Objectivity and Subjectivity in Halacha and in General – Lecture 9

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[Speaker F] But what’s the alternative here? Meaning, okay, a litigant’s admission is not like a hundred witnesses, and you’re conducting the trial and the person says, “But I owe him the money, why are you confusing me?”

[Rabbi Michael Abraham] No, so as I said, then you’re not conducting a trial. If he admits that he owes you the money, why are you coming to a religious court? If you came to a religious court, that means that in the end he doesn’t want to give you the money. It’s just that within what he said there was some admission about a certain component, like: “This document isn’t forged, I admit that, but I already paid.” He doesn’t want to pay you. So you take me to a religious court. Then in the religious court it becomes clear that regarding the reliability of this document itself, that it isn’t forged, there is my admission as a litigant. Not that I owe you—I’m saying I paid—but on that point there is an admission. Or someone who says, “Whoever says ‘I never borrowed’ is as though he said ‘I never repaid.’” He tells you: “It never happened.” So that is a litigant’s admission that I didn’t repay. Now if witnesses come and say there was in fact a loan, just as I lied when I said there was no loan, now I’ll have to pay. But I’ll have to pay not because of the witnesses, because the witnesses only said there was a loan—maybe I repaid? But I admitted it. I admitted that I didn’t repay, because saying “I didn’t borrow” is as though saying “I didn’t repay.” And the admission is always—this is exactly the point—the admission is always what leads to the result. Exactly. In the end there’s a dispute between us, otherwise we wouldn’t have come to a religious court, but within that dispute I somehow shot myself in the foot. And my admission puts into the other side’s hands a tool that can extract the money from me, win the case, prevail in court. Okay. So that’s the basic problem regarding a litigant’s admission. Again, once more, it may be that this comes from the verse, but we still have to understand the definition. How does this fit with the principle that a person cannot make himself wicked? There we see that a person is not believed to admit something that would incriminate himself on the prohibition side. And there’s a third law, what I mentioned earlier, which fits with a litigant’s admission but not with the issue of a person making himself wicked, and that is self-imposed prohibition. If a person says that a certain thing is forbidden—for example, if I say this piece of meat is pork. Now two witnesses come and say, “What are you talking about? It’s kosher meat.” I’m forbidden to eat it, because of self-imposed prohibition. I established that this thing is forbidden, so for me it’s forbidden. Others can eat it—there are two witnesses saying it’s kosher meat. Right? Or if a woman says, “I’m a married woman,” or “I’m divorced and therefore forbidden to a priest,” then she establishes a prohibition on herself. So she becomes forbidden by what she said. Self-imposed prohibition. Why isn’t this “the mouth that forbade is the mouth that permitted”? What?

[Speaker D] Why isn’t there “the mouth that forbade” in self-imposed prohibition? “The mouth that forbade is the mouth that permitted.”

[Rabbi Michael Abraham] No, where “the mouth that forbade is the mouth that permitted” applies, fine. If two witnesses come and say otherwise—then in the ordinary case of “the mouth that forbade is the mouth that permitted,” she really does become forbidden to a priest if she said she had been a married woman and is now divorced, but when two witnesses come and say no, still, as far as she herself is concerned, it remains self-imposed prohibition.

[Speaker D] And if she retracts, does that remove the prohibition? Meaning, if she says that really I lied or something like that?

