Shoftim (5764)

From the book Mida Tova: Articles on the Hermeneutical Principles by Rabbi Michael Avraham. Translated from Hebrew using gpt-5.4 (reasoning_effort=high, batch API).

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With God’s help. Midah Tovah — Eve of the holy Sabbath, Parashat Shoftim 5765

Questions

1. Without the Torah, would we compel payment on the basis of one witness, or perhaps on the basis of three?
2. Does one witness create monetary liability, or only liability for an oath?
3. What gives rise to the oath of partial admission: the admission itself, or the concern that the defendant is merely temporizing?
4. Are there objections to a kal va-homer (a fortiori inference) that do not undermine the generalization itself, that is, relevant objections?
5. To what kind of kal va-homer can relevant objections be raised?
6. Is kal va-homer a formal rule or a logical one?

The Hermeneutical Principle

Kal va-homer (a fortiori inference).

“A single witness shall not stand against a man for any iniquity or for any sin, in any sin that he commits. By the testimony of two witnesses, or by the testimony of three witnesses, shall a matter be established.”

— Deuteronomy 19:15

What is taught by the word “man”? For iniquity he does not stand, but in the case of a woman he does stand, to permit her to marry—these are the words of Rabbi Yehudah. Rabbi Yose says: For iniquity he does not stand, but for an oath he does stand. Rabbi Yose said: The matter follows by a kal va-homer. If in a place where a person’s own admission does not combine with the testimony of one witness for a capital case, yet he swears on the basis of his own admission, then in a place where one witness combines with another witness for monetary liability, is it not all the more so that he should swear on the basis of one witness? No. What is true of one who swears on the basis of his own admission? He pays on the basis of his own admission. Will you say the same of one who swears on the basis of one witness, when he does not pay on the basis of one witness? Therefore Scripture says: “for any iniquity”—he does not stand for iniquity, but he does stand for an oath.

— Sifrei to Deuteronomy, section 188

A. The Oath Triggered by One Witness

Introduction

The verse cited above teaches us that according to halakha (Jewish law), two witnesses are required for every judicial purpose. As is well known, this rule has several exceptions, all of which suffice with a single witness: testimony concerning a woman, that is, permitting a woman to remarry on the basis of her husband’s death; liability for an oath; the case of the suspected adulteress; the decapitated heifer rite; and matters of ritual prohibition; see Maimonides, Laws of Testimony, beginning of chapter 5. There are differences among these exceptions. In the case of the suspected adulteress, the decapitated heifer, ritual prohibitions, and testimony concerning a woman, even a witness otherwise invalid for formal testimony is accepted, so long as there is no reason to suspect falsehood. In contrast, for monetary testimony that imposes an oath, one valid witness is required, one who could also join ordinary monetary testimony; see Maimonides there. The midrash (rabbinic exposition) cited above deals with two of these exceptions: testimony concerning a woman and liability for an oath.

At first glance, this verse contains several superfluous words. It could have said only, “A single witness shall not stand in judgment,” and we would know that two witnesses are required for every judicial purpose. Therefore the Sages in the Sifrei expound each of the superfluous words here: “against a man,” “iniquity,” and “sin.” According to the Sifrei, and likewise in the parallel passage in Babylonian Talmud, Shevuot 40a, the word “iniquity” teaches that the Torah’s requirement of two witnesses applies only to iniquity and sin; Rashi here explains: corporal and monetary punishments. For an oath, however, one witness suffices. At the beginning of the exposition, Rabbi Yehudah links the word “iniquity” to the word “man,” and learns that for testimony concerning a woman one witness is enough.

The hermeneutical discussion in the midrash begins only after these opening positions are stated. Rabbi Yose offers a rationale for his position from a kal va-homer, but rejects it himself, so that in the end the derivation from the verse is still needed: “for any iniquity”—and not for an oath. In this section we shall briefly describe the nature of the oath obligation, and in the next section we shall use that description in order to understand Rabbi Yose’s kal va-homer.

