Ketubot, Chapter 2, Lesson 34

[Rabbi Michael Abraham] Good. Our next passage, at the end of page 21b, deals with an objection that is raised against a judge sitting on a religious court. Once again, another story about document authentication. Like all the stories here, they deal with document authentication, which casts the Rif’s explanation of the previous passage in a somewhat problematic light, because the Rif took it in a direction that had nothing to do with document authentication or with the authentication writ, but rather with a witness and a judge testifying about a loan—which suddenly gets planted here in the middle of all these cases that all deal with document authentication. So that’s a little strange, and it’s no wonder that most of the medieval authorities (Rishonim) did not learn like him. In any case, here the passage explicitly says in the Talmud that it is dealing with document authentication, and an objection is raised against one of the judges. The question is whether the other two judges can rescue him. Within all this, the main discussion is really about the issue of two against two. That’s something we already encountered on earlier pages, but here it comes up again, so I’ll deal with it here. It’s an interesting passage. The Talmud here says as follows—I’ll enlarge it. Thank you. Okay? Yes, thanks. Okay. So the Talmud here says this: Rabbi Abba said in the name of Rav Huna, who said in the name of Rav: If three sat to authenticate the document, and an objection was raised against one of them. Yes, that’s the case. Meaning, three judges are sitting to authenticate a document, and suddenly two witnesses come and testify that one of the three is disqualified. Now the other two judges want to testify about him that he is fit, so apparently we have a case of two against two here. The two objectors say—there are two witnesses saying he is disqualified, and the two judges, his colleagues, testify that he is fit. Now the question is what happens here in a case of two against two. So the Talmud says this: Before they signed, they testify about him and he signs; once they signed, they do not testify about him and sign. Meaning, as long as the first two judges haven’t signed, they can get up and testify about the third judge, validate him, and then he can sign with them. After they themselves have already signed the ruling, or the authentication writ, they can no longer suddenly testify about the third judge and have him join them in signing. So a distinction is being made here.

[Speaker C] But wait, even in the first case, it’s not necessarily true that they can validate him—but that’s another story.

[Rabbi Michael Abraham] What do you mean? I didn’t understand. Just a second, one at a time. Yael, what didn’t I understand in what you asked?

[Speaker C] I’m saying, in the first case—before they signed, they testify about him and he signs—meaning, that conclusion, “and he signs,” isn’t necessarily correct, because they can’t always validate him.

[Rabbi Michael Abraham] No, no. If they know testimony about him that he is fit, then they can testify about him, and then he’ll sign with them. Ruti?

[Speaker D] Yes, I wanted to ask whether this is a case of a judge becoming a witness, or whether afterward they can’t because they are witnesses who then become judges again?

[Rabbi Michael Abraham] We’ll see in a moment, we’ll see in a moment. So after they sign, they can no longer testify about him; before they sign, they can. Rashi explains here as follows: Once they signed—why, once they signed, can’t they anymore? They are interested parties in the testimony, because it reflects badly on them that they sat in judgment with someone disqualified. Yes, the Talmud says that the discerning people of Jerusalem would check who was sitting with them at a meal. Meaning, when you’re invited somewhere for a meal, first check who the other guests are, so it won’t just be some event of debauchery and things like that. But of course this serves as a metaphor for judges. When someone asks you to join as a judge in some case, you should check who the other judges are on the panel with you. Don’t join unworthy judges. One of the main reasons for that is that if, for example, there are three judges, and you end up—if you end up in the minority against the other two, you’ll still have to sign the ruling with them. Now if you don’t trust them, if you don’t think they’re proper judges, then don’t join that panel in the first place, because you won’t be willing to stand behind a ruling they gave if you disagree with it. You’ll say this is a foolish ruling; they aren’t proper judges at all. So you won’t be willing to sign the ruling if you’re in the minority. Therefore, check in advance whether these are judges such that even if they rule against you, you’ll still be willing to join them and sign the ruling—you respect them as judges—then join. If you don’t respect them as judges, don’t join from the outset. Don’t get yourself into a problematic situation at the end; check at the beginning who you’re sitting with.

[Speaker C] If that’s also the condition afterward—meaning, basically in the case of mere clarification of a fact—that they checked first who the judges are sitting there.

[Rabbi Michael Abraham] And therefore—

[Speaker C] they can testify that he is fit? I didn’t understand.

[Rabbi Michael Abraham] No, I didn’t understand.

[Speaker C] Okay, I’ll ask that afterward.

[Rabbi Michael Abraham] Okay. So Rashi here says: Why is there a difference between before they signed and after they signed? Before they signed, they are not interested parties, because they still haven’t acted as judges, so it isn’t yet considered that they sat to judge with someone disqualified. In the course of the inquiry, the two witnesses came, and then they can say, okay, so this judge isn’t fit, and we won’t sign. And if they think he is fit, then fine—it’s a case of two against two. But if they signed, then in that situation they already sat in judgment, they already issued the ruling, and suddenly it turns out they sat in judgment with an unfit judge. What—didn’t you check?

[Speaker A] They have an interest in proving that he’s fit.

[Rabbi Michael Abraham] Exactly. Didn’t you check? They’ll come out looking bad if it turns out that this judge really was disqualified. So they have some interest in seeing to it that he is found fit. And therefore they are interested parties in the testimony, and we do not accept their testimony. So why does he sign? What?

[Speaker A] So why does he sign?

[Rabbi Michael Abraham] So he doesn’t sign. After they signed—after they signed—they do not testify about him and sign.

[Speaker A] No, the Talmud says, “they do not testify about him and sign.”

[Rabbi Michael Abraham] The “do not” applies to the whole thing. They do not testify about him and sign. Meaning, it is not true that they testify about him and he signs. Right. Meaning, you can’t testify about him so that he signs. You can’t testify about him so that he signs. That’s the claim. Okay? So fine, that’s the issue of personal interest. Now notice, there’s a very interesting assumption here. In both of these laws, whether before they signed or after they signed, somehow we completely ignore the witnesses who raised the objection. Meaning, if the judges can testify about the third judge—say, before they signed—then when they testify, he’ll be able to sign. Why will he be able to sign? There are also two witnesses saying he’s disqualified, and two witnesses saying he’s fit. So two witnesses validate him.

[Speaker A] One at a time, one at a time.

[Rabbi Michael Abraham] Because two witnesses validate the other side, and he—

[Speaker A] remains in his presumption.

[Rabbi Michael Abraham] Okay, so the assumption is basically that if the judges can testify that he is fit, it doesn’t bother me that there are two witnesses saying he’s disqualified. Because in a case of two against two, I’ll validate him, right? That’s the Talmud’s assumption.

[Speaker C] No, no.

[Rabbi Michael Abraham] Why? Because—

[Speaker C] Again, that’s what we said earlier. Meaning, only if they succeeded in validating him.

[Rabbi Michael Abraham] Not sure—

[Speaker C] that they succeeded in validating him.

[Rabbi Michael Abraham] No, no. I’m talking about when they are fit to testify—before they signed. So they testify that he is fit, right? So they are two witnesses for the third judge that he is fit, but there are two witnesses disqualifying him. And the Talmud assumes that in such a situation he still can sign with them. If they testified about him, then he can sign with them. I’m asking: why should he sign? There are also two witnesses against him. So what if there are two witnesses for him? There are also two witnesses against him. It’s two against two. Two against two. You can see there in the Talmud that if it’s two against two, if there are two witnesses against two witnesses, then the two witnesses disqualifying him don’t interest me. The man remains fit. Right? That’s what you see in the Talmud.

[Speaker A] Maybe we’re dealing with a fit person who until now had a presumption of—

[Rabbi Michael Abraham] Wait, wait. In another second, we’ll get there, we’ll get there. But at this stage he is fit. The second law basically says the same thing. Because the second law says that if, after they signed, the judges can’t testify about the third judge, then because it reflects badly on them and they are interested parties in their testimony, in that situation he won’t be able to testify. But why won’t he be able to testify? Only because they are interested parties in the testimony. But if they were not interested parties in the testimony—meaning, if everything was—

[Speaker F] fine, then there wouldn’t be—

[Rabbi Michael Abraham] it wouldn’t bother me that there are still two witnesses disqualifying him, right? Meaning, the assumption of the passage all along is that everything depends on the judges. If the judges are fit to testify, he will be fit; if the judges are unfit to testify, he will be disqualified. The two witnesses who object don’t interest me.

[Speaker F] Maybe the passage is giving extra weight to judges over other witnesses who come from outside?

[Rabbi Michael Abraham] I don’t know. Those are already explanations. Right now I’m describing the facts. Okay? Those are the facts. The facts are that basically we have two against two here, and somehow in a state of two against two, the judge comes out fit. Only if those two are themselves not fit, then I disqualify him. But the objecting witnesses have no standing unless they are alone. If they are alone, then they will disqualify him because there are no witnesses against them. But if there are two witnesses against them, I don’t care that they exist; we accept the two witnesses against them. The question is why. Or as Idit said, maybe it’s because of the presumption that he is fit, and then we need to discuss that. But first of all, those are the facts.

[Speaker D] Now, we should note that this is the view of Rav Huna.

[Rabbi Michael Abraham] What? Wait, wait—we haven’t gotten to Rav Huna yet, I don’t know who Rav Huna is. One second. Let me read the Talmud here. Now, let me make another remark. There’s another thing this passage ignores: it also ignores the fact that judges are turning into witnesses. Suppose they are not interested parties. Still, they sat as judges, and then suddenly when the objection comes, they turn into witnesses. Isn’t there a problem with a judge becoming a witness? We saw that a witness can’t become a judge, at least by Torah law. Rabbinically maybe yes. But here it doesn’t come up at all. It doesn’t bother the Talmud that they started as judges and became witnesses. Why not?

[Speaker D] Maybe they still haven’t done an act as judges. What? Because maybe they still haven’t done an act as judges.

[Rabbi Michael Abraham] No, that can’t be right, because then after they signed—according to that—after they signed, they should have been disqualified even without the issue of personal interest, because they already did an act as judges.

[Speaker E] But they are judges and they are witnesses—

[Speaker A] Wait—

[Rabbi Michael Abraham] One at a time, it can’t work like this. One at a time.

[Speaker A] They’re testifying about something else. They aren’t now testifying about their own judicial proceeding.

