Question: This is difficult. Why do we require the Pasuk, "Fathers should not be killed by their sons" to teach that a slave is unfit to testify in Bava Kama (88a)? We should derive this from the Gezeirah Shaveh of "Lah - Lah" from a woman (being that a slave is considered to have the laws of a woman)!

Explanation: However, if this is referring to witnesses it is understandable, as it is normal that once two witnesses testify, nobody else bothers to testify. However, regarding coming to be judged, anybody who is involved in the case will normally come.

Question: Now that we are discussing witnesses, why should we exclude women? Perhaps the Torah stated "men" because "all of the honor of a daughter of a king (should be kept inside)?"

Answer: It is possible to answer that witnesses must come to Beis Din, as a person cannot testify in the name of a witness. However, if she is involved in a case (as either a claimant or defendant), she can send her claims to someone else to bring to Beis Din.

Explanation: Even Rebbi Yehudah admits regarding the verdict and the witnesses that it is a Mitzvah that they stand, as stated later.

Question: This is difficult. In Moed Katan (21a), the Gemara implies that "And they stood" does not actually imply they should stand. The Gemara there derives the tearing of the clothes of a mourner from the Pasuk, "And Iyov rose and tore (his clothes)." The Gemara asks, if so, when the Pasuk says regarding Chalitzah "And he stood and he said," we should also require that he stand. However, doesn't the Beraisa state that he can say this whether he stands or sits while saying it? The Gemara there answers that the Pasuk does not say, "And he stood and he said," unlike regarding Iyov where the Pasuk says, "And he rose and he tore." (This implies that only the term, "And he rose/stood" indicates one must stand. Why, then, do we say that the Pasuk regarding the witnesses indicates it is a Mitzvah for them to stand?)

Answer: When the Pasuk says, "And he stood" and does not say any other action, as it does regarding witnesses, the implication is certainly standing. However, "and he stood..." where there is an action immediately afterwards like the case regarding Chalitzah "And he stood and he said" does not imply standing. This is a term that is similar to the one used in Kesuvos (22a) "he got up and was Mekadesh her" and Bava Basra (139a) "and he got up and wrote that all of his possessions should go to someone else."

Implied Question: Rebbi Chiya bar Aba said to a woman, "My daughter, stand up!" in Yevamos (106a), implying Chalitzah must be done standing up. (This is unlike the Gemara in Moed Katan (ibid.). How can we reconcile these Gemaros?)

Answer: This is not because the Pasuk says "And he stood and he said," as I have explained. Another reason standing cannot be a Mitzvah is because if it would be, it would be required! This is as the Pasuk states regarding Chalitzah, "So" implying that everything that is done in the description of Chalitzah in the Torah is required, not merely a Mitzvah.

Answer(cont.): Rather, he told her to stand because it is a Mitzvah for the people involved to stand, as stated in our Gemara. He told her to stand and make a claim or to perform Chalitzah, because Chalitzah is like a verdict.

Implied Question: The Gemara in Sanhedrin (19a) says that Shimon ben Shetach said, "King Yanai! Stand on your feet and they will testify about you!" (Why would he have to do this according to Rebbi Yehudah?)

Answer: This is unlike Rebbi Yehudah. According to him, this was stated by the verdict and not when the testimony was being said, which is the beginning of the case.

Observation: The Gemara could have answered that he wanted him to find if there is merit to his case. This is as Rava says in Shabbos (119a), "I will get reward, as when a Torah scholar comes before me to be judged, I do not put my head on a pillow until I see if there is merit to his case."

Explanation#1: This is when two cases come before him at once. If one case came before the other case, the first case must be judged first. This is as the Gemara states in Sanhedrin (8a), "like small and big (cases) you should hear."

Explanation#2: Alternatively, the positive commandment to honor Torah scholars takes precedence over the command to hear the cases based on who arrived first. We find that this commandment indeed takes precedent over other Mitzvos in Kesuvos (106a).

Implied Question: Rabeinu Tam explains that "Shuda d'Dayni" means the judge can give it to whomever he chooses. (The Maharshal and Netziv (in Meromei Sadeh) explain that according to Rabeinu Tam, what is the case? It cannot be where there is an Am ha'Aretz and a Talmid Chacham, as this is only called a case of Shuda d'Dayni according to Rashi!)

Answer: According to him, one must say that the other litigant was also a Torah scholar. He was scared that Rabeinu Tam would give the object to him, as stated in Kesuvos (85b) regarding the person who said, "My possessions should go to Tuvyah" that a Talmid Chacham is given the item first. He therefore sent him a message that Ula is also a Talmid Chacham, and he can therefore choose to give it to whomever he wants. (See Maharshal and Maharsha on Tosfos).

Explanation#1: Everyone agrees because the word "and they should stand" is next to the words "two men." The Pasuk does not say, "And the two men that have the fight should stand."