The Point of Departure: One Witness or Three?¹

It is well known that later halakhic authorities discuss whether the Torah’s innovation, according to which two witnesses are required for every judicial purpose, as distinct from matters of ritual prohibition, is an innovation of stringency or of leniency.¹ The Torah’s point of departure could be understood in two opposite ways: first, that without the verse we would have required more than two witnesses, and the verse comes to teach a leniency, that two are enough; second, that without the verse we would have been satisfied with one witness, and the verse comes to be stringent and require two.

At first glance, the midrash seems to support the second possibility: for every judicial purpose, one witness is enough, except for the needs enumerated in the verse. Therefore, for an oath or for testimony concerning a woman, which are not included in “for any iniquity and for any sin,” one witness is sufficient. If so, this midrash would seem to settle the question raised by the later authorities.

But this analysis is superficial. If that were really the point of departure, there would be no room at all for the dispute among the Tannaitic sages in the midrash. Seemingly, for any matter not mentioned in the verse, one witness should suffice. From the wording of the dispute, however, it appears that the Tannaim understood this as a special exclusion: the Torah comes to teach that there are particular matters in which one witness is enough. It does so by restricting the requirement of two witnesses to cases of “iniquity and sin,” from which we infer that there is some specific matter for which one witness suffices. The dispute among the Tannaim concerns which special matter the Torah intends to exclude.

To be sure, one should note that the verse requiring two witnesses appears twice in the Torah, both times in our portion: Deuteronomy 17:6 and 19:15. It is therefore entirely possible that one occurrence is expounded to teach the stringency, and only afterward do the proponents of המדרש treat the second occurrence as a special exclusion. If so, the second understanding remains possible.

Moreover, the plain meaning of the verse itself, even though the Sages derive various laws from it, also points toward the second understanding. The Torah commands us regarding “two witnesses or three witnesses,” which implies that it is moving away from a point of departure of one witness. If the innovation were simply that two witnesses are needed, the addition of three would seem out of place.²

The Problem and the Difference Between the Two Solutions

The two Tannaim offer two different solutions to this exclusion: testimony concerning a woman and liability for an oath. Already here a difficulty arises, for as we have mentioned, according to most medieval authorities, testimony concerning a woman does not require a valid witness, whereas liability for an oath does.

Beyond that, both of these solutions are problematic in different respects. Testimony concerning a woman, according to most decisors, apart from a possible implication in Maimonides, Laws of Divorce 12:15 and parallels—though see his words in Laws of Testimony 5:2—is a rabbinic law, and by Torah law two witnesses are required to permit a woman whose husband has disappeared to remarry. If so, how can it be learned from an exclusion in a verse of the Torah?

There is also a problem regarding liability for an oath. It is unclear how the exegete knows in the first place that halakha contains a category of oath imposed on the basis of witnesses. From his wording it appears that it was already obvious to him that there is an oath obligation based on witness testimony, and the only question was how many witnesses are needed to impose it. According to Rabbi Yose, this verse teaches that for an oath one should be satisfied with a single witness. But if we had no prior knowledge of the very existence of such an oath obligation through witnesses, as distinct from the oath of bailees or the oath of partial admission, then one could not derive the institution itself from this verse. So from where does Rabbi Yose know that the Torah contains such an obligation at all?³

This difficulty again leads us to the conclusion that the verse before us is not an ordinary exclusion. This is not an almost plain-sense derivation according to which the requirement to use two witnesses applies only to “iniquity” and “sin,” while everything else is automatically excluded. Rather, this is a special derivation whose whole point is to teach the law of the oath triggered by one witness. Perhaps for this reason it can teach us both the very existence of the oath obligation—otherwise the verse would be superfluous—and the fact that one witness suffices for it.

The Nature of the Oath⁴

Another point that emerges from the course of the midrash is that the obligation of an oath is similar in character to monetary liability. When there are two witnesses, the defendant must pay money to the plaintiff. When there is only one witness on the plaintiff’s side, the defendant owes the plaintiff only an oath. In other words, there are monetary liabilities and oath liabilities, and these are two types of obligation imposed on the defendant: monetary liability requires two witnesses, whereas liability for an oath requires only one witness.

