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Edut - Chapter 22

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Edut - Chapter 22

1The following rules apply when two groups of witnesses contradict each other.1 If one witness from one group came together with one witness from the other group and they both delivered testimony concerning another matter, the testimony is of no consequence. For certainly one of them lied, but we do not know which one.2אשְׁתֵּי כִּתֵּי עֵדִים הַמַּכְחִישׁוֹת זוֹ אֶת זוֹ, שֶׁבָּא עֵד אֶחָד מִכַּת זוֹ וְעֵד אֶחָד מִכַּת זוֹ וְהֵעִידוּ בְּעֵדוּת אַחֶרֶת - אֵין כָּאן עֵדוּת; שֶׁהֲרֵי בְּוַּדַּאי אֶחָד מֵהֶן שַׁקְרָן, וְאֵין יָדוּעַ מִי הוּא מִשְּׁנֵיהֶן.
If one of these groups comes alone and gives testimony and the other group comes alone and gives testimony regarding another matter, we accept the testimony of both groups individually.3בָּאָה כַּת זוֹ בִּפְנֵי עַצְמָהּ וְהֵעִידָה עֵדוּת, וּבָאָה כַּת זוֹ וְהֵעִידָה עֵדוּת אַחֶרֶת בִּפְנֵי עַצְמָהּ - מְקַבְּלִין כָּל אַחַת מֵהֶן בִּפְנֵי עַצְמָהּ.
2Reuven produced two promissory notes against Shimon: one for a maneh4 and one for 200 zuz. Shimon denied being obligated for either of the promissory notes. The witnesses to one of the promissory notes were one of the groups whose testimonies contradicted each other and the witnesses to the other were the second group. Shimon is required to pay only a maneh,5 for the bearer of the promissory note has the position of lesser strength.6 He must take an oath concerning the remainder.7ברְאוּבֵן שֶׁהוֹצִיא עַל שִׁמְעוֹן שְׁנֵי שְׁטָרוֹת, אֶחָד בְּמָנֶה וְאֶחָד בְּמָאתַיִם, וְכָפַר שִׁמְעוֹן בִּשְׁנֵי הַשְּׁטָרוֹת, וְעֵדֵי שְׁטָר זֶה כַּת אַחַת מֵאוֹתָן הַשְּׁתַּיִם שֶׁהִכְחִישׁוּ זוֹ אֶת זוֹ, וְעֵדֵי הַשְּׁטָר הַשֵּׁנִי הַכַּת הַשְּׁנִיָּה - הֲרֵי שִׁמְעוֹן מְשַׁלֵּם מָנֶה, שֶׁיָּד בַּעַל הַשְּׁטָר עַל הַתַּחְתּוֹנָה, וְיִשָּׁבַע עַל הַשְּׁאָר.
It appears to me that he must take this oath concerning the remainder while holding a sacred article,8 as is required of a person who admits a portion of the claim lodged against him.9 For there are two acceptable witnesses10 who testify concerning a portion of the money which he denied owing entirely. And the statements of his own mouth should not have greater legal power than the testimony of witnesses as we explained.11וְיֵרָאֶה לִי שֶׁשְּׁבוּעָה זוֹ שֶׁיִּשָּׁבַע עַל הַשְּׁאָר, בִּנְקִיטַת חֵפֶץ כְּדִין מוֹדֶה בְּמִקְצָת, שֶׁהֲרֵי יֵשׁ עָלָיו שְׁנֵי עֵדִים כְּשֵׁרִים מְעִידִין בְּמִקְצַת הַמָּמוֹן שֶׁכָּפַר בְּכֻלּוֹ, וְלֹא תִהְיֶה הוֹדָאַת פִּיו גְּדוֹלָה מֵהֶעָדַת עֵדִים, כְּמוֹ שֶׁבֵּאַרְנוּ.
3Reuven sued Levi, producing a promissory note signed by one of these groups of witnesses. Shimon also sued Levi and produced a promissory note signed by the other group. Although Levi denies both debts, both Reuven and Shimon are given the option of taking an oath and collecting what they claim. The rationale is that certainly one of them has a viable claim against him.12גהוֹצִיא רְאוּבֵן שְׁטָר עַל לֵוִי, וְעֵדָיו כַּת אַחַת מִשְּׁתֵּיהֶן, וְהוֹצִיא שִׁמְעוֹן שְׁטָר שֵׁנִי עַל לֵוִי, וְעֵדָיו הַכַּת הַשְּׁנִיָּה, וְלֵוִי כּוֹפֵר בִּשְׁנֵיהֶם - הֲרֵי רְאוּבֵן נִשְׁבָּע וְנוֹטֵל, וְשִׁמְעוֹן נִשְׁבָּע וְנוֹטֵל; שֶׁבְּוַּדַּאי אֶחָד מֵהֶן יֵשׁ לוֹ אֶצְלוֹ.
The oath required is a Rabbinic institution as is required of a storekeeper who takes an oath to collect a claim supported by his ledger.13וּשְׁבוּעָה זוֹ בְּתַקָּנַת חֲכָמִים, כְּדִין חֶנְוָנִי עַל פִּנְקָסוֹ.
