Nathan

This question was addressed in the Kollel's Insights to the Daf Rosh Hashanah 20:2. It is reprinted below.

All the best

P Silverman

Kollel Iyun Hadaf

2) THE MORAL LEGITIMACY OF JUDICIARY COERCION

QUESTION: The Gemara states that Beis Din has the right to intimidate witnesses to say that they saw the new moon even when they did not see it (see previous Insight). How can the Beis Din instruct people to lie? The Torah clearly prohibits lying, as it says, "mi'Devar Sheker Tirchak" (Shemos 23:7). Furthermore, there is a negative prohibition against giving false testimony (Shemos 20:13). How can Beis Din instruct the witnesses to transgress an Isur?

ANSWERS:

(a) According to the Rambam cited above, Beis Din does not tell the witnesses to say that they saw something that they did not see. Rather, Beis Din tells the witnesses only not to say something that would ruin their testimony.

(b) According to the other Rishonim, such as Rashi, who understand that Beis Din actually tells the witnesses to lie, in this case there is no Isur of testifying falsely, because this testimony is not about one's fellow man. The Isur against testifying falsely applies only when a witness testifies against a person, to cause him harm, as it says, "Lo Sa'aneh b'Rei'acha Ed Shaker" --"Do not bear false testimony against your fellow man" (Shemos 20:13). (For the same reason, there is no requirement that the testimony of the new moon be "Edus she'Atah Yachol l'Hazimah.") (GILYONEI HA'SHAS)

Similarly, the TOSFOS HA'ROSH (Kesuvos 32a, DH sh'Ken Yesh) writes that it is permissible to accept false testimony for declaring the new month, because the Torah never prohibited false testimony in the case of Kidush ha'Chodesh. The source for this is the verse in the Torah (Vayikra 23) from which the Gemara (25a) learns that the Beis Din's declaration of the new month is valid and binding "even if it was done purposefully in error." Without testimony the court cannot declare a new month, but when there exists testimony for the new moon -- even it is false testimony -- they can declare a new month.

Regarding the Mitzvas Aseh to stay away from lies, that Mitzvah applies only when the lie will mislead someone or cause an undesirable outcome. If the outcome will be positive, though, and Beis Din sees that it is necessary, then it is not the type of lie that the Torah requires one to avoid. This is implied by the context of the verse (Shemos 23:7) which commands to stay away from lies -- the verse is talking about killing a person as a result of the lie.

Support for this view can be brought from the Gemara in Yevamos (65b) which says that it is "Mutar l'Shanos Mipnei ha'Shalom" -- "it is permitted to alter the truth for the sake of peace" (see also Bava Metzia 23b and Kesuvos 17a). If a lie cannot cause anyone harm, and can only benefit them, it is not prohibited by the Torah.