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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Kosher Judges the Entire Time

By: Reb Avi Lebowitz

The Gemora says that when a Sefer Torah is stolen from a city, the judges of that city may serve as judges to convict the thief so long as they would relinquish their portion in the Sefer Torah. However, the Gemora concludes that by a Sefer Torah where they will anyway be benefiting from the reading, it is not sufficient to relinquish their ownership since they will still be considered biased (nogei’ah b’davar) because they are ultimately benefiting from the Sefer being returned to the city.

Tosfos asks that the Gemora holds that for items other than a Sefer Torah, it would help to relinquish their ownership thereby removing their negi’os. Why don’t we require techilaso v’sofo b’kashrus? Meaning, we should require the judges to be kosher not only at the time of the judgment, but even at the time of the crime?

Tosfos answers that the requirement of techilaso v’sofo b’kashrus only applies to a passul in the guf, such as a relative, but doesn’t apply to a monetary passul.

Tosfos in Niddah (50a) makes a distinction between a witness where we have such a requirement, and a judge, where we don’t have such a requirement.

The Ramban explained by the Nemukei Yosef has a very interesting approach to this question. When one testifies on a monetary issue, he is not testifying on the money, rather he is testifying for the owner of the money. While it is true that we require techilaso v’sofo b’kashrus, and therefore one, who was a relative through marriage at the time he witnessed a crime, cannot testify on that crime even if he has divorced, since then and is no longer a relative. The rationale is that at the time one witnesses the crime he must be kosher for testimony. But with a monetary issue, such as a communal item that is stolen, he is considered kosher for testimony for all those that he is not related to, and passul for testimony for the share of all those he is related to, including himself. Therefore, by removing himself from this money, he is no longer testifying for himself, rather, he is testifying for others and for them he was kosher all along to serve as a witness.

The R"I Mi’gash answers that one who is passul as a nogei’a, is not considered a witness at all. He is not like a relative who is considered a passul witness, rather, he is not in the subject of testimony. Therefore, when he removes himself and becomes a valid witness, he is considered techilaso b’kashrus, since that is the first moment that he assumes a status as a witness. This seems to be an exact opposite logic from Tosfos. Tosfos considers the negi’ah of money so mild that we don’t apply the din of techilaso b’kashrus, whereas the R"I Mi’gash considers it so severe that we don’t even consider him to be a witness. [In truth, there is a lot of discussion as to why a nogei’ah is passul. He is only passul to testify l’zechuso, but kosher l’chovaso, so he is not like a regular passul who is passul for chov and zechus. Some say it is a din of karov eitzel atzmo, some say it is a chashash meshaker, and some say he is not an eid at all - the latter seems to be the opinion of the R"I Mi’gash.]

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Zomemin

By: Reb Avi Lebowitz

In a situation where two groups of witnesses contradict one another about an event; it is classified as contradictory witnesses, where we have no reason to believe one any more than the other. Under these circumstances the Gemora in Bava Basra has a discussion about what to do - it is an uncertainty, so follow the chazakah. One thing, however, is clear, that we do not believe the latter group any more than the first. However, where the second group doesn't testify about the event, rather about the validity of the first two as being valid witnesses, such as testifying that they are thieves, the second group is completely believed to overthrow the testimony of the first group. This is not considered a novelty, since everything that the first group is saying is true, just that by believing the second group that the first are thieves, we automatically do not accept their testimony.

Rava (in the first version) holds that a zomeim is a novelty and therefore only becomes disqualified from the time of the hazamah, and not retroactively from the time of the testimony. Abaye would presumably agree with Rava that zomemin is a novelty, just that it is not logical for them to be disqualified from the time of the hazamah; therefore we disqualify them retroactively from the time of their testimony.

