Ketubot, Chapter 2, Lesson 32

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[Rabbi Michael Abraham] It works out perfectly. Because everything written in the Talmud in Rosh Hashanah is only about sanctifying the month. For sanctifying the month you don’t need testimony; seeing is enough. There, seeing is good enough. And it doesn’t say there that hearing is less good than seeing—quite the opposite. In a place where testimony is required, like validation of documents, where testimony is required, and in monetary law, capital law, and every other area where testimony is required, there of course the judges’ own knowledge alone won’t be enough; people will have to testify before them. And there, indeed, seeing is stronger. So much so that we really need to ask: then why, in the final conclusion regarding validation of documents, is knowledge also good enough? Maybe because it’s a rabbinic law and therefore that works, or something like that. It was introduced as a novelty that it works. But in principle, it was newly taught there that this too works. But clearly hearing is better. So according to Rashi, the two passages fit together very well. Tosafot’s question doesn’t even arise. But I’ll say more than that. What about Tosafot’s two answers? I mentioned that there are two answers in Tosafot. One answer is that there is a concern that they saw it at night in the case of validating documents. And then of course that really fits Tosafot’s own approach, because then there is such a rule that hearing is not greater than seeing, except here, since it happened at night, it’s like the case in Rosh Hashanah. But what does Tosafot’s first answer say? Tosafot’s first answer says that maybe hearing really is greater than seeing. How does that fit with the Talmud in Rosh Hashanah? That’s Rashi. Tosafot’s first answer fits Rashi’s approach. What will he say? That what is written in Rosh Hashanah applies only to sanctifying the month. But here we are talking about validating documents—who says that here too seeing is enough? So Tosafot’s first answer works very well with Rashi. Tosafot’s second answer really is like the other medieval authorities (Rishonim) who disagree with Rashi. Okay? And still, of course, we need an explanation, because Tosafot’s question against Rashi from Bava Kamma 94, where we see that the rule is that hearing should not be greater than seeing even in a place where testimony is required, like in capital cases—that directly contradicts Rashi and Tosafot’s first answer, Tosafot in Ketubot. Okay? So that difficulty we still need to resolve, and it’s a very strong difficulty. And the medieval and later authorities really don’t know what to do with it, and that’s why some of them force Rashi away from his plain meaning and still don’t know what to do. Today I’ll suggest some explanation. But before I suggest that explanation, let’s continue in Rosh Hashanah. The Talmud in Rosh Hashanah asks: after all, hearing should not be greater than seeing, so why do they need to testify before others so that the month can be sanctified on the basis of their personal knowledge? The Talmud says: we are dealing with a case where they saw the moon at night. So what if they saw it at night? Fine, then you can’t accept testimony at night. So you can’t sanctify—wait—you can’t sanctify the moon at night because that is an act of judgment. So let’s sanctify it in the morning on the basis of the knowledge we acquired at night. What’s the problem? Why do I suddenly need formal testimony in the morning?

[Speaker C] To note that there’s a difference between seeing and… I think between seeing the signatures.

[Rabbi Michael Abraham] No, no, leave signatures aside, leave signatures aside, Nehama, we’ll get to signatures later. Right now I’m talking about sanctifying the month.

[Speaker C] But you see it well, meaning there’s no doubt that I really saw the month, because at night you see the moon clearly.

[Rabbi Michael Abraham] So? What of it? Why should it matter that they saw it at night?

[Speaker E] It’s—

[Speaker C] the status, it’s—

[Speaker E] the status. What they see, they can judge, but if I split that apart, then a new testimony is already needed.

[Rabbi Michael Abraham] Why? Because hearing should not be greater than seeing. They saw it; they have excellent knowledge, right? So why should it matter that this knowledge was acquired at night?

[Speaker E] Maybe because of the question whether testimony is accepted at night or not accepted at night.

[Rabbi Michael Abraham] But I’m asking—there’s no need for testimony at all, since they know.

[Speaker C] It doesn’t have to be adjacent, the seeing that serves it.

[Rabbi Michael Abraham] I didn’t understand. One at a time.

[Speaker C] I saw someone kill someone, and I’m a judge.

[Rabbi Michael Abraham] Exactly. So you’re repeating my question—that’s what I’m asking. After all, this morning, when I’m here in the morning and now I want to sanctify the month in the morning, I know—I saw it at night a few hours ago, now I know. So why do I need testimony? After all, the knowledge…

[Speaker F] Let’s please look at Rashi and Tosafot, Rashbam and Tosafot.

[Speaker E] After all, seeing at night is like receiving testimony at night. Okay. So basically—so let’s see, let’s see.

[Rabbi Michael Abraham] There is one first possibility here, really the simplest one. That possibility says that the moment they saw the moon—wait—the moment they saw the moon is itself considered a moment of receiving testimony. As if reality testified before them. Okay? Or I don’t know, or they testified to themselves—doesn’t matter what you call it. And therefore there was an act of receiving testimony at night here. And then what?

[Speaker E] And there is no judgment at night.

[Rabbi Michael Abraham] And there is no judgment at night; you can’t receive testimony, right? Now we get to the morning. What happens in the morning? So in the morning I say, wait a second—in the morning I say: after all, I know, why can’t I sanctify the moon on the basis of my knowledge? The answer: I don’t know. How do I know? Only on the basis of the testimony I received at night, the testimony from myself. Okay? But that testimony is not legally valid testimony. So it’s not considered that I really know. If so, now I need to receive testimony and sanctify the month on the basis of testimony. Meaning, the assumption in the background—on the plain reading of the Talmud—the assumption in the background is that the usefulness of seeing is only because the seeing itself counts as some kind of giving testimony. Meaning, we don’t really give up the requirement of testimony when we rule on the basis of seeing; rather, the seeing itself counts as giving testimony, that’s all. But that can’t be done at night, because testimony cannot be received at night. Yes.

[Speaker D] What I understood was that what is forbidden at night is to conclude the judgment, meaning to issue the ruling. Why? Where is it written that one may not testify? Is testimony—does testimony itself mean there is already a process? There is testimony, there is discussion, and afterward there is a ruling. Okay. The moment there is testimony, is that already considered as though there is already a ruling?

[Rabbi Michael Abraham] On the simple level, yes. Meaning, receiving the testimony is itself a kind of ruling. In receiving testimony, we rule that these witnesses testified truthfully. Afterward we’ll be able to use that testimony when we come to the actual legal decision, but that too is considered a kind of ruling.

[Speaker D] In sanctifying the month maybe that’s simple, because we saw the moon; there isn’t much to discuss or hesitate over. If they saw the moon, then apparently you sanctify the month. There aren’t additional parameters here, no dispute. Two witnesses saw the moon and that’s it. Other things are more complicated; even if there are two witnesses, maybe there is another factor.

[Rabbi Michael Abraham] But that relates only to questions not connected to us. Because what you’re really asking now is what would happen with receiving testimony that is not about sanctifying the month if it is done at night. Because there it could be…

[Speaker D] We want to learn from sanctifying the month for the matter of—

[Rabbi Michael Abraham] No, no, we don’t yet want to learn from sanctifying the month to anywhere else.

[Rabbi Michael Abraham] For now we want to understand sanctifying the month, the passage in Rosh Hashanah.

[Speaker D] But in sanctifying the month it’s simple, because they saw the moon, there’s nothing to discuss.

[Rabbi Michael Abraham] Okay, so let’s leave it like that for now.

[Speaker F] I didn’t understand why it’s simple. What’s simple here?

[Rabbi Michael Abraham] She is saying that in sanctifying the month, seeing the moon is basically the end of the case; there’s nothing left to discuss after that. So because of that, receiving the testimony is itself the legal ruling; there isn’t another stage afterward that still needs discussion. Therefore it seems obvious to her that in sanctifying the month even receiving the testimony cannot be done at night. Certainly.

[Speaker F] But why can’t I rule on the basis of seeing, on the basis of what I saw at night?

