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Sanhedrin, 27

1) DISQUALIFYING "EDIM ZOMEMIM"

QUESTION: Rava and Abaye argue whether a witness who is found to be an Ed Zomem becomes disqualified retroactively (Nifsal l'Mafre'a) or whether he becomes disqualified only from now on (Nifsal mi'Kan ul'ha'Ba), from the time that he is found to be an Ed Zomem and not from the time that he testified. The Gemara explains that Rava's logic is that in truth there is no reason to believe the second set of witnesses more than the first set; the only reason we accept the second set over the first is because of the Gezeiras ha'Kasuv. Once we do not believe the first set of witnesses, we can no longer consider them to be valid witnesses. However, the reason why we do not believe them is because of a Gezeiras ha'Kasuv, and not because we know that they are lying. Therefore, it is enough to invalidate them from the time at which they became Edim Zomemim, and not from the time at which they testified.

Why does Abaye argue with Rava's logic and disqualify the witnesses even retroactively, from the time that they testified?

ANSWER: The most straightforward explanation would be that Abaye holds that even though the law of Edim Zomemim is a Chidush, nevertheless part of the Chidush is that the testimony of the first set of witnesses is not believed, and the Chidush itself dictates that, consequently, we should disqualify the witnesses from the time of their testimony.

However, the LECHEM MISHNEH (Hilchos Edus 18:2) suggests that according to Abaye, the law of Edim Zomemim is not a Chidush of the Torah, but it is based on logical grounds. There are logical grounds to believe the second set of witnesses over the first. This logic is described by the RAMBAN (in Devarim 19:18). The Ramban writes that if two sets of witnesses contradict each other about the details of the event, we have no reason to rely on one set more than on the other. But if the second set of witnesses gives testimony about the first set of witnesses themselves (for example, that they are thieves or slaves), then we believe the second set, since the first witnesses cannot testify with regard to their own status (they are Ba'alei Davar). The same applies when the second set of witnesses testifies about the whereabouts of the first set at the time the event occurred, without saying anything about the details of the event. The first witnesses are not believed to say where they were at the time of the event, because they are Ba'alei Davar with regard to testimony about themselves. The TUR (Choshen Mishpat 67) also writes this reason.

The Lechem Mishneh suggests a practical difference between these two approaches in understanding the reasoning of Abaye (that is, whether the law of Edim Zomemim is a Chidush or it is not a Chidush). What will be the Halachah when the second set testifies not only about the whereabouts of the first witnesses, but they *also* contradict the testimony of the first witnesses with regard to the event itself? For example, if a second set of witnesses says about the first witnesses (who testified that Reuven gave Shimon a certain amount of money at a certain time) that "you were with us at that time, and, furthermore, Reuven and Shimon were with us at that time as well and no money was loaned." What will be the Halachah in such a case? The Lechem Mishneh suggests that according to the second approach, the second set of witnesses should be believed, since with regard to their own whereabouts, the first witnesses cannot defend themselves. The RAMBAM (Hilchos Edus 18:2), however, rules that in such a case the second set of witnesses is *not* believed. Perhaps the Rambam holds that we trust the second pair only because of the Chidush of the Torah, and that Chidush was said only when the testimony of the second pair does not relate to the testimony of the first pair, but to the whereabouts of the first pair.

However, the Lechem Mishneh's suggestion is not infallible. First, even according to the Ramban who says that there is logic behind the law of Edim Zomemim, we should not believe the second set of witnesses if they contradict the testimony of the first set *and* challenge their whereabouts. The reason for this is because once the two sets of witnesses are arguing about the facts of the case, any other testimony that they say together with those facts should be suspect, because we know that one set must be lying (as is the case whenever two sets of witnesses contradict each other). (See also KOVETZ SHI'URIM to Bava Kama #43, and NESIVOS HA'MISHPAT 38:2.)

Second, the Ramban and the Tur might not mean to say that the law of Edim Zomemim is not a Chidush. In fact, in his commentary on the next verse (Devarim 19:19), the Ramban refers to the law of Edim Zomemim as a Gezeiras ha'Kasuv! When he explains the logic behind Edim Zomemim, he is simply explaining what logic caused the Chachamim to differentiate between Hach'chashah (contradictory testimony of two sets of witnesses) and Hazamah, such that we should establish the verse of "v'Hirshi'u Es ha'Rasha" (Devarim 25:1) as referring to Hazamah. The Ramban, therefore, gives a distinction by saying that Hazamah bears a similarity to testimony about a person's integrity. However, the Ramban himself admits that without the verse of "v'Hirshi'u Es ha'Rasha" we would not have given the second set of witnesses more credibility over the first set, since it is not entirely comparable to a case in which witnesses testify about another person's integrity. (It is not completely comparable because in this case, the second pair of witnesses are relating directly to the specific testimony that they are trying to disqualify, and not just to the character of the witnesses.)

