Ketubot, Chapter 2, Lesson 16

[Rabbi Michael Abraham] We’re at the final stage of the framework of the discussion, which is basically to come back to this point of the combination between the witnesses and the migo. Rabbi Shimon Shkop—I, as I wrote, so I hope we’ll also start the next part, of “a person does not render himself wicked.” Just first, where are you holding—have you already managed to get into it a bit?

[Speaker B] We finished the page.

[Rabbi Michael Abraham] You finished the new page? We didn’t finish the last Rabbi Shimon Shkop. Not Rabbi Shimon—I meant the page with the excerpts. Okay, good. No, it’s not a matter of blame, I just want to know where we are. That’s perfectly fine. Today I’ll only start; I don’t think I’ll get through much, so at least it’ll help prepare for next time, when we continue. I want to start with Rabbi Shimon Shkop, because really the point he deals with has accompanied us throughout the whole discussion. Basically, here there are two witnesses; in the first clause of the Mishnah they have “the mouth that prohibited,” and we also talked about the baraita on page 19, of other witnesses—or in our Mishnah, where it’s the very witnesses who signed the document—and in the latter clause they do not have “the mouth that prohibited,” because the testimony is validated from elsewhere. And the question that keeps coming up here is: what is the status of such witnesses, who have “the mouth that prohibited” or migo—depending on whether you see “the mouth that prohibited” as migo or not—in their favor. Is this witnesses? Is it migo? Is it both? How exactly should we relate to this strange combination?

I’ll maybe preface this by recalling another point I mentioned when we discussed the topic of migo in the opening lectures, when I spoke about migo itself. We spoke there about three explanations for why we do not invoke migo for two witnesses. One explanation was that they don’t know how to coordinate lies with each other, and therefore you can’t say, “If we had wanted to lie, we would have told a better lie.” Maybe you were afraid you wouldn’t succeed in coordinating, and that’s why you didn’t lie. So the logic of migo, of “why would I lie,” doesn’t exist when we’re talking about two witnesses.

[Speaker B] But that’s only if it’s “why would I lie,” and not if it’s the power of a claim.

[Rabbi Michael Abraham] Right. We talked about that there. A second explanation—and they all appear in Tosafot, by the way, some of them even in Tosafot here—is that migo is said for litigants and not for witnesses. Migo applies to litigants and not to witnesses. And the third explanation is that if there’s a problem with the witnesses, then what help is the migo? When a litigant has migo, the migo serves as evidence in his favor. But if there is a problem with the witnesses, the migo won’t help. The third explanation is a specific case of the second.

When the witnesses are in a case of two against two—two witnesses against two witnesses—which is basically at least part of our situations here: in such a case, if one set of witnesses has a migo in its favor—for example, two witnesses come and say: Reuven murdered Shimon. Then two other witnesses come and say: no, Reuven did not murder Shimon. That’s two against two, right? Now, the second witnesses have a migo, because they could have disqualified the first witnesses as robbers. Right? They could have said: those first witnesses are robbers, disqualified for testimony. Had they said that, they would be believed. Right? Because the first witnesses can’t testify about themselves that they aren’t robbers. That can never be considered two against two. If that were considered two against two, then you could never convict a gang of robbers of two members or more, right? Because whenever two witnesses came and said they were robbers, both would say, no, we’re not robbers. That’s not reasonable. So it’s obvious that when the discussion is about you yourself, you do not have the standing of two witnesses to say that you’re not a robber or not disqualified as a witness. So if the second set of witnesses came and said about the first set, “Those are robbers,” it would be believed. That would not be two against two.

Now they didn’t say that. They said, “Reuven didn’t murder Shimon.” The first said yes, and we say no—that’s two against two. But we have a migo: we could have said the first ones were robbers; the first ones are robbers and disqualified as witnesses. Why don’t we say that migo? That is usually the question posed by Tosafot and the other medieval authorities (Rishonim): why aren’t the second set of witnesses believed by migo, since they could have disqualified the first set by calling them robbers? So, as I said before, one answer is that they don’t know how to coordinate lies—or are afraid they won’t be able to coordinate them—so we do not say migo for two people. In that case, even if they were litigants who were two and not one, we also wouldn’t say migo for them. It’s not connected to the fact that they’re witnesses, but rather to the fact that there are two people who need to coordinate the lie, and therefore they’re afraid to lie, because that lie might be exposed; who knows whether you’ll be fully coordinated with the other one. Okay? So we do not say migo for two people—not specifically for witnesses. It’s just that in the case of witnesses, it’s always two, because witnesses require two. But it’s not unique to witnesses.

So that’s the first answer. The second answer says: there is no migo for witnesses at all. Migo exists only for litigants. The third answer is specific to a case of two against two. If we say these witnesses have a migo, then what comes out? We accept the migo, and then what happens? We have two witnesses against two witnesses plus migo. But two witnesses plus migo is no stronger than just two witnesses. Just as two witnesses plus another hundred witnesses is also no stronger, because two witnesses is the maximal level of credibility. Therefore, even if we accept the migo, it won’t help us decide the deadlock of two against two.

[Speaker E] The second possibility—that we don’t say migo for witnesses. Migo is a mechanism—well, I don’t know whether it’s Torah-level or just logical—but it really is a mechanism that’s more in our reasoning, as if there’s some human logic here that says…

[Rabbi Michael Abraham] We talked about this—it’s not exactly like that. What I said then, when we discussed migo, was this: when I say there is no migo for two people because they have to coordinate lies, that assumes migo as “why would I lie,” right? Because if I wanted to lie, I would have lied better. But with two people, that’s not so, because you were afraid to lie because you don’t know how to coordinate the lie. This claim, that there is no migo for witnesses, really doesn’t go with “why would I lie.” Because “why would I lie,” as you say, is a simple logic—what difference does it make whether it’s witnesses or litigants? Rather, it comes from the power of the claim. What? If I see migo as the power of a claim and not as “why would I lie,” then the power of a claim means making someone into the one in possession. And witnesses are not the ones in possession; they’re not a party to the matter. So they don’t have the power to claim. All there is, is evidence. Migo as evidence, fine. But migo as the power of a claim is not relevant to apply to witnesses. I said, therefore, that the first two answers—one deals with “why would I lie,” and the second deals with the power of a claim. We already discussed that.

But the third case, the third answer, basically says: even if you accepted the migo—power of claim, “why would I lie,” whatever you want—in the end what I have is another proof, besides the two witnesses, together with the two witnesses against the first two witnesses. That’s still no better than two against two: two are like a hundred. And therefore it can’t work.

What lies behind all this is really the question: when I see two witnesses relying on migo, what do I now have in hand? Do I have witnesses plus migo? Or do I have two witnesses, where the migo merely shows me that they’re telling the truth, and now I have two witnesses? Or do I have only migo? The witnesses themselves, after all, are disqualified or contradicted by other witnesses, doesn’t matter. So the witnesses are gone. But I do have the proof of migo. The proof of migo replaces the witnesses; it doesn’t come in addition to them, but replaces them. Okay? Those are three possibilities for understanding the relationship—how I relate to witnesses who bring migo to support their testimony. Do I see it as the sum of two proofs, as I described before—and that’s why I said two are like a hundred, so what does that help in two against two? There’s migo plus witnesses against other witnesses. That’s really the opposite of what you’re saying.

[Speaker G] You’re saying if witnesses come with migo, then you’re saying the witnesses are not credible from the outset.

[Rabbi Michael Abraham] Right. But now, once they have a migo, what do we have in hand?

[Speaker G] But they wouldn’t need a migo if they were credible.

[Rabbi Michael Abraham] Right, so they need a migo. But after they need a migo and they have a migo, what is their status now? Are they witnesses? Are they witnesses plus migo? Are they just migo, despite not being witnesses? How do we look at this? Those are the three possibilities.

One possibility is to see the situation as though I now have both witnesses and migo; that’s what I assumed earlier. When there’s two against two, and the second pair has a migo, I said there is migo plus witnesses against two witnesses. But since two are like a hundred, that doesn’t decide the deadlock. But the perspective was that migo, when said for witnesses, is basically an attached proof. There are witnesses plus migo here. Right? Especially because here it really is a situation where the witnesses are not disqualified. There are two witnesses against them and we don’t know how to decide who is right, but there’s no problem with the witnesses that the migo needs to solve. There are situations where a migo can solve a problem with witnesses. Meaning, let’s say the witnesses are interested parties. If I have a migo that I could have made myself not an interested party, would that remove my problem as an interested witness? Okay? So here too it’s an even stronger question how to relate to such a migo.

But bottom line, there are really three possibilities. One possibility is to say that we have witnesses plus migo. A second possibility is: there’s a problem with the witnesses, but the migo removes it, and so I’m left with witnesses. After the migo solved the problem, I’m left with witnesses; there are witnesses here. The migo only solved some problem I had, and I’m simply left with witnesses. The third possibility is to say: no, the witnesses are problematic—relatives, interested parties, I don’t know exactly what—there’s nothing to be done; I don’t have witnesses here. But I can’t ignore the evidentiary force of migo; I have the proof of migo. So I’m left with the proof of migo. Right, I don’t have witnesses—they’re disqualified. The migo can’t save the witnesses. Why can’t it save the witnesses? We discussed how the strength of a chain is the strength of its weakest link. So if all these witnesses are based on the fact that there is a migo in the background, then the force I can ascribe to their evidence is at most the force of migo.

For example, what happens—as we’ll see in a moment—when a presumption attacks the migo? Suppose a presumption overrides a migo. If the migo turns the witnesses into witnesses, then the presumption won’t be able to deal with witnesses. But if the presumption deals with the migo and knocks out the migo, then it knocks out the migo, and automatically the witnesses are no longer witnesses, because the only reason they were witnesses was that they had a migo. So it’s very important to understand how I relate to this combination of witnesses who have a migo. That’s really the point I’ve come back to several times in the previous lessons, and it came up for us in various contexts. The question in our case was whether “the mouth that prohibited” is “the mouth that prohibited,” not ordinary migo; the question was whether what I have here is “the mouth that prohibited,” or witnesses, or both—both “the mouth that prohibited” and witnesses. So Rabbi Shimon Shkop goes directly into exactly this point. Let’s start reading. I’ll give you the—do you have it, or did I send it by email? You can take it, because on the other side there are sources that I hope we’ll need. The first one, right? Not today—you’re at 29, right? 32 or 29? In the handout? 29, 29. Yes. I have here—no, he brought it—

[Speaker B] Another source.

[Rabbi Michael Abraham] There are sources on the back for the second part of the lesson, about “a person does not render himself wicked.” No, this Rabbi Shimon one—I sent earlier.

[Speaker B] There are pages here, look.

