Ketubot, Chapter 2, Lesson 14

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[Rabbi Michael Abraham] Why? It’s two against two, right? What happened there was two against two. They overruled it. Who overruled it? The second two overruled the first ones. No, but on page 19b there were also two. Fine, but I’m saying that on page 19b there were also two, and still it remained two against two. What’s the difference? Why not here? Why is the document invalid here? The document—sorry—valid. We don’t believe them. The document is valid. The lender can now collect money. But why isn’t this two against two? Because the testimony—we don’t need the… they don’t have the mouth that prohibited at all. No, there too there wasn’t the mouth that prohibited. When other witnesses validate it, there’s no “the mouth that prohibited.” And still it was two against two. We have an obvious certainty against the two witnesses who are disqualifying it. Right? That’s what happened there. Now here too, seemingly the same thing, no? The testimony is validated, we have an obvious certainty, and opposite that we have disqualifying witnesses. No. Here not, because the witnesses disqualifying it are the very same witnesses who signed the document. That’s not like page 19b. Now decide one of two options: either you think the testimony in the document is validated by the validating witnesses, in which case you have a valid document. The witnesses who come to disqualify it are themselves the witnesses who first said the document was valid. You can’t view that as two against two. You have to decide which testimony they’re giving. The first one—and then the document is valid—or the second one—and then the document is completely invalid. But you can’t accept both testimonies and make that into two against two. That’s really the whole difference between the sugya here and the sugya on page 19b. In the sugya here there is no option of two against two, and that’s why it doesn’t even come up in the Talmudic discussion, unlike what happens there. Because here, these two and those two are the same two. So decide: if you accept the second pair, then there is no first pair; if you accept the first pair, then there is no second pair. You can’t take two witnesses and turn them into two camps against each other—they’re against themselves. “Let Yosi strike Yosi.” There’s no such thing. Okay? So that’s the difference.

Now, this difference creates lots of complications, and that’s what we’re going to deal with in the Talmud. But first of all you have to understand that this is the starting point. The starting point is that this is not like the Talmud on page 19b, because the witnesses who come to disqualify the document are the same witnesses who signed it, and the possibility of two against two does not exist. Meaning, really all the substance of the sugya is not in what’s written, but in what isn’t written. Like on page 19b, the Talmud asked: how is the document invalid, if it’s two against two? How is the document—sorry—valid, if it’s two against two? Right? The Talmud asked there, in the statement itself it says that the document is valid. And the entire discussion started from the two against two, and whether in a rabbinic doubt of two against two we follow a presumption or don’t follow a presumption—that whole discussion there in the Talmud. Right? Here too it’s the same. The document is valid—that is, we do not accept their testimony in the latter clause because they don’t have “the mouth that prohibited.” The question is why. And it doesn’t say there why. We don’t accept their testimony—why not? So the two against two issue that comes up there in the Talmud, not in the statement itself, does not come up here. But here other things do come up, and once again we discover that the real substance of the sugya is in the Talmud, not in the Mishnah. Meaning, in the question on the Mishnah, in the explanation of what the Mishnah says. What the Mishnah itself says looks almost identical on page 19b and here too. But it isn’t. Both here and there it says that they are disqualified, but there when it says they are disqualified it really means two against two. And here when it says they are disqualified, they are really disqualified. Now the question is why. All right? Why what? Meaning, not “why” in the sense of why this isn’t two against two, but “why” in the sense of why you choose their first testimony and not their second testimony. Choose the second testimony, and then the document will be invalid—not valid, completely invalid, not two against two. That too needs to be explained. Why there’s no two against two here, I understand, but that still isn’t enough. You have to say: okay, there’s no two against two, so now you have to decide either I accept the testimony in the signature itself that there was a loan, or I accept the testimony being said now, that they were disqualified. You can’t take both and make two against two out of them, but one of the two you do have to accept. Which one? That’s the question the Talmud addresses.

There’s a very good reason here. Of course there is—the Talmud talks about it. We’re getting to the Talmud in a second. That’s the Talmud. That’s the Talmud. Okay? So now let’s look at the Talmud. After the Mishnah on page 18b: Rami bar Hama said: They taught this only where they said, “We were coerced because of money,” but if they said, “We were coerced because of threats to life,” then they are believed. What is he saying? The Mishnah that talks about “we were coerced”—when we read that simply, what does it mean? Threats to life. Threats to life. Because that’s what’s called coercion; financial coercion isn’t really coercion. So, life-threatening coercion. Rami bar Hama says: that can’t be. The Mishnah is not talking about coercion by threats to life. Why? Because if it were talking about threats to life, then why wouldn’t they be believed? They really were coerced, everything is fine—why shouldn’t they be believed? Financial coercion—that I can explain in the Mishnah. How? Let’s explain both the first clause and the latter clause. In the first clause it says that if they have “the mouth that prohibited,” they are believed. In the latter clause it says that if they do not have “the mouth that prohibited,” they are not believed. Okay? Let’s start with the latter clause. Why aren’t they believed in the latter clause? Financial coercion—was I allowed to sign such a document? If they threaten to take my money if I don’t sign the document, and the document is false, okay? they’ll take my money—then I’m forbidden to sign the document. “Who says my blood is redder?” right? I can’t harm someone else’s money in order to save my own money. Right? So I’m forbidden to yield to financial coercion. No, no—money? You’re talking about life. I’m talking about money. Money? Yes. If they threaten to take my money if I don’t sign a false document. I’m forbidden to sign the document. Why? Let them take my money. What’s better—that they take my money? Is my blood redder than his blood? “Blood” here in the sense of “money,” yes? In the Talmud it’s the same word. I’m not preferable to him. Okay, so that’s why financial coercion—I was really forbidden to yield. In coercion by threats to life, certainly yes, because there is no rule of “be killed rather than transgress” here. If they threaten to kill me, then I can sign the document even though it’s false—what can I do? I’m not required to give up my life in order to save someone else’s money. So Rami bar Hama says like this: if the Mishnah were talking about “we were coerced” in the simple sense, what would that mean? Threats to life. Threats to life. Because that’s what’s called coercion; financial coercion isn’t really coercion. So, life-threatening coercion. Rami bar Hama says: that can’t be. The Mishnah is not talking about threats to life. Why? Because if it were talking about threats to life, then why shouldn’t they be believed? They really were coerced, everything is fine—why shouldn’t they be believed? Financial coercion—that I can explain in the Mishnah. How? Let’s explain both the first clause and the latter clause. In the first clause it says that if they have “the mouth that prohibited,” they are believed. In the latter clause it says that if they do not have “the mouth that prohibited,” they are not believed. Okay? Let’s start with the latter clause. Why aren’t they believed in the latter clause? They don’t have “the mouth that prohibited”—so what? They cannot retract and testify differently. What? They cannot retract and testify differently. No—why, why “they cannot retract and testify differently”? You came and said the document is good, and then you said the document is not good. So what does that have to do with coercion because of money or because of life? “One may not retract and testify differently” would apply even in threats to life. Right, because a person cannot declare himself wicked. They are saying, they are claiming, that they performed a forbidden act. Meaning, they make themselves out to be wicked in this testimony. A person cannot declare himself wicked. Therefore they are not believed to say “we signed because of financial coercion.”

The big question is why in the first clause it says that if they have “the mouth that prohibited,” then they are believed. Why? After all, a person cannot declare himself wicked. Why do I care that he has “the mouth that prohibited”? Again, let me sharpen the question more. Why really can a person not declare himself wicked? That may be the topic of the next class, maybe under the heading of splitting a statement. A relative is disqualified, right? Simply speaking, it means you are not believed to testify about yourself. The question is why it says specifically “wicked” and not just that a person is not believed to testify about himself, not דווקא to make himself wicked. It may be that it specifically means to make yourself wicked. Because to make yourself wicked one might have said: that’s like an admission by a litigant. Just as in monetary law, if I admit something against myself we accept it. So to make myself wicked—I’m not believed. Even to make myself wicked I’m not believed; all the more so when I’m testifying something in my own favor I won’t be believed. So therefore the basic disqualification—this is why it always appears as a pair of statements: a person is considered his own relative, and a person cannot declare himself wicked. A person is his own relative—yes, I and myself are relatives; you know, we’re brothers, we have the same parents, right? Me and myself. Meaning, a person is a private case of a relative, right? Maybe the closest case. Therefore the Talmud says: a person cannot testify about himself. Is this disqualification because of concern about the reliability of his words? No, it’s a scriptural decree. There’s a passage in Bava Batra, and it’s also brought explicitly in Maimonides and in the Shulchan Arukh, that when the Torah disqualified testimony of relatives it was not because of suspicion that they lie, but by scriptural decree. Even Moses and Aaron? Yes. “Fathers shall not be put to death because of sons”—that is interpreted as “fathers shall not be put to death through the testimony of sons.” And from here they learn that relatives are disqualified from testimony. All right? One can try to suggest some legal explanation for this, but it’s not an explanation connected to reliability. It’s not a problem that I suspect they’re lying. There is a presumption of fitness, and a person does not sin for someone else; even for his relative there is no concern that he will sin. For himself that’s another matter, but for his relative there is no concern that a person will sin—one does not sin for someone else. So why are they disqualified? Because the Torah disqualified them: “fathers shall not [be put to death] through the testimony of sons.”

