Ketubot, Chapter 2, Lesson 35

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[Rabbi Michael Abraham] But that is, at least from the perspective of the medieval authorities (Rishonim), and I’ll comment on this more later, but from the perspective of the medieval authorities (Rishonim) it’s understood the same way. When I testify that Reuven murdered, and the other one testifies that Reuven did not murder, it’s as if he’s saying to me, “You’re a liar.” It’s as if he turns to me and says, “You’re a liar,” and of course I turn back to him and say the same. But it’s important to understand that in this situation the problem is not a clash. Therefore there is an essential difference between the two topics. The topic in Yevamot, which discusses the state of the case when there are two against two, is a case of collision. And there we’ll see there’s a question whether we uphold the prior presumption or do not uphold the prior presumption—Rashi and the Ba’al HaMaor. But the discussion of Rav Huna and Rav Chisda here is apparently a different discussion. There is no two-against-two with respect to either of the two sets of witnesses. It’s not two against two; it’s not a case of two against two in the sense that there is a collision over some content of testimony. There is a loop here. The loop says: set A disqualifies set B; set B disqualifies set A. Now whichever way you look at it, if set A is telling the truth, this is really the liar paradox. If set A is telling the truth, then set B is disqualified, right? Because set A disqualifies it. But if set B is disqualified, then it can’t disqualify set A, so set A remains truthful and everything is fine. You can leave set A as truthful, set B as disqualified, and there’s no paradox here. That works just fine. The only thing is, you can say the exact same thing in the opposite direction. Set B, assuming it is telling the truth, disqualifies set A. Set A, since it is disqualified, cannot disqualify set B, and then we’re left with the opposite result: set B is telling the truth and set A is the disqualified one. What’s happening here is not at all a question of collision, but a problem that we have two possible resolutions, both of which are possible. We have no way to decide between them; this is not a collision.

I’ll show you a nice illustration of this matter. Maybe before that—look. You know the liar paradox. The liar paradox, yes—its source is actually in the New Testament. There’s some person there, a resident of Crete, who says that all the residents of Crete are liars. And if all the residents of Crete are liars, then in particular he himself is also a liar, since he’s a resident of Crete. But if he himself is a liar, then what he said earlier is false, which means it is not true that the residents of Crete are liars. And if he is telling the truth, then of course it is true, and if it is true then it is not true, and so on. In itself that is not a paradox. Why is it not a paradox? Because there are several things here that in logic are called… It could be that a liar in speech—a person who is a liar—is not a one-hundred-percent liar; there are things about which he tells the truth. Or—this is even worse actually—but you’re right, and here it’s even easier to reject it. He said that all the residents of Crete are liars. Even if we assume he is a liar, that doesn’t mean he lied in this case; it doesn’t mean that he himself is not a liar. It could be that his cousin or his neighbor is not a liar, and therefore the statement “all the residents of Crete are liars” is not true. But the fact that it isn’t true doesn’t mean that what I just said is a lie. Right? It could be that what I’m saying now—sorry—that what I’m saying now is false, but that doesn’t mean that I myself am a liar. Right? I told a lie because my cousin tells the truth. That gets close to the paradox of—what do you call it? What? A paradox—it gets a little close to the heap paradox, kind of, like how many people are liars? No, no, no, no, it has nothing to do with the heap at all. This is pure logic, where one person who isn’t a liar is enough for the sentence “all the residents of Crete are liars” to be false. Right, there is no issue of a heap here whatsoever. One person who is not a liar is enough to make that sentence false. But that one person does not have to be the speaker himself. It could be some other resident of Crete who tells the truth, and then the loop stops. The loop doesn’t keep rolling.

So how do we create a real paradox? If we say: statement A: statement A is false. That really is the liar paradox. Why? Because here there is no quantifier. There is no… there is no quantifier—I mean a quantitative operator in logic. When I say “all the residents of Crete are liars” or “some residents of Crete are liars,” those are two quantifiers: a universal quantifier and an existential quantifier. Okay? So once there are no quantifiers here, then there’s no such issue. It is a single statement that refers only to itself. You cannot remove other people from the scope of that statement. And then this is a real loop, because if it is false then it is true; if it is true then it is false, and it never stops. Okay, that is the liar paradox.

Now our case here is not that. Our case here is not the liar paradox. It’s something I once called in an article an anti-paradox. What is an anti-paradox? Think about statement B: statement B is true. Right? The previous example was: statement A: statement A is false. Now I’m saying: statement B: statement B is true. How should we relate to that? There’s a problem with it; it’s not just an ordinary claim. Why? Because let’s assume this thing is true. Suppose statement B really is true—then it’s true, right? So that’s fine; it coheres with itself. Okay? That’s one possible interpretation. But by the same token the interpretation that it is false is also possible and consistent. If you assume it is false, then indeed what it says is false—that it itself is true—so it really is false. So that too is consistent. Which means that this statement can receive the truth value “true” and work with it, and it can also receive the truth value “false” and work with that. Right? An ordinary claim is either true or false, not both. Suppose I say right now that it is light outside—a true claim. I say right now that it is dark outside—that is a false claim. An ordinary claim is one that receives only one truth value: either true or false. A paradox is a claim that receives no truth value, because if it is true then it is false, and if it is false then it is true. That’s the liar paradox. An anti-paradox is a claim that receives two truth values. It can be true and it can also be false at the same time; you have no way to decide. Both of those things can be correct; both are consistent. That is what’s called an anti-paradox. Okay?

Now look, I brought a nice visual example of this. You know Escher’s drawing? Yes, Escher’s. Right, so each hand draws the other hand, right? So think about it: that thing is basically an anti-paradox. Why? Because if the lower hand, say, draws the upper hand, then the upper hand is drawn, right? Because someone drew it. If it is drawn, then the fact that it draws the lower hand is perfectly fine, because there is someone drawing the lower hand too. So the lower hand also exists, and everything is fine. On the other hand, of course, if this drawing is not correct then there is no upper hand. If there is no upper hand then there is no lower hand either; if there is no lower hand—so in short we go back again. Or alternatively—I once found, wait, how do I now… I’ll make it a little smaller so you can see the picture—I once found, in an online shirt advertisement, someone made a paraphrase of Escher’s drawing, but notice that he is holding an eraser, not a pencil. Nice. In other words, each hand erases the hand above it. What does that mean? By the way, that parallels our case, because the lower hand erases the upper one, but if it erases the upper one then the upper one does not exist, so who erases the lower hand? Right? So there is nobody erasing the lower hand, so it is not erased. And conversely, if the upper hand exists, then it erases the lower one. If it erases the lower one, the lower hand cannot erase it, because it is erased, it doesn’t exist. This is really parallel to our two-against-two of Rav Huna and Rav Chisda. It is exactly the same thing; that is the logic. And I think it illustrates the point nicely.