4Reuven sued Shimon producing a promissory note signed by one of these groups of witnesses and sued Levi, producing a promissory note signed by the other group. If both defendants deny the debts, we follow the principle: “A person who seeks to expropriate money from a colleague must prove his claim.”דהוֹצִיא רְאוּבֵן שְׁטָר עַל שִׁמְעוֹן, וְעֵדָיו כַּת אַחַת מֵהֶן, וְהוֹצִיא שְׁטָר שֵׁנִי עַל לֵוִי, וְעֵדָיו הַכַּת הַשְּׁנִיָּה, וְכָל אֶחָד מֵהֶן כּוֹפֵר בּוֹ - הַמּוֹצִיא מֵחֲבֵרוֹ עָלָיו הָרְאָיָה.
Since Reuven cannot validate either of these legal documents,14 both the promissory notes are like shards.15 Both of the defendants are required to take merely a sh’vuat heset16 and they are released of obligation.17הוֹאִיל וְאֵין רְאוּבֵן יָכוֹל לְקַיֵּם אֶחָד מִשְּׁנֵי שְׁטָרוֹת - הֲרֵי כָּל שְׁטָר מֵהֶן כַּחֶרֶס, וּשְׁנֵי הַנִּטְעָנִין נִשְׁבָּעִין הֶסֵּת וְנִפְטָרִין.
When does the above apply? When the two groups of witnesses come to testify at the same time. Otherwise, whenever a person produces a legal document containing testimony of one of these two groups, he may expropriate property based upon it.בַּמֶּה דְּבָרִים אֲמוּרִים? כְּשֶׁבָּאוּ שְׁתֵּי הַכִּתּוֹת לְהָעִיד כְּאֶחָד. אֲבָל כָּל הַמּוֹצִיא שְׁטָר שֶׁיֵּשׁ בּוֹ עֵדוּת כַּת אַחַת מִשְּׁתֵּיהֶן, הֲרֵי זֶה גּוֹבֶה בּוֹ.
Afterwards, if either he or another person produce a legal document with testimony from the other group, it can be used to expropriate property whether from the first borrower or from any other person.18 The rationale is that it is as if each of the two groups came alone and testified.19וְאִם הוֹצִיא אַחַר כָּךְ, בֵּין הוּא בֵּין אַחֵר, שְׁטָר שֵׁנִי שֶׁיֵּשׁ בּוֹ עֵדוּת הַכַּת הַשְּׁנִיָּה - הֲרֵי זֶה גּוֹבֶה בּוֹ, בֵּין מִן הַלּוֹוֶה הָרִאשׁוֹן בֵּין מֵאַחֵר; שֶׁהֲרֵי כָּל כַּת מִשְּׁתֵּיהֶן בָּאָה בִּפְנֵי עַצְמָהּ וְהֵעִידָה.
5The following rules apply when a person brings witnesses, their testimony is investigated, they were disqualified through hazamah, and then he brought other witnesses concerning the same claim and they were also disqualified through hazamah. Even if he brings 100 groups who are disqualified, if afterwards, he brings other witnesses regarding that same claim and the testimony of these witnesses is found to be accurate, the case is adjudicated on this basis. Even though the plaintiff can be presumed to bring lying witnesses, we do not operate under the presumption that these witnesses are lying.20המִי שֶׁהֵבִיא עֵדִים וְנֶחְקְרָה עֵדוּתָן וְהוּזַמוּ, וְחָזַר וְהֵבִיא עֵדִים אֲחֵרִים בְּאוֹתָהּ הַטַעֲנָה עַצְמָהּ וְהוּזַמוּ, אַפִלּוּ מֵאָה כַּת, וְאַחַר כָּךְ הֵבִיא עֵדִים בְּאוֹתָהּ הַטַעֲנָה עַצְמָהּ, וְנִמְצָאת עֵדוּת אֵלּוּ הָאַחֲרוֹנִים מְכֻוֶּנֶת - דָּנִין עַל פִּיהֶם. שֶׁאַף עַל פִּי שֶׁהֻחְזַק זֶה שֶׁטָּעַן טַעֲנָה זוֹ לְהָבִיא עֵדִים שַׁקְרָנִים, הֲרֵי לֹא הֻחְזְקוּ אֵלּוּ הָעֵדִים הָאַחֲרוֹנִים שֶׁהֵן מְשַׁקְּרִין.
When, by contrast, there is a legal document concerning which a protest has been sustained, i.e., two witnesses came and said that the plaintiff told them to forge this legal document, we never use that legal document to expropriate property even if the authenticity of the signatures of the witnesses is validated.21 It appears to me that if the witnesses to the legal document came and testified concerning their signature,22 the legal document may be used to expropriate money.אֲבָל שְׁטָר שֶׁקָּרָא עָלָיו עַרְעָר, וְהוּא שֶׁיָּבוֹאוּ שְׁנַיִם וְיֹאמְרוּ 'מִמֶּנּוּ שָׁאַל לְזַיֵּף לוֹ שְׁטָר זֶה', אַף עַל פִּי שֶׁנִּתְקַיֵּם הַשְּׁטָר מֵחוֹתְמָיו - אֵין גּוֹבִין בּוֹ לְעוֹלָם. וְיֵרָאֶה לִי שֶׁאִם בָּאוּ עֵדֵי הַשְּׁטָר וְהֵעִידוּ הֵן בְּעַצְמָן עַל כְתַב יָדָם - גּוֹבִין בּוֹ.
Blessed be God who provides assistance.בְּרִיךְ רַחֲמָנָא דְסַיְיעָן

