Ketubot Chapter 2, Lesson 33

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[Rabbi Michael Abraham] Right, we talked about this in the previous class, and that’s why I said the formulation that testimony is required only for functional needs is probably not accurate. Because if that were so, then knowledge would also be enough. What’s the problem with ruling based on knowledge? Once I know, I don’t need testimony. The Rashba apparently sees the very act of seeing as a substitute for testimony.

[Speaker B] But judging on the basis of seeing or knowing has something in it of biasing the judgment. Meaning, I already know what happened.

[Rabbi Michael Abraham] And about the…

[Speaker B] I already know what happened; you’ve got something going on in your thinking, drawing conclusions, something biased. It’s not…

[Rabbi Michael Abraham] What do you mean biased? Biased toward the truth. I simply saw the truth. Biased toward the truth. And if I heard from witnesses, then I’m not biased? There too—I heard the truth, and now I’m biased to judge the way they told me. Fine, but now you’ve just shifted it over to witnesses.

[Speaker B] Even so, I think there’s something here that isn’t entirely proper or objective.

[Rabbi Michael Abraham] I don’t see a problem with that.

[Speaker B] Fine, but still we can go back—

[Speaker C] Once again to the practical difference: to clarify exactly according to whom a judge who saw the new moon at night, or heard at night the… I don’t know, heard the testimony at night, won’t be able to judge based on other witnesses in the morning.

[Rabbi Michael Abraham] So I’m saying: if the judge receives other witnesses about what happened at night, he sits during the day and receives other witnesses—not himself.

[Speaker C] Tell me, according to everyone or not? According to someone that doesn’t work?

[Rabbi Michael Abraham] Wait, let’s see. According to the Rashba… according to the Rashba and according to Nachmanides… according to the Rashba it does work. Why? Because he doesn’t have the status of a witness. How would he get the status of a witness? No, according to the Rashbam it’s actually the opposite. Sorry, the opposite. According to the Rashbam it doesn’t work because he has the status of a witness. Since he saw it at night, and night is not a valid time for judgment, that turns him into a witness. Once he is a witness, he can’t judge even if he relies on other witnesses; that doesn’t help. A witness does not become a judge.

[Speaker C] According to Nachmanides it does…

[Rabbi Michael Abraham] It could be, because he does not become a witness. At night, testimony is not received. During the day, he himself isn’t the witness; there are other witnesses. So what’s the problem—why shouldn’t he sit in judgment?

[Speaker C] And regarding Tosafot I wanted to ask: Tosafot is like Rashbam.

[Rabbi Michael Abraham] Not so simple, because the question is what Tosafot thinks about receiving testimony at night. He doesn’t think it’s possible. The question is what Tosafot thinks about receiving testimony at night. Tosafot could think like Rashbam in the sense that this counts as receiving testimony, but still say that testimony cannot be received at night.

[Speaker C] But Tosafot said that receiving testimony is the beginning of judgment, so he can’t say like Nachmanides.

[Rabbi Michael Abraham] Why not?

[Speaker C] He says that receiving testimony is the beginning of judgment, that seeing is receiving testimony…

[Speaker E] No, that’s a different Tosafot.

[Rabbi Michael Abraham] You’re referring to a different statement of Tosafot there that shows he learns like the Ramban…

[Speaker C] Like—

[Rabbi Michael Abraham] Rashbam, sorry—that since it is the beginning of judgment, you can do it at night. And if so, in terms of the statement itself, if you combine that earlier statement, then yes, I agree. Now I’m skipping over Rashbam’s whole proof, which comes from the passage in Makkot and so on, that intent to testify is enough to make one a witness. And what is his conclusion? “As we learned in Mishnah Rosh Hashanah 25: If three saw it, and they are a court, two should stand and two of their colleagues should sit with the remaining one.” There, that is only where they did not originally come in order to see it for the purpose of testifying, because if so, then the one individual can no longer be a judge, since a witness does not become a judge. Rather, they happened to see it while walking in the marketplace, or they were sitting elsewhere and saw it from there. All right? Then he brings support for this afterward from the words of Rashi, who also wrote this in a responsum, Rashi in a responsum. But what is he basically saying? That the Mishnah in Rosh Hashanah, which says that if three saw it and they are a court—what’s the advice? Let two of them stand as witnesses, the third will sit as a judge, and he’ll add two others to himself, and the two who saw it will testify before the three. The question is: how can that one person who saw it together with them sit in that judgment? After all, he became a witness. And this—

[Speaker E] Is incidental seeing, not formal seeing.

[Rabbi Michael Abraham] Yes. And of course this is the Rashbam’s view, that he becomes a witness even through the seeing itself, right? That’s what we saw. Rashbam says: correct, but that’s when he came to testify. If he saw it by chance, then he doesn’t become a witness. All right? That’s the claim. Okay.

[Speaker D] So now, what is really the essential difference between these two kinds of seeing—if it was by chance or intentional? In terms of the essence of it, because I understand there’s a difference.

[Rabbi Michael Abraham] If he did not intend to testify, then he has no status of a witness. That’s the whole idea of the Rashbam here. Merely intending to testify is enough for you to receive the status of a witness, and then you can no longer become a judge. But if you just happened to pass by and happened to see, then you just happened to see; you didn’t intend to testify, so you have no status of a witness. Think of—let me give you a more familiar example.

[Speaker D] Isn’t that testimony? Most testimony is like that—I was in the street and I saw—

[Rabbi Michael Abraham] —someone murdering someone else.

[Speaker D] Yael, when you saw.

[Rabbi Michael Abraham] Yael, Yael, Yael. Yael, when you saw. But if afterward you came to testify in religious court, then you became a witness. Right—most testimony, as long as you haven’t come to religious court, is incidental testimony, and there indeed you could still become a judge. In testimony of that kind, where you didn’t testify in religious court—if you just passed by incidentally, you could become a judge. If you didn’t pass by incidentally, then even if you didn’t testify in religious court, you still couldn’t become a judge. Fine. So maybe I’ll give you a more familiar example: you know how at a wedding they tell the groom to say to two witnesses, “You are my witnesses.” What does that mean? After all, in the audience there are relatives sitting there. Yes, in the audience there are various relatives, and those relatives are disqualified as witnesses. Now, if he doesn’t say to those two witnesses, “You are my witnesses”—this depends on a dispute among the medieval authorities (Rishonim), but never mind—then the other witnesses present in the audience, some of whom are disqualified as witnesses—his brothers, his father, and things like that—can invalidate the valid witnesses, because if there is a group of witnesses and some of them are disqualified, they invalidate the whole group. Therefore he says, “You are my witnesses,” and designates specifically those witnesses, and in effect turns only them into witnesses and not the others. And it’s considered as though the others are witnesses who did not come in order to testify. And those two witnesses whom I designated are witnesses who came in order to testify. Once that’s the case, the two I designated are considered witnesses, and all the others I didn’t designate are considered passersby. They came there for the wedding—obviously they aren’t literally passersby—but from the standpoint of witnesses, they did not intend to testify. In that sense their testimony is incidental, and therefore they are not considered witnesses. That’s basically what the Rashbam is saying here. Okay. Now the Rashbam in the next comment says as follows: “If they wish, they can render judgment, for they are three; they are three and can judge. And they judge and say like this: the law is that so-and-so shall take this portion, because they are dividing the inheritance, and so-and-so this portion, whose values are properly equal, and they write for them a legal ruling so that they can no longer appeal against one another at all.” Meaning, they are a court in every respect; what they rule is the law. “And even though there is no person here testifying before them at all”—how can they decide? They saw it during the day and immediately render judgment. “If they wish, they render judgment; if they wish, they write,” right? The Rashbam says: what does it mean, “if they wish, they render judgment”? Who is the witness here? No one testified before them.

