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1) CONDITIONS OF LIABILITY

(a) (Gemara - Shmuel): If the claimant was running after witnesses; and they said, 'Why chase us? We swear, we do not know testimony for you!', they are exempt;

1. One is liable only if the claimant asked him to testify.

(b) Question: What is the Chidush? A Mishnah teaches this!

1. (Mishnah): The claimant sent his slave to ask the witnesses to testify, or the defendant made them swear - they are exempt,
2. One is liable only if the claimant asked him to testify.

(c) Answer: The case when he runs after them is a Chidush;

1. One might have thought, this is like asking them to testify - Shmuel teaches, this is not so.

(d) Question: This also is learned from our Mishnah!

1. (Mishnah): Shevu'as ha'Edus: Reuven *told* the witnesses 'Come testify for me'; they swore...
2. Inference: Had he not told them, they would be exempt!

(e) Answer: No, (without Shmuel) one could say that telling them is not essential, they are liable even if he did not ask them to testify.
(f) Support: We must say thusly regarding Shevu'as ha'Pikadon!

1. (Mishnah): Shevu'as ha'Pikadon: Shimon *told* Levi 'Give me the deposit you are holding for me'...

i. We cannot say that this is only if he told him - "V'Chichesh ba'Amiso", any denial (i.e. even if there was no claim).
ii. Rather, we must say that 'told' in that Mishnah is not essential - the same applies to our Mishnah!

(g) Objection: If you say that 'told' in our Mishnah is essential, we can say that the Tana also taught it in that Mishnah for parallel structure;

1. But the Tana would not teach it in both Mishnayos if it is not essential in either!

(h) Answer: Perhaps the Tana teaches the normal case (he does not swear until he hears a claim).
(i) Support (for Shmuel -- Beraisa): If the claimant was approaching witnesses; and they said, 'Why pursue us? We swear, we do not know testimony for you!', they are exempt;

1. By a similar case of swearing to deny a deposit, he is liable.

(j) (Mishnah): If Reuven made them swear five times...
(k) Question: What is the source that they are only liable for denial in Beis Din?
(l) Answer (Abaye): "Im Lo Yagid v'Nasa Avono" - this only applies where their testimony would have obligated the defendant to pay, i.e. in Beis Din.
(m) Question (Rav Papa): If so, we should say that also the oath must be in Beis Din!
(n) Answer (Abaye - Beraisa): "L'Achas" - this teaches that they are liable for every oath;

1. This must be outside of Beis Din, for in Beis Din, they are only liable once!

i. (Mishnah): If Reuven made them swear five times in Beis Din, they are liable only once.
ii. R. Shimon: This is because once they swear that they do not know, they can no longer testify.

2. We must say, only the denial is in Beis Din, but the oath can be outside of Beis Din.

(a) (Mishnah): If both witnesses simultaneously denied knowing, they are liable.
(b) Question: It is impossible that that two events (their denials) occur simultaneously!
(c) Answer #1 (Rav Chisda): The Mishnah is R. Yosi ha'Galili, who says that it is possible for that two events to occur simultaneously.
(d) Answer #2 (R. Yochanan): The Mishnah can even be Chachamim; the case is, they denied within Toch Kedai Dibur of each other;

1. Anything said Toch Kedai Dibur is considered connected to the previous statement.

(e) Question (Rav Acha mi'Difti): Toch Kedai Dibur is the time needed to greet one's Rebbi, i.e. to say three or four words;

1. One cannot say 'We swear that we do not know testimony for you' in this time (in Hebrew, this is six words)!

(f) Answer (Ravina): It suffices that each witness *begin* swearing Toch Kedai Dibur of the previous witness.

(a) (Mishnah): If one witness denied after the other, the first is liable, the latter is exempt.
(b) Suggestion: Our Mishnah is not like R. Elazar b'Rebbi Shimon.

1. (Beraisa): If there is only one witness, he is exempt for Shevu'as ha'Edus;
2. R. Elazar b'Rebbi Shimon says, he is liable. (Therefore, in our Mishnah, even after the first witness denied, the second would be liable.)
3. Suggestion: Chachamim hold that one witness only obligates the defendant to swear, R. Elazar holds that he obligates paying money (Rashi; Rashba - since he is fitting to join with another witness to obligate money, we consider that he comes to obligate money).

(c) Rejection: Abaye holds that all agree that one witness does not obligate money (as we shall see from the explanation of the following).

1. (Abaye): Chachamim and R. Elazar b'Rebbi Shimon agree about one witness (who denied knowing testimony) about a Sotah (all these cases will be explained later), and about (two) witnesses about a Sotah, they argue about witnesses about a Sotah;
2. They agree about one witness, and when (the defendant) is suspected to swear falsely (and is therefore disqualified from swearing).

(d) Answer: Rather, all agree that one witness only obligates the defendant to swear;

1. R. Elazar holds that something which *enables* one to get money is considered like money (had the witness testified, presumably the defendant would have paid, he would not swear falsely);
2. Chachamim say, something which enables one to get money is not like money.