The anti-paradox—is that basically a loop? What? Say that again? Is the anti-paradox basically a loop? It’s not a loop. The drawing is a picture of a loop, but when you think about it in terms of truth or falsehood, you’ll see that I can view it as true and I can view it as false. In other words, there are two… I can treat the upper erasure as a valid erasure. Think of the two hands as two sets of witnesses. Now suppose the upper hand really is erasing. If it is erasing, then the lower hand cannot erase, because it does not exist—it is erased, right? So it cannot erase the upper hand. So the upper hand remains in existence and the lower one is erased. But by the same token I can say that the lower hand erases the upper one; now the upper one is erased, so it cannot erase the lower one, and the lower one exists and the upper one does not. So this means I can propose two resolutions to this conflict, and I have no way to decide between them. Or, it cannot be that both exist, both hands. But you can’t know whether the upper one exists and the lower one doesn’t, or the lower one exists and the upper one doesn’t. Okay? That we cannot know. Right. What if I wanted to make the liar paradox? Then it seems to me you’d have to put a pencil in one hand—I don’t know how to do this—and an eraser in the other hand. Because if you put a pencil in the upper hand, say, and an eraser in the lower one, then the upper hand draws the lower one, so the lower one exists, right? And if the lower one exists, then it erases the upper one, so the upper one does not exist. But if the upper one does not exist, then who drew the lower one so that it would exist? So it does not exist. And if it does not exist, then it did not erase the upper one, so the upper one does exist—and that is a loop. That is the graphic representation of the liar paradox.

But these two pictures actually represent an anti-paradox. And therefore I want to emphasize that the case of two against two when we are relating to the matter under discussion is a case of conflict; it has nothing to do with paradox at all. It is just a clash between two and two—the question is who prevails. It has nothing to do with a loop or a paradox or two resolutions or anything like that. There is a conflict here; you cannot know. The case of the two against two of Rav Huna and Rav Chisda—that is, the discussion about the sets of witnesses—is not a case of conflict. There is no conflict here at all. On the contrary, there is some kind of loop where one supports the other or denies the other, but there is no frontal clash between the two over something in the middle. Rather this one grabs that one, and either this one erases that one and that one erases this one, and now the question is whom to take seriously and whom not. There are two possibilities here, and I don’t know how to choose between them. Okay? And therefore this is a completely different question. And the medieval authorities (Rishonim) who connect them—we’ll have to understand why, because on the face of it this is a completely different question. There is no conflict; it is not a question of conflict at all. With respect to each set, my hesitation is not because there are two witnesses one way and two witnesses the other way, but because I, the interpreter, have two interpretive possibilities of how to understand this contradiction. It is not because of the contradiction itself. Clear? Do you understand what I’m saying? Yes, meaning the discussion in Rav Huna and Rav Chisda is basically a discussion about the sets themselves and not about the subject matter… Right. And therefore I’m saying there are basically three… let’s say that if one set had said that the other was telling the truth, and the other set had said that the first was lying, that would create the loop of the liar paradox. But both sets say about each other that they are liars, and so that creates an anti-paradox like these drawings. And that is with respect to the sets. And the clash between the two sets over the case itself—that is just a clash. It is not a loop, not a paradox, not an anti-paradox. It is a clash like one proof against another proof; the question is which proof is stronger. So if the two proofs are of equal force, then I cannot decide. That’s all. But there is no loop here and no paradox and no problem of that kind. And therefore we are really dealing with problems of entirely different logical structures. The topic in Yevamot, which deals with the case itself of two against two, is a topic that talks about conflicts—what do you do when there is a conflict. The topic in Shevuot, which talks about what to do regarding sets of witnesses, is a topic that deals with anti-paradox. What do you do with an anti-paradox. Okay?

There are some nice examples of these things. Since I’m already talking about it—this was in that same article where I defined these concepts, an article in HaMa’ayan. So I argued that in Jewish law there is—I brought there an example of a paradox and an example of an anti-paradox. For example, the Talmud says that in a dispute between Rav and Shmuel, the Jewish law follows Rav in prohibitions and Shmuel in civil law, monetary law. Okay? Now there is a certain dispute—it doesn’t matter—regarding making a stipulation against what is written in the Torah in the law of overcharging. So there there is a dispute between Rav and Shmuel on the question whether this issue belongs to prohibitions or to monetary law. To monetary law. Now what is nice is that Shmuel says it belongs to prohibitions, even though the Jewish law follows him in monetary law. And Rav says it belongs to monetary law, even though the Jewish law follows him in prohibitions. Now the question is how to rule. Okay? So that is a paradox. And the anti-paradox, sorry—that’s a paradox. And the anti-paradox is the example of… wait, but this question—isn’t that not really a question of prohibitions and monetary law? It’s kind of a question above prohibitions and above monetary law. Okay, fine, but if you rule like Shmuel, then it comes out that this question is a question in prohibitions—but in questions of prohibitions you have to rule like Rav. And if you rule like Rav, then it comes out that this question is a question in monetary law—but if it is a question in monetary law then you have to rule like Shmuel. No, but the question whether this question belongs to prohibitions or monetary law is not itself a question of prohibitions and monetary law; it is a higher-order question. Agreed, agreed, and that is exactly the problem. And so now I say, whichever way you look at it, I don’t know how to rule on this question because it belongs… not to prohibitions and not to monetary law. So let’s do the calculation. Suppose I rule like Shmuel. But if I rule like Shmuel, then it comes out that the Jewish law is like Rav. Fine, but that’s not a paradox. Why? Because if you rule like Rav, I rule according to Shmuel on whether the question is one of prohibitions or monetary law, stringently let’s say, now when the question enters into the… But that is the question itself. What? But that is the question itself. On that very question they are discussing whether it is prohibitions or monetary law. So on that, rule like Shmuel—but Shmuel said that in a question of prohibitions… No, the question is whether a certain question is one of prohibitions or monetary law. But no, and that is the question itself too; there is a loop there, you need to see the passage. There is a loop there; that is the very question under discussion: whether the question is one of prohibitions or of… whether the question whether a question is one of prohibitions or monetary law is itself a question of prohibitions or a question of monetary law. Fine, it doesn’t matter, let’s not get into it.