[Speaker C] It’s like seeing in Rosh Hashanah.

[Rabbi Michael Abraham] Right? So on the face of it, what’s written here is “Hearing should not be greater than seeing”: they judge based on their own seeing, and no formal verbal testimony is needed, as we saw in Rosh Hashanah, right? If not for the fact that it was at night. And if it had been during the day, then one could judge based on that even though a witness does not become a judge. Why? Because I am not considered a witness; I judge based on my seeing, and hearing should not be greater than seeing. Okay? But the Rashbam says—pay attention to his reasoning, because his reasoning here is problematic. He says: “And even though there is no person here testifying before them at all, for we ask in Rosh Hashanah, ‘Should hearing be greater than seeing?’” Up to here, that’s what I explained. Okay? “And since they see the sick man dividing his property before them, the admission of a litigant is like a hundred witnesses. So why would witnesses need to testify before them?” Now tell me: who are the witnesses here?

[Speaker E] The Divine Presence? No. The judges? The judges! The judges are seeing—it’s their seeing.

[Speaker D] The judges are the witnesses, and the deathly ill person is the litigant who is—

[Speaker C] —coming to testify, the admission of a litigant—

[Speaker D] —yes.

[Rabbi Michael Abraham] Yael, you just said two contradictory things—did you notice that?

[Speaker D] I mean, like the Rashash who says testimony about the month is an exception—so here he has to say, no—

[Rabbi Michael Abraham] No, let’s leave the Rashash aside for a moment. First of all, what does the Rashbam say? The Rashbam says two contradictory things. On the one hand, he says, “Hearing should not be greater than seeing.” What does that mean? Testimony isn’t needed. If the judges know, they can judge; if they see, they can judge based on their seeing; testimony isn’t needed. Then afterward he says: wait a second, why would testimony be needed? We have here the admission of a litigant, and the admission of a litigant is considered like a hundred witnesses. In the first reasoning, the testimony is the judges’ seeing. In the second reasoning, the testimony is the litigant’s admission. So make up your mind: do you need testimony here or not? According to the second reason, there’s no need to reach “hearing should not be greater than seeing”; you already have the admission of a litigant.

[Speaker B] No—and in the first reason, the judges seemingly also become witnesses.

[Rabbi Michael Abraham] Correct.

[Speaker B] And in the second reason, the judges are seeing, but they’re receiving testimony.

[Rabbi Michael Abraham] Correct. So I’m saying: these are two different reasons; he presents them as one reason. No—the Rashbam presents them as one reason, but these are two different and contradictory reasons. Think of a religious court before which a litigant comes and admits—an admission of a litigant before the court. Of course the Talmud is full of this; they rule as though witnesses had come before them, right? The admission of a litigant is like a hundred witnesses. If someone admitted, it’s as though two witnesses came before us. Do I need there to say “hearing should not be greater than seeing”? No. What—

[Speaker E] Suddenly? Why on earth?

[Rabbi Michael Abraham] It’s hearing in every respect. Witnesses came before me; the litigant’s admission is the witnesses. There is no need to invoke the principle that hearing should not be greater than seeing. Now if you understand that what happened here was an admission of a litigant, then why are you bringing in this rule of “hearing should not be greater than seeing”? You simply ruled on the basis of the litigant’s admission and everything is fine—what’s the problem? Now there really are different readings of this Rashbam. Some take it in the direction of the admission of a litigant; some raise difficulties; some take it in the direction of “hearing should not be greater than seeing.” It could—

[Speaker D] Could it be that the seeing that is greater than hearing is itself the intent of testimony?

[Rabbi Michael Abraham] I see.

[Speaker D] The seeing that really is greater than hearing is—

[Rabbi Michael Abraham] Is—

[Speaker D] —the receipt of the testimony, meaning the receipt of the seeing.

[Rabbi Michael Abraham] But if that is receiving testimony, then a witness does not become a judge. We saw that according to Tosafot a problem is created of a witness not becoming a judge. If there is receiving testimony here, how can I judge based on it?

[Speaker D] But according to the Rashbam, if it’s by day then yes—not according to the Rashbam, according to the Gemara.

[Rabbi Michael Abraham] Right. That’s exactly what I’m asking. Therefore you can’t say they received testimony, because otherwise how does the Gemara say it’s valid here? After all, a witness does not become a judge. I want to make the following claim: there is no contradiction in the Rashbam. I claim that they come and look, they hear this deathly ill person, and they hear how he plans to divide his property, and now they sit down and render judgment. I’m not asking them what testimony they received. I’m asking them: how do you know that this is what he wants at all? What do you mean you are rendering judgment? Based on what? With the moon—when you saw it, you saw the moon’s emergence; the facts were before you. So you say, hearing should not be greater than seeing, and everything is fine; you don’t need to say that the moon testified before them. Rather, they know the reality because they saw the moon. But here, the fact that they entered to visit the sick man—does that mean they know how he is dividing his property? How do they know? So what if they saw him? They know because he says it. So what if he says it? Because the admission of a litigant is like a hundred witnesses. That’s why they know. And now when they judge, it is not by virtue of his admission functioning as two witnesses; rather, without that, the facts simply would not have been present before them. Because if we were not to say that the admission of a litigant is like a hundred witnesses, then they simply did not see the facts. How can you divide his inheritance without knowing what he wants?

[Speaker D] But if it’s like a hundred witnesses, then it’s certainly like two witnesses.

[Rabbi Michael Abraham] No. I’m claiming, for example: what would happen if he made an admission of a litigant of the kind that is not effective under the laws of admission of a litigant? For example, an admission of a litigant outside religious court is not effective. If he didn’t know at all that they were planning to judge, and he admitted before them, that is not—

[Speaker D] —an admission of a litigant; it’s a statement outside religious court.

[Rabbi Michael Abraham] But now he does know that they—now he knows, but that’s already after he admitted. He admitted before them, and now they decide whether to be witnesses or to be judges, and now they decide to be judges. Okay? What does that mean? When I admitted, I didn’t know you were judges, so after all—an admission is serious when it is made before a religious court. If I admit in the street, that means nothing. But in religious court, if I admit that I owe money, I presumably mean it seriously. So how can they judge here on the basis of the admission of a litigant? So my claim is that this is really not the receipt of testimony. This is not an admission of a litigant functioning as witnesses. Rather, this admission of a litigant basically tells these three judges that this is what he wants. And since now they know that this is what he wants, it is like the moon’s emergence. When they saw it—hearing should not be greater than seeing. Without there having been an admission of a litigant here, the fact that they saw the deathly ill person—so what if they saw him? They saw him, but how do they know how he wants to divide the property? Only because he said it. And the fact that he said it is absolute credibility, absolute testimony to his will, right? So since that is so, they really did see the reality, and hearing should not be greater than seeing, and therefore they can judge based on their seeing.

