Monday, December 25, 2006

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.