Okay, if so, what does “the mouth that prohibited” help? If the problem were their reliability—meaning, maybe we don’t believe them, there’s concern they are lying—then I understand: if I wanted to lie, I could have remained silent, I wouldn’t have validated the document. So believe me that I’m not lying. I understand that: “the mouth that prohibited” can save them from a concern about reliability. But if the problem is what lawyers call admissibility, not reliability—the testimony is inadmissible not because there is concern they are lying—then what good does “the mouth that prohibited” do for me? Right? It’s like—I’ll maybe give you examples that we spoke about at the beginning when we talked about migo at the beginning of the semester. Suppose relative witnesses have a migo. Would the migo help them? Relative witnesses come to testify about their relative and they have a migo, in some form, doesn’t matter right now—would that help? Seemingly not. Why not? A migo proves that they are not lying, right? But my problem with relatives is not concern that they are lying. Even as it is, I know you’re not lying. I still don’t accept your testimony even though you’re not lying. So what good does it do if you prove to me that you’re not lying? A migo, unlike another kind of evidence—we talked about this back when we discussed migo—is evidence about the person, not about the matter itself. A migo doesn’t prove that the testimony is true; it proves that they themselves are not lying right now, because if they wanted to lie they could have lied more effectively. That’s why I gave that example. Suppose, in testimony to permit a woman to remarry, someone comes and testifies that her husband died, and we’re worried that maybe he didn’t identify him properly. That’s not concern about lying but concern that maybe he just didn’t identify him correctly—maybe the face was distorted, maybe he doesn’t know him well, saw him from far away, whatever, it’s unclear. Suppose he has a migo. He himself was the one who said she was married; he could have not said she was married at all, in which case he also wouldn’t need to permit her. He has a migo. Would that help? Obviously not, because my problem with him is not concern that he’s lying. My problem is maybe you didn’t see correctly. So what good does a migo do—“if I wanted to lie I could have lied better”—nobody says you want to lie. We’re just concerned that maybe you didn’t see well. That’s all. That’s called imagination, that he’s imagining. So a migo won’t help for something like that. And why? Because the migo is not evidence that the dead man really was that woman’s husband. The migo offers no evidence for that in any way. The migo only proves that I’m not lying right now. Okay? And if my concern about the person is not that he is lying, what good does the migo do? Same thing here. If “a person cannot declare himself wicked” is because he is like a relative, then there is really no concern of lying here. This is a problem of admissibility, not of reliability. So what does “the mouth that prohibited” help?

Wait—maybe “the mouth that prohibited” isn’t about… it’s not a migo, it’s not… and therefore what? What does “the mouth that prohibited” prove? Reliability? Another mechanism—what? What? What does it prove? It proves that they are not lying. By another mechanism, not the mechanism of migo. But it proves they aren’t lying, doesn’t it? What else does it prove? So what good does it do to prove they aren’t lying if I am disqualifying them not because of concern that they are lying? Not the question. If they hadn’t said anything, then the document wouldn’t be validated, right? Right. And now that they are saying it, this is “the mouth that prohibited.” If they wanted, they could have stayed silent. If they wanted, they could have stayed silent? No, that’s Rashi—but there’s another mechanism… No, it doesn’t matter, both Rashi and Tosafot, it doesn’t matter. Maybe “the mouth that prohibited” applies to the document, not to the witnesses. What do you mean? As if we ask them: are you saying here a validation of the document? The bottom line is no. Why? Because of “the mouth that prohibited”—the mouth that prohibited is the mouth that permitted. But then “the mouth that prohibited” is not something that proves the credibility of the witnesses—that’s what you’re claiming? Rather, it does something else? Regarding whether I hear prohibition here or not, that’s the law of “the mouth that prohibited.” So I’m saying: in the final analysis, I didn’t hear a validation of the document here. So you’re really saying that “the mouth that prohibited” is not evidence that they are speaking the truth, but rather it cancels the validation. Basically you’re saying: they validated the document and said, yes, but we were disqualified. “The mouth that prohibited” is really saying it’s as if we never validated the document. Right? We didn’t validate it. So that has a big implication. What? We may talk about that later. What this really means is that after their “mouth that prohibited,” the document is not invalidated; it is simply not validated. Right? Right. I said earlier that in the first clause, when they have “the mouth that prohibited,” we tear up the document, just like on page 19b. Right? Now the claim is that this is not so. Rather, “the mouth that prohibited” only says that our validation is erased; we did not validate it. But then it really comes out that the document is not invalidated, it is only unvalidated. Fine—bring other witnesses, they’ll validate it, everything will be okay, but the document is only unvalidated, that’s all. It is not invalidated. Okay? What’s the practical difference? What? What’s the practical difference? For example, regarding seizure. When the document is not invalidated… for example regarding seizure when there’s two against two or I don’t know, in doubtful situations maybe you can seize. Why? “The mouth that prohibited”—bring testimony from elsewhere. The document is unvalidated; there is a document. Apparently not, apparently not. Why does “the mouth that prohibited” say the document is unvalidated? Because “the mouth that prohibited” is really saying—we talked about one of the mechanisms: if you accept what I prohibited, then accept what I permitted. You can’t do half and half; either I’m believed about the whole thing or I’m not believed at all. So what do you want to tell me? You want to tell me I’m not believed to make myself wicked? Fine, then I’m not believed at all—don’t accept the validation either. And then what remains? That the document remains unvalidated. So in practice it comes out that they really are believed in that they disqualified themselves, meaning that the document cannot be used to collect. Aren’t we already entering the issue of splitting a statement here? Whether we can accept part of what they say and not part? So Tosafot goes into that, and we’ll talk about that in the classes on splitting statements. Right now I’m still leaving that aside. So that’s one possibility, and then the claim is that “the mouth that prohibited” really solves the problem of “a person cannot declare himself wicked.” What does it do? It doesn’t really prove they are telling the truth in saying they were coerced or disqualified or something like that; it simply cancels the validation they gave. Their first testimony? Not the first—the first half of the second testimony. Yes, the first half of the second testimony it cancels. Okay? And then indeed that’s Rami bar Hama.

So what Rami bar Hama is really saying is that “the mouth that prohibited,” when present in the first clause, allows them to make themselves wicked—or in other words, cancels the validation they performed. And then the document remains hanging in the air; practical differences maybe for seizure or other things. If there is no “mouth that prohibited,” why are they disqualified? In the latter clause, yes? So then why are they believed? If they don’t have “the mouth that prohibited”… sorry. They are not believed. They are not disqualified—the signature is not disqualified, meaning they are not believed to say they are disqualified. Yes, it’s always a question what “not disqualified” means. Their second testimony is not accepted, yes? That’s the meaning. Because a person cannot declare himself wicked. A person cannot declare himself wicked, and the document is validated because of his testimony. Not because there are two against something, not because of the evidentiary weight, but because a person cannot declare himself wicked. That’s all. All right?

Just an anecdote: you know that this whole issue of “a person cannot declare himself wicked” actually made legal headlines in the United States in the Miranda case. I think it was in 1975 or something like that. And following it, the Fifth Amendment to the American Constitution took shape—the right to remain silent. A person does not incriminate himself—that’s basically the right to remain silent. You have to tell a person when he’s arrested, always in the movies, right? You have the right to remain silent and to get a lawyer—that’s the Fifth Amendment, basically, where they tell a person his rights. So that ruling, Miranda, brings the Talmud. The non-Jewish judge there cited the Talmud, “a person cannot declare himself wicked,” and Maimonides on this Talmudic passage. He brought all kinds of such sources there and explained that self-incrimination cannot be accepted, because there is concern that maybe—as Maimonides even writes somewhere—maybe he is one of the insane. Why on earth would he make himself wicked? It makes no sense. Why would a person make himself wicked? Maybe he has some kind of madness, and then you can’t accept his testimony—you don’t know what kind of insanity seized him when he did that. But in the simple meaning of the Talmud, that is of course not it. The plain meaning of the Talmud is that this is a question of admissibility, not reliability. Because according to that explanation it’s reliability. The plain meaning of the Talmud is admissibility, not reliability. Even if somehow this comes out in your favor, it changes nothing. In the end we do not accept your testimony; it is not admissible. In Maimonides too one can prove that this is so. He has some contradiction with another source, but in Maimonides too this is probably the case, and therefore this interpretation of “a person cannot declare himself wicked,” which was born in Miranda and then copied, of course, by quite a few judges in Israel from that American judge, is simply wrong. In the Talmud it is quite clear that “a person cannot declare himself wicked” is an issue of admissibility, not reliability. And all the concerns—maybe he was tortured by the police—yes, those are basically the explanations given here for why self-incrimination is not accepted. Even though an admission is the queen of evidence, that’s how lawyers relate to it. But self-incrimination is not accepted. So the explanations usually given are: who knows how they extracted that confession from him, maybe they tortured him in the police station, didn’t let him sleep, all kinds of things of that sort—which is a continuation of Maimonides’ approach. Because Maimonides says: if a person isn’t insane, why would he incriminate himself? So probably there were some reasons why he incriminated himself—either he went insane, or he was tortured, or things like that. But then of course the whole thing really becomes a problem of reliability. His testimony isn’t true. We don’t accept it because he is lying, because he isn’t telling the truth. But in Jewish law, in the simple understanding, it’s not so. It’s a problem of admissibility. Not a problem of reliability. And then the question is why “the mouth that prohibited” helps, and that’s what we discussed earlier.