[Rabbi Michael Abraham] So let’s read a bit of Rabbi Shimon. “In the topic of witnesses who said, ‘This is our handwriting.’” The witnesses who said, “This is our handwriting, but we were coerced,” and so on. “Behold, it is proven in the Talmud that Rabbi Meir and the Sages dispute this very point, whether the witnesses are believed to invalidate the document on the basis of migo.” Right, we saw the dispute between Rabbi Meir and the Sages. “For according to the initial assumption,” according to the Talmud’s first thought, “they dispute whether migo is effective in place of a presumption.” In the initial assumption, the Talmud thought that the basis of the dispute—what are Rabbi Meir and the Sages arguing about?—was the question whether migo works against a presumption or not. “See Tosafot at the beginning of page 19, and so too it is evident from Tosafot throughout the whole topic.”

Let’s go back for a moment to the Talmud to recall what he means. Look at page 18b, at the bottom, in the Talmud. Do you have it? The Talmud says like this: “The Sages taught: they are not believed to invalidate it—these are the words of Rabbi Meir. And the Sages say: they are believed.” That’s the dispute, right? “Granted, according to the Sages, this is because of ‘the mouth that prohibited is the mouth that permitted.’” So I understand the Sages—why are they believed? Because they have “the mouth that prohibited is the mouth that permitted.” But according to Rabbi Meir, why doesn’t he accept that? “But according to Rabbi Meir, what is the reason?” The Talmud says as follows: “Granted, with regard to disqualified witnesses…” After all, three cases appear in the Mishnah: “we were disqualified as witnesses,” “we were minors,” and “we were coerced.” “We were disqualified witnesses, we were minors, we were coerced.” “Granted”—that is, in the case of disqualified witnesses—“the lender himself from the outset is careful and gets signatures.” The lender is careful and takes witnesses who are not disqualified, because otherwise his document is worthless—he won’t get his money back. So he makes sure to get valid witnesses. There is a presumption that a lender is careful about his witnesses. And that presumption is why the witnesses are not believed to invalidate the document by saying, “We were disqualified witnesses.”

What about minors? “We were minors” also—as Rabbi Shimon ben Lakish said: “There is a presumption that witnesses do not sign a document unless the act was done when one was an adult.” Okay? There too it’s basically the same thing: we have to be careful that the witnesses are valid witnesses, because otherwise the document is worthless. Same thing here. “But if they said, ‘We were coerced’—what is the reason?” When they say, “We were coerced,” just “we were coerced,” without specifying—at this stage we already know it means coercion because of mortal danger. So the Talmud says there—it first brings Rabbi Meir’s opinion that this would be a case of “let him be killed rather than transgress,” and then the Talmud rejects that. Right? And “one who admits a document he wrote—does it require validation?” That’s the dispute, but that doesn’t matter for us right now.

At this stage, when we said that regarding disqualified witnesses and minors we can understand Rabbi Meir’s opinion—what did we think? What is the dispute between Rabbi Meir and the Sages at this point? After all, the Sages don’t accept it, right? The Sages believe the witnesses and Rabbi Meir does not believe them. The Talmud asks: why do the Sages believe the witnesses? Because of “the mouth that prohibited.” So why doesn’t Rabbi Meir believe them? After all, there is “the mouth that prohibited.” Rabbi Meir says: because there is a presumption that the lender checked his witnesses, right? So what is the dispute between Rabbi Meir and the Sages?

[Speaker F] What’s the point of dispute? In the coerced case! “The mouth that prohibited”—for Rabbi Meir there isn’t “the mouth that prohibited.”

[Rabbi Michael Abraham] Why isn’t there?

[Speaker F] Because there’s a presumption. Because he uses another reason—he knows he’s saying…

[Rabbi Michael Abraham] But there is “the mouth that prohibited”; it just doesn’t help. The question is why not.

[Speaker E] Yes. Because the witnesses are not believed. Why? Because reality—the presumption of reality—says that if the lender is already taking care of his document, then he’s making sure it’s a proper document.

[Rabbi Michael Abraham] Because of the presumption that the lender checked his witnesses, right? In other words, what’s the dispute between the Sages and Rabbi Meir? It’s the question: when there is a presumption against “the mouth that prohibited,” which one prevails? Right? That’s really the dispute. Or if we look at “the mouth that prohibited” as migo—and we already saw that Tosafot sees “the mouth that prohibited” as migo, right?—then basically the dispute is: when there is migo against a presumption, which one prevails? Right?

Look at Tosafot, on the words beginning “presumption,” on page 19a at the top, the first one. Do you have it? Tosafot says: “Presumption,” etc. Here it seems that we do not say migo in place of a presumption. We did see this Tosafot—that we do not say migo against a presumption. In other words, a presumption overrides migo; therefore Rabbi Meir doesn’t believe the witnesses. “And according to the Sages we do say migo in place of a presumption,” right? “And this requires investigation, because it is a question in the first chapter of Bava Batra and was not resolved; there too there is a presumption of his timing, and ‘why would I lie?’ there too there is a presumption of timing.” In the Talmud in Bava Batra there is a doubt whether migo works against a presumption or not. But here it’s presented as clear-cut positions—there’s no doubt, only a dispute. Rabbi Meir says no, that the presumption is stronger, and the Sages say the migo is stronger; neither side is in doubt. So how does that fit with the Talmud in Bava Batra? According to which opinion is that Talmud speaking? According to the Sages, there is no doubt, and according to Rabbi Meir, there is no doubt. So what is that Talmud saying? That’s Tosafot’s question.

[Speaker E] I didn’t understand what exactly is difficult here. Basically there is a dispute here between Rabbi Meir and the Sages—

[Rabbi Michael Abraham] A tannaitic dispute whether migo works against a presumption or not, right?

[Speaker E] And what does that have to do with—

[Rabbi Michael Abraham] And in Bava Batra there is a doubt: when there is migo against a presumption, which one prevails? Why didn’t they bring this? There are explicit tanna’im—Rabbi Meir and the Sages. Yes, and in Bava Batra why didn’t they bring them? Why not? After all, that is an amoraic doubt there. You have a Mishnah that can decide the doubt—what’s the problem? Rabbi Meir and the Sages: the Sages say the migo prevails, Rabbi Meir says the presumption prevails, and the Jewish law follows the Sages, right? So what’s the problem? Why stay in doubt? And why isn’t this dispute even mentioned there in the Talmud as a way to resolve the doubt? Apparently the Talmud understands that there’s no connection—that’s what Tosafot is asking. That’s another discussion, but for our purposes, what do we see here? That Tosafot understands that the dispute between Rabbi Meir and the Sages at this stage of the Talmud is the question of which is stronger, migo or presumption. Right? That’s what Rabbi Shimon Shkop writes; that’s where he got it from.

Why does he say this is only the initial assumption? Because this explanation works in a case where they say, “We were disqualified as witnesses,” or “We were minors.” But if they say, “We were coerced,” it doesn’t help. Why doesn’t it help? There you can’t explain—no, “coerced because of mortal danger,” we’re at this stage of the discussion. Here you still can’t explain the dispute as migo against presumption. Why not? There’s a presumption that they weren’t coerced, and they claim that they were, and they have migo, “the mouth that prohibited.” Same thing. Why does the Talmud say no? In the case of “we were coerced,” this cannot work. I mentioned this in one of the previous classes. Who coerced them? The lender! They’re claiming—who coerced them? The interested party. The interested party is the one who coerced them, right? He coerced them to sign a document even though there was no loan at all, because he wanted to get money, and the document gives him the money. So when they say “we were coerced because of mortal danger,” what they are saying, in free translation, is: the lender held a gun to us. Right? So what are you going to say? “No, there is a presumption that the lender checks his witnesses so they won’t be disqualified”? They weren’t disqualified—on the contrary, they’re saying that this was the lender’s whole scheme, that the lender’s scheme was built into this very reality. Okay? Therefore this can’t be the explanation for “we were coerced,” and then we get into life-threatening danger and “one who admits a document he wrote,” and all those discussions, and so the explanation of the dispute between Rabbi Meir and the Sages must be a different one—not this explanation.

But in the initial assumption, at this stage of the Talmud, the Talmud thought that perhaps the dispute could be explained as the question of what is stronger: migo or presumption. I’m going back to Rabbi Shimon Shkop—it was just to see in the Talmud what he said. So he says: “Behold, it is proven”—I’m reading again from the beginning—“behold, it is proven in the Talmud that Rabbi Meir and the Sages dispute this, whether they are believed to invalidate the document by migo. For according to the initial assumption, they dispute whether migo is effective in place of a presumption.” That is, they disagree whether migo works against a presumption or not. “See Tosafot at the beginning of page 19, and so too is evident from Tosafot throughout the topic.” What is evident? That “the mouth that prohibited” is considered migo. We saw that in Tosafot’s view in the previous lesson. Tosafot’s position is that “the mouth that prohibited” is considered migo. And then what we have here is migo against presumption.

Let’s stop for a moment. Recall the introduction I just gave. Does what he said make sense? After all, we’re speaking here about witnesses who have “the mouth that prohibited” in their favor, and what stands against them is a presumption, right? So then we have witnesses plus migo; this isn’t migo against presumption. It’s witnesses plus migo against presumption. I don’t understand—

[Speaker F] One at a time.

[Rabbi Michael Abraham] Nechama? Witnesses by virtue of migo. Fine. So what is Tosafot assuming?

[Speaker B] That it’s only migo.

[Rabbi Michael Abraham] That it’s only migo, right. He says that if there are witnesses strengthened by migo—where on their own this testimony is problematic, yes?—but there is a migo that strengthens them, “the mouth that prohibited,” then the result is migo. And therefore Tosafot says: wait, if so, then what we really have here is a case of migo against presumption. Because if there were witnesses plus migo here, then witnesses plus migo would certainly prevail over a presumption. Right? Tosafot is basically assuming that all we have here is migo. And then he asks: but wait, this is migo against presumption, and the dispute between Rabbi Meir and the Sages is over which is stronger. But how are they ignoring the witnesses? That’s strange. There are witnesses here too.

Let’s keep reading. “However, we are forced”—third line—“to explain that they are believed by the law of witnesses, not by the law of migo alone.” Why? “For if one were to believe them when they conclude, ‘we were coerced,’ by the law of migo, since the document was already validated earlier when they said, ‘This is our handwriting,’ then it is now migo against witnesses.” Rabbi Shimon says something simple: we must say that this is not only migo; there are witnesses here too. Why? Because if it were only migo, then they validated the document, right? They say, “This is our handwriting, but we were coerced,” or sorry, “we were disqualified as witnesses,” okay? So they validate the document. Once they validate the document, there are two witnesses testifying that there was a loan, right? Now there is a migo in favor of their claim that they were disqualified. That is migo against witnesses. The witnesses of the document stand against the migo. This is not migo against presumption. This is migo against witnesses. Therefore it cannot be that the migo stands alone—that it is only migo. In a case where witnesses rely on migo, there must be witnesses plus migo. Do you understand what he said?

