Tosfos states a chiddush here that if beis din is poskeing a davar which is emes l?amito, but it was done al yidei an eidas pasula, that?s in incorrect psak. Even though it?s the truth that beis din is poskening a davar that is emes, but it was don al yidei an eidas pasula, that?s an incorrect psak; even though it?s the truth.
That is, beis din is not allowed to make a psak al pi eidim pasulim even though the psak is emes. And Tosfos bring a raya to this from Yevamos.
My question is lfi Tosfos?s chiddush, it seems to be going against a Gemara in Bava Basra daf 32a/32b (Gachin v'Lachish In Shtar Zaifa Hu Mihu Shtara Malia Hava Li v'Irchas ... Hai Shtara Chaspa b'Alma Hu.
Rav Yosef is saying to Rabba in the final analysis you are relying on this shtar to award him the land. But this shtar is worthless and cannot be used in court as evidence. So we see Rav Yosef?s taina in effect is even though the migu demonstrates that he is saying the truth, and beis din is poskeing a davar which is emes, but it was done al yidei an shtar pasula, so there is no psak.
Based on Tosfos?s understanding of the Gemara in Yevamos, how is that not a stira to Rabbah who holds that as long as we know he is saying the truth, we don?t have an issue that the shtar is pasul??
Menachem Zaman, jerusalem
Hi Menachem,
Excellent question.
I think although, we can make a distinction, since un the case in Bava Basra, Raba wants to use a Migu to believe this man, that he has or at least had a real Shtar at home. So, the Psak given, isn't built on the Shtar in front of us that is a lie, rather using the Migu to believe this man that there is a real Shtar to rely on. So bottom line, we are relying on a Shtar Emes unlike the cases in Gitin and Yevamos where we are relying on an actual fraud or unacceptable piece of evidence even if we know the truth.
Even Rav Yosef who argues with Raba, isn't saying that the problem is that the evidence is false, but rather because his understanding of the way Migu works. He is saying that the boost of Migu is not strong enough to assume there is a real Shtar lost out somewhere, since the actual Shtar in front of us is a fraud.
Kol Tuv,
Aharon Steiner