In short, according to Rami bar Hama, let’s read his wording again: Rami bar Hama said: They taught this only where they said, “We were coerced because of money,” but if they said, “We were coerced because of threats to life,” then they are believed. What is he speaking about—the first clause or the latter clause? Which of the two rulings in the Mishnah is he talking about? The latter clause, right, because he is talking about the part of the Mishnah that says they are not believed, and on that he says that this applies only to coercion because of money, because in coercion because of threats to life they actually would be believed. Because we do not say “a person cannot declare…” right. So in coercion because of threats to life they would really be believed in the latter clause. In coercion because of money, since they make themselves wicked, they are not believed. What is the first clause talking about? The same thing, right? It can’t be that the latter clause talks about coercion because of money and the first clause about something else. So the first clause also talks about coercion because of money, and in the first clause nevertheless he is believed. Why is he believed even though a person cannot declare himself wicked? What we discussed earlier: “the mouth that prohibited”—maybe that cancels the validation, what you said earlier, “the mouth that prohibited” solves this problem for us. Okay. What happens in the first clause with coercion because of threats to life? Coercion because of threats to life—that’s all the more so. Even in the latter clause, where they don’t have “the mouth that prohibited,” they are believed, right? So in the first clause, where they even have “the mouth that prohibited” in their favor, surely they are believed, right? So if so, the rulings that emerge from Rami bar Hama… Wait—if they are believed, then the document is invalid, it’s not just an unvalidated document. What? If we accept their testimony, then the document is actually invalid and would have to be torn up, not merely considered unvalidated. Right. In coercion because of—what I was talking about earlier was coercion because of money. Life. Of course. In coercion because of money, then in principle there’s a problem of “a person cannot declare himself wicked,” and it can’t be that “the mouth that prohibited” helps, except that it would only make it unvalidated. In coercion because of threats to life there is no such problem at all; you don’t need “the mouth that prohibited”—they are believed even without it. They are simply believed, that’s it. So Rami bar Hama’s claim—the rulings that emerge from his words—are four. There is coercion because of money and coercion because of threats to life; in the first clause when there is “the mouth that prohibited,” and in the latter clause when there isn’t. Okay? So in coercion because of threats to life they are believed in both cases. If they are believed where there is no need for “the mouth that prohibited,” then certainly where they have “the mouth that prohibited” they are believed. In coercion because of money, which is what the Mishnah is dealing with—the Mishnah deals with a case of coercion because of money—in the first clause, when they have “the mouth that prohibited,” they are believed, and I said that this probably means they are not believed to invalidate the document, but rather it is only considered an unvalidated document. In the latter clause, when they do not have “the mouth that prohibited,” they are not believed at all. Because a person cannot declare himself wicked. So they are not believed at all, and one can collect with the document, one can collect with the document. Because there is validation from elsewhere. Their own validation may be canceled, but it doesn’t matter—there is validation from elsewhere, so one collects, one collects with the document.

Now the Talmud continues and asks: Rava said to him: Is it really in their power? Once a witness has testified, he cannot retract and testify differently. Yes, once a witness has testified, he cannot retract and testify differently. What does that mean? Rava says to him: How can it be that in coercion because of threats to life you accept their testimony? There is a rule concerning witnesses: once a witness has testified, he cannot retract and testify differently. Even if it’s without interruption? We’ll see in a moment. Obviously this has to be without interruption. We’ll see in a second. But as far as threats to life go, I don’t understand the question at all. With regard to anything other than the three cardinal sins, we always believe them in life-threatening situations. In any case you may violate all the laws in the world because of danger to life. You may transgress—so what does this have to do with it? That was their fear. They were afraid they would be killed. Why didn’t you say so before? Why are you remembering only now? No, “why didn’t you say so before” is not the question. Why didn’t they say it before? Because the first statement was in the signature itself. The signature itself was done under coercion. What do you want them to do? They were threatened. But there is a rule of “once testified, cannot retract,” not because of “why didn’t you say so before.” There is a rule: if the first testimony was accepted, the second testimony is not accepted. All right? In a moment we’ll see the “why didn’t you say so before” point; it has an implication here in the Talmud. But what Rava is really saying is that coercion because of threats to life, which according to Rami bar Hama would seemingly make them believed both in the first clause and the latter clause—Rava says no, it’s not that simple. Even when they claim “we were coerced because of threats to life,” in the end this is a retraction from their previous testimony. But there is a rule that one cannot retract and testify differently. So they should not be believed when saying “we were coerced because of threats to life.” Therefore he disagrees—not yet about the reinterpretation of the Mishnah as coercion because of money; perhaps there he accepts Rami bar Hama. But the inference of Rami bar Hama, that in coercion because of threats to life they would be believed in both cases—that, Rava says, is incorrect, because of the rule that once a witness has testified he cannot retract and testify differently. Okay?

Why don’t we say he is also challenging coercion because of money, in the first clause? Why are they believed in the first clause when they say coercion because of money? Same thing—once a witness has testified, he cannot retract and testify differently. That depends on whether “the mouth that prohibited” solves the problem of retracting testimony. We’ll see in a moment. Okay. Then the Talmud says: And if you would say that this rule applies only to oral testimony, but not to a document—one might have thought that “once testified, cannot retract” applies when testimony was given orally. When we testified orally and then retracted, that’s the case of not retracting. But with a document, no. Why not? What’s the initial thought to distinguish between testimony in a document and oral testimony? “Retract and testify”—you’re talking about “testify.” There it means speech. It’s words. But why? Why would you invalidate here and not there? What’s the logic? Because in a document, all this “testifying” is just the technical side of the court process; it’s not that the witnesses are actually testifying. Exactly. After all, in a document there isn’t really first testimony. We have the law of documents that says when two witnesses sign a document, it is considered as though their testimony had already been investigated in court. How far do we take that rule? Now it is considered as though their testimony had already been investigated in court, and now if they testify something else shall we say to them: wait, wait—there is no retracting testimony? That’s quite far-reaching, and it’s somewhat related to the question you asked earlier, that Doron asked earlier—the question is why they didn’t say it before. In a document that isn’t relevant, “why didn’t we say it before?” We didn’t say it before because we were forced to sign—what do you want?

So if you would say that one can distinguish between a document and oral testimony, the Talmud says: But didn’t Reish Lakish say: witnesses who signed a document are considered as though their testimony had been investigated in court? The Talmud says that since witnesses who signed a document are considered as though their testimony had been investigated in court, then yes—we apply all the rules all the way. And therefore the rule of not retracting testimony applies here too. By the way, Rami bar Hama apparently—or at least possibly—does not accept this. This might be the Talmud’s initial thought. And maybe because of that reasoning, in fact—that we don’t take the rule “as though their testimony had been investigated in court” all the way. But Rava argues that we do. And therefore there is a problem of retracting testimony, and therefore in coercion because of threats to life they should not be believed, because one cannot retract and testify differently.

So Rava says: Rather, when that statement was said, it was said about the first clause. The distinction made by Rami bar Hama was not said about the latter clause, but about the first clause. The first clause is where there is “the mouth that prohibited,” and what does he say? “These are believed.” In the first clause it says “these are believed,” because they have “the mouth that prohibited.” Rami bar Hama said: They taught this only where they said, “We were coerced because of threats to life,” but if they said, “We were coerced because of money,” they are not believed. What is the reason? A person cannot declare himself wicked. Meaning, if they said “we were coerced because of money,” then they are not believed. Why? Because a person cannot declare himself wicked. Where? In the first clause or the latter clause? In the first clause. In the first clause, and all the more so in the latter clause. All the more so in the latter clause. If in the first clause, where they have “the mouth that prohibited,” they are not believed, then in the latter clause, where they don’t have “the mouth that prohibited,” certainly they are not believed. Meaning, he completely rejects it. “We were coerced because of money”—they are not believed in any situation. Why not? Because a person cannot declare himself wicked. But in the first clause there is “the mouth that prohibited.” The question is whether it overcomes that. Yes—what is “the mouth that prohibited”? Why doesn’t it solve the problem of “a person cannot declare himself wicked”? “The mouth that prohibited” can only tell us that the document is unvalidated, not what he said before. Rava doesn’t accept that. Rava claims what I argued before—he saw it by divine inspiration. So he says: what did I basically say? Since “a person cannot declare himself wicked” is a problem of admissibility, not reliability, then what difference does it make if they have “the mouth that prohibited”? “The mouth that prohibited” proves they are speaking truthfully, but my problem with “a person cannot declare himself wicked” is not the concern that he isn’t speaking truthfully; the problem is that we cannot accept a person’s testimony about himself. So why should I care that you have “the mouth that prohibited”?