Explanation#2: It is also possible to explain that this is going on the words "that they have the fight," meaning that it is talking about the litigants at the verdict, as we say later. We can establish that they must stand like the witnesses, as their testimony is like the verdict.

Implied Question: This is despite the fact that one must stand in an honorable fashion before a Torah scholar (or his wife), as stated in Kidushin (33a). (How did Rav Nachman fulfill this if he had to stand up because of the goose that flew near him?)

Answer#1: Even so, he did not transgress by not standing up for her, as he in fact stood.

Answer#2: It is also possible to answer that she knew that he stood for her, and that he only made it appear as if he stood because of the bird in order not to stifle the claims of her adversary in the case.

Answer#3: In any event, this is not similar to standing up in a bathroom or bathhouse, as there is no honor at all when standing in such a place.

Implied Question: This is despite the fact that he was allowed to have her sit, as stated later that the positive commandment of Kavod Ha'Torah overrides having the litigant stand. Here, too, the positive commandment of Kavod Ha'Torah should override her having to stand, as she was the wife of a Talmid Chacham.

Answer#1: It is possible to say that he did not want to have her sit in order not to stifle the claims of her adversary even during the verdict, and even though both already finished their claims.

Answer#2: Perhaps there is no positive commandment of Kavod Ha'Torah for the wife of a Torah scholar after he dies.

Implied Question: In Sanhedrin (18b), the Gemara asks why a Kohen Gadol must testify, as the Pasuk states, "And you will ignore." This implies that one does not have to do things that are not according to his honor. The Gemara there could not have answered that he only must testify regarding prohibitions (and not monetary matters). (Why not?)

Answer: If so, even regarding a king we should not say he is exempt because of the teaching, "that your fear should be upon him" because "there is no wisdom etc." (In other words, being that we know that a king does not have to testify, even regarding prohibitions, this reasoning is clearly inapplicable.)

Question: However, this is difficult. Our case is where he is passive. In Berachos (19b), it is apparent that being passive is permitted if his honor is at stake, even if he is transgressing a prohibition. The Gemara asks a question regarding someone who finds Kilayim in his clothing and (the law is he) must take it off immediately, even in the marketplace. We find that someone who is going to slaughter his Korban Pesach and do a Bris Milah for his son must become impure to a Mes Mitzvah. This is because of the denigration of the dead. (Why, then, isn't the denigration of the living also enough of a leniency to allow him to wait to take off his clothes until he is in private?) The Gemara answers, being that he is passive (he is merely not going to bring his Korban Pesach, as opposed to actively wearing Kilayim), there is no prohibition. (Why don't we allow a Talmid Chacham to be passive and not give testimony?)

Answer: In the Gemara in Berachos (ibid.), there is great denigration to a Mes Mitzvah when he does not have anyone to bury him. This is why it is better to sit and be passive (regarding the Korban Pesach).

Proof: This is obviously true, as one cannot help bury his relatives (assuming others will take care of it) if this will cause him to miss Pesach or Milah.

Answer(cont.): Additionally, to take off Kilayim in the marketplace is a great denigration, equal to the denigration of a Mes Mitzvah. This is why the Gemara asked a question from Mes Mitzvah to Kilayim. However, regarding testimony, it is not very denigrating for a Talmid Chacham to give testimony. He is therefore not permitted to even passively transgress the prohibition against withholding testimony. A similar level of denigration (to that of the Talmid Chacham) is finding a sack or box in the marketplace.

Answer(cont.): There (in Berachos ibid.), too, when the Gemara asks a question from finding a sack or box, it is asking that this should certainly apply to a case of great denigration.

Implied Question: Our Gemara could have answered that this is passive, as it answered later. (If the answer above is incorrect, why wouldn't the Gemara give this answer?) (It seems that Tosfos had some doubts about the answer above. This answers the question of the Rashash on Tosfos.)

Answer#1: Rather, it gave a better answer that money is different, as it (i.e. a debt) can be waived. (The answer that money is different as it can be waived is not stated here, but rather is stated in Gitin 64a. Tosfos is borrowing this term to further explain our Gemara's answer that differentiates between money and prohibition.)

Answer#2: Alternatively, perhaps the Gemara did not yet think of this answer.

Answer#3: Additionally, it is possible to say that if not giving testimony is going to cause someone else to sin, this is not called being passive. The case here, as explained by Rashi, is when a woman comes before a judge in order for him to permit her to get married. This student knows that her husband is alive.

Answer(cont.): Regarding money, however, it is permitted even if money is going to be taken away from its owner wrongly.

Answer(cont.): The proof brought from finding a sack or box is in a case where someone else wants to take it (and he knows who really owns it).

Answer(cont.): Now (based on the above) it is also understandable that the Gemara needed to answer that money is different, as it can be waived.