[Speaker E] Witnesses—which witnesses, in which direction? The disqualifying testimony? Meaning those same witnesses who are testifying?

[Rabbi Michael Abraham] Right. In this case it’s the same witnesses. The Talmud claims that we have migo against presumption, right? That’s how he defined it. Now he says this seemingly cannot be migo against presumption, because there are also witnesses here, right? On the side of the presumption there are also witnesses. After all, once we have validated the document, we have a validated document. We said, “This is our handwriting.” After that we added, “And we were disqualified as witnesses.” But we did say, “This is our handwriting.” The moment we said that, the document is validated. What is the status of a validated document? As though their testimony had been examined in court. It’s like two witnesses, right? So here we have two witnesses plus a presumption that these witnesses were not disqualified, against the migo, or “the mouth that prohibited,” which Tosafot treats as migo, right? So this is migo against witnesses. Migo does not work against witnesses.

Rabbi Shimon Shkop says we must say that on the side of the migo there are also witnesses. Otherwise this migo would be standing not only against a presumption but also against witnesses. Migo against witnesses certainly cannot work. Migo against a presumption—Tosafot debates whether they’re comparable, which one prevails and which one doesn’t—you can argue about that. But Migo against witnesses is obvious: the migo is worth nothing. The witnesses decide against the migo.

[Speaker E] Yes, but if I remember correctly, Tosafot says that when the witnesses say, “This is our handwriting, but we were coerced,” then by that very statement they are not validating the document. Meaning the document is not validated, and then we don’t have either a document or witnesses.

[Rabbi Michael Abraham] That will come in a moment. A very good point. It’ll come up shortly. Rabbi Shimon himself brings that Tosafot. And then he says as follows.

[Speaker E] I wanted to ask: if we’re not looking at the contradiction—

[Rabbi Michael Abraham] A contradiction between what and what?

[Speaker D] Between the fact that on the one hand they validate, and on the other—

[Rabbi Michael Abraham] There’s no contradiction. They validated; they only said they were coerced. Those are two things. The signatures are ours, and the validation—and in the end they still stand behind that. They’re just saying: we signed under coercion. But after you already validated the signature—and on that you are not retracting, because you say the signature is yours—the rule is that a document whose signatures have been validated is like two witnesses. Now you come and say, “But we were disqualified witnesses.” What do you mean? That’s against witnesses. If all you have here is migo, if this is only migo, then it would make no sense at all to debate whether the presumption prevails over the migo. How can the Sages say that the witnesses are believed because they have a migo? This is migo against witnesses. We are therefore forced to say that on the side that disqualifies, there are also witnesses, not only migo. This is both witnesses and migo. There are two witnesses here saying, “We were disqualified.” These witnesses also have a migo, since they could simply have refrained from validating the document at all, right? So there is witnesses plus migo. And that stands against the witnesses of the document’s validation and the presumption that a person who gets witnesses to sign usually checks that they are not disqualified. So set aside the two against two for a moment. What remains for us is migo against presumption. Okay? And that is the question over which Rabbi Meir and the Sages argue: does the migo prevail over the presumption or not? But had there not been witnesses here, only migo—Rabbi Shimon Shkop says that can’t be, because this migo clashes with witnesses. It could not stand. There must be testimony standing together with the migo. Okay?

[Speaker E] And then he says that even though the whole point of what these witnesses are coming to say—basically they’re coming to disqualify. Meaning we already discussed this; everything they’re coming to do is not to validate the document, they’re coming to invalidate it.

[Rabbi Michael Abraham] What do you mean “they’re coming”? I don’t care about their motivations. What did they do? They validated the document. And the law now, regardless of what they want, says that a validated document has the status of two witnesses.

[Speaker E] And they could have stayed silent.

[Rabbi Michael Abraham] Meaning, if they wanted to invalidate it, then really at the moment when the lender—

[Speaker E] —brings the document, it has no value at all until they validate it. Right.

[Rabbi Michael Abraham] They couldn’t invalidate it; they could only leave the document in the status of not authenticated, and then you can’t collect with it. Right. That’s their migo. That’s the migo. Right. Okay? But Rabbi Shimon says this migo cannot stand on its own in the battle. Together with this migo, yes, like Oznar, together with this migo there also stand two witnesses. Okay? Because otherwise it would be a migo against witnesses. So now he says, look. And it’s also impossible to explain—I’m continuing to read—since they conclude by saying, “we were coerced,” their statement is completely nullified, including what they authenticated there in the document, as seems at first glance from the language of Tosafot, on the words “these are believed.” In another moment I’ll keep reading. What is he saying here? What someone said earlier—I don’t remember—Yael. Yes, what Yael brought earlier from Tosafot: that apparently the obvious explanation is that when they come and say, “This is our handwriting, but we were disqualified as witnesses,” we’re talking about people who were coerced, we’re talking about disqualified witnesses, so in effect we did not authenticate the document. Because the whole point of our statement was to say that the witnesses signed on the document are worth nothing. So how can you say that what we did here was authenticate the document, and only now we come to invalidate it? The whole point of our testimony was not to authenticate the document at all. And his proof is from Tosafot, because Tosafot says, “these are believed.” Let’s see—let’s read Tosafot for a moment on page 18b. So this is Tosafot speaking about the Mishnah, right? In the first clause of the Mishnah it says, “these are believed,” when they have “the mouth that forbade.” Tosafot says: And if you ask, why are they believed? Isn’t this a migo in a place of witnesses? For we are witnesses that they were not coerced and were not disqualified as witnesses. For later we say they are two against two—“later” means page 19, what we saw, right? Tosafot says: after all, once you authenticate the document, that document is considered like two witnesses. Right? Now true, you have “the mouth that forbade.” That “mouth that forbade” is a migo. A migo does not help against witnesses, says Tosafot. So how can it be that in the first clause it says they are believed? So what if they have “the mouth that forbade”? There is an authenticated document here against that “mouth that forbade.” This is a migo against witnesses. To that Tosafot answers: since the Sages required authentication, here what they say—“this is our handwriting”—is not considered authentication at all, since they themselves say immediately, within the same utterance, “we were minors” or “we were coerced.” What does Tosafot say? You can’t call this authentication that places two witnesses in front of me and now I come out against them. Why? Because when I came and said that the signatures are mine, together with that I also said that I was disqualified as a witness. So you can’t say that this testimony authenticates the document. So what stands opposite it is not witnesses, because as long as the document is not authenticated there are no witnesses here, and therefore I am believed to invalidate the document. Okay?

[Speaker G] It’s on the very same sentence, basically, the very same statement, the same “mouth that forbade”—we have two things. Meaning, once we believe the first part, and from there it leads us to authenticating the document, and then that stands against two witnesses; and once we believe the second part, and then it completely nullifies the document and it’s as if there’s nothing here.

[Rabbi Michael Abraham] Because we did not authenticate the document, right? That’s what Tosafot says. Since we didn’t—because that’s what “the mouth that forbade” is based on. “The mouth that forbade” says: either accept all of my testimony or accept none of it, but don’t slice it in half, right? We talked about “the mouth that forbade”—that’s exactly the idea.

[Speaker E] And therefore it doesn’t make sense to say that two witnesses authenticate the document, and therefore there are two witnesses here and a migo against two witnesses.

[Rabbi Michael Abraham] So wait, in a moment we’ll see what he says here, but I’m saying—

[Speaker E] What Tosafot—what—

[Rabbi Michael Abraham] What Tosafot says—no, I accept the whole testimony, Tosafot says. I accept the testimony that the document is authenticated, and I accept the testimony that you were disqualified. But once the document is authenticated, there is testimony here that there was a loan. So if I accept your testimony that you were disqualified, that’s two against two, right? Like on page 19. But we talked about the fact that here the signing witnesses are the ones invalidating it—they’re not different witnesses. Therefore here the option of two against two does not arise.

[Speaker G] So they are the authenticating witnesses.

[Rabbi Michael Abraham] They are the authenticating witnesses and they are the invalidating witnesses—they are the signatories. Okay? Therefore here the option of two against two does not really arise, because it’s we ourselves. Either way: if we were disqualified, then there are invalidating witnesses here; if we were valid, then there are valid witnesses here. There is no situation where there are both two witnesses of one kind and two of another. You have to decide: either there are these or there are those. It can’t be two against two because it’s the same pair of witnesses. So Tosafot says: once the witnesses say, “This is our handwriting, but we were disqualified,” that means that “the mouth that forbade,” the principle of “the mouth that forbade,” tells me that there was no authentication here at all. So it is incorrect to treat this as “the mouth that forbade” against witnesses, as though it helps against witnesses. On the contrary: what is written here is that because of “the mouth that forbade,” there are no witnesses here, because there was no authentication; and as long as the document is not authenticated, it does not have the status of witnesses.

[Speaker C] Can we say also that “the mouth that forbade” cancels this whole thing called authentication? What?

[Rabbi Michael Abraham] You can say that “the mouth that forbade”… that comes up later in the Talmudic discussion; yes, you can, but it comes up later on. We talked about that. But right now I’m speaking even on the level of the Mishnah itself, before the question of retracting testimony and all that. So what comes out of this is that Tosafot claims—we discussed this, I mentioned that in the lesson on “the mouth that forbade” I said there are Tosafot passages that learn that “the mouth that forbade” helps even against witnesses. “The mouth that forbade” helps even against witnesses. What Tosafot says here is exactly the opposite. It cannot be that “the mouth that forbade” goes against witnesses, because this is a migo against witnesses. We are forced to say that when there is “the mouth that forbade,” it simply causes there not to be witnesses standing opposite it at all. If witnesses were standing opposite it, “the mouth that forbade” would not help; this is a migo against witnesses. Rather, the fact that I have “the mouth that forbade” means that there are no witnesses standing opposite me at all. Why not? Because the witnesses standing opposite me are the authenticated document. But that authentication—I did it, and I also said that I was disqualified. So there was really no authentication here. If there was no authentication, then there are no witnesses standing opposite me. Therefore they accept my statement that I was disqualified, and there is nothing here. Now notice—even my statement that I was disqualified is not accepted. What should the status be right now?

[Speaker B] The document isn’t invalid; it just isn’t authenticated.

[Rabbi Michael Abraham] The authentication is simply canceled. Exactly. Exactly. Let two other witnesses come and authenticate the document, and everything will be perfectly fine. Exactly. That’s the practical difference; that’s the practical difference. Therefore in such a case we don’t really invalidate it, we don’t accept their testimony that they were disqualified. We only treat it as though there had been no authentication here. That’s all.

