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Sanhedrin, 9

1) HALACHAH: THE VALIDITY OF A MARRIAGE WITNESSED BY A RELATIVE

OPINIONS: The Gemara states that when a group of witnesses contains one witness who is either a relative ("Karov") or unfit for testimony ("Pasul l'Edus"), the testimony of the entire group is rendered invalid. The Gemara in Makos (6a) states that we ask the invalid witness if he intended to be a witness while he saw the event occur, or whether he was merely watching the event out of curiosity. If he answers that he watched the event with intention to be a witness, then he causes the testimony of all of the other witnesses in the group to be invalid.

This Halachah would seem to have serious practical ramifications. At the ceremony of a wedding or at a divorce, if a relative (or other unfit witness) watches the event and has intention to be a witness, then his intention should be able to render the ceremony invalid by invalidating all of the other witnesses who are watching! Why are we not concerned for such a thing?

(a) TOSFOS (DH bi'Zman) explains that the Gemara in Makos does not mean to say that when an invalid witness watches an event with intention to be a witness that there can no longer be valid testimony on the event. Rather, the invalid witness only invalidates the other witnesses when he comes to Beis Din to testify. If other witnesses come to Beis Din to testify, but he does not come, then he does not invalidate them merely by virtue of having seen the event.

Tosfos writes, however, that this is not so simple. The Gemara states that if a witnesses to an act of sin does not warn the person not to do the sin, then he is not considered a witness. If he could be a witness by merely seeing the event, then "what could two brothers who witnessed a murder do [to bring the killer to justice]?" According to Tosfos' answer above, why is this problematic? Let one of the brothers simply refrain from going to Beis Din to testify! Tosfos answers that perhaps both brothers will go to Beis Din separately from each other, not knowing that the other is also going to Beis Din, and they will thereby render the testimony of all of the other witnesses invalid.

(b) The ROSH in Makos (1:11) explains differently. He says that if a person requests two valid witnesses to observe a loan take place, then even if other people who are unfit for testimony come to Beis Din and testify about the loan alongside the valid witnesses, the original witnesses remain valid. How can this be? The Rosh explains that once a person has designated valid witnesses to observe the event, a person unfit to be a witness (such as a vengeful relative) cannot come to Beis Din and testify in order to make his relative lose his money.

The Rosh adds further his teachers ruled that even when a person invites all who know testimony to come and testify on his behalf, even if there are unfit witnesses among them the rest are still valid. Their reasoning is that his invitation was only for those who are valid witnesses.

(c) The RAMBAM (Hilchos Edus 5:5), however, maintains that such a relative indeed could invalidate the testimony of valid witnesses by merely intending to be a witness when observing the event.

The KETZOS HA'CHOSHEN (36:6) points out that the Rambam definitely would argue with the statement of the Rosh's teachers that a person may restrict testimony to valid witnesses even when he did not designate those witnesses previously. Since the Rambam states that the validity, or lack of validity, of all of the witnesses is determined at the moment that the event occurs and is observed, their status cannot be altered post facto by inviting only valid witnesses to testify in Beis Din. However, the Ketzos explains, the Rambam would agree that by designating valid witnesses at the time of the event, all invalid witnesses are excluded and cannot ruin the testimony of the others. Due to this opinion, many contemporary Poskim (see RAV SHLOMO ZALMAN AUERBACH zt'l and RAV ELAZAR MAN SHACH zt'l cited by MEVAKSHEI TORAH, Erusin v'Nisu'in, vol. 1) were stringent that at a wedding the groom should designate his witnesses.

(d) The KETZOS HA'CHOSHEN himself offers another answer to this question. Even according to the Rambam there should be no problem in cases of weddings and divorces. The SHULCHAN ARUCH (EH 42:3) states that without witnesses, a marriage is invalid. The same applies to divorce. A loan or other monetary transaction, in contrast, is valid without witnesses. Therefore, whenever a person gets married or divorced, he is essence saying, "I want valid witnesses to be my witnesses," excluding any unfit witnesses. As we mentioned above, according to the Rambam such a statement is valid.

The CHASAM SOFER (Teshuvos, EH 1:100) uses the logic of the Ketzos ha'Choshen to answer a question that was sent to him. A certain Rav had organized a Kidushin, and after a few weeks noticed that one of the witnesses was related to the bride. Do the bride and groom need another Kidushin, or do we rely on the other people who were present, and who were not related to the bride or groom, as witnesses? The Chasam Sofer quotes the Ketzos ha'Choshen and concludes that since it is assumed that the groom wanted only valid witnesses, it is those witnesses who count according to the letter of the law. However, he suggests that since it is easy to confidentially arrange a second, proper Kidushin with two valid witnesses, it is appropriate to do so. (Y. Montrose)

9b

QUESTION: Rav Yosef describes a case in which a husband brings witnesses who claim that his wife was Mezanah while they were betrothed. Her father calls on other witnesses who make the first witnesses Edim Zomemim (they claim that the first witnesses could not know the details of the case, since they were with them in a different place at the time that the presumed event took place). Rav Yosef says that although the Edim Zomemim are put to death (since that is what they intended to have done to the woman), they do not pay the value of the Kesuvah which they would have caused her to lose. The reason for this, RASHI explains, is because we learn from a verse that someone who deserves two punishments, death and a monetary payment, for committing a single act receives only death.