So is the document validated or not? What? Is the document considered validated? If he says “we were coerced because of threats to life,” yes. Wait—if “we were coerced because of money.” We’re talking about because of money. “We were coerced because of money,” then they make themselves wicked and therefore are not believed. And they are not believed also in what they said, “this is our handwriting”? “Not believed” with regard to disqualifying the document, because in that they make themselves wicked. But “this is our handwriting”? “This is our handwriting”—we’ll see in a moment. We’ll talk more about that. Tosafot discusses that under splitting a statement. Okay. So in “we were coerced because of money,” they are not believed, all right? In “we were coerced because of threats to life,” that is what the Mishnah is dealing with according to Rava, unlike the previous interpretation. And then what comes out? That if there is “the mouth that prohibited,” then they are believed, right? If there is no “mouth that prohibited,” they are not believed. Why, if there is “the mouth that prohibited,” are they believed? Yes. What is the problem in “we were coerced because of threats to life”? The problem is retracting testimony; it is not a problem of “a person cannot declare himself wicked.” And regarding retracting testimony, Rava says that “the mouth that prohibited” helps. Regarding “a person cannot declare himself wicked,” “the mouth that prohibited” is irrelevant, because that is a problem of admissibility and not reliability. So why should I care that you have “the mouth that prohibited”? But if you say “we were coerced because of threats to life,” then there is no problem of “a person cannot declare himself wicked.” The whole problem is only that one may not retract testimony. On that, if they have “the mouth that prohibited” in the first clause, they are believed, and that is what the Mishnah is dealing with. I’ll explain in a moment. All right? That’s what Rava says. The rulings that emerge according to Rava, again in the four cases: in “we were coerced because of money,” they are not believed either in the first clause or in the latter clause, because a person cannot declare himself wicked, right? In “we were coerced because of threats to life,” they are believed in the first clause when they have “the mouth that prohibited,” and not believed in the latter clause when they do not have “the mouth that prohibited.” So Rava argues that with regard to “a person cannot declare himself wicked,” “the mouth that prohibited” does not solve the problem, right? Therefore he says that in the case of “a person cannot declare himself wicked,” also in the first clause—in “we were coerced because of money”—also in the first clause you will not be believed even though you have “the mouth that prohibited,” because “a person cannot declare himself wicked” is a problem of admissibility and is not solved by “the mouth that prohibited.” But in coercion because of threats to life, the problem is retracting testimony, not “a person cannot declare himself wicked.” There “the mouth that prohibited” does help. Therefore in the first clause, where there is “the mouth that prohibited,” they are believed; in the latter clause, where there is no “mouth that prohibited,” they are not believed because one cannot retract testimony.

The big question that arises here according to Rava is why exactly “the mouth that prohibited” does help with the problem of retracting testimony. Seemingly the problem of retracting testimony is also not a problem of credibility but of admissibility. Because in this case, for example, what is the issue of credibility? Doron’s question from before doesn’t exist. Why didn’t you say it before? Why didn’t we say it before? Because they forced us to sign—what do you want? So there is no concern that they are lying or anything like that. But there is a procedural rule: once you have testified, once your testimony is entered into the protocol, you cannot retract and say something else. So that’s a rule that is really one of admissibility of the evidence, not reliability of the testimony. And again I return: you, Rava, say that “the mouth that prohibited” does not solve problems of admissibility, because in “a person cannot declare himself wicked” you disagree with what the Talmud said earlier—“the mouth that prohibited” does not help. So why, with retracting testimony, does “the mouth that prohibited” help?

So read Rashi. On “once a witness has testified, he cannot retract and testify differently”—do you see it? Yes. “With regard to testimony the verse speaks of one telling, as it says, ‘If he does not tell, he shall bear his iniquity,’ and here too, since they signed the document, that is their telling. So how are they believed to uproot it, once their handwriting emerges from another source?” That’s in the latter clause, yes, in the latter clause. Since their handwriting emerges from another source and they do not have “the mouth that prohibited,” there is a problem of retracting testimony. How can they uproot their first testimony? Already here he hints that if they have “the mouth that prohibited,” then it would solve the problem. And seemingly the question is why. How can they uproot their first testimony? So let’s keep reading. “Granted, in the first clause, where their handwriting does not emerge from another source and we rely on them, it is all one telling. For in the same utterance, within the amount of time needed to greet someone, they say: ‘but we were coerced.’ But here we do not rely on their own statement.” What is he saying? An interpretation. Is he setting up the Mishnah only within the span of immediate speech? No, no—that’s how it works. “This is our handwriting, but we were coerced,” everything is said within immediate speech. Not within immediate speech from the signing of the document—that obviously not. All right. What is Rashi saying? You can do splitting, etc. No, no, we’re not yet getting into splitting. Rashi says that once he says—where their handwriting does not emerge from another source—this is all one statement. Right. Notice: “the mouth that prohibited” in Rashi here functions differently from the way it usually functions. Rashi here uses the principle of “the mouth that prohibited is the mouth that permitted” not in order to bring evidence that someone who has “the mouth that prohibited” is probably speaking truthfully or is credible—that’s not the point at all. Rashi argues that the principle of “the mouth that prohibited” turns the two parts of their testimony into one statement. The mouth that prohibited—the mouth that validated the document—is the same mouth that also said that the witnesses were coerced. So because of that, from whichever angle you approach it, either you accept what that mouth says or you do not accept it. But you cannot accept the validation and not accept the disqualification. That’s the point. Then Rashi says here that therefore this solves the problem of retracting testimony, and I accept the whole thing.

What Rashi is really saying is this: suppose they came and said, “This is our handwriting, but we were coerced.” Not suppose—that’s what happened here. All right? In that case, this is not called retracting testimony. “This is our handwriting,” etc., was said in one statement. “Retracting and testifying differently” is when we have testimony, then we stop for a moment, now hold on, pause. Here nothing contradicts anything. If I say “this is our handwriting,” does that contradict the fact that we were coerced? What does that have to do with it? I am telling you, in one long sentence, the full information. I am telling you: this is our handwriting—we signed—but we were coerced. In relation to the signature, that’s the retraction. Right, so that’s what I’m saying. In their speech there are two parts. Those two parts are not a problem of retracting testimony. Right. Because those two parts are simply one sentence that gives you all the information. “This is our handwriting and we were coerced” is not retracting. The “retracting and testifying differently” being discussed here is in relation to the earlier signature. At the time of the signature you said there was a loan. Now you say: what are you talking about, there was no loan, we were coerced. That is retracting testimony. So Rashi says this: if we do not have “the mouth that prohibited,” then that really is retracting testimony. The second testimony comes after the first, and you cannot retract like that. If there is “the mouth that prohibited,” what Rashi is really claiming is that where the validation of the document is done based on us, then the testimony of the witnesses who signed the document is being given now. It was not given when we signed; it is being given now, because now we are coming to validate the signature. And now immediately we also said that we were coerced. So because of that, this is not a case of retracting testimony. When they do not have “the mouth that prohibited,” but rather other witnesses validate the document, when is the testimony given? At the time they signed. Or let’s phrase it in a way that is easier to explain: at the time the document was validated. If there were witnesses who validated the document, then at the moment they validated it, the document witnesses are now considered as speaking in court. Now the same witnesses come and say something else. Wait—you already spoke. That is retracting testimony. But if we ourselves are the ones validating, then it comes out that in the same statement we validated the document and disqualified it. Right? So “the mouth that prohibited” is really telling us that everything was done within one immediate utterance. There is no problem of retracting testimony here.