[Rabbi Michael Abraham] I don’t think so—only if she gives an explanation for her words. But if she explains what happened there, why she really lied, if she gives an explanation I think she can retract. So these laws—we do have to understand the relationship between them. Self-imposed prohibition and a litigant’s admission work: a person can testify about himself despite being related to himself, despite all those things. But “a person cannot make himself wicked”—there, no. A person can’t say about himself that he’s a criminal. Now look, the next source you have is Ketzot, section 34, paragraph 4, and there he brings a very well-known dispute, a famous Ketzot, regarding a litigant’s admission. Two explanations of what the idea is behind a litigant’s admission. Let’s see. In the responsum of Mahariv ben Lev he was uncertain whether someone who takes payment to testify is disqualified rabbinically or by Torah law. Yes, the Shulchan Arukh writes that someone who takes payment to testify is disqualified from testifying. If he received payment in order to testify, he is disqualified, because he has an interest in the matter. The question is whether that’s rabbinic or Torah-level. And he tied this uncertainty to another uncertainty discussed there. Is someone with an interest disqualified because we suspect him of lying for his own benefit? If so, then one who takes payment to testify is also disqualified by Torah law, because we suspect him of lying. But if the disqualification of someone with an interest is because a person is related to himself, but we do not suspect him of lying, then one who takes payment to testify is valid by Torah law. He says: someone with an interest in the matter, okay, who is disqualified from testifying about it—why? Because he’s suspected of lying? Since he has an interest, maybe he’s self-serving and maybe he’s lying. If so, then someone who takes payment to testify is the same thing—he too is suspected of self-interest; he gets money to testify, so maybe they paid him just to give that testimony and not to tell the truth. Okay. But if the disqualification of someone with an interest is only because—say—someone testifying about himself is disqualified only because a person is related to himself, that’s a disqualification of kinship, not a concern for lying—okay? In that case, someone who takes payment to testify is valid, because he’s not testifying about himself. If he’s not testifying about himself, then what’s the problem? His testimony can be accepted. So Mahariv ben Lev’s uncertainty, whether he is disqualified by Torah law or not, or only rabbinically, depends on how we understand the disqualification of someone with an interest: is it concern for lying, or is it an intrinsic disqualification, like kinship? And since one who takes payment is valid by Torah law and we are not concerned that for monetary benefit he would give false testimony—that is Ketzot’s conclusion at the end, I skipped a bit here—so he concludes in the end that such a witness is valid by Torah law. Now it requires explanation: why is someone with an interest disqualified by Torah law, if we are not concerned that for monetary benefit he would lie? Yes, if Ketzot’s conclusion is that someone who takes payment is valid by Torah law, then we saw in the previous paragraph that this is based on the understanding that the law of someone with an interest is not because of concern for lying. So why is he disqualified? So Mahariv ben Lev says, and this is the language of the responsum there: if someone with an interest is disqualified because he is like a relative, then why is he believed when it works against himself? Someone with an interest, when he testifies to his own detriment, is believed. When he testifies to his own benefit—yes, when he has an interest and his interest is positive—then he is disqualified. But if he testifies against his own interest, then he is valid, and that is basically a litigant’s admission. For a relative is disqualified whether it helps or hurts—exactly what I asked earlier about a litigant’s admission, right? So he asks the same thing about someone with an interest. And he concludes there—this is the question Mahariv ben Lev himself asks—and Mahariv ben Lev’s conclusion, very famous words, is that the reason he is valid to his own detriment is that we approach it as obligation and as gift. Since a person can obligate himself even when he is not obligated, this one who admits he is obligated is as though he said, “I owe you a maneh,” and he can obligate himself, as the author of Sefer HaTerumot wrote, etc. So really, Mahariv ben Lev says, a litigant’s admission is not credibility at all. A litigant’s admission is a gift. I’m giving you a gift, that’s all. Now I agree, I’m giving you a gift, everything’s fine. And seemingly, what bothered him regarding the reason of “relative”—why is he believed to his own detriment?