[Rabbi Michael Abraham] Fine. Nechama, what did you want to say? The same thing. So yes, the point here really is that this probably shouldn’t bother us—that a judge becomes a witness—because a judge can become a witness in a different case. And a witness can become a judge in a different case. After all, in the previous passage we saw a judge who signed on a document, and afterward he comes as a witness to testify about that same case. Even in the same case in which he was a judge, he can be a witness. Why? Why doesn’t that bother me? Because now this is a new proceeding before a new court. It isn’t in the same proceeding in which he serves as a judge that he also serves as a witness. It’s about the same case, but not in the same proceeding. And in our case it’s even better, because here it’s not even about the same matter. They serve as judges regarding the authentication of the document. They serve as witnesses regarding the fitness of the judge. That’s a different issue. Two different things. I’ll remind you of what I already said once about conspiring witnesses. If you remember regarding conspiring witnesses, I said that when two witnesses testify, say, that Reuven murdered someone, and then two other witnesses come and render the first set of witnesses false, then we believe the second set and the first set is disqualified. The question is why that isn’t two against two. Why isn’t that contradiction? So some of the medieval authorities (Rishonim) explain that the second witnesses are testifying about the first witnesses. And the first ones are testifying about themselves. Right? The first ones are testifying about themselves. And therefore in that situation the first ones are not believed. It isn’t two against two; there are only the other two witnesses. Just one second. Yes, I asked there: what happens if the first two witnesses—after all, any two witnesses who come and testify about some loan are also saying, “we were there and we saw it.” Meaning, they are also testifying about themselves. So basically I can’t accept any testimony at all, right? Because every testimony is really your testimony about yourself. So I explained that it has nothing to do with that, because in the regular case, when two witnesses come and testify about a loan, the subject under discussion in court is the loan. So the fact that the witness is testifying about himself that he was present doesn’t matter, because he is not the litigant. He is not what is being judged here.

[Speaker A] In the case of conspiring witnesses, why exactly is that what they’re talking about?

[Rabbi Michael Abraham] They’re talking about whether you are disqualified or not. They’re not talking about the murder. We’ve left the murder aside. Now we’ve opened a new discussion. The discussion is the question whether you are disqualified or not disqualified. In that discussion, you can’t testify about yourself, because you are the litigant. Okay? That’s exactly the difference. Meaning, in all these cases, the whole question is always: who is the litigant here? In other words, what is the subject being discussed? So if I return to our case, then these judges are testifying not in the context in which they are serving as judges—which is the authentication writ or the document authentication. We have now opened a new discussion. The question is whether the person sitting next to them is fit to serve as a judge. That’s a different discussion. And in that discussion they function only as witnesses, so there is no problem at all. I have a question.

[Speaker A] Yes. Before whom are they testifying about him? Again—before whom do these three judges come and testify about the third judge?

[Rabbi Michael Abraham] It could be before another panel. A third one. Okay. So the claim is that here this whole question of a judge becoming a witness doesn’t arise at all. Fine, I’ll continue in the Talmud. So the Talmud says—that’s the law, right? If it’s before they signed, then they can testify about the third judge and he joins them. After they signed, they are interested parties. The Talmud asks: What kind of objection is this? Meaning, what exactly was the objection of the two witnesses who disqualified the judge? If it is an objection of robbery, then it is two against two. Exactly what I asked earlier. The Talmud is basically saying: if the two witnesses say that this judge is a robber—someone guilty of robbery is disqualified both from testimony and from judging—then if two witnesses come and testify that he is a robber, basically this is two against two. These are the two judges testifying that he is fit, that he did not rob, and these two witnesses say that he did rob. So it’s two against two. And if it is an objection of family blemish—I’ll keep reading—if it is an objection of family blemish, meaning they testify that he is a slave, Rashi says, and a slave is disqualified from judging, then the Talmud says: that is merely clarification of a fact. All right? It is only clarification of a fact, and therefore it’s fine. What does that mean, it’s fine?

[Speaker D] So then that’s not testimony?

[Rabbi Michael Abraham] It’s not testimony.

[Speaker D] It’s not testimony. Fine. Because it can be clarified, they don’t rely only on their testimony.

[Rabbi Michael Abraham] You said two different things. Yes, exactly. There really are two things here.

[Speaker F] Even if it’s not testimony, all the previous classes we talked about this tension between testimony and knowing reality. Meaning, even if it isn’t testimony, mere clarification of a fact is exactly that—reality can now be clarified.

[Rabbi Michael Abraham] Why can it be clarified? After all, we are interested parties.

[Speaker D] But the reality here is not connected to the personal interest. Your personal interest won’t change the reality. Why? If I—

[Rabbi Michael Abraham] If I’m an interested party, then when I testify about him that he is not a slave, maybe I’m lying. Maybe he is a slave. I’m an interested party.

[Speaker D] But then it’s possible—

[Speaker F] to discover that you’re lying. Ah. So that’s why I’m saying: what the commentators said is that these sorts of things are also known publicly. It’s not something that, in the end, won’t come out one way or another.

[Rabbi Michael Abraham] So that’s the second parameter. What? Objection.

[Speaker D] Things that can be clarified—people won’t dare lie about them.

[Rabbi Michael Abraham] That’s the same thing; it’s not something additional. That’s what they said too. The second claim is really what Rashi also says here: that this is mere clarification of a fact in the sense that it is a matter bound to become known. “A matter bound to become known” means that everyone can eventually see whether he is a slave or not. Judges will not put themselves in a situation where they say about someone that he is not a slave, after everyone in the public knows that he is a slave. Therefore in such a situation they are not interested parties. They are not interested parties, and they can testify even afterward. Now notice—

[Speaker C] Wait, I wanted to say something here. Yes, yes. So that’s what I was referring to at the beginning: if the judges are basically clarifying who is sitting with them in judgment, part of that clarification is also this.

[Rabbi Michael Abraham] Well, and therefore what?

[Speaker C] Therefore there isn’t an issue here of—there is an issue of: we clarified in advance with whom we can sit in judgment.

[Rabbi Michael Abraham] But if they needed to check, then they also needed to check whether he was a slave, because he is disqualified from judging.

[Speaker C] Fine, so they already checked that.

[Rabbi Michael Abraham] No, but now if so, then they are interested parties, because two witnesses come and say that the man is a slave.

[Speaker C] They knew in advance—from the moment they checked, from the moment they checked who was fit—

[Rabbi Michael Abraham] Who said they checked? Maybe there was a blunder and they didn’t check. That’s exactly the point. After all, that’s the concern. The concern is that maybe they didn’t check, and it turns out he was either a robber or a slave, and now they’ll have to defend themselves: what, you didn’t check? So they have a bias; they’ll want to testify that he is okay. That’s the personal interest. So to that Rashi says: it is merely clarification of a fact. Why, once they signed, should they not testify about him? Meaning, the difficulty in the case of family blemish is on the second law: that after they signed they cannot testify because they are interested parties. The Talmud asks: if it is family blemish, then even after they signed they can testify about him. Why? What suspicion of personal interest in testimony is there here? Here this is something they need to clarify, and it is a matter bound to become known, for people will investigate him until the matter becomes clear. Their testimony does not depend on what they say, and they are merely revealing a fact. Okay? That is basically—Rashi tells us here that this matter is merely clarification of a fact. In the end it is something that is supposed to become known, and therefore we do not suspect that they are interested parties in such a case. Here I’ll make a remark—

[Speaker F] Wait, I wanted to ask a question about this clarification of a fact. Why is there a difference in essence between robbery and family blemish? Meaning—why is robbery not something that might also become known eventually? Why is the assumption different here?

[Rabbi Michael Abraham] Because robbery is a hidden matter. Who knows whether someone robbed or didn’t rob? Here there is a person standing trial in court. The whole world knows whether he robbed or not. But whether someone is or is not a slave is a matter of status. Everyone knows who his father is, who his mother is, where he comes from. The public knows such a thing, or at least part of the public does.

[Speaker F] If he came from another village, another town—

[Rabbi Michael Abraham] Fine, but usually when someone comes from somewhere, people know whether he is a slave or not. They know whether he got married or didn’t get married. They know all kinds of things. Being a slave has the status of a public identity. It isn’t just some one-time offense that you hide and people don’t know about. I’m saying, it isn’t always like that, but often it is. And since it’s enough that often it’s like that for the judges to be afraid to lie—because they don’t know, it could be that here too it is known to other people, and then their nakedness will be exposed, because they lied. So they won’t take the risk and they won’t lie.

[Speaker F] When the judges come to testify in favor of the third judge, do they know with certainty? Meaning, it’s not that they just never suspected—oh wow, he looks like a Torah scholar and we never suspected for a moment that there was some blemish?

[Rabbi Michael Abraham] I don’t know. It’s possible there was a blunder and they didn’t check. So I’m saying, in this case that isn’t plausible. Why? Because if they come and testify that he is not a slave, then apparently they checked and they know he is not a slave. Because the alternative is that they are lying now. But there is a good chance that such a lie would be exposed. Therefore it’s not plausible that they are lying. So what is it then? Apparently they really did check and know that he is not a slave. That is exactly what the Talmud is asking. Therefore, notice—

[Speaker E] But this happens—sorry for interrupting—it happens sometimes even today, that rabbis give an endorsement to some book and didn’t really check who the person is. I’m just thinking—

[Rabbi Michael Abraham] The question is whether it is something bound to become known. If it is something bound to become known—

[Speaker E] But in the end it does become known because everyone knows who he is—that he’s a questionable person. But the book looked normal, it was given to the rabbi to sign, and he signed without checking who exactly the author was.

[Rabbi Michael Abraham] I don’t know. Maybe that can happen, but serious people generally don’t do things like that. So the assumption—

[Speaker E] But I’m saying it does happen.

[Rabbi Michael Abraham] The fact that it can happen doesn’t mean—I need to know whether it happened here. And the assumption is that as long as it hasn’t been proven, it probably didn’t happen. Right, the assumption is that it probably doesn’t happen.

[Speaker E] A presumption, I understand, yes.

