Jew. The pain and the embarrassment that he is causing his wife and daughter to endure is indescribable. Thirdly, the Gemora in Sanhedrin (76a) states that one who marries his daughter to an elderly man transgresses a Biblical prohibition of causing his daughter to sin, since she will not be satisfied in that marriage; certainly in this case, the father will be violating this prohibition, for the daughter does not even know the identity of her true husband. Based on these above reasons, it emerges that by accepting the father’s testimony, he would be rendered a rasha, and therefore, his testimony should not be accepted and his daughter would not be regarded as a married woman.

Rav Yitzchak Zilberstein, in his sefer Chashukei Chemed questions the above conclusion. He cites several Acharonim who rule that when a man has already been established as a rasha regarding other matters, his testimony can still be valid (provided that he is not disqualified from offering testimony) even though it also renders him a rasha. The Chacham Tzvi (responsa 3) rules that if someone has violated a light transgression in our presence, he would still be believed that he has violated an even stricter prohibition. This is because his testimony is not rendering him a rasha, he already has established himself a rahsa. It is for this reason that we will be compelled to accept the father’s testimony that he married off his daughter, for this man has already been established as a rasha. He is desecrating the name of Hashem by using the Torah’s mechanisms for evil purposes and by causing pain and grief to his wife and to his daughter.

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ONE WITNESS IS BELIEVED TO PERMIT THE HUSBAND TO MARRY HIS WIFE’S SISTER (explanation of Tosfos) - Yevamos 94 - Daf Yomi

The Gemora states: If one’s wife and his wife’s sister’s husband both went overseas and he heard that they died, and he went and married his wife’s sister. They both subsequently returned. The halacha is as follows: His wife’s sister is forbidden to remain with her previous husband (as we previously learned, that a woman who marries on the basis of testimony that her husband died, and then he returns, she cannot return to her husband), but his own wife is permitted to him. We do not say that since his wife’s sister is forbidden to remain with her husband, his wife should be prohibited to him.

Rashi learns that the wife’s death became known through the testimony of one witness. Tosfos Rid and Maharsha ask that a single witness is only believed to permit a woman to remarry because we do not want her to remain an agunah; how can Rashi write that the husband married the sister on the basis of the testimony of a single witness?

The Maharsha answers that the husband erroneously thought that a single witness is believed that his wife died, and he is therefore permitted to marry her sister.

Additionally, he suggests that Rashi maintains that just as a single witness is believed to permit a married woman to marry because we do not want her to remain an agunah, so too, the Rabbis permitted the prohibition of a wife’s sister because of agunah.

The Netziv disagrees and says that in general, a single witness would not be believed to permit the prohibition of a wife’s sister; however, in a case where he is believed that the husband died for the purpose of allowing the wife to remarry, he is also believed that the wife died, thus permitting the husband to marry her sister.

Tosfos s.v. v’af al gav states that there were two witnesses that his wife died because otherwise, he would not be permitted to marry her sister. He does cite two opinions regarding how many witnesses there were testifying that his brother-in-law died. This would depend on the dispute between the Chachamim and Rabbi Shimon regarding the permission granted to the wife to return to her husband if there were two witnesses testifying. Since the Gemora rules that the wife is forbidden to remain with her husband, the Gemora is either referring to a case that two witnesses testified, and the Gemora is following the opinion which maintains that the Rabbis dispute Rabbi Shimon and hold that she would still be forbidden; or the case of the Gemora is where there was only one witness.

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TESTIMONY OF A WOMAN - Yevamos 88 - Daf Yomi

The Gemora states that regarding testimony for a woman whose husband died overseas, we accept testimony from a witness who heard testimony from another witness, although we normally do not accept such testimony. Similarly, even the testimony of a person who is normally invalidated for testimony, such as a woman, a slave and the like, their testimony will be accepted to allow a woman to remarry.

The Reshash asks: Tthe Mishnah states that there is no liability of a korban shevuas haeidus, if one takes an oath that he does not know testimony regarding a woman. The question is, if regarding testimony on behalf of a woman, even a woman’s testimony is acceptable, then one should be liable a korban shevuas haeidus for testimony regarding a woman.

