Ketubot, Chapter 2, Lesson 30

This transcript was produced automatically by means of artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.

🔗 Link to the original lecture

🔗 Link to the transcript on Sofer.AI

[Rabbi Michael Abraham] If that witness were to come and say, yes, yes, I also remember that there was an event where two witnesses came there and testified, and their testimony was accepted, there’s no problem at all, because then he and the judge join together—not regarding the maneh written in the document, but they join together regarding the fact that testimony about the loan was examined. Once I have two witnesses to that, then of course it was accepted. But if, let’s say, it’s that same witness himself, but he doesn’t remember the case of the examination of his testimony, then it’s not connected to the question that it’s the same witness. The question is simply whether he can join with the judge in testimony about the examination of the other two witnesses. If yes, then he joins. Okay? So Rabbi Shimon continues and says: where two testify that their testimony was examined, this is like two who testify before us, because any two are believed regarding what they state. Here, exactly here, he answered you, David. If there were two witnesses testifying that the testimony of two witnesses was examined in court, that would also combine. Because two witnesses can combine even if it is separate testimony, if they testify about the same act or if they testify about the same liability. But here there is one witness about liability and one witness about an act. You can’t combine a witness about liability with a witness about an act. And therefore this is what Rava and Rav Ashi say: but in a case like this, where there are no witnesses to the reality of the act, and regarding the reality of the liability, the witness testifying about the examination of the witnesses knows nothing. Right? So this one doesn’t know about the act of examining the witnesses, and that one doesn’t know about the maneh in the document, so there is no way to combine these two. For any two, even though they are believed, that is only by Torah law, but a witness who sees how they were examined in court does not know by that the way he would know by direct sight, because perhaps they lied in their testimony, and that is obvious. He says: since what I, the judge, testify about—that the two witnesses were examined before me—is Torah law that, from my perspective, treats it as though there was a loan, but that Torah law was stated regarding a judge. As a judge, you can rely on the testimony of two witnesses. But here, when you function as a witness, you cannot come as a witness and say, “I saw the loan; I know there was a loan.” You don’t know. It is a scriptural decree that the Torah said a judge may rely on two witnesses, but you cannot now come as a witness and say, “Yes, I too am a witness to the loan.” You don’t know about the loan. Okay?

Now look at something interesting. Rabbi Shimon Shkop now basically continues and goes on to discuss a very, very famous passage in the Netivot, because here we actually arrive at the question: what is the meaning of combining two witnesses? We’ll come back afterward to our topic again. For now it only looks like we somehow got here through the Rif’s and the Rashba’s comment on the topic, but later we’ll see that this actually relates directly to the core of the topic itself. So in the Shulchan Arukh, section 145, Choshen Mishpat 145, he speaks about presumption regarding land. We know—just a brief introduction—if a person, and I’m not talking about an act of possession that acquires land, where someone works the land and thereby acquires the land through possession. I’m talking about an evidentiary presumption regarding land, what is usually called the presumption of land ownership, the presumption of three years. What does that mean? Someone is working the land, and I come and claim against him: this land is mine—what are you doing on my land? “What are you doing in this land?” So the person sitting on the land says: I sat here for three years, I have witnesses to that, and you didn’t protest. If so, that is proof that I bought the land from you, because otherwise you should have protested during those three years. So this is the law in the third chapter of tractate Bava Batra: if indeed I can prove that I sat here for three years and the original owner—the challenger—did not protest, the land is considered mine; that is evidence in my favor. This is called a three-year presumption for land. Okay? If I prove that I sat on the land for three years and he didn’t protest, I have a presumption, and I can claim that I bought it, and that is valid evidence.

The Shulchan Arukh says this: I’m reading the highlighted section. If one testified that he consumed the produce in the first, third, and fifth year, and the second testified that he consumed it in the second, fourth, and sixth year, they do not combine, because in the year this one testifies, that one does not testify, and the land and the produce return. Meaning, to the one who consumed the produce of the land and failed to bring witnesses that he sat on the land for three years—the land returns to the original owner. He has no presumption, and even the produce that he ate, he is considered a robber and must pay him back for the produce, because the land was his—what are you doing eating his produce? Meaning, testimony like this is not accepted. Now the question is why. This is separate testimony. I have two witnesses, right? Each one is testifying, in effect, to three years. Let’s combine them. I really have testimony here about six consecutive years. The rule is that the presumption has to be consecutive. Three separated years are not a presumption. But if we combine the two testimonies together, then I really have two witnesses to six consecutive years. So why shouldn’t we combine them? The Shulchan Arukh says we do not combine them. So the Netivot says—I’m skipping the Sema for the moment—let’s read the Netivot.

[Speaker F] Please enlarge the text. Again? Enlarge the text.

[Rabbi Michael Abraham] Okay.

[Speaker C] Rabbi, this is not at all similar to the case where six witnesses testified about six days. Because there, there we said that for every two days—there we said that what matters is to testify that he is liable. And for every two days there are two witnesses testifying that he is liable. Here it’s not a matter of liability; it’s a matter of his sitting on the land. So there aren’t three consecutive years for which there are two witnesses testifying that he sat there. So it’s not the same thing at all.

[Rabbi Michael Abraham] Right, right. So let’s now see this in the Netivot, but the Netivot expands it further. You’re completely right. Is the text large enough? Is it okay now?

[Speaker G] Yes, you also could have zoomed below, but this is good too.

[Rabbi Michael Abraham] I don’t know what that is… I understand. So wait, maybe actually I… it’s just so that it won’t stay that way afterward, because this is also my summary. That’s what you’re saying. Great, excellent. Okay? Thanks. Okay. So I’m reading the Netivot. He says: “first, third, and fifth” on that same Shulchan Arukh we just read. See Sema, subsection 2, “even six witnesses,” etc. Doesn’t matter, he’s quoting the Sema. We’ll understand the Sema from what he himself writes. At first glance this is puzzling: why should there not be a presumption when one testifies to the first, third, and fifth, and one testifies to the second, fourth, and sixth? If there were six witnesses, each testifying to one year, do they combine? Now just because the one who testifies about year one also testifies about year three, is the testimony void? Is this witness somehow worse than another witness testifying about year three? And because he already testified about one matter, is he disqualified for another testimony? And how is this different from one who says “a maneh in Nisan, and a maneh in Sivan, and a maneh in Av,” and another says “a maneh in Iyar, and a maneh in Tammuz, and a maneh in Elul,” from which we collect three manehs from him? The Netivot assumes that if there were six witnesses, each one for one year, then yes, there would be a presumption. One month—

[Speaker E] What?