[Rabbi Michael Abraham] No, no, that’s something else. I’m speaking now—I already explained that. I explained and said… You didn’t understand? So I’ll explain. I explained this before. What I said was that if I see it now, okay? Then usually the assumption is that I simply know, and therefore I can rule. But here in the Talmud apparently it says not that. Not that I can rule because I know, but rather that if I know, that counts as though I am giving testimony to myself, and on the basis of that testimony I rule. That is the meaning of the ruling “hearing should not be greater than seeing.” The meaning is that if one witness can bring the matter to my knowledge, then certainly I myself can function as a witness for myself. It’s not just knowledge as opposed to testimony. It is also a kind of testimony. It is testimony I give to myself.

[Speaker F] And then they need to say it to other judges?

[Rabbi Michael Abraham] No, no, no—not to other judges. Wait, wait—not to other judges, to my own court. I tell myself. When I see the moon, that counts as my giving testimony to myself about the moon, okay? Now I want to sit and judge on that basis, okay? So if I judge on that basis now, there’s no problem, okay? But if I judge—sorry, not if I judge on it now. If it were possible to judge at night, then no problem, I would judge now and that would be it. But you can’t judge at night. So now, the reception of the testimony cannot be validated at night, right? What do I do? I sit now in the daytime and want to judge. Now I want to judge on what basis? After all, my seeing took place at night. And if I treat the seeing as receiving testimony, then it’s erased from the protocol. I didn’t see. So how do I judge now?

[Speaker F] The fact is that I can tell it to others. What? The fact is that I can tell it to the other court. Okay.

[Rabbi Michael Abraham] Not that the knowledge wasn’t erased, but rather I rule on the basis of my knowledge and not on the basis of my testimony, okay? A witness can operate on the basis of his knowledge. A judge has to either see for himself or receive testimony about it. And according to the understanding I’m now suggesting, even when he rules on the basis of his own knowledge or his own seeing, that is called receiving testimony about it.

[Speaker C] Wait, so—

[Speaker F] why, if he can—if I saw it at night—why can’t I testify to myself at night but I can testify to two others? Because I can’t—

[Rabbi Michael Abraham] Because my testimony has to be happening now. The testimony is not—testimony is the very interaction with the moon. That is the testimony. In the morning I no longer have an interaction with the moon.

[Speaker F] I think that… but still I can testify to the other court?

[Rabbi Michael Abraham] Correct, because I have knowledge, but I did not receive testimony.

[Speaker C] I think that—

[Speaker F] Wait—

[Rabbi Michael Abraham] Wait, one at a time, one at a time.

[Speaker C] I wanted to say that by changing his status, by becoming a witness rather than a judge, that changes in an essential way what he had. He can now testify about it. But if he continues to be a judge from beginning to end, then it turns out that he received testimony there from the moon.

[Rabbi Michael Abraham] No, but there he was a witness; he wasn’t a judge there.

[Speaker C] Yes, as a judge he received that testimony of the moon that he saw. If in the morning he continues to be a judge, he can’t use that testimony.

[Rabbi Michael Abraham] Meaning, an ordinary judge can’t become a witness?

[Speaker C] No, but afterward, if he reports it to others, he becomes a witness.

[Rabbi Michael Abraham] So what’s the problem?

[Speaker C] So I’m saying then it’s not a problem, because then he didn’t receive the testimony as a judge, rather he saw it.

[Rabbi Michael Abraham] Fine, so that’s what I answered Noa before. My claim is this: he can be a witness; he cannot be a judge. He can be a witness because a witness can testify on the basis of what he knows. A judge has to rely on testimony. Only sometimes when he sees, that counts as if he received testimony from himself, from reality, from whatever. But it counts as his having received testimony. It’s not enough—contrary to what I said earlier—there is no notion here that my knowledge is enough. That’s the whole point, that’s exactly what I want to say now. Contrary to what I said earlier, there is no statement here that since I know, everything is fine. No, there is some conception here that says that because I saw, the seeing itself counts as testimony. So now testimony was presented before me, and therefore I can rule. But now when I come in the morning, on what basis will I rule? The testimony was presented at night. Right now I’m not seeing. So I cannot be the judge. I can be a witness because I have the knowledge. So I will testify to that knowledge before another judge, and that other judge will rule.

[Speaker B] I have a question, Rabbi, in terms of timing… Ruti, yes… After all, you see the moon at night, okay? The sanctification of the moon at night, the sanctification of the month. But as we said, everyone was out walking and saw the moon. Okay. Can they rule at that very moment?

[Rabbi Michael Abraham] Yes—if it were possible to hold judgment at night. At night they see it, not—

[Speaker B] They see it by day.

[Rabbi Michael Abraham] Wait. If it were possible to hold judgment at night, they could rule at night. That’s exactly the problem: you can’t hold judgment at night, therefore you can’t complete it at night.

[Speaker B] Meaning the previous scenario, where they were walking on the way and saw the sanctification of the month and understood that the month had begun and was being sanctified—that scenario can’t actually exist?

[Rabbi Michael Abraham] Correct. In sanctifying the month that cannot exist. But in murder? No, okay—

[Speaker B] I’m talking only about sanctifying the month. Meaning right now—wait—later we’ll learn from sanctifying the month to other cases. Meaning right now if—wait—even in murder, actually, if it happened at night, you can’t judge it.

[Rabbi Michael Abraham] Correct, you can judge it, you just have to say—

[Speaker B] that it happened at night.

[Rabbi Michael Abraham] If the murder happened by day, then I can judge on the basis of my own seeing. If the murder happened at night, then I have to become a witness, testify before other judges, and they will judge. Exactly like sanctifying the month.

[Speaker B] Go back to being a judge.

[Rabbi Michael Abraham] But in sanctifying the month, that—

[Speaker B] also has to be in the morning, but the seeing is done at night. Right? It always happens at night. Why can’t you sanctify in the morning?

[Speaker E] That’s what the Talmud says.

[Rabbi Michael Abraham] The Talmud says, since sanctifying—wait, wait, wait—since sanctifying the month is seen at night, therefore there is no choice but for them to testify before other judges, because there is no other way; you always see it at night.

[Speaker B] We said that in sanctifying the month—one second, Ruti, one second—what? We said that in sanctifying the month there actually is no testimony. That’s—

[Rabbi Michael Abraham] Rashi said that. Rashi.

[Speaker B] Wait—

[Rabbi Michael Abraham] We’ll get to Rashi in a moment; right now I’ve put him aside. Okay? What Ruti just wants to say here, and it’s a correct comment, is that sometimes the birth of the moon can also be seen by day.

[Speaker E] No, I want—there’s—

[Speaker C] someone who wrote that—

[Speaker E] I want to say something else. Yes.

[Rabbi Michael Abraham] I—

[Speaker E] want to say that there is some dimension in which hearing really is greater than seeing, namely in its duration. Seeing is testimony only at the time of the seeing itself, but hearing can endure.

[Rabbi Michael Abraham] Fine, so there are lots of things that differ. But hearing—as Rabbi HaNazir said—you can hear through a wall; you can’t see what’s happening behind a wall. Okay? Obviously there are advantages, but when I see something in real time versus a case where I hear it from witnesses, that is what is called that seeing is greater than hearing. These are not general statements about the sense of sight and the sense of hearing. Now look at Tosafot in Rosh Hashanah: “for example, they saw it at night.” Tosafot says: “for they cannot sanctify on the basis of seeing at night, for if so, the seeing at night would be the place of receiving testimony, and testimony is only received by day, even in monetary cases, as we say above that examining testimony is like the beginning of judgment.” Okay? Examining the testimony is the beginning of judgment, and the beginning of judgment can be done at night. But the validation, the final determination that I approve the testimony—that counts as a legal ruling, and a legal ruling is not issued at night. Now what Tosafot is really saying is exactly what I said before. Tosafot is basically saying that when it happened at night and we sit to judge by day, then there was reception of testimony at night, and therefore we cannot judge on its basis, and there must be reception of testimony by day. What does that mean? What is Tosafot assuming?