Or in other words, “the mouth that prohibited” does not function here as evidence at all, according to Rashi. It is not evidence at all. It is not that there is a problem of retracting testimony but I have evidence—“the mouth that prohibited is the mouth that permitted,” so I am believed anyway. It doesn’t function as evidence at all. “The mouth that prohibited” simply says that the two parts of the speech are grasped by us as one long testimony spoken in one sequence. That is the idea underlying “the mouth that prohibited” even when it functions as evidence. There too, what were we really saying? Why is “the mouth that prohibited” evidence in my favor? Because what I’m saying to you is: I said one statement. “I was a married woman, and I am divorced,” for example. Okay? So I told you I was a married woman and at the same time I told you I am divorced. You cannot call that retracting testimony or anything like that and accept half and not accept half. Either you accept it—it is one sentence in which I gave you the full information—or you accept none of it. And there’s no reason not to accept it. So you accept it. The evidence of “the mouth that prohibited” is not a migo according to this view; according to Rashi it is not a migo. And we already saw that Rashi’s position is that “the mouth that prohibited” is not a migo. Rather, “the mouth that prohibited” is one of the later explanations, the third and fourth that I mentioned, which are not explanations of migo. Rather what? I said one long sentence to you. You can’t split it in two. Either you accept everything or you accept nothing. Rashi says: if that is the explanation of “the mouth that prohibited,” then now we can use “the mouth that prohibited” not for the evidence contained in it, but for its basic principle: that the two parts of the sentence are really one long sentence. Ah, if so, then there is also no problem of retracting testimony here. Not because there is evidence that solves the problem of retracting testimony, but because this is not a case of retracting testimony—it is one statement. “The mouth that prohibited” builds its evidentiary force on the fact that the two parts of the speech are essentially one statement. So Rashi says: I do not need the evidence of “the mouth that prohibited”; all I need is the logic of “the mouth that prohibited.” The logic of “the mouth that prohibited” says that this whole sentence is one long sentence, and for our purposes that is enough to say; there is no need to say that therefore there is evidence. Rather, if it is one long sentence, then there will be no problem of retracting testimony.

And is “the mouth that prohibited” strong enough that afterward they tear up the document? Or is it… Or that they don’t tear up the document? They do tear up the document. After all, once we accept their testimony, we accept their testimony. And if we accept their testimony, then it has been proven that they were coerced and the document is forged. The question is whether we really accept their testimony, or whether it only creates the mechanism we spoke about. It says they are believed. It says they are believed, and “believed” means we accept their testimony. On the contrary, on page 19 when it says it’s two against two, that refers to the latter clause where it says they are not believed. They are not believed, but not completely—it’s two against two. Here it says they are believed, so if they are believed, then we tear up the document.

I don’t fully understand. According to Rashi, is the signature itself not called testimony unless the document is validated? No. After the ordinance requiring validation of documents, an unvalidated signature says nothing. Those witnesses are not considered to have had their testimony investigated in court. Only when the document is validated do they become witnesses. So the decisive moment is the moment of validation. That is due to the rabbinic enactment; by Torah law it would be the moment of signing. But after the enactment that documents require validation, and without it the document is not accepted, now the moment of validation is the decisive moment. So if there is one set that validates and another set that disqualifies, then the validating set turns the document witnesses into witnesses who are now testifying, and afterward those same witnesses themselves come and testify: no, but we were disqualified. That is retracting testimony. But if we ourselves—the document witnesses themselves—validate our own signatures and add “but we were coerced,” then it all happens in one utterance, as Rashi says, so it is all one move. Therefore there is no problem of retracting testimony.

Why are they not believed in coercion because of money? Again? Why are they not believed in coercion because of money? Because they make themselves wicked. But if “the mouth that prohibited” means this is all one… He does not accept “the mouth that prohibited” for coercion because of money, because there it is “a person cannot declare himself wicked.” That Rami bar Hama accepts; Rava argues with him precisely about that. Rava says that “the mouth that prohibited” will not help when there is a problem of “a person cannot declare himself wicked,” because that is admissibility, and “the mouth that prohibited” is evidence, while the problem is one of admissibility and not reliability. So I only asked: according to that, in Rava’s own view, then why does it solve retracting testimony? There too the problem is admissibility and not reliability. What does Rashi answer? Right—“the mouth that prohibited” here does not function as evidence. If it functioned as evidence here, then it could solve only problems of reliability, not problems of admissibility. But “the mouth that prohibited” does not function here as evidence; it functions here as a logical mechanism. It tells you that this whole sentence is really one long sentence. Ah, if that’s so, then it also solves the admissibility problem of retracting testimony, because there is no problem of retracting testimony here—I did not retract and testify differently.

But according to that, then even if they make themselves wicked they should be believed in both parts, no? Why? Because they are not believed in both parts. Heaven forbid. So because a person cannot declare himself wicked. So that is what we said earlier: it may be that they are not believed in both parts, or that they are believed in one part, and that is the question of splitting a statement. We already asked ourselves the same thing in the first Rami bar Hama. All right? Meaning that Rashi—what Itzik was taking in the direction of the enactment actually pushes in another direction—is that “the mouth that prohibited” is not only a mechanism of “if he wanted he could have been silent,” but also one of those three or four mechanisms you mentioned. Right, either three or four, something like that, yes. And it is not an upgraded migo, but a different mechanism, one that is stronger. A mechanism that basically says: “migo, because if he wanted he could have stayed silent,” turns “the mouth that prohibited” into a kind of migo, that’s all. I could have remained silent, so believe me that I’m not lying, right? Those are the first two conceptions of “the mouth that prohibited.” The second two conceptions of “the mouth that prohibited” don’t focus on the question of what I could have said—that’s not the point. Rather they tell you: look at what I said. What I said is a single unit, and you can’t split it and accept half while rejecting half. You must accept the whole unit or not accept any of it. And from whichever angle you approach it, whether you accept all of it or none of it, the same result emerges. If you don’t accept all of it, the document is not validated; if you accept all of it, then the document is invalid. Either way, you cannot collect with this document. Okay? So “the mouth that prohibited” really works not at all like a migo—“if I wanted to lie, I could have lied better”—but rather it turns the two parts of my statement into one unit. So Rashi, consistently with his own view, indeed understands that as the meaning of “the mouth that prohibited,” and we already saw this earlier. In contrast to Tosafot, who understands “the mouth that prohibited” as an upgraded migo, and in many places throughout the sugya goes with that, Rashi understands it as “the mouth that prohibited,” and we already saw that in the past.

Now the discussion goes to relatives. With relatives it would have been much easier to understand the distinction—between unreliability and the other issue, admissibility. I didn’t understand. In the case of relatives it’s much easier to understand that the problem is admissibility. So then what is the question? Why doesn’t the Talmud discuss the issue of relatives more? Then it would have been much easier for us to understand the issues. What would they have said there? That the witnesses come and say “we were relatives”? Yes, the Talmud does discuss that. It says: we were disqualified, we were minors, we were coerced. So “we were disqualified” means, for example, relatives. Does the Talmud discuss only the disqualified case? No, the Talmud discusses all of it, look there. Because the issue of admissibility with relatives is much simpler. The Talmud discusses all of it. The Mishnah says: we were disqualified, we were minors, and we were coerced. I mean in the explanation—why don’t they discuss relatives more? It’s much simpler. Precisely because of that—they don’t discuss it because it’s much simpler. What’s the question? Rami bar Hama talks about the coerced case because of the complications it raises. Relatives are not discussed because that’s simple; that’s the “we were disqualified” in the Mishnah. Therefore here we focus—in the Mishnah there are three cases: we were disqualified, we were minors, and we were coerced. The Talmud discusses only “we were coerced.” Okay? Why? Because there all these problems really arise. That’s exactly the point.

Okay, so now I continue in the Talmud. The Talmud then brings a tannaitic dispute. The Rabbis taught: They are not believed to disqualify it—these are the words of Rabbi Meir. The witnesses themselves are being discussed, like Rashi says—the case where the very witnesses who signed the document come and want to disqualify it, exactly our case. So it says: they are not believed to disqualify it—these are the words of Rabbi Meir; and the Rabbis say: they are believed. Now Rashi says this is talking about the case of the first clause, where there is “the mouth that prohibited.” All right? In our Mishnah, what does it say when they have “the mouth that prohibited”? That they are believed. Right? Meaning that our Mishnah really follows the Rabbis against Rabbi Meir. The Talmud says: Granted according to the Rabbis, because their reasoning is that “the mouth that prohibited is the mouth that permitted,” but according to Rabbi Meir, what is the reason? According to the Rabbis, “the mouth that prohibited is the mouth that permitted,” and therefore it solves the problem. And I remind you that right now we are talking about coercion because of money or life? Life. Each amora according to his own view. In the end Rava said that Rami bar Hama himself has to apply it to the first clause—sorry. Right? According to the conclusion of the Talmud, it’s not Rami bar Hama versus Rava. Rava says that Rami bar Hama himself must interpret it as referring to the first clause, sorry. And what Rava says, or the conclusion of the Talmud, is that the Mishnah is dealing with coercion because of threats to life. Right? At first we thought money—disqualified and nothing helps. But no: coercion because of threats to life. From here on we have forgotten coercion because of money. Coercion because of threats to life—that is the case of the Mishnah.

