QUESTION: The Gemara points out a contradiction between the Mishnah here and the Mishnah in Taharos. The Mishnah here states that tax-collectors (Gaba'im) or thieves (Ganavim) who entered a house are believed to say that they did not touch anything (and the items in the house are Tahor). The Mishnah in Taharos (7:6), however, states that if tax-collectors entered a house, all of the contents of the house are Tamei, which implies that the tax-collectors are not believed to say that they did not touch anything.

The Gemara answers that the two Mishnayos refer to two different cases, as Rashi explains. The Mishnah in Taharos refers to when a Nochri accompanies the tax-collectors, in which case they are not believed to say that they did not touch anything in the house. The Mishnah here refers to when no Nochri accompanies the tax-collectors, in which case they are believed to say that they did not touch anything.

The Gemara asks why the presence of a Nochri makes a difference. It answers that the tax-collectors search the house more thoroughly in his presence, either because they are afraid of the Nochri himself or because they are afraid that the Nochri will bring a bad report to their superior who will punish them for not searching thoroughly.

Why does the Gemara not give the most obvious answer -- if there is a Nochri with them, then everything in the house is Tamei because the Nochri might have touched it? A Nochri has the status of a Zav and is Metamei whatever he touches. Why does the Gemara say that the tax-collectors touched all of the items in the house because they were afraid of the Nochri? (SI'ACH YITZCHAK)

Moreover, the Gemara explains that the Mishnah in Taharos (which says that the house is Tamei) refers to a case in which a Nochri accompanies the tax-collectors. The Gemara cites support for this assertion from the Mishnah later in Taharos which says that when a Nochri is with them, they are not believed to say that they entered the house but did not touch anything.

The proof which the Gemara cites is actually the end of the same Mishnah in Taharos which says that tax-collectors are not believed. The Mishnah there continues and says that "if there is a Nochri with them, they are believed to say that they did not enter the house, but they are not believed to say that they entered the house but did not touch anything." However, the fact that the end of the Mishnah there refers to when a Nochri accompanies them implies that beginning of the Mishnah refers to when no Nochri accompanies them. Why does the Gemara say that the beginning of the Mishnah there refers to when a Nochri accompanies them?

(a) According to the words of RASHI, the answer to the first question -- that the house should be Tamei because of the concern that the Nochri touched everything -- apparently is that the Mishnah in Taharos implies that the Nochri only supervises the tax-collectors and does not touch anything himself. The Mishnah says, "The tax-collectors accompanied by a Nochri are not believed to say that they did not touch," which implies that only the Jewish tax-collectors are suspected; the Jewish workers search the house while the Nochri merely supervises.

The TIFERES YISRAEL (Boaz #6) answers the second question, why the Gemara says that the beginning of the Mishnah in Taharos refers to when a Nochri accompanies the tax-collectors when the end of the Mishnah implies otherwise. He suggests that the first case of the Mishnah should be read together with the words that follow, so that the case reads, "The entire house is Tamei if there is a Nochri with them (Im Yesh Nochri Imahen)." Accordingly, the Mishnah is saying that the house is Tamei only if there is a Nochri with them. (The Mishnah there continues and says that if they are asked whether they touched the items in the house and they say that they did not enter the house in the first place, they are believed, but if they say that they entered but did not touch anything, they are not believed.)

Alternatively, the beginning of the Mishnah may refer to a case in which the tax-collectors were not asked whether the house is Tahor or Tamei, and thus it must be assumed that they touched things in the house. If, however, they were not asked, then what is the Gemara's question from the Mishnah in Taharos in the first place? The Gemara should answer simply that the Mishnah in Taharos says that the house is deemed Tamei because the tax-collectors were not asked whether they touched anything or not (and the Mishnah here says that the house is Tahor because they were asked and they said that they did not touch anything)!

The answer is that the Gemara initially assumed that when the Mishnah in Taharos says, "When accompanied by a Nochri, the tax-collectors are believed to say that they did not enter the house," it means that they are believed to say only that they did not enter; the Nochri's presence reinforces their claim that they did not enter and touch anything. The Gemara assumed that only when there is a Nochri are they believed to say that they did not enter the house. Accordingly, the Mishnah there contradicts the Mishnah here which states that the tax-collectors are believed even when there is no Nochri. The Gemara answers that the Nochri's presence is not necessary to support their claim that they did not touch anything. On the contrary, when there is a Nochri present they are not believed to say that they entered but did not touch anything. The Nochri impairs their trustworthiness in such a case. When there is no Nochri with them, however, they are believed to say that they entered the house but did not touch anything, as the Mishnah here says.