[Rabbi Michael Abraham] One month.

[Speaker E] “A maneh in Nisan”?

[Rabbi Michael Abraham] “And a maneh in Sivan, and a maneh in Av.” No, year. No, no, that’s a loan. I’m talking about witnesses for presumption. Witnesses for presumption—the Netivot assumes that if there were six witnesses of presumption, each one testifying about a different year—

[Speaker E] Okay?

[Rabbi Michael Abraham] consecutive—first, second, third—six witnesses, that would create a presumption. Notice, Doron, not like what you said earlier. That’s what he claims. We need to check the Jewish law there, but that’s his claim. Okay? And then he asks—

[Speaker E] That doesn’t fit with what we said.

[Rabbi Michael Abraham] Right, I said, it doesn’t fit with what we said. And then he asks: so what’s the difference between that and the case where one testifies about the first, third, and fifth year, and the second testifies about the second, fourth, and sixth? Why do I care that it’s the same witness testifying about the three years? If they were three separate people, what difference would it make? Then it would be accepted. So why, if it’s the same person, is it not? Bottom line, I do have two witnesses here. So he says: and it seems that the reason is that two witnesses in separate testimony are believed only in a way such that, if we were to say he is not liable, we would necessarily have to say that two witnesses are lying. For example, where one says “a maneh in Nisan” and one says “a maneh in Iyar,” and he claims both. Because if we say that he is not liable at all, we necessarily say that two witnesses are lying. And that we do not say, and thus he is in any event contradicted by two. But where one says “on her back” and one says “on her belly,” the Talmud considers this half a testimony, because even if we suspect only one witness of lying, she is still a minor.

What is he saying? He says like this. We’re dealing with a girl—has she matured? To mature, she needs signs of maturity, she needs two hairs. Now what happens if one witness says she had a hair on her belly, and one witness says she had a hair on her back? Together she has two hairs. The Gemara says that does not combine, even though there we are talking about monetary law—for example, suppose we need to know whether she is an adult for some monetary issue. Okay? It doesn’t combine. Why? After all, this is separate testimony. He says no, it’s not separate testimony. When does separate testimony combine in monetary law? When, in order to reject the testimony, you would have to assume that both witnesses are lying. Meaning: when one witness says he borrowed on Sunday, and another witness says he borrowed on Tuesday, why do I combine that? So the Netivot says—notice, this is a different explanation from Rabbi Shimon’s explanation that we saw above—why do I combine it? Because if I assume he owes nothing, that means there was no loan either on Sunday or on Tuesday, right? After all, it is enough that there was a loan on one of those days for him to be liable for one maneh. In order to assume that he is completely exempt from the maneh, what have I actually said when I exempt him completely? That there was no loan either on Sunday or on Tuesday—or, in other words, I have turned both witnesses into liars. Right? In order to rule that he owes one maneh, I don’t need to accept both testimonies. It’s enough for me to assume that at least one of them is right. If I accepted both, then I would obligate him for two manehs. Right? Why do I obligate him for one maneh? I obligate him for one maneh because at least one of the two is right. What’s the idea behind this? This is the whole idea of combining two witnesses.

What do I care that it’s separate testimony? I mean, what happens with two ordinary witnesses? Let’s say two witnesses to murder. Why is one witness to murder not accepted and two are? The Netivot says: very simple. If one witness comes regarding a murder, and suppose I rule there was no murder, what does that mean? That this one witness lied. Fine—with one witness, I’m allowed to assume he’s lying. Again, it doesn’t have to be that he’s lying, but I take into account the possibility that he’s lying, and therefore I can’t sentence someone to death. Okay? So I can assume one witness is lying. But when there are two witnesses to the murder, and I come and say there was no murder—if I rule there was no murder, then I have said that two witnesses lied in court. There is no such thing, says the Netivot. We do not assume that two witnesses are lying. Understand? It’s not a matter of formal combination—combining two witnesses onto one thing. It’s a probabilistic combination. I say: the chance that one person lies is, say, I don’t know, ten percent. The chance that two lie is one percent. It’s this times that. Okay? Therefore that can’t be. So therefore I don’t accept the possibility that two witnesses lied.

Rabbi Shimon says, wait a second—so the Netivot says, what happens in separate testimony? One comes about a loan on Sunday, and the other comes about a loan on Tuesday. Now I need to decide, of course, not whether there was a loan, but whether so-and-so is liable. Suppose the court rules that so-and-so is not liable. What does that mean? That both witnesses lied, because after all it’s enough that one of them told the truth and there was a loan on one of the days for him to owe one maneh, right? Factually speaking. Not how much testimony is needed—factually speaking. If you say he is not liable, then you are essentially ruling that there was no loan either on Sunday or on Tuesday. Right? That’s the meaning of the ruling that he is not liable. In that, you have said that both lied—and we do not assume of two witnesses that they are lying.

[Speaker E] But that’s not two witnesses. If each one is a testimony by itself, why can’t you say each one might be lying? Why not?

[Rabbi Michael Abraham] Which case are you talking about? Which case are you talking about?

[Speaker E] One after the other. What? Which case? Sunday and Tuesday. Right? So that’s two different testimonies.

[Rabbi Michael Abraham] I didn’t understand—what?

[Speaker E] I didn’t understand. It’s two different testimonies. Right.

[Rabbi Michael Abraham] Now I ask: what do you rule? That Reuven owes one maneh or not?