Now the Talmud brings the dispute of Rabbi Meir and the Rabbis and says that our Mishnah follows the Rabbis. Rabbi Meir disagrees with the Mishnah. The Talmud asks: Granted according to the Rabbis, because their reasoning is “the mouth that prohibited is the mouth that permitted.” When it is coercion because of threats to life, the problem is retracting testimony, right? And “the mouth that prohibited” solves it as we saw in Rashi because it turns it into one statement. So I understand the Rabbis. But Rabbi Meir—why does he say no, seeing that they have “the mouth that prohibited”? Why does he say that it does not solve the problem of retracting testimony? In truth we could already have thought—along the line I suggested earlier—that retracting testimony is a problem of admissibility and not reliability. So perhaps Rabbi Meir says, just as Rava himself says about “a person cannot declare himself wicked,” that “the mouth that prohibited” does not solve the problem of retracting testimony, because with retracting testimony, accepting your words is not because I think you are lying. So what good does “the mouth that prohibited” do, proving that you are not lying? But of course that assumes that “the mouth that prohibited” is a migo—something that proves you aren’t lying. If the Talmud asks “what is the reason,” that itself further supports the thesis that “the mouth that prohibited” is not a migo. Okay? So: according to Rabbi Meir, what is the reason?

The Talmud says: Granted, in the case of disqualified witnesses, the lender himself from the outset checks carefully and has them sign. Meaning, if the witnesses come and say “we were disqualified witnesses,” then I understand why Rabbi Meir does not accept their words even though they have “the mouth that prohibited.” Because the lender says that the lender would make sure not to lose his money for nothing; he would verify that the witnesses signing are valid witnesses, otherwise he simply won’t be able to collect his money. That in itself is not a simple claim. After all, there is a presumption against witnesses here. Regarding minors and such—wait, for now we are talking about disqualified witnesses. It says: regarding disqualified witnesses I understand Rabbi Meir, because there is a presumption that the lender checks his witnesses. But I asked: fine, but there are two witnesses here who disqualify the testimony. What do you mean, a presumption works against witnesses? They are testifying about themselves, so they aren’t witnesses. Ah, so what does that mean? But they say “we were coerced because of threats to life.” They are not making themselves wicked. It is not testimony about themselves. Why? They are testifying about the document—that the document is invalid. Why is it invalid? Because when we signed, it was under life-threatening coercion. But there is no implication about us; we are irrelevant. If we are making ourselves wicked, then the discussion turns into a discussion about us—are we wicked or not? Then indeed we are litigants. But here we are merely explaining why, despite the fact that there is a document, there was no valid loan, because this document was signed under coercion. They are not really testifying about themselves. Like in the case of refutation, where some medieval authorities say that the second set testifies about the first set, while the first set testifies about itself, and therefore the second set is believed. The Tur, for example, says this. Nachmanides too, and others—that is why they are believed. Seemingly every set of witnesses who comes and testifies also testifies about itself—it testifies, “we were there and saw.” So then you shouldn’t accept their testimony—they are testifying about themselves. Yes, but they are not making themselves wicked. So what? But they are testifying about themselves. They are testifying about themselves, but that has no halakhic implication; they are testifying about the issue, and only in order to say that they can testify about the issue do they also report that they were there. In refutation it’s different, because when two witnesses come and say “you were with us elsewhere,” they are basically claiming “you are liars.” Now the court turns to discuss the witnesses; it leaves the original case. It turns to discuss the witnesses—what is their status? Ah, now you are litigants. Now when you come and say “we were not—we were there, we saw,” you are already testifying about yourselves. A person cannot testify about himself when he is a litigant. But when you testify in a case about something else, which is the subject of the discussion, and you merely insert something about yourself in order to explain how you could see it at all, that is not called a person testifying about himself. All right?

So now we are talking about this presumption. A presumption against that? Well, one can still understand a presumption that he checked regarding minors. But regarding coercion, how can a presumption work there? In a moment the Talmud will ask that—in the next line. But right now we are discussing disqualified witnesses. About disqualified witnesses the Talmud says we understand Rabbi Meir. Why? Because there is a presumption that a person checks his witnesses. But I asked: fine, but there are two witnesses saying this testimony is disqualified. Does a presumption help against witnesses? And they told me: no, they are testifying about themselves. I said: that’s not correct. They are not testifying about themselves. Because this is coercion because of threats to life; it doesn’t make this testimony about themselves. Maybe this is a presumption so strong that it does stand against witnesses. It’s a huge novelty that presumptions like “a person checks his witnesses” work against… Suppose two witnesses came and said the man is a liar—would you say no, no, he checks his witnesses? Something like that—it’s a bit strange to think that way.

And notice, it’s not exactly testimony that stands opposite it. After all, the witnesses themselves have a problem of retracting testimony. But there is “the mouth that prohibited is the mouth that permitted.” So what stands before us now—witnesses, or “the mouth that prohibited”? Does “the mouth that prohibited” say that this is not testimony? No, we know that without “the mouth that prohibited” it is not testimony, because of retracting testimony. The question is whether “the mouth that prohibited” restores it and now it becomes testimony, or whether “the mouth that prohibited” says: no, no, as witnesses this is barred by retracting testimony, but there is “the mouth that prohibited,” which is evidence. So what am I saying? There is “the mouth that prohibited” which rescues the problem of retracting testimony. As far as retracting testimony goes, your second testimony is worthless—it is not testimony. But there is “the mouth that prohibited.” Now what does that mean, “but there is ‘the mouth that prohibited’”? Right, we are not witnesses; put us aside, and there is the evidence of “the mouth that prohibited” in our place. Or no: “the mouth that prohibited” says there is no problem of retracting testimony, and therefore there are witnesses here. How did Rashi explain it earlier? That “the mouth that prohibited” says we are witnesses, right? That there is no problem of retracting testimony—one statement. Right? Right. So Rashi is really saying that “the mouth that prohibited” does not function as evidence; it functions as a mechanism. So if that mechanism says this is one statement, then there is no problem of retracting testimony, and these are really witnesses. According to this, it’s hard to understand Rabbi Meir. Because there are two witnesses here—why should I care about his presumptions that he checks his witnesses? We have two valid witnesses saying they were disqualified. But if I understand not like Rashi, but rather that “the mouth that prohibited” really is evidence, and that this evidence overrides retracting testimony—then you’re right, retracting testimony disqualifies the witnesses. But there is “the mouth that prohibited” proving that this document is invalid. So we have the evidence of “the mouth that prohibited,” not witness testimony. The witnesses are disqualified as witnesses because of retracting testimony. But there remains the evidence of “the mouth that prohibited,” and now “the mouth that prohibited” stands as independent evidence, not as something that saves the testimony. In such a situation, then it is “the mouth that prohibited” against a presumption. And if one views “the mouth that prohibited” as a migo—say, not like Rashi, who views it as another mechanism, but as a migo—then here we have a migo against a presumption. A migo against a presumption is indeed a place where there is room to deliberate. Tosafot on page 19 says that this is actually the tannaitic dispute—whether we say a migo against a presumption or not. That is a question in the Talmud in Bava Batra.

Okay, but that is what the Talmud is saying here. Let me maybe give another example. There are, for example, witnesses who have a personal interest in the matter. Suppose witnesses testify about some loan, okay? And the borrower is their relative. Or let’s say—they testify and say that they are the guarantors, okay? Then they are interested parties because… all right? But they have a migo. They could have testified about the loan and said that someone else was the guarantor, not them. If they had wanted to lie, they could have said there is a loan but someone else is the guarantor, not us. All right? The big question is whether in such a place the migo helps. There are Talmudic discussions about such things in Bava Batra and elsewhere. Now the question is whether in such a situation it helps as a migo, or whether it turns them back into witnesses. In the end they are litigants—after all, they say they are the guarantors, and a guarantor is a litigant; a litigant is unfit to testify. Right, but the migo is a consideration proving that this is the truth. So I am not using… their testimony, because a litigant is disqualified from testimony. But still, the migo is evidence, and in monetary cases at least evidence also works.

So much so that I once wanted to argue that if two related witnesses come and testify that Reuven borrowed from Shimon—okay, now because they are relatives their testimony is not accepted. Fine, not accepted. Now ask the court: did Reuven borrow from Shimon or not? What is the truth? Put aside admissibility and what you are willing to accept under procedural and evidentiary rules. I am asking what is the truth. I don’t know. What is the truth? The truth is that he borrowed—what do you mean, what is the truth? There are two witnesses that he borrowed. Valid witnesses. Not admissible—so what? But I’m asking what the truth is, not what is admissible. After all, the claim is that a person does not sin for someone else. Why is the disqualification of relatives a scriptural decree? Because they have a presumption of fitness, like Moses and Aaron—they are really trustworthy. A person does not sin for someone else. If you asked me what the truth was, the truth was that he borrowed. The Torah says not to accept testimony of relatives. Fine, I don’t accept the testimony of relatives. But I have evidence, so I’ll act on the basis of the evidence, not on the basis of the testimony.