[Speaker E] That also—

[Rabbi Michael Abraham] when we judge on the basis of seeing, it is not just judging on the basis of something we simply know, but that seeing counts as testimony. Right? He—

[Speaker E] also said something else. What? He said that in sanctifying the month, receiving testimony is like examining testimony. I didn’t understand.

[Rabbi Michael Abraham] I’m saying—

[Speaker E] that according to Tosafot’s words, in sanctifying the month the concept of receiving testimony is equivalent to examining testimony. Apparently there are two separate concepts here.

[Rabbi Michael Abraham] No, no, no, absolutely not.

[Speaker E] The opposite. Ruti, the opposite, the opposite, the opposite.

[Rabbi Michael Abraham] What Tosafot says is the opposite. Examining testimony is like the beginning of judgment. Right.

[Speaker E] Why is it like the beginning of judgment?

[Rabbi Michael Abraham] Because receiving the testimony is the end of judgment. That too is a legal ruling. So examining the testimony can be done at night because it’s only the beginning of judgment. From here Tosafot says: but receiving the testimony is actually the legal ruling itself, and that cannot be done at night because it is the conclusion of judgment. Okay? So what is Tosafot really saying? He is innovating here, in effect, that everything we say…

[Speaker D] What’s the difference between examination and reception? I didn’t understand.

[Rabbi Michael Abraham] When you examine the witnesses, we check them.

[Speaker D] And at the moment when, to our satisfaction, we have done the examination, then we receive the testimony? Yes, we determine that the testimony is valid, put it into the record.

[Rabbi Michael Abraham] That’s a kind of ruling. And ruling is not done at night. The process leading up to it—that is called the beginning of judgment—that can be done at night. Okay?

[Speaker E] Now what Tosafot really—

[Rabbi Michael Abraham] In sanctifying the moon does this collapse together?

[Speaker E] The beginning of judgment with the end of the—no, no, no, there too they examine the witnesses.

[Rabbi Michael Abraham] Of course not.

[Speaker E] No, if the people now see the moon—

[Rabbi Michael Abraham] No, that’s something else. Obviously. There it’s something else, because there the examination and the testimony are together, it’s—

[Speaker F] obvious.

[Rabbi Michael Abraham] Yes, yes—

[Speaker F] but if witnesses come, then they examine them—even with a drawing: was it like this moon or like that moon that you saw? Right, certainly.

[Rabbi Michael Abraham] Now I have—

[Speaker F] a question again about testimony. If I saw some event, not the moon, say I saw it by day, a case of murder or something. And now I don’t testify about it that same day, but the next day. Is that considered seeing or considered testimony?

[Rabbi Michael Abraham] It is considered testimony. So—

[Speaker F] what? Then there is almost no case at all of seeing?

[Rabbi Michael Abraham] No, there is. You could judge on that basis because it was testimony by day. One is allowed to receive testimony today and judge the case tomorrow on the basis of today’s testimony. As long as we received the testimony by day and not at night.

[Speaker F] And the fact that I saw it—I will testify to myself on Monday, say, that I saw the incident—so the testimony was received on Monday when I saw it; that is testimony with a reception stamp?

[Rabbi Michael Abraham] What? That is reception of testimony with a stamp. And it was done by day.

[Speaker E] And it was done by day.

[Rabbi Michael Abraham] Now the next day you want to judge on that basis? No problem at all; you don’t have to testify again, because there was reception of testimony. After all, the whole legal process in court can take several days. We examine witnesses, we deliberate, we receive the testimony, and move to the next stage of the case. That doesn’t mean that now, as we approach the ruling, we need to hear the witnesses again. We approved them; that was already a ruling.

[Speaker F] So whenever the judges—whenever the witnesses see—whenever the judges see something at night, no matter what it is, whether sanctifying the month or anything else, in the end when they come to rule it will be testimony and won’t be—one second.

[Rabbi Michael Abraham] And therefore they won’t be able to, because it happened at night. They will need to—

[Speaker D] testify, basically, and not—

[Speaker F] And that makes no difference. Right, yes.

[Speaker D] When the judges are the witnesses and they are the ones who saw, then there is no examination of judges; the testimony is received—

[Rabbi Michael Abraham] They don’t need to examine themselves; they saw.

[Speaker D] They don’t need to examine themselves; they saw.

[Rabbi Michael Abraham] You examine witnesses in order to see whether they are lying, whether they made a mistake, whether they got confused. You don’t examine yourself; you know.

[Speaker D] So does that give extra credibility to the judge? Is there some special physical quality in the judge?

[Rabbi Michael Abraham] No, no, absolutely not. If a witness comes, we will examine him. And if I decide to lie, I’ll examine him, see that the witness lied, and then rule based on him anyway. So didn’t that give me the power to do whatever I want? In the end, the judge is always the one who decides. I can give the judge the maximum tools. I cannot guarantee that the judge himself behaves properly. That, there’s nothing to do about. And if you don’t assume that, nothing will help. And if you do assume it, then there is no difference. But notice what Tosafot says. What Tosafot says is a great novelty compared with what I said before. Because what I said before was that “hearing should not be greater than seeing” means that there is no need to receive testimony, because after all, I know. All that receiving testimony is needed for is functionally, to bring the information to my knowledge. But if I know it, then it isn’t needed. Tosafot says no. “Hearing should not be greater than seeing” means that the seeing itself counts as testimony, as reception of testimony. Therefore testimony must always be received. The only novelty is that if I see, that too counts as reception of testimony. Okay? That is Tosafot’s claim. And therefore he explains that if it happened at night, then by day there has to be testimony again in order for us to rule on that basis. Another point you see in Tosafot is that he goes against the Rashi we saw earlier.

[Speaker C] Because then I still relate to this statement that hearing should not be greater than seeing, because it is essentially pushed aside. No, it is not pushed aside. This reasoning isn’t so convincing.

[Rabbi Michael Abraham] The reasoning—no, in my opinion it’s very convincing. But it’s true, it’s not exactly just reasoning. That’s right; it’s actually what Yael said before. The claim is that when the Torah says, “By the mouth of two witnesses a matter shall stand”—wait—that is not merely functional. “By the mouth of two witnesses a matter shall stand” means that testimony is always required. It won’t help; you cannot rule on the basis of your own knowledge. But wait, wait, wait, wait, one second, Ruti, one second, Nehama, one second. But if I rule on the basis of my own seeing, the claim is simply that the verse “By the mouth of two witnesses a matter shall stand” is fulfilled. Because my seeing is itself reception of testimony.

[Speaker C] I understand. Meaning, all in all, the verse overrides the reasoning here—the reasoning says that hearing is more—

[Rabbi Michael Abraham] You could say it that way. But still we do say the rule that hearing should not be greater than seeing. We rule on the basis of seeing. It’s just that the conceptual understanding of ruling on the basis of seeing is not—the point is not that I know,

[Speaker C] but rather—

[Rabbi Michael Abraham] that the seeing counts as giving testimony, and therefore the requirement “By the mouth of two witnesses a matter shall stand” is fulfilled here. That is a novelty.

[Speaker C] So I understand this rule as simply comparing them in certain cases, yes.

[Rabbi Michael Abraham] In that sense, hearing should not be greater than seeing.

[Speaker C] hearing should not be greater than seeing.

[Rabbi Michael Abraham] You need to understand that in this sense there is something here such that, in a certain sense, Tosafot is with Rashi, and in a certain sense Tosafot is against Rashi. Tosafot is with Rashi in the sense I just said: when they understand “hearing should not be greater than seeing,” they mean not that my knowledge is better than testimony, but that my knowledge itself counts as testimony.