(e) (Abaye): Chachamim and R. Elazar b'Rebbi Shimon agree about one witness about a Sotah, and about witnesses about a Sotah, they argue about witnesses about a Sotah; they agree about one witness, and when (the defendant) is disqualified from swearing.

1. They agree that one witness about a Sotah is liable, if he saw that she sinned in seclusion, for the Torah believes him like two witnesses (his testimony would have exempted the husband from her Kesuvah);

i. "V'Ed Ein Bah" - but if even one witness testifies (that she had relations), he is believed.

2. They agree that (two) witnesses about a Sotah are exempt, witnesses who saw the husband warn her - their testimony only *enables* that something else (seclusion) can *enable* him to profit (if she will refuse to drink, or will die).

3. They argue about witnesses about a Sotah, witnesses who saw seclusion (their testimony would *enable* him to profit if she would refuse to drink or die);

i. R. Elazar holds that this is like (testimony about) money, they are liable; Chachamim say, it is not like money, they are exempt.

4. They agree that one witness (is liable) when the other party is disqualified from swearing.

i. Question: Who is disqualified?
ii. Answer #1: (Only) the borrower (the defendant); had the witnesses testified, the lender would have sworn instead and collected.
iii. Rejection: This only *enables* money, perhaps the lender would not want to swear (so Chachamim would argue)!
iv. Answer #2: Rather, both parties are disqualified;
v. When both are disqualified, the obligation to swear reverts to the defendant; since he cannot swear, he must pay.

5. They agree that one witness (is liable) in a case such as the following.
6. One witness testified in front of R. Ami that Reuven grabbed an ingot from Shimon; Reuven said 'Yes, I grabbed it - it is mine!'
7. Question (R. Ami): What is the law? We cannot obligate Reuven based on one witness, nor can we totally exempt him!
8. Suggestion: He should swear to contradict the testimony.
9. Version #1 (Rashi) Rejection: He cannot contradict it, for he admits that he took it, nor is he believed to say 'Shimon was holding *my* ingot'.

i. He is unable to swear (in this case), just as a thief (is never believed to swear).

10. Version #2 (Tosfos) Rejection: Since he admits that he took it, and we assume that it was Shimon's (for Shimon was holding it), Reuven is like a thief (who is not believed to swear).
11. Answer (R. Aba): He is obligated to swear, but he cannot, therefore he must pay.

(f) (Rav Papa): Chachamim and R. Elazar agree that one witness that a man died (he is believed to permit the widow to remarry, and to collect her Kesuvah) is liable (we will explain the case), they agree that (in a different case) he is exempt.

1. He is exempt if he told her that her husband died, but when she brought him to Beis Din to testify, he swore that he does not know;

i. (Mishnah): A woman who says that her husband died (even if she only heard from someone else) is believed to remarry or (if it is a situation of Yibum) to do Yibum. (Since she would have been believed to say 'I heard that my husband died', when she asked him to testify, his testimony would not have helped her; therefore he is exempt, even though now that he denied, she is not believed and cannot remarry or collect her Kesuvah.)

2. He is liable if he did not tell her that her husband died and swore in Beis Din that he does not know.

(g) Inference: Rav Papa holds that a witness who swears that he does not know testimony about land is liable (Kesuvos are only collected from land).
(h) Rejection: Perhaps he only teaches about when she was holding Metaltelim from which to collect it.
(i) (Mishnah): If one denied and the other admitted (the denier is liable, the one who admitted is exempt).
(j) Question: We already learned that if the second witness denied longer than Toch Kedai Dibur after the first, he is exempt, all the more so if he admits that he knows!
(k) Answer: The Mishnah teaches, even if both denied, and Toch Kedai Dibur one retracted and admitted that he knows;

1. This teaches that anything said Toch Kedai Dibur is considered connected to the previous statement (it is as if he admitted before he finished denying).
2. We understand according to Rav Chisda, who explained that the Mishnah is R. Yosi ha'Galili;

i. The first clause teaches that it is possible for that two events to occur simultaneously, the latter teaches that anything said Toch Kedai Dibur is connected to the previous statement.

3. Question: R. Yochanan said that the Mishnah can be like Chachamim, (in the first clause) they denied within Toch Kedai Dibur of each other;

i. There are two clauses teaching that anything said Toch Kedai Dibur is connected to the previous statement!

4. Answer: One might have thought, two denials Toch Kedai Dibur of each other are like one, but an admission Toch Kedai Dibur of a denial is like a new matter - the Mishnah teaches, this is not so.

(l) (Mishnah): If there were two pairs of witnesses, and one pair denied after the other (both pairs are liable).
(m) Question: We understand why the second pair is liable, the first pair already denied, so the denial of the second pair stops the claimant from collecting;

1. But when the first pair denied, this did not stop the claimant from collecting, the second pair could have testified!

(n) Answer (Ravina): The case is, when the first pair denied, the second pair were invalid witnesses, because they were related (Rashi - to each other; R. Chananel - to a party of the case) through their wives, who were Gosesos (close to death);

1. One might have thought, since most Gosesos die, the second pair is standing to become valid and the first pair is exempt - the Mishnah teaches, this is not so.