—one could have said that we approach it through a “since”: since he could have given it to him as a gift. Yes—why is he believed to testify against himself? Very simple: he could have given as a gift the money he’s losing, so he has a “since.” Since he could have given it as a gift, he is also believed to say that he owes it. All this is basically also a justification for why a litigant’s admission is believed, yes, that’s the “what.” As it says in the chapter Asarah Yuchasin, in the chapter Yesh Nochalin, etc. But if so—he skips a little—if so, if there were witnesses against him that he is not liable, then a “since” no longer applies, because it would be a “since” in a place of witnesses, yes, and also regarding “this is my firstborn son,” etc. But a litigant’s admission is believed even against witnesses, and if so, we cannot say it is by virtue of a “since.” He says that really, if your credibility as a litigant’s admission is by virtue of “since,” because you could have given this money as a gift—if that were so, then it’s hard to understand how it works even against witnesses. A “since” does not work against witnesses. We discussed that, yes? If I admit that I owe, even if witnesses come and say I already paid, I still have to pay. Why? If a litigant’s admission is by virtue of “since,” and there are witnesses against me, a “since” against witnesses doesn’t work. Rather, there is also a major difficulty with Mahariv ben Lev’s reason, because in the case where someone says “it never happened,” and afterward witnesses come, he is not believed to say “I paid,” even though witnesses testify that he paid, because he is believed about himself more, and “whoever says ‘I did not borrow’ is as though he said ‘I did not repay.’” And there you can’t say it is in the category of a new obligation, because on the contrary, he is trying to exempt himself with the claim “I paid.” Moreover, for a new obligation we certainly require “you are my witnesses,” and without “you are my witnesses” it is nothing. A person who comes to obligate himself has to designate witnesses and say, “You are my witnesses, I now intend to obligate myself to so-and-so.” Because otherwise afterward he can deny it and say, “I didn’t mean it seriously, I was joking with you,” etc. Obviously, if he wants to give, nobody will tell him not to give—give. The whole dispute always begins when he doesn’t want to give. So what—he admitted? You obligated yourself to me? He says, “No, I didn’t obligate myself, I was joking with you.” If you put two witnesses there, that shows seriousness, right? Now here, when a person says—let me remind you again of the case. Someone comes and claims one hundred shekels from me, and I say, “It never happened, I never borrowed anything from you.” Now witnesses come that I did borrow. That still doesn’t mean I didn’t repay; maybe I repaid. And the witnesses say I borrowed, so I was basically lying when I said “it never happened,” right? So now witnesses come and say I borrowed, and now I say, “I paid.” You can’t say “I paid,” because whoever says “I did not borrow” is as though he said “I did not repay.” There is your own litigant’s admission that you did not repay. That admission is effective even if witnesses come that you also repaid the loan. Okay? That’s what we said before. Now let’s think for a moment before the witnesses—does this fit with Mahariv ben Lev, this litigant’s admission? Obviously not. Mahariv ben Lev says a litigant’s admission works because I can give a gift, because I’m basically giving a gift, right? Here I didn’t intend to give a gift. After all, I said “it never happened.” Was I intending to give gifts? I intended to brush you off. It’s just that within the words “it never happened” I also admitted that I didn’t repay, right? This was some sort of admission with no accompanying intention to give you money—quite the opposite, after all the purpose of my argument was to get rid of you. So how can you explain that a litigant’s admission is believed because he’s basically giving a gift here? Here he certainly did not intend to give a gift, and of course he also didn’t say “you are my witnesses,” etc.—that’s another whole issue. So according to Mahariv ben Lev, it’s impossible to understand why such a thing is called a litigant’s admission. He asks further: moreover, we say at the beginning of the first chapter of Bava Metzia, “A person’s own admission should not be greater than the testimony of witnesses. Just as his own mouth, which does not obligate him monetarily, does obligate him to an oath, then witnesses, who do obligate him monetarily, should certainly obligate him to an oath.” There it’s talking about witnesses who testified that you snatched a hundred from me and I deny it. Then two witnesses come that I owe fifty. Total denial is exempt from an oath, okay? But then two witnesses come and testify that I owe fifty. The question is whether I am obligated to swear regarding the other fifty. The fifty I have to pay. The question is whether regarding the other fifty I have to swear. The Talmud says: if by his own admission he is obligated to swear about the rest, then by the admission of witnesses, which is more severe than his own admission, he is certainly obligated to swear. Okay? So the Talmud says, why should it be—