Now you can see this in the Talmud, and Rif writes it, and then Maimonides copies it, that in monetary law the court should do what it deems correct. No, they are not bound by the formal laws of evidence. Only in capital cases and ritual prohibitions, yes. So this uproots the whole law of relatives in monetary cases. Right. I claim that in monetary law there is no law of relatives. There are laws of relatives where the court itself suspects, or is unconvinced, or has no opinion, and then it goes with the regular rules of evidence, and under those rules related witnesses are not witnesses. But if you are really convinced that there was a loan here, after all you can act even without witnesses. If your heart tells you there was a loan here, Maimonides says, you may rule that there was a loan even without witnesses. Now here come related witnesses, Moses and Aaron, so certainly I am convinced there was a loan here, right? Now true, they are not admissible. So let us say there were no witnesses here—but in fact I am convinced that this is the truth. And strictly speaking in monetary law that is enough. The testimony was not accepted, but as evidence I will use it. Where would there be a practical difference? If, for example, two witnesses came against it. If this is testimony, then it’s two against two. But if what I have here is evidence, and there are two witnesses against me, I will drop the evidence. It is only evidence. But right—if there aren’t two witnesses against me, then evidence is enough for me. I will act on the basis of the evidence, even though the related witnesses are disqualified.

Most later authorities don’t write this. Everyone I have seen basically argues that no—once the Torah forbade accepting testimony of relatives, then it is not accepted at all. I don’t think they’re right. In my opinion this testimony can be accepted—not as testimony but as evidence. What happens is that Maimonides wrote, and really the source is Rif—Maimonides only copies it—that after the period of the two academies in Babylonia and so on, nowadays the Jewish people have been dispersed among the nations and we no longer have courts like they had then, and therefore today we no longer act on that rule. That rule is suspended. That rule saying that the court can act not only by formal evidentiary rules but according to what seems true to it in monetary cases. Even against the principle that the court can expropriate property? Against what? No, it’s simply so. There is no qualification. No, no, this is in monetary cases. Whatever seems right to them is what they are supposed to do. Now I’m saying, nowadays that’s no longer the same, so nowadays it’s already a different story. But fundamentally, while that rule still applied, I don’t see why not to accept testimony of relatives. Does “the court can expropriate property” not suffice here? What does that have to do with that? No—judicial discretion. Judicial discretion? So what? That doesn’t exist? It does exist. Why doesn’t it exist? So he says those things exist. The court can decide that… But it can’t just decide. Judicial discretion is only used in certain cases that the Talmud specifies. Here I’m talking about the court being able to decide whatever it wants without all the formal rules of judicial discretion. Judicial discretion is one of the rules. I’m speaking without the rules. That’s what seems to me. That’s it. That’s what seems to me. Judicial discretion is really the basic rule in monetary law everywhere. Right. What they discuss there at the beginning of Bava Metzia with Tosafot, and in Bava Batra—when we say judicial discretion, when we divide, when “whoever is stronger prevails,” and so on—that is after we are already following formal procedure because we have no view of our own. Then in each situation they tell you which rule applies. But here I’m talking about a prior situation. If the judges have some opinion, that’s what they should do. So I’m saying: fundamentally that is the law; today it no longer exists, at least not fully.

Okay, so in our context, it may be that what Rabbi Meir says is that in the end you accept all of their words even though you disqualified them. Even though they are disqualified as witnesses, still the question remains whether I accept it as testimony or whether it creates evidence for me and I act on the basis of evidence. After all, if you ask me what really happened, then this really is what happened, right? That’s obvious. So I’m saying: if I know that this is what happened, why shouldn’t I act accordingly? So let it count as evidence and not testimony—so what? I do what I understand really happened. Logic certainly says so. The later authorities somehow recoil from this. I don’t think that’s correct. That’s how it should be said. In Kovetz Shiurim and Rav Shmuel Rozovsky and the like I saw that they… If he can make a decision without witnesses at all, then why shouldn’t he treat testimony of relatives as evidence? And then say: okay, I don’t have witnesses here, but I’m convinced this is the truth, and that’s how I rule, because I’m convinced this is the truth—if they really are convinced. Again, if not, then not.

Fine. So that, in any event, is Rabbi Meir’s view. “Minors too,” says the Talmud, “according to Rabbi Shimon ben Lakish,” for Reish Lakish said: There is a presumption that witnesses do not sign a document unless it was done when they were adults. Again, a presumption. Yes. “But in the case of coercion, what is the reason?” By the way, on this issue of presumption, look above at Tosafot. “There is a presumption…” and so on. Look at Tosafot: here it implies that we do not say migo in the face of a presumption—that the presumption overrides the migo. Where does that come out? Because the witnesses have “the mouth that prohibited,” right? And there is a presumption that witnesses do not sign a document unless it was done in adulthood, or a presumption that he checks the fitness of the witnesses. That is a presumption against a migo, and here we see that the presumption overrides the migo, right? So you see that Tosafot understood that this really is the dispute between Rabbi Meir and the Rabbis: there is a presumption here against a migo, not against witnesses. It’s “the mouth that prohibited,” not the witnesses. It’s not that “the mouth that prohibited” turns the witnesses into witnesses; rather “the mouth that prohibited” remains what it is, and opposite it stands the presumption. The question is which prevails. Tosafot only notes that in Bava Batra it says this is unresolved—a presumption against a migo. The Talmud there on page 5 discusses whether we do say a migo against a presumption or not. So how can that fit here? And he says: “it requires further analysis, for in the first chapter of Bava Batra they ask and it is not resolved.” Fine, that requires further analysis. But practically speaking, here the question is the strength of the presumption; that isn’t our topic right now. It is the dispute of Rabbi Meir and the Rabbis here whether a migo against a presumption works.

But the Talmud asks: But in the case of coercion, what is the reason? So we discussed disqualified witnesses, we discussed minors. What about coercion? Why does Rabbi Meir say they are not believed in the first clause—yes? in coercion, even though they have “the mouth that prohibited”? He says—and I remind you, this is coercion because of threats to life, right? That’s the conclusion. Rav Hisda said: Rabbi Meir holds that witnesses who were told, “Sign falsely or be killed,” should be killed rather than sign falsely. There is “be killed rather than transgress”—or in other words, here too it is “a person cannot declare himself wicked.” Contrary to what Rava assumed above, that only in coercion because of money do they make themselves wicked, but in coercion because of threats to life there is no wickedness, Rabbi Meir disagrees. Rabbi Meir argues that even to sign under threat of death, one must give up his life and not sign. Therefore they are making themselves wicked here too, and that is why he says they are not believed.

Rava said to him: Now, if they had come before us to ask advice, we would tell them: go sign and do not get yourselves killed. For the Master said: nothing stands in the way of saving a life except idolatry, sexual immorality, and murder alone. So now that they signed, shall we say to them: why did you sign? So now that they signed, we say to them: why did you sign? After all, had they come to ask us in advance, certainly we would have told them to sign and not be killed. But he holds that even for theft one must be killed rather than transgress? That’s this Rabbi Meir. So what? So that’s it—Rava argues it can’t be. There is no such Rabbi Meir. The Talmud itself says no, that is what Rabbi Meir holds. Rava says: there can’t be such a thing, there is no one who disagrees to that extent. Fine, but at least in the initial stage the Talmud claims there is.

What is the basic idea here? How can one even say such a thing? I’ll say it maybe in one sentence—actually not in one sentence, in a few sentences. There is a Rashi in the chapter HaKones on page 60. The Talmud there asks: what is the law regarding saving oneself through another person’s money? They threaten to kill me unless I steal someone else’s money or damage someone else’s property. So the Talmud tells a story there—it’s a derashah, doesn’t matter—but the Talmud learns it from King David and the mighty men whom he sent to ask the Sanhedrin a question, and this was the question: what is the law regarding saving oneself through another person’s money? And what the Sanhedrin answered was basically: it is forbidden to save oneself through another person’s money, but you are a king, and a king may break through a fence. So basically for an ordinary person, one who is not a king, it is “be killed rather than transgress”: you must die rather than damage or take your fellow’s property. That is exactly Rabbi Meir’s view here.

Tosafot asks there on Rashi—this is how Rashi understands the Talmud there—Tosafot asks: this can’t be. There are only three severe prohibitions for which one must be killed rather than transgress. Where do we ever find theft included among them? Therefore Tosafot argues that when it says one may not save himself through another person’s money, it does not mean he is forbidden to save himself; it means that when he saves himself, he will have to pay. And that is the view of most of the medieval authorities, almost all of them. Once I heard Rav Lichtenstein argue that this Rashi must just be a scribal error; it simply cannot be that Rashi says such a thing. First of all, it is the plain sense of the Talmud, not just Rashi. Second, Rashba in a responsum explains why he really disagrees with Rashi, and he says that the whole reason one may do it, so long as he pays afterward—and not that it could be forbidden—is because clearly the owner of the money was also obligated to save me, because he has the commandment “do not stand idly by your neighbor’s blood,” right? So he was obligated to save me, and therefore when I take his money in order to save myself there is no theft here, because he himself was obligated to save me. That is what Rashba argues. One can disagree, but that is what Rashba argues.