[Speaker B] It depends on who is standing opposite…

[Rabbi Michael Abraham] Exactly. Meaning, there was no authentication here. There is an unauthenticated document here, and in the meantime of course you can’t use it. Right? Okay? That is basically the point. Because Tosafot is unwilling to accept that “the mouth that forbade” can help against witnesses, because he sees it as a migo. On the other hand, if you say there was no authentication, then there is also no… then in effect we also do not accept the testimony that we were disqualified, because we said “the mouth that forbade” means either you accept the whole thing or you accept nothing. Tosafot’s answer is that I accept nothing. Not that I accept everything. “I accept nothing” means, basically understand—maybe I’ll sharpen it a bit more. We said that “the mouth that forbade” puts before us two options: either I accept both parts of the testimony or I accept neither of them, right? And we usually thought that “the mouth that forbade” ultimately comes down to our accepting the entire testimony—both that they signed and that they were disqualified. Tosafot introduces a major novelty. If that were so, then this would have to be a case of migo against witnesses, and that could not work, because we are accepting also the authentication testimony, and an authenticated document is two witnesses. Therefore Tosafot says: no, you didn’t understand “the mouth that forbade” correctly. “The mouth that forbade” means that you do not accept the whole testimony. Not that you do accept all of it, but that you do not accept all of it. What does that mean? We accept neither their authentication—“these are our signatures”—nor their statement that they were disqualified. We accept nothing. So what happens now? Right now you can’t use the document, but you can’t use it not because it has been proven that its witnesses are disqualified, but because it is not authenticated. An unauthenticated document cannot be used. Do you follow? Tosafot flips what we would have thought about “the mouth that forbade.” We would have thought that because of this either-way logic of “the mouth that forbade,” we probably accept both parts of the testimony. Tosafot says no. If that were so, this would be migo against witnesses. What we actually do is: because of “the mouth that forbade,” we do not accept both parts of the testimony. We are unwilling to split them, but the result is that we accept neither of them.

[Speaker G] So then it’s not even a migo. What? So it’s not even a migo.

[Rabbi Michael Abraham] Right. There’s nothing here.

[Speaker G] The document isn’t authenticated.

[Rabbi Michael Abraham] That’s all. That’s what “the mouth that forbade” did. “The mouth that forbade” basically said: look, if you accept my testimony about the authentication, you’ll also have to accept my testimony that I am disqualified. Therefore I do not accept the testimony about the authentication, and I also do not accept the testimony that I am disqualified. Neither one.

[Speaker E] According to that claim, is the same thing true also for a woman who comes to a new place and says, “I was married, and I am divorced”?

[Rabbi Michael Abraham] Yes. According to Tosafot, that’s apparently what comes out.

[Speaker E] So we don’t believe her that she was married?

[Rabbi Michael Abraham] We do not believe her that she was married, and automatically I don’t care that she says she is divorced. Not that we believe her that she was divorced, but rather I don’t care, because she remains in the status of unmarried. Right—that’s the implication. In principle. Maybe there could be issues like a whiff of a bill of divorce and things like that, but fundamentally yes. Yes, exactly—that’s what comes out of Tosafot. Important point, because Tosafot introduces here a major novelty regarding “the mouth that forbade.” His claim is that “the mouth that forbade” is not a mechanism that causes me to accept the entire testimony. On the contrary—it’s a mechanism that causes me not to accept the entire testimony.

[Speaker B] Not—

[Rabbi Michael Abraham] To accept both parts of the testimony. In short, what is forbidden is to accept one half and reject the other half—that, no. So what do we do instead? We accept neither half.

[Speaker E] If the witnesses came to invalidate the document, they could have remained silent and the document would have remained unauthenticated.

[Rabbi Michael Abraham] Right, it would have remained that way. And since to invalidate it they are not believed—right, because there is a claim against them—so the document remains in exactly the same state as if they had never come. Exactly, exactly. “The mouth that forbade” basically tells them: you remain in the status as though you had never come. It’s like the force of an alternative claim in migo. The force of an alternative claim in migo says: you are in the status as though you had made the alternative claim. Here the migo is not to come at all. Right? That’s the migo. So your status is as though you did what the migo said—in other words, you simply did not come—and then the status is that the document is unauthenticated. That’s all. You can’t collect with it, and if witnesses come and authenticate it there’s no problem at all. Okay? Therefore if witnesses come and authenticate it, it won’t even be two against two. Other witnesses—it won’t be two against two. It’s not that we are standing against them. We’ve stepped down. We’ve stepped down. Now two witnesses come and authenticate it—they can collect with it. Okay? That is exactly the point. It’s not two against two like on page 19, where if two other witnesses come then it’s two against two. Okay, now—so he says—but all this, Rabbi Shimon Shkop says, you cannot say. Up to now I have explained everything that you cannot say. Tosafot says it, but Rabbi Shimon Shkop says that here, in our case, it cannot be said. Let me remind you again where we are, because it’s a bit hard to keep track. Look, Rabbi Shimon is really speaking about a situation where witnesses come and say: we signed, but we were disqualified. Rabbi Shimon Shkop says it must be that together with the migo there are also witnesses, because otherwise this would be a migo against the witnesses of the document. Right? Therefore there also have to be witnesses there. Rabbi Shimon says: wait, no, not necessarily. Not necessarily. It could be that there is only a migo here; there are no witnesses here. Why does this migo help? Because, like Tosafot said on page 18b, when I have “the mouth that forbade,” it removes the witnesses standing against me, and then there are no witnesses opposite me. If there are no witnesses opposite me, then I can prevail by virtue of the migo, because the migo is not a migo against witnesses. And then there is no need to say that together with the migo there also stand witnesses. The only reason I needed to say that was because I assumed that witnesses stand opposite the migo. So it can’t be that the migo successfully deals with them; it must be that together with the migo there are also witnesses. But according to Tosafot on page 18b, it would seem not—no witnesses stand opposite the migo, because if I have “the mouth that forbade,” the document is considered unauthenticated, and no witnesses stand opposite me. So now I can be believed by “the mouth that forbade” by virtue of the migo. Okay? Because there are no witnesses opposite me. That could have been an answer, right? What he asked here was: how can it be that we say migo against a presumption, and together with the migo there are also witnesses, since there are also witnesses standing opposite the migo? He answered him: no, no—according to Tosafot on that page, there would be room to say that there are no witnesses opposite the migo, and therefore there is also no need to say that together with the migo there are witnesses. No—it is a migo against a presumption, as the Talmud actually says, and the dispute between the tanna’im is the question of which is stronger, the migo or the presumption.

[Speaker B] The presumption was created from witnesses, wasn’t it?

[Rabbi Michael Abraham] The presumption that when a person has witnesses sign, he checks that they are not disqualified. So what was possible here was to resolve Rabbi Shimon Shkop’s difficulty, but Rabbi Shimon Shkop says it cannot be resolved that way. Why not? So he says: because if so, then even in a case where they say, “we were coerced by money,” we should believe them. After all, all along we were talking about coercion by threat to life, right? That is the conclusion of the passage: that in the Mishnah we are dealing with coercion by threat to life. Rabbi Shimon says: in coercion by money too, you should have to accept their testimony. But we said that we do not accept their testimony there, because a person cannot make himself wicked. Why should I have accepted their testimony? So Rabbi Shimon says: even though there is no law of credibility here on that point, because after all a person cannot make himself wicked—you cannot accept a person’s testimony about himself that he is wicked—since we are discussing only canceling their statement about their handwriting, then it is possible. And there are several other serious fine points in this passage. What is he saying? He is saying that if it really were possible to apply Tosafot’s answer to the question here, and say that when you have “the mouth that forbade,” in effect there are no witnesses opposite you, and therefore there is no need that witnesses also stand with you together with the migo—that is what he wanted to say. Because in a case of coercion by money, true, they are not believed—one cannot make oneself wicked—and if he signed under monetary coercion he is wicked, and a person cannot make himself wicked, so he is not believed. True, he is not believed—but in practice he did not authenticate the document. Why should I care that he is not believed about having been coerced? Didn’t Tosafot explain to me that if you say “I authenticated the document but the document is no good,” that is considered as if I did not authenticate it, right? So leave aside whether I am believed to say that I was coerced by money—I am not believed to make myself wicked—but in practice my authentication is not an authentication. I am not believed to invalidate the document, to say that I was coerced, that the document is invalid—but I am believed to remove the authentication of the document. So now the document is unauthenticated, because everything I said in authenticating it was: this is my signature, but I was coerced, so I did not come to authenticate the document. And if Tosafot says that such testimony is not considered authentication testimony, then that does not depend on whether they will believe me that I was coerced by money—they won’t believe me. It’s not related. After all, Tosafot also says they do not believe the whole testimony—that’s “the mouth that forbade,” remember? What did Tosafot say? That Tosafot said the result of “the mouth that forbade” is that we do not accept all the parts of the testimony. Neither that we were coerced nor that it is our handwriting. Well, that too can be done in the case where they say “we were coerced by money”—do not accept all the parts of the testimony. Neither that this is our handwriting nor that we were coerced by money. No problem. A person cannot make himself wicked—we do not accept that testimony that we were coerced. Fine. But in practice, since you do not accept it, then don’t accept anything. Don’t accept the authentication we did either.

[Speaker E] If a person makes himself wicked—so he doesn’t make himself wicked according to this. According to this new understanding in Tosafot, with “the mouth that forbade and the mouth—”

[Speaker B] “That permitted,” we believe no part of it, no matter whether a person makes himself…

[Rabbi Michael Abraham] Exactly so, exactly so, exactly so.

[Speaker B] And again, it could be that in the bottom line I get the same result if I don’t believe either this or this half—but here it’s because he disqualified himself as a witness. Here in the Talmud…

[Rabbi Michael Abraham] No, but in the Talmud it says that a person cannot make himself wicked, and we do not accept their testimony, and the document is valid. The document becomes authenticated. The document becomes authenticated, because a person cannot make himself wicked. And he says: what do you mean the document is authenticated? True, a person cannot make himself wicked, and we do not accept that there are witnesses here against the document, but on the other hand there are no authenticating witnesses either.

[Speaker E] So what Rabbi Shimon Shkop is coming to reject is Tosafot’s claim that we do not accept both parts?

[Rabbi Michael Abraham] No. He is saying that Tosafot’s principle cannot help us explain our difficulty here.

[Speaker E] Because it should have said the same thing also about those coerced by money. I didn’t understand—but the Talmud here does not accept—

[Rabbi Michael Abraham] The Talmud distinguishes between coercion by threat to life and coercion by money. Rabbi Shimon Shkop says: according to this idea, there is no room for such a distinction. In practice it is unauthenticated—after all, in both cases we do not accept the testimony invalidating the document; we only say that there was no authentication testimony. So what difference does it make whether they say “we were coerced by money” or “we were coerced by threat to life”? Either way they did not authenticate the document, so why does the Talmud make a distinction?

[Speaker E] Because the Talmud does not hold like Tosafot.