[Speaker C] Okay? Only like… so now just what—where—

[Rabbi Michael Abraham] does Tosafot disagree with Rashi? Rashi says that why do we say “hearing should not be greater than seeing”? Only in sanctifying the month do we say that. In principle we don’t say it. Why in principle don’t we say it? Why do we say it only in sanctifying the month? Because in sanctifying the month you don’t need testimony, right? If you don’t need testimony, you can rule on the basis of seeing. Do you understand what I’m saying? But in matters that require testimony, like capital cases, monetary cases, and so on, there Rashi will say we do not rely on seeing. Why not? After all, isn’t that reception of testimony?

[Speaker F] Because it’s not, it’s—

[Rabbi Michael Abraham] not reception of testimony, right?

[Speaker F] Because it’s not reception of testimony.

[Rabbi Michael Abraham] Because according to Rashi, Rashi understands the phrase “hearing should not be greater than seeing” not because seeing is also considered reception of testimony. On the contrary, he understands it in the plain sense, what Nehama called earlier the reasoning: if I know, there is no need to testify before me. But that all applies, says Rashi, only in sanctifying the month. Because in sanctifying the month seeing is enough and testimony is not needed. What happens in capital and monetary cases? Seemingly I would say the same reasoning: after all, if I know, why do I need testimony before me? Here Rashi joins Tosafot. Rashi says: no, no, because there specifically testimony is required. I do not recognize the superiority of knowledge as such. Testimony is required. But Rashi’s position is that seeing is not testimony. Seeing is not considered testimony. Seeing is simply knowing. That’s all. Therefore Rashi says that in the other places, indeed, that won’t help. Seeing will not help; formal testimony will be required. There is a difficulty against him from the Talmud in Bava Kamma—we’ll see that shortly—but that is what emerges in Rashi here. Do you understand what I’m saying? It’s very delicate, so pay close attention, because later we’re going to settle accounts with this. So the point is important. What?

[Speaker C] So it turns out that their conceptions are completely different, really. If they agree at one point, that’s not—it’s just—

[Rabbi Michael Abraham] Correct. There is a certain agreement between them, and there is a certain difference between them.

[Speaker C] But different approaches—they simply relate differently.

[Rabbi Michael Abraham] Tosafot’s claim, basically, is that there is no superiority at all of seeing over hearing. Seeing is simply hearing. Maybe hearing is better, but it too goes along the track of hearing. Even when I saw, the ruling is on the basis of testimony. It’s just that my seeing counts as testimony. That is what Tosafot says. And therefore what? Therefore Tosafot says: what difference does it make whether this is sanctifying the month or murder or monetary law or whatever? What difference does it make whether testimony is required or not required? In practical terms, in the end, testimony is required everywhere, even in sanctifying the month—the seeing itself is testimony. That is what Tosafot says. Rashi disagrees with Tosafot on two points.

[Speaker E] Seeing is not testimony.

[Rabbi Michael Abraham] Rashi says seeing is not testimony, on the one hand. On the other hand, seeing is better; seeing can work in sanctifying the month. Why? Because in sanctifying the month testimony is not needed. What is needed is seeing. On the contrary, the novelty in sanctifying the month is that testimony also works. Because fundamentally, what is needed in sanctifying the month is “see it and sanctify.” One has to see. The novelty is that if the judges do not see, then witnesses come and the testimony creates the knowledge in them—and that is the novelty in sanctifying the month. In places where testimony is needed, like monetary and capital law, there Rashi says testimony is needed. You cannot rely on seeing because seeing is not testimony. Clear?

[Speaker E] And in capital and monetary law it isn’t the same consideration?

[Rabbi Michael Abraham] What do you mean it isn’t the same consideration? Because—

[Speaker E] seeing in capital law makes it such that he cannot acquit the—

[Rabbi Michael Abraham] No, no, we’ll get to that later; we’re not there yet. For now, Rashi says: in monetary and capital law, in both, we do not say the rule “hearing should not be greater than seeing.” Seeing does not help, only hearing.

[Speaker D] So really, according to Rashi maybe one could say that he understands that the interaction between the two acting parties, between the witnesses and the judges, is essential for the ruling. Meaning, without the interaction, without giving testimony, it’s impossible. Even if the judges have knowledge, receiving testimony is still required.

[Rabbi Michael Abraham] What you described earlier. What you described earlier—that where there is a requirement for testimony, then specifically testimony is needed; the judges’ knowledge is not enough. Only Tosafot says that the judges’ own seeing also counts as testimony. And Rashi says that it does not count as testimony. But Rashi and Tosafot both agree with what you said earlier: when the Torah says “By the mouth of two witnesses a matter shall stand,” it is not like what I answered you—that the Torah says that only for a situation where the judges don’t know, but if they know then proof is unnecessary. No, the Torah requires this specifically: a decision is accepted only on the basis of testimony.

[Speaker D] So I understood okay earlier; that’s what I answered.

[Rabbi Michael Abraham] You understood like Rashi and Tosafot. Whether that is okay or not can be debated, but you understood like Rashi and Tosafot. Earlier I presented the initial view where I said it was only a functional matter. I’m showing you now that Rashi and Tosafot learned like what you said earlier. So what is nevertheless the difference between them? The difference between them is that regarding sanctifying the month—two differences. The fundamental difference between them is that in Rashi’s eyes, seeing does not provide that function of testimony. They both share the view that testimony is required. On that they both agree. The difference between them is in how I relate to seeing. According to Tosafot, seeing too is testimony. According to Rashi, seeing is not testimony. In a place where testimony is needed, seeing will not help. So why does the Talmud in sanctifying the month say “hearing should not be greater than seeing”? Because testimony is not needed. Sanctifying the month does not require testimony. So true, seeing is not testimony. So what? It’s not needed. On the contrary, in sanctifying the month the novelty is that testimony also works, because fundamentally what is needed is “such—see and sanctify”; you need to see. The novelty is that if I did not see, a witness who did see can also come and testify before me. And about that the Talmud says “hearing should not be greater than seeing.” Obviously if I see, that is best. If a witness comes and testifies before me, that also works. Less, but still works. Hearing is less than seeing. But only in sanctifying the month. Okay? That is what Rashi says. So notice: there is a shared foundation here, and that is an important point. Because what basically emerges here is that this whole passage, whether according to Rashi or according to Tosafot, is basically moving in the basic direction of Rav Ashi in our passage in Ketubot. The conception that says that testimony is a formal requirement. It’s not just a functional matter to bring information to the judges. It’s a formal requirement—testimony is mandatory. Except that if the judges saw, that too counts as testimony. Fine, okay, that’s what Tosafot says. Now in contrast to both of these, look at the Rashba: “And we established it as a case where they saw it at night. Therefore their seeing at night is the seeing of witnesses, not the seeing of a court, for night is not a time of judgment. Therefore even on the following day it is impossible to render judgment on the basis of their night-seeing. And should we say that hearing should not be greater than seeing? We do not say this except with seeing at a time fit for judgment. That is, the hearing of the court from others should not be greater than the court’s own seeing. But these could not have been judges at the time of their seeing, and on the basis of their knowledge one cannot judge the next day. For the knowledge now is only because they saw at night. And this is by way of testimony, for they would be testifying to themselves that this is what they saw last night, and now they would conclude the judgment on the basis of their own testimony.”

[Speaker E] To say that the time of seeing determines their status.

[Rabbi Michael Abraham] What do you mean? The Rashba actually disagrees head-on with Tosafot. The Rashba claims that when I judge at the time that I see—say I saw a murder by day or something like that, and I judge on that basis—why does that help? Not because it counts as giving testimony. Seeing is not giving testimony. In that sense the Rashba is like Rashi, not like Tosafot. Seeing is not giving testimony. So what then? You don’t need testimony because I know. Right? So that’s all; I can judge on the basis of my own seeing. But when I come in the morning—in the morning, after all, I’m not seeing. I only know. I’m not seeing. So here I can no longer judge on the basis of my seeing; I need witnesses to bring it to me. This sounds very similar to Tosafot, and it is one hundred and eighty degrees opposite. One hundred and eighty degrees opposite.