[Speaker D] That would work if he hadn’t added the sentence that the admission of a litigant is like…

[Rabbi Michael Abraham] No, on the contrary—he adds that in order to tell you that otherwise, if they entered to visit the sick man, so what?

[Speaker D] How do you know he wants to divide it?

[Rabbi Michael Abraham] No, but if—

[Speaker D] —he had—

[Rabbi Michael Abraham] —phrased it that he told them, maybe it would be different? No—he told them, so what? He could tell them fairy tales. He told them—he could tell them stories. Only because the rule in Jewish law is that the admission of a litigant is not fairy tales, but rather the admission of a litigant is like a hundred witnesses—only because of that can I say that I know the facts, and now I decide the law based on—

[Speaker C] —that.

[Speaker E] But it’s like before us—

[Speaker D] —black on white—

[Rabbi Michael Abraham] I’m not arguing with that.

[Speaker D] What? Just as I see that the moon is shining, that’s a fact. Yes. The admission of a litigant is like the moon, because the moon doesn’t speak to you; the moon is a fact in physical reality. Exactly. But the deathly ill person—when the deathly ill person tells, admits, explains how he wants to divide his property, and we have the rule that the admission of a litigant is like a hundred witnesses, then there is receiving testimony here.

[Rabbi Michael Abraham] No, but I said—

[Speaker E] What happens when someone says that it’s like a hundred witnesses—that makes it equivalent to the moon.

[Rabbi Michael Abraham] But I’m saying, wait, wait, let me just—Yael, Yael, suppose we say that he admitted it in a way that is not legally effective. This is an admission of a litigant that is not like a hundred witnesses. He does it outside religious court; he didn’t know they were planning to become judges at all. So legally this is not considered like a hundred witnesses.

[Speaker D] But is it considered knowledge of what he wants?

[Rabbi Michael Abraham] Exactly. That’s what I think; I claim that this is what the Rashbam means in order to resolve the contradiction. I claim that what the Rashbam means to say is that once he admitted, there is no testimony here in the sense of an admission of a litigant—because then there really would have been no need to invoke “hearing should not be greater than seeing.” But since there is such a rule, that the admission of a litigant is like a hundred witnesses, you can’t say: with the moon’s emergence, you saw the reality, but here you don’t know the reality of what he wants. Because the admission of a litigant is like a hundred witnesses, and if he said it, then apparently that is what he wants. On the legal level, maybe that would not have been enough to judge on that basis as though there were two witnesses, but if we ourselves saw it, then hearing should not be greater than seeing. If we were to go and tell a religious court that he admitted before us, they would not be able to decide on that basis. Because that admission—

[Speaker C] It’s not even hearsay from a witness.

[Rabbi Michael Abraham] Because the first testimony is an admission of a litigant that is not considered anything at all. So it’s not even hearsay from a witness. But we ourselves are considered as those who know, and hearing should not be greater than seeing. If he had actually made a binding admission of a litigant before us, then that would be fine. If witnesses had come before us, that would also be fine. So if I know, that is also fine. Hearing cannot be greater than seeing. Look here at Nachmanides. I told you to use Nachmanides here because I think he really illuminates several points. Look at this passage from Nachmanides. “If they wish, they may render judgment. Rabbi Shmuel”—that’s the Rashbam—“explained that even though no person testifies before them”—right, nobody is testifying before them; this is the Rashbam we just read—“we raise the question in Rosh Hashanah, ‘Should hearing be greater than seeing?’ But this does not seem clear to me, because they only said that there with respect to testimony concerning the month, since verbal declaration is not written there, but rather: ‘This one saw and sanctify.’ And thus explained his grandfather Rashi, of blessed memory.” Yes, the Rashbam’s grandfather. “But in monetary law, it is an unresolved question in the Gemara, for in the chapter ‘The woman who was widowed’ they discuss whether judges who recognize the signatures of witnesses need testimony to be presented before them”—that’s our passage in Ketubot—“and in the chapter ‘One who injures,’ too, there are two formulations.” So he says: according to Rashi there, the Ramban here assumes Rashi’s approach in Rosh Hashanah, that Rashi basically says that the whole rule of “hearing should not be greater than seeing” was said only regarding sanctifying the month. There is no such general rule. So how does the Rashbam bring the rule here, “hearing should not be greater than seeing”? That’s the Ramban’s question. Of course, we know the Rashbam owes Rashi nothing. Most of the medieval authorities (Rishonim) disagree with Rashi. They hold that “hearing should not be greater than seeing” is a general rule. But the Ramban understands like Rashi—at least initially he understands like Rashi—and then why are you bringing me “hearing should not be greater than seeing” here? Parenthetically I’ll add: but notice that the Rashbam also adds the admission of a litigant. So even if the rule “hearing should not be greater than seeing” were not said here, there is still the admission of a litigant, and the admission of a litigant is like a hundred witnesses. The Ramban somehow ignores that. When the Ramban reads the Rashbam, he understands that the Rashbam’s main reasoning is what? “Hearing should not be greater than seeing.” The reasoning of “the admission of a litigant is like a hundred witnesses”—otherwise what is the difficulty? Right? Just as I said before. Yes. Now how does he continue? He says: “Rather, here there is the statement of the litigant, and it is like a hundred witnesses. There is no doubt that an admission in religious court is indeed an admission, and judgment is rendered on its basis; and an acquisition in religious court is likewise an acquisition. Since he delivers his words to the religious court and performs an act before them in order to deliver his case to them, certainly they judge on the basis of themselves, for this is called the litigant’s statement. Their concern was only where they saw on their own or where they independently recognize.” So the Ramban says: “hearing should not be greater than seeing”—and there’s the practical difference. That rule was said only regarding the laws of sanctifying the month. The Ramban joins Rashi’s position. So there is no such rule in monetary law, capital law—there is no such rule there, or at least there is a dispute, so it’s not certain that there is such a rule. So what happens here? Here there is his statement, and the admission of a litigant is like a hundred witnesses. Right? And that is why we judge—not because of “hearing should not be greater than seeing.” That rule doesn’t apply here. Therefore we judge here because the admission of a litigant is like a hundred witnesses.