It seems that the concept of “novelty” by zomemin is that rather than considering it to be a case of contradictory witnesses, where the second group are merely disagreeing about the event, we consider it as if the second group are actually testifying about the character of the first group, invalidating them as witnesses. (See Tosfos who explains that the novelty of zomemin more than contradictory testimony is either that the second group is entirely believed, or that the first group is definitely disqualified, not just out of uncertainty. Assuming like Tosfos’ second approach that the novelty of zomemin is to view the testimony to be on the character of the witnesses, not on the event, in which case it is not a novelty to directly disqualify the first or to validate the second, rather it is a novelty in classification).

Why are zomemin somewhere in between? In essence, the second group is not making a character judgment; they are only contradicting the facts – “these two witnesses could not have possibly witnessed what they claim to have witnessed since they were with us elsewhere.” Had it not been for the novelty of the Torah that we believe the second group, we would view it as if they just contradicting the first group about the events, where we would have a legitimate doubt as to who to believe. We would interpret their intent as simply being that the event was not witnesses by these two witneses because they were with us elsewhere. But the Torah teaches us that we are not to regard the hazamah as just undermining the plausibility of the event, rather they are giving a character testimony similar to claiming that the first group were thieves. Why?

It would seem that the reason is because when testifying about an event, it is sometimes possible to misinterpret the event, or not have a clear picture as to what actually happened, so we give each group the benefit of the doubt. But, by zomemin, the second group is claiming that it was clearly premeditated lying that is taking place, not an innocent mistake. People who would fabricate a story when they were in an entirely different location have a fatal character flaw just as thieves do, and therefore they are not admissible as witnesses in any court.

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Migu

It was stated (Bava Kamma 72): Abaye said: A zomeim witness is disqualified (for any other testimony) retroactively (from the time that he testified). Rava said: He is only disqualified from the time that he is found to be a zomeim.

The Gemora explains: Abaye said that he is disqualified retroactively, for it is at that time that he became an evildoer, for the Torah states: Do not place your hand with an evildoer to be a corrupt witness. Rava said that he is only disqualified from the time that he is found to be a zomeim, for his disqualification is itself a novelty (so why should we stretch it). This is because the two sets of witnesses are two against two, so why should we listen to the second set more than the first? Accordingly, we can only apply the disqualification novelty from the time that they become zomemin.

Tosfos asks: Why is it such a novelty that we believe the second set of witnesses over the first? They should be believed, for they have a migu that they could have disqualified the first set by testifying that the initial witnesses are thieves (“believe us when we say that they were with us, for if we would have wanted to lie, we could have said that they are thieves!”)!?

Tosfos answers that we do not apply the principle of “migu” by two witnesses, for each one of them is not aware as to what the other one is thinking.

Furthermore, it is similar to a “migu against witnesses,” where the migu is not effective, and since in this case, the first set of witnesses are testifying that they did in fact witness the event, they are clashing with the migu of the second set. In such types of cases, a migu is not effective.

The Tzlach answers that this is a migu for half a claim and that is why it is not effective. If they would have only testified that the initial witnesses were thieves, they would become disqualified, but they would not be liable to pay at all. However, if they would testify that the first set was not there at the time that they said the event took place, they would be disqualified and they would be liable to pay. Accordingly, the migu principle would not apply in this case.

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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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Witness to Disqualify from Kehunah - Kiddushin 63

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The Mishna stated: If a man said, “My daughter was in captivity and I ransomed her,” whether she is now a minor or whether she is an adult, he is not believed (and she will not be disqualified from the Kehunah).

The Tosfos Rid holds that in order to testify that a woman is a divorcee (and therefore she is disqualified for Kehunah), two witnesses are required, for there cannot be testimony regarding a davar she’b’ervah with less than two witnesses. The Rambam, however, maintains that one witness is believed to testify that a woman is a divorcee, or a chalalah, and based upon this testimony, she will be disqualified from the Kehunah.

The Shaar Hamelech asks on the Rambam from our Mishna. Why isn’t the father believed that his daughter was taken into captivity? Is the father any worse that an ordinary witness?

He answers that our Mishna is discussing a case where the daughter asserts that she was taken as a captive. Even in cases where we believe one witness, that is only if there isn’t any contradicting witness.