Quiz Yourself on Edut Chapter 22

Footnotes
1.

As explained in Chapter 18, Halachah 2, a contradiction between two groups of witnesses refers to a situation where one group claims that an event took place, e.g., a murder was committed or a loan was given, and another group claims that the event never took place.

2.

Since the testimony they originally gave contradicted each other, one of them was certainly not telling the truth. That person is not acceptable as a witness. Although we do not know which one - and hence cannot label either of them as a lying witness - we know that one of them is unacceptable. And thus when they come together, we are certain that at least one of the witnesses is unacceptable.
The Sefer Meirat Einayim 31:2 explains that the defendant is not even required to take an oath, as would be required when one witness testifies in support of the plaintiff. The rationale is that when one of a group of witnesses is disqualified, the entire testimony is of no consequence (Chapter 5, Halachah 3).

3.

Since we do not know which of the groups is lying, we do not disqualify either of them. Instead, we follow the basic assumption that every Jew is acceptable as a witness (Sh’vuot 47b).

4.

100 zuz.

5.

I.e., the lesser sum of the two amounts.

6.

For he is trying to expropriate funds from the person in possession (see Hilchot Malveh ViLoveh 27:15-16). Were the promissory notes to be signed by acceptable witnesses, he would be in a position of strength. In this instance, however, since one of the groups of witnesses certainly lied and is hence disqualified, the plaintiff is put at a disadvantage.

7.