[Speaker E] No, I’m saying I can’t accept either one of them.

[Rabbi Michael Abraham] Meaning you’re claiming here that both witnesses lied. Yes. But that’s the advantage of two witnesses: the chance that two witnesses are lying is very small, says the Netivot.

[Speaker E] But there aren’t two witnesses here, because each one is one witness.

[Rabbi Michael Abraham] So what? So what? But there are two witnesses. When you say both witnesses lied, you are making a claim whose probability is one percent. Because the chance that two witnesses both lie is one percent. That’s a small chance.

[Speaker E] I think David’s starting assumption is that the two witnesses have to come together.

[Rabbi Michael Abraham] Right. He asks why.

[Speaker E] Everything the Netivot says is that if they don’t come together, then it’s two different testimonies, where the probability that each one lies is the same, but—

[Rabbi Michael Abraham] David, think. Look at what the Netivot says. Everything the Netivot is coming to say is that you’re wrong. Because you assume there’s some rule like this, that you need a combination of two testimonies in order to accept them. The Netivot says, why are you giving me a scriptural decree here? I’ll explain it to you: there is probabilistic logic behind why you need two witnesses. It’s not a question of combinations. Why do you need two witnesses? Because to reject the testimony of two witnesses is a rejection whose probability of being correct is very small. To say that two witnesses lied is a one-percent chance. To say that one witness lied is ten percent. That—I can think. But to say two witnesses lied is one percent. Now two witnesses came, one about a loan on Sunday and one about a loan on Tuesday. The probabilistic calculation is the same. Why? Because when the court says, “the fellow is not liable,” what is it actually saying? That the witness of Sunday lied and the witness of Tuesday lied, right? That’s what it says. Well? Right, no? So you said that two witnesses lied. What’s the probability of that happening? One percent. We don’t say such a thing. That’s what the Netivot says.

[Speaker E] No, okay, I’m not… I’m not absorbing it. I don’t see it that way. When two people each come with separate testimony, then each one has the same probability.

[Rabbi Michael Abraham] Right, but when you say both of them—I’ll ask you a question. Suppose I roll a die. Okay? If I roll the die twice, what is the chance of getting six-six?

[Speaker E] The same die? Yes. And if it’s two dice?

[Rabbi Michael Abraham] Wait—I’m asking you what the chance is that, with the same die that I roll, it comes up six—

[Speaker E] six? The probability is one out of thirty-six.

[Rabbi Michael Abraham] One-sixth times one-sixth. One-sixth on the first and one-sixth on the second. Right? Now I take two dice. I roll the first die, I roll the second die. What is the chance of getting six-six? One-sixth? No—one out of thirty-six. Exactly the same. What difference does it make whether it’s two dice or one die? Once you’re talking about two rare events, the probability that both occurred is the product of the probabilities. I don’t care if it’s two different events or two events in the same situation. What do I care? The probability that a witness lies is one-sixth. So should I care now whether he lied about this loan and he lied about that loan? The chance that both lied is one out of thirty-six.

[Speaker E] Did you understand the reasoning?

[Rabbi Michael Abraham] Okay. So that’s what the Netivot argues. Why is this not the same as one witness about her belly and one witness about her back, where the Gemara says this is a whole thing and not half a thing—we do not accept that? Very simple. Because in order to say that this girl is still a minor, I don’t need to say she has no hair at all. Even if she has one hair, she is still a minor. To be considered an adult she needs two hairs. Therefore, if I rule that she is a minor, I have not said here that both lied; I’ve said that one of them lied. That, yes, I can say. That’s a possibility I cannot ignore—that one witness is lying. If what I rule means that two witnesses lied, such a ruling is not made. That’s what the Netivot says. A brilliant calculation. Okay, so that’s what the Netivot says.

What comes out of the Netivot’s position is something wonderful. What the Netivot is basically saying is that the combination of witnesses is not a scriptural decree at all, and it has nothing to do with anything like that. Combining witnesses is a probabilistic calculation. The advantage of two witnesses over one witness is simply because of the probability that both will lie. That’s all. Okay? Let’s continue reading. “And according to this, it works out well here. For granted, in the case where one says first, third, and fifth and one says second, fourth, and sixth, since they are scattered, there is no presumption. If so, even if we suspect only one of them of lying, there is no presumption here, and the challenger is not contradicted by two.” Look what a beautiful calculation. What is he saying? If one witness says first year, third year, and fifth year, and now we move to land presumption, and the second witness says second year, fourth year, and sixth year—okay? In that case there is no presumption. Why? Because in order to determine that there is no presumption, it is enough for me to say that one of them is lying. Right? If one of them is lying, then I’m left with three nonconsecutive years. Finished. I do not accept this testimony. Okay? “And this is unlike one who says first, second, third, and one who says fourth, fifth, sixth, where according to each of their statements there was possession, and the challenger who says there was no possession—the possessor is contradicted by two.” What happens if each of the witnesses testifies to three consecutive years? One testifies to one, two, three, and the second testifies to four, five, six. In that situation there is a presumption. The Netivot says: why? Because in order to say there is no presumption here, you need to assume that both of them lied, because it is enough that one of them told the truth for him to have a presumption. See how beautiful? Therefore he says that in that case there really would be a presumption.

Now we get to the scenario he spoke about: what happens with six witnesses, each testifying about one different year? Right? That’s what Doron said, against what you said. So he says: “But with six, each one testifying about one year, it is impossible to say that he did not hold it consecutively unless we say that two witnesses are lying, and that we do not say.” Look at this—he’s just a genius. Meaning, six witnesses, each one testifying to one year—here clearly there is a presumption. He asked before: how is that different from one testifying to one, three, five and another to two, four, six? Clearly there is a difference. Because here, in order to say there were no three consecutive years among all six of these, you need to assume that four lied. That’s absurd. No, not four—sorry, no, you can stagger them in the middle—you need to assume three lied, I think.

[Speaker C] Even two are enough. Right, right. If the ones on the second and fourth lied—right. If second and fourth lied, then there’s no sequence, no three consecutive.