There is Beit Hillel and Beit Shammai, for example. There is a dispute between them over whether one follows the majority in wisdom or the majority in number. Do you count feet or do you count heads, as I like to describe it. Right? So Beit Hillel say you count feet, and Beit Shammai would count heads, and in that case Beit Shammai were also sharper than Beit Hillel. Okay, so that is an anti-paradox, right? Because if we rule like Beit Shammai, that you follow the heads, then indeed the Jewish law is like Beit Shammai. And if we rule like Beit Hillel, then indeed the Jewish law is like Beit Hillel. Which means here it is an anti-paradox because both resolutions remain internally consistent. I don’t know how to decide, but it is not a loop that forces me to keep spinning. Rather there are simply two possibilities, and I don’t know how to decide between them. In contrast, with Rav and Shmuel it is a cycle: if the Jewish law is like Rav, then the Jewish law is like Shmuel; if the Jewish law is like Shmuel, then the Jewish law is like Rav. Okay.

Anyway, for our purposes—so regarding the dispute of Rav and Shmuel, yes, what would happen—I wondered here—what would happen if the two sets of witnesses came and spoke directly about each other, not by way of contradiction about the case? Reuven and Shimon say that Levi and Yehuda are liars, and Levi and Yehuda say that Reuven and Shimon are liars. Would that be the same thing? In the medieval authorities (Rishonim), in the dispute between Rashi and the Ba’al HaMaor? I don’t think so, I don’t think so. We’ll get there, but in the medieval authorities (Rishonim) it seems that this is the same thing as contradiction about the case. There is no difference, because contradiction about the case also implicitly says, “You are a liar.” If I do not say what you say about the case, even though there was perhaps some room to distinguish them. There was room—why? Because one contains the other and the other doesn’t contain the one; it’s not necessarily bidirectional. No, but if you let them testify in another case… That is the whole discussion here. I’m saying what Yael Eigenberg said earlier—I think it comes up here. Because if each one says of the other that he is a liar, then maybe here he spoke the truth. It’s not… generally he is a liar, right? It could be that in this case, for example, both of them are liars. Who says not? I say that you are a liar and you say that I am a liar—maybe in fact both of us are liars. No, but if each set says that the other is a robber? Then it disqualifies them; it doesn’t say they are liars. No, if they are liars, not robbers. Robbers means only that their testimony is inadmissible, but liars means that they lie. So now I’m saying, at the principled level I can accept both testimonies: both are liars. It’s true that here in this case there is apparently some conflict, but the truth is that it isn’t really a conflict; maybe both really are liars. And to say that someone is always a liar—is there such a thing? No, both are liars in general—that is exactly the point. And therefore when one of them says the truth in this case, when he says that the other is a liar, that is a true statement. Fine—generally he is a liar; here he told the truth. Which means there is no frontal contradiction between these two statements. But if both testify about Reuven that he did or did not murder, here one of them lied. You cannot accept both of those statements together, right? So at the logical level that is not the same thing. When two sets of witnesses each say about the other that it is lying, you can accept both sets together; there is no logical contradiction. But when the two sets of witnesses, one says that Reuven murdered and the other says that Reuven did not murder—you cannot. One of them is lying and one is telling the truth, at least—no, not at least—one is telling the truth and one is lying. There is no option of accepting both. Which means the logical structure is not the same structure. Because they are testifying about the same topic, whereas here each one is testifying about a different topic. Exactly, right. Therefore there is no real contradiction. And that sharpens for you even more the difference between the question of Rav Huna and Rav Chisda and the question in Yevamot, or the question about the matter under discussion. They are different things; it is not a conflict; there is no conflict here.

Okay, now let’s look at the Ritva on Shevuot. The Ritva writes as follows: “It was stated: two sets of witnesses that contradict one another—Rav Huna said: this one comes separately and testifies, and that one comes separately and testifies.” Meaning: this one comes separately and testifies in unrelated cases, and that one also comes separately and testifies in unrelated cases. But not to imply that one witness from this set and one witness from that set combine, for one of them is certainly a false witness. Okay? In other words, the Ritva says this: what does it mean, “this one comes separately and testifies”? What do the words “separately and testifies” mean? The point is when it comes alone. But no—not only in another testimony; no, not only another testimony, but another testimony on its own. Because even in another testimony, if you take one witness from set A and one witness from set B for another testimony, there the Ritva says even Rav Huna agrees that we do not accept them. Why? Because one of the two is certainly a liar. You do not know which one; each one individually is doubtful, but one of the two is certainly a liar. So he says: therefore when Rav Huna states his ruling, saying “this one comes separately and testifies,” it is only if it testifies by itself. But if you take one from this one and one from that one, we will not accept that testimony. Okay? So it is not only the question of another testimony versus the testimony itself, but the question whether they come separately.