Rav Yosef discusses another case wherein the witnesses that the father brought were then made into Edim Zomemim by a third pair of witnesses. The father's witnesses are punished with both death (for intending to put to death the husband's witnesses) and with a monetary payment of one hundred Sela'im (for intending to make the husband have to pay one hundred Sela'im for being Motzi Shem Ra). Why, though, do these witnesses not receive the same protection from an additional monetary punishment as the first set of witnesses who became Edim Zomemim received? Rav Yosef answers that we only invoke the one-punishment rule when the punishments are given in response to what the Edim Zomemim wanted to do to *one* individual. In this case, the Edim Zomemim attempted to have the first set of witnesses put to death, and they attempted to make the husband pay a monetary fine.

TOSFOS asks a question on the latter case. The Gemara later (41a) discusses a Machlokes regarding whether a person who knows the Halachah ("Chaver") must be warned with Hasra'ah before committing a sin in order to be punished, or whether he does not need to be warned. Rav Chanan states that according to the opinion that such a person does not need Hasra'ah, if witnesses testified that a woman was Mezanah while betrothed and were then made into Edim Zomemim, they are *not* killed. The reason is because the witnesses can say, "We just testified in order to make sure her husband would not continue to live with her (as a woman who willingly was Mezanah is prohibited to her husband), but we did not intend to have her put to death." If they warned her with Hasra'ah, then obviously they cannot claim that their intention was merely to forbid her to her husband. Rather, they did not warn her, and yet if they had not been found to be Zomemim she would have been put to death, because she was knowledgeable in Halachah ("Chaverah"), and someone who knows Halachah does not need Hasra'ah.

Tosfos asks why do we not apply the same logic here, in the case of our Gemara? The father's witnesses who were found to be Edim Zomemim should be able to claim that they intended only to cause the husband to lose one hundred Sela'im but not to cause the husband's witnesses to be put to death!

ANSWERS:

(a) TOSFOS answers that the case of our Gemara is different. In our case, the third set of witnesses know that when they come to Beis Din and make the father's witnesses Edim Zomemim, they are essentially pronouncing a death sentence on them. The case later (on 41a) is dealing with witnesses who come to Beis Din unaware that the woman about whom they are testifying is a "Chaverah," a woman knowledgeable in Halachah, and they truly thought that their testimony would only cause the woman to separate from her husband, and not cause her to lose her life. Alternatively, Tosfos suggests that they might not have known the law that a "Chaverah" does not need Hasra'ah.

The question of Tosfos, though, would seem to apply in every case involving Edim Zomemim. Why does Tosfos not ask that the witnesses who were found to be Zomemim can say that they only intended to exonerate the defendant, and not to cause anyone to be killed? This question would apply in all cases, so that no second set of witnesses could ever be made into Edim Zomemim! The LEKET MAHARIT deals with this general question in a different context and says that if it were true that the second set of witnesses (who became Edim Zomemim) were only trying to exonerate the defendant by making the first set of witnesses into Edim Zomemim, then they should have made only *one* of the first witnesses into an Ed Zomem, which would have accomplished their goal -- the defendant would be exonerated and no one would be put to death. However, why does Tosfos not give this answer? The MARGOLIYOS HA'YAM explains that Tosfos could not answer that the second set of witnesses should have made only one witness from the first set an Ed Zomem. His reason, he proposes, is because Tosfos holds like the RAMBAM (Hilchos Na'arah ha'Me'urasah 3:6) who rules that the husband does not have to pay the one hundred Sela'im unless *both* of his witnesses are made into Zomemim. This is also the reason why Tosfos does not ask that they could have said that their intention was only to exonerate the defendant; if that were the case, then they could have indeed only made one witness an Ed Zomem without killing anyone. Thus, Tosfos' question applies only in our case.

(b) The PORAS YOSEF gives an alternative answer to Tosfos' question. He says that it is not necessary to change the case in the Gemara later at all. Rather, there the witnesses are indeed testifying about the woman. However, they can say that when they testified about the woman's actions, their intent was to make her forbidden to her husband. In the case here, though, they are not uttering one word of testimony regarding the husband. They are saying that his witnesses were somewhere else. It is impossible, therefore, for them to claim that they did not intend to testify about the witnesses. (Y. Montrose)

OPINIONS: Rav Yosef discusses the Halachah in a case in which a man testifies that he was willingly sodomized by another man, and another witness correlates that this is true. Rav Yosef says that we do not believe the first witness, because his own word makes himself unfit for testimony, as he has proclaimed himself a willing participant in such a heinous sin. Rava disagrees and says that a person cannot give testimony incriminating himself, since a person "is his own relative," and just as his relative cannot testify about him, he cannot testify about himself. We do accept his testimony, however, with regard to the other perpetrator, by using the principle of "Palginan Dibura" (splitting words). Since we do not accept his testimony about himself, it is as if he testified only that the other person sodomized somebody else. What are the guidelines regarding the principle of "Palginan Dibura?" When may we disregard parts of a person's testimony?