[Speaker B] A litigant’s admission greater than witnesses? What?

[Rabbi Michael Abraham] Even though a litigant’s admission is greater than witnesses—the Talmud itself notes this later there. Rather what? Because he does not pay a fine by his own admission? Doesn’t matter. You would say with witnesses, who are not by your own mouth. And if the reason of “his mouth” is gift and self-obligation, then how does contradiction and refutation apply? For certainly in the case of a gift he can give it. So in what way is his own mouth stronger than witnesses? How can you tell me his own mouth is stronger, stronger than witnesses? The challenge, yes, that his own mouth is stronger than witnesses. But his own mouth is not believed by his admission; he is giving gifts. That’s not credibility. When you want to compare a litigant’s admission to witnesses, and you want to say that a litigant’s admission is stronger than witnesses—that’s not true. A litigant’s admission is not stronger than witnesses; a litigant’s admission is giving a gift. If a litigant’s admission were credibility, and you see that it works against witnesses, then you’d say apparently a litigant’s admission is stronger than witnesses. But if a litigant’s admission is giving a gift, then what is the point of comparing it to the credibility of witnesses? Witnesses have maximal credibility, and if he wants to give gifts, let him give gifts. Okay? Therefore there too it appears that this is credibility and not giving a gift. Therefore it seems—I’m moving to the next paragraph—that the reason a person is believed about himself even though he is related to himself is because of a decree of Scripture that a person is believed about himself despite all the disqualifications he has. And the light of the world, Rashi in Kiddushin, has already illuminated our eyes. What is the Rashi we saw? “A litigant’s admission is like a hundred witnesses,” because it says: “that he says: this is it”—so Scripture relied on part of his admission. And if so, just as the Torah believed two witnesses regarding others, so too the Torah believed every person regarding himself, even though he is related to himself. For the Torah only disqualified a relative regarding others, but regarding himself he is believed. Not so when it is to his benefit, because then he comes to testify about others, and therefore he is not believed. To testify about himself to his own benefit, meaning to obligate others, of course he is not believed. Okay? Because he is only one witness; regarding others, one witness is not believed. One witness, and also someone with an interest, etc. So in practice he disagrees with Mahariv ben Lev. Mahariv ben Lev says this is simply because it is giving a gift, because he is like a relative and a person has no credibility regarding himself, so apparently it is giving a gift. But Ketzot has very strong objections: you can’t say what Mahariv ben Lev says. There’s just no such thing; you can’t say what Mahariv ben Lev says. It’s clear that this is credibility. That’s what he says, and that’s what Rashi brings from the verse; therefore you also need the verse to tell you that this is credibility. Let’s read a little more. And in the Shakh, section 37, he also wrestled with this matter, with the reason a person is believed about himself to his own detriment. And this is his language: where there is benefit and he is called “interested,” he is considered like a relative. But where he testifies to his own detriment, he is not “interested” and is not considered like a relative. What is he saying? If I’m your relative, I’m forbidden to testify about you. Where does my closeness to you come from? Biologically—what, I’m your brother, your father, something else. If I have an interest in the matter, why am I considered like a person related to himself? Because I’m testifying about my own money; I’ll lose money, right? The Shakh says: but that’s all if I testify to my own benefit. But if I testify to my own detriment, then I’m not a relative. The “closeness” here is not biological; here, someone with an interest is considered like a relative only as long as he has an interest. But if he has no interest, then he is not a relative. His definition as a relative is not objective; it is because of the interest. So when you testify in your own favor, then it’s like a relative—you testify in your own favor and you are treated like a relative. But if you testify to your own detriment, then you’re not a relative. It’s not that a relative is believed to testify to his own detriment; rather, when he testifies to his own detriment, he is not a relative.

[Speaker D] But a relative is disqualified whether it helps or hurts.

[Rabbi Michael Abraham] נכון. Because with an ordinary relative, the relationship is biological. So it makes no difference to me whether you become liable or exempt. But here, the whole reason you are defined as a relative in this context is because it has some implication in your favor. So you are considered as if you are a relative. Someone with an interest is like a relative. Fine—but that’s when there’s an implication in your favor. If it’s an implication against you, then you’re not a relative. There, the relative is still a relative even when testifying to his own detriment. He may not be self-interested, but he’s still a relative. But here, if he’s not self-interested, then he’s also not a relative.

[Speaker C] Why is an implication to one’s detriment less “closeness” than an implication to one’s benefit?

[Rabbi Michael Abraham] Because the whole closeness here is founded on the fact that I gain, that I have an interest in gaining.

[Speaker C] But seemingly there should also be closeness because I have an interest in losing. That’s also closeness? No, no closeness. No.