“But with regard to the very testimony in which they contradicted one another”—now this is what Ruti said earlier—“with regard to that testimony itself,” meaning on that very testimony, say, whether this judge is a robber or is not a robber, “it is obvious that we place two opposite two and leave the money in the possession of its presumed owner.” If they are disputing over some loan—two say there was a loan, two say there was no loan—in such a case it is obvious that we leave the money where it is. Even according to Rav Huna, who leaves the sets of witnesses with their presumption of validity, that is all only when they come and testify separately about another case. If they come together about another case, it won’t help; and if you are discussing this case, that also won’t help—this very case that is under discussion. Because this very case under discussion is the point of their collision. Therefore on that, it is obvious that Rav Huna would not accept the testimony, but would leave it in its prior status. The entire discussion—the dispute of Rav Huna and Rav Chisda—is only about other cases. Do you agree with this? Yes, totally. Wait, I understood that Rav Huna in the end, when the two sets each come by themselves, gives them their presumption of validity. Correct. Okay, that. But the Ritva has two reservations. One reservation: what happens if I take one witness from set A and one witness from set B for another testimony tomorrow morning? That won’t help, because one of them is certainly a liar. Right? What happens in our case here? After all, if Rav Huna upholds both sets in their presumption of validity, then now I believe both their testimonies about the case before us. What do we do with that? Would Rav Huna accept testimony in such a form? The Ritva says clearly not, because which testimony would he accept? These say yes and these say no. So what would they do? They would leave the matter in its prior status. Right. So then the conclusion is that the two judges remained valid? Ah, exactly. That’s why I asked whether you agreed. What he is saying here is basically like the Ba’al HaMaor, against Rashi. Can you go back for a moment to the Ritva’s second reservation? What? What is the Ritva’s second reservation? The second reservation of the Ritva is when we are dealing with that very testimony itself regarding which they were contradicted—there Rav Huna of course does not validate them. Ah, right, okay, clear. Why? Because, says the Ritva, we leave the matter in its prior status. Which means that when there are two against two about something, we follow the prior presumption, right? Which is exactly the Ba’al HaMaor against Rashi and the Rif. In other words, what the Ritva says here is not so self-evident. Rashi and the Rif would not agree; you do not leave the matter in its prior status. Isn’t this the question Tosafot asks in our passage? Wait, we’ll get to Tosafot in our passage. I’m deliberately preparing the way toward Tosafot, okay? Because Tosafot really does connect this to the dispute of Rav Huna and Rav Chisda. So we need to pay very close attention that the Ritva here is basically joining the camp of the Ba’al HaMaor and the Ran. Okay.

Moving on. Wait—is there another way to understand Rav Huna? What? Is there another way to understand Rav Huna? Yes: not that we leave the matter in its prior status, but I don’t know, whoever is stronger prevails, or they divide it, I don’t know—something else. Clearly I cannot take this money and give it to the plaintiff; there are two witnesses against two witnesses. But I’m not leaving it in its prior status; the presumption is canceled. But… “the presumption is canceled” means the presumption of validity, not the monetary presumption. What difference does that make? Yes, but now in the end the judges are coming to adjudicate something involving money, so in the end they will either extract money from someone or they won’t. So they will neither extract nor refrain from extracting; this money will remain money in doubt. But that does not mean we leave it in its prior status. To leave it in its prior status is to rule that the money belongs to the defendant. And here the claim is no—we withdraw. I don’t know; it’s doubtful; we have nothing to say about it. In practice, if you withdraw, then you leave it in the possession of the one holding it—that’s the same thing. No! The other person can, for example, take it by force. A person may enforce his own claim; he can attack and take it. That can always happen even when judges rule, so what difference does it make? No—when judges rule, they stop him, but here he is allowed to do it. So there is, I’m saying, either they divide it, or there are all sorts of rules, discretion of the judges—there are various rules telling us what to do when we are in doubt regarding money. But still the claim is that what applies here are the rules of doubt. The prior presumption is erased when there are two against two according to Rashi and the Rif. What do we do today in cases like these? After all, today they don’t allow him to attack and take. Who says? According to Jewish law it may be that they do. According to Jewish law yes, but I’m saying okay, what about today in the civil courts? I assume in civil courts they do not allow it. I don’t know; I’m not a jurist. Maybe one should understand Rashi this way: that it is the presumption of the witnesses’ validity that is undermined. But why do we have to understand it as the monetary presumption? Rashi speaks about the judge, who is not one of the two sets of witnesses. What? Rashi is speaking about the judge—Rashi in our passage in Ketubot—he speaks about a judge who is not one of the two sets of witnesses. One set of witnesses comes and says that this judge is a robber, another set says that this judge is not a robber; this is exactly the case here. Now the question is what do we do with the judge, not with the sets of witnesses. Do we uphold him in his prior status? He has a presumption of validity. So Rashi says no, because there are two against two about him. According to this, in the case of Rav Huna and Rav Chisda, apart from the question of what we say about the sets of witnesses, what do we say about the case over which they are disputing? Do we leave it in its prior status or not? According to Rashi, apparently not. The Ritva here says that we do. Okay? And so the Ritva continues and says: “They only disagreed when each one separately testifies in unrelated cases. Rav Huna holds that since we do not know which of them is the lying one, we establish each one in its presumption of validity. And Rav Chisda said: what do I need with false witnesses?”

Now, an important point—notice this. The Ritva says “they only disagreed”—he is continuing what he said earlier. I feel—again, it is not explicit in his words but it is implied—that he sees this as the same question. After all, what does Rav Huna claim? That each one remains in its prior status, right? So the Ritva says: if so, then also in the case over which they are disputing, we should leave it in its prior status when there are two against two. That is what he said above, against Rashi. He is basically saying: that is exactly what Rav Huna is saying—that even when there are two against two, each set remains in its prior status. So that means there are prior presumptions in a situation of two against two. And therefore also with regard to the case over which they are disputing, there too we will leave it in its prior status. It seems to me from this continuation—that this sentence comes right after the previous sentence—it seems to me that the Ritva connects the two things. He is saying: after all, Rav Huna’s whole novelty is that despite the fact that there are two against two here, each set remains in its prior status. So also the judge over whom the two sets are disputing should remain in his prior status. Okay? That is Rav Huna. And Rav Chisda may say not. Now on that I’ll note what I said earlier: there is nothing to learn from one to the other; they are not similar; these are two different questions. The question whether we leave each set in its prior status is something said in the context of loops or anti-paradoxes. The question whether the judge over whom we are disputing is left in his prior status is a question of what to do in a conflict. It is not the same question. But in the Ritva it is very strongly implied that he thinks it is the same question. By the way, just like Tosafot in our passage. Tosafot in our passage too asks from Rav Huna against Rashi, right? What does Rav Huna have to do with it? Here we are talking about the case of what the status of the judge is, not what the status of the witnesses is. What does that have to do with Rav Huna? In other words, Tosafot connects the discussion of Rav Huna and Rav Chisda about the witnesses to the discussion about the case regarding which they are disputing. And apparently—at least that is also implied by the Ritva here. And Rashi, of course, is not bothered by this. Rashi will say: what? Rav Huna would also agree that with respect to… with respect to the case itself, the prior presumption has been erased, and we go according to the laws of doubt. We do not leave the money in its prior status. Maybe they divide it; I don’t know what they would do. So therefore the Ritva here apparently joins the Ba’al HaMaor, that is one point. Second, he apparently sees these two adjudications as one adjudication. Meaning Rav Huna and Rav Chisda, according to the Ritva, would also dispute in the dispute between Rashi and the Ba’al HaMaor. Because Rav Huna and Rav Chisda, who dispute whether to leave these sets in their prior status or not, that is the same dispute as in our case: when there are two against two, do we leave the matter in its prior status or not. Even though, as I said earlier, these are really two different discussions. And that is likely what Rashi would answer. Rashi would say: these are two different discussions; why are you connecting one to the other?