Okay, what does that mean? That if there had really been a prohibition of theft here, then he would agree with Rashi that it would be “be killed rather than transgress,” right? Why does he need to explain here that here it is permitted because there is no prohibition of theft—because he in any case has to give me the money? It implies that if there were a prohibition of theft here, he too would say “be killed rather than transgress.” He merely argues—and I agree this is a big novelty and one can dispute it—that there is no such thing as a prohibition of theft here, because he is supposed to give me this money in order to save me, so I can take this money. And I can show this too in Raavad and other medieval authorities: on the conceptual level they accept Rashi’s approach. It is not a crazy approach.

But what Tosafot asked on Rashi—why do we always say there are only three cardinal sins? Is theft also one of “be killed rather than transgress”? I think the answer is very simple. The prohibition of theft itself is not subject to “be killed rather than transgress.” But the reason I do not take my fellow’s money is not because of the prohibition of theft—it is because it is his. It has nothing to do with the prohibition of theft. The prohibition of theft is overridden. If I take his money, I have not transgressed “you shall not steal”; I have only taken money that is not mine. I cannot take money that is not mine because it is his.

Rav Shimon Shkop writes in Shaarei Yosher, at length there throughout the section, that property law precedes the Torah’s commands; he calls it “the law of justice.” Meaning, one of the implications he brings there is theft from a gentile. After all, there is a dispute whether that is biblically forbidden under “you shall not steal” or not biblically forbidden. Rav Shimon Shkop argues that even according to the view that theft from a gentile is not biblically forbidden under “you shall not steal,” it is still biblically forbidden. It is biblically forbidden not because of “you shall not steal,” but because it is his. The meaning of the fact that he is the owner is that I cannot make any use of it. Let me give you another example. I’ll do it very briefly because this is a topic for much expansion, but maybe another example. There’s some clownish fellow in Bnei Brak—a Torah scholar, but a clown. So once we were sitting around a table and someone there was holding some book in his hand, and this fellow sees the book and says: “Wow, I’ve been looking for that book for years. And I have two options: either take your book and violate ‘you shall not steal,’ or leave it with you and violate ‘you shall not covet.’ So since either way I’m violating a prohibition, at least let the book be with me.” Now of course that’s not correct, and he knew it wasn’t correct. It isn’t correct in terms of halakhic categories. But suppose it were correct—say he really would violate “you shall not covet” or “you shall not steal” either way. Would that be a valid consideration? The answer is no. Why? Because the reason you don’t take it from him is not because there is a “you shall not steal,” but because it is his. Even if you have a valid consideration, apply valid considerations to your money, not to my money. About my money, only I make the decisions. And even if you’re right, that doesn’t interest me. Be right about your own property; concerning my property, only I decide.

Then the claim is really this—this is the basic idea, and it expands into many areas; it is a very, very important foundation for understanding Jewish law. The entire essence of Choshen Mishpat is really built on this. The claim is that my right to my money is not the same thing as your obligation not to take my money. If we ask why you are forbidden to take my money, the simple conception is: because there is “you shall not steal.” “You shall not steal” is a prohibition on you taking my money. But I say no, it doesn’t start there. It starts with my having a right to my money. Consequently, you are forbidden to violate my right. Your prohibition is a derivative of my right.

For example, let me give another illustration: why do the laws of interest… Choshen Mishpat, simply speaking, is prohibitions between man and man that concern money. Seemingly that’s the definition, right? So why are the laws of interest and charity not in Choshen Mishpat? After all, these are commandments or prohibitions between people that relate to money. Why are they in Yoreh De’ah? The answer is that Choshen Mishpat includes only obligations whose basis is another person’s right. Meaning, if I lent you money, I have a right to get the money back from you. Therefore you cannot violate my right by not returning my money. Or if you damaged me, I have a right to compensation from you. Therefore you cannot fail to pay, because otherwise you are violating my rights. That is Choshen Mishpat. In charity… there is an obligation on you to give to me—I’m poor. There is an obligation on you to give to me, but I do not have a right to receive charity from you. I cannot sue you in court: “give me charity because I’m poor.” There’s no such thing. And what about interest? With interest too, same thing. I cannot sue you in court to return the interest to me. You are forbidden to take interest, and maybe in fixed interest there is an obligation to return it, but I cannot sue you. I gave it to you willingly. Under Choshen Mishpat I have no rights to that money. It is a prohibition, not a right. Since it is a prohibition, it appears in Yoreh De’ah and not in Choshen Mishpat.

What does that mean? That the whole idea of Choshen Mishpat—it is commonly thought that in Jewish law there is no discourse of rights. That is not true. There is a discourse of rights in Jewish law; it is called Choshen Mishpat. Choshen Mishpat is the collection of rights in Jewish law, and of course corresponding to them there are always obligations. If I have a right against you, then you have an obligation not to violate my right. All the other sections of the Shulchan Arukh are obligations—a discourse of obligations. In Choshen Mishpat it is a discourse of rights. Therefore, for example, one can stipulate away matters of money, whereas in matters of prohibition one cannot stipulate. I can waive my right—what is the problem? I cannot waive the fact that pork is forbidden for me to eat. What does that have to do with anything? It is forbidden for me to eat. But if it is forbidden for me to eat because it belongs to you, then if you waive your claim, it becomes permitted for me to eat, right? Since it begins with your right, if you waive the right then there is no right—what is the problem?

Okay? That is what Rashi says in HaKones. Rashi basically says this: true, “you shall not steal” is overridden by saving a life. But my right to the money—how is that overridden by your danger to life? The prohibition of “you shall not steal” that rests on you is overridden if you are in a life-threatening situation, like the whole Torah. But my right to the money has nothing to do with your danger to life—how is my right overridden? And the reason you are forbidden to take the money is because I have a right to it, not because of your “you shall not steal.” Your “you shall not steal” is a derivative of my right. And that is not overridden by danger to life. That is why we always say there are only three cardinal sins and not four, because “you shall not steal” is not itself a cardinal sin. The reason you are forbidden to take the money is not because stealing is so severe, but because that decision is entrusted to me and not to you. Even if it is not severe, that is irrelevant—only I may make that decision.

Does danger to life not override that right? According to Rashi, no. It is a dispute among medieval authorities there, but according to Rashi, no. That’s also a huge novelty. Of course it’s a huge novelty. Rashi is in any case a huge novelty, but I’m showing that it is possible. And I claim that Rabbi Meir here works the same way. If they say to you, “Don’t sign this document or we’ll kill you”—if you don’t sign, we’ll kill you—Rabbi Meir says you have to die. What does that mean? “Be killed rather than transgress” on theft? The answer is yes, because you cannot violate another person’s money in order to save yourself.

You asked, then, why does Rava reject him? So how does Rashi fit with that? After all, according to the Talmud’s conclusion there is no such opinion here. Even Rabbi Meir, who is not the law—even he is not accepted that way. I’ll tell you why. Because here this is not the same situation as in HaKones. That was the initial thought, but in the conclusion it isn’t so. Because clearly, if I now need… if I… after all, I did not take the other person’s money to save myself. I signed. The one who later uses the document to take the money—he is the criminal. Do I have to die in order to prevent him from committing a transgression? If I take the money in order to save myself, says Rashi, that is forbidden. Because it is “be killed rather than transgress”—I am forbidden to take the money. But I did not take the money; I only signed. The fact that he later uses this signature and collects money by theft—he is the thief. Do I have to die so that he won’t be a thief? That is what Rava says. That’s why Rava rejects that initial thought. That initial thought was treating this case as like Rashi there—and Rashi there remains the halakhah. There is “be killed rather than transgress” regarding theft, but here this is not theft; it is only causing someone else to commit theft. I do not have to die in order not to be the cause of someone else stealing. What—why is your blood more valuable than mine? I need to die so they won’t rob you? What, is your money redder? What do you mean? I sign, and afterward if he steals, that’s your problem—deal with him. What do you want from me? Therefore Rava says—and I think that’s even Rava’s wording—Rava says: if he had come to ask us whether to sign or not to sign, what would we have told him? Not to sign? Certainly not to sign? Why? Even according to Rashi here we would tell him to sign. Why? Because here you are not stealing. Right, that’s the point. All right.

Good, so we’ll stop the semester here. Have a useful break. And again I remind you, please update your plans going forward—also to register, and anyone who isn’t continuing, let us know, all right? What? Good luck.