[Rabbi Michael Abraham] Meaning, if there is a case where it becomes clear that it did happen, fine, it can happen. But as long as it hasn’t become clear to me, the assumption is that it probably won’t happen; it isn’t likely. Okay? Let me just note here that Rashi’s assumption is that the disqualification of an interested party is not a personal-status disqualification, but suspicion of lying. And therefore here, since we solved the problem of suspected falsehood, we also solved the problem of being an interested party. But in truth this is a dispute among the medieval authorities (Rishonim): whether an interested party is disqualified because he is suspected of lying, or whether it is like the status of a litigant. If you are an interested party, then you are like a litigant, and a litigant has a personal disqualification regardless of whether we suspect him or not; even testimony against his own interest is disqualified. Therefore, if that were the case, then apparently you couldn’t explain what Rashi explained here, because what do I care that I have no suspicion? As long as you are an interested party, you are disqualified whether for or against. Meaning, it has nothing to do with whether I actually suspect you. But it isn’t exactly like that, because after all, why are they interested parties? They are interested parties because there are consequences. If I have no suspicion that they are lying, then apparently they are not really interested parties either. So then even a personal disqualification would not apply. There is room to hesitate here, but I’m saying this only as a side remark. I want to return to the question in the Talmud, the question we just read. Look, what we explained until now is this question—after all, this question is made up of two tracks, right? It’s a two-pronged attack. The Talmud is basically saying: it can’t be an objection of robbery, and it can’t be an objection of family blemish. Therefore it can’t really be such an objection. I don’t understand this law. Now let’s see. Why can’t it be an objection of family blemish? Because it is clarification of a—

[Speaker D] fact. And then what?

[Rabbi Michael Abraham] the judges won’t lie. And therefore, which of the two laws comes out wrong? Before they signed, or after they signed?

[Speaker E] The second one, right?

[Rabbi Michael Abraham] The second law comes out wrong. The law that says that after they signed they are interested parties and disqualified comes out wrong, because they are not interested parties. That’s in the case of an objection of family blemish, right? Now if it’s an objection of robbery, what does it attack? The first one, right? Because what is Rashi basically telling us? Let’s read. It is two against two, yes? If it is an objection of robbery, then it is two against two. Rashi says: when they say he did not rob, it is two against two, and he is not validated. For we hold later in this chapter that an objection is never fewer than two. What is Rashi saying? That if it is an objection of robbery, then it is two against two. What does that mean—two against two—and therefore what?

[Speaker D] And therefore they disqualify each other—

[Rabbi Michael Abraham] and therefore you can’t validate him. The judge—

[Speaker D] won’t be validated.

[Rabbi Michael Abraham] the judge won’t be fit. Meaning, this attacks the first law, not the second. The first law says that before they signed they can testify and the judge will be fit. How can that be? It’s two against two. And if it’s two against two, the judge should be disqualified. Okay, so notice: according to Rashi, this question of “what kind of objection is this?” works like this—the side of an objection of robbery attacks the first law, and the side of an objection of family blemish attacks the second law. And that works. The Talmud says it can’t be either an objection of robbery or an objection of family blemish. It can’t be robbery because the first law doesn’t fit, and it can’t be family blemish because the second law doesn’t fit. Okay? That’s what Rashi says. Fine? But if you saw Baal HaMaor—and this is also the approach of the Rosh, except that the Rosh isn’t printed here on the page, so I preferred to bring Baal HaMaor. Let’s read Baal HaMaor here on the Rif. Rav Huna said in the name of Rav: If three sat to authenticate the document, and an objection was raised against one of them, etc. What kind of objection is it? If it is an objection of robbery, it is two against two. Explanation—and notice this—: and even once they signed, why do they not testify about him? For one can say: set two against two, and leave the man on his presumption of fitness. How does Baal HaMaor explain it? It’s exactly the opposite of Rashi, because he says the man has a presumption of fitness, while Rashi says they cannot validate him. Right.

[Speaker F] Baal HaMaor explains that an objection of robbery attacks the—

[Rabbi Michael Abraham] second law, not the first law as Rashi said. If it is an objection of robbery, then basically the judges are two, and the two witnesses raising the objection are also two. We have two against two. In a case of two against two, the judge should be fit because he has a presumption of fitness. So why, after they signed—why after they—

[Speaker C] signed do we disqualify the judge? He should have been fit. That’s how Baal HaMaor explains it. Okay? I didn’t understand—what’s the connection?

[Rabbi Michael Abraham] I didn’t understand “after they signed,” again. Can I explain? The Talmud says two laws. Before they signed, they can testify, and then the judge will be—

[Speaker C] fit, right?

[Speaker F] After they signed—

[Rabbi Michael Abraham] they are interested parties, cannot testify, and the judge is disqualified. Yes. Now the Talmud says: if it is an objection of robbery, that can’t be, because—

[Speaker F] it’s two against two, so what?

[Rabbi Michael Abraham] So Rashi told us that this attacks the first law.

[Speaker F] Because if—

[Rabbi Michael Abraham] if it is two against two, then how can you tell me at the beginning that this judge is fit? There are two witnesses against him and two witnesses for him. This judge should be disqualified. This is a Torah-level doubt, and we should be stringent; he should be disqualified. Baal HaMaor disagrees with Rashi. Baal HaMaor argues that this attack is directed at the second law, not the first one. Because in the second law it says that if it’s after they signed, then the judge is disqualified. Baal HaMaor asks: Why? It’s two against two. In a case of two against two, the judge should be fit. He should be.

[Speaker F] He should be fit.

[Rabbi Michael Abraham] That’s the Talmud’s difficulty according to Baal HaMaor. Clear?

[Speaker F] And according to Baal HaMaor, in a case of two against two, whatever was there before remains, because there is some kind of presumption. Yes.

[Rabbi Michael Abraham] And according to Rashi, his assumption is that if there is two against two, the judge is disqualified. I’m not interested in the fact that he had a presumption of fitness. Correct. Why?

[Speaker F] So Rashi is basically not clear.

[Rabbi Michael Abraham] Why not? Wait, wait. Before explanations, first the facts. Rashi says that when there is two against two, the judge is disqualified, and I’m not interested in the fact that he had a presumption of fitness. Baal HaMaor says if there is two against two, the judge is—fit, because he has a presumption of fitness. So I need to make several remarks here. The first remark is just so we recognize the rule; I assume it’s familiar. In a situation where we have doubt, we generally leave the thing in its prior presumption. Right? If we have—I don’t know—a person who had a presumption of fitness, or not a person, let’s leave that because that’s our topic, but say a woman who was married. Fine? And now two witnesses say she got divorced, and two other witnesses say no, she didn’t get divorced. So we have a doubt. What do we do? We leave her in her prior presumption. It is known that she was married; I have no idea whether she got divorced because there is a dispute about it, so I leave her with the presumption of being married. Or leave aside two against two. She threw—wait, wait, Yael, slowly. I said I’m not explaining yet, I’m just describing the facts. Slowly.

[Speaker D] But Rashi is talking about a Torah-level doubt.

[Rabbi Michael Abraham] Wait a second, a second. You’re jumping to the explanation. Don’t jump ahead; we won’t understand this if we jump. First of all I want you to understand the facts. After that, explanations, otherwise we’ll get tangled up here. If I throw it—if this woman is betrothed and the husband threw her a bill of divorce, leave aside two against two for the moment, the husband threw her a bill of divorce, and it’s uncertain whether it landed closer to him or closer to her. If it was closer to her, then she’s divorced; if it was closer to him, then it’s not considered that she received the bill of divorce and she’s not divorced. What do we do in such a case? She remains married! Because she was betrothed, she had the presumption of being betrothed, and I have a doubt whether she got divorced or not, so we leave her in her prior status. Right? Ba’al HaMaor argues: let’s take this principle of presumptions and apply it here too. We have two witnesses against two witnesses regarding this judge. Two disqualify him, two validate him. This judge had a presumption of fitness until the challenging witnesses came. I have two witnesses, so it’s a doubt. In a case of doubt we leave him in his prior status, so he remains fit. Ba’al HaMaor—apparently that’s the most natural thing to say. If you have two against two, a doubt is created; in a case of doubt we leave the status in its prior presumption, and therefore the judge should be fit. Rashi has to be understood. What does Rashi say? Rashi—I’m already saying here in one sentence—apparently understands that when you have two against two, this is not an ordinary case of doubt. In this kind of doubt, of two against two, we do not follow a presumption, only in ordinary doubts. I’m just saying that parenthetically for now—we’ll get to it later; that’s the heart of the topic. But I’m only saying it so the picture is more complete. But let’s go back for a moment to Ba’al HaMaor. Ba’al HaMaor says something very, very strange here. Even though in terms of reasoning it sounds plausible, because we follow a presumption: we have a doubt, so we follow the presumption. But he says something terribly strange. Because after all, according to Ba’al HaMaor, what’s the difference between before they signed and after they signed?

[Speaker C] Since they are interested parties, there is no difference.

[Rabbi Michael Abraham] After all, Rashi explained to us: once they signed, they have an interest in presenting the third judge as fit, and so they are interested in the testimony, right? So what is this?

[Speaker F] Ba’al HaMaor—

[Rabbi Michael Abraham] There is no difference—that’s his whole difficulty. Exactly. So what does Ba’al HaMaor say? I don’t understand Ba’al HaMaor. So Ba’al HaMaor says: if these two judges, after they’ve signed, testify, and there are two who disqualify him, that’s two against two, and we must leave the judge in his prior status. What two against two? The judges are interested in the testimony. There is no two against two here; there are only two who disqualify him. The two who validate him are interested in the testimony, so what does that have to do with anything?

[Speaker F] “Interested in the testimony” is Rashi’s explanation. Maybe Ba’al HaMaor explains it differently.

[Rabbi Michael Abraham] Ah—yes, not maybe. Certainly.

[Speaker F] But then there’s another question—

[Rabbi Michael Abraham] How will he explain the answer? Wait, wait. First let’s explain the difficulty. Don’t jump. So I’m saying: not maybe, but clearly—Ba’al HaMaor explains the Talmudic passage differently. Ba’al HaMaor argues as follows: the two laws in the Gemara have nothing to do with being interested in the testimony. The two laws in the Gemara say that when the judges have not yet signed, they can testify about the third judge; that’s two against two, and he is fit because he has a presumption of fitness. After they sign, he is not fit. And on that the Gemara asks: why? Even after they signed it’s still two against two, so what’s the difference? Ba’al HaMaor does not accept that after they signed there is interest in the testimony. As far as he’s concerned, there is no such interest; everything is fine. What does it mean, interest in the testimony? They are testifying, and apparently that’s what they know, so it’s two against two. So Ba’al HaMaor says: if that’s so, then how do you disqualify the judge after they signed? Even after they signed it’s still two against two, so leave him in his presumption. Ba’al HaMaor’s point is exactly that what the Gemara is asking is precisely this. The Gemara asks what the difference is between the first law and the second law. Here it’s two against two, and there too it’s two against two.

[Speaker F] But Ba’al HaMaor understands the Gemara as a question, not as a statement, not as an assertion.