And this wording—let me keep reading the Ritva—“implies that Rav Chisda said it as a matter of stringency, to eliminate false testimony from the world.” Yes, why does Rav Chisda disqualify both sets? After all, each one has a presumption of validity, right? So why does Rav Chisda disqualify each of the two sets? He says: this is in order to eliminate false testimony from the world, since we know for certain that one of them is lying, why should we accept any testimony from them? It won’t pay for them to lie, because then for sure we won’t accept the testimony. No, I didn’t understand. It won’t pay for the set that comes to say—to the second set it won’t pay, because according to Rav Chisda for sure neither they nor the first set will be accepted. But on the other hand, it actually does pay for them, because it disqualifies the first set? There is no point in coming to engage in some improper process. What Yael is saying, essentially, is that Rav Chisda is saying some rabbinic principle here. There are later authorities who learn the Ritva this way. He is not disqualifying their presumption; he is enacting a measure that we should not relate to them. Right, this is basically some rabbinic enactment meant to prevent people from giving—to avoid giving people a motivation to testify falsely. They tell them: look, if you testify here and collide with the first set, you too will lose your presumption of validity. It’s not worth it for you. So one of the two sets, the one that is lying, will be deterred because it will pay a personal price for that lie. And therefore there is some desire to stop them, to prevent false testimony, to eliminate false testimony from the world, and it sounds like some rabbinic enactment.

From the medieval authorities (Rishonim), in general, it comes out quite clearly that the ruling of Rav Chisda is a Torah-level rule, and I’m not sure that even in the Ritva one can’t say that too. Because the Ritva may actually mean something else entirely. What the Ritva is really saying may be that when—what shall we do? You, Rav Huna, are proposing that we leave each of the two sets in its prior status. Then clearly we have validated a lying set, right? We don’t know which one, but clearly we have validated here one set that is lying. And therefore with our own hands we have caused future false testimonies—or testimonies of false sets—to be accepted. And in order to prevent that, Rav Chisda says we do not leave them in a presumption of validity. That is a Torah-level rule, not a rabbinic enactment meant to deter false testimony, but rather one that comes to prevent future lies; it comes to prevent false judicial rulings. Or essentially what Rav Chisda claims is that where leaving two sets in their prior status creates a self-contradiction, because if you leave these in their prior status, then by that very act you said that those spoke falsely—so how can you also leave them in their prior status? You cannot issue a ruling that, whichever way you look at it, is false. We leave something in its prior status—say I am in doubt whether the woman was divorced or not divorced. So maybe she was and maybe she wasn’t. Since until now she had the presumption of being betrothed, she had the presumption of being a married woman, I leave her in that prior status. So I follow the prior presumption where my ruling is not manifestly false. It might be false, it might not be false, but it is not manifestly false. So I need to choose a side, and so I say I go by the prior presumption. But here, says Rav Chisda, here it is clearly manifest that you have issued a false ruling. Because one of the sets you have validated, even though it is clear that it is lying. Rav Chisda says: in such a situation one does not go by prior presumption. So in the case of Rav Chisda it won’t be possible for each set to come separately? What? I didn’t understand. In the case of Rav Chisda, it won’t be possible for each set to come later by itself? That is what is written in the Talmud. The Ritva is only explaining—right, right, the Ritva—this is what is written in the Talmud. The Ritva is only explaining why. The question is whether what the Ritva explains… whether what the Ritva explains is a rabbinic rule or whether the Ritva is actually saying no, no—when it is clear that my ruling is a false ruling, then I do not go by presumptions. I go by presumptions where there is a concern it might be false. I don’t know—maybe yes, maybe no—so I say fine, I go by the prior presumption; I don’t know. But where one might even call it a degradation of the court—anyone who looks at the court’s ruling will understand that the court has issued a false ruling from its own hand—then they say to the court: do not issue such a ruling. That is basically what Rav Chisda is saying. Okay, and then it could be that this is a Torah-level rule, not a rabbinic rule. The question is what he means when he says “to eliminate false testimony from the world.” Does he mean what Yael said earlier—to deter false witnesses, not to give them motivation to come and lie—or to prevent future false testimonies from being accepted? That is what he means. And then it could be Torah-level.

We will see other halakhic decisors. Rav Huna—yes—the Jewish law follows Rav Huna. Look, for example, at Rashi. They remain in their prior status—for other testimonies, of course. Yes, Rashi too basically says something very similar, only more briefly: “This one comes by itself and testifies in another testimony, and so does that one. Even though one of them is disqualified, you cannot disqualify either this one or that one, since you do not know which of them is disqualified. But one from this set and one from that set are not believed in one testimony, because whichever way you look at it, one of them is disqualified. And that is why he used this wording: ‘comes by itself and testifies.’” Therefore Rav Huna says: this one comes by itself and testifies—but not that you can combine a witness from this one with a witness from that one. What the Ritva said, only more briefly.