[Rabbi Michael Abraham] And therefore it remains alternating. Okay? So the claim is: basically, you must at least assume that two lied. And therefore here there would be a presumption, because to rule that there is no presumption is to rule that two witnesses lied here. We do not say that two witnesses lied. It’s simply a brilliant calculation. This Netivot is marvelous. In a moment we’ll see whether he’s right, but he is marvelous.

And then he says: “And one should not ask, if so, then with six witnesses, each testifying to a maneh at a different time, the borrower should be obligated to pay five manehs.” Right—according to this, six witnesses testifying to six loans: a loan on Sunday, Monday, Tuesday, Wednesday—what would the law be? We already saw what the law is in such a case. How much does he have to pay? Three manehs, right? Every two witnesses combine as separate testimony for one maneh. The Netivot says: why? According to me, five manehs—not six, true, but five. Why three? Because any number less than five manehs—say four manehs—you are assuming that two of the witnesses lied, and that we do not assume. So therefore: for six manehs, it is enough for me to assume that one lied, in order not to give him six but only five. But in order not to give him five but only four, you have to assume that two lied, and that we do not assume. Wonderful question, right? So he says, according to this, with six such witnesses you should have to give five manehs and not three. By the way, I’m not sure there’s a Gemara about this. The Shulchan Arukh writes not that way, but I’m not sure there’s a Gemara about it. It could be that maybe one could even say this in practice as Jewish law. But the Netivot assumes that this is not correct, and then he asks why it isn’t correct. So he says: “That is not so, because every two witnesses are one combination, and we always consider two witnesses to be one testimony. And as soon as two witnesses testified to two manehs, the combination of testimony for a liability of one maneh is complete. And so too with the second two witnesses, the combination of testimony for a second maneh is complete. And so too with the two witnesses for a third maneh. And in each testimony-combination we consider it a separate testimony, and we consider one witness to be lying, and in every testimony-combination we sustain only one maneh, so that both should not be liars in any testimony. And the same applies here: we consider every two witnesses one combination, and we combine the first witness with the sixth, the second with the fifth, and the third with the fourth, and we sustain one from each pair, and then there is testimony for three consecutive years, for whatever we can uphold from their testimony, we uphold, as explained in section 30.”

Now here, the explanation really is a bit problematic. Suddenly here he does take combinations formally. It’s forced. He basically says: the first two are one unit, and I judge them separately—that’s one maneh. Now you can’t keep using one of them further to combine with others—they’re gone. Four remain. From the other four, take two; these two, you have to give him another maneh. Therefore it comes out as three manehs and not five. That’s his claim, and it’s a bit forced. But let’s continue.

I’m going back to Rabbi Shimon, whom we read earlier, and now he writes the following—the next section immediately after that: “And in Netivot HaMishpat, section 145, subsection 2, he wanted to say that the reason for combining witnesses is that any two do not lie, and only one lies. And with six witnesses… we presume only one to be lying.” Fine, that’s what he said. “And based on this he strained himself concerning six witnesses about six manehs at different times—why do we not collect five manehs?” We saw this now—he stretched to answer it. “But anyone who examines sees that his words are far from the line of truth.” Rabbi Shimon claims that the Netivot says something brilliant but mistaken. This is what in the yeshiva world is called “leichter.” A leichter is someone light, someone who says things easily. These are very brilliant ideas, but on second glance you see that they can’t be right. Why? “Because if so”—I continue reading Rabbi Shimon—“if one witness testifies that Reuven betrothed a woman, and one witness testifies that he caused damage, we should maintain that one of them certainly did not lie, and there would be doubt concerning the betrothal and doubt concerning monetary liability, since according to the Netivot, in the case of manehs too there is no combination at all between them and their testimonies are not directed to one matter.”

What is he asking against him? He says: what if I have one witness saying a man betrothed a woman, and one witness testifying that he caused damage—violated the Sabbath, whatever, say caused damage. Okay? Now, since according to the Netivot there is no chance that two witnesses lied, then we should have to assume that we have a doubt here. Either he betrothed the woman or he caused damage, and we should rule here according to the laws of doubt. If you rule that he did not cause damage, you should then have to be concerned that he did betroth the woman, and vice versa. Because we cannot reject both testimonies, since then we have implicitly said that both witnesses lied, and according to the Netivot that cannot happen. Right. So according to the Netivot, how do we not—after all, who says we don’t accept it? Obviously we don’t. Okay? Meaning again, you don’t need proof for this. It’s obvious. Clearly the Netivot too would agree that we do not accept such testimony, and according to the Netivot it is not clear why.

[Speaker C] Maybe in that case—but that’s a case where the two testimonies are on two completely separate matters. Right. Until now the examples were that all the testimonies were about a land presumption, all the testimonies were about a loan.

[Rabbi Michael Abraham] What difference does that make? What difference does it make? Run the calculation. Seemingly no—it would seem not. I’m asking now in light of what we know now. A probabilistic calculation. The chance that one witness lies is ten percent; the chance that two witnesses lie is one percent. That’s it. Fine. So now what happens here, basically—

[Speaker E] What did you explain if one betrothed the woman? What?

[Rabbi Michael Abraham] I didn’t understand.

[Speaker E] What did you explain if one says he betrothed the woman?

[Rabbi Michael Abraham] Then I have a doubt: doubt whether she is betrothed and doubt whether he caused damage. Now go with the laws of doubt. Out of doubt, if she is perhaps betrothed, she requires a bill of divorce stringently, and she is forbidden to a kohen. Or in money, out of doubt, maybe one can seize—depends on the laws of doubt, “if a kohen seized.” Maybe one can seize; there is monetary doubt here. So he says more than that—he emphasizes it. According to the Netivot, no formal combination is needed. The whole innovation of the Netivot is that the reason you need two witnesses is not because there is some scriptural decree that two testimonies need to be combined. It’s simply a probabilistic calculation. So if no formal combination is required, then why should I care if it’s the same case or different cases of the same type? What difference does it make? A probabilistic calculation is always true.