[Rabbi Michael Abraham] No, everyone understands it as a question. “What is this challenge?”—that’s a question. But according to Rashi, the question is: I don’t understand the first law. It’s two against two, so he should be disqualified. According to Ba’al HaMaor: I don’t understand the difference between the two laws. After all, in two against two he should be fit; the first law is obvious. In two against two he should be fit because there is a presumption of fitness. But why is the second law disqualifying him? There too it’s two against two with a presumption of fitness. What difference does it make whether they signed or did not sign? And Ba’al HaMaor does not accept the distinction that here there is interest in the testimony. And so he says: I don’t understand—this is two against two and that is two against two, so—

[Speaker C] Why shouldn’t we follow the presumption of fitness in the second law as well?

[Rabbi Michael Abraham] If Ba’al HaMaor doesn’t understand the distinction—still, in any case, two cases are brought here, right? There are two cases here.

[Speaker E] So according to him—

[Rabbi Michael Abraham] What, are the two cases the same? Yes. Not “according to him”—that’s what the Gemara is asking. You’re giving me two laws; you’re saying the two laws are different; the Gemara asks: how are they different? This is two against two and that is two against two. So in two against two he should be fit—so why in the latter case are you disqualifying him? That’s exactly what the Gemara is asking. The Gemara basically doesn’t understand; there is no interest in the testimony here. It isn’t about interest in the testimony at all. Therefore the Gemara asks: what is the difference between the first clause and the latter clause? Why in the first law are they fit and in the second law they are disqualified? Both should be fit; there is a presumption of fitness. And so he doesn’t bring the whole issue of interest in the testimony into play here at all. Okay? So according to Ba’al HaMaor, the difficulty is basically that they—

[Speaker C] They should have raised this issue—whether they signed or not, whether they signed or not, what difference does it make? Can they testify for him at all or not? I didn’t understand. Before and after the signing doesn’t matter according to this approach.

[Rabbi Michael Abraham] Exactly. That’s the Gemara’s question. Why are you making a distinction between before the signing and after the signing? There is no difference at all. This is two against two and that is two against two. That’s how Ba’al HaMaor learns. Meaning, Ba’al HaMaor doesn’t introduce the issue of interest in the testimony here at all. Okay?

[Speaker C] But wait, wait. Ba’al HaMaor comes and explains the Gemara, right? Right. So basically this whole statement that three sat to validate the document and they called one and he signed—that is, this whole statement of the Gemara, or the whole question—is that already what Rav asked? I didn’t understand. Chronologically, right? The question is before Ba’al HaMaor’s idea.

[Rabbi Michael Abraham] No, Ba’al HaMaor explains the Gemara’s question. According to Ba’al HaMaor, the Gemara’s question—according to Ba’al HaMaor’s explanation—is: why are you giving me two different laws? In both cases the law should be that the judge is fit, because in two against two the judge has a presumption of fitness and therefore he is fit. Why in the second case did you disqualify him? That’s what the Gemara itself is asking according to Ba’al HaMaor. This is not Ba’al HaMaor’s own question against the Gemara; it’s the Gemara’s question according to Ba’al HaMaor’s explanation. The Gemara itself asks this according to Ba’al HaMaor.

[Speaker C] Fine, okay. There’s still something I don’t understand here, but okay, I’ll fill it in later.

[Rabbi Michael Abraham] Okay. Continuing now—I’m continuing to read in Ba’al HaMaor. “And one should not object from that which our Rabbis taught”—from the baraita—”two who were signed on a document, regarding which we ask and collect with it: why? It is two against two.” The Gemara we saw at the beginning of the chapter. Right? There are two signed on the document, and then two come and disqualify them. So apparently this is two against two—the two signed witnesses against the two who disqualify them. So the Gemara says: after all this is two against two, so why do you collect with the document? So what do we see? That when there is two against two, we go stringently; we don’t accept the testimony. So Ba’al HaMaor says: that seems difficult against what I myself am assuming. It seems to support Rashi that in two against two you should disqualify. So Ba’al HaMaor says: that’s not difficult, because there they are not coming to testify about the very bodies of the document’s witnesses, for those witnesses are dead. Rather, they are coming to testify about the document, that it is invalid. Therefore it’s two against two, and we do not collect with it. What is he saying? They are not testifying about the document’s witnesses. If they were testifying about the document’s witnesses, then the two who uphold the witnesses are on their side, and the two who disqualify them are against them. Then what? Then those document witnesses would have a presumption of fitness, and indeed in such a case we would validate the document witnesses. But here the discussion is about the document, not about the document’s witnesses. They testify that the document is invalid, that it was made when they were under duress—whether financial duress or threat to life, and so on. So they testify that the document is invalid. A document has no presumption of fitness. What, does a document have a presumption of fitness? That is exactly what’s being discussed about the document—whether it is an invalid document or a valid one. With a person, with a human being, if they say he stole—well, when he was born he wasn’t a thief, right? So he has a presumption of fitness. The moment he steals he becomes disqualified, meaning there was an initial state in which he was fit. And now the question is whether that state changed. So he says: in such a case, when I have a doubt whether the status changed, I leave the status in its prior presumption. But with a document—that’s the entire issue. Some say it is invalid, it was invalid from the beginning. This document is forged; it was made under duress. And those who say it is valid say it is valid. So there was never a stage in the life of the document when the document was certainly valid before the doubt arose. And since that’s so, once you have two against two, then of course not—you don’t use a presumption, because it’s a doubt. You can’t extract money on the basis of doubt. You want to use the document to extract money? You can’t. This document is in doubt. We don’t extract money on the basis of doubt. But if the discussion were about the document’s witnesses, and we had two against two—two say the witnesses are valid and two say the witnesses are invalid—Ba’al HaMaor says that indeed in such a case we would validate the witnesses, because those witnesses have a presumption of fitness. Therefore one should not raise an objection from that Gemara against what I am saying here, says Ba’al HaMaor. Clear? Are you with me? Okay?

[Speaker A] But—

[Rabbi Michael Abraham] Here, where they testify about the body of the judge himself—here they are testifying about the judge himself, not about the document—this is a case of two against two, and we establish the man on his presumption of fitness. So if there are two witnesses concerning the judge who disqualify him and two witnesses who validate him, and the discussion is about the judge, the judge has a presumption of fitness. Even if you’re right that he stole, up until the theft he was fit. And now there’s a doubt whether he stole or didn’t steal. Two witnesses say yes, two say no. In such a case we establish him in his presumption of fitness. Therefore, says Ba’al HaMaor, don’t challenge me from there. For our purposes, I’ll summarize: Ba’al HaMaor basically disagrees with Rashi about what happens when there are two witnesses against two witnesses, and the person they are testifying about has a presumption of fitness. According to Rashi, in such a case the presumption of fitness plays no role. Right? They disqualify the judge even though he has a presumption of fitness. Meaning, Rashi holds that a doubt of two against two is not a normal doubt. Right? It’s not an ordinary doubt, because in an ordinary doubt we do follow a presumption. Rashi says no—a doubt of two against two is not an ordinary doubt. In a case of two against two we do not follow a presumption. That’s Rashi’s position. And therefore he explains the Gemara accordingly, as we saw. Ba’al HaMaor disagrees with him precisely on this point.

[Speaker E] Excuse me, excuse me—you said here, is that true all the way through, that in every case of two against two we never follow a presumption, or only in Torah-level cases?

[Rabbi Michael Abraham] Wait, wait, wait—you’re getting ahead of things. In Rashi here—

[Speaker E] But you said it in such a general way, two against two—

[Rabbi Michael Abraham] I said it generally because I’m learning the Gemara here. And in the Gemara—

[Speaker E] Here—

[Rabbi Michael Abraham] it says that in two against two we don’t follow a presumption—that’s what it says. Distinctions we’ll make if we find contradictions. I’m going step by step. What we see here in the Gemara according to Rashi is that two against two is not an ordinary doubt. In an ordinary doubt we follow a presumption. In two against two we do not follow a presumption. Okay? Ba’al HaMaor disagrees with Rashi. Ba’al HaMaor says two against two is an ordinary doubt. Just as in every doubt we follow a presumption, so too in two against two we should follow a presumption. That’s what Ba’al HaMaor argues. This is the dispute between Rashi and Ba’al HaMaor, and remember it well, because that’s our point of departure. Let me just bring the example. So, the Gemara in Yevamot—but I’m bringing it here already just as an example. What happens if a woman is a married woman, and now the husband threw her a bill of divorce, and it’s uncertain whether it landed closer to him or closer to her? In such a case a doubt is created whether she is divorced or not, and until the moment the bill of divorce was thrown she was a married woman; she has the presumption of being a married woman. Since there is a doubt whether she was divorced or not, we establish her in the presumption of being a married woman. Right? That’s a doubt; everyone agrees about that. What happens if I threw a bill of divorce—sorry—two witnesses come and say, “I gave her a bill of divorce,” and two witnesses come and say, “He did not give her a bill of divorce”? According to Rashi she would be doubtfully divorced, because we do not follow a presumption when there is a doubt—sorry, sorry—according to Rashi, when the doubt is two against two, we do not follow a presumption. A doubt of two against two is not like an ordinary doubt. So if there is doubt whether he gave her a bill of divorce, we don’t follow her prior presumption; but if that doubt is two against two, because it is based on two witnesses against two witnesses, then there the presumption plays no role. According to Ba’al HaMaor, no—Ba’al HaMaor says that even a doubt created by witness testimony, two against two, is the same as an ordinary doubt. We follow a presumption. Okay?

[Speaker F] So according to Rashi there she is doubtfully divorced? Doubtfully divorced. A doubt.

[Rabbi Michael Abraham] According to Rashi, a doubt.

[Speaker E] And according to Ba’al HaMaor? According to Ba’al HaMaor, she remains a married woman.

[Rabbi Michael Abraham] Okay?

[Speaker F] “Doubtfully divorced” means that she can neither marry nor return to her husband?

[Rabbi Michael Abraham] She would need to receive another bill of divorce out of doubt, or else he would have to betroth her again if he wants to be her husband. Out of doubt. Okay? Now this is the dispute between Rashi and Ba’al HaMaor, and remember it very, very well. This is the initial point from which we set out, and it will keep accompanying us, so remember it. Now I continue with the passage in Ba’al HaMaor that I told you not to go into, because it touches on another topic—I didn’t want you drowning in it. So I’ll read it with you now, because now that we understand the dispute, maybe it’ll be easier to understand this too. So I continue reading, this is the second passage of Ba’al HaMaor that I sent you. “And that which we say in the incident of King Yannai, if you say…” What does that mean? Let’s look for a moment at the story of King Yannai.