[Speaker C] And here, if he had testified outside religious court, according to Nachmanides it wouldn’t have been…

[Rabbi Michael Abraham] It really would not be okay. Correct. It would not be valid. The Ramban takes the second part that appears in the Rashbam—which in the Rashbam himself he doesn’t understand as part of the explanation—but he claims that this is the explanation here in the passage. And indeed, “hearing should not be greater than seeing” would not help here. If there were no admission of a litigant, “hearing should not be greater than seeing” would not help. Why? Because it helps only in sanctifying the month, not in other areas. The Rashbam, apparently—at least according to my suggestion—the Rashbam can be explained the other way, and apparently the Ramban understood him that way too. The Rashbam adopts “hearing should not be greater than seeing,” and that was said not only regarding sanctifying the month, against his grandfather, but also regarding other areas of Jewish law. And that is also the plain meaning of the passages, as Tosafot says there and others—Tosafot in Rosh Hashanah. “Hearing should not be greater than seeing” was said in all areas of Torah, not only in sanctifying the month. Therefore here too, their ability to render judgment stems from “hearing should not be greater than seeing.” Why does he add this matter of the admission of a litigant? Only because in order for the thing to become a fact, like seeing the moon, as I said before. That is the Rashbam. The Ramban really says no—not for that. This is an admission of a litigant on the legal plane. Those are the witnesses who testified here. And if there were no witnesses testifying here, then indeed it would not help. The Rashbam’s question was: how can they render judgment when nobody testified before them? That question, says the Ramban, is an excellent question. Indeed, you cannot judge if there are no witnesses before them. Only because there is the admission of a litigant here—the person himself testified before them—can they judge. Without that, they truly could not judge. He accepts the Rashbam’s question. Okay? If I’m right, the Rashbam does not accept that. The Rashbam claims that, although he mentions the admission of a litigant, the focus is “hearing should not be greater than seeing.” That is the Rashbam’s focus. He needs the admission of a litigant in order to turn it into a fact. Still, perhaps one could say that the Ramban also says that there is a dispute between the different formulations in our Gemara and in the chapter “One who injures” on the question whether we say “hearing should not be greater than seeing” in other areas too—in monetary matters and so on—and not only in sanctifying the month. Then it may be that what the Rashbam is saying is that he brings two reasons. One of them is according to the view that we do not say “hearing should not be greater than seeing,” so he says there was an admission of a litigant here. The second reason is according to the view that we do say “hearing should not be greater than seeing,” and then indeed there is no need to invoke the admission of a litigant being like a hundred witnesses. That is an alternative explanation of the Rashbam. And it may be that what the Rashbam is saying is really two explanations, because he felt the difficulty raised by the Ramban. He says: I tell you “hearing should not be greater than seeing,” and if you ask me—but according to Rashi’s view, and apparently also according to some of the amoraim, in the rest of Torah we do not say “hearing should not be greater than seeing,” only regarding sanctifying the month—yes, but here there was also an admission of a litigant, and that is the Ramban’s explanation. Then indeed, if I read it that way, there really are two explanations in the Rashbam.

[Speaker D] But that really does seem to be the case in the Rashbam, because in the Rashbam there isn’t greater weight given to the reason that hearing is not greater than seeing. The two reasons come together, side by side. But it’s the opposite.

[Rabbi Michael Abraham] In the Rashbam it looks like one reason, not two. Hearing should not be greater than seeing, and since they saw everything—

[Speaker D] Two things that combine into one reason, but it’s like—

[Rabbi Michael Abraham] No, it combines into one reason, not—

[Speaker D] —not that there is greater weight to the reason of hearing not being greater than seeing as opposed to the reason of—

[Rabbi Michael Abraham] It’s not a question of greater weight. According to what I’m suggesting, it’s not greater weight. The reason is “hearing should not be greater than seeing.” It’s just that one couldn’t have applied it if in the background there hadn’t been an admission of a litigant that is like a hundred witnesses. Together they form the reason—it is one reason. Right. Therefore I say: it combines into one reason; there is no greater weight or lesser weight here. Together they provide the reason. But now I’m suggesting another possibility: maybe the Rashbam really gives two reasons here in order to gain both sides of the doubt raised by the Ramban. One reason is “hearing should not be greater than seeing.” And if you tell me—and “hearing should not be greater than seeing,” like Rashi, was said only regarding sanctifying the month and not other areas—he says: yes, but here there is also an admission of a litigant. And then the conjunction “and therefore”—do you see it? That conjunction “and since” adds another reason; it is not a continuation of the previous reason. Rather: if you tell me there’s a problem with hearing being greater than seeing, then I can give you another explanation. Okay. Fine, maybe.

[Speaker D] I have a second question, a conceptual one. Beyond the fact that we wanted to discuss the question whether a witness becomes a judge—which is the question discussed in the passage—is there an advantage to the fact that the three who came to visit are the very ones who rule on the spot what the law is? Or would it be just the same to say, okay, tomorrow morning or later, after the dying person dies, they’ll go to a religious court and another court will judge. In other words, is there an advantage to ruling on the spot, or is it only so we can understand the passage?

[Rabbi Michael Abraham] What do you mean by advantage? They close the matter now—that’s what the Rashbam says—and it’s impossible to appeal this ruling. It’s a final ruling. There’s no point now going to another religious court and starting to argue; you can’t appeal it. The ruling is final. They could just as well become witnesses; they’ll write the document, and with that document they’ll go to another religious court, and another religious court will rule. Fine?

[Speaker D] Maybe they don’t feel like all the legal back-and-forth. Meaning, if they want… never mind. Never mind.

[Rabbi Michael Abraham] But they can do it either way.

[Speaker D] Wait, one more question. These three who came—are they judges, I don’t know, formally ordained? Or are they just three people and they can—

[Rabbi Michael Abraham] For purposes of the discussion, qualified judges, although there weren’t really so many formally ordained judges in the Gemara’s time. There were no ordained judges in that sense. It’s enough that you know the Jewish law; you don’t need ordination.

[Speaker D] Another comment: three—say, three ordinary people who learned a bit—can they do this?

[Rabbi Michael Abraham] In principle, yes.

[Speaker D] More than that—when it’s one side against the other, for a compromise they can even choose a cattle herder to be the judge.

[Rabbi Michael Abraham] Yes. Though here it’s not so simple, because the question is whether the deathly ill person can choose a cattle herder, or whether someone here stands to lose—after all, there is another side. It has to be accepted by that side too. Meaning, if he divides the money in an unusual way or according to the laws of inheritance, there is another side here, and both sides have to accept the cattle herder. Although it’s not so simple, because basically the money is mine.

[Speaker E] Wait—but there are three who came to visit now, they decided to be judges, and suddenly the heirs come, say, or whoever it is, and say, “No, we don’t accept you.”

[Rabbi Michael Abraham] It won’t help them. It won’t help.

[Speaker E] Why—did he accept them as judges?

[Rabbi Michael Abraham] He didn’t accept them. It’s not because he accepted them. They decided to be judges. It’s not—

[Speaker E] “Accepted by me” means they’re fit to be judges. Then it’s even more of a problem. What, they can decide that now they’re judges? Yes, functioning as judges?

[Rabbi Michael Abraham] Not appoint themselves as ordained judges. They are fit to be judges—that’s in general. Now they have to decide how they are functioning here: are they functioning here in their capacity as judges, or in their capacity as witnesses?

[Speaker D] Again, I don’t understand. Suppose it’s just three guys who came, okay? I don’t know—not rabbis, not Torah scholars sitting all day in the study hall learning, just three people. Not ignoramuses, but just three people who came to visit; not relatives—say three army induction-base buddies came to visit. So now they can judge and issue an inheritance ruling to the heirs? That’s strange.