And furthermore, Rabbi Shimon Shkop asks, second-to-last line: “How will he sustain this topic—our topic?” We return to our topic. “For if only one of them testifies truthfully, we should obligate him, one way or the other, just as with two who testified about a loan or about a court examination.” I remind you of the Rashba and the Rif. One witness testified about the loan, and the judge testified that before him there was an event of examining two witnesses, testimony of two witnesses regarding the loan. The Gemara says: if they do not combine, then one testifies to what the other does not testify to. Rabbi Shimon asks: according to the Netivot, this is exactly separate testimony. Right. What the Rashba said was that it is not similar to separate testimony. What Rabbi Shimon explained as to why it is not similar to separate testimony was that they are not both testifying to the same thing, right? Rabbi Shimon says: that’s according to my approach. But according to the Netivot’s explanation, how can you sustain the words of the Rif and the Rashba? According to them, what is the probability that both the judge and the witness are lying? Multiply the probabilities—one percent. And in order to assume that he is liable, it is enough to assume that one of them is telling the truth, right? Therefore you should combine them. By the way, that’s a wonderful explanation for the view of the five amoraim, for whom we were looking for an explanation. Maybe they learned like the Netivot. But of course the Netivot says his words on the Shulchan Arukh, as practical Jewish law. And in practical Jewish law we do not rule that way; we rule like Rava and Rav Ashi, that we do not accept this combination. Okay? I’m just saying parenthetically that this itself could be an excellent explanation for the view of those five amoraim.

I’ll ask an even harder question: why do we need to get to all these tricks? A question maybe before the harder question. What happens if three-quarters of the monetary force comes out based on the mouth of one person? Remember the previous topic? There are two witnesses signed on a document, Reuven and Shimon. Reuven validates his own signature, so according to the Rabbis he is considered as testifying to the maneh in the document, okay? Shimon dies, may his memory be blessed. Levi comes and validates Shimon’s signature. Now I, Reuven, join with Levi and also testify that Shimon’s signature is authentic. The Gemara says: it does not help. Why? Because three-quarters of the monetary force comes out based on the mouth of one person. The force of extracting the money is, in effect, based mostly on me, on Reuven, and that doesn’t work. According to the Netivot, this is impossible to understand. After all, in order to say that he is not liable, I need to assume that both of them lied. So why aren’t these two good witnesses? What do I care that it’s three-quarters and one-quarter? If you say that the law of two witnesses is a matter of formal combination, that you need to connect the two witnesses, then you say the combination must also be equal—each must contribute half the force to the total overall force. But if according to the Netivot there is no issue at all of combining testimonies, and what you need two witnesses for is only the probabilistic calculation—that in order to reject the testimony of two witnesses you must make a claim whose probability is one percent, and therefore you don’t reject it—well, here too, in the case where three-quarters of the monetary force comes out based on the mouth of one person, in order to say I don’t owe the money, what do I need to say? That both witnesses lied: both the living witness and the one validating the dead witness. Both lied. Because it is enough that one of them is right for me to lose the case. So according to the Netivot, what is the problem in the case where three-quarters of the monetary force comes out based on the mouth of one person?

But that’s not quite precise. Why? Let us suppose that Reuven lied—only Reuven. Levi, who validated Shimon’s signature, told the truth. But Reuven lied. Okay? What does it mean that he lied? That we effectively have only one validating witness for one of the signatures. That is not a witness to the maneh in the document, so the money is not extracted. Meaning, in order not to extract the money here, it is enough for me to say that only one witness lied. Therefore even the Netivot would agree in the case where three-quarters of the monetary force comes out based on the mouth of one person. So that is not a good question.

And now let me ask you an even harder question. I don’t know why Rabbi Shimon didn’t ask it. Since the creation of the world until today, was there ever a case where one witness came to court and his testimony was not accepted? I assume yes. Okay? If so, from now on every single witness who comes to court, we should accept his testimony in every field, in every case, in every period. Because what is the chance that both this one is lying and that earlier one whose testimony we did not accept also lied? One percent. Therefore we cannot—so now, from here onward, we must accept every lone witness who comes and testifies about something. That too could have been asked against the Netivot, right? Why do we need to get to one witness saying he betrothed a woman and one witness saying he caused damage? Forget it. One witness in the year 1000 BCE testified that so-and-so borrowed money, and it turned out that we did not accept his testimony—meaning, the assumption is that he lied. Now in the year 2000 CE one witness comes and says that a woman was betrothed. Okay? Why should we not accept his testimony? In order to say he is lying, after all there was already one witness who lied since the creation of the world. It cannot be that I now say another one witness lied since the creation of the world. That cannot be—

[Speaker E] Impossible. Huh? If they’re talking about the same woman?

[Rabbi Michael Abraham] No, no, no—not the same woman. And now, on the contrary, don’t go back to what we were talking about before, David. We already discussed that—you don’t need formal combination. We’re talking about the chance that two witnesses lie, even in different cases. So let’s carry the Netivot all the way: why not challenge him with that? Why does Rabbi Shimon stop with his objections where he does? What?

[Speaker F] Maybe the Netivot means that if both are in doubt, then they combine, and then it has to be specifically about one thing. I didn’t understand. If I have two witnesses where each one is a doubt, because I can’t disqualify them for certain, then the two doubts combine into one thing.

[Rabbi Michael Abraham] They combine—fine, so here too let them combine to create a doubt. What difference does it make?

[Speaker F] Then they combine into one thing, two witnesses that are doubtful.

[Rabbi Michael Abraham] Well please: one witness testified that he caused damage, and one witness testified that he betrothed a woman. So they can’t combine into anything definite, but let them combine at least in the sense that a doubt is created here. What’s the difference?

[Speaker F] Why not combine them neither for this nor for that? But they each testify about something else, so what am I combining?

[Rabbi Michael Abraham] So what? Then I have a doubt about this and a doubt about that. After all, the combination is created by the fact that each one arouses a doubt in you, right? So let’s talk about the doubts on both sides. Right—they won’t combine, and I’ll remain with a doubt regarding each of the two sides.