(a) TOSFOS shows that we may not "split" a person's testimony in all cases. The Gemara in Kesuvos (18b) states that if witnesses confirm their handwriting on a legal document, they are not believed to say that they were forced to sign the document under the duress of monetary pressure. The reason is because "Ein Adam Mesim Atzmo Rasha," a person cannot make himself into a Rasha (such as by testifying that he accepted a bribe to lie). Rava agrees to that law as well. Why do we not apply "Palginan Dibura" in that case and say that we believe the witnesses that they were forced to sign the document, and we do not believe that they were forced due to monetary concerns?

Tosfos answers that "Palginan Dibura" does not apply to testimony about the same person. If we believe the witnesses' testimony that they were forced, we also must believe them about their intent. Since we cannot believe them about their intent (because "Ein Adam Mesim Atzmo Rasha"), we cannot believe anything that they say about themselves (and thus we do not believe them when they say that they were forced to sign the document). Our Gemara, on the other hand, is saying that we believe what the witness has to say about the sinner, while we do not believe him with regard to anything he says about himself.

(b) The Gemara in Makos (7a) presents a case in which the two witnesses to a loan were relatives of the guarantor. The Gemara states that the witnesses are not valid. The ROSH there asks that we should "split" their testimony and accept their word with regard to the borrower (that he owes money), but not accept their word with regard to the guarantor (since they are related to him).

The KEHILOS YAKOV (Sanhedrin #7) says that the Rosh seems to argue with Tosfos, because the case of witnesses to a loan is a case of testimony on one issue -- whether or not the borrower owes money (the same testimony applies to the guarantor the same way it applies to the borrower, because if the borrower owes money then the guarantor must is obligated to guarantee the loan, and if the borrower does not owe money then the guarantor is exempt as well). The Kehilos Yakov explains, however, that the Rosh does *not* argue with Tosfos. Rather, the Rosh is asking that we should say that we accept the testimony of the witnesses insofar as the borrower is concerned (and say that he owes money), but we should not accept their testimony insofar as the guarantor is concerned.

The Kehilos Yakov says that some answer that we may "split" the testimony only when we can split the actions involved. For example, in the case of our Gemara, we believe that an act of sodomy occurred, while we do not believe that the witness was a participant. In the case in Makos, there is only one action that the witnesses are testifying about (i.e. the loan), and if that testimony is true then it would obligate the relative of the witnesses as a guarantor. We can say that the loan occurred or did not occur, but we cannot say that it occurred with regard to the borrower but did not occur with regard to their relative!

The RA'AVAD gives a different answer. He says that we apply "Palginan Dibura" only with regard to *who* was involved in the case, but not with regard to *what* the witnesses are saying. When a person testifies that he was involved in a sin, his testimony about himself is not accepted because he may not make himself a Rasha. We dismiss his statement about himself, and we are left with complete and acceptable testimony about the other person who sinned. The Ra'avad explains that this is due to the special rule that a person cannot make himself a Rasha; that statement is considered as though it was never said. In contrast, when witnesses who are related to a participant testify, everything that they say is considered testimony, even the part that concerns their relative. Since that part of the testimony is not acceptable, none of it is acceptable, due to the rule that if part of the witnesses' testimony is found invalid, then all of it is invalid ("Edus she'Batlah Miktzasah, Batlah Kulah"). Therefore, we cannot apply "Palginan Dibura" to split regular witnesses' testimony. The RAN (Sanhedrin 10a) agrees with the Ra'avad.

The TUMIM (34:26) infers from the fact that the Ra'avad does not say the answer of the Rosh that the Ra'avad seems to hold that we would say "Palginan Dibura" in the case of a single event, such as a loan, and say that the event occurred with regard to one person while it did not occur with regard to another person. In contrast to the view of Tosfos who maintains that "Palginan Dibura" means that we believe the witness(es) that some events occurred and not others, the Ra'avad says that we believe that an event occurred for one person while that same event did not occur for another. The Kehilos Yakov terms this type of "Palginan Dibura" as "Palginan Ne'emanus," whereby we believe that the event occurred with regard to one person but not with regard to another.

Consequently, the Ra'avad is learning the case of our Gemara differently than Tosfos. According to the Ra'avad, we *do* believe the witness when he says that the perpetrator sodomized *him*, but we do *not* believe him when he says that he willingly acquiesced. According to Tosfos, we only believe testimony that has to do with the perpetrator, and we do not believe anything the witness says about himself. This is why Tosfos says that we only know that someone was sodomized, and we do not know who it was who was sodomized, because we do not accept the witness' testimony about himself. (Y. Montrose)