Yet this picture too is disputed among medieval and later authorities.⁵ Some understood that one witness creates monetary liability, except that where there is only one witness the defendant can exempt himself from that monetary liability by swearing. Others understood that the oath is an obligation in its own right, and not merely a way of escaping payment. The clearest practical ramification is the rule, “since he cannot swear, he pays.” If the defendant cannot swear for some reason, in most cases halakha requires him to pay the money being claimed from him. At first glance this seems to show that the oath is only a way of escaping monetary liability, rather than an independent obligation. Yet some decisors understood this as a kind of penalty, intended to ensure that the defendant does not simply evade the oath.

Some formulated this question as one about the nature of the oath obligation itself:⁶ is it a stringency or a leniency? Does the Torah’s innovation, that the defendant must swear, come to overturn the intuition that he would otherwise have gone free without an oath? Or rather, without the Torah’s innovation would we have required the defendant to pay, and the Torah teaches that if he swears he is exempt?

Later authorities also discussed the nature of the testimony of one witness:⁷ is his testimony regarded, for purposes of an oath, like that of two witnesses—”wherever the Torah believed one witness, he is like two,” see Babylonian Talmud, Yevamot 88b and parallels⁶—or is one witness merely a weaker form of testimony about the money, one that undermines the defendant’s presumptive possession and therefore obligates him to swear?

This question may be related, though not necessarily, to the previous discussion. If we are dealing with complete legal credibility, then it is plausible that the oath obligation is independent, and that for this purpose one witness is like two. But if this is merely an undermining of the defendant’s presumptive possession, then the testimony of one witness is only weak evidence with respect to the money, and the oath is a way of escaping monetary liability in such a case.

The Parallel Midrash in the Shevuot Passage

As we already mentioned, our exposition also appears in the Babylonian Talmud in Shevuot, and likewise in Babylonian Talmud, Ketubbot 87b, in the following form:

Rav Nahman bar Yitzhak said in the name of Samuel: They taught this only where the lender makes a claim and the borrower admits it. But where the lender makes a claim and one witness testifies, even if the claim is only for a perutah, he is liable. What is the reason? Because it is written: “A single witness shall not stand against a man for any iniquity or for any sin.” It is only for any iniquity or any sin that he does not stand, but he does stand for an oath. And it was taught: Wherever two witnesses impose monetary liability, one witness imposes liability for an oath.

There are several differences between this version and the version in the Sifrei.

First, the exposition appears without dissent. Second, it looks like an Amoraic exposition of Rav Nahman bar Yitzhak in the name of Samuel, rather than a Tannaitic exposition as in our source. Third, the exposition is presented as an ordinary exclusion, according to which the requirement of two witnesses applies only to iniquity and sin, and not to an oath. It is therefore no surprise that there is no dissenting opinion here. As we have seen, the dispute in the Sifrei points to a conception according to which this is not an ordinary exclusion from the requirement of two witnesses, but a special derivation regarding exceptional cases. By contrast, the conception in the Babylonian Talmud seems to be that two witnesses are a special innovation of the Torah, and were it not for that, one witness would suffice. Consequently, in all cases that are not “iniquity” or “sin,” we remain with the original law, that one witness is enough. On this view there is no room for dispute regarding the exclusion, and it stands to reason that all cases that are neither iniquity nor sin are excluded as well, though testimony concerning a woman is not relevant here, because according to the Babylonian Talmud the sufficiency of one witness in that case is only a rabbinic rule.

Another difference is that immediately after this exposition there appears a Tannaitic source teaching that wherever two witnesses impose monetary liability, one witness imposes an oath. Why do we need this source?

In the course of the Talmudic discussion this addition is needed, because the aim of Rav Nahman bar Yitzhak is to prove that the oath imposed by one witness applies even to a claim of a single perutah, and does not require the minimum of two silver coins, as in the oath of partial admission. But apparently this addition also solves the problem we noted above: how do we know at all that witnesses can impose an oath? The baraita teaches us a tradition that witnesses can indeed impose an oath. We can now return to the verse and learn the exclusion that liability for an oath is not included in “iniquity” or “sin,” and therefore does not require two witnesses. Without a source that there is any oath obligation imposed by witnesses, it would be very difficult to derive from this verse that one witness imposes an oath.