[Speaker F] But the Netivot requires that the doubts combine. No!

[Rabbi Michael Abraham] No! He claims that each one is uncertain, and therefore when they combine you can even extract money. But in a place where they cannot combine in order to extract money, and instead they testify about two different things, then yes indeed—we remain with each one as a doubt. We won’t extract money, but there will be doubt. What’s the difference? After all, the whole reason you extract money is because each witness by himself creates doubt. So since both are about the money, they combine and I extract the money. But in two separate testimonies, right, they won’t combine—I can’t determine that she is betrothed—but I can determine that she is doubtfully betrothed and that there is doubt whether he caused damage.

So here I return to what David said earlier, and here it’s already very clear. Look. It’s obvious that even the Netivot would never entertain such nonsense. What is the chance that one witness lied in 1000 before the Common Era and one witness is lying in 2000 of the Common Era? That is the same probability as one witness lying in general. Clearly yes. Where do we say that we do not assume that two witnesses are lying? When two witnesses testify about the same matter. What is the chance that two witnesses who testify about the same matter are lying? That is not just some generic probability. But again, notice: my claim is that the Netivot really is talking about statistical combinations. There is no issue here of combination in the sense of a scriptural decree. But even according to the Netivot it still matters that they testify about the same thing, because only there do we combine the probabilities. The chance that two witnesses lie about the same matter is very small. The chance that two witnesses lie about two different matters is not small enough, because what—there can be witnesses who lie. A lone witness who decides to lie about something certainly can exist. On the contrary, the probability that there will in general be some witness somewhere who lies about something is one. The probability that a particular witness who comes before me has lied is low—not zero, but low. But the probability that somewhere in the world there will be some case of one witness who lies is one. Obviously—there are liars in the world. So what does that have to do with anything? How can you combine two different cases with two different witnesses? That combination of probabilities is not relevant.

All you can combine here is the claim that it is not plausible that two witnesses decide to lie in the same situation. How did you find two liars for the same situation? It can’t be. Unless it’s a conspiracy—therefore they make inquiries and see that they aren’t coordinated or something like that, okay, but suppose we solved that; there’s no conspiracy here. So what—two people decided to lie about the same case? It can’t be. But two people lying, one in Kamchatka about betrothal and one in Australia about damages—the probability is one. The probability is one. Obviously there is some lying witness over there and some lying witness over here. I don’t know who he is, but clearly the probability is—this is not a valid claim even on the statistical level. And therefore I think the Netivot could very well be right. His brilliant explanation is an explanation that holds water, and Rabbi Shimon Shkop’s objections are not objections. Because true, even according to the Netivot some combination is required. When the witnesses testify about separate years in the presumption of land, why does it combine? It combines because in the end what are you trying to say? That two people lied in order to achieve the same goal. It doesn’t matter whether it was about the same year. Both wanted to give land to someone who doesn’t deserve it—the same land. What is the chance that two different people would want to lie for the same goal? The fact that they do it by different routes, by way of different years of possession—that’s not interesting. Because if the combination is a probabilistic combination, then the Netivot is right. What you need to look at is the goal of the lie, not what exactly the lie is about.

The goal of the lie is to give a person land that does not belong to him. What is the chance that there will be two people who want to do that regarding the same land for the same person? Zero. Therefore it combines. That’s exactly what he says. Or a loan on Sunday and a loan on Tuesday. A loan on Sunday and a loan on Tuesday—I want to give him that same land—yes, I want to give him that same… not that same land, I want to say that Reuven owes Shimon one maneh because of a loan. Now true, this one says Sunday and that one says Tuesday, but two people who want to make Reuven liable to Shimon—that is not plausible. Here there is already a certain novelty in the Netivot, because it is still by virtue of two different loans. But the idea can certainly be heard; it’s not absurd at all. It’s not necessary, but it’s not absurd. What is the chance that two people want specifically to rob Reuven for the benefit of Shimon by lying? So what if this loan was on Sunday and that one on Tuesday? The chance is small. But what is the chance that one wants to rob Reuven for Shimon, and the other wants to rob Levi for Yehuda? One—what do you mean, why not? What’s the connection? There’s no combination there. Okay?

[Speaker E] And that also applies to the minor who has one hair here and one hair there—that obviously is not accepted.

[Rabbi Michael Abraham] What? I didn’t understand.

[Speaker E] If a minor has one hair here and one hair here, that is not accepted.

[Rabbi Michael Abraham] That point is simple; the Netivot itself already explained it, it’s clear. And think about the dice, what I said earlier. Okay? I asked what the probability is of getting double sixes, right? With one die, then it’s one out of thirty-six. With two dice, also one out of thirty-six. But now let’s ask a different question. Suppose I ask you: what is the probability that the die is unfair? Double sixes came up. What is the probability that the die is unfair? If I’m talking about one die that landed on six twice, that already starts to make us suspect that the die is unfair. Not a very strong suspicion yet, because it can happen, but still, there is some suspicion here, right? With two dice, why assume the die is unfair? What does that have to do with anything? Each die landed on six. There isn’t one die that did the same thing, landing on exactly the same side, right? Therefore, even though it’s the same probability, the suspicion that the die is unfair is smaller. So even in probabilistic reasoning, although seemingly you just multiply probabilities, there are questions for which it does matter whether this is one die or two dice. And that’s what I’m saying about the Netivot. There are questions where whether this is one case or two cases is important. Okay? That’s my claim about the Netivot, and if so, then the Netivot is right. What do we say about the Rashba and the Rif? Rabbi Shimon Shkop’s last difficulty. Yes? How will the Netivot explain that the judge and the witness in the Rif’s case do not combine? After all, if they do not combine, then you are basically saying that both of them lied. Right? What do you say?

[Speaker C] I think I answered that.

[Rabbi Michael Abraham] No, I answered that about Nachal Yitzchak.