[Rabbi Michael Abraham] You’re “close” only on the side of an interest in gaining, not on the side of an interest in losing. You don’t have an interest in losing—you lose, but you don’t have an interest in losing. That’s credibility. Interest. Interest is closeness. Interest is closeness. And I don’t know why they struggled over the disqualification of a relative more than with the other disqualifications of testimony. The Shakh says the Shakh’s words are not difficult. Obviously, if he testifies to his own detriment—he is talking about the fact that the person is also only one witness. Besides the disqualification of kinship, he also has the disqualification of being just one witness. That’s less; he is, as it were, one witness. He just has another disqualification, that he is also one witness. And some wrote also regarding the law of self-imposed prohibition in Ketubot that it too is by the law of a vow. I mentioned that law earlier. For the same reason: if a person testifies about himself that something is forbidden to him, or that he is forbidden in some matter, then again, it’s testimony about himself. How do you accept such testimony? Even if he harms himself by it, still it becomes forbidden to him. So some people, following exactly what Mahariv ben Lev said about a litigant’s admission—that it is a gift—say that self-imposed prohibition is like a vow. The person vows to forbid this thing to himself. Let’s say I say that this meat is pork. Two witnesses come and say that this meat is kosher meat. So I am forbidden to eat that meat. Why? There are two witnesses—what’s the problem? And I am, after all, related to myself; why in the world should I have testimony against two witnesses? I’m also only one witness and testifying about myself, etc. So the solution they offer, parallel to Mahariv ben Lev, is that it’s a vow. He vowed prohibition from this meat, as if it were pork. Fine? But I saw in Maharit that he rejected this and wrote that if it were by the law of a vow, then it should be effective through annulment. He could ask to have it permitted. He could retract, yes, or ask for annulment. Therefore he rejected that, and therefore he says also regarding the law of self-imposed prohibition, Ketzot says exactly as I said regarding Mahariv in the law of a litigant’s admission: we learn it from the verse “this is it.” The Torah introduced the novelty that a person has credibility about himself despite all the problems in this matter—that he is testifying about himself, that he is related, whether to his detriment or his benefit, and all sorts of things like that. In the end, the Torah itself says that a person can have absolute credibility regarding himself. And therefore this also applies in self-imposed prohibition, in matters of prohibition, and in a litigant’s admission. But there is still something to analyze—in the end he remains with a certain difficulty against himself that he doesn’t know how to solve. How do we know that a litigant’s admission is stronger than witnesses? If this were a vow or a gift or something like that, then I understand—no problem that it overcomes witnesses, right? I’m allowed to vow, I’m allowed to give gifts even if the witnesses say I’m not obligated. But if you say this is credibility—there is no credibility greater than two witnesses. There is no such thing. And especially according to Rashi, who says “that he says: this is it”—so according to Rashi, from where in the verse do we learn a litigant’s admission? From “that he says: this is it,” from partial admission, sorry. Right? How do you do that against witnesses? Let’s say you’re believed like two witnesses. Where do you get that it’s stronger than witnesses? Where does that come from if it is really credibility? Here there’s a problem. And this actually favors Mahariv ben Lev. And he leaves it unresolved. He says: that is where there are no witnesses contradicting him, and it is only by virtue of a “since” that he is believed. What “since”? Since he could give a gift, right? That’s what he explained above. Since he can give a gift, therefore he is believed in a litigant’s admission. But then it’s a “since.” Someone who can give a gift—that’s a “since.” But a “since” doesn’t work against witnesses. How can it work against witnesses? So he leaves it unresolved. He doesn’t know how to explain it. Now I want to raise the following claim. I think he didn’t understand Mahariv ben Lev correctly. Not only did he not understand Mahariv ben Lev correctly—Mahariv ben Lev says what he says. And not only does he say what he says, he also solves his own problem, the one Ketzot leaves unresolved at the end. It seems to me that what Mahariv ben Lev means is this: since I can give a gift—that’s Ketzot’s “since.” He is not saying that a litigant’s admission is itself a gift. When I