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Perhaps they Repented - Kiddushin 63

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The Gemora inquires: Would we execute someone by stoning (if she has relations with a man) based upon the father’s testimony (that he married her off)?

Rav said: We would not. We only believe the father with respect to a prohibition, but not for execution. Rav Assi said: We would. We believe the father for everything.

Rav Assi admits that if she would say, “I got married,” we would not stone anyone.

Rav Assi notes the apparent contradiction in his rulings: If in a case (the father said that he married her off) where we believe a man that he is able to marry her (if he comes saying that he was the one who married her), and we rule that we would execute someone by stoning (for having relations with this woman). Then, in a case (where she was the one who said that she got married) where we do not believe a man to marry her (if he comes saying that he was the one who married her), shouldn’t the halachah certainly be that we would execute someone by stoning (for having relations with this woman)!?

Rav Assi answers: There is a clear distinction. The Torah believed the father, but not her. [The only reason that she is forbidden to every man is because of the principle of “shavya anafshei chaticha d’issura” i.e. she has made for herself a forbidden piece; she is compelled to abide by her declaration.]

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 a 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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Directly from Hashem

The Gemora (Gittin 72) cited a braisa: If a scribe wrote a get for the sake of a specific woman, and the witnesses signed it for her sake as well, although they wrote, signed and gave it to the husband, and the husband gave the get to his wife, it is not valid until the scribe and the witnesses hear the husband’s voice telling them to write and sign it.

It is evident from here that if one person tells another to tell another, it is not regarded as if the third person heard it from the first.

Reb Yosef Engel asks from a Gemora in Kiddushin (22b), which states: Why is the ear different than all the other limbs in the body (that it is chosen for piercing for a slave that chooses to stay by his master)? The Holy One, Blessed be He said, “The ear that heard My voice on Mount Sinai when I said, ‘Bnei Yisroel are slaves to Me, and not slaves to other slaves,’ and this person went and acquired another master for himself, his ear should be pierced!” Why is it regarded as if he heard these words from Hashem? Bnei Yisroel only heard the first two commandments from Him; the rest were said over by Moshe!? We could have answered that since Moshe heard it directly from Hashem, and Bnei Yisroel heard it from Moshe, it is regarded as if they heard it directly from Hashem. However, based on our Gemora, that is incorrect!?

He answers that since when Moshe spoke, the Shechinah was talking through Moshe’s throat, it was considered as if they heard the commandments directly from Hashem.

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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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An Ignorant Person's Recognition

The Mishna (Daf Yomi: Gittin 27a) had stated: If an agent (who was bringing a get) lost the get and found it immediately, it is still valid. However, if he found it after some time, it cannot be used (for we are concerned that it fell from someone else and it is not the get which he lost). If he found the get in a chafisah or in a deluskema (types of containers), or if he recognizes the get, it is valid.

Rashi explains that if the agent himself found the get (not in a container) and he recognizes it, the get is valid.

Other Rishonim understand the Mishna to mean that the get is valid if he recognizes the container.

The Rashba writes that the get will be valid if the agent found it and claims that he recognizes it. This is true even if the agent is an ignorant person. That which the Gemora says below that an ignorant person cannot be trusted that he recognizes the get is only true when someone else found it and the agent is trying to claim it from him. There, we suspect that he is lying. However, if he himself found the get, he is trusted that he recognizes it, for he has a migu (believe me what I am saying, for if I would want to lie, I could have said a better lie); he could have said that he never lost it in the first place. (The Ritva seems to say that the ignorant person is believed even without the migu.)

The Ramban writes that it is only with respect to a lost article that we do not trust an ignorant person when he claims that he recognizes it. However, with regards to a get, which is a prohibitory matter, he is trusted. (The Magid Mishnah explains that this is because one witness is believed with respect to prohibitory matters.)

There are two glaring questions on the Ramban. Firstly, the Gemora below states explicitly that to return it to someone who claims that he recognizes it by sight, it is only to a Talmudic scholar who would be trusted, but not any ordinary person!? Secondly, a get should be regarded as a davar she’b’ervah, a matter with respect to relations, and two witnesses are required for testimony involving such matters!?