[Speaker C] I answered—

[Rabbi Michael Abraham] About Nachal Yitzchak, I think. How? On Nachal Yitzchak I answered. I said that in Nachal Yitzchak I can say that Reuven alone lied, and all that remains is Levi, who validates Shimon’s signature, and then I don’t even have one witness to the loan. Okay? But look, in the context of the Rif, the distinction is the distinction that the Rashba himself makes. Because what does the Rashba say? The Rashba basically says that the judge is not testifying about the maneh written in the document. The judge is testifying that there was an event, right? Now I ask whether there was an event. No, I have only one witness for that; maybe he lied. Right? Maybe he lied. So then I don’t have it, so there was no event. Now I ask whether there was a maneh written in the document. No, because I have only one witness for that, so there wasn’t. What this one testifies to is not what that one testifies to, right? So I can’t combine them. In fact, you can even assume—look—I can even assume that the judge is telling the truth, and only the witness lied. The judge is telling the truth, and then what? There was some kind of event there, but still the judge is not testifying to the maneh in the document. There was an event in which two witnesses came before him and testified that there had been a loan, and regarding that event itself I have only one witness. Okay? So I won’t accept it. Now, this isn’t completely smooth, which is why I said that according to this, one can definitely understand the first five Amoraim, because they say: what do you mean? If there was such an event, that two witnesses testified, then automatically there was also a loan. Right? So I say: first of all, it could be that the Rif does not fit with the Netivot—so what? This is an isolated view among the medieval authorities (Rishonim) here; all the medieval authorities (Rishonim) go against him. I explained Nachal Yitzchak also according to the Netivot. Okay? Maybe, maybe one can explain the Netivot here too, because he really sees this as two cases. This one testifies to the event of validation, and we said that in two cases the Netivot does not combine the testimonies. Okay? As the Rashba himself writes. So I’m not sure this is difficult for the Netivot; it may be that one can reconcile it, but even if it is difficult for the Netivot, this is still an isolated opinion. And beyond that, even according to that isolated opinion, the Netivot greatly helps explain the first five Amoraim. So why do they accept the testimony? Exactly because of the Netivot. Okay?

Okay, I just want to finish this topic about challenging the authentication. I mentioned Rabbi Shimon’s comment, and the separate testimony, and the Rif and the Rashba and all that. I want to return for a moment to the main approach of the medieval authorities (Rishonim) in this passage. The main approach of the medieval authorities (Rishonim) basically says that we are dealing here with a document that has an authentication endorsement written on it, and one judge validates his signature on the endorsement, and one witness validates his signature on the document. Then the borrower—because the lender comes to claim the money from the borrower—and the borrower says: the whole story is forged, the endorsement, the document, everything is forged, you forged everything. And what he brings is one witness for the judge’s signature and one witness for the witness’s signature. The question is: how is it possible to challenge the authentication endorsement? After all, the endorsement is an approval of the religious court; it is a court act. It is the religious court’s approval that the document was authenticated. What, can you challenge a court act? Then there’s no end to the matter. What is the point of the religious court putting its endorsement on it at all? What does that help? If there were a document without an endorsement, what would the concern be? That I could challenge it and say the document is forged. Now the religious court signed an endorsement. Now everything is fine, everything is in order. Can I now challenge the endorsement in the same way too, and say that the endorsement is also forged? So what was the point of making the endorsement? If you can challenge forgery even against an endorsement, then what is this act of endorsement at all? What is it good for? Okay.

So I remind you of the Ritva that we saw in the previous class. The Ritva really said—this is one possible explanation—the Ritva really said according to one of the views that a challenge that attacks both the witnesses on the document and the judges is a weaker challenge. And therefore one judge and one witness combining is enough for us, at least according to the view of the five Amoraim who validate this. And then I can understand why the endorsement helps. It doesn’t solve the problem, but it helps. It is easier to uphold it; the challenge against it is in a weaker position, so there is a point to making an endorsement. But that is still according to the view of the five Amoraim who accept combining the judges with the witness. But what do we do in Jewish law? In Jewish law we do not accept that. So in truth the medieval authorities (Rishonim) here already discuss this. Look at Tosafot here—I’m going over this really quickly because the class is already over and I want to finish the topic. Tosafot here in our passage, ‘a witness and a judge combine’—this implies that even in an authenticated document we are concerned lest he forged the judges’ signatures. Tosafot understands that there is something problematic here. The judges signed that the document is not forged, and now I attack the judges? Okay, and then validate the judges for me, and I’ll attack whoever validates the judges. There’s no end to it. You have to remember that with the document itself, by strict law, it cannot be attacked at all with a claim of forgery. The whole institution of document authentication is only rabbinic. There is no claim of forgery even against an ordinary document. Now the Sages enacted that a document can be challenged. Now the endorsement can also be challenged? But the endorsement came to solve that problem. Go back to the strict law that it cannot be challenged, and that’s it. Yet here in the passage we see that it can indeed be challenged even against an endorsement. And they discuss some Tosefta in the Jerusalem Talmud in Shevi’it—I’m not going into that now; all the medieval authorities (Rishonim) here bring it. And the same with Nachmanides here: ‘And from here we hear that the certification of the judges requires authentication, for if not, we are concerned lest it be forged.’ Exactly what Tosafot says, and then he discusses the Tosefta here, and so on. What about the Ritva? ‘And incidentally we hear from this passage that a document on which an endorsement is written requires authentication, and we do not say that something to this extent would not be forged,’ meaning, that it cannot be challenged as forged. Even the endorsement requires authentication. The Rashba says the same thing: ‘And according to Rashi’s explanation, we learn from here that the judges’ certification’—the endorsement, that is the certification—‘requires authentication, for if not, we are concerned lest it be forged.’ Then he brings Tosafot and starts discussing it.