[Rabbi Michael Abraham] The Talmud does not hold like Tosafot—but what did Tosafot think? Tosafot is explaining the Talmud. Tosafot is explaining the Talmud. Fine, okay, this is the stage—we are at the stage of the difficulty; this is the difficulty. Okay? So that is what Rabbi Shimon Shkop says. Now I’ll already point you there—look at section B. Skip to the next paragraph. Do you see section B? “And according to our words, it seems to me to explain also the words of Rami bar Hama and Rava.” Do you see? We’ll stop here; I’m not continuing to read. Do you understand what he means to say? Remember Rami bar Hama, before Rava corrected him—what did he say? That “the mouth that forbade” helps even when they say “we were coerced by money,” right? After all, Rami bar Hama in his first position says that the Mishnah is speaking about coercion by money, not threat to life. Well then, in coercion by money the first clause says that “the mouth that forbade” helps. And I asked: how can that be? After all, “a person cannot make himself wicked” is a principle of admissibility, not credibility. So how does “the mouth that forbade” help? Right?

[Speaker C] But Rami bar Hama said that in coercion by money they are not believed.

[Rabbi Michael Abraham] Not believed in the second clause. But the first clause speaks about the same case and says they are believed because they have “the mouth that forbade.” After all, he applied it to the second clause. Well then, if you apply it to the second clause, then the first clause also deals with coercion by money, because the first and second clauses speak about the same coercion. Well, and the first clause says they are believed because they have “the mouth that forbade.” So that means that according to Rami bar Hama—we talked about this—that according to Rami bar Hama’s first position, “the mouth that forbade” also solves the problem of “a person cannot make himself wicked,” not only the issue of retracting testimony. You remember that point? Even though “the mouth that forbade,” despite the fact that “a person cannot make himself wicked” is apparently a problem of admissibility, not credibility. And I would not have expected that “the mouth that forbade”… according to what we are saying now, maybe there is some opening to understand it. It really does not help; “the mouth that forbade” only says that the document is considered an unauthenticated document. “The mouth that forbade” will not say to them: you are believed to invalidate the document. That is not the point. Rather, it only leaves the document as unauthenticated, because their authentication too is worth nothing. And that is fine—it does not run up against the principle that a person cannot make himself wicked. Do you get the point? Again, let me go back over it—look. Tosafot introduced a novelty. Tosafot said: when witnesses come and say, “we were coerced”—sorry—“this is our handwriting, but we are disqualified as witnesses.” Fine? So Tosafot basically says this: we thought that the principle of “the mouth that forbade” means that we accept the whole testimony—a package deal. After all, you can’t split it in half. So what do we do? We accept the whole testimony. What does that mean? We accept the authentication, but we also accept the testimony that they are disqualified. Tosafot introduced: no, no, that’s not the point. Rather, we do not split the testimony, and therefore we do not accept all of it—not that we do accept all of it. And then what? The difference is dramatic. If we do accept all of it, then we have declared that the document is invalid—we tear up the document and throw it in the garbage. But if we do not accept all of the testimony, then true, you can’t collect with the document, but it is still hanging there—an unauthenticated document. Let witnesses come and authenticate it, and we can use it. Right? That’s a very big difference. Maybe yes—yes, it could be.

[Speaker B] Yes, the document is unauthenticated, but it’s still hanging there if other witnesses come. Wait, but in the case—wait, wait—when is the document torn up?

[Rabbi Michael Abraham] Again. If I accepted all of their testimony, I would say: I accept the whole… you’re right, one cannot split the testimony in two. You said you signed—I accept that. You said you were disqualified as witnesses—I accept that too. So then what comes out in the end? That I accepted the testimony that this is their signature, but I also accepted the testimony that the signature belongs to disqualified witnesses. So what do we do with the document? Tear it up. The document is invalidated. Truly, to accept all parts of the testimony means to rule that the document is invalid, to throw it in the garbage.

[Speaker E] But with all—

[Rabbi Michael Abraham] The Mishnah doesn’t say that… wait, one second, I just want to finish. In contrast, according to what Tosafot says—that the result of “the mouth that forbade” is not to accept all the testimony, not to accept all the testimony—so what does that mean? We did not accept the testimony that this is their handwriting—

[Speaker B] And also—

[Rabbi Michael Abraham] And we also did not accept the testimony that they were disqualified. We changed nothing. Exactly. So what remains here is an unauthenticated document. We do not throw the document in the garbage. For now we simply don’t collect with it because it is not authenticated, that’s all. Now when Rami bar Hama says that in the first clause we accept their testimony, it can now be explained not that we accept their testimony that they were disqualified as witnesses, but that we accept their testimony in the sense that there is no authentication here, and therefore the document is not used. And that is perfectly fine. Now all the difficulties I asked disappear: how can it be that “the mouth that forbade” solves the problem of “a person cannot make himself wicked”? After all, I asked concerning Rami bar Hama: how can such a thing be? “A person cannot make himself wicked” is a problem of admissibility. “The mouth that forbade” cannot solve such a problem, just as Rava indeed says, and that is also the halakhic ruling. But how can Rami bar Hama disagree with that? How can Rami bar Hama say that if there is “the mouth that forbade,” I am not bothered by the fact that they make themselves wicked? What is this… After all, the fact that they make themselves wicked—I don’t accept that categorically. Even if they proved to me that they were telling the truth, it would make no difference; even someone who tells the truth cannot make himself wicked. So why does “the mouth that forbade” help here? That’s what I asked, right? Answer: it really does not help. It is not that they are believed to make themselves wicked by virtue of “the mouth that forbade.” “The mouth that forbade” only says that just as I do not accept the testimony that they are wicked, I also do not accept the testimony that this is their signature. Consequently the document remains unauthenticated and is not used. So de facto I sort of accepted their testimony—I accepted their testimony in the sense that we do not use the document—but in truth what I did was not accept their testimony. Then there is no problem at all; the whole problem collapses. The whole problem—that “the mouth that forbade” somehow solves the point of “a person cannot make…” how can “the mouth that forbade” solve the problem that a person cannot make himself wicked—now that becomes completely understandable. So the principle he said above can serve to explain Rami bar Hama’s opinion together with the difficulty we left open when we learned the Talmud. Okay? Now I’m going back up, and let’s continue. So in the end what he says is this: we are in a discussion when they have a migo. Tosafot says “the mouth that forbade” is a migo. The question is what that means. Is it migo alone? It can’t be, because it is a migo against witnesses. It must be migo plus witnesses. Okay? And you can’t answer that it is migo alone, just with no witnesses opposite it—that was the parenthesis we just finished. I closed that parenthesis; I returned to the main line. So you can’t explain that this migo stands by itself, because there are witnesses opposite this migo. Okay. So what then? “Therefore it appears to me, in my humble opinion”—the second paragraph—“therefore it appears to me, in my humble opinion, that in truth they are believed both by the law of testimony and by the law of migo together.” Or in other words: first we thought that when witnesses have a migo, then it is only witnesses. After that we thought that when witnesses have a migo, then it is only migo. And now he says no, no—it is both migo and witnesses. Both things. Especially here, by the way, where the migo is not coming to solve some problem with the witnesses, because there is no problem with the witnesses. The only problem is that there are two witnesses against them—that is, against the document. It is not that the witnesses are disqualified or something like that. So there is migo plus witnesses here. That is his claim. But it’s not so simple. Meaning, the fact that they are witnesses is by virtue of the migo. We’ll soon see. “For that which we hold—that witnesses do not retract and testify again—means only that their second testimony does not help to diminish or add to the law, relative to the law that emerges from the first testimony.” After all, we are speaking about a case of “one may not retract and testify again.” Let’s say witnesses who say, “we were coerced by threat to life.” That is the case of the Mishnah, right? Coerced by threat to life. So what is the problem here? There is no problem of “a person cannot make himself wicked” here, right? This isn’t wickedness. It’s coercion. The problem is retracting testimony. Rabbi Shimon says: the rule that witnesses cannot retract and testify again applies only where the second testimony detracts from the first testimony. It contradicts the first testimony and weakens it. Right? “And behold, when they signed the document and it requires authentication, they have the power to give testimony such that the law of the document will be as an unauthenticated document. For in such a case they do not detract from their earlier testimony.” Rabbi Shimon Shkop says: this is not considered retracting testimony. Why? Because their first testimony said: there is a document here concerning a loan. When was the first testimony? When they signed. Fine?

[Speaker B] The first testimony was that there is a loan, not that there is a document.

[Rabbi Michael Abraham] No—that there is a document. The document testifies that there was a loan. Fine. So there is testimony here that says there is a document. We are signed on the document. But by the law of documents, we as a court say: if there is a document, that is considered testimony to a loan. But what are the witnesses themselves saying? The witnesses themselves are saying: we are signing on a document that will serve as testimony to a loan. We are saying: there is a document here.

[Speaker D] Don’t the witnesses who sign the document have to be present?

[Rabbi Michael Abraham] No. Maybe actually I should have said that earlier—on the contrary, they usually are not present. How is the signing of a document done? Wait, I’ll explain. How is a document signed? Look. Who prepares the document?

[Speaker E] The witnesses? The lender? The borrower.

[Rabbi Michael Abraham] The borrower has the document signed. The borrower basically says: please sign for me that I am about to take a loan from Reuven, and this document will serve as proof in his hand when he comes to demand it back from me. Why? You’ll soon see. Now I take the document—wait, I take it, wait, wait, wait.

[Speaker D] The borrower—the lender checks the witnesses and makes sure that—wait, one second.

[Rabbi Michael Abraham] I take the document, take the document, go to the lender, and ask him for a loan. He gives me the loan. He says to me: listen, I’m not willing to give you a loan unless you give me some kind of whip, right? Some tool by means of which I can make sure that I’ll get the money back. And here—I prepared a document for you. Fine? Take this document; this document testifies that I owe you money. He gives him the document. Of course, now the lender will check that the witnesses were not disqualified, because otherwise this document is worthless to him. But the one who had the witnesses sign is the borrower. The rule with a document is that a document testifies to the intent of the obligated party. Who is the obligated party here? The obligated party is the borrower. The borrower must pay the lender money. The obligated party is the borrower. The witnesses testify that there was intent on the part of the obligated party to obligate himself. That is what they testify to. They did not see the loan. They do not testify that there was a loan, because if that were so, I wouldn’t need them even to sign the document—let them just see the loan with their own eyes. A document is generally not made that way. Sometimes they may see it, but that is not essential to the wording of the document. They do not have to see it. The document is prepared in advance, and now the borrower comes and says: here, I’m giving you a whip in your hand—take it, you have a document; with this document you can prove that I owe you money, and that’s all.

[Speaker E] So then what was the coercion? What kind of coercion were the witnesses under? Coerced in what direction?

[Rabbi Michael Abraham] Coerced—the lender forced us to sign a document even though it was false.

[Speaker E] The borrower didn’t borrow? But wait, we said that the one who prepares the document—

[Rabbi Michael Abraham] Because if they were coerced, there was no loan. That’s it.