The Reshash answers that the testimony of woman is not considered a testimony. Even if she is a “kosher” witness, she is not considered to be “kosher” with regard to the laws of testimony, only that she can reveal what happened in a certain situation. This answer is corroborated by Rabi Akiva Eiger .

The Shav Shmattsa answers that what we believed the words of a woman is not because of testimony, but rather because we assume that her words are the facts. If so, regarding the liability of a korban shevuas haeidus, Rashi writes that we require that the person was fit to testify. So it follows that a woman and anyone else who is invalidated from testifying will not fall under the category of liability for a korban shevuas haeidus.

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FROM THEIR MOUTHS AND NOT FROM THEIR WRITING - Yevamos 31 - Daf Yomi

The Gemora states that testimony is valid only from the mouths of the witnesses, not on the basis of any documents. It is evident that writing is not the same as talking.

The Gemora Chagigah (10b) cites Shmuel who 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.

Reb Akiva Eiger discusses some other practical applications for this principle.

(http://weeklyshtikle.blogspot.com/2007/05/weekly-shtikle-emor.html) The Weekly Shtikle writes the following: The topic is the discussion as to whether or not writing may qualify as a valid means of fulfilling the mitzvah of Sefiras HaOmer. That is, if one was to write, "Hayom Yom X La'Omer," would that be sufficient to fulfill one's obligation and would this action disallow one from repeating the count with a brachah?

The discussion of this halachic quandary follows an interesting family tree. This issue is first dealt with in Shaalos uTeshuvos of R' Akiva Eiger, siman 29. The teshuvah is actually written by R' Akiva Eiger's uncle, R' Wolf Eiger. Unable to attend his nephew's wedding, he made a simultaneous banquet of his own to celebrate the occasion. He wrote to his nephew about this halachic issue which was discussed at the banquet. He cites a number of related issues which he builds together to try to reach a conclusion. The gemara (Yevamos 31b, Gittin 71a) teaches that witnesses may only testify by means of their mouths and not by writing. The gemara (Shabbos 153b) states that mutes should not separate Terumah because they cannot say the brachah. It is assumed that writing the brachah would not have been sufficient. Also, there is a discussion amongst the commentaries with regards to the validity of a vow that is written and not recited. R' Wolf Eiger concludes that writing is not a sufficient means of fulfilling the mitzvah of Sefiras HaOmer. However, this sparks a debate between him and his nephew which stretches out to siman 32.

This issue is eventually discussed in Shaalos uTeshuvos Kesav Sofer (Yoreh Dei'ah siman 106) by R' Avraham Shmuel Binyomin Sofer, R' Akiva Eiger's grandson who was, in fact, named after R' Wolf Eiger. He covers a host of related topics and eventually discusses the exchange recorded in his grandfather's sefer. The debate, although it encompasses various pertinent issues, never produces any concrete proof directly concerning the act of counting. However, Ksav Sofer quotes his father, Chasam Sofer, in his footnotes to Shaalos uTeshuvos R' Akiva Eiger (his father- in-law) where he provides a more concrete proof. The gemara (Yoma 22b) teaches that one who counts the number of B'nei Yisroel transgresses a prohibition as it is written (Hoshea 2:1) "And the number of B'nei Yisroel shall be like the sand of the sea that shall not be measured nor counted." The gemara cites two examples (Shmuel I 11:8, 15:4) where Shaul HaMelech went out of his way to avoid this prohibition by using pieces of clay or rams in order to perform a census. Chasam Sofer suggests that Shaul could simply have counted the men by writing down the numbers and not saying them. Since Shaul went to far greater lengths, we are compelled to say that writing the number of men would still have qualified as counting them and he would hot have sufficiently dodged the prohibition. Thus, concludes Chasam Sofer, if one has explicit intention to fulfill the mitzvah, writing is a valid means of performing the mitzvah of Sefiras HaOmer. However, Kesav Sofer suggests that perhaps the brachah should not be recited in this case.

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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.

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