The Toras Gittin answers the first question as follows: When the Gemora states that an ordinary person will not be trusted that he recognizes the get, that is only with respect to the monetary issues of the get; however, with respect to the prohibitions stemming from the get, he will be trusted.

The Maharam Schick answers the second question: The halacha is if a father said, “I accepted a kiddushin for my daughter, but I do not know from whom,” and a fellow comes to us and says that it was him, he is believed and she is married to him. The Ran explains that although ordinarily, a davar she’b’ervah requires two witnesses, here it doesn’t, for his testimony is not in contrast with any preexisting status quo; it is merely a clarification as to whom the father accepted the kiddushin from. One person is sufficient for this. So too, here, the one witness is not testifying on the divorce; rather, he is clarifying for us as to who this get belongs to.

The Oneg Yom Tov answers this question by saying that the concern for two Yosef ben Shimon’s in the same city is only a Rabbinical one, and therefore, although it is a davar she’b’ervah, only one witness is required.

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Cuthean as a Witness

The Mishna (Daf Yomi: Gittin Daf 10a) had stated: Any document that has a Cuthean witness signed on it is disqualified (for he is suspected of lying) except that of a get for a woman and for the freeing of a slave.

Tosfos writes that this Mishna is only according to those that hold that the Cutheans were true converts to Judaism, and Biblically, they are regarded as full-fledged Jews. However, according to those who maintain that the Cutheans only converted out of fear of the lions, they are not regarded as Jews, and they cannot be eligible as a witness.

The Ri”f rules that nowadays, the Cutheans are disqualified from all types of testimony, for they are considered like an ordinary idolater.

Reb Isser Zalman Meltzer asks: How can a Cuthean be qualified to testify? Even if they are not suspected to lie, but they deny the Oral Law, and certainly they should be ruled ineligible!

He writes that since this was the tradition that they accepted from their fathers, they are regarded as a child who was taken captive by idolaters (and the fact that he does not believe in the truth of the Oral law does not disqualify him, for he never knew any different), and therefore, they are not disqualified from being a witness.

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Suspected of Lying

The Mishna (Daf Yomi: Gittin Daf 10a) had stated: Any document that has a Cuthean witness signed on it is disqualified (for he is suspected of lying) except that of a get for a woman and for the freeing of a slave.

The Pnei Yehoshua asks: Since they are suspect of lying, they should be regarded as a rasha (wicked person) with respect of monetary matters, and the halacha is that a thief is disqualified form all testimony!?

He answers that the Yerushalmi says that the Cutheans are eligible to sign on a get because they are only suspect with regards to monetary matters, but not with respect of illicit relations. The Pnei Yehoshua explains: The Yerushalmi holds that a witness who is suspected of stealing is only disqualified from testifying with regards to money matters, but he would still be eligible to testify on arayos (relationships). However, l’halacha we hold that such a person is ineligible to testify on all matters, so accordingly, how could the Mishna rule that the get is valid?

He answers that in truth, we do not know definitely that they would lie; it is only that they are suspect of lying. The halacha is that if they are suspected of lying, they are disqualified from testifying with respect of monetary matters, but not with respect of other testimonies.

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The Murderer's Testimony

The Mishna (Daf Yomi: Sotah 47b) states that an eglah arufah is only brought in a matter of uncertainty; however, if the murderer was discovered, we do not bring an eglah arufah.

The Minchas Chinuch (§ 530) writes that if a person comes and says, “I killed him,” if he said that he did it inadvertently, he would be believed and we would not bring an eglah arufah. However, if he said that he killed him intentionally, he is not believed, because there is a principle that a person is not believed to render himself into a wicked person. In that case, we would bring an eglah arufah.