[Speaker E] There wasn’t—

[Rabbi Michael Abraham] There was no loan. The borrower did not prepare a document and did not hand over a document. They are claiming the whole thing is false. The lender forged a document, came to us with a gun so we would sign it as if he had received it from the borrower and the borrower had had us sign it—nothing of the sort. There was no loan.

[Speaker D] But it’s simply “this is our handwriting.” What?

[Rabbi Michael Abraham] Okay, he forced us to sign. Fine? So what—you need to understand—what happens is that the witnesses actually are not testifying to a loan at all. We as a court see this thing as testimony to the loan. The witnesses themselves did not see the loan.

[Speaker E] And in the case we discussed, where the presumption is that the lender checks the witnesses—if the borrower brings a document already signed by witnesses, what—

[Rabbi Michael Abraham] This lender—what does he check? The lender checks.

[Speaker E] How—

[Speaker F] Can it—

[Speaker E] Be that the witnesses who signed were minors? The borrower told him: here is a document signed by witnesses. They were minors. Wait, but the lender said: I want to know who these witnesses are. He shows him different adult witnesses. So he said, okay, no problem.

[Rabbi Michael Abraham] He asks them: tell me, is this your signature? What do you mean? He checks. Maybe it’s his money; his money is on the line here. It is in his interest to check; he won’t let these things just slide. He could lose his money. A person takes care of his money—that’s the assumption. A reasonable assumption. So the point is that what are the witnesses saying when they sign the document? What does their testimony say? There is a valid document here. We are saying nothing about the loan. What causes this to become testimony about the loan is the court. The court says: ah, there is a law of documents. Jewish law says there is a law of documents—that if a document is presented before us, for us it counts as proof that there was a loan. It is not really that the witnesses are testifying to the loan. They are not testifying. But this is the law of documents. The law of documents says that although the witnesses did not see the loan, we as a court, when a document is presented before us, treat it as testimony to a loan.

[Speaker E] And that’s because the document is in the lender’s hand—like, that’s the force here.

[Rabbi Michael Abraham] Exactly. Exactly. Okay? And then Rabbi Shimon says: if so, let’s now see when they testified and when they retracted and testified. What did they testify at first? At first they testified that there is a document here. Come on—this is a document and we are signed on it. The second testimony does not say that this is not a document we signed on. It only says that we were disqualified as witnesses when we signed, right? That does not contradict the first testimony. It contradicts the implication that the court wants to draw from the first testimony, namely that there was a loan. The court draws the implication that there was a loan. What the witnesses said in their testimony was: there is a document here and we are signed on it, that’s all. The testimony about the loan is created by force of the law, not by force of their testimony. The law says that when a document with two witnesses is presented and it is authenticated, then for us it counts as testimony to the loan. Now when we come back and testify again, the contradiction is not to our earlier testimony, because our earlier testimony only said that we are signed on the document. Even now we admit that we were signed on the document. We are only saying that we signed under coercion, that’s all. So that is not a contradiction. Therefore there is no problem here of retracting testimony.

[Speaker G] But here he also says “to diminish or to add.” What? It says here “to diminish or to add.”

[Rabbi Michael Abraham] “To diminish or to add” means, yes, but to contradict what was there. Here I’m not contradicting anything. I’m leaving what was there in place; I’m only saying something additional.

[Speaker E] Is this only when they were coerced, not when they were minors?

[Rabbi Michael Abraham] No, also when they were minors, it’s the same thing.

[Speaker E] No, but when they were minors they were disqualified anyway. If the court had known at the time of signing that they were minors, then it would not have let them sign that document because they were disqualified due to being minors, right? So now when they testify about themselves, “this is our handwriting, but we were minors,” they are basically testifying that at the time of the signing itself, at the very time of the signing, they were disqualified. So we have no witnesses for the document.

[Rabbi Michael Abraham] Now they are saying they were disqualified. But earlier they did not say that they were not disqualified; they only said, “we signed the document.” When they signed the document, that was the first testimony, at the stage of signing. That was the first testimony.

[Speaker E] But why is that considered anything at all? If they were minors, is the first testimony considered—

[Rabbi Michael Abraham] But who said they were minors? The second testimony says they were minors. The first testimony was: we are signing the document; we are the witnesses of the document. That’s all. We said nothing about what we are. Now the second testimony says: true, we are the witnesses of the document and we signed, but we were disqualified. Fine? Does the second testimony contradict the first? No.

[Speaker F] It still leaves it there.

[Rabbi Michael Abraham] Yes. We still say that we signed the document and we are the document’s witnesses. We are only adding more information now: but we were disqualified, or coerced, or all the other things. Rabbi Shimon says: this is not retracting testimony in the simple sense. The rule of “one may not retract and testify again” is when the second testimony comes to contradict the first. We say: two witnesses come and say, “Reuven lent Shimon money.” Ah—but actually no, he didn’t lend him money. Or: Reuven lent him one hundred shekels. Ah, no, no, no—he lent him two hundred, or he lent him fifty. That they cannot say, because it contradicts. Therefore this is what “adding” and “diminishing” means—either two hundred or fifty—when there is a contradiction to the first testimony. But here the first testimony remains in place; we have not retracted anything. So the second testimony is not considered retracting testimony in the simple sense. That is what Rabbi Shimon says here.

[Speaker G] Yes, if according to Rashi, then Rashi kind of does accept the—what? That there can be a contradiction within the sentence, if he says that it is in one statement or one utterance.

[Rabbi Michael Abraham] No—which Rashi do you mean? I don’t know what you’re referring to. Ah. The plain reading that “the mouth that forbade” solves the problem of retracting testimony. That’s not related. We are now returning to the very law of retracting testimony itself. The very law of retracting testimony—Rabbi Shimon says—simply doesn’t exist here. Why? Because the second testimony does not contradict the first; it leaves the first standing. Therefore there is basically no ordinary law of retracting testimony here. “And behold,” Rabbi Shimon says, “when they signed the document and it requires authentication, they have the power to give testimony such that the law of the document will be as an unauthenticated document, for in such a case they do not detract from their earlier testimony.” They merely signed the document, but the signature does not make the document authenticated. So now if we come and say, “this document is ours, but it is unauthenticated”—if we could say such a thing—that would not be retracting testimony, right? Because we signed the document. We are still the ones who signed the document. We are only saying: but the document is unauthenticated. We are not authenticating it. Fine? To say such a thing would not be called retracting testimony, right? There is no contradiction to the first testimony. However, Rabbi Shimon says, without the law of migo it is impossible to accept their testimony. Since they testify, “this is our handwriting,” and the document is thereby completed as valid, they no longer have the power to invalidate it. For within the time of immediate utterance they can fully retract, but if they did not retract within that immediate time and they testify so as to diminish the legal effect of the earlier testimony, they are not believed. And you will not be able to say, “we were disqualified.” They are not believed in the claim “we were disqualified.” Why? Because this goes against the law of documents. Right, it is not against their testimony, but it is against the law of documents. Because the law of documents says that if there is an authenticated document before us, the assumption is that the witnesses are not disqualified too, and that there was a loan. So in effect this will be considered, in halakhic terms, like retracting testimony, because on the halakhic level it does indeed go against the first testimony. He says yes—but here—

[Speaker B] What makes it possible for this not to be retracting testimony is “the mouth that forbade.”

[Rabbi Michael Abraham] Exactly, that’s the migo. And that’s what he says: even if they were to say the opposite, “we were coerced” came before “this is our handwriting,” that’s not an important comment. First of all, aside from the fact that you can’t really picture that, because once you say “we were coerced,” you’ve already said that you signed. Right, that’s obvious. It further seems to me that since afterward they testify that it is their handwriting and the document is validated, the first testimony is already complete. And that’s why you need the rule of migo. Meaning, just as we find the rule of “the mouth that prohibited is the mouth that permitted” regarding the credibility of a litigant, for example when a woman says, “I was a married woman, and I am divorced,” or when a father says, “I gave my daughter to this man in marriage,” where within the same speaking span the Merciful One gave him credibility with the force of before the statement—what is “the mouth that prohibited”? “The mouth that prohibited” means we treat you as if you said nothing. Like we saw earlier in Tosafot, remember? “The mouth that prohibited” means we treat it as if you didn’t speak. Okay? So he says, likewise with witnesses, they have credibility within the same speaking span as before the statement. And just as before the document was validated they could have spoken in a way that would leave the document with the status of an unvalidated document, so too if they testify, “It is our handwriting, but we were coerced,” they have a status of credibility such that the document has the same status it had before validation. So he says like this: in principle, there really is a case here of retracting and retestifying. There is retracting and retestifying, not head-on—the second testimony doesn’t factually contradict the first—but there is retracting and retestifying because Jewish law viewed the first testimony as testimony about the loan. And then it says that you are not invalid witnesses, and now suddenly you’re saying that you are invalid. So this is halakhic retracting and retestifying, not factual retracting and retestifying. But on that, he says, “the mouth that prohibited” takes care of it. Why? Because “the mouth that prohibited” can return us to the state where we said nothing, so we didn’t validate the document. Once we didn’t validate the document, then there is also no validated document here. So there is also no rule saying we view the document like two witnesses; rather, view us as if we said nothing. We went back to the state that existed before our testimony, prior to our testimony. There is no validation here. Okay? That we really can do. But that can only be done by the force of “the mouth that prohibited.” Without that we couldn’t say it; only by the force of “the mouth that prohibited” can we do it. Or in other words, Rabbi Shimon Shkop wants to argue that only because of “the mouth that prohibited” can we actually be believed in our testimony such that the document is treated as an unvalidated document. Not as an invalid document, but as an unvalidated document. We aren’t believed, but we also aren’t believed regarding the validation. So practically speaking, the document can’t be used. As he said earlier from Tosafot on page 2b—the same principle. But earlier we said that can’t be, because when they say, “we were coerced due to money,” it should also be the same thing. So then you wouldn’t accept anything from them, and then there wouldn’t be any validated document here at all, and everything would be fine.

[Speaker E] But that’s a question of admissibility, not a question of credibility. In what sense? According to this conclusion. We don’t accept it at all, we don’t accept it—you basically don’t exist.

[Rabbi Michael Abraham] Right. “The mouth that prohibited” basically says: we view you as if you hadn’t come. And then what? Then it’s not that your first testimony remains standing. The document is a document signed by two witnesses. Everything is fine. And there is a rule that as long as it hasn’t been validated, right, we don’t use that document. That’s all—we’re in that status. That’s where we are now.

[Speaker C] So we’re going back to the earlier Tosafot?