admit that I owe you one hundred shekels, that is credibility. It is not a gift. Mahariv ben Lev agrees too. It is credibility based on the fact that I can give a gift. After all, I can give a gift—who’s going to stop me? This goes back to Ezra’s question earlier. Yes, of course it’s more subtle, because here I don’t really intend to give a gift, as I said before. But my credibility when I admit is simply because I have the ability to give a gift. So what? The intention to give a gift is certainly absent, right? And here I say that doesn’t matter—the intention doesn’t matter now, because I’m not calling it an actual gift. Those were Ketzot’s objections—after all, there’s no intention to give a gift. Someone who says “it never happened” didn’t intend to give you gifts. Right? Correct. But he is believed to say that he didn’t repay because at the end of the day, if he wants to give a gift, he can. In other words, it is within his power to give a gift. And therefore his admission has full force. But then Ketzot asked: fine, but if it’s a “since,” how does it work against witnesses? Right? And with that he remained unresolved. I want to make the following claim. I think what Rashi writes—that we learn from the verse “that he says: this is it”—here we return to the subject of this whole series: this is subjective credibility. A person has absolute credibility over what belongs to his own territory. More than witnesses, more than anything. All the laws of evidence are irrelevant inside my own territory. Inside my own territory, the only one who determines things is me. That’s it, only me. Therefore it doesn’t matter that I am related, it doesn’t matter—“a person is related…” I can’t testify about my relatives. Why not? I testify about myself, I testify about him. When I testify about him, a relative is disqualified. When I testify about myself, the fact that I am related does not interfere. Just as none of the laws of evidence interfere at all. What I say is what determines matters in my domain. In my subjective domain, what I say has absolute credibility. I determine what reality is there. That doesn’t mean it is really reality. For others, maybe they won’t believe it—that doesn’t matter. But I am completely believed. In other words, what I established is the truth from my perspective. That is the claim behind a litigant’s admission. Therefore it works even against witnesses. It works against witnesses not because it is stronger than witnesses as evidence. It’s not the “since” element—since I could have given a gift, so believe me by virtue of “since” that I am credible. That’s not the point. Rather, the fact that I can give a gift is an indication—it’s not a “since.” If I can give a gift, that means it’s mine. Regarding things that are mine, the credibility is only mine—absolute credibility. The fact that I can give a gift is only an indication that we are dealing here with things that are in my own domain. I asked earlier: why, when it harms others, is there no credibility of a litigant’s admission? After all, if the idea is a “since,” then I should be believed. Why should I care that it also harms others? At the end of the day I’m believed—I won’t lie just in order to hurt myself. The answer is that this is not “since”-credibility at all, and not about the problem of harming others or collusion or things like that. Rather, the moment it harms others, it is not your domain. In your domain you have absolute credibility. But if you harm others, if it has implications for others, then it is not your domain. Yes—for example, the husband and wife who both declare by a litigant’s admission that they are betrothed to each other. Okay? So that’s a litigant’s admission. The Talmud says: this harms others. What does that mean? It means this is something with public significance; it doesn’t concern only you. In something that concerns the public, a person has no credibility whatsoever. A person has credibility only regarding things that belong to his personal territory, his subjective domain. And there he has absolute credibility, as we saw regarding dreams in the previous class—I spoke about that. The same thing exists here. It’s the same idea, in my opinion. The same idea. And there too, this is self-imposed prohibition. Two witnesses come and say that this piece is kosher meat, and I say it’s pork. Fine? So people say that this is a vow. Not a vow at all. What does it mean? Just as I can vow, that means it is in my hands. Right? After all, it concerns only me. What concerns me, I have absolute credibility over. The fact that I can vow is an indication that it belongs to my domain. Not that the meaning is that this is literally an act of vow. Rather, the fact that I can vow means that it belongs to my domain, and if it belongs to my domain then I have absolute credibility.