What is the difference in his wording compared to the other medieval authorities (Rishonim)? The other medieval authorities (Rishonim) infer this from the Gemara. The Rashba says: according to Rashi’s explanation, this follows. Why? I remind you that the Rashba himself, and also the Rif whom he cites, explain the passage differently. Right? For example, the Rif explains—and the Rashba himself to some extent as well—but the Rif explains that we are not dealing here at all with a document that has an endorsement. So you cannot prove from this passage that one can challenge an endorsement. And perhaps that itself is the reason the Rif explained it that way. Because the Rif really says: what, there’s no end to the matter? What, you can even challenge an endorsement? It can’t be. Therefore he was unwilling to explain this passage like all the other medieval authorities (Rishonim), that it is talking about a document with an endorsement. Because it cannot be that one can challenge an endorsement; that is exactly what led the Rif to explain the passage differently. Therefore the Rashba, who is the only one who brings this view of the Rif, says: this does not follow from the passage; it follows from Rashi’s explanation. Because the passage itself can also be explained like the Rif, and then it does not follow that one can challenge an endorsement, but according to Rashi’s explanation it does follow that one can challenge an endorsement. Why don’t Tosafot and the Ritva and Nachmanides say that? Because they explained the Gemara like Rashi; they did not bring another explanation. So for them, that is the Gemara. So according to their view, this follows from the Gemara itself, not from Rashi’s explanation. They did not bring the Rif’s explanation. That is only regarding the wording.

Okay, so in truth, what does it help? So look. The only one who answers this—they only ask how this can be, because there is a Tosefta against it and so on. But the Ritva also asks: then what is the point of making an endorsement? Not the problem of contradiction from other passages, but what is the point of making an endorsement if the endorsement too can be challenged? What did you gain by making an endorsement? I’ll read his sharp formulation here: ‘And if you say: since even though an endorsement is written on it, it still requires authentication, why was it customary to write an endorsement on it before any challenge was made against it? As is evident from the incident of Mar Shmuel above.’ After all, why make an endorsement? Why does the institution of endorsement exist if the endorsement too is exposed to the same attacks as an ordinary document? What did you gain by making an endorsement? He gives two answers. ‘And one may say: because sometimes the handwriting of the witnesses is not so recognizable.’ Meaning, the witnesses’ handwriting is not a court act; the religious court produces documents, the religious court has norms for how it writes, it has a good-quality script pattern, and so on. Witnesses’ signatures often get blurred, and it will be hard to authenticate them. Therefore they make an endorsement. The endorsement is something written in court, something that lasts over time, and then it will be easier to authenticate it. A technical matter. But yes, one can claim forgery even against an endorsement. So what is the point, why make an endorsement? Because the endorsement is easier to authenticate. Okay? Simply that the document is written in a higher-quality way or something like that. Or perhaps this is not a general rule, but rather when you see that the witnesses’ handwriting is beginning to blur—even if we do not make some general distinction between ordinary documents and endorsements, but in your particular document you see that the witnesses’ handwriting is starting to blur. What do you do now? You have to go to a religious court to authenticate it before it gets completely blurred, ask the religious court for a new approval, and keep the document with you now until that too gets blurred. You bought yourself a few more years. Okay? That is one answer.

The second answer: ‘And furthermore, it is useful for a document found in the marketplace, that it should be returned to the lender, and we are not concerned lest he wrote it in order to borrow and did not actually borrow, because a borrower does not authenticate a document,’ as stated in the first chapter of tractate Bava Metzia. This connects to what I said in the previous class. When I find a document thrown in the marketplace, to whom do I return it? Very important. If I return it to the lender, he can collect from the borrower again. If I return it to the borrower, it may be that the lender has not yet collected the debt at all; you are not giving the lender his proof, and he will not be able to collect. This is part of the laws of returning lost property. To whom do we return the document? So he says: if the document has an endorsement on it, you can return it to the lender. Because that apparently means the loan already happened. Without the loan having happened, they would not write an endorsement on it. What if the endorsement is forged? When someone claims that it is forged, we will discuss it. For now we do not suspect it of being forged until such a claim is made. And if we do not suspect it of being forged, then apparently the loan was carried out. Whether it was repaid or not is another question, but apparently the loan was carried out, and one can return this document to the lender. If there is no endorsement, then who knows? It may be that they only wrote the document and the loan was still never carried out. Maybe the borrower lost it; perhaps he was actually on the way to give this document to the lender and lost it on the way. So you cannot return it to the lender, because you are giving him the possibility of collecting money that is not owed to him. All right?

Okay, so here we’ve finished this topic. I’ll send you, together with the summary, also a few guidelines for the next class—for anyone who wants to start learning further as well—what the next topic is, and a little bibliography or a few directions. Okay, thank you. Thank you very much, more power to you.

[Speaker E] Goodbye.

[Speaker D] Rabbi, can you hear me? Yes, yes. Did you take a picture of the attendance list? Uh, no. Oh.

[Rabbi Michael Abraham] Just one second, wait for me.

[Speaker D] Wait. One second, how do you do this?

[Rabbi Michael Abraham] I didn’t completely understand these things. Wait. Whoever doesn’t need to register, no. Wait, how do I do this? Okay. I took the picture, thanks. Have a pleasant rest of the day. You too. Rabbi. Thank you very much. You too, goodbye. Today we’re starting a new class. We are in the book Nefesh HaChaim by Rabbi Chaim of Volozhin, Gate Two, chapter 10. Let’s look at the Rabbi’s wording. ‘Indeed, this matter is very great and exalted beyond exalted, and it also cannot really be written at all; and regarding such things they said, “and for the wise, a hint is enough.”’ The Rabbi begins by saying that the things he is going to write in this chapter are very deep and very lofty. Lofty beyond lofty. This is not something simple to explain, and certainly not simple to write. Writing is inherently limited. Therefore he says that on matters like these the Sages said, ‘for the wise, a hint is enough,’ meaning that one who is wise will understand the hint from his words. And despite that, he says, ‘I will give you a slight awakening in outline form.’ In other words, despite the difficulty of explaining it, he will give us foundational points so that we can begin to understand this matter. Let’s see the continuation of the passage in the chapter, where the Rabbi will explain to us the orders of governance and the connection between the upper worlds and this world of ours.