Now look here at Tosafot in Sanhedrin… Tosafot in Shevuot. Tosafot in Shevuot asks as follows—I didn’t direct you to this Tosafot because you have to enter another topic, so I’ll explain it here. The Talmud in Bava Kamma 72a and elsewhere brings a dispute between Abaye and Rava regarding conspiring witnesses. Yes, if two witnesses come and testify that Reuven murdered, and then two other witnesses come and say: on that date you were with us; you could not possibly have seen it—then the first witnesses are considered witnesses who were shown to be conspiring. Right? Their testimony is nullified. Not only is the testimony nullified, but they themselves are declared liars, they lose their presumption of validity, and from now on their testimony can no longer be accepted. The question is: from when? From the time they were exposed, or from the time they testified? They came and testified on Sunday that Reuven murdered. On Tuesday two other witnesses came and said: on the day of the murder you were with us the whole time; you are liars. So from when are the first ones disqualified—from Sunday or from Tuesday? On Sunday they already said the lie; we just did not yet know it was a lie. But today we already know that on Sunday they lied. Right? So already on Sunday it turns out that they lied. But the clarification itself took place on Tuesday. So there is a dispute. And the dispute is whether a conspiring witness is disqualified only from that point on—from Tuesday—or retroactively, from Sunday. Clear?

So there the Talmud says that Rava says it is only from Tuesday that they are disqualified, which is strange, because after the testimony on Tuesday you already know they lied on Sunday. Tuesday is when it became clarified, but when did they utter the lie? They uttered the lie on Sunday when they testified to it. Right? So why are they disqualified only on Tuesday? So Rava says that a conspiring witness is a novelty, because what basis do you have for relying on these rather than relying on those? In other words, a conspiring witness is a novelty, and therefore you have only the extent of its novelty, because in the end this is just two witnesses against two witnesses. So it is a novelty—why do you accept the second pair and disqualify the first? Since the Torah… Why is that a novelty? That you accept the second pair and disqualify the first. So if that is… Is that a halakhic novelty, or… No, it is a novelty of the Torah. The Torah itself says that conspiring witnesses are disqualified. But Rava says: this is a novelty. In principle, without the Torah, perhaps I would not have said this. And since so, I narrow it as much as possible, and therefore the disqualification begins only on Tuesday and not on Sunday. Let’s leave that for now because it doesn’t concern us—why does it matter that if something is a novelty we narrow it as much as possible? I don’t know. It’s always like that: if someone says something novel, we narrow it as much as possible, because otherwise we would not have said it had there not been a verse. So I narrow it: where I must say it, I’ll say it; but if it doesn’t make sense, why should I say it in a place where I do not have to? I narrow it. “Novelty” means that the Torah—forbid the thought—didn’t think of it, but the Torah said it, so we have no choice. Right, and therefore we limit it only to the place where we are compelled to do so. Everywhere else we remain with our own reasoning. Okay, but it isn’t important—not to get into it here. This is a very problematic statement, but let’s not get into it here; this is just the infrastructure.

Now Tosafot asks on that Talmud: on the contrary, the fact that we validate the second set is the novelty, because in ordinary contradiction both are disqualified according to Rav Chisda. Why do you say the novelty is that you disqualify the first testimony? The novelty is that you validate the second; you should have disqualified both. Because according to Rav Chisda both would be disqualified were it not for this Torah rule. So what would that have been? A simple contradiction, right? And what happens in contradiction according to Rav Chisda? Both are disqualified. So what is the novelty? That the first is disqualified? Even without the Torah that would have been disqualified. The novelty is that the second is validated, not that the first is disqualified. That is what Tosafot asks on the Talmud. Clear? He asks this? Yes. The Talmud says it is a novelty that the first set is disqualified. Tosafot asks: what are you talking about? According to Rav Chisda, the novelty is that the second is validated, not that the first is disqualified. Both should have been disqualified—according to Rav Chisda, I mean. Okay? So it is clear that they understand Rav Chisda as a Torah-level rule. If it were not a Torah-level rule, then what? What would this have to do with anything? On the Torah level even Rav Chisda agrees that both sets of witnesses are valid. And the Torah introduced the novelty that the first is disqualified. So what are you asking from Rava, who says this is a novelty? On the Torah plane it is a novelty. After that, rabbinically, fine, they disqualified both sets. But that is irrelevant. We are discussing here on the Torah plane whether the Torah introduced some novelty or did not introduce one. It is obvious in Tosafot that Tosafot understood the ruling of Rav Chisda as a Torah-level rule; it is not a rabbinic rule. Right? Are you with me? Or is there amazing silence. Again? We are, yes yes, okay. Okay.

So basically—so what? So what is the explanation if it is Torah-level and not rabbinic? So I say: it could be that even in the Ritva one could explain the same thing he said above. Namely, that in a place where there is self-contradiction, one does not go by prior presumption. You cannot establish two people in their presumptive status when the presumption of one contradicts the presumption of the other. We follow prior presumption when I have doubt. I don’t know what the truth is, so I say fine, let’s follow the presumption and take the risk that perhaps I have ruled incorrectly. But where this is not a risk but certainty that I have ruled incorrectly with respect to at least one of the sets, there I do not go by presumptions. Okay? Where there is self-contradiction, one does not go by prior presumption. Yes. Let’s move for a second to the practical implication. Okay. And this is connected to its being Torah-level—that in such a case we do not follow… Yes, it is Torah-level. That in such a case we do not go by prior presumption. Maybe if it were rabbinic they would decide differently, let’s say. Fine, but I’m talking about the Torah level right now. Yes, yes. So why does Rashi validate them? What do you mean? No, Rashi does not validate—sorry, Rashi disqualifies them completely. No, it’s not Rashi. There is Rav Huna and Rav Chisda. Rav Huna validates and Rav Chisda disqualifies. That’s in the Talmud. The question is only how to understand the opinions of Rav Huna and Rav Chisda. Did Rav Chisda state here a rabbinic rule or a Torah-level rule? So I’m saying that most of the medieval authorities (Rishonim) understood it as Torah-level. In the Ritva there are some who want to claim it is rabbinic, but I also think that even in the Ritva that is not necessary. And really, why does it matter whether it is rabbinic or Torah-level, again? Well, to know. For example, if there is doubt then I might go leniently and validate them. If Rav Chisda is Torah-level, how can the halakhah follow Rav Huna? What difference does it make? Rav Huna too is Torah-level. Rav Huna claims that on the Torah level one follows prior presumption even in self-contradiction. Rav Chisda says that on the Torah level one does not go by prior presumption in self-contradiction.