After the defendant makes the smaller payment and takes the oath, the larger promissory note is destroyed by the court, so that it could not be used again [Shulchan Aruch (Choshen Mishpat 31:2)].
The Shulchan Aruch continues, stating that the Rambam’s ruling applies only in a situation where the plaintiff demands payment for both promissory notes at the same time. If, however, he demands payment for each one individually, his claim is vindicated and the defendant is required to pay both the debts. See Halachah 4.
The Ramah adds that the defendant may require the plaintiff to take an oath that he does not possess two promissory notes. For this reason, he suggests that the plaintiff should burn the smaller promissory note so that he will at least receive payment for the larger one.

8.

I.e., holding a Torah scroll or tefillin, as stated in Hilchot Sh’vuot 11:8.

9.

I.e., this is a Scriptural oath, and not merely a sh’vuat hesset of Rabbinic origin.

10.

For at least one of the groups of witnesses is acceptable.

11.

As explained in Hilchot To’en V’Nit’an 4:10, when a plaintiff demands 100, the defendant denies the obligation entirely, and witnesses testify that he owes 50, the defendant is required to take a Scriptural oath concerning the remaining 50. The rationale is that just as he would be required to take such an oath had he admitted owing the 50 himself, he is required to take the oath when his obligation is established by the testimony of witnesses.
The Ra’avad and Rabbenu Nissim object to this ruling, explaining - as the Rambam states in Hilchot Toen ViNitan 4:4 - that when a person acknowledges a debt recorded in a promissory note, the laws concerning one who admits a portion of a debt do not apply to him. For even were he to deny the debt in this instance, his denial would not be accepted. Similarly, in the case at hand, one could claim that since there is a promissory note involved, there should be no obligation for an oath. Also, a promissory note establishes a lien against landed property and in such instances, an oath is not required.
A distinction can, however, be made. For in this instance, neither of the promissory notes have the power to enable the plaintiff to expropriate property on its basis. Hence the claim resembles one supported by a verbal commitment alone (see Kessef Mishneh, Radbaz). The Siftei Cohen 31:2, however, does not accept these resolutions and states that the Rambam’s ruling applies only when the defendant does not own land.

12.

Since we do not know which of the claims is valid and which is using lying witnesses, we substantiate them both.

13.

See Hilchot Malveh v’Loveh 16:5. As the Rambam states there, this oath was instituted to appease the defendant. Since he is obligated to pay two claims and one of them is not legitimate, he is at least given the satisfaction of requiring both of the plaintiffs to take oaths.

14.

Because one - and we do not know which one - is based on the testimony of lying witnesses.

15.

I.e., of no value.

16.

A less severe oath required by our Sages when a defendant denies entirely a claim lodged against him.

17.

For each of the defendants can say: “It is the pair of witnesses on the other document that are acceptable. Those who signed my document are liars.” Since we don’t know which of the defendants’ claims to accept - and one is certainly true - we decide in favor of both defendants. For whenever a person is trying to expropriate money, the burden of proof is upon him.

18.

Rabbenu Asher and the Tur rule that the plaintiff must conduct the suits in two different courts. The Shulchan Aruch (Choshen Mishpat 31:3) quotes the Rambam’s ruling without making this clarification.

19.

For as stated in Halachah 1, when each one of the groups comes individually, their testimony is accepted.

20.

I.e., we look at the witnesses as we look at any group of witnesses, assuming that they are telling the truth.

21.

For we assume that the plaintiff indeed had the legal document forged.

22.

As the Rambam states in Chapter 8, Halachot 1 and 4, when witnesses testify with regard to their signature on a legal document, they must testify that the transaction in fact took place. Hence, we rely on their word even if the plaintiff is known to have attempted to perpetrate forgery.
The Radbaz states that even if the witnesses do not remember signing the legal document, since they remember the loan and recognize their signatures, the document is valid. We do not suspect it is a forgery.

The Mishneh Torah was the Rambam's (Rabbi Moses ben Maimon) magnum opus, a work spanning hundreds of chapters and describing all of the laws mentioned in the Torah. To this day it is the only work that details all of Jewish observance, including those laws which are only applicable when the Holy Temple is in place. Participating in one of the annual study cycles of these laws (3 chapters/day, 1 chapter/day, or Sefer Hamitzvot) is a way we can play a small but essential part in rebuilding the final Temple.
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Rabbi Eliyahu Touger is a noted author and translator, widely published for his works on Chassidut and Maimonides.
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