[Speaker E] Right? In the way. Again? Yes. Similar to Tosafot in the conclusion, not in the method.

[Rabbi Michael Abraham] The conclusion is written in the Talmud, so it’s no great achievement that he resembles Tosafot. They are both explaining the Talmud.

[Speaker E] What the Rashba says is that the moment he saw at night, that turns him into only a witness, and therefore in the morning he cannot be a judge.

[Rabbi Michael Abraham] But why does that turn him into a witness?

[Speaker E] Because it’s night.

[Rabbi Michael Abraham] The Rashba does not say that he is a witness.

[Speaker E] Yes, the Rashba does say he is a witness. No, what the Rashba says is that the seeing of the judge makes testimony unnecessary?

[Rabbi Michael Abraham] No. What he says is: when I as judge see an event by day, then I rule on the basis of my seeing and there is no need for testimony. Not because seeing counts as testimony, but because testimony is not needed. It is an alternative. He goes back—wait, wait, one second, one second—he goes back to the conception I stated against Yael at the beginning of the class, that the only reason testimony is needed is when I don’t know, so the information is brought to me. But if I have the information, it isn’t needed; testimony is functional. Okay, that is what the Rashba claims. That is when I see at the time of seeing. But if I saw at night—when I saw at night, after all, that was not a time fit for judgment, so I could not have judged at that time, right? If so, then the privilege of judging on the basis of seeing no longer exists, because it was not a time at which I could judge. When I sit down in the morning to judge, I can no longer judge on the basis of seeing, because judging on the basis of seeing is possible only when I am seeing. If I am not seeing, then I am judging on the basis of knowledge, not on the basis of seeing. But if so, then I need to hear it from a witness. A judge cannot judge on the basis of knowledge; he can judge on the basis of seeing. And therefore I need to hear testimony in order to judge. That is what the Rashba says. Very similar to Tosafot, but notice—a very big difference. According to Tosafot, when the court judges on the basis of its own seeing, the seeing counts as giving testimony. According to the Rashba, when the court judges on the basis of its own seeing, it can judge on the basis of seeing even though that is not giving testimony. Clear? So there is a very big difference between them.

[Speaker C] So apparently that applies only at the moment he sees—he can immediately judge on it. But after a few hours he can’t anymore? No, he can. He has to be fit to be a witness, as it says. No, no, according to the Rashba—according to the Rashba—I saw a murder, I can judge, but if I saw a murder with someone else—

[Rabbi Michael Abraham] According to the Rashba—wait, wait—according to the Rashba, in principle it should come out that if I saw a murder in the morning, I wouldn’t be able to judge in the afternoon the murder that I myself saw in the morning, because now I’m no longer seeing, and I can’t judge on the basis of seeing. When I judged at that very moment, yes; but the Rashba doesn’t say that. The Rashba says precisely: a time fit for judgment, not the actual time when he judges. And what is the idea? It seems to me the idea, again, brings us back to the question: am I ruling that there was a murder—not ruling that he is liable, that I’ll do in the afternoon—but in the morning I rule that there was a murder, parallel to Tosafot’s reception of testimony, the ruling on receiving the testimony. Yes. And if I did that in the morning, then that’s perfectly fine; I can judge in the afternoon. But at night I could not do even that. I can’t rule that there was a murder, because it is not a time fit for judgment.

[Speaker B] Wait, so is the issue here whether I can judge something I saw, or only testify before other judges? Meaning if I saw at night—if I am a judge—

[Rabbi Michael Abraham] and I saw—

[Speaker B] at night, then basically the next day I become a witness and stop being a judge.

[Rabbi Michael Abraham] Correct. But if I saw in the morning, even if the trial takes place in the afternoon—wait, no—even if the trial takes place in the afternoon and I am not judging at the time of seeing, the Rashba says that I can judge.

[Speaker C] Yes, as long as it is within the framework of the—

[Rabbi Michael Abraham] As long as the seeing took place at a time fit for judgment. Okay?

[Speaker C] You can—I’m basically moving the beginning of the judgment to that moment of seeing, in a certain sense.

[Rabbi Michael Abraham] Now I want to ask a question. Let’s ask a question. This is a very confusing question in these passages; it’s the root of the problem. These are super confusing passages, a difficult topic. Because there are two principles here. One principle is that hearing should not be greater than seeing, and the other principle is that a witness becomes a judge. Okay? I’m claiming that there may be a connection between the two principles, even though in the Talmud they’re presented as two separate things. In the passage in tractate Rosh Hashanah there are actually two discussions one after the other: one of them is about hearing should not be greater than seeing, and the second half of the passage is about a witness becoming a judge. In the passage in tractate Ketubot there is only the discussion of a witness becoming a judge; there is no discussion of hearing should not be greater than seeing. There’s an implicit discussion, because the novelty of the statement there tells us that there is no need to testify before judges who recognize the signatures. So there they are basically introducing to us that hearing should not be greater than seeing, but it does not appear explicitly in the passage. Now I’m claiming that if you go in the direction of Tosafot, then you cannot disconnect these two questions. Think about how Tosafot understands the discussion of ruling based on seeing. When I look, then in essence there is testimony being received here, right? The seeing is the receiving of testimony, and now I become a judge and rule. That means that a witness becomes a judge.

[Speaker E] That means that the one who hears is the one who sees?

[Rabbi Michael Abraham] And then it means that I, who served as a witness at the stage when I saw, afterward became a judge at the stage when I issue the ruling.

[Speaker B] But that’s only in Rosh Hashanah.

[Rabbi Michael Abraham] What do you mean, only in Rosh Hashanah? No, everywhere. I’m saying that according to Tosafot, when a court judges a case that it saw—murder, sanctification of the month, whatever you want—a court judges a story that it sees in front of its eyes, I’m claiming that in any such case, in every such case, we really have here a witness who turns into a judge.

[Speaker F] According to Rashba, no—not according to Rashba.

[Rabbi Michael Abraham] Exactly, according to Rashba, no. Because according to Rashba, in the first stage there is no receiving of testimony; it is permitted to judge based on seeing, so I am only judging. I am not serving here as a witness. I am a judge who judges based on what he saw. A judge is allowed to see and judge on that basis. He does not serve as a witness. But according to Tosafot—and therefore the question of a witness becoming a judge does not arise according to Rashba—but according to Tosafot, the question of hearing should not be greater than seeing is tied at the hip to the question of a witness becoming a judge.

[Speaker E] Because if you…

[Rabbi Michael Abraham] Say that seeing—if you say that seeing is better than hearing, then you are basically assuming implicitly that you have no problem with a witness becoming a judge.

[Speaker E] There is no testimony. But why are you calling seeing the receiving of testimony? Receiving testimony, Rabbi—yes—why are you calling seeing the receiving of testimony?

[Rabbi Michael Abraham] That’s what Tosafot said.

[Speaker E] No, but receiving testimony is not done by the witness; it is done by the judge.

[Rabbi Michael Abraham] I don’t understand—then who is the witness?

[Speaker F] According to this, the testimony is from the moon.

[Rabbi Michael Abraham] And who is the witness?

[Speaker E] Excuse me, but if you say that seeing testimony…

[Rabbi Michael Abraham] Is equivalent to receiving—seeing…

[Speaker E] Excuse me, similar to receiving testimony, and the role of receiving testimony belongs only to the judge, not to the witness…

[Rabbi Michael Abraham] I’m asking: who is the witness here? The situation? No, that’s exactly it. So if you say that the situation—the moon—is really the witness, then that seems very strange. So then it is not receiving testimony; it’s simply that I see. When you say that this counts as receiving testimony, the meaning is that there were witnesses here. Witnesses are people. So who are the witnesses? Simply put, the witnesses are the judges. By the way, the later authorities really do write that there is a practical implication here. What happens, for example, if one of them turns out to be a relative or otherwise disqualified? One of the judges is related to the murderer, okay? And let’s say—exactly—let’s say there is no rule of a relative or disqualified person among judges, but there is such a rule among witnesses. The Minchat Chinukh says: wait a second—

[Speaker E] In Bava Batra, the Rashbam there, yes.