(b) RABEINU CHANANEL presents an original approach to the Mishnah and Gemara, which is also the approach of the RAMBAM (in Perush ha'Mishnayos and Hilchos Mishkav u'Moshav 12:12).

Rabeinu Chananel explains that when the tax-collectors are accompanied by a Nochri, they are believed to say that they did not touch anything in the house. The Nochri actually reinforces their trustworthiness to say that they did not touch anything. He ensures that they maintain their professional etiquette and do not rummage uncouthly around the house. (In Rabeinu Chananel's text of the Gemara, the Girsa of the Mishnah in Taharos is quoted as it appears in the Vilna Shas: "If there is a Nochri with them, they are believed to say that they entered but did not touch.")

According to this approach, the Gemara's question -- why does the presence of a Nochri affect the trustworthiness of the tax-collectors -- is clear. The Gemara cannot ask that perhaps the Nochri himself touched the items in the house, because the presence of the Nochri gives more reason to assume that the house is Tahor, and not Tamei.

The second question -- why does the Gemara say that the beginning of the Mishnah in Taharos refers to when a Nochri accompanies the tax-collectors -- is also not a question according to this approach. The Gemara is saying that the Mishnah in Taharos refers to when no Nochri is with them, and that is why they are not believed. When the Mishnah here says that they are believed, it refers to when a Nochri is with them.

According to this explanation, however, what is the intent of the Gemara's next question? The Mishnah says that thieves are trusted to say that they did not touch any other items in the house. The Gemara asks that the Mishnah in Taharos says that every part of the house in which the thieves walked is Tamei. According to Rabeinu Chananel, why does the Gemara suggest that the house visited by thieves should be Tahor? The only reason why uninvited guests are believed to say that they did not touch anything is because a Nochri accompanies them and ensures that they limit their activities to official business. When thieves come into a house, however, there is no official business, and there certainly is no Nochri accompanying the thieves to ensure that they fulfill their duty! The house should definitely be Tamei and the thieves should not be believed to say that they did not touch anything.

Rabeinu Chananel and the Rambam seem to have different approaches to the Gemara at this point. Rabeinu Chananel, who is bothered by this question, explains that before the Gemara asks about the contradiction between the Mishnayos with regard to thieves, the Gemara has already inferred from the Mishnah here that only thieves who return the stolen items are believed, but thieves who do not return what they stole are not believed (and thus the house is deemed Tamei because we assume that they touched everything in the house). The Gemara asks why the Mishnah here implies that the thieves are not believed when they do not return the stolen items (and the house is deemed Tamei) while the Mishnah in Taharos says that only the places where the thieves walked are deemed Tamei.

The Gemara answers that even after the thieves have repented, the place where they walked is Tamei. The Mishnah in Taharos refers to when they repented, and nevertheless the place where they walked is Tamei, but the rest of the house is Tahor. The Mishnah here, too, maintains that they are not trusted with regard to the place where they walked, but they are trusted with regard to the rest of the items in the house. According to Rabeinu Chananel, therefore, when thieves have entered one's home there is always some degree of Tum'ah -- either the entire house is Tamei (when they did not repent) or only where they walked is Tamei (when they did repent).

The Rambam gives a different explanation. The only time a Nochri is necessary to ensure the trustworthiness of the uninvited guests is when they are tax-collectors. Without a Nochri's supervision, the tax-collectors feel at liberty to roam around the house and rummage through whatever catches their interest. In contrast, thieves operate hastily; they never touch what they have no need to touch because they are in a rush to exit, and they go about their crime quickly and efficiently, touching only what they decide to take.

According to the Rambam, therefore, if the thieves repented, the entire house is Tahor, and if they did not repent, only where they walked is Tamei. (The Rambam's conclusion is the same as Rashi's.)

SUMMARY: An Am ha'Aretz is normally not trusted to attest to the Taharah of an object. All of his food and utensils are assumed to be Tamei. The Mishnayos in Chagigah teach four types of exceptions to this general rule.