[Speaker D] Exactly like a litigant’s admission. Therefore it also works against witnesses. And why can’t he retract? What? Why can’t he retract?

[Rabbi Michael Abraham] We said: you are believed, so that’s it. You determined the matter. What do you mean?

[Speaker D] So now I determine differently.

[Rabbi Michael Abraham] You can’t determine differently. That would be to your own advantage. When you determine to your own detriment, you are believed. When you determine to your own advantage… when you determine to your own advantage, that means… in self-imposed prohibition it may be a different issue. In a litigant’s admission it certainly doesn’t apply. In self-imposed prohibition, yes, because there too, if I now say it’s not pork, I changed my mind, it’s kosher meat, that doesn’t affect anyone else—it only permits it for me. It removes the dimension of obligation now upon me; it doesn’t obligate others. So there perhaps there is room to discuss it. But in a litigant’s admission it certainly doesn’t apply. So that is basically my claim. Now there really is a dispute, and here this is the next source I brought you—the next two sources, really. Also Ketzot in section 99, and further what the Shakh wrote—you see there? Doesn’t matter, we won’t go into the details right now. It’s about someone who owes money and has no way to pay. Okay? Now he has some money, and he says: yes, but this money I owe to someone else, or it’s a deposit, someone else deposited it with me. Okay? I can’t pay with it. The question is whether he is believed or not. Okay? So there too they discuss the question of what happens—this is a litigant’s admission, where he says he owes it to someone else and it’s not his. But he is harming the one who is supposed to collect from him. Right? So that is basically harming others. Now there, what happens when he has no money at all and says, “Know that I have one hundred shekels deposited by someone that’s with me. I can’t find it right now, I don’t have a penny here, I don’t know where it is.” After some time he finds the money. At the stage when he admitted… sorry, let me first say something else. I said earlier that there’s a question why, in the case of a litigant’s admission that harms others, he is not believed, were it not for the explanation I just gave. So the accepted explanation among the medieval authorities and the later authorities is that this is because of concern for collusion. In other words, if for example I admit that you don’t owe me money—what I explained earlier—and by doing so I prevent the person to whom I owe money from collecting from you, there is a concern that the two of us have colluded: we’ll brush him off and then divide the money I preserved. Okay? So therefore, when it harms others, this remains on the level of ordinary credibility of “since,” what I called earlier. Okay? But there are several sources in which you see—and certainly in some opinions you see—that this is not about collusion. Even where there is no concern for collusion, still a person is not believed when it harms others. For example, in this case, where a person says: “I have some one hundred shekels here that someone deposited with me, but right now there’s nothing in my house.” After some time he suddenly finds the money. At the stage when he didn’t know where the money was—we saw there was no money in the house, okay?—at that stage there was no concern for collusion because the money wasn’t there. Afterward the money came into existence. Now the question is whether to believe him. This harms others, but there is no concern for collusion. Here some halakhic decisors say we do not believe him. Fine—the Bach and the Tumim against the Shakh. We do not believe him, and there are other places where you see this. I also brought here the place in Gidulei Shmuel, and he says the same thing. The claim is that even where there is no concern for collusion, we do not believe him. And that strengthens the question even more: why not? If this were some kind of “since” reasoning of credibility, then what difference does it make that it harms others? You have an indication that he is telling the truth, so what if it harms others? Therefore I say: it is not “since.” Rather, the fact that you can give a gift, or the fact that you can vow, that ability is an indication that this is something that pertains only to your subjective domain. In your subjective domain you have full credibility, learned from “this is it.” If it harms others, that is an indication that this is not your subjective domain; it concerns others too. So you are not believed. Likewise, one of the proofs that Ketzot brings here, in section 99, is proof that even where there is no concern for collusion, if it harms others, a litigant’s admission is not believed. From what? From Kiddushin, which we saw: a husband and wife who admit that they became betrothed. There is no concern for collusion here. What collusion? What do you stand to gain from this? Because if she doesn’t want to become betrothed, she can simply not become betrothed to anyone. It’s irrelevant. Even if there were collusion—what would we gain? Maybe we want to hurt someone, but collusion is always a concern that I gain something. Not just hurting someone else for no reason, unless I gain from it. And here what do I gain from it? I gain nothing. That her relatives become forbidden to me or my relatives become forbidden to her—so what? What do I gain? There is no collusion here. So why does the Talmud say that this harms others and therefore a litigant’s admission does not help? From here Ketzot proves that even when there is no collusion, in a case of harming others a litigant’s admission is not believed. And I’m telling you: once again, this goes in line with his own approach, even though he didn’t fully understand his own approach, and therefore he remained unresolved as to how a litigant’s admission works against witnesses. But this is his approach, and Mahariv ben Lev says the same thing. Put them both together and all the questions are solved. Okay? This is full subjective credibility. And therefore even where there is no concern for collusion, that doesn’t matter. The moment it concerns others, this is no longer your private domain. So once it is not your subjective plane, you were not given this absolute credibility of a litigant’s admission regarding what concerns himself. That’s all. Harming others is not because it undermines the argument of credibility or raises suspicions that perhaps you are not credible. It is simply because it shows that this is not your domain. It does not belong to the subjective dimension but to the objective dimension, and therefore it is irrelevant. We asked: why can’t a person make himself wicked? There too, seemingly, it was obvious—why can’t a person make himself wicked? A person wants to say: punish me, or disqualify me from testimony, or something like that, right? He can’t. Because that truly belongs to public law; it does not belong to personal law. If he forbids something to himself as a result of this, then indeed it will be forbidden to him—that will be the law of self-imposed prohibition. But “a person cannot make himself wicked” always concerns legal consequences. What does “wicked” mean? “Wicked” means that the religious court would punish him, or disqualify him