Rav Shach in Avi Ezri disagrees because the reason why a person is not believed when his testimony will render him an evil person is because based upon his testimony, he is a rasha, and a rasha cannot offer testimony. However, with respect to eglah arufah, one who is disqualified from testifying is allowed to testify that he can identify the murderer. Even a thief is allowed to offer such testimony. Accordingly, a person should be able to say and be believed that he himself killed him!

Rav Shach explains that the reason a rasha is believed regarding an eglah arufah is because his testimony is not affecting the murderer whatsoever. He is merely stating that he can identify the murderer. Every other place where one witness or a woman is believed, and nevertheless, we do not believe a thief, that is only because he is accomplishing something. Through his testimony (that a woman’s husband died), we will be permitting a woman to get married, and if he is a rasha, he is not believed, for we suspect that he is lying. By eglah arufah, where there is nothing being accomplished (with respect to the murderer), there is no reason for the rasha to lie and he can therefore be believed.

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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 - Rosh Hashana 23 - Techum for the Witnesses

The Halacha on Shabbos is that if one leaves the techum boundary (2000 amos), he is forbidden from taking even one step. Rabban Gamliel instituted that if the witnesses traveled on Shabbos beyond their techum boundary to come to Beis Din, they are still permitted to travel 2000 amos in any direction. This was established in order that the witnesses should be willing to come and testify and not be confined to one specific area the entire Shabbos.

The Minchos Chinuch (24) writes that it is obvious to him that Rabban Gamliel's decree was limited to the Rabbinic techum boundary. If one traveled further than 2000 amos to come to Beis Din he can then walk 2000 amos in any direction. However, if one traveled beyond three parsaos, which is the Biblical techum boundary, he will not be permitted to take even one step. The chachomim are not able to uproot a Biblical prohibition by allowing positive action of walking beyond his boundary. Rabban Gamliel’s decree was still regarded as an accomplishment since most of the witnesses came from within the Rabbinic techum boundary. The Ritva in our Mishna has the same viewpoint as well.

The Ramban in Eruvin (43) disagrees and maintains that Rabban Gamliel’s decree applied even to those that traveled further than the Biblical techum boundary. He proves this from the Mishna which states that the witnesses can travel on Shabbos the entire night and day, providing that they arrive at Beis Din before the conclusion of Shabbos. The Ramban explains that it is only regarded as transgressing the Biblical prohibition if the entire three parsaos was committed illegally, however if this traveling was done with permission, it is not considered as if he left his original resting place. The witnesses who had permission to travel to Beis Din are not regarded as being beyond their boundary and therefore allowing them an additional 2000 amos now is not overriding a Biblical prohibition.

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Daf Yomi - Rosh Hashana 22 - Retroactive Adults

The Mishna lists different types of people that are ineligible to testify regarding the sighting of the new moon. The Minchas Chinuch (4) inquires as to what the halacha would be regarding the ability of a minor to testfy that he saw the new moon. Beis Din does not accept the testimony of a minor, however, what would be the halacha if the minor would become an adult through his testimony. If a boy was born on Rosh Chodesh Nissan and thirteen years later wishes to testify that he witnessed the new moon. At the time of his testimony, he is a minor but if they accept his testimony and sanctify the day as Rosh Chodesh, it would emerge that retroactively, he is already an adult from the night before and therefore his testimony can be accepted.

The Minchas Chinuch states that it would be dependent on two answers of Tosfos in Makkos (2). There is a principle that in order for a testimony to be valid it must be a testimony that has the ability to be disqualified by making them "eidim zom'min" (conspiring witnesses). "Eidim zom'min" means that two witnesses testify regarding a certain incident and another set of witnesses disqualify that testimony by saying that the first set of witnesses were with them in a different place at the time that the first set of witnesses claim that the act took place. The first witnesses are termed "eidim zom'min" . The Torah commands that the second set of witnesses are believed, rather than the first. In general, they would be punished with the punishment they tried to inflict. Tosfos discusses if this principle applies also to the witnesses who are testifying that they saw the new moon.