[Rabbi Michael Abraham] The Minchat Chinukh says that according to Tosafot there would be a law of a relative or disqualified person even among the judges in this case, since they are also functioning as witnesses. And you can see that he understood Tosafot as viewing these judges as witnesses. The moon is not the witness; the judge is the witness. He testifies before himself.

[Speaker C] According to Rashba, no.

[Rabbi Michael Abraham] According to Rashba there is no receiving of testimony here at all. But according to Tosafot, where there is receiving of testimony, the witness here is not the situation, not the moon, but the judge. The judge himself is the witness. And if that is really so—I also thought maybe the situation itself is the witness, but from the later authorities you can see that they don’t understand it that way, and I also think that simply speaking it is not that way. And if we really understand it this way, then notice: through the back door, the question of a witness becoming a judge sneaks in here. When you say that hearing should not be greater than seeing, meaning that one can rule based on seeing, you have implicitly included that a witness can become a judge. Now why am I saying this? I’m jumping ahead a bit. You remember that we saw there is a contradiction between the passage in Ketubot and the passage in Rosh Hashanah? The passage in Ketubot infers from the Mishnah in Rosh Hashanah that a witness does not become a judge, right? What does the Talmud ask there in Ketubot? It objects to the idea that a witness can become a judge—right, because that’s what we see in the Mishnah in Rosh Hashanah. What does the Talmud in Rosh Hashanah say? It says: does this imply that a witness does become a judge? The Talmud in Rosh Hashanah infers from that very same Mishnah that a witness does become a judge.

[Speaker E] Wait, in Ketubot—no, yes, because seeing is testimony. Wait, wait, before that—first…

[Rabbi Michael Abraham] Before Tosafot, leave Tosafot aside. Before explanations—first of all, facts, facts. Look at the question in the Talmud in Ketubot. I’m marking it—do you see? “Rabbi Abba was sitting and stating this teaching that a witness becomes a judge. Rav Safra objected to Rabbi Abba: If three saw it, and they are a court, two should stand and seat some of their colleagues next to the remaining one, and they should testify before them and they should say, ‘Sanctified, the month is sanctified’; a single judge is not believed by himself. And if it enters your mind that a witness becomes a judge, why all this? Let them sit in their place and sanctify it.” What do you see there in the Mishnah? That a witness does not become a judge, that a witness does not become a judge. Because if he could become a judge, then this whole procedure would not be necessary; they could just sit there and sanctify it, right? Let’s continue to the passage in Rosh Hashanah. I…

[Speaker D] Now I’m confused too. I didn’t understand—which Mishnah says that a witness does not become a judge? Rosh Hashanah?

[Rabbi Michael Abraham] I’ll say it again. The Talmud in Ketubot—the Talmud, wait—the Talmud is in Ketubot, but it infers from the Mishnah in Rosh Hashanah. Look at the highlighted section.

[Speaker D] What? In the Mishnah in Rosh Hashanah a witness does become a judge.

[Rabbi Michael Abraham] No. The Talmud in Ketubot infers from the Mishnah in Rosh Hashanah that a witness does not become a judge. Look, look at the highlighted section: “And if it enters your mind that a witness becomes a judge, why all this? Let them sit in their place and sanctify it.” Clearly, what comes out of there is that a witness does not become a judge. Because if he did become a judge, why do they have to testify before others? Let them themselves sit and sanctify the month based on what they themselves saw, right? But the law…

[Speaker E] That’s what the Talmud in Ketubot says, right? Yael, are you with me?

[Rabbi Michael Abraham] No. What does the Talmud in Ketubot object from? I’m here, but I didn’t understand.

[Speaker D] That the Talmud in Ketubot brings the Talmud in Rosh Hashanah—the Mishnah in Rosh Hashanah—

[Rabbi Michael Abraham] The Mishnah in Rosh Hashanah, in order to prove that a witness does not become a judge, to challenge our passage. Why, how do we see that in the Mishnah in Rosh Hashanah? Because we say: come take two of you to testify before three others, right? Why do those two need to testify? All three of them saw the moon. Let them stand and sanctify it on the spot.

[Speaker D] Wait, “and three saw it”—three judges—and they are a court. “Two should stand”—which two? Two others? No, no, two of the three. And in the Mishnah there are two cases that we sort of explained as if they were the same thing.

[Rabbi Michael Abraham] It doesn’t matter; both are the same for our purposes.

[Speaker D] Why? It’s not exactly the same, because in this case—the question in the case of three who are a court, “two should stand and seat some of their colleagues”—this is supposedly the second case, where two stood and seated some of their colleagues. It’s two out of the three judges who come to testify before the third judge.

[Rabbi Michael Abraham] I’m asking why they need to. Why can’t the three who saw the moon sit and sanctify it? So what is their proof?

[Speaker E] Wait…

[Rabbi Michael Abraham] Wait, wait, one second, let me finish with Yael. Yael, do you understand? Why can’t these three themselves sanctify the moon? They saw it. Why do you need this whole procedure of giving testimony before the third and all this mess?

[Speaker E] He joins them.

[Rabbi Michael Abraham] Because a witness does not become a judge.

[Speaker E] Because…

[Rabbi Michael Abraham] Because a witness cannot become a judge.

[Speaker E] She got disconnected for a second—no.

[Speaker F] Wait, but that’s only the initial assumption of the Talmud, it’s only the initial assumption in the Talmud. Afterward the issue is that it’s possible—but because they saw—no…

[Rabbi Michael Abraham] No, absolutely not.

[Speaker F] Another…

[Rabbi Michael Abraham] Again—wait, wait—

[Speaker E] Total mix-up, terrible mix-up.

[Rabbi Michael Abraham] The Talmud in Ketubot infers that a witness does not become a judge from the Mishnah in Rosh Hashanah. I’m talking about the Talmud in Ketubot, not the Talmud in Rosh Hashanah. The Talmud in Ketubot says that a witness does not become a judge, and then it says: right, but that is in a Torah-level matter; validation of documents is rabbinic. So according to its conclusion, in sanctification of the month a witness does not become a judge. That is the conclusion of the passage in Ketubot.

[Speaker E] Right.

[Rabbi Michael Abraham] Now let’s go down to the Talmud in Rosh Hashanah. What does the Talmud in Rosh Hashanah say? “If three saw it and they are a court…”

[Speaker E] “They should stand two…”

[Rabbi Michael Abraham] “Does this imply that a witness becomes a judge?” Right?

[Speaker E] So they infer from the Mishnah the opposite—that a witness does become a judge.

[Rabbi Michael Abraham] No, but here it’s talking about the third witness. What difference does it make what it’s talking about? Here they infer that a witness does not become a judge, and there they infer that a witness does become a judge—from the same Mishnah.

[Speaker E] But the two who testified obviously cannot turn into judges.

[Rabbi Michael Abraham] So I’m saying, Ruti, you’re already—but the third witness who saw together with them, that’s the simple question about him.

[Speaker E] But that’s the question—I’m asking that question.

[Rabbi Michael Abraham] In that very same Mishnah, does it say that a witness becomes a judge or that he does not become a judge?

[Speaker E] In the Mishnah, he does not become one, no.

[Rabbi Michael Abraham] He does not become one, but in the Talmud in Rosh Hashanah they infer that he does.

[Speaker E] It depends how you define “witness.”

[Rabbi Michael Abraham] Wait, Ruti, no answers yet. First understand the facts. The Talmud in Ketubot says that from the Mishnah there it comes out that a witness does not become a judge. In the Talmud in Rosh Hashanah it says that from the Mishnah there it comes out that a witness does become a judge. Right? Now Ruti is correct that the inferences are from different places. That doesn’t solve the problem, but the inferences are from different places. The inference of the Talmud in Ketubot is from the two judges who testify, and the Talmud asks: why do they need to testify? Let them just sit and judge directly. Why bring in others? Let them sit and judge directly. So we see that a witness does not become a judge. The inference of the Talmud in Rosh Hashanah—what?