[Rabbi Michael Abraham] That’s not—no. First of all, I didn’t say that. That is another question. That is a question in the laws of judges: who is fit to be a judge? That does not interest us here; we are not dealing with that. We are operating on the assumption that there are three here who are fit to be judges. What is required to be fit to be a judge is less than you think. But never mind—that’s a side issue. Right now the assumption is that these are three who are fit to be judges. Now they can function as judges or function as witnesses; that is left to their decision. All right? Now one more Rashbam, just as a side note: “This was taught only where they decided and rendered judgment, namely where they entered to visit the sick man by day. Since they heard from the mouth of the sick man, it is testimony before them, and hearing should not be greater than seeing. They could have rendered judgment at that time, because it was day. And once they decided to be judges in the matter when they heard the testimony from the mouth of the sick man, they can judge today or tomorrow, like a court that heard testimony and afterward goes home and deliberates the matter and rules according to what their eyes see.”

[Speaker E] That’s the same comment I made about—

[Rabbi Michael Abraham] Tosafot in Rosh Hashanah: if I saw it during the day, that doesn’t mean I have to judge on the spot. I can judge in the afternoon. Why? Because at the time I saw it, it was a time fit for judgment. The judgment itself doesn’t have to be at the time of the seeing. It just has to be possible to judge at the time of the seeing. So here it’s explicit.

[Speaker C] That at the time you saw, you were fit to be a judge.

[Rabbi Michael Abraham] Yes. And that’s Rashbam’s comment—he writes it explicitly here. Now he says: “But if they entered to visit the sick man at night, when at that time they were not fit to be judges, and this seeing of theirs is not like the hearing of a court that hears testimony from the mouths of witnesses; rather, they themselves are witnesses in what they hear from the mouth of the sick man.” It is not the hearing of a court hearing testimony from witnesses; rather, they themselves are witnesses because they are hearing from the mouth of the sick man. And at that time they are not fit to be judges, right? So you see that in principle receiving testimony can be at night according to the Rashbam. From here the Ramban inferred what he inferred, right? I only have a problem because I can’t judge now, since there is no judgment at night. What happens in the morning? In the morning I won’t be able to judge based on it because in that proceeding I was a witness; I can’t become a judge. Not because receiving testimony at night is invalid—on the contrary, precisely because it is valid according to the Rashbam. Because it is valid, I became a witness, and if I became a witness, I can’t become a judge.

[Speaker C] But if I receive the testimony in the morning and judge in the afternoon, that—

[Rabbi Michael Abraham] —yes, that is possible. Why?

[Speaker C] Why is that possible? Because then, at the time of receiving the testimony, I never became a witness at all. I immediately became a judge. I judge based on—

[Rabbi Michael Abraham] —my seeing. Maybe here the intent of “receiving testimony at night” is like where they saw at night and then in the morning can come testify? Maybe in that sense there is receiving testimony at night? Again, I didn’t understand. Maybe here the intent of receiving testimony at night is like where they saw at night and then in the morning they can come testify? So I’m saying: they can come testify, but not judge.

[Speaker C] What they saw at night they can testify about.

[Rabbi Michael Abraham] No problem—but they can’t judge. Correct. That’s it—that’s what we’re talking about. They can’t render judgment if they saw at night. They can testify. They can testify even that very night. They can write it down and that will be testimony. Now Tosafot writes as follows. Tosafot there in Bava Batra. By the way, where are you up to with the sources I sent?

[Speaker C] You saw Ketzot—

[Rabbi Michael Abraham] Kovetz Shiurim and that—you saw?

[Speaker C] I saw. Yes. Not enough in depth. I’m still a bit uncertain.

[Rabbi Michael Abraham] Okay, let me try to finish today; let’s see if I manage. Because I want to finish this today—I wanted to finish it already today. So Tosafot says as follows: “But at night, even three write and do not render judgment, for seeing is like testimony, and testimony is not received at night.” Tosafot’s view, remember? Tosafot’s view is that seeing is like testimony. Tosafot here says that testimony is not received at night, “as is proven in the chapter ‘The court saw it,’ that receiving testimony is like the beginning of judgment. And during the day, which is fit for receiving testimony, they may judge on the basis of daytime seeing, because hearing should not be greater than seeing. And not as the commentary explained, that if they received testimony presented before them at night, they may judge the next day on the basis of that testimony and do not need the witnesses to testify again before them during the day.”

[Speaker C] Wait, where is this in Tosafot? I looked and didn’t find it. What? In Bava Batra. What he’s quoting. “The commentary” here is the Rashbam in this case, right? Right, yes. Never mind—in the Rashbam too I didn’t see it. The Rashbam we saw before.

[Rabbi Michael Abraham] Why not? That is the Rashbam we saw. That if they received testimony presented before them at night, they can judge tomorrow on the basis of that testimony; they don’t need the witnesses to testify again before them during the day.

[Speaker C] Maybe it’s written in other words.

[Rabbi Michael Abraham] Not that they themselves saw at night—again, not that they themselves saw at night. The Rashbam is not speaking of where they themselves saw at night; rather, they received testimony—witnesses testified before them at night. So they can’t judge at night, because there is no judgment at night, but receiving testimony does exist at night. So if they sit to judge during the day, there is no problem at all; they can do it. That’s also what the Ramban wrote about the Rashbam above. All right? So that’s one point. Then later he writes: “And what the commentary explained, that specifically if they entered to visit, but if they were summoned to testify they can no longer judge, even if others testify, because they have the status of witnesses, and a witness does not become a judge.” Yes—if they entered in order to testify, then even if other witnesses come, they won’t be able to judge. Why? Because they already have the status of witnesses. That’s what we saw—the practical difference that Yael Elkaim mentioned earlier between the Ramban and the Rashbam: what happens if other witnesses come during the day. I said that according to the commentary, once they became witnesses, they can no longer judge even on the basis of other witnesses during the day. That is exactly what Tosafot writes here explicitly. Tosafot here writes this explicitly regarding the Rashbam. “And he brought proof from the first chapter of Makkot and from a responsum of Rashi,” and so on. In short, he disagrees with the Rashbam and does not accept this point, as we also saw in the Ramban. And now there’s an interesting point. “However, his explanation does not seem correct, for the reason that a witness does not become a judge is either because the testimony is testimony that you cannot render vulnerable to disproof by alibi witnesses, since they themselves are both witnesses and judges and will not accept alibi disproof against themselves; or because we require, ‘And the two men shall stand before God’—these are the witnesses—‘before the judges’—these are the judges. But the witnesses themselves do not go back and sit in judgment. And for these reasons, one who merely intends to testify should not be disqualified, for that is like producing testimony.” He says: the Rashbam’s reasoning does not seem logical to me. Why? Because the Rashbam claims that if they entered with the intention of testifying, even though they still have not testified in religious court, they have the status of witnesses and cannot become judges. Tosafot says—and here we move to the final stage of the passage—Martin, I want to discuss the reasons for the law of why a witness does not become a judge, but of course this is deeply connected to everything we have seen until now. And this is what Tosafot says: according to the Rashbam, it emerges that if the witnesses intended to testify, even though they did not testify in religious court, they are forbidden to sit on the judge’s seat. Why? After all, if the reason is that they will not accept alibi disproof against themselves, that’s not true—they aren’t even the witnesses at all; they only intended to testify, while the actual witnesses are other witnesses. So why can’t they judge based on the testimony of other witnesses? Won’t they accept alibi disproof against the witnesses who testified before them? That’s not them. What difference does it make that they are called witnesses in status because they intended to testify? The ones actually testifying before them are other witnesses. So what’s the problem? Why can’t they sit on the judge’s seat? Why wouldn’t they accept alibi disproof?

