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 Beis Din asks the invalid witness whether he intended to be a witness when 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 seems 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 render the ceremony invalid by disqualifying all of the other witnesses who are watching! Why is there no concern for such a thing?

(a) TOSFOS (DH bi'Zman) explains that the Gemara in Makos does not mean that when an invalid witness watches an event with intention to be a witness that there no longer can be valid testimony about the event. Rather, the invalid witness invalidates the other witnesses only when he comes to Beis Din to testify. If other witnesses come to Beis Din to testify and 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? One of the brothers simply should refrain from going to Beis Din to testify! Tosfos answers that perhaps both brothers will go to Beis Din independently, 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 explains that if a person requests that two valid witnesses observe the giving of a loan, 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. Why do they remain valid? 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 money.

The Rosh adds that 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 valid. Their reasoning is that his invitation was intended only for those who are valid witnesses.

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

The KETZOS HA'CHOSHEN (36:6) points out that the Rambam definitely disagrees with the ruling 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 Rambam would agree that when one designates valid witnesses at the time of the event, all invalid witnesses are excluded and cannot ruin the testimony of the others. Based on this opinion, many contemporary authorities (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 prior to the event.

(d) The KETZOS HA'CHOSHEN 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 in essence is saying, "I want valid witnesses to be my witnesses," excluding any unfit witnesses. As 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 posed to him. A certain Rav had officiated at a Kidushin, and a few weeks later he noticed that one of the witnesses was related to the bride. Do the bride and groom need another Kidushin, or may they rely on the other people who were present, 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, only those people who are fit to be witnesses are witnesses, according to the letter of the law. However, he suggests that since it is easy to arrange confidentially a second, proper Kidushin with two valid witnesses, it is appropriate to do so. (Y. MONTROSE)

9b----------------------------------------9b

2) THE MOTIVES OF THE WITNESSES

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 that a verse teaches that when a person deserves two punishments -- death and a monetary payment -- for a single transgression, he is punished only with death.

Rav Yosef discusses another case in which 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 the one-punishment rule applies only 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, and therefore they are punished with both punishments.

TOSFOS asks a question on the latter case. The Gemara later (41a) discusses a dispute about whether a person who knows the Halachah ("Chaver") must be warned with Hasra'ah before he commits 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 they were then made into Edim Zomemim, they are *not* killed. The reason is that the witnesses can say, "We testified merely 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 one who knows the Halachah does not need Hasra'ah.

Tosfos asks, why is the same logic not applied to the case of the Gemara here? 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 the Gemara here is different. In this 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) involves 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, however, seems to apply to every case of Edim Zomemim. Why does Tosfos not ask that the witnesses who were found to be Zomemim can claim that they intended only to exonerate the defendant, and not to cause anyone to be killed? This question should apply in all cases, so that no second set of witnesses could ever be made into Edim Zomemim! The LEKET MAHARIT addresses this general question in a different context. He writes that if it is true that the second set of witnesses (who became Edim Zomemim) intended only 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 an Ed Zomem, which would have accomplished their goal -- the defendant would be exonerated and no one would be put to death. 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. The Margoliyos ha'Yam suggests that Tosfos follows the view of the RAMBAM (Hilchos Na'arah ha'Me'urasah 3:6) who rules that the husband is not obligated to pay the fine of 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 had been their intention, then they indeed could have only made one witness an Ed Zomem without killing anyone. Thus, Tosfos' question applies only to the case of the Gemara here.

(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, the witnesses there indeed are testifying about the woman. However, they can claim that when they testified about the woman's actions, their intent was to make her forbidden to her husband. In the case of the Gemara here, however, the witnesses are not uttering one word of testimony about the husband. They are saying that his witnesses were somewhere else at the time of the event. It therefore is impossible for them to claim that they did not intend to testify about the witnesses. (Y. MONTROSE)

3) "PALGINAN DIBURA": SPLITTING TESTIMONY

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 corroborates his testimony. Rav Yosef explains that Beis Din does not believe the first witness because his own word makes himself unfit for testimony, as he has proclaimed himself a willing participant in a heinous sin. Rava disagrees and says that a person cannot give testimony to incriminate himself, since a person "is his own relative." Just as one's relative cannot testify about him, he cannot testify about himself. Beis Din *does* accept his testimony, however, with regard to the other perpetrator, based on the principle of "Palginan Dibura" ("we split his words"). Since Beis Din does not accept his testimony about himself, it is considered as though he testified only that the other person sodomized somebody else.

What are the guidelines with regard to the principle of "Palginan Dibura"? When does Beis Din disregard part of a person's testimony and accept another part of it?

(a) TOSFOS shows that Beis Din 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 that "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 does the Gemara not apply "Palginan Dibura" in that case and say that Beis Din believes the witnesses that they were forced to sign the document, and Beis Din 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 Beis Din believes the witnesses' testimony that they were forced, Beis Din also must believe them about their intent. Since Beis Din cannot believe them about their intent (because "Ein Adam Mesim Atzmo Rasha"), Beis Din cannot believe anything that they say about themselves (and thus Beis Din does not believe them when they say that they were forced to sign the document). The Gemara here, on the other hand, is saying that Beis Din believes what the witness has to say about the sinner, while Beis Din does 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 Beis Din 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 the borrower owes money or not (the same testimony applies to the guarantor the same way it applies to the borrower, because if the borrower owes money, then the guarantor 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 Beis Din should accept the testimony of the witnesses insofar as the borrower is concerned (and say that he owes money), but Beis Din should not accept their testimony insofar as the guarantor is concerned.

The Kehilos Yakov says that some answer that Beis Din may "split" the testimony only when the actions involved may be split. For example, in the case of the Gemara here, Beis Din believes that an act of sodomy occurred, while Beis Din does not believe that the witness was a participant. In the case of the Gemara in Makos, there is only one action that the witnesses are testifying about (i.e. the loan); if that testimony is true, then it will obligate the relative of the witnesses as a guarantor. Beis Din can say that the loan occurred or did not occur, but Beis Din 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 "Palginan Dibura" applies 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. Beis Din dismisses his statement about himself and is 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 the testimony of ordinary witnesses. The RAN (Sanhedrin 10a) agrees with the Ra'avad.

The TUMIM (34:26) infers from the fact that the Ra'avad does not give the answer of the Rosh that the Ra'avad maintains that "Palginan Dibura" applies in the case of a single event, such as a loan, and that it enables Beis Din to consider 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 Beis Din believes the witness (or witnesses) that some events occurred and not others, the Ra'avad says that Beis Din believes that an event occurred for one person while that same event did not occur for another. The Kehilos Yakov refers to this type of "Palginan Dibura" as "Palginan Ne'emanus," whereby Beis Din believe that the event occurred with regard to one person but not with regard to another.

Consequently, the Ra'avad understands the case of the Gemara here differently from Tosfos. According to the Ra'avad, Beis Din *does* believe the witness when he says that the perpetrator sodomized *him*, but Beis Din does *not* believe him when he says that he consented to the act. According to Tosfos, Beis Din believes testimony only about the perpetrator, and not testimony the witness says about himself. Since Beis Din does not accept the witness' testimony about himself, Tosfos says that Beis Din knows only that someone was sodomized but not who it was. (Y. MONTROSE)

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