[Speaker D] The Mishnah in Rosh Hashanah—can I ask? What? The Mishnah gives three cases. There’s a first case.

[Rabbi Michael Abraham] I’m talking only about the third one now.

[Speaker D] Fine, but no, because people are mixing two things here.

[Rabbi Michael Abraham] No, no, nobody is mixing anything. We are talking only about the third one. Both the Talmud in Ketubot and the Talmud in Rosh Hashanah deal only with the third case: “If three saw it and they are a court, they should seat two of their colleagues and testify before them,” and that’s it. We are talking about the third case, okay?

[Speaker D] “And they say, ‘Sanctified, sanctified,’” and from the plain sense of the Mishnah—why do they need to testify?

[Rabbi Michael Abraham] So the Talmud in Ketubot infers from there that a witness does not become a judge. From where does it infer that? From the two witnesses who testify, from the Mishnah. The two witnesses who testify—why can’t they themselves sit and judge? Right? Why do they need to add two others? Okay, so we see that a witness does not become a judge.

[Speaker F] Wait, wait, but the Talmud in Rosh Hashanah doesn’t answer that? It puts it in the case of nighttime.

[Rabbi Michael Abraham] It answers, it answers. From where does the Talmud in Rosh Hashanah infer that a witness does become a judge? From the third judge before whom they testify. Because he himself basically was a witness who saw the moon, right? And now suddenly he becomes a judge. Okay? So we see that a witness does become a judge. The same case—what? The same case. Both are dealing with the same case, the third case in the Mishnah.

[Speaker D] Then I don’t understand Ketubot. Again.

[Rabbi Michael Abraham] What in Ketubot?

[Speaker E] What was in Ketubot? In Ketubot they are talking about the two, where it says that a witness does not become a judge.

[Rabbi Michael Abraham] Right? Exactly.

[Speaker E] They were witnesses, they saw the moon, and now they cannot sanctify. Why?

[Speaker D] Because a witness does not become a judge. But if in Rosh Hashanah they want to say that—there’s a point here I don’t understand.

[Speaker E] What do you mean they can’t sanctify? They do sanctify.

[Speaker D] No, they testify. They testify before others who sanctify.

[Rabbi Michael Abraham] They testify before others who sanctify.

[Speaker D] No, but what do you mean “before others”? Can we go back for a second? Can you put on the screen the Ketubot passage, what Ketubot brings from Rosh Hashanah? One second. Here. “If three saw it and they are a court, two should stand out of the three and seat some of their colleagues next to the remaining one and testify before them.” There are five players here. Who is testifying before whom here? Because then it’s not the same quote from the Mishnah in Rosh Hashanah. The same quote, the same quote.

[Rabbi Michael Abraham] They are all dealing with the third case.

[Speaker D] “If three saw it and they are a court,” right? “Two should stand.” Which two? Two of them. Two from the three.

[Rabbi Michael Abraham] Two from the three.

[Speaker D] “And seat some of their colleagues”—two more, two others. Two others? Yes. “Next to the remaining one, and they testify before them.” So now we have two witnesses, who used to be judges, before three judges, one of whom was also a witness.

[Speaker B] The other two did not see.

[Speaker D] The other two did not see. “And they say, ‘Sanctified, sanctified.’” So yes. Fine, it really does look like the witness…

[Rabbi Michael Abraham] Does not become a judge, right?

[Speaker D] They needed to bring two—wait—and that is the proof. Right?

[Rabbi Michael Abraham] Now I’m saying that in the Talmud in Rosh Hashanah they say the opposite. By the way, from the Talmud in Rosh Hashanah it seems…

[Speaker D] Very logical to me, like everything seems…

[Rabbi Michael Abraham] Logical, it’s just that there is a contradiction between the two. The Talmud in Rosh Hashanah says: let us say that a witness becomes a judge. How do they infer that a witness does become a judge? So Rashi explains—look at Rashi there in Rosh Hashanah—“One who is fit to be a witness in the matter becomes a judge, and all of these are fit to be witnesses, since they all saw.” Rashi is speaking about the third judge who sits opposite the two witnesses. He himself saw the moon, and therefore he is a witness, right?

[Speaker E] He says he is fit to be a witness—

[Rabbi Michael Abraham] He does not say that he is a witness. Wait, wait, just another second. Those are already answers. But first of all, Rashi says: the witness saw; this judge saw the moon. He sits and hears the testimony of his colleagues, but he himself already saw the moon—he is the witness, right? And he turns into a judge; he sits among the judges. Even though he is a witness. So we see that a witness does become a judge.

[Speaker D] No, because here he is not serving as a witness according to that. Because the testimony comes from two others.

[Rabbi Michael Abraham] Right, so that is Rashba’s answer, and in a moment we’ll see whether it’s also Rashi’s.

[Speaker E] You’re being stricter with Rashba than with Tosafot.

[Rabbi Michael Abraham] We’ll see in a second. So that is Rashba’s answer, and indeed most of the medieval authorities (Rishonim) learned that way, and there are some who learned Rashi that way too. I’m not sure they’re right. But Rashba indeed learned that the concept of a witness becoming a judge in tractate Rosh Hashanah is a different concept than the concept of a witness becoming a judge in Ketubot. In Rosh Hashanah, a witness becoming a judge means a witness who saw, not a witness who testified in court. Rather, someone who saw the incident—can someone who saw the incident become a judge? That is a completely different question from the question in Ketubot, and therefore there is no contradiction. The Talmud in Ketubot learns from the Mishnah in Rosh Hashanah that a witness does not become a judge. The Talmud in Rosh Hashanah asks: okay, that is regarding a witness who testified—what about a witness who merely saw? Can he become a judge? So the Talmud says yes, we see from the Mishnah that he can. Then they raise difficulties and give answers—it doesn’t matter now—in capital cases yes, here no, not important. Okay? So these are really two different stories. There is no contradiction between the passages, because the passage in Ketubot deals with a witness becoming a judge in the usual sense: a witness who testified, can he afterward sit on the judge’s seat? And the passage in Rosh Hashanah deals with the question: what happens with someone who saw the incident—can he be a judge? He did not serve as a witness; there are two others here who testify, but he saw the incident. If he saw the incident, the question is whether he can be a judge. That is a different question; it is not the question of a witness becoming a judge in our passage or in the other passages. According to Rashba, it is a completely different question.

[Speaker D] Okay. Maybe, maybe because he comes to the deliberation with some kind of…

[Rabbi Michael Abraham] He doesn’t come to the deliberation neutrally—

[Speaker D] He comes with some kind of something…

[Rabbi Michael Abraham] So now you’re already explaining why the Talmud in Rosh Hashanah wants to say that he becomes a judge or does not become a judge. I’m not getting into that right now. The Talmud later also says what you yourself are saying. The Talmud says that the difference is between murder and sanctification of the month, because in murder you get so upset about what you saw that you won’t find any merit for him, right? But in sanctification of the month, no. So what do we see? That the position saying a witness who saw cannot become a judge is because he is biased by what he saw. That is the problem. And in sanctification of the month you are not biased because there is nothing there that is terribly infuriating. Okay? But those are already the answers. I’m not talking about the answers. I’m talking about the question—what does the Talmud infer at the beginning, what is it asking? So it says: from here, from the Mishnah in Rosh Hashanah, we see that a witness becomes a judge. But that is not in the sense of the Mishnah in Ketubot. Rather, it means whether one who saw the situation becomes a judge. A witness who testified obviously does not become a judge. That’s what the Talmud in Ketubot says, and it learns it from the Mishnah in Rosh Hashanah. The Talmud in Rosh Hashanah is discussing a different question. A witness who testified cannot be a judge; what about a witness who merely saw but did not testify? They don’t need him; there are two others who testify.