[Speaker C] In the place where they were witnesses, they can’t accept alibi disproof on such testimony. Why not? Because they too were witnesses.

[Rabbi Michael Abraham] No—

[Speaker D] Right, but they have an interest here.

[Rabbi Michael Abraham] No, they—

[Speaker D] They won’t accept the discrediting witnesses, because they’re also the judges and also the witnesses.

[Rabbi Michael Abraham] Not true. We’re talking about alibi disproof—again, I’ll explain, give me a second. Two witnesses saw the moon, okay? Or saw some act. Now the Rashbam says: if they entered intending to testify, they have the status of witnesses. Okay? So what follows? Now they sit to judge, and two other witnesses come before them regarding the same act. The Rashbam says: they cannot sit in judgment. Once they have the status of witnesses, even though they are not the actual witnesses—the actual witnesses are others—but they have the status of witnesses; they did not testify, they only intended to testify; they cannot become judges. Tosafot says: please explain to me the law of why a witness does not become a judge. There are two possibilities.

[Speaker C] Wait, because of the verse—wait, one second, one second, one second.

[Rabbi Michael Abraham] One possibility is that they won’t accept impeachment against themselves. What does it mean that they won’t accept impeachment against themselves? After all, suppose two witnesses come and impeach the other witnesses who testified before them. What is impeachment? They’ll say: you yourselves didn’t see this deathly ill person at all; you were in Turkey at that time, don’t confuse us. Why wouldn’t I accept that impeachment? I was with that deathly ill person. These witnesses who are coming and testifying that they also saw him—it could be they’re lying. If it’s proven they’re lying, I’ll accept the impeachment. What’s the problem? Why not?

[Speaker D] I didn’t understand the case—one second, I didn’t understand the case. I visited the deathly ill person, I visited the deathly ill person. These witnesses, they’re the ones who were witnesses to the deathly ill person.

[Rabbi Michael Abraham] Again, I’ll explain. And then they won’t accept their impeachment. Wait, I’ll explain. One second, Yael, let me. These judges came to visit the deathly ill person at nine in the morning, okay? They came in order to testify, okay? Rashbam says: in that situation they can’t then sit afterward and judge. Why? Because a witness who came with the intention to testify cannot become a judge. Tosafot says—and this continues Rashbam’s words—that according to Rashbam it comes out that even if they sat down in the afternoon, and in the afternoon two other witnesses came before them, who also visited the deathly ill person at ten o’clock, not at eight—wait, wait—they visited the deathly ill person at ten o’clock, and they come and testify to us that he too said this is how he’s dividing things up. Okay?

[Speaker D] The same testimony that the judges already know.

[Rabbi Michael Abraham] Right. Now the judges, Tosafot says, cannot sit in judgment. Why? Because a witness does not become a judge. So let’s look at the reasons: why does a witness not become a judge? Because he won’t accept impeachment? Why wouldn’t he accept impeachment? If two witnesses come and say, at ten in the morning you were not with the deathly ill person, you were in Turkey—so what’s the problem? Why wouldn’t I accept impeachment of those witnesses? The fact that I was with the deathly ill person at eight—what does that have to do with whether these witnesses, who say they were with him at ten, lied? Why wouldn’t I accept impeachment of that? What’s the problem? There’s no problem at all with that. So this Rashbam is not clear. So what are you going to say?

[Speaker D] Why assume that two other witnesses came? I didn’t understand that.

[Rabbi Michael Abraham] According to Rashbam—

[Speaker D] They can’t be witnesses. Wait. When I read this Tosafot—no, okay, we want to understand. You can say the same thing both as an answer and as a difficulty. We want to understand the reason witnesses can’t be judges. So let’s think: one possibility is that if impeaching witnesses come, the judges won’t accept them. Now I understood—that’s one possibility we’re examining right now.

[Rabbi Michael Abraham] You understood correctly, Yael, you understood correctly. You understood completely correctly.

[Speaker D] But I understood that the witnesses and the judges are the same—we’re in the case where the witness is the judge. Exactly like that. Exactly like that. And now Tosafot asks: and who will impeach the judges?

[Rabbi Michael Abraham] And that is exactly what—

[Speaker D] —that they have an interest. The reason is not because of a case where there are two other witnesses; it’s because they have an interest. Who’s going to impeach the—

[Rabbi Michael Abraham] Yael, you understood excellently. And that is exactly what Tosafot asks. Why? Because Tosafot says: I understand very well the reason a witness does not become a judge if the witness himself testifies and then becomes a judge over his own case—then I really understand why he won’t accept impeachment. But Rashbam wants to argue that the same rule applies even if other witnesses come; the judge still won’t be able to sit in that case. And Tosafot asks: if that’s the reason, then explain to me why. Precisely because you understood the reason correctly—that is exactly Tosafot’s question.

[Speaker B] But it’s also the same thing if witnesses come and say, listen, at 10 he told us something with slightly different wording. Then they’re supposedly impeaching them?

[Rabbi Michael Abraham] No, no, that’s not impeachment—that’s contradiction. Impeachment means: you were with us elsewhere. There’s no contradiction here, no contradiction in the testimonies; the testimonies fit. We were with him at 8 and heard that he wants to divide his property equally among all his children. Fine? Now we’re sitting in judgment. Two days have already passed. We’re sitting in judgment. Another pair of witnesses comes before us who were there on a different day from us, and they tell us that he said to them that he is dividing all the property equally among his children. Okay? Now Rashbam says that even in that situation we won’t be able to sit in judgment. Even though the ones testifying here are not we ourselves—which is the original rule of a witness not becoming a judge. Wait, wait—that is the original rule of a witness not becoming a judge. Rashbam says: but even in a case where the witness is someone else, even there, a witness who intended to testify cannot become a judge. Tosafot asks him: why? Granted, if you yourself are the witness testifying and you become the judge, then clearly—you won’t accept impeachment against yourself. But if you’re talking about other witnesses, then what’s the problem? Why wouldn’t I accept impeachment against them? It has nothing to do with me.

[Speaker C] And also, impeachment cancels the testimony they gave, doesn’t it?