[Speaker A] It’s talking about his mother having been taken captive by the government? What? If his mother was taken captive before he was born, right.

[Rabbi Michael Abraham] Let’s look at it—I’m sharing, I’m sharing the Gemara in Kiddushin. The Gemara says King Yannai came from priestly lineage, okay, his father was a priest. Now his mother had been taken captive, right? That’s what they say there: “And Yehuda ben Gedidya said to King Yannai: King Yannai, the crown of kingship is enough for you; leave the crown of priesthood to the descendants of Aaron. You want to be both High Priest and king? Enough that you’re king; leave the crown of priesthood to the descendants of Aaron.” He too was from the descendants of Aaron. But they would say that “his mother had been taken captive in Modi’in, and the matter was investigated and not found, and the sages of Israel withdrew in anger.” Then there are all kinds of continuations—not important for us now. They were saying there that his mother had been taken captive in Modi’in. What does that mean? Gentiles seized her and took her captive. So what?

[Speaker A] Then she’s a harlot or she’s—

[Rabbi Michael Abraham] A captive woman.

[Speaker A] She also—

[Speaker F] Was raped.

[Rabbi Michael Abraham] Right, and King Yannai came from that. And King Yannai came from that, so then the consequence of the rape—

[Speaker F] Yes, so is he a disqualified priest?

[Rabbi Michael Abraham] Exactly, so now there’s a problem here.

[Speaker F] No, so he’s blemished—what do you mean, is he a disqualified priest?

[Rabbi Michael Abraham] He’s not a disqualified priest, he’s blemished. He’s not a disqualified priest, he’s nothing—

[Speaker F] Because if a captive woman was raped, she’s forbidden to her husband.

[Rabbi Michael Abraham] He’s not a disqualified priest—how is he a disqualified priest? If he came from the rape by the gentiles, then his father isn’t a priest?

[Speaker D] No, he came from his father, but after she had been raped.

[Rabbi Michael Abraham] That’s the question. Okay, we’ll see in a second. So now—not good—it could be there are two possibilities here, but we’ll see in a moment.

[Speaker F] Was there also another question, whether she was taken captive when she was already married—is that the idea?

[Rabbi Michael Abraham] Not important right now. If she had relations with a gentile, she is still forbidden to a priest—

[Speaker E] Forever, as it were? Yes. Now as for the priesthood, what’s the problem?

[Rabbi Michael Abraham] Many people are forbidden to the priesthood. Yes. Now later the Gemara says: “What are the circumstances?” I’m moving down. “What are the circumstances?” How was it there? “If there were two who said she was taken captive and two who said she was not taken captive”—that is, there are two witnesses who say Yannai’s mother was taken captive, and two witnesses who say she was not taken captive—”what makes you rely on these? Rely on those!” So why are you relying on those who say she was taken captive? Rely on those who say she was not taken captive. Right, why are you assuming that if there are two witnesses saying she was taken captive and two witnesses saying she was not, then he is disqualified from the priesthood? Why are you relying on those who say she was taken captive? Rely on those who say she wasn’t. Why?

[Speaker F] What do you mean? This is a severe Torah prohibition—what do you mean? It’s not the same thing, is it?

[Rabbi Michael Abraham] So what does that mean?

[Speaker F] If she really was taken captive, we don’t know. Right, so maybe yes and maybe no—

[Rabbi Michael Abraham] But maybe she was taken captive, and then it’s a Torah-level doubt. So what does that actually mean? According to Rashi, it’s prohibited. What kind of doubt is this? Two against two, right? Yes, and in a case of two against two are we supposed to validate or not?

[Speaker A] Is it like an ordinary doubt?

[Rabbi Michael Abraham] According to Rashi, no. According to Ba’al HaMaor, yes. Right? So apparently according to Ba’al HaMaor, he should have been fit. Why should I care? It’s two against two. It’s an ordinary doubt; what difference does it make that it’s two against two? So on that Ba’al HaMaor says—I’m returning now to Ba’al HaMaor—what does he say? That he has no presumption of fitness. Now let’s read, come on, let’s read. So Ba’al HaMaor says: “And that which we say in the incident of King Yannai, if there were two who said she was taken captive and two who said she was not taken captive, it is two against two; what makes you rely on these? Rely on those.” That’s the Gemara in Kiddushin we just saw. So Ba’al HaMaor says: apparently this is difficult for me; it continues the challenge to his view, because he says that when there is two against two, it’s an ordinary doubt and we follow the presumption. So why there does the Gemara say that if there is two against two we would have had to disqualify Yannai? So he says this: there, since they were coming to testify about Yannai himself, one cannot say, “Establish Yannai in his prior presumption,” because according to one set of witnesses he was invalid from his mother’s womb, and the whole issue began with his mother before Yannai was born. Therefore he is a doubtful invalid, because his doubt was born together with him—

[Speaker D] What?

[Rabbi Michael Abraham] —which is not the case with a challenge of theft, where the disqualification comes later. Therefore we say there: place two opposite two and establish the man in his original presumption of fitness. What is he saying there? He has no presumption of fitness from the moment he was born. Right? He says that with King Yannai they are basically testifying about King Yannai that he was born from a mother disqualified to the priesthood, or even from illicit relations. He was born invalid if his mother was taken captive, and if his mother was not taken captive then he was born valid and remains valid. Meaning, this is not a doubt that came later. It isn’t that he had a clear status and then from some later point a doubt arose; in that kind of case we leave the situation in its clear prior status. But Yannai never had a clear status—the doubt is about the very moment of his birth. So if that’s the case, there was no presumption of fitness for Yannai there. Therefore, says Ba’al HaMaor, don’t challenge me from the Gemara in Kiddushin; it isn’t difficult for me at all. What I say—that in two against two one can be lenient—applies only where there is a presumption. But there he had no presumption at all, so what room is there for leniency? It’s simply a Torah-level doubt, which is treated stringently. When there is a doubt of two against two but there is a presumption, then the presumption resolves the doubt. But if there is no presumption, then we remain in doubt, and the rule is that a Torah-level doubt is treated stringently. Okay? Therefore, says Ba’al HaMaor, this is not difficult for me at all. Now I just want, nevertheless, because for what follows it will be important for us, I’m going back to the Gemara there once again—wait, going back to the Gemara there once again—I’m sharing with you now the Tosafot. In Kiddushin? Yes. I just didn’t want you getting tangled up in that sugya, so I didn’t direct you to it. Look at Tosafot on this: “What makes you rely on these? Rely on those”—those who say she was taken captive. “And how can the Gemara say ‘and it was not found’?” Right? How can it be “not found” if there is two against two? He should be disqualified. “Rashi in the commentary raises the difficulty”—Rashi there in Kiddushin—”On the contrary, place two opposite two and establish Yannai’s mother in her presumption of fitness, as we say regarding a priest in Ketubot,” and so on. What’s the question?

[Speaker A] He’s saying that basically there is room to establish it on the presumption when there is two against two.

[Rabbi Michael Abraham] Right, Rashi says: why don’t you follow the presumption?

[Speaker A] Which presumption?

[Rabbi Michael Abraham] Yannai has no presumption.

[Speaker A] The presumption of his mother—of his mother. Good.

[Rabbi Michael Abraham] Pay attention to what he asks: not to establish Yannai in a presumption of fitness, but to establish his mother in a presumption of fitness. Because after all, the doubt is not about Yannai; the doubt is about the mother—whether she was taken captive or not. Right? The mother has a presumption of fitness, because when she was born she wasn’t born a captive; she was born an ordinary woman. Now the question is whether at some point in her life she was taken captive or not. Right?

[Speaker E] But if we say that the discussion is about from which intercourse he was born, then that won’t work.

[Rabbi Michael Abraham] Exactly. That’s why I said to wait a bit. Now Rashi and Tosafot here assume—what Tosafot brings—that we are really discussing his mother, and his mother has a presumption of fitness. So there is doubt whether she was taken captive or not. Since she has a presumption of fitness, I should have validated her. Once I validated the mother—wait, wait, wait—once I validated the mother, then the mother now stands as presumed fit. Consequently, when I then ask what Yannai’s status is, if I have already decided that the mother is fit, the doubt does not arise with respect to Yannai; I’ve already decided it with respect to the mother. That’s what Rashi asked. Okay?

[Speaker D] But according to Rashi, you should have—this—

[Rabbi Michael Abraham] Wait a second. First of all, that’s clearly what Rashi says in Kiddushin. Good. Now I ask about our Rashi. In light of our Rashi, in a doubt of two against two we do not establish on a presumption. So how does Rashi in Kiddushin assume that even with regard to the mother—according to Rashi, if there is two against two, then even regarding the mother she should not be validated. Right. And in fact the Gemara there says exactly that, and Rashi challenges the Gemara. Now why are you challenging it? According to what you yourself said in our tractate in Ketubot, that’s the best explanation of the Gemara in Kiddushin. Right. What’s the problem? They disqualify Yannai because even his mother’s presumption of fitness would not help her, because in two against two the presumption of fitness does not help; and Yannai himself had no presumption of fitness at all, so there is nothing to discuss. So what are you asking? This is a contradiction in Rashi, right?

[Speaker D] But he is right that we should frame it as the problem of his mother and not as the problem of Yannai.

[Rabbi Michael Abraham] But even with his mother there shouldn’t have been a problem according to Rashi, because according to Rashi’s own position, even for the mother, who did have a presumption of fitness—what difference does it make? In a case of two against two we do not follow a presumption.

[Speaker D] A doubt—it’s a doubt.