If minors would testify, we would not be capable of making them "eidim zom'min" since witnesses can only become "eidim zom'min" prior to Beis Din acting on the testimony and in this case, that would be before Beis Din sanctifies the day to be Rosh Chodesh. At that juncture, they are still minors and they could not become "eidim zom'min." However, Tosfos cites an opinion that witnesses testifying on the new moon do not have this requirement and therefore the minor's testimony can be accepted since retroactively they would be regarded as adults at the time in which they testified.

HaRav Elyashiv shlita does not understand the Mibchas Chinuch at all. He comments that if all that would be required is for Beis Din to clarify that this day is Rosh Chodesh, perhaps the clarification can be accomplished through the testimony of minors who retroactively will be adults if it is Rosh Chodesh. However, that is not the case. Beis Din must listen to testimony, analyze their words and issue a decision sanctifying the new month. If these witnesses are minors at the time, Beis Din doesn't even have the ability to listen to them since they are disqualified from offering testimony.

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Daf Yomi - Rosh Hashana 20 - False Testimony

Rabbi Yochanan taught that on certain months, it is permitted to intimidate the witnesses regarding a new moon that was not seen in the proper time in order to establish Rosh Chodesh on the thirtieth and tell them to testify that they saw the new moon even though in fact they did not see it.

The commentators ask that it would seem that we are coercing witnesses to lie outright. Is this permitted?

Pnei Yehoshua writes that we are referring to a case where according to the calculation, the moon should have been seen and in order to establish the new month in the proper time the witnesses can testify that they saw the moon even thought they didn’t. It is not considered a lie because the knowledge that the moon should have been visible is regarded as if it was actually seen.

He offers an alternative explanation that the witnesses are reconsidering their original testimony and perhaps they saw a sliver of a cloud in the sky that resembled the moon; Beis Din allows the witnesses to testify that they saw the moon and they are not interrogated extensively on this. Rabbeinu Chananel also seems to understand the Gemora in a similar manner.

The commentators ask that this explanation is still not completely satisfactory since there is a halacha that Beis Din cannot make a “din merumeh” -a judgment based on deceiving evidence. How can Beis Din rule on the new month based on false testimony.

The Steipler Gaon (19) states that perhaps this is a proof to the viewpoint of some of the Acharonim who maintain that the witnesses required for testimony on the new month are distinctively different from other witnesses. Normally witnesses are needed in order to clarify to Beis Din regarding the particular issue being judged at the time. Sanctifying the new month does not require witnesses that will clarify to Beis Din anything since through the calculations of the lunar cycle, Beis Din already knows when the new month should begin. Witnesses are needed only because the Torah requires Beis Din to rule on the new month through witnesses. Perhaps it can be said that Beis Din after listening to witnesses testifying that they saw the moon can rule on the new month even thought they know that the witnesses did not actually see the moon. (He does conclude that this explanation will only be sufficient if it is not clear that the witnesses are lying because otherwise they are not considered witnesses at all.)

Tosfos HaRosh in Kesuvos (32) seems to indicate that witnesses for sanctifying the new month are valid even if they are false witnesses outright. He sites the Scriptural verse “These are Hashem’s appointed [holy days] that you shall designate them as holy occasions,” and it is learned from there that Beis Din’s declaration of the new month is valid even if they choose the incorrect day through a mistake or even deliberately.

The Chasam Sofer writes that these witnesses are not transgressing the prohibition of the Torah of bearing false testimony since it is being done with the knowledge of Beis Din and they are not deceiving anyone.

Rav Yosef Engel explains that these witnesses are not transgressing the prohibition of the Torah of bearing false testimony because the Torah explicitly states “Do not bear false testimony against your neighbor” and by testifying in regards to the moon, one is not testifying against his neighbor and therefore will not be included in the transgression.

Rav Elyashiv Shlita says something very similar to the Chasam Sofer. He states that there cannot be a transgression of bearing false testimony when Beis Din is aware that the witnesses are lying. They are not deceiving anyone and Beis Din is even intimidating them to do so. This is not a lie or false testimony at all.

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