[Rabbi Michael Abraham] Right, he’s returning to the principle he said there in Tosafot, with added explanation. Why? Because above he had a difficulty. Why didn’t he accept Tosafot? Because he said that even in a case of coercion due to money, it would have the same rule, right? You can’t say that. Ah—now, now we keep reading. He explained all of this in order to show why that difficulty doesn’t really exist according to his current formulation. Now he says this: likewise, if they testify, “It is our handwriting, but we were coerced,” they have a status of credibility such that the document has the same status it had before validation. For if afterward the document is validated by others, the document will be completely valid. Just as it was before. He proves this from the ruling in the Shulchan Arukh—it doesn’t matter, we’ll skip that. It follows—Rut, is there a period there? Yes. So it follows—after the period continue, I just don’t want to get tangled up in those parentheses all the time—it follows that this testimony is effective, it works, because of two forces: by the law of witnesses and by the law of migo. And therefore, according to Rava, whose view we follow, if they make themselves into wicked people, where the law of testimony does not apply, because a person is considered related to himself, then it is a migo in a place where there are witnesses. What did he say? After all, if a person cannot make himself wicked, then there is no testimony here. The migo exists, but testimony does not. But in order to have credibility, I need both the testimony and the migo. Therefore, in the case of “we were coerced due to money,” “the mouth that prohibited” does not help. It only helps in the case of “we were coerced by threat to life.” That’s what resolves the difficulty he raised above. Above he said that because of this difficulty, you can’t explain it like Tosafot.

[Speaker F] Wait, so according to Rava, is the document validated? What? If “the mouth that prohibited” doesn’t help, then the document…

[Rabbi Michael Abraham] Right. Exactly. Rami bar Hama says the document remains unvalidated. I said you could explain Rami bar Hama in light of this, and here we are speaking about the conclusion according to Rava. But according to Rava, earlier we asked: if you say we do not accept “the mouth that prohibited” at all, then even in a case of coercion due to money we should not accept any of their testimony, and still the document should be unusable. So why does the Gemara say otherwise? The answer is that if I say, “we were coerced due to money,” then the testimony here does not exist; only “the mouth that prohibited” remains. The testimony is not there. Okay? Why? Because testimony is inadmissible if a person makes himself wicked. “The mouth that prohibited” by itself can’t work; that would be “the mouth that prohibited” against witnesses. You need both the testimony and the migo, and the testimony here does not exist. Therefore you have to say that there was both migo and witnesses. And then you can say the answer Tosafot gave on page 2b. You asked earlier how Tosafot fits with the Gemara—this is how it fits with the Gemara. This is an explanation of Tosafot, what he’s saying here. To explain Tosafot on page 2b, you have to say that there really was no validation here—but there was no validation here only if we count as witnesses, then there was no validation. If we are not witnesses, then there was validation, because we need to have both the force of witnesses and the force of migo in order to reach a state in which there was no validation. If we don’t have the force of witnesses, because we are making ourselves wicked, and all we have here is the migo, that isn’t enough. That’s the claim. It’s a bit complicated, and this is only his first part. By the way, sections 30 and 31 basically come back to similar ideas in a somewhat different way, in slightly different formulations, so it’s not so terrible. The core of the matter is here. The rest is further conceptual sharpening. So in the end, to sum up, Rabbi Shimon Shkop wants to argue that when witnesses come and say, “we were coerced due to money,” “due to danger to life,” whatever it may be, we really need to view them as witnesses plus “the mouth that prohibited.” Witnesses plus “the mouth that prohibited.” If all we have is “the mouth that prohibited,” then it is “the mouth that prohibited” against witnesses. That doesn’t help—the witnesses of the document. Okay? It doesn’t help. If we have witnesses plus “the mouth that prohibited,” that can work. When do we have witnesses plus “the mouth that prohibited”? If the witnesses say, “we were coerced by threat to life.” Because then the testimony—they are not making themselves wicked—the testimony is admissible. We only have a problem because it is against the witnesses of the document, so we have “the mouth that prohibited.” “The mouth that prohibited” turns the document into an unvalidated document. Okay? But if we say, “we were coerced due to money,” that is not testimony at all, because we are making ourselves wicked. So what we are left with is only the migo or “the mouth that prohibited,” not the testimony. That cannot work. We need both the migo and the testimony. Okay, we’ve had a little taste of the conceptual analysis. Really, one could continue this calculation further into the continuation of the passage, into the continuation of his section, but I feel that’s a bit much. It would be squeezing the lemon too hard. But I would be happy if you go over this now after we read according to the next order of study—go over it again. If you managed to get a page ahead, that gives us a little more time to see that you really understand. After we’ve already learned it together, if you go over it once more, I hope it will be clearer.

[Speaker B] Okay, and then move on to “we split the statement”?

[Rabbi Michael Abraham] The statement—which I’ll already begin now, and that will also help your preparation for it, okay?

[Speaker B] So—

[Rabbi Michael Abraham] Look now at the second order of the page.

[Speaker B] And I’m starting with background.

[Rabbi Michael Abraham] We’ve left our passage. Our passage will touch on “we split the statement” and on a person making himself wicked; Tosafot goes on at length about this. But right now I just want to give the background. Okay? And I still won’t finish the background, but I’ll begin. Let’s start with the Gemara in tractate Sanhedrin. “And Rav Yosef said”—do you have the first source? “And Rav Yosef said.”

[Speaker B] We turned the page.

[Rabbi Michael Abraham] “And Rav Yosef said: if someone sodomized him against his will, he and another may join together to have him executed.” Meaning, yes, sexual relations between two men are forbidden; whoever did this is liable to death, okay? Now, if this was done to me by force, then of course—if he raped me, if he raped me—then I am not wicked, I’m not liable to death of course. He is liable to death, he is wicked. Okay. What happens if I and another witness come and say, “So-and-so sodomized me against my will”? He joins… no, I’m not wicked. “Against my will,” under compulsion. So both of us are witnesses. Right—we can convict him even though I am the victim. You might think I’m a party with an interest? No. We are considered two witnesses, and our testimony is accepted, okay? But—if it was willingly?

[Speaker B] Here it’s not… here he’s wicked. Wait a second, the Gemara continues.

[Rabbi Michael Abraham] “Willingly”—what does that mean? Meaning, so-and-so says, “So-and-so sodomized me willingly,” okay? “He is wicked, and the Torah said: do not make a wicked person a witness.” In other words, Rav Yosef says: if someone comes and says, “So-and-so sodomized me willingly,” in other words it was mutual consent, then both I am wicked and he is wicked. Okay? And together with him another witness comes who indeed saw the act. That doesn’t help. Why doesn’t it help? He is wicked—he has made himself wicked.

[Speaker B] And the other one is a valid witness.

[Rabbi Michael Abraham] So how many witnesses do we have here altogether? Zero. Because I am wicked, and if part of a group of witnesses is invalidated, the whole group is invalidated. If one of them is found to be related or invalid, all of them are invalidated. Okay?

[Speaker D] Totally—wait, wait—if one of them is invalid, then the whole testimony…

[Rabbi Michael Abraham] His testimony is not accepted because there is a group of witnesses. No, not because one is zero, but because when there is a group of witnesses and one of them is invalid, the second one is also not accepted. Doesn’t matter who it is. What? If a third one comes, then he would be one witness—if he comes separately from them. If he comes with them, he too will be invalidated. Why? If four come, a hundred witnesses, and one of them is the one who was himself the passive party, the whole group is invalidated. Yes, the whole group is invalidated. If one of them is found related or invalid, their testimony is void. That’s a rule.

[Speaker C] It’s a rule learned from a verse.

[Rabbi Michael Abraham] Gemara in tractate Makkot. Okay? So that’s the rule, it doesn’t matter. So that’s what Rav Yosef says: if he says, “So-and-so sodomized me willingly,” and he comes with someone else, he is not believed. Why? Because he is wicked, and the Torah said, “do not make a wicked person a witness.” By the way, the Torah doesn’t literally say, “do not make a wicked person a witness”; there is no such verse. The Torah says, “Do not put your hand with the wicked to be a corrupt witness.” The Sages derive from this: “do not make a wicked person a witness.” So “do not make a wicked person a witness” means: do not allow a wicked person to testify. It’s a derivation, right? So he himself is invalid because he is wicked—he has made himself wicked. But the second witness is also invalid. The second witness is invalid because of the plain meaning of the verse.

[Speaker D] “Do not put your hand—”

[Speaker B] “with the wicked to be a corrupt witness.” What does that mean? Don’t join his testimony.

[Rabbi Michael Abraham] Don’t join with a wicked witness to testify together with him, even if you are a valid witness and you are testifying truthfully.

[Speaker D] But if he—

[Rabbi Michael Abraham] Knows. If he doesn’t know, then no.

[Speaker D] And if that witness comes afterward?

[Rabbi Michael Abraham] Then he will be one witness. Worth whatever one witness is worth.

[Speaker D] His invalidation—isn’t it because he is in the same group with him? Yes, he’s in the same group because he came to testify together with him. They came together. No—a group, a set of witnesses, is when they come and testify together about the same matter.

[Rabbi Michael Abraham] There are whole discussions in the Gemara in Makkot whether this is only if they are one group because the testimony joins them when they speak together. If they come separately, then the Gemara in tractate Makkot discusses whether seeing joins them, or testifying joins them. The question of what defines a group is not simple, but let’s leave that aside for now.

[Speaker D] At weddings they say, “only these are the witnesses.” What? At weddings they say only these are the witnesses, so all the others exactly…

[Rabbi Michael Abraham] Why does the groom say to the two witnesses, “you are my witnesses”? Because in the audience there are his relatives sitting there, right? So if it came out that the whole audience together were witnesses, they would invalidate the two valid witnesses as well. That’s the rule of “if one among them is found related or invalid.” Yes. So he says: only you are witnesses; the others are not witnesses, and then there’s no problem. Rava said: a person is considered related to himself, and a person cannot make himself wicked. What does that mean?

[Speaker G] That a person can’t convict himself.

[Speaker E] That he can’t join with someone else.

[Speaker D] He can’t testify about himself because he is one of the relatives.

[Speaker E] So the reason a person cannot make himself wicked is because he is related to himself. He is invalid because he is related; he is invalid because he is the passive party, and therefore he is invalid.

[Speaker B] He can implicate—

[Rabbi Michael Abraham] his fellow,

[Speaker B] but he can’t implicate himself. So what follows? We split his testimony. We accept his testimony as it stands.

[Rabbi Michael Abraham] As opposed to what Rav Yosef said, that you are wicked and therefore we do not accept your testimony, Rava says no. We split the statement. The part where he makes himself wicked, we do not accept, because a person cannot make himself wicked. So what remains is only the testimony about the other person, and that testimony about the other person is accepted because you are not wicked. We do not accept your testimony about yourself that you are wicked, so from our point of view you are valid. We split the statement. We do not accept the testimony that you were the passive partner; we do accept the testimony that he committed the act. Okay? Unlike Rav Yosef, who says that since you made yourself wicked—when you say that you are wicked—then your testimony cannot be accepted, and the testimony about the other person is not accepted either. Rava says no, no, no—just the opposite. We do not accept the testimony about you, and therefore we do accept the testimony about the other. Because the testimony about you says that you are wicked, and a person cannot make himself wicked. Once we have no testimony that he himself is wicked, why should we invalidate his testimony? We accept the testimony that he gave about the active partner. Okay?