[Rabbi Michael Abraham] Yes, we do not follow the presumption of fitness, okay? So that is what Rashi asks. So we have a contradiction in Rashi; we’ll come back to it. “And Rashi answered: this applies only if she herself were present before us and came to court to be permitted, for there she has a presumption of fitness.” Rashi says: if she had come before the court, and the court’s discussion were being conducted about her, then indeed we would rule that she is fit. And consequently Yannai too would come out fit. But in reality she is no longer here; perhaps she is dead. The discussion now is about Yannai. True, the root of the issue is the question of what happened to the mother, but about whom are we discussing now? About Yannai. “But her son is the one before us as the subject under discussion”—I continue reading—”and he has no presumption of fitness, because they are testifying about the very beginning of his birth in invalidity, saying that his mother was taken captive before he was born.” Once our discussion is about Yannai, the mother’s presumption won’t help validate Yannai. The mother’s presumption helps when there is a discussion about the mother. But in a discussion about Yannai, the fact that the mother has a presumption doesn’t help. Yannai has no presumption. That is Rashi’s claim. And this leads into a very long discussion whether the mother’s presumption helps the son or does not help the son—huge disputes among the medieval authorities (Rishonim) and later authorities (Acharonim), with all kinds of sugyot later on in our tractate, on page 26 in Ketubot. We probably won’t even get there. And what about Tosafot? So that’s what Tosafot now continues with; we’ll just touch it here in Tosafot, just finish reading it. “And if you say: in any case”—up to this point this is all Rashi. Rashi asked and Rashi answered. Now before I continue: bottom line, we are still left with a contradiction in Rashi, right? Because Rashi says that once there is two against two and the person under discussion has a presumption of fitness, then we do follow the presumption of fitness, right? Only here we are not discussing the person who has the presumption of fitness; we are discussing someone who does not. But if we had been discussing the mother, says Rashi, then the presumption of fitness really would help. That’s against our Rashi. Because our Rashi says: we are discussing the judge, there is two against two, and the judge has a presumption of fitness, and we do not follow the presumption. Right? So the contradiction in Rashi remains in place even after he answered the Gemara there. Rashi there throughout assumes that when there is two against two, the presumption of fitness helps. Our Rashi says: absolutely not—that’s against Ba’al HaMaor. Our Rashi says that in two against two the presumption of fitness does not help. So Rashi contradicts himself. Moving on. “And if you say”—now I am reading the bolded passage in Tosafot; until now it was only a quotation of Rashi—”in any case, let the presumption of his mother help him, since she had a presumption of fitness.” Why don’t we take Yannai’s mother’s presumption and treat it as a presumption that helps Yannai himself? This can be understood in a few ways. Either: true, the mother is not standing before us, but in the end the issue is about her—whether she was taken captive or not—so let us decide the question about her by virtue of her presumption, and the consequence for Yannai will be that he is fit. Or alternatively, a formal point: the mother’s presumption is considered Yannai’s own presumption, because after all he was born from her; he is, as it were, her continuation. So the mother’s presumption is really considered his own initial status, and therefore it ought to help him. You can understand it either way. So it says: “For we say in the first chapter of Ketubot that whoever validates her validates her daughter,” another sugya, not important now. “And one can say that we only say ‘place two opposite two’ regarding rabbinic terumah, and two against two there is a rabbinic-level doubt, and in that case they were not stringent. But regarding lineage, where there is a Torah prohibition, they were stringent, and she is prohibited by rabbinic law.” And now here Tosafot already introduces the question whether we are dealing with a rabbinic prohibition or a Torah-level prohibition. This is a topic we will still talk about. It may be that there is a difference in the application of two against two in different prohibitions—rabbinic prohibitions, Torah prohibitions—we’ll talk about that. Okay? On the simple level, what’s the difference between a rabbinic prohibition and a Torah-level prohibition? Think about it. If we do not follow a presumption—if in two against two we do not follow a presumption—then what are we left with? Two against two is a doubt, right? If there is a presumption, the presumption resolves the doubt. If there is no presumption, or we don’t follow the presumption, then a doubt remains. What do we do with a doubt? It depends. If it’s a Torah-level law, we go stringently. If it’s a rabbinic law, we go leniently. Therefore there is a difference between rabbinic law and Torah-level law if we do not follow a presumption. But if we do follow a presumption, then it doesn’t matter. Because then the presumption resolves the doubt; there are no laws of doubt here at all. So pay close attention: if we do not follow the presumption, that doesn’t automatically mean we disqualify. It means the status is one of doubt, and now we apply the laws of doubt. In Torah-level matters we are stringent, in rabbinic matters lenient, in monetary matters we do not extract money based on doubt. Each thing according to its own context. So notice carefully: if we follow the presumption, then there is no doubt and the presumption determines the law. If we do not follow the presumption, that is not some opposite rule; rather, then there is a doubt, and the laws of doubt apply. All the different situations have to be examined on their own terms. In every situation one has to apply the laws of doubt. What?

[Speaker D] If the mother remained in her presumption, then what should Ba’al HaMaor have thought? I don’t get it. If Yannai’s mother remained in her presumption—yes—then what should Ba’al HaMaor have thought?

[Rabbi Michael Abraham] What’s the question here? The same question we’re asking here.

[Speaker D] That’s what Tosafot asked, after all.

[Rabbi Michael Abraham] Why don’t we validate him—after all the mother remains in her presumption, right? And what did he say? We’re not discussing her. We’re discussing the child. Ba’al HaMaor said the same thing. He also asked this question from the Gemara, we just saw it. He asked this question and said: it’s not relevant; we are discussing the child, and the child has no presumption. Right? That’s the bolded passage we saw here. Okay? Therefore, look what Ba’al HaMaor says. “And that which we say in the incident of Yannai, a priest from the outset…” So he says: there, since they were coming to testify about Yannai himself, one cannot say, “Establish Yannai in his presumption,” because according to one group he was invalid from his mother’s womb, and the whole matter preceded him before he was born. Therefore he is a doubtful invalid because his doubt was born with him, and so he has no presumption. So what is his law? The laws of doubt. And since in matters of lineage this is a Torah prohibition, as Tosafot said, what is the law under the rules of doubt? We must disqualify him. Okay? Which is not the case with a challenge of theft—I’m continuing to read Ba’al HaMaor—”which is a disqualification that came later,” it’s a disqualification born in the middle of life. The person was born fit. At some stage two witnesses come and say that he stole, and two other witnesses say no, he didn’t steal. That’s a case where he does have an initial presumption of fitness, and only afterward did the doubt arise. Here we follow the presumption—that’s what Ba’al HaMaor says.

[Speaker F] But how can you testify that someone didn’t steal? I mean, I can understand how you can testify that someone did steal, or any other thing that someone did perform—one can testify about that. But you can’t testify that someone did not perform some act, because you’d have to be with that person twenty-four seven to testify that he didn’t do some act.

[Rabbi Michael Abraham] You can, you can testify, for example, that at the very time you’re saying he stole, I was there and saw that he didn’t steal. He was with me altogether. That’s just contradiction.

[Speaker F] That’s contradiction.

[Rabbi Michael Abraham] Contradiction and not refutation. Refutation is: you witnesses were with me elsewhere. But if I say that the person you are accusing was with me, that’s contradiction.

[Speaker F] So that’s basically the only thing you can say. We saw in the Gemara that you can testify that he did—

[Speaker D] Repentance.

[Rabbi Michael Abraham] No, no, no—that’s already the answer. No, no, we’re talking about testifying that he didn’t steal, not that he repented. That’s already the answer. So how can one testify that he didn’t steal? Yes: at the time you are testifying that he stole, he was with us altogether.

[Speaker D] Or a case where you thought it was theft, but he took it with permission and you didn’t know.

[Rabbi Michael Abraham] For example, yes, that too is possible, right—we saw that it was with permission. Okay. Now regarding the challenge of family defect—regarding the challenge of family defect, Tosafot ask against Rashi: wait, in the case of family defect, what does the Gemara say? In the case of family defect, basically we should have accepted the judges’ testimony, right? Because it’s only a clarification of facts, and we should have accepted the judges’ testimony. Okay, so why do you disqualify them after they signed? Because there there is no bias, and everything is fine. Okay? And what about the witnesses who disqualified him? According to Rashi, what is the law when there is two against two?

[Speaker D] Then it’s a doubtful case, right?

[Rabbi Michael Abraham] If there is two against two, then a doubt remains; we do not follow the presumption.

[Speaker D] Okay, so how does that connect?

[Rabbi Michael Abraham] Yes. Now there is a challenge of family defect. Fine? The Gemara says that even after the judges signed, in a case of family defect we have no concern—they are not interested parties. Okay, and therefore they are valid witnesses, and therefore what? Therefore he should have been fit. Why fit? Why fit? After all there are two witnesses who validate him, but there are also two witnesses who disqualify—

[Speaker D] Him. It’s two against two.

[Rabbi Michael Abraham] Wait, and apparently such a case could not be fit, right? So what does Rashi do? According to Rashi’s own position—according to Ba’al HaMaor it’s excellent, right? Because Ba’al HaMaor argues that if there is two against two, we follow the presumption of fitness. Okay? But according to Rashi, who says that even in two against two we do not follow the presumption of fitness, how are we to understand the Gemara’s second question about family defect? The dispute between Rashi and Ba’al HaMaor dealt with the first question, about a challenge of theft. Now I am asking about the question of family defect. According to Ba’al HaMaor it’s clear, because if it’s family defect then it’s two against two, the second witnesses are valid, so it’s two against two—so why not validate the judge? But according to Rashi—according to Rashi, in two against two we don’t follow the presumption of fitness, so let us say that the judges are not interested parties, fine? So they testify. Well, it’s still two against two.

[Speaker F] But it seems, according to Rashi—I have to ask—according to Rashi it comes out that in practice we accept the incriminating testimony, because either way we’re accepting some testimony.

[Speaker D] No, according to Rashi, if there’s a doubt, then in family defect one can clarify the doubt.

[Speaker F] It seems to me that according to Rashi—

[Speaker E] The first witnesses can’t testify with certainty.

[Speaker D] Wait—

[Rabbi Michael Abraham] Those are already answers.

[Speaker D] First of all, according to Rashi, since it remains in doubt, in a clarification of facts one can clarify the doubt.

[Rabbi Michael Abraham] No. What Rashi said is that if these two witnesses testify about the judge that he is a slave, and the two judges testify that he is not a slave, the judges who testify that he is not a slave are not interested parties. Why? I have no concern that they are lying. Fine, and therefore I accept them. But why do I validate him? Not because I know that he is not a slave, but because I accept the judges’ testimony, because they are not interested parties.

[Speaker D] Because they wouldn’t dare lie in a matter that can be clarified.

[Rabbi Michael Abraham] Right. And therefore they are valid witnesses. But there are two witnesses who say he really is a slave, so that’s two against two. And according to Rashi, in two against two we do not follow a presumption. So what does the Gemara want?

[Speaker D] But wasn’t there a presumption here? In a clarification of facts you can clarify it.

[Rabbi Michael Abraham] No, then clarify it—but they didn’t clarify it. They didn’t clarify it here.

[Speaker D] What do you mean, clarify it? Not testimony. No, again—Rashi.

[Rabbi Michael Abraham] No, you haven’t understood the point.

[Speaker D] I’ll explain again.

[Rabbi Michael Abraham] What does the Gemara mean when it says this is a clarification of facts? After all, Rashi explained—we read that Rashi.