1. An Am ha'Aretz is trusted during the wine and oil pressing seasons to say that his Terumah is Tahor.

2. An Am ha'Aretz is trusted at any time of the year to say that his Kodesh is Tahor.

3. An Am ha'Aretz is trusted to attest to the Taharah of the earthenware vessels that he vends. He is trusted as far away from Yerushalayim as Modi'im with regard to small vessels, and he is trusted only in Yerushalayim with regard to large ones.

4. During each festival, when the entire Jewish nation gathers together in Yerushalayim, the Am ha'Aretz is trusted completely with regard to his Taharah, just like a Chaver.

Although Rashi does not mention logical reasons for these exceptions, the other Rishonim do:

1. The reason why an Am ha'Aretz is trusted during the wine and oil pressing seasons to say that his Terumah is Tahor is because he plans to give the Terumah to the Kohanim, and therefore he is careful to listen to the Chachamim and immerse all of his utensils in a Mikvah as the Chachamim required (RASHI 22a, DH Lo Mekablinan).

2. An Am ha'Aretz is believed to say that his Kodesh is Tahor because "Eimas Kodesh Alav" -- the "awe of Kodesh is upon him" (TOSFOS 24b, DH sheb'Yehudah), which means that he has respect for items of such holiness.

3. RABEINU CHANANEL (26a) and the RAMBAM explain that an Am ha'Aretz is believed to say that his earthenware vessels are Tahor because such vessels are very scarce in Yerushalayim (since kilns may not be built in Yerushalayim, in order to prevent air pollution in the holy city), and thus he takes extra care to ensure that his earthenware vessels do not become Tamei (because once they become Tamei they cannot be made Tahor again and must be destroyed).

4. The RAMBAM (Hilchos Metamei Mishkav u'Moshav 11:9) writes that during the festival an Am ha'Aretz is Tahor because every person is Metaher himself in a Mikvah before Yom Tov in preparation for the festival (Rosh Hashanah 16b).

Despite these reasons for accepting the testimony of an Am ha'Aretz, it is clear from the Gemara that we do not place our full trust in an Am ha'Aretz with regard to Tum'ah and Taharah in these situations. For example, when a Chaver opened his barrel to sell wine or flour during the festival, once the festival passes the contents of the barrel are considered Tamei because of the Amei ha'Aretz who touched it during the festival. Similarly, the Mishnah describes how the Kohanim needed to be Metaher the Azarah after the festival passed because of the Amei ha'Aretz who touched the holy vessels during the festival. The Mishnah earlier (25b) teaches that the pot-sellers are trusted in Modi'im only when they are traveling in a different direction than the Chaver. Evidently, the Chachamim trusted Amei ha'Aretz in these situations only out of necessity, and they supported their enactment to trust the Amei ha'Aretz based on the reasons mentioned above.

Why did the Chachamim consider it necessary to trust the Amei ha'Aretz in the above situations?

1. Rashi (25b, DH uv'Mele'in) writes that with regard to Terumah, if the Chachamim would have upheld their decree that all items of an Am ha'Aretz are Tamei, the Kohanim would have suffered a considerable lost; they would not have been able to accept the Terumah brought to them by the Amei ha'Aretz. The Chachamim suspended their decree during the wine and oil pressing seasons in order to enable the Kohanim to accept the Terumah.

2. The Gemara (22a) says with regard to trusting an Am ha'Aretz with Kodesh that the Chachamim trusted the Am ha'Aretz only "so that he not go and build a Bamah for himself." Not trusting the Am ha'Aretz would have engendered enmity and led to transgressions of more serious transgressions.

3. The Amei ha'Aretz were trusted in and near Yerushalayim with regard to earthenware vessels due to the scarcity of such vessels around Yerushalayim. (RASHI 26a, DH she'Ein, and RAMBAM in Perush ha'Mishnayos)

4. During the festival -- when all of the Jewish people gather in one small area -- it would be physically impossible for the Chaverim to separate themselves, their utensils, and their clothes from the Amei ha'Aretz. Moreover, such a practice during the festival undoubtedly would cause a major rift among the people.

In summary, because of the necessity of the situation, the Chachamim relied on the additional reasons listed above to trust an Am ha'Aretz.