And indeed, in Babylonian Talmud, Ketubbot 87b, Rabbi Yose’s exposition also appears without dissent, and immediately afterward comes this same addition, though there its source appears to be Amoraic, since the wording is “and the master said.” There is nothing in the discussion there that requires this addition. It therefore appears that in both Talmudic passages this addition is part of the exposition itself. This difference too probably indicates that in the Babylonian Talmud the exposition is not a unique derivation regarding an oath, but an ordinary exclusion of everything not included in “iniquity” or “sin.” Therefore a separate source is needed for the fact that the Torah contains an oath imposed by witnesses, and then that too can be excluded by our verse.

In Rav Nahman bar Yitzhak’s exposition in the Babylonian Talmud, the kal va-homer raised by Rabbi Yose in our source does not appear at all. Perhaps this difference too is connected to the points we have made above. Since in the Sifrei this is not an ordinary exclusion but a derivation whose whole purpose is to teach that one witness suffices for liability for an oath, and perhaps even to teach the existence of the oath obligation itself, an argument is needed to explain why we chose precisely this exclusion rather than, for example, testimony concerning a woman. In the Babylonian source all exclusions are accepted, so there is no need to justify the selection of the oath in particular. This kal va-homer will be discussed in the next section.

B. Rabbi Yose’s Reasoning: Is There a Formal Kal va-homer?

Introduction

In the previous section we dealt with the character of the oath imposed by one witness, as it emerges from the expositions in the Sifrei and in the Babylonian Talmud. We saw that there is probably a difference in their underlying approach. According to the Babylonian Talmud, the exposition is a straightforward plain-sense consideration: the Torah’s innovation that two witnesses are required was stated only regarding what is included under “iniquity” and “sin.” Everything else is excluded and remains under the law of one witness. By contrast, according to the Sifrei this seems to be a special exposition teaching that the Torah contains a witness-based oath obligation, and that only one witness is needed for it. There is no general exclusion of everything not included under “iniquity” and “sin,” but rather a specific exclusion.

It is reasonable to think that this disagreement is related to the different understandings we saw regarding the oath imposed by one witness. According to the Sifrei, it is clear that the oath obligation is independent, and is imposed when there is one witness regarding money. According to the Babylonian Talmud, there is room for the conception that the basic liability is monetary, except that when there is only one witness regarding the money, one can escape that liability by means of an oath.

In this section we shall discuss the kal va-homer raised by Rabbi Yose, and we shall see how it too fits into the overall tendency of the midrash.

Description of the Kal va-homer

As noted, Rabbi Yose derives from this verse that the Torah intends here to exclude liability for an oath from the requirement of two witnesses. At first glance this is a textual exclusion, yet he also brings a kal va-homer for it, which is ultimately rejected.

The course of Rabbi Yose’s reasoning is far from clear. Even the wording is unclear, and it is difficult to determine which is the source case and which is the target case. Seemingly, the target case is the oath imposed by one witness, for that is what requires a source. The source case is apparently “his mouth,” that is, admission. But admission as such does not impose an oath unless the defendant admits only part of the claim. It therefore seems that the source case is the oath of partial admission. Now that we know which is the source case and which is the target case, we still need to understand the movement of the kal va-homer itself.

A kal va-homer is supposed to be built on the greater severity of the target case compared to the source case. But a person’s admission is ordinarily stronger than one witness, and even stronger than two witnesses, as expressed by the rule, “the admission of a litigant is like one hundred witnesses.” If so, how can we construct a kal va-homer from the stronger admission to the weaker testimony of one witness?

The reasoning begins by claiming that “his mouth” is weaker, because it is irrelevant to capital liability. The force of a litigant’s admission exists only with respect to money, but in capital cases, even if a person admits, he is exempt, because “a person does not render himself wicked”; see Babylonian Talmud, Sanhedrin 9b and parallels.