[Speaker A] What Rashi says is that there is no two against two here.

[Rabbi Michael Abraham] No, no—there is two against two here. On the contrary, Rashi says that here there is two against two. Why? The disqualifying witnesses are certainly believed, right? These are two witnesses who say that the judge is a slave. Why are the two judges who testify that he is not a slave also believed? Wait, wait—because after all they want to present him as fit. The Gemara says no: we are not concerned that they are lying. Why? Because if they were lying, they would be afraid the matter would be exposed. Therefore we are not concerned that they are lying. Not that it was exposed and we know the truth—that’s not what the Gemara says. Rather, since there is a good chance it will be exposed, we do not suspect these judges of lying. Therefore they are two valid witnesses. Fine. So now I have the first two witnesses, who are valid, and the second two witnesses are also valid. So it’s two against two. Why does the Gemara say that he should be fit?

[Speaker D] But before the judges had him sign, they checked into him.

[Rabbi Michael Abraham] And the witnesses too, before they testified that he was invalid, checked into him and found that he was a slave. What’s the difference? Every two people who testify have checked and are testifying to what they checked. Here it’s two against two. This is a very great question on Rashi. After all, you, Rashi, according to your own approach, do not go like Ba’al HaMaor. You argue that in two against two we do not follow a presumption. And therefore you tell me that in the first law, in a challenge of theft, he really should have been disqualified. Well then, why in a challenge of family defect should he not be disqualified? What does the Gemara want with the challenge of family defect? Just establish it as family defect and everything is fine, right? So Tosafot Rid says here as follows: “And if it is a challenge of family defect, then those two who came to disqualify him”—those two, sorry—”who came to disqualify him did not testify to a clear testimony about him; rather, they testified that in his family a slave had become mixed in.” “Mixed in” meaning literally mixed in, yes?

[Speaker D] That some slave got mixed in there. And the whole family—wait, wait—the first two testified based on doubt.

[Rabbi Michael Abraham] The first two testified that within his family we know that some slave had been mixed in there, and who knows—perhaps this judge is a descendant of that slave and is therefore invalid. “And the whole family is under the presumption of doubtful invalidity, lest he be descended from the slave, and this judge too in particular. And these testify”—who are “these”? The judges—

[Speaker D] Testify—

[Rabbi Michael Abraham] —that he is not one of the doubtful ones, that it is clear to us that he comes from valid lineage. And they are not contradicting the witnesses; rather, they remove this one from the doubtful invalidity, so that he should not be doubtful like the rest of the family.”

[Speaker F] And that’s a clarification of facts—not that there was no slave mixed into the family. There may have been a slave mixed into the family, but according to the judge, this person isn’t connected to that.

[Rabbi Michael Abraham] Exactly. And therefore there is no contradiction here. So if those judges can testify, and they are not interested parties, then everything is fine. Of course, if they are interested parties then it’s a problem, but if they are not interested parties then everything is fine. Okay?

[Speaker D] At this stage there’s one more point here: the testimony of the first ones is doubtful and the testimony of the second ones is certain, so certainty versus uncertainty—

[Rabbi Michael Abraham] It’s the same thing. There’s no contradiction. The moment your testimony is only a doubt, then when I testify that it’s certain, I’ve basically resolved your doubt. Say you testify that this thing is possibly pork, and I testify that it’s cow meat, then I’m not clashing with you at all. You agree that there’s a possibility it’s cow and a possibility it’s pork, and I resolved the doubt you were in, that’s all. So there’s no contradiction between us at all. Okay? It’s exactly the same thing. So that’s what Tosafot Rid says, okay? Tosafot Rid also goes with Rashi’s approach, that this is a case of involvement in the matter, and a two-against-two case really ought to be invalid, and we don’t rely on the presumption of fitness. Tosafot Rid is in Rashi’s camp. And the Rif is also in Rashi’s camp; I told you, the Rif also learns like Rashi. And the Razah and Baal HaMaor are against them. Okay? By the way, what happens according to Baal HaMaor in a challenge involving family blemish? If we’re talking about family blemish, then if…

[Speaker E] If we’re talking

[Rabbi Michael Abraham] about family blemish, then what? So why are you telling me that this isn’t…

[Speaker E] From his perspective, what? We uphold the person on the basis of a presumption of fitness.

[Rabbi Michael Abraham] There’s a presumption of fitness, and therefore what?

[Speaker E] We keep him there. So the two-against-two cancels out, and we’re left with the presumption, we leave

[Speaker A] him in his original status.

[Rabbi Michael Abraham] So why do we need to get to the point that this is merely clarification of a fact? According to Baal HaMaor’s view, there’s no problem of involvement in the testimony, right? That doesn’t play any role here. So why does the Talmud say that this is merely clarification of a fact?

[Speaker E] I have to think this through both before signing and after signing. Right, is it like—we’re trying to solve the problem before signing and after signing?

[Rabbi Michael Abraham] Right. Now I’m asking: so what, is this talking about after the signing or before the signing? Let’s read Baal HaMaor himself. I went back to the passage where I stopped earlier in Baal HaMaor, in the first section of Baal HaMaor, in the second half of the first section. “And so too we say in a challenge of family blemish, since it is merely clarification of a fact, and even after they signed, they testify before him and he signs. And we established: and even after they signed, they testify before him and he signs.” What does that mean?

[Speaker D] Even after—if they signed and afterward testified.

[Speaker F] We’re not concerned that the judges are involved in the matter.

[Rabbi Michael Abraham] We’re not concerned that the judge is lying, but from the outset there was no such concern. According to Baal HaMaor there’s no such concern at all. That concern is Rashi’s invention.

[Speaker D] Why doesn’t he

[Rabbi Michael Abraham] establish it as

[Speaker D] family blemish? What? That’s why he doesn’t establish it as family blemish, but only as a challenge of robbery?

[Rabbi Michael Abraham] No, no. He says: “in a challenge of family blemish, since it is merely clarification of a fact, and even after they signed, they testify before him and he signs.”

[Speaker D] But

[Speaker E] There still isn’t a problem of two against two here? Why? Because it’s clarification of a fact and not testimony.

[Rabbi Michael Abraham] If there were a problem of

[Speaker E] two against two—if there were such a problem—then we’d follow the presumption and he would be fit.

[Rabbi Michael Abraham] Right, so that’s fine, that’s what they’re saying, no? That’s the difficulty they raise. If it were a challenge of family blemish, if we had a two-against-two case here, there’d be no problem because there’s a presumption of fitness, and he should have been validated even after they signed. And as for involvement in testimony after the signing—according to Baal HaMaor, that doesn’t exist; that’s only Rashi. So he should have explained the Talmud’s difficulty in terms of family blemish without any connection to the question whether this is merely clarification of a fact or not. He should have explained: whether it’s family blemish or robbery, after they signed it’s two against two and he should be fit—why not? What difference does family blemish or robbery make? Why should that matter? According to his approach there’s no involvement in the matter, so it has nothing to do with family blemish. What is this whole story according to Baal HaMaor? This distinction between family blemish and all the rest of it is very unclear. And he himself also brings in this whole issue of clarification of a fact. I’m not. So what if it’s clarification of a fact—what’s the problem? Look, it could be—I’m hesitating a bit here—because if we testify about him that he is a slave, what does “slave” mean? Slave means a Canaanite slave. A Canaanite slave or a Hebrew slave with respect to serving as a judge. If it’s a Hebrew slave, then a Hebrew slave is someone sold for six years; he was a free man and was sold, right? So that’s a case where he had a presumption of fitness and then became a slave—or didn’t become a slave; that’s the dispute. But with a Canaanite slave, it could be that he was born a slave.

[Speaker F] Wait, a Hebrew slave isn’t disqualified from serving as a judge?

[Rabbi Michael Abraham] Yes, also disqualified.

[Speaker F] Even when he’s freed? Also disqualified. What? After being freed, a Hebrew slave is also disqualified?

[Rabbi Michael Abraham] No, no, not after being freed—while he’s a slave now.

[Speaker F] When he stops being a slave, it’s like someone who repented, basically—he returned to his valid status. Yes, but if he’s a Canaanite slave, he never had

[Speaker E] fitness.

[Rabbi Michael Abraham] Exactly. And then you have two witnesses saying he is a Canaanite slave and two witnesses saying he is not a Canaanite slave, and then he has no presumption. If he has no presumption, then what should happen here? He should be disqualified, right? So on that he says yes, but this is only clarification of a fact, and because it’s only clarification of a fact, we accept the testimony of the judges, and we basically say: after all, the first testimony is doubtful testimony—that maybe he is a slave, maybe he isn’t—and the second testimony says we clarified that he is not a slave. And if so, we would accept that, and therefore he should have been fit. Maybe that’s the understanding of the Talmud according to Baal HaMaor, but it’s really very difficult; I don’t know how to explain him. It’s strange. And he brings it as if it’s obvious, as if there’s no problem here at all. Let’s just finish the Talmudic passage for a moment. So the Talmud answers: “No, I could still say to you that it is a challenge of robbery.” Right, so we were basically at the difficulty now: you can’t establish it as a challenge of robbery and not as a challenge of family blemish. According to Rashi, a challenge of robbery contradicts the first ruling; a challenge of family blemish contradicts the second ruling. According to Baal HaMaor, both kinds of challenge contradict the second ruling; in both cases he should have been fit. Okay, so the Talmud says in answer: “No, I could still say to you that it is a challenge of robbery.” We’re talking here about a challenge of robbery. Let’s work it out for a moment—so what?

[Speaker F] And in the end it rules that it’s a challenge of robbery.

[Rabbi Michael Abraham] We’re talking here about a challenge of robbery, and then what was the problem? According to Rashi, the problem was: how can you validate the first ruling before they signed, right? And according to Baal HaMaor, the question is: why don’t you validate

[Speaker A] in the second ruling, right?

[Rabbi Michael Abraham] Why don’t you validate in the second ruling? After all, it’s two against two, and you should have followed the presumption of fitness. Moving on—so what does the Talmud say? “No, I could still say to you that it is a challenge of robbery, and these say: we know about him that he repented.” What does that mean?

[Speaker E] The Talmud says this isn’t two against two—they’re talking about different things. These say that he once stole, and these say that afterward he repented.

[Speaker D] They agree that he was a robber, yes, but the judges know that afterward he also repented.

[Rabbi Michael Abraham] And therefore what? Then what? Then what?