[Speaker B] I have a question. About the witness who joins him—are we saying that since we split the statement of the passive party himself, then the witness with him, we also accept his testimony? No, I said no. I’m asking something else: does the fact that we split the statement of the person himself, who is the litigant, also lead to this—that with the second witness too, I can accept only half the testimony?

[Rabbi Michael Abraham] No, I said no. I already answered that. No. Regarding the second witness, we accept all the testimony. Both the testimony that so-and-so committed the act and the testimony that it was done to me. It’s just that regarding me there is only one witness, so I am not invalidated.

[Speaker E] Wait—why, in the part that is invalidated by splitting the statement, doesn’t the other witness in the group also get invalidated in that case?

[Rabbi Michael Abraham] Why should he be invalidated? Why should he be invalidated? He can testify that it was done to me. What’s the problem? There is one witness that it was done to me. You’re wicked. I can’t make myself wicked.

[Speaker B] He joined a wicked person. He joined a wicked person who is testifying about himself.

[Rabbi Michael Abraham] No, that’s something else. But we can accept his testimony about the active partner. There’s no problem. Afterward you can think about whether he joined a wicked person. Legally, I think that is not considered joining a wicked person, because the witness is not invalidated. One witness cannot invalidate me. I am not wicked. As long as I’m not wicked, I haven’t been invalidated.

[Speaker B] But I convicted myself.

[Rabbi Michael Abraham] I am not believed to convict myself. A person cannot make himself wicked. He convicted me, the second witness. But the second witness can’t convict me because he is only one witness. So he’s also not guilty of having joined with a wicked person, because I am not wicked. “Wicked” is only someone whom a court has declared wicked and disqualified from testimony. The fact that you know he is wicked doesn’t make him wicked. “Wicked” is a status; it’s a status determined by the court. Okay? So really, notice, this is the important point, because from the Gemara it’s not quite so clear. In the Gemara, Rava comes and disagrees with Rav Yosef. Rava claims: a person is considered related to himself, and a person cannot make himself wicked. And therefore what? Therefore, when I testified that I am wicked—“so-and-so sodomized me willingly”—that testimony is not accepted. I cannot make myself wicked. So my testimony about him is accepted, because if I am not wicked, then there is no reason to invalidate my testimony. And in this he disagrees with Rav Yosef, because Rav Yosef argues that my testimony about him is not accepted. Okay? So the idea over which Rav Yosef and Rava disagree is the question whether we split the statement or do not split the statement. And the basis for splitting the statement is the rule that a person is considered related to himself and cannot make himself wicked. That’s two—

[Speaker D] different things.

[Rabbi Michael Abraham] Apparently those are two different things; we’ll still deal with that, but not today. That’s one of the things we need to address. What is the connection between those two parts—that a person cannot make himself wicked, and that a person is considered related to himself?

[Speaker D] It’s not just that one follows from the other; there are more points here.

[Rabbi Michael Abraham] That’s the question. Apparently, “a person is considered related to himself” means that because of that I cannot testify about myself, and therefore I cannot make myself wicked. So one is the reason and the other is the result.

[Speaker B] Is “a person is considered related to himself” like a kind of relative-status? That’s it.

[Speaker F] We split…

[Rabbi Michael Abraham] Why? Let’s go over it again.

[Speaker F] Because if a person is considered related to himself, then with regard to himself he can’t—

[Rabbi Michael Abraham] But from that it sounds like no—so he can’t testify about himself, that’s all. Do whatever you want with the rest. Either invalidate all the testimony or don’t. When he testifies only about someone else, then of course the testimony is accepted, that’s obvious. But I don’t know what happens in the case of splitting the statement; I don’t know if one can infer anything precise from here. Meaning, in the end, what Rava is saying—notice, this is an important point—what Rava is basically saying is that when a person speaks about himself, the part that speaks about himself is erased.

[Speaker D] Not accepted.

[Rabbi Michael Abraham] What remains is only the second part, and that we do accept.

[Speaker D] Again—with regard to himself, yes, things—

[Rabbi Michael Abraham] that a person testifies about himself are erased.

[Speaker D] The testimony—

[Rabbi Michael Abraham] that testimony is not heard in court. What remains is only the second half of the testimony—that so-and-so did the act, not that he did it to me.

[Speaker F] But the question is: “a person cannot make himself…” A person is considered related to himself, and therefore maybe because of that he can’t make the…

[Rabbi Michael Abraham] I said, regarding the relation between the two parts of the sentence, there is room for uncertainty. Apparently it is cause and effect. A person is considered related to himself, right? Me and me are brothers, you know—both of us have the same parents, right? So obviously we’re brothers. So because of that, just as I am disqualified from testifying about my brothers, I am disqualified from testifying about myself—it’s all the more so, right? So since I am a relative, if I make myself wicked, the testimony is not accepted, because I cannot testify about myself just as I cannot testify about my brother that he is wicked. Not because I’m not—

[Speaker D] Not because a person cannot make himself wicked, but because I can’t testify about myself. Exactly. But that is exactly—

[Rabbi Michael Abraham] the difficulty with that interpretation, because according to it, there is no connection at all to wickedness. I also can’t make myself righteous and I can’t make myself anything—I can’t testify about myself. That’s all. What’s the difference with a relative? A relative cannot testify about his relative either for benefit or for liability, not only to convict him. So why here is it only to convict? After all, if I’m not convicting, then it’s an admission of a litigant.

[Speaker D] Because you said it’s obvious that it’s an a fortiori argument. Huh? Of course if I say that I’m righteous, I also can’t. Why?

[Rabbi Michael Abraham] Because I’m a relative—so also to convict him.

[Speaker D] Because I want to justify myself, but because I’m a relative—

[Rabbi Michael Abraham] But who would want to incriminate himself? But the Gemara ties it to the fact that I am a relative.

[Speaker D] So if I’m a relative, then it goes both for benefit and for liability, like all relatives.

[Rabbi Michael Abraham] But “wicked”… to convict myself—on the level of reasoning, you’re right. On the level of reasoning, you’re right. But… there’s something truer about it, you understand? On the level of reasoning, you’re right—it’s like an admission of a litigant. But in Jewish law, once they compare me to a relative—

[Speaker D] then it should go in both directions.

[Rabbi Michael Abraham] Yes. So if that’s the case, then why say—just say “a person is considered related to himself,” and that’s enough. I already know—I already know—that a relative cannot testify either for benefit or for liability. That’s all. Why do you need to add “a person cannot make himself wicked”?

[Speaker B] Maybe it’s something else—

[Rabbi Michael Abraham] “a person is considered related to himself”—

[Speaker B] it’s not technical, that because—

[Rabbi Michael Abraham] Therefore—that’s what I’m saying—therefore it seems that this addition is saying something else besides mere kinship. Okay, and we’ll still need to examine that. So for now I’m leaving that open.

[Speaker F] Splitting the statement—is that something having to do with being a party with an interest, and that goes both for benefit and for detriment, right? Okay. Another question… exactly the same thing: a person is considered related to himself—that’s being a party with an interest. Okay, so then what?

[Rabbi Michael Abraham] There’s an interest both for liability and… no, being a party with an interest doesn’t work for detriment; if it’s for detriment then I’m not interested.

[Speaker D] There is an interest—but is there an interest in convicting himself?

[Rabbi Michael Abraham] He has no interest. Come, there’s one more case I want us to manage in the two minutes we have left. Look at the next passage: Gemara in Sanhedrin 25a. “Against Bar Binitus two witnesses testified.” That’s the name of a person, Bar Binitus. Two witnesses testified about him. “One said: in my presence Bar Binitus lent with interest.” In front of me, he lent with interest. I saw that he lent with interest, Bar Binitus.

[Speaker D] And one said, “in my—”

[Rabbi Michael Abraham] “presence,” before my eyes he lent with interest. “And one said: he lent to me with interest.” Also I—he lent with interest to me, I was the borrower. Now, as is known, the borrower too is wicked.

[Speaker D] It is forbidden both to borrow and to lend with interest.

[Rabbi Michael Abraham] Okay? Both the borrower and the lender are wicked. So really we have a situation here where the person makes himself wicked, exactly like the previous case, right? Rava disqualified Bar Binitus. Rava accepted the testimony and disqualified Bar Binitus. You lent with interest; there are two witnesses that you lent with interest. The Gemara asks: but it is Rava himself who said that one who borrows with interest is disqualified from testimony, and he is wicked, and the Torah said, “do not make a wicked person a witness.” After all, Rava said that one who borrows with interest is wicked and his testimony cannot be accepted. Rava is consistent with his own reasoning, for he said: we split the statement. Here too, it is exactly the same case. As in the previous case, I do not accept the testimony about himself that he borrowed with interest, because a person is not believed to make himself wicked. I do accept the testimony that Bar Binitus lent to him, because as long as he is not wicked, there is no reason to invalidate his testimony about Bar Binitus. Same case as on page 9—just so you see that this is a consistent principle in Rava’s view. Rav Yosef disagrees with him. Rav Yosef argues that even if you yourself made yourself wicked, that is enough for us not to accept your testimony even about the other person, because that means you are wicked.

[Speaker D] The fact that he says it as one sentence, like it’s always together, shows that there is something else here. It would have been enough just to say “a person is considered related to himself,” etc.

[Rabbi Michael Abraham] Again, we’ve gone back to the whole previous discussion. But I’m saying that still needs to be checked. Okay? That’s the concept of splitting the statement. What I asked for on the page—the continuation of the Gemara in Sanhedrin can be left for now. If you want, you can go over it, but without going into too much depth. Just skim it briefly. And after that, go on to the Gemara in Makkot, which on the face of it is not connected to the issue, but the Rosh on the Gemara in Makkot connects it to the issue. Now look, maybe keep the page I handed out. You see, I brought the Rosh here. This is not the whole Rosh. There’s another half that isn’t here; this is about half or a bit more than half of the Rosh’s words. As far as I’m concerned, focus on this. The continuation will only complicate things. Okay? So keep this, just so you remember which part of the Rosh it’s worth focusing on.

[Speaker D] Could it be that there is a difference between “a person cannot make himself wicked” and “an admission of a litigant”? That’s the question, right? What?

[Rabbi Michael Abraham] That’s not—this is a topic I’m going to talk about. It’s part of the issue.

[Speaker D] Is it that one is something—in monetary matters, right? This is in monetary law and that isn’t in monetary law?

[Rabbi Michael Abraham] Or not necessarily? Yes, this is in monetary law and that isn’t in monetary law. But the question is why. Why? Yes, okay, that’s something I still need to discuss.

[Speaker D] Okay. Are there also the names of the people? Yes. Because I couldn’t find an explanation in the dictionary and all that. Okay.