[Speaker D] So just a second—can one say that there is a title of “witness,” meaning a person becomes a witness not when he sees the reality, but only when he brings that reality, that knowledge, to the court? Then he gets the title “witness.”

[Rabbi Michael Abraham] For this matter, that he cannot become a judge—yes. Only from then on can he not become a judge.

[Speaker D] Fine. Is that what the Talmud… But this whole distinction between seeing and testimony is not logical. I mean, obviously a witness has to have seen the reality; otherwise it’s hearsay. Everyone saw the reality. The only question is whether they saw and testified, or only saw. If they did not testify, the question is whether that too is called a witness with regard to…

[Rabbi Michael Abraham] To his not being able to become a judge.

[Speaker D] There’s a formal title, and at the time of testimony he becomes a witness; but before he testified in court he did not become—he isn’t called a witness, he doesn’t have the status of a witness. Right, right. Okay, so that’s according to Rashba. Now it may be that until now we thought that someone who saw and knows the reality is a witness, and he comes to testify because he is a witness. Look, “I am a witness,” I can be a witness to a phenomenon, meaning I am a witness to what I see.

[Rabbi Michael Abraham] No, no, but I’m saying—you’re jumping ahead, and I don’t want to get there yet. That brings us into the question of why a witness does not become a judge. And from that question we will have to derive the answer whether also one who merely saw cannot become a judge, or only one who testified. Okay? That is another discussion. I’ll still get to it later. I see that we’re not progressing to it at all. I’m talking about another question. According to Rashba, the passages are dealing with different questions, even though they are phrased in the same way.

[Speaker E] The passage…

[Rabbi Michael Abraham] In Ketubot, and they infer both inferences from the same Mishnah. The passage in Ketubot infers from the Mishnah that a witness—a witness who testified—does not become a judge. The Talmud in Rosh Hashanah infers from that same Mishnah that a witness does become a judge, right? Now notice: according to Tosafot, as I said before, can you make that distinction? No.

[Speaker E] Because the moment he saw, the seeing…

[Rabbi Michael Abraham] Itself is receiving testimony, right? So basically a witness who saw—the question whether he can become a judge is the classic question of whether a witness can become a judge. It is the same question as in Ketubot. And therefore according to Tosafot, there really may be a contradiction between the passages. The passage in Ketubot learns from the Mishnah that a witness does not become a judge, and the passage in Rosh Hashanah learns from the Mishnah that a witness does become a judge. And that is the same inference. And now I’ll show you—look: according to Tosafot, who says “testimonies—hearing should not be greater than seeing,” what does Tosafot say? That basically judges can testify based on what they saw, right? That’s what Tosafot says. And Tosafot says that this is called testimony. That means that according to Tosafot, it says here in the Mishnah and in the Talmud that a witness becomes a judge. How does that fit with the Talmud in Ketubot? The Talmud in Ketubot learns from that very same Mishnah that a witness does not become a judge. How can Tosafot say that in this Mishnah it comes out that a witness does become a judge?

[Speaker F] So here it’s Torah-level and there it’s… that’s what they answer at the end, no?

[Rabbi Michael Abraham] No, this is Torah-level. Sanctification of the month is Torah-level, so it’s possible—and ours is… no, the opposite. On a Torah level it’s impossible. On a Torah level it’s impossible. On a Torah level a witness does not become a judge according to the passage in Ketubot. But Tosafot…

[Speaker E] So maybe that strengthens the idea that the situation itself is the testimony?

[Rabbi Michael Abraham] Just a second, maybe. But we saw in the Minchat Chinukh and elsewhere that they did not learn that way, and so apparently not everyone at least learned Tosafot that way. Even if maybe one can learn him that way, then indeed a contradiction comes out between the passages. The passage in Ketubot learns from that same Mishnah that a witness does not become a judge. According to Tosafot, even if I had not seen the continuation of the Talmud in Rosh Hashanah, according to Tosafot it would already come out from here that a witness does become a judge. And indeed, when you look at the continuation of the passage in Rosh Hashanah, the passage learns from that same Mishnah, “Does this imply that a witness becomes a judge?” In the formulation, before entering into Rashba’s answers—no, no, this is one who saw and that is one who testified—the formulation in the Talmud is the same formulation. On the face of it, it looks like the passages disagree. There is a disagreement between passages about how to learn the Mishnah in Rosh Hashanah. And since I see that I have to finish, I’ll just tell you where I’m headed. This may be a possible answer for Rashi’s approach. Because we asked about Rashi: you tell me that hearing should not be greater than seeing applies only in sanctification of the month. So what will you do with the passage in the chapter Ha-Hovel? In the passage in Ha-Hovel we see that one can judge based on our own seeing. But there testimony is required; it’s not like sanctification of the month. And Rashi says that in a place where testimony is required, then one cannot judge based on our own seeing; one needs receiving of testimony. It may be that the passage in the chapter Ha-Hovel also disagrees with the passage in Rosh Hashanah. It goes in the line of the passage in Ketubot, namely what?

[Speaker C] If we…

[Rabbi Michael Abraham] If we understand that judging based on seeing means basically giving testimony and ruling on that basis, then indeed a witness does not become a judge—and that is the passage in Rosh Hashanah. But the passage in Ketubot certainly did not understand it that way, right? Because the passage in Ketubot infers from the Mishnah in Rosh Hashanah that a witness does not become a judge. So how will the passage in Ketubot understand “hearing should not be greater than seeing,” that one can judge based on seeing? After all, a witness does not become a judge, so how can he judge based on seeing? It is clear that the passage in Ketubot understands that judging based on seeing is not called receiving testimony, right? Like Rashi, not like Rashba, not like Tosafot. And therefore there is here a disagreement between passages. So if that is the case, then don’t challenge the passage in Rosh Hashanah from the passage in Ha-Hovel either. The passage in Ha-Hovel apparently belongs to the party of the other passages.

[Speaker C] I’m explaining the passage in Rosh Hashanah to you. So if I understand correctly, then even according to Rashi there is basically a problem, because he says that Rosh Hashanah, sanctification of the month, is an exception. But if it’s an exception, how can Ketubot learn from it?

[Rabbi Michael Abraham] Because the passage in Ketubot disagrees with the passage here. Rashi is explaining the passage in Rosh Hashanah. Yes,

[Speaker C] So according to Rashi too there’s a problem if it learns from it.

[Rabbi Michael Abraham] Right. Rashi will say that it’s a disagreement between passages.

[Speaker C] And if…

[Rabbi Michael Abraham] If there is a disagreement between passages, then why are you challenging me from the chapter Ha-Hovel? Ha-Hovel apparently belongs to the party of the other passages. I’m explaining the passage in Rosh Hashanah to you. Okay?

[Speaker C] But according to Rashba it works out, right?

[Rabbi Michael Abraham] According to Rashba there really is no contradiction between the passages, and he resolves it—exactly, that’s what I said—and if so, Rashba is consistent with his own approach. Because Rashba, who learns not like Tosafot, holds that in “hearing should not be greater than seeing” there is not necessarily an assumption that a witness becomes a judge. Because there is no receiving of testimony here; according to Rashba we simply judge based on seeing. So if that’s the case, there is no necessity to learn from the passage in Rosh Hashanah, from the Mishnah in Rosh Hashanah, that a witness becomes a judge. We judge based on seeing, but that does not mean that a witness becomes a judge. There is simply no testimony here, that’s all. So what is the Talmud in Rosh Hashanah learning from the Mishnah, that a witness becomes a judge? That is apparently in a different sense of “a witness becomes a judge.” And then there is no contradiction to Ketubot and everything is fine. Rashba is consistent with his own approach, and Rashi will apparently go in the direction of Tosafot. Okay, I’ll send you a summary, because this calculation is complicated, and I haven’t even gotten into a few more nuances here in the middle. I skipped over them a bit. So I’ll send you an orderly summary that you can go over, so that we can continue onward.

[Speaker E] Okay, thank you very much, goodbye, Sabbath peace.