27b

QUESTION: The Mishnah gives a list of a person's relatives who may not testify for him. RASHI explains that even though the Mishnah mentions that one's mother's husband ("Ba'al Imo") may not testify for him, it still mentions that one's wife's son ("Chorgo") may not testify for him, even though "Chorgo" is the same relationship as "Ba'al Imo" (it is just the reciprocal of it). This is because the Mishnah expresses the reciprocal of *every* case, as Rashi explains at length. Rashi says that the only exceptions to this are the case of the son of my wife's brother ("Ben Achi Ishto") testifying for me, and the case of my son-in-law ("Chasno") testifying for me, which are derived from other cases mentioned in the Mishnah and which are not mentioned themselves.

Rashi's words need explanation. Why does Rashi not mention that the Mishnah omits the reciprocal relationship for the son of one's mother's husband ("Ben Ba'al Imo" of the Mishnah see Chart #2, 7B), which would be the son of one's father's wife ("Ben Eshes Aviv")? The Mishnah says that *he* (i.e. Ben Ba'al Imo) may not testify for me, but it does not say the reciprocal case, that I may not testify for him!

It is clear why Rashi does not mention that the reciprocal relationships of the sons-in-law mentioned in the Mishnah, are not mentioned (column C of the chart). Rashi is not discussing the sons-in-law mentioned in the Mishnah at all; only the ten listed relatives themselves and their sons (as the MAHARSHA writes). However, Rashi *should* mention that the Mishnah omits the reciprocal relationship for "Ben Ba'al Imo" (the son of my mother's husband)!

ANSWERS:

(a) The MAHARSHAL apparently was bothered by this question. He explains that Rashi did not mean to count the missing reciprocal relationships for the *sons* of the the ten relatives of the Mishnah. He was only interested in finding the reciprocals for the ten relatives themselves who are mentioned in the Mishnah.

Why then does Rashi mention the reciprocal for the *son* of one's brother (1B on the chart)? He mentions that case only because we learn from there that I may not testify for the brother of my father (i.e. it is the reciprocal for Achi Aviv, 2A of the chart). As for the other "sons of relatives" for which Rashi explains where their reciprocals appear in the Mishnah, Rashi is making another point. Rashi explains where the reciprocal relatives for 2A-B, 3A-B, and 4A-B are mentioned in the Mishnah because he wants to show that the Mishnah *does not need* to mention these three relatives at all, since both their reciprocals *and* their sons reciprocals already appear elsewhere in the Mishnah (see Tosfos).

(The Maharshal's explanation is difficult to understand, because the reciprocal for a father's brother's son (2B on the chart) is not mentioned elsewhere in the Mishnah -- since, as Rashi points out, it is its own reciprocal. Why then did Rashi find it necessary to discuss the reciprocal for this case if it is not one of the ten relatives themselves that are mentioned in the Mishnah?)

(b) The MAHARSHA answers that the law that I may not testify for the son of my mother's husband (7B) is derived from the law that I may not testify for my brother (1A, "Achiv"), for the son of my mother's husband is also my brother (i.e. my half-brother, from my mother).

However, the Maharsha's answer is correct only according to the opinion of Rav Chisda (28b), who explains Ben Ba'al Imo of the Mishnah to be referring to my brother from my mother. According to Rebbi Yirmeyah, though (ibid.), Ben Ba'al Imo of the Mishnah is referring to the son of my mother's husband who was born to a *different* mother (i.e. he is not my brother at all, as we share no common parent). Thus this case is not derived from any other relative mentioned in the Mishnah.

(c) It seems reasonable to say that the law that I may not testify for the son of my mother's husband is derived from the law that *he* may not testify for me, which the Mishnah does mention (i.e. the Mishnah says that "Ben Ba'al Imo" -- the son of my mother's husband -- may not testify for me). This is because the relationship of "Ben Eshes Aviv" (that is, I am the son of his father's wife) is exactly the same as "Ben Ba'al Imo" (he is the son of my mother's husband). This is based on the principle of "Ba'al k'Ishto, as the Gemara (28b) explains, and as the Mishnah itself implies (see 28a). Consequently, the law that I cannot testify for the son of my mother's husband is derived from the law that the son of my mother's husband cannot testify for me, and it is its own reciprocal!

For the same reason, Rashi does not need to mention how the cases of the sons-in-law are derived from the cases mentioned in the Mishnah. Through the principle of "Ba'al k'Ishto," one's son-in-law is considered to be like his daughter, and thus whenever one may not testify about someone's daughter, he may not testify about that person's son-in-law either (and likewise, when one's son may not testify about you, his son-in-law may not testify about you either). (M. Kornfeld)