[Rabbi Michael Abraham] No, of course not. Of course not. Not at all. Quite the opposite. In impeachment, the whole idea is that I’m not canceling the testimony at all. No. Ruti, Ruti, the whole idea of impeachment is that it does not cancel the testimony—that’s the definition of impeachment. The definition of impeachment means: I have no argument with what you’re saying; you may be right. You could not have seen it. You’re a liar. That is exactly the point. Therefore what Tosafot says here is: they will be able to accept impeachment against those witnesses; the testimony will remain standing, we know the testimony is true, but those witnesses have been proven liars—they weren’t with him. So what’s the problem? Why shouldn’t we accept that impeachment? Therefore, in this case there is no obstacle to these judges sitting in judgment. That is his challenge to Rashbam. So what else can we say? The second reason. What is the second reason? This is actually the reason Rashbam himself brings. Right? What does Rashbam himself bring? “And the two men who have the dispute shall stand before the Lord”—yes, “the two men” in the plain sense means the litigants, of course. But the Talmud interprets it as referring to the witnesses; “before the Lord” means before the judges. Therefore the witnesses must stand before the judges. So it cannot be that the witnesses themselves are the judges. It has to be two distinct instances. Yes, the witnesses stand opposite the judges. But if the witnesses themselves sit in the judge’s seat, then there is no group of witnesses with judges sitting opposite them; rather, it is the same instance itself. And that is the disqualification of a witness not becoming a judge. Okay? That also does not work here. Even according to that reason you cannot understand what Rashbam says. Because according to what Rashbam says, this applies not only when the witness testifies, but even to witnesses who do not testify, only intended to testify. So what’s the problem? The witnesses who are testifying are standing before the judges—everything is fine. The fact that the judges also were with the deathly ill person and intended to testify—so what if they intended to? Right now they are not standing before themselves and testifying. Someone else is standing and testifying. It follows that even according to this reason, you cannot understand Rashbam’s disqualification.

[Speaker D] Where does Rashbam even talk about impeachment? I didn’t see that.

[Rabbi Michael Abraham] Rashbam doesn’t talk about impeachment. Rashbam doesn’t—

[Speaker D] So then how do we explain why Tosafot challenges Rashbam?

[Rabbi Michael Abraham] Rashbam, Rashbam is talking—come—

[Speaker D] Let’s try—

[Speaker E] To examine what Rashbam’s view is: is it based on impeachment, or is it based on a scriptural decree? If it’s based on impeachment, I can ask a question, and that doesn’t work. Ah, but even if it’s based on a scriptural decree, it also doesn’t work. So what do we do?

[Rabbi Michael Abraham] Rashbam—what he says doesn’t talk about impeachment at all; it has nothing to do with impeachment. What Rashbam says is that witnesses who intended to testify cannot sit in the judge’s seat. Fine? What does it mean they cannot sit in the judge’s seat? It is enough that they intended to testify—not that they actually testified. Right? After all, that is all Rashbam said. So how does that happen? Then who does testify there? Apparently, two other witnesses. They intended to testify, but in the end there were other witnesses; they did not testify. They still cannot sit in the judge’s seat. That is Rashbam’s novelty, period. Tosafot says: this novelty of Rashbam cannot be understood according to any of the reasons that disqualify a witness from being a judge—not according to the reason of impeachment and not according to the reason of the witnesses standing opposite the judges. Fine? So that is the claim, and here the reasons really start getting brought in. Now pay attention. There is Rabbi Aryeh Leib—I didn’t send him to you—who wants to make the following argument. How can we understand both the rule of impeachment and the rule of “and the two men who have the dispute shall stand before the Lord” in several ways? The rule of “and the two men who have the dispute shall stand before the Lord” can be understood either as requiring that there be some sort of standing of witnesses opposite judges, and once these are the same two people or the same three people, then there is no standing of two groups opposite one another. Because there is a requirement for how a trial is conducted, and it cannot be conducted this way if those same people themselves are sitting both in the judges’ seats and on the witness stand. Okay? That is one explanation.

[Speaker B] It’s a formal issue. Right. It’s a formal issue, a formal explanation.

[Rabbi Michael Abraham] I think there’s something substantive in it.

[Speaker B] Wait, wait, wait.

[Rabbi Michael Abraham] It’s a formal issue—it’s a formal explanation.

[Speaker B] The executive branch can’t also be the judiciary, and so on.

[Rabbi Michael Abraham] Wait, wait. So not the executive branch. I’m saying it’s a formal matter. We can’t mix the instance of judges with the instance of witnesses in the religious court. That’s one possible explanation. A second possible explanation, which Nachmanides brings if you saw it—he brings it in the name of the Jerusalem Talmud—he says there is some contradiction regarding whether they need to stand or sit. As witnesses they need to stand. As judges they need to sit. Okay? That is the rule. So there is some contradiction here. Of course this too is a formal matter, but it is only an indication that witnesses cannot be judges. And of course it is a bit problematic, because if they really testify and only afterward become judges, then what is the problem? First they can stand and afterward they can sit. This is talking about a witness not becoming a judge when the testimony and the judging are done at the same moment. And that takes us back to what I said in Tosafot in Rosh Hashanah—that seeing is testimony and judging simultaneously. Okay? But in any case, this also doesn’t fit Rashbam here, of course. Right? According to this reason too, you can’t understand Rashbam, since the witnesses who are testifying here are standing and the judges are sitting. Why shouldn’t these judges be able to sit here? What’s the problem? But there is a third possible explanation of the reasoning.

[Speaker C] Maybe if the judges are in the position of witnesses, then psychologically they can’t be—even if they don’t actually testify, but if they intended to, then they’re sort of in the posture of a witness.

[Rabbi Michael Abraham] Maybe I’ll say something similar. I’ll say something similar. It could be that Rashbam’s reasoning—and this is what Rabbi Aryeh Leib of Malin says in his novellae in section 35—he says that “and the two men who have the dispute shall stand before the Lord” does not mean there needs to be some situation where these stand opposite those. Rather, once the judges are not the ones sitting opposite the witnesses but are themselves the witnesses, they are disqualified from being judges. The disqualification is not in the testimony; the disqualification is in the judging. Therefore he says that what is written there is basically that someone who has the status of a witness cannot serve as a judge. Maybe the reason is what Ruti said earlier, because his psychological orientation is that of a witness and not that of a judge. But that’s not important. The halakhic definition is that someone upon whom there is the formal status of a witness—not someone who stands in court and testifies, but someone upon whom there is the formal status of a witness—cannot become a judge. Here, Rabbi Aryeh Leib says, this can also explain Rashbam against Tosafot’s question, because then Rashbam says: once they intended to testify, we have the status of a witness upon us. True, we are not actually testifying; there is no problem of accepting impeachment, no problem of these standing opposite those. But what is written in “and the two men shall stand” is neither this nor that. What is written in “and the two men shall stand” means that once you have the status of a witness, a witness is not a judge—it is someone else. You can no longer serve as a judge in that case. And it is clear that this is what Rashbam meant, because otherwise Tosafot’s question against him is difficult. According to the other two reasons, Tosafot’s question against him is difficult. Therefore, first, it is clear that Rashbam meant “and the two men shall stand” and not accepting impeachment—he writes that explicitly himself, so there is no question here from impeachment at all. Impeachment is not Rashbam’s reasoning. Rashbam’s reasoning is “and the two men shall stand.” But even within “and the two men shall stand” there are three possible explanations. One explanation is that either sitting or standing creates a contradiction—that doesn’t work here in Rashbam, because here there is no problem; the judges only sit, they don’t actually testify, they don’t need to stand; there are other witnesses who actually testify. The other explanation, that two groups need to stand here opposite one another, also doesn’t work here in Rashbam, because the ones standing opposite us are other witnesses, and that requirement is fulfilled here—there is no problem at all. Only the third explanation in Rashbam’s view—the explanation of “and the two men shall stand,” meaning that judges, someone who bears the designation of witness cannot serve as a judge—only that explanation can save Rashbam from Tosafot’s question. Okay? So in effect I’ve already brought in here the different explanations of the question why a witness does not become a judge.