[Speaker E] He returned to his presumption of fitness. No, no—it’s not two against two; they’re talking about different things, testifying about different things.

[Rabbi Michael Abraham] So it isn’t two against two at all. I also agree that he was a robber; I’m only claiming that he repented. And you too say that he was a robber; you just don’t know whether he didn’t repent—we have no disagreement. He was a robber and repented, so therefore he’s fit. This isn’t two against two at all—that’s the answer. Okay, now I’m asking: how would Baal HaMaor explain this? According to Baal HaMaor, what was the question? According to Baal HaMaor, the question was: if this is a challenge of robbery, then what doesn’t fit? The presumption. Meaning what—the first ruling or the second?

[Speaker E] The second doesn’t fit.

[Rabbi Michael Abraham] The second doesn’t fit, right? The second ruling doesn’t fit because you have two against two and you have a presumption of fitness, and there is a presumption of fitness so he should have been fit. Why do you disqualify him after they signed? The second ruling doesn’t fit. So what do you need to explain to me? Why he is disqualified, not why he is fit. The question was: why is he disqualified? He ought to be fit, since in two against two we follow the presumption. And what does the Talmud explain? “These say: we know about him that he repented.” I don’t understand. So if there’s no contradiction, then it’s not two against two, and then of course he should be fit in the second ruling. So what’s the question? How do we explain the second ruling according to Baal HaMaor? Maybe.

[Speaker E] Maybe here he would say—I thought about this—maybe here he thinks there is involvement in the matter. Specifically here, let’s say, involvement in the matter, and then they give testimony, so it’s not two against two, and therefore their testimony is doubtful. Why? Because after signing they’re already involved in the matter.

[Rabbi Michael Abraham] So he’s bringing in involvement in the matter—then what does that have to do with repentance? Then just say there’s involvement in the matter.

[Speaker E] So that’s it,

[Rabbi Michael Abraham] that’s what I said at the beginning. Then just say they’re involved in the matter and that’s it. The answer is that they’re involved in the matter. Look at Baal HaMaor himself: “And we established”—I’m going back again to Baal HaMaor, each time moving one more segment in Baal HaMaor—“And we established: no, I could still say to you that it is robbery.” That’s the final answer; he’s now explaining the answer. “And this is where these say: we know of him that he repented, for originally he stood under a presumption of disqualification, and it turns out that when they signed, he still stood under his presumption of disqualification. Therefore, after they signed, they do not testify concerning him and sign.” What is he explaining?

[Speaker D] That at the time of signing he was still under a presumption of disqualification.

[Rabbi Michael Abraham] But he signed—we’re talking after they signed, right? Now he signed—sorry, they signed, not he signed. They signed, right?

[Speaker D] Now at the time of signing he had a presumption of

[Rabbi Michael Abraham] disqualification. No, sorry—he signed too.

[Speaker D] He too can,

[Rabbi Michael Abraham] it could be that he signed too. Everyone signed. Now witnesses came and said: this man is a robber, right? The judges come and say: what are you talking about, he’s not a robber. So we have two against two, and the question was: if it’s two against two, why don’t we give him a presumption of fitness? Answer—what’s the answer? It’s that at the time of signing he had the status of a robber. Now you want to validate him, but in a two-against-two case, according to Baal HaMaor, we follow the presumption, and here he had a presumption of disqualification, not a presumption of fitness. Therefore he remains disqualified. And that really is an answer to the second ruling, not to the first.

[Speaker E] But we’re also saying that here too it isn’t two against two.

[Rabbi Michael Abraham] I didn’t understand?

[Speaker E] We said that here there isn’t two against two.

[Rabbi Michael Abraham] There is two against two.

[Speaker E] Why? These testify about the robbery, and these testify about the repentance.

[Rabbi Michael Abraham] No, he apparently understands that they also testify that he didn’t repent. Ah, because otherwise it’s obvious. There is a two-against-two case here, that’s clear. Baal HaMaor is only claiming that the presumption existing before the two-against-two is a presumption of disqualification, not a presumption of fitness. That’s Baal HaMaor’s answer. Because they

[Speaker E] agree that he stole.

[Rabbi Michael Abraham] They claim that he repented.

[Speaker E] And basically he isn’t changing the description of the case, but changing the way we relate to it, the evaluation he made, because at the beginning he said two against two.

[Rabbi Michael Abraham] They themselves agree—they themselves agree that when they signed he was a robber, right? Even they agree. Because they say: we’re only telling you that after the signing, he repented. What does that mean?

[Speaker F] No, but the judges agree that once he was a robber, but between the time he was a robber and the signing he repented. For his signing! Before he signed, he repented. Right.

[Rabbi Michael Abraham] But when they signed—when they signed—he was still a robber.

[Speaker A] Only that both of them,

[Rabbi Michael Abraham] yes, so basically when they sat down to judge, he sat there with the status of a robber. Now you want to include him in the court because now he repented. So you have two against two on that, but there’s already a presumption of disqualification from before. The presumption of disqualification doesn’t let you, because in a two-against-two case we follow the presumption according to Baal HaMaor. Right?

[Speaker A] More than that—it was an invalid court, the fact that they knew he was a robber and sat with him.

[Rabbi Michael Abraham] No, so they say fine, but now when he signs he’s fit.

[Speaker A] And at the time they signed?

[Rabbi Michael Abraham] They signed, so they were fit, and when he signs he too is fit.

[Speaker D] He repented before they signed?

[Rabbi Michael Abraham] When he signs he too is fit.

[Speaker F] Is it permitted for two judges to sit with an invalid judge? That’s the problem in the question.

[Rabbi Michael Abraham] You can see here—look—they probably didn’t know he was invalid, but after it became known—why?

[Speaker F] But just now we said they knew he was invalid and afterward repented, so now they’re testifying that they knew he was invalid, they signed,

[Rabbi Michael Abraham] No, no,

[Speaker F] no, that’s not it—not that; he repented.

[Rabbi Michael Abraham] No, they aren’t saying that they know he was invalid. It doesn’t say that. He was invalid; it doesn’t say what they knew and what they didn’t know. It says that he was invalid at the time of signing. They know that he repented. Maybe they found out he was a robber from these two witnesses who came and said he was a robber, and then he says okay, I’ll…

[Speaker F] Does “repented” mean he literally returned the stolen object, or is this some kind of spiritual repentance?

[Rabbi Michael Abraham] Yes—without that he doesn’t become fit again. He has to return the stolen item. Okay, so according to Baal HaMaor it comes out that we are indeed answering the latter clause. And what we’re answering is: true, it’s two against two, and apparently he should have been fit, but no—there is a presumption of disqualification here, not a presumption of fitness. And therefore he is disqualified. That’s the answer. So in the bottom line, Rashi and Baal HaMaor remain, even in the conclusion, in their dispute. According to Baal HaMaor, in a doubt we follow the presumption, in a two-against-two doubt; according to Rashi, only in ordinary doubts—in a two-against-two doubt we do not follow the presumption. And just to finish Baal HaMaor’s words, look at the last line: “And the Rif, of blessed memory, wrote all this in reverse in the Halakhot, and the Rosh brought it, and I have written what seems to me correct and clear.” The Rif of course wrote the opposite—he wrote like Rashi, right, we spoke about that—that this difficulty is on the first clause and not on the latter clause, and so on. “And I disagree with them,” says Baal HaMaor. Meaning: the Rif and Rashi are one camp, together with Tosafot Rid, and opposite them stand Baal HaMaor and Rabbeinu Hananel, and the dispute is over the question: what happens when you have two against two—do we follow the presumption or do we not follow the presumption? Okay?

[Speaker E] The question is what to do with the Rashi—a difficulty from Rashi against Rashi.

[Rabbi Michael Abraham] We’ll get there, we’ll get there. And we have a difficulty on Rashi from Rashi in tractate Kiddushin; we have a difficulty on our Rashi, right, that also has to be added.

[Speaker C] Wait, who is Rabbeinu Hananel, sorry?

[Rabbi Michael Abraham] Okay, I didn’t bring him here, I only mentioned that he goes with Baal HaMaor. Right, Rabbeinu Hananel.

[Speaker C] There’s

[Rabbi Michael Abraham] also, here in the passage, Rav Hisda, whom I also mark as R”H

[Speaker A] in the tractate, yes yes,

[Rabbi Michael Abraham] that’s in the next passage in tractate Shevuot. We’ll talk about that later. Okay, so we’ll stop here. Don’t tell me, as far as making a living—well, I’ll send you a little more livelihood from tractate Yevamot. Fine. Okay.

[Speaker A] Okay, I wanted to ask something. I don’t know if it’s just a misunderstanding or if it’s a real question. From what I understand here from Rashi, the issue of what a challenge to family means is that there is some testimony that there is a blemish in this family—for our purposes, say he’s a slave. But I know from another source—I mean, I learned in Even HaEzer—that what is attributed here to Rashi is actually Maimonides’ view. Rashi says that a rumor emerged about some blemish in the family, that that’s the disqualification. Meaning, there’s a question here from Rashi against Rashi.

[Rabbi Michael Abraham] I didn’t understand—what do you mean? As opposed to what? A rumor emerged about a blemish in the family, as opposed to what? Sorry? A rumor emerged about a blemish in the family, as opposed to what?

[Speaker A] As opposed to two witnesses coming and saying that a disqualification is mixed in there.

[Rabbi Michael Abraham] Is it rumor or witnesses—that’s what you mean?

[Speaker A] Yes, Rashi versus Maimonides. Rashi says a rumor emerged, so according to the Rashi that the Shulchan Arukh brings, basically we don’t have a question of two against

[Rabbi Michael Abraham] two at all, we have a rumor. No, but here in the Talmud itself it says two against two. There are challenges that are based on rumor and challenges that are based on witnesses. Obviously once there are witnesses, the witnesses override the rumor. But if there are witnesses challenging, then it’s two against two.

[Speaker E] There are two types of challenge. The way he explains Rashi is something similar—that the first witnesses testify about a doubt and not about a certainty.

[Rabbi Michael Abraham] Yes, right. Basically in our case, in our case too, these witnesses are ultimately also like a rumor, because they testify that there was a slave in the family, but they can’t say anything specifically about this person. So in the end it’s similar to a rumor. It creates some doubt about him. But it doesn’t matter—even if it were actual witnesses, that wouldn’t be a contradiction. There’s this kind of challenge and that kind of challenge; it depends on the context. Okay, so we’ll stop here.

[Speaker A] Thank you very much. Thank you very much.

[Rabbi Michael Abraham] See you. Bye-bye. See you.