Now let’s see an implication. Is there not a difference, though, between the case of conspiring witnesses and the case of two witnesses who contradict the same event? Because if I… conspiring witnesses come and testify about the first witnesses. Okay. And basically the fact that they testify about the first witnesses means that the first witnesses are in turn testifying that they are liars. Obviously. After all, if you are saying something untrue about us, then you lied. And not only that—they are even coming to get them killed with that lie. Because “you shall do to them as they conspired,” so by their lights this is really false testimony meant to kill an innocent person. But still, the testimony of Rav Huna and Rav Chisda is not the case of conspiring witnesses. No, no. But the question is: what is the novelty of conspiring witnesses? Meaning, if the Torah had not introduced the novelty that conspiring testimony is different from contradiction, and we would have thought that this is just ordinary contradiction, what would the law have been? It would depend on Rav Huna and Rav Chisda, right? The Torah introduced the novelty that disproof by proving the witnesses elsewhere is different. But the question is what would happen without the Torah’s novelty. What would happen without the Torah’s novelty is the dispute of Rav Huna and Rav Chisda. So the Torah’s novelty is that when I testify about the witnesses that “they were with us” and not about the case, that is more severe? Exactly. That is “hazama,” and it leaves the category of simple contradiction. Without this novelty I would say… Contradiction means to say that there was no murder. We were there and there was no murder. Against the testimony. We were there and there was no murder. But there was someone who was murdered—what does “we were there and there was no murder” mean? No, no—they buried the body, nobody knows, nobody was murdered—I don’t know whether there was a murder or not. They say yes and I say no. Or there was a loan or there wasn’t a loan, it doesn’t matter. Or he struck or didn’t strike—maybe someone else murdered. Right, that too is possible. So if someone else murdered, that is already testimony about another person. It doesn’t matter—they contradict the testimony. But the first accused did not murder. You came and testified that he did murder; not true—someone else murdered. That is contradiction. So contradiction regarding the first testimony in the legal case, so to speak? That is contradiction. First of all it is contradiction regarding the case of the first murderer, the first defendant. These say that he murdered, and those say that he did not murder but someone else did. But with regard to him, we say: he did not murder.

So let’s continue for a moment. If I really understand the Ritva this way, like Tosafot—that basically where there is self-contradiction one does not go by prior presumption—do you think there is a connection between our topic and the topic in Shevuot, or between the discussion about the case over which they are disputing and the discussion about the status of the witnesses themselves? Maybe there is, because if there is… We saw in the Ritva that apparently there is a connection, right? The Ritva says: whatever you say about the witnesses—whether we uphold them in their prior presumption or not—that is probably also what you will say about the case. But if that is the explanation, then it is not true. Because think: suppose there are two witnesses who say “Reuven murdered,” okay? And two witnesses who say “Reuven did not murder.” Okay? Should we leave… or regarding Reuven, who is now a judge, right? Not about the murder trial. They say he murdered and therefore he is disqualified from judging, and the other says he did not murder and therefore he is fit to judge. So do we leave him in his prior status or not? The Ritva wanted to say that according to Rav Chisda, who does not leave the sets of witnesses in their prior status, probably we also would not leave the judge in his prior status, right? He connected the two discussions. But if the explanation is that in self-contradiction we do not go by prior presumption, here this is not self-contradiction. Right. Because leaving this judge in his prior status is not a ruling that is necessarily false. Right? Because it may indeed be that he did not murder, and it may be that he did murder, depending on which set of witnesses is right. But here there is no self-contradiction. It is not that I have now necessarily ruled something wrong. That is not the same thing as validating both sets of witnesses, where it is clear that I have done something wrong. Here I take a judge about whom I do not know whether he is disqualified or not disqualified, and I validate him. This is the classic case of prior presumption. Why not leave him in his prior status? Do you understand the difference? But according to Rav Huna—according to Rav Huna, isn’t that a fortiori? If Rav Huna validates there, all the more so he should validate in our case. נכון, according to Rav Huna it may indeed be a fortiori. Because even in self-contradiction one goes by prior presumption, so it could be that there too one goes by prior presumption. Even though there is still a difference—that there it is a clash and here it is a loop—but if we ignore that then yes. But with Rav Chisda, if the explanation—and I quoted this from the Ritva above—if the explanation is that in self-contradiction one does not go by prior presumption, then with respect to the judge that is irrelevant. There Rav Chisda too may agree that we leave him in his prior status, because there is no self-contradiction there. Right?

Now before I… there is another explanation of Rav Chisda’s view, and this is the explanation of the Rashbam in Bava Batra, which is brought in Kovetz Shiurim. I directed you to that Kovetz Shiurim. In Kovetz Shiurim he says this: “Regarding the reason of Rav Chisda that we do not establish them in a presumption of validity”—meaning we do not leave the two sets of witnesses in a presumption of validity—“the Rashbam explained that it is because he follows the presumption of monetary possession; and this means that presumption does not help to extract money.” There are two presumptions here—one presumption against another. What? So how does the Rashbam explain Rav Chisda? That there are two… that we are dealing with two presumptions and one kind of presumption prevails. Presumption of validity and presumption of monetary possession, or presumption of validity… Right. In other words, when a set of witnesses comes whose status is doubtful, and now it testifies in another case in order to extract money, then essentially you want, by means of testimony that is doubtful, to extract money from someone who possesses it. That one does not do, says Rav Chisda. Clear? Because the presumption of validity of this set—especially since this presumption of validity is already undermined because it contradicts the presumption of validity of the second set—cannot overcome the presumption of monetary possession, and therefore one does not extract money on the basis of such a doubtful set. That is how the Rashbam explains the opinion of Rav Chisda. This is not the same explanation as the one I brought earlier.