[Speaker E] Maybe only with regard to the scriptural decree—you still haven’t spoken about impeachment.

[Rabbi Michael Abraham] With impeachment I’m only doing—do you see? Look, also in Kovetz Shiurim it says the same thing as Rabbi Aryeh Leib. “What Tosafot asked against Rashbam’s view—that when they intended to testify they cannot judge even regarding the testimony of others, for what reason is there to disqualify in such a case—one can say, according to Rashbam, that from the verse ‘and they shall stand’ we learn that a witness does not become a judge, and the disqualification is not because of a deficiency in ‘and they shall stand,’ that there must be standing of one opposite the other, but rather it is an independent disqualification: wherever the designation of witness applies to him, he is disqualified from being a judge.” Exactly like Rabbi Aryeh Leib. Fine? Ketzot…

[Speaker C] What a formulation he used—that the standing is a scriptural decree; it’s not a description of a psychological state. Okay.

[Rabbi Michael Abraham] Now here, regarding impeachment, in Ketzot that I referred you to, there are several formulations also in this direction of impeachment. There is an approach that says they won’t be able to accept impeachment because they won’t want to accept impeachment, because they are interested parties; they are witnesses and they have a position, so they won’t accept impeachment. But that is, as Tosafot said, only when they themselves are truly the relevant witnesses.

[Speaker D] Okay. On the other hand, that’s a problematic explanation. What does it mean they won’t want to accept impeachment? They won’t want to accept impeachment because they know the truth, not because they’re biased in judgment. What kind of claim is that? Because they know the truth they won’t accept impeachment? Right, they won’t accept impeachment because that’s the truth. It’s a strange claim.

[Rabbi Michael Abraham] But I simply have an objection regarding the issue of truth, because I see, just as an example, in my own house, okay, in the fights among my children—not really—two at home, we’re all in the same place, all of us, even we as parents see the incident, and each one sees and interprets something else. There’s no such thing as seeing and that being the actual reality such that no one can come and testify otherwise. You can see the same thing at the same time and testify to two different things. So what’s the conclusion? From life. So what’s the conclusion? Agreed, agreed with every word. What’s the conclusion? Wait, wait, one second. Yael, I agree with every word you said. Go on—what’s the conclusion?

[Speaker C] I only wanted to note that they know the truth—they know that the deathly ill person wrote such and such. Yes. But what does that have to do with impeachment? Impeachment only says totally different facts—that these people were in Turkey, like Rava…

[Rabbi Michael Abraham] No, but they know the truth that they were there—not only that this is what he said. So when they come to impeach them and say that they were not there, they won’t accept it; they know they were there.

[Speaker C] Ah, everything happened in the same event and they saw that they were there.

[Rabbi Michael Abraham] They themselves—the judges were there, after all—so they won’t accept the impeachment. So I’m saying: true, they won’t accept it, but they won’t accept it because that’s the truth. In a place where I rely on witnesses, there is a requirement that the testimony must be such that it can be impeached. But if I myself saw it, why is this not testimony that has to be subject to impeachment? Now here there really is another principle: there is another formulation that says this has to be testimony that is subject to impeachment—not merely that they won’t accept impeachment. What does that mean? That this testimony we will never be able to impeach, because the judges always know that they were there. As I said before, in my view this is problematic, because if they know, then indeed rightly they won’t accept the impeaching testimony. But there may be something else here. After all, if they are impeached, then in the end what comes out? That they lied in their testimony, right? They lied in their testimony, right? If they lied in their testimony, then they are disqualified both from testimony and from judging. So it comes out that the judges before whom the impeachment took place were disqualified judges. But if that is so, then there is no impeachment here. That impeachment cuts off the branch on which it itself is sitting. Because the moment the witnesses are impeached, the judges too are disqualified. If the judges are disqualified, then there was no impeachment here, because the impeachment took place before an invalid court. Now this too, of course, does not apply—it cannot answer Rashbam above; it has nothing to do with that. Only for those who go in the direction of impeachment is this a possible explanation. Okay. So in the realm of impeachment too, one could speak either on the level of we won’t accept impeachment against ourselves, or on the level that even if we do accept it, it won’t work because it disqualifies us, and therefore our acceptance is worth nothing. And in the realm of “and the two men who have the dispute shall stand before the Lord,” I offered three explanations, the third of which can apparently fit into Rashbam, as Kovetz Shiurim and Rabbi Aryeh Leib of Malin say. Okay, I’ll stop here, and we’ve finished the topic; I’m not going to come back to it.

[Speaker D] I actually would be glad if we did address this matter that when you see, you know the truth, because it really is something in the essence of—you’re right—I told you, Yael—I told you also in the previous class—it’s easy when they see the moon; there’s no—there’s no kind of—I don’t know what—there’s no emotional element and no financial element and nothing.

[Rabbi Michael Abraham] There’s nothing here either. Three people come and hear someone say how he wants to divide his property. What emotional issue is there here? What they saw is what they know.

[Speaker D] Here there is a big issue, because it could be that the heirs could bring a witness, or invent a witness, or bring a real witness who saw something else there.

[Rabbi Michael Abraham] The heirs can do whatever they want; the judges have no bias at all. The heirs can always do whatever they want. The question is whether there is suspicion of bias among the judges.

[Speaker D] I don’t accept this in principle—what does it mean, judges are also—

[Rabbi Michael Abraham] Human beings—what does that mean?

[Speaker D] But if judges are human beings and they—

[Rabbi Michael Abraham] —see and know, then don’t let them judge at all! Then don’t let them judge—maybe they’re lying; after all, they’re human beings. What does it help that they receive testimony? If they receive testimony, then they’re not human beings? Then that’s better than if they saw it themselves? The opposite: if they receive testimony, then maybe they’ll accept it even though it’s worth nothing, because they’re human beings and they make mistakes. You can always raise that claim; it’s not an argument. In the end, there have to be judges who are human beings who judge—what can we do? We don’t have angels who judge; judges judge. The whole question is what the optimal situation is, and the claim is that if they saw it, that cannot be worse than hearing it from witnesses. This they know firsthand. They can always lie, they can always make mistakes; even if you require witnesses to come before them, they can still make mistakes. What does that help? It won’t help you at all.

[Speaker D] On the one hand that sounds logical, and on the other hand, I don’t know—maybe intuitively, when more people are involved, then there is what I’ve heard in many places: more control, more oversight, I don’t know.

[Rabbi Michael Abraham] In the end, only the three judges are involved in the ruling. So there were witnesses there—so what? Were they the judges? The judges decide what to do with that testimony. Only the three judges are involved in the decision. In the end, they sit there with their own conscience. That’s it. And therefore you can always suspect that they made a mistake, that they lied, that they have interests—that’s always true. Even if you require a thousand witnesses, it changes nothing. Good. Okay? Okay. Fine, so we’ll stop here. Thank you. Goodbye.

[Speaker D] Goodbye, all the best.

[Speaker C] Thank you

[Rabbi Michael Abraham] very much,

[Speaker D] Bye, thank you very much.