MAKOS 6 (28 Sivan) - Dedicated in memory of Hagaon Rav Yisroel Zev (ben Rav Avrohom Tzvi) Gustman, zt"l, Rosh Yeshiva of Yeshivas Netzach Yisrael-Ramailes (Vilna-Brooklyn-Yerushalayim), author of "Kuntresei Shi'urim" and renowned Dayan in pre-war and post-war Vilna, on his 19th Yahrzeit. Dedicated by Harav Avraham Feldman and Michael Starr of Yerushalayim, Dr. Yehoshua Daniel of Efrat, and Rabbis Eliezer and Zalman Stern of New York, who merited to study under the Rosh Yeshiva zt"l in Yerushalayim.

1) WHEN DO THEY BECOME A GROUP?

QUESTION: In the Mishnah, Rebbi states that people who witness a crime together are considered a single group of witnesses if they warned the perpetrator. Consequently, if one of the witnesses is a relative of the perpetrator, or is disqualified from testimony for another reason, the entire group is deemed invalid as well. If, however, they did not warn the perpetrator, the other witnesses in the group remain valid and may testify.

Why does the giving of a warning determine whether one invalid witness in the group disqualifies all of the other witnesses? The warning shows Beis Din that the invalid witness watched the event with intent to serve as a witness, and not just to watch. This implies that the joining of the witnesses into one group is determined at the time of the event.

The Gemara later asks that "the victim should save." That is, since the victim of the murder was present at the time of the crime, and he is not a valid witness (since he is a "relative" to himself), he should invalidate all of the valid witnesses who saw him killed. This, too, implies that the forming of the group is determined at the time of the event.

The Gemara also asks, "What do we say to the witnesses [in order to determine whether one invalid witness invalidates the entire group]? We say, 'Did you come to see, or to witness the act?'" Again, this shows that the group is determined at the time of the event.

However, in the beginning of the Gemara, Rava says that the joining of the witnesses depends on their testifying within Toch Kedei Dibur of each other. This clearly indicates that testifying together joins the witnesses, and not witnessing the event together. How is this apparent contradiction to be reconciled?

Moreover, what is the logic to disqualify all of the other, valid witnesses, merely because an invalid witness intended to testify when he saw the event? According to this view, how are we to prevent an unscrupulous person, who is unfit to be a witness at a wedding, from maliciously invalidating a Kidushin by having intent to testify along with the other witnesses?

ANSWERS:

(a) TOSFOS quotes the RI in Sanhedrin (9a) who explains that the mere intent of a relative to "witness" such an event does not render all of the other witnesses invalid. The Gemara means merely that if a group of witnesses goes to Beis Din to testify, their testimony would be rejected if one of the members of the group is a relative who intended to testify. However, if no witnesses go to Beis Din to testify, as long as valid witnesses saw the event, the event (such as the Kidushin) is valid, even though an invalid witness also saw the event with intent to be a witness. In order to invalidate the event, the invalid witness would have to go to Beis Din with the valid witnesses.

The question of the Gemara earlier -- that the murder victim (who is a "relative" to himself) should save the perpetrator from punishment -- was asked before the Gemara concludes that the verse discusses only the "Mekayemei ha'Davar" -- the witnesses who come to testify. Once the Gemara reaches this conclusion, it is clear that only an invalid witness who comes to testify in Beis Din will invalidate the other witnesses.

(b) The ROSH in Makos (1:11) suggests a way to protect a person from any possibility of having his event invalidated due to the presence of an invalid witness. He says that if the parties getting married or divorced specify by name two specific witnesses for the event and no one else, then even if all those present, including the relatives, later come to Beis Din to testify, the event would remain valid. A person who performs a lawful act in front of witnesses (in contrast to one who commits a crime, such as murder) has the prerogative to exclude others from serving as witnesses. The Rosh quotes his teachers who say that even if a person makes a public declaration that anyone who knows testimony about a certain event, such as his marriage or divorce, should come and testify, people who are unfit to testify do not render their group invalid. This is because the person clearly did not want people who are unfit to testify to ruin testimony about the event.

(c) The RAMBAM (Hilchos Edus 5:5) apparently understands the Gemara in its most straightforward sense, that a relative who sees an event with intention to testify can render the event invalid. However, although he clearly disagrees with the teachers of the Rosh, the KETZOS HA'CHOSHEN (36:6) asserts that the Rambam certainly agrees that if a person designated specific witnesses, he successfully prevents all unfit witnesses from invalidating the event. (The Ketzos ha'Choshen suggests that the Rambam actually maintains that this is only a potential problem with witnesses to a loan, but not with witnesses to a marriage or divorce.)

The RITVA quotes RASHI and the RASHBAM who understand that the group is formed at the time the event is witnessed. Tosfos mentions that there were indeed people that would set aside witnesses

Accordingly, many Gedolim (such as RAV SHLOMO ZALMAN AUERBACH zt'l and RAV SHACH zt'l) had the custom to have the Chasan designate witnesses by saying, "Rak Atem Edai" -- "Only you are my witnesses," for the Kidushin. (See MEVAKSHEI TORAH ERUSIN V'NESU'IN, volume 1.) Nevertheless, if the Chasan did not make this statement at the Kidushin, the Kidushin does not have to be repeated. (Y. MONTROSE)

6b----------------------------------------6b

2) WHO SHOULD BE SAVED?

OPINIONS: Rav Nachman rules that Edus Meyuchedes (testimony from two witnesses who saw an event, but did not see each other) is valid in monetary cases, but not in capital cases.

Rav Zutra asks that if Edus Meyuchedes is valid in monetary cases, then it should also be valid in order to save the defendant from death in a capital case. RASHI (DH b'Dinei) explains that whenever there is any reason to save the defendant in a capital case, Beis Din utilizes that reason, because the Torah instructs, "v'Hitzilu ha'Edah" -- "and the congregation (Beis Din) shall save" (Bamidbar 35:25), which teaches that Beis Din is obligated to try to exempt a person from a Chiyuv Misah and not to kill him (Sanhedrin 32b). However, the Mishnah teaches that when two witnesses saw the murder from one window, and two other witnesses saw it from a different window, and someone in the middle warned him, they are considered one group only when at least one witness in each pair sees one of the other pair. If none of the witnesses in each pair see the others, they are considered two groups, and thus if one group is proven to be Edim Zomemim, the Edim Zomemim and the defendant are killed. If, however, Edus Meyuchedes is valid in monetary cases, then it should also be valid in this case in order to save the defendant from death!

When Rav Zutra asks that the defendant should be saved from death, to whom does he refer -- the murderer, the Edim Zomemim, or both?

(a) The RAMBAN infers from RASHI that the Gemara means to ask that both the Edim Zomemim and the murderer should be exempt because of the law of Edus Meyuchedes. This is because two of the defendant's witnesses became Zomemim. Rashi apparently understands that all of the witnesses in this case should be invalidated because Edus Meyuchedes combines them all into one group.

The Ramban questions Rashi's assumption. If some of the witnesses in the group are proven to have been somewhere else at the time that they claimed to have witnessed the event, then there was never a time that the two sets of witnesses actually witnessed the event together! Only in a case in which all of the witnesses were actually together at the site of the event is it possible for the law of Edus Meyuchedes to invalidate all of the witnesses.

(b) The Ramban therefore understands that the Gemara's question is that only the Edim Zomemim should be saved, but not the murderer, since there are two valid witnesses present who saw the event (and the Edim Zomemim were not present). (Mordechai Zvi Dicker)

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