from testimony, from serving as a judge. Yes, a wicked person is disqualified from testimony and judging, etc. You cannot make yourself wicked. Why? Because making yourself wicked is basically what’s written in Choshen Mishpat. Not the law of self-imposed prohibition; that belongs to Yoreh De’ah. I accept upon myself a prohibition in some matter. “A person cannot make himself wicked” belongs to Choshen Mishpat. Choshen Mishpat—what belongs to law—is always a public matter. The fact that I am wicked means I cannot be a judge, I cannot be a witness. When I testify, it will affect someone else. Someone will owe money or not owe money; you cannot accept my testimony. There’s no such thing. If a religious court rules that I am disqualified from testimony, it cannot rule that I am disqualified from testimony based on my own words. Because it concerns others—I testify regarding others; can you disqualify my testimony based on what? And if it doesn’t concern others, then what is the meaning of the religious court ruling that I am wicked? If it doesn’t concern others, fine—so what, they’ll call me wicked? What does that mean? It has no significance. In Choshen Mishpat it is always the question of how it will affect others. Therefore, in a litigant’s admission and in self-imposed prohibition a person has… in “a person cannot make himself wicked,” he does not have that credibility. And by the way, this is exactly the reason why in Kiddushin too, when a husband and wife admit that they were betrothed, this belongs to the public domain and therefore there is no such credibility. That is the meaning of “it harms others,” even though there is no collusion. It has nothing to do with collusion at all. Rather, to say that you are husband and wife has public implications. It’s not just that you are husband and wife. By the way, this is the reason why according to the accepted view you need two witnesses. Why do you need two witnesses for the existence of the matter? These are not witnesses to clarify; these are witnesses to constitute the matter. What does “witnesses to constitute the matter” mean? It means they are representatives of the public that recognizes you as husband and wife. There is perhaps a side that maybe you would even need three, a religious court, but in the end they say no, two are enough. Why? Because those two constitute representation of the public; the public gives its stamp: “We recognize you as husband and wife.” Because being husband and wife—the main meaning of that is its public significance, its public status. Among other things, she becomes forbidden to others and he is forbidden to her relatives, etc., but it is a public status. That is the meaning of the matter. A man and woman on a deserted island, alone in the world—Adam and Eve could not have become betrothed to each other even if they had wanted to. Because when you are not inside a society, there is no such thing as kiddushin. Kiddushin is always a status within a society. Therefore the “harming others” there is much deeper than the question of whether it has this implication or that implication. I’m telling you, this is Even HaEzer like Choshen Mishpat; it belongs to judicial law. Yoreh De’ah belongs to what people call rabbinic ruling, right? Judicial law is always public law. The question is how the public relates to monetary law and personal status. Every legal system deals with monetary law and personal status. Therefore law as such is a public matter. In law there is no significance to what you say about yourself. There is significance to what you say in Jewish law, not in law in the judicial sense. Judicial law—no. Judicial law includes both Even HaEzer and Choshen Mishpat. One final note—this is the last source you have—the Rosh. And the Rosh says: “Anything that is in a person’s power, even where permissibility was already established, one witness is believed to render it impure and forbidden.” Even if the other person contradicts him and says, “I don’t know.” For it was taught: if he was working with him on matters of purity, and he said to him, “The items of purity that I prepared with you became impure,” he is believed. And Abaye explains the reason: since they are in his control, they are considered as though they were his, and he is believed concerning them. And not because, if he wanted, he could make them impure. Not because of that. Not because of a “since.” Ketzot’s “since.” Not because of that. No. Rather because the moment he has the power to render them impure, that makes him like the owner of the thing. That’s what he says in the last sentence: since it is in his power to fix it, he is considered like its owner, even regarding something belonging to someone else. It’s not talking about his actually being the owner; rather, if it is something in your power, you are considered like the owner. This is a very famous Rosh, always quoted, that the law of “in his power,” the credibility regarding something that is in my power to bring about, means that I am its owner. It’s a very strange thing, because usually the owner’s credibility regarding things in his possession is because he can do it himself. But here the logic is reversed. In other words, the fact that it is in his power to do it gives him credibility because he is considered like the owner. That is completely inverted logic. That the owner is believed regarding his own untithed produce to say it has been fixed is because he can separate the tithe. What’s the problem? It’s his. But the Rosh does not say it that way. The Rosh does not base the owner’s credibility on the fact that he can do it. The opposite. He bases the credibility of someone who can do it on the fact that he is an owner. And why is an owner believed? I don’t know. Not because he can. That principle comes before the idea that the fact that you can do something gives you credibility. Why is an owner believed? An owner is believed because it belongs to his domain. Because it belongs to his domain. Regarding what belongs to him, a person has absolute credibility. The fact that he can do it himself is only an indication that it belongs to him. And once it belongs to him, there is absolute credibility. It’s the same principle we saw there, what Ketzot asked on Rashi, that what he said—so how does it work even against witnesses? And earlier too he said, if it’s a “since,” then we don’t say “since” against witnesses. That’s not correct. A person’s credibility about himself applies even against witnesses. It is absolute credibility, because all the laws of evidence are irrelevant in a place that concerns my subjective domain—as long as you prove that it really belongs to my subjective domain. It’s not a “since.” We keep saying: because he can give a gift, because he can vow, because he can render the pure items impure—so it sounds like some kind of “since,” meaning: I have the option to produce the result anyway, so believe me when I claim that this is the result. But no. The fact that I have the option to produce the result means that this result is in my domain, it belongs to my domain. And what belongs to my domain, I have full credibility over. And from here we basically learn that in a person’s subjective domain there are entirely different laws; he has absolute credibility with no connection at all to the ordinary laws of evidence. Okay?