If so, the kal va-homer is apparently this: a person’s admission does not help impose capital punishment. It also does not help combine with one witness to impose capital punishment, since two witnesses are required for a capital conviction. By contrast, one witness does combine with another witness in order to impose capital punishment. It follows that one witness is more severe than a person’s admission. We can now learn from the oath of partial admission: if one’s own admission suffices to impose an oath, then the testimony of one witness, which we have seen to be stronger, should certainly suffice to impose an oath.

The wording of the derivation is problematic, because it speaks of one witness combining with another witness for monetary liability rather than for capital punishment. But it is difficult to understand the reasoning on the basis of the wording that appears in the Sifrei.

The rejection of the kal va-homer is also unclear. It can apparently be understood in two ways, though neither fits the wording of the Sifrei smoothly:

1. An objection of irrelevance. Partial admission, which generates an oath, does not operate directly. It is not the admission itself that imposes the oath. Rather, admission of part of the money raises suspicions regarding the rest of the money being claimed, and with respect to that remainder the defendant must swear. If so, it is not the strength of the admission that is operative, but the suspicion aroused by the partial admission. Therefore there is no room to infer that one witness imposes an oath from the principle that the evidentiary strength of one witness is greater than the evidentiary strength of admission.
2. An objection to the generalization of the kal va-homer. Admission is not necessarily weaker than one witness, for it also has a stricter side: it makes the admitting party liable for money, like two witnesses, whereas one witness can never impose monetary liability.⁷

Problems with the Kal va-homer

In both versions we are left with a kal va-homer that is hard to understand. In general, what is being proposed here is a kal va-homer from a person’s own admission to one witness, even though a person’s own admission is not at all what imposes the oath in the case of partial admission. Beyond that, the admission relates to the amount that the defendant really must pay, while with respect to the rest there is no admission at all, since the defendant denies the remainder of the debt.

Admittedly, the first way of understanding the rejection says exactly this. But then it is unclear how such a kal va-homer could ever have been proposed in the first place. According to the second way of understanding the objection, this line of reasoning remains valid even in the conclusion, except that there is another objection showing that a person’s admission also has a stricter side. Hence the severity that we identified, though correct in principle, is not enough to ground the kal va-homer.

How, then, are we to understand the assumption that underlies the generalization, namely that the oath in the case of partial admission is caused by the admission itself? This difficulty leads us to a similar kal va-homer that we find in the first passage of Rabbi Hiyya, and we now turn to that discussion.

The First Passage of Rabbi Hiyya⁸

As is well known, when Reuven claims that Shimon owes him two hundred, and Shimon admits one hundred, or any other part, so that there remains at least two silver coins in the denied portion, Shimon must swear concerning the rest. This is the oath of partial admission, one of the three Torah oaths, the other two being the oath of bailees and the oath imposed by one witness.

What is the law if Shimon denies the entire claim, and then two witnesses come and testify to one hundred from the two hundred being claimed? Rabbi Hiyya rules, in Babylonian Talmud, Bava Metzia 3a, that in such a case too Shimon must swear concerning the rest:

Rabbi Hiyya taught: If one says to another, “You have one maneh of mine in your possession,” and the other says, “You have nothing of yours in my possession,” and witnesses testify that he owes him fifty zuz, he pays him fifty zuz and swears concerning the rest, so that a person’s own admission should not be greater than witness testimony, by a kal va-homer.

What does it mean, “so that a person’s own admission should not be greater than witness testimony, by a kal va-homer”? Lest you say: it is specifically a person’s own admission upon which the Merciful One imposed an oath, in accordance with Rabbah. For Rabbah said: Why did the Torah say that one who admits part of the claim must swear? Because there is a presumption that a person does not brazenly deny his creditor to his face. This one wanted to deny the whole thing, but did not deny it all because a person does not brazenly deny his creditor; and he really wanted to admit the whole thing, but did not admit it all because he is merely trying to evade him for the time being, saying to himself, “Until I have money, I will pay him.” Therefore the Merciful One imposed an oath on him so that he will admit the whole thing. But in the case of witness testimony, where this explanation cannot be given, I might say no. Therefore the kal va-homer teaches us otherwise.

And what is the kal va-homer? If a person’s own mouth, which does not make him liable for money, nevertheless makes him liable for an oath, then witnesses, which do make him liable for money, should all the more so make him liable for an oath. But does his own mouth not make him liable for money? after all the admission of a litigant is like one hundred witnesses. What, then, does “money” mean? Fine. If his own mouth, which does not make him liable for a fine, nevertheless makes him liable for an oath, then witnesses, which do make him liable for a fine, should all the more so make him liable for an oath. But what is true of his own mouth? It makes him liable for a sacrifice. Will you say the same of witnesses, who do not make him liable for a sacrifice?

Rather, it is derived from one witness. If one witness, who does not make him liable for money, does make him liable for an oath, then witnesses, which do make him liable for money, should all the more so make him liable for an oath. But what is true of one witness? The oath concerns precisely what he testifies to. Will you say the same of witnesses, where the oath concerns what the defendant denied?

Rather, Rav Pappa said: It comes from the rolling over of an oath in the case of one witness. But what is true of the rolling over of an oath in the case of one witness? One oath drags another oath with it. Will you say the same of witnesses, which impose monetary liability? His own mouth proves otherwise. But what is true of his own mouth? It cannot be contradicted by witnesses. One witness proves otherwise, for he can be contradicted and still imposes an oath. But what is true of one witness? The oath concerns what he testifies to. Will you say the same of witnesses, where the oath concerns what the defendant denied? His own mouth proves otherwise. Thus the law returns: this case is not like that case, and that case is not like this case. Their common denominator is that they arise through claim and denial, and an oath is imposed. So too I will bring witnesses, which likewise arise through claim and denial—and he swears.

Rabbi Hiyya derives that testimony to part of the claim imposes an oath by means of a kal va-homer. Partial admission imposes an oath on the basis of Rabbah’s reasoning, according to which there is concern that someone who admits only part is lying and reducing the debt merely in order to postpone payment of the remaining part. We do not suspect a person of lying out of sheer wickedness, because he enjoys both a presumption of honesty and the presumption attached to money in his possession. This concern does not exist in the case of testimony to part of the claim, because here the defendant has admitted nothing at all, and the witnesses are certainly not suspected of lying on his behalf. If so, the reasoning behind the oath of partial admission does not exist in the case of testimony to part of the claim, and the oath liability created by witnesses must therefore be learned by a kal va-homer.

Already here, even before we spell out the kal va-homer, we can see that this is a problematic structure. The distinction between Rabbah’s reasoning in partial admission and the case of testimony to part of the claim could itself serve as an objection to any kal va-homer that might now be brought. If we want to derive from partial admission to testimony to part of the claim, we can reject the inference as follows: what is true of partial admission, where there is concern that the defendant merely wishes to temporize, is not true of testimony to part of the claim, where there is no such concern.

What Is the Kal va-homer? First Proposal

The first proposal for explaining Rabbi Hiyya’s kal va-homer is this: if a person’s own mouth, which does not make him liable for money, does make him liable for an oath, then witnesses, which do make him liable for money, certainly make him liable for an oath. The Gemara then begins a discussion of why his own mouth does not make him liable for money, since the admission of a litigant is like one hundred witnesses.

Here we encounter reasoning very similar to what we saw in the Sifrei. Let us assume that a person’s own mouth does not make him liable for money, so that the generalization that witness testimony is stronger than admission remains valid. Even so, this kal va-homer still fails because of the objection of relevance that we presented above: it is not a person’s own mouth that imposes the oath, but Rabbah’s reasoning about the concern of evasion. Here the difficulty is even sharper, because Rabbah’s reasoning is presented explicitly in the passage itself, and the kal va-homer comes to solve the problem that testimony to part of the claim is not analogous to partial admission in that respect.

To be sure, from another angle the difficulty is less sharp here. Even in the case of witnesses, they are not what imposes the oath, since they testify concerning the portion on which no oath is taken. In that sense, testimony to part of the claim and partial admission are symmetrical. Even so, it remains unclear why the fact that witness testimony is stronger than admission can explain the imposition of an oath concerning the remainder—especially since the concern invoked by Rabbah, because of which the oath was instituted, does not exist in the case of testimony to part of the claim.

What Is the Kal va-homer? Second Proposal

The Gemara proposes that Rabbi Hiyya’s kal va-homer is from one witness to two witnesses. Since one witness is weaker than two, if one witness imposes an oath, then two witnesses should certainly impose an oath as well.⁹

Here the earlier difficulty reappears. In the case of one witness, the testimony imposes an oath, whereas in the case of two witnesses testifying to part of the claim, the oath is imposed on the remainder. It is therefore clear that the oath does not arise directly from the testimony.

It is quite possible that this is precisely the rejection raised by the Gemara here: with one witness, the defendant swears regarding the very matter to which the witness testifies, unlike the case of two witnesses testifying to part of the claim, where he swears about the excess. Still, it remains unclear what the Gemara’s initial thought was, exactly as in our midrash.

In the end, the Gemara derives the oath obligation in the case of testimony to part of the claim through a common-denominator argument from one witness and a person’s own mouth.

Formal Kal va-homer

The difficulties we have raised, both in our midrash and in the first passage of Rabbi Hiyya, are based on the assumption that a kal va-homer must rest on logical reasoning. If it is not the admission that imposes the oath, then some other factor, even if stronger than admission, does not necessarily impose an oath.

But is kal va-homer really a logical rule? At first glance, all these examples seem to indicate that there is such a thing as a purely formal kal va-homer. A formal kal va-homer works as follows:[^12]

• Premise A, the minor or particular premise: we find law X in subject A.
• Premise B, the major or general premise: one can prove by generalization, usually from the existence of law Y in B and not in A, that subject B is more severe than subject A.
• Conclusion: law X should apply to subject B as well.

Formal objections can address only the generalization. If we find a stringent law Z that exists in subject A but not in B, then we have shown that A has a stringency relative to B, and therefore the generalization is invalid.

But what about relevant objections? In a formal kal va-homer there are no relevant objections, because we do not assume any relation of relevance between the source case and the target case. The assumption that there must be such a relevant connection is exactly what led us to the difficulties raised above. Our conclusion, then, is that a formal kal va-homer assumes no relevance requirement. Consequently, proof that no relevant connection exists does not refute the kal va-homer.

In our example, the fact that the oath obligation in partial admission is not caused by the admission does not refute the formal kal va-homer, because it does not undermine the generalization that testimony to part of the claim, or one witness, is more severe than partial admission. The conclusion is that if the kal va-homer in the Sifrei is indeed formal, then the objection raised against it must be objection 2, not objection 1 in our earlier numbering. Objection 1 is an objection of lack of relevance, and such an objection cannot attack a formal kal va-homer.

Is Kal va-homer Really a Formal Rule?

In the page on Parashat Shemini we saw that the relevance of the parameters does matter in the rule of kal va-homer. This implies that kal va-homer is not a merely formal rule but a logical one. To be sure, it is possible that in halakha there are two kinds of kal va-homer, one formal and one logical. But if we can interpret the kal va-homer arguments we have encountered here on a logical basis, then we can remain with ordinary common sense, which understands kal va-homer as a logical rule rather than a purely technical and formal one.

A Logical Understanding of Rabbi Hiyya’s Kal va-homer

The first passage of Rabbi Hiyya is a difficult one, and we cannot enter into all its details here. We shall therefore point to a possible direction for understanding Rabbi Hiyya’s kal va-homer logically.

Several later authorities, see for example Nahalat David there,¹⁰ noted that Rabbi Hiyya’s kal va-homer is based on the understanding that the oath of partial admission does not arise from Rabbah’s concern of evasion. Rabbah’s concern serves only to explain why the defendant is not exempt from oath and payment under the rule of one who voluntarily returns lost property, or by virtue of a migo argument, that is, an argument based on what he could have claimed; see Rashi and Tosafot on Babylonian Talmud, Bava Metzia 3a, end of the folio. The basic oath obligation itself arises because the admission or the testimony creates a situation in which the plaintiff has a drara de-mamona, that is, a concrete monetary foothold or connection. In other words, the admission or the testimony creates a situation in which it is clear that the defendant owes the plaintiff something, and the defendant is therefore placed in a defensive posture, trying to claim that the debt is smaller than the plaintiff asserts. For that reason the defendant becomes obligated to swear.

According to this understanding, it is also clear that the fact that Rabbah’s reasoning does not apply in the case of testimony to part of the claim is not an objection to the kal va-homer. We have seen that Rabbah’s reasoning is not the basis of the oath obligation itself, but only the removal of an obstacle to the creation of that obligation. The kal va-homer teaches us that there is an oath obligation even in the case of testimony to part of the claim. Here neither migo nor the rule of one who voluntarily returns lost property arises at all, so there is no basis to exempt the defendant from the oath. Consequently, there is no need for Rabbah’s reasoning to neutralize the migo. On this fundamental level, the parallel between testimony to part of the claim and partial admission is complete and logical, not merely formal.

If so, the kal va-homer from a person’s own admission to witnesses is very easy to understand. If the weaker force of admission creates certainty that a debt exists, then witness testimony certainly creates such certainty. Here the dependence on the strength of the evidence is plain, and the kal va-homer is entirely logical.

The kal va-homer from one witness to testimony by two witnesses to part of the claim can also be understood in this way. These are two mechanisms that create a duty of defense for the defendant, and thus bring him under an oath obligation. Therefore, if two witnesses are stronger than one witness, a logical kal va-homer can be drawn between them.

We should note that this understanding of the oath of partial admission is plausible only on the basis of the view that the oath obligation is not an exemption from monetary liability, but an independent obligation. It is not reasonable to say that the drara de-mamona created by the admission is enough to create monetary liability. With respect to the oath imposed by one witness, however, there is still room for discussion, since it may be that his testimony is enough to impose monetary liability unless the defendant swears. One witness does not merely create a drara de-mamona but constitutes actual evidence against the defendant. Above, however, we suggested a similar direction even in the second understanding of Rabbi Hiyya’s kal va-homer, and according to that view the oath of one witness too belongs to the same type as the oath of partial admission.

A Logical Understanding of the Kal va-homer in the Sifrei

In the Sifrei, the kal va-homer proceeds from a person’s own admission to one witness. If the understanding we proposed regarding Rabbi Hiyya’s second kal va-homer is correct, then the testimony of one witness too does not constitute evidence sufficient to extract money from the defendant, but only enough to impose an oath obligation. On that basis, the parallel to the kal va-homer from one witness to two witnesses who testify to part of the claim also becomes plausible. In both situations a drara de-mamona is created, and the kal va-homer shows that the force of one witness is stronger than that of partial admission. Therefore the testimony of one witness too should generate an oath obligation.

At this point we return to the conclusion of our first section, according to which the Sifrei does indeed hold that the testimony of one witness imposes an oath obligation. According to the Sifrei, liability for the oath is an independent obligation and not merely a way of escaping monetary liability. We can now see that on this view the kal va-homer too can be understood logically, and there is no need at all to claim that this is a technical-formal rule without any underlying rationale.

In conclusion, we should note that some commentators on the passage of Rabbi Hiyya do in fact tend to explain the kal va-homer as a formal rule. Perhaps this stems from a view that Rabbah’s reasoning really is the fundamental basis of the oath of partial admission, unlike the view of Rashi and Tosafot. According to this approach, there is concern that the defendant owes money, and we impose an oath upon him in order to prove that he is not merely evading payment and trying to delay repayment.

On this point, see also the Mibeit Levi Haggadah, Brisk,¹¹ in the commentary on the liturgical poem “Who Knows One,” in the section dealing with the thirteen hermeneutical principles. There it is argued that kal va-homer is not a logical rule but a formal consideration, as one would expect in the Brisker conception. We shall not discuss the proofs cited there. We merely refer the reader to the page on Parashat Bereshit, which discusses the example of the kal va-homer made by the grasses at the creation of the world, cited there as proof that kal va-homer is a formal rule, and to our discussion on the page for Parashat Shemini.

Footnotes