Let’s keep reading the Kovetz Shiurim. Wait, but the presumption of validity—this is exactly always, say, that the first set of witnesses has a presumption of validity, otherwise there is no point in coming to testify at all. Meaning if there is no presumption of validity, then how can the monetary presumption—not… but they were contradicted—override the presumption of validity? Two witnesses come and testify that Reuven owes Shimon one hundred. Okay? Now these witnesses are doubtful witnesses. After all, “by the testimony of two witnesses a matter is established,” and these are doubtful witnesses. That is exactly what I explained when we read Rav Chisda: “What do I need with false witnesses?” The whole idea of witnesses is that it is beyond doubt. Where there is doubt about the testimony of the witnesses, what good is it that I have two witnesses? The whole idea of witnesses is that it is not a migo, it is not a presumption—it is something certain. Once you have doubt, it is not witnesses. “What do I need with false witnesses?” If these witnesses are liars, then why do I need witnesses? In what sense are they witnesses? They are not witnesses. Okay, so now he says, fine, and they have a presumption of validity. Very nice—but that is only a presumption, it is not witnesses. Do you want to say you have two witnesses here who can extract money? “By the testimony of two witnesses a matter is established.” Here what extracts the money is a presumption, not witnesses. And that is not enough, says Rav Chisda. Clear? I understand—if they have a presumption of validity, then why are they not witnesses? Because the power of a chain is like the power of its weakest link. Now if these witnesses, all their credibility is based on their presumption of validity, not on testimony, then this is not evidence with the force of testimony. It is evidence with the force of presumption, right? Because after all you do not have testimony here. In testimony there is doubt whether it is true or not. Why do you want to believe it anyway? Because there is a presumption. Which means the force of the evidence here is presumption. Because what grounds it is presumption. If witnesses are based on a migo, okay? That validates them—do we have witnesses here or do we have a migo? A migo. A migo, because the weakest link determines the strength of the chain. I don’t care that this weak link is holding a strong link. Try to tear the chain—what will determine the outcome is the strength of the weakest link. Therefore Rav Chisda says: one cannot extract money with presumptions. With witnesses one can. The Merciful One—wait, oh sorry, the phone.

What—but isn’t this unlike what we said earlier? According to the Rashbam, then, even according to Rav Chisda we do follow the presumption of monetary possession? What? Even according to Rav Chisda? No, the Rashbam is explaining Rav Chisda. He prevails, basically. The Rashbam explains Rav Chisda. He says: according to Rav Chisda, why does Rav Chisda not believe the two sets of witnesses in future testimonies? Because he is not willing for a doubtful set of witnesses to extract money. That is the explanation of Rav Chisda’s view. In testimony, yes, there is something of presumption here—where? There are, so to speak, two levels in presumption. Why two levels? Because the presumption of monetary possession is, so to speak, stronger than the presumption of validity, which is anyway a default-level presumption. Yes. The Torah already says this. The Torah says: “by the testimony of two witnesses a matter is established.” Money is taken from its possessor only with witnesses. Rav Chisda’s claim is that these are not witnesses; this is presumption. One cannot extract money. Clear? Got it.

I want—can I ask regarding the Ritva why there is no self-contradiction here? One at a time, one at a time. Idit. I just want to sharpen this: it’s not “why is there no two-against-two self-contradiction”? What do you mean? If I have testimony about this judge that he is a robber and opposite testimony that he is not a robber—is that not a conflict? No. In a moment—you’re talking about the continuation of the Kovetz Shiurim; we’ll get there and I’ll explain. But first let’s understand the Rashbam. Is the Rashbam’s explanation clear? Yes, I just want to sharpen that it’s not that there are two levels colliding, like two presumptions colliding at the same level, but rather that the presumption of validity strips the witnesses of the status of testimony or of witnesshood. It’s not the same thing as saying that presumption is less solid than monetary possession. It is the same thing. Because once they lose their status as witnesses, what remains here? Presumption. They are not witnesses. So what is the force of the evidence? The force of presumption. So why does that presumption not extract money? Because that presumption does not overcome the presumption of monetary possession. Testimony does overcome the presumption of monetary possession. This is like the other side of the same point. “By the testimony of two witnesses a matter is established”—only testimony overrides the presumption of monetary possession. Clear? So that is the Rashbam’s explanation.

Now I claim that this explanation is not the same as the explanation I brought earlier from Tosafot and the Ritva, and he brings it in the name of the Ri Migash. I continue reading in Kovetz Shiurim: “And the Ri Migash in Shevuot explained: because whichever way you look at it, one set is disqualified, and this is a case of self-contradiction.” What does he mean? One does not uphold a prior presumption where that creates self-contradiction. He does not mean merely that this is two against two; rather he means that you want to leave both sets each in its prior status, and by doing that you have done something self-contradictory, because in one of the two cases you have certainly done something false. So there, one does not go by prior presumption in a situation where it is clearly false. Clear? And that’s what the Ritva said? Is that the same thing? That is what I presented earlier as the explanation of the Ritva and Tosafot. So the Ri Migash says that, and the Rashbam offers another explanation.

“And the practical difference between the two explanations,” says the Kovetz Shiurim, “is where there are two against two regarding one person who is disqualified from testimony—two witnesses say he is a robber and disqualified from testimony,” exactly the case in our topic, right? “And two witnesses come and say that he is not disqualified from testimony. So he says as follows: according to the Rashbam’s explanation, in this case too we say one may not extract money under doubt according to Rav Chisda.” What would Rav Chisda say in such a case? After all, I have doubt regarding this person, right? Now he serves as a witness and testifies that Reuven owes money to Shimon. Impossible—this is not testimony; there is doubt here. Something about which there is doubt is not testimony; one cannot extract money. Right? So just as Rav Chisda disqualifies the sets of witnesses, Rav Chisda will also disqualify the judge over whom the witnesses are disputing. And here is the connection between the topics. But that is all according to the Rashbam.

But according to the Ri Migash—“according to the explanation of the Ri Migash, in this case Rav Chisda admits, because here there is no self-contradiction.” What is he saying? According to the Ri Migash, that is not correct. Because the only reason we do not leave the sets in their prior status is because leaving both sets in their prior status means performing two acts that contradict one another. But if there is a dispute about the judge, or about the witness, whether he is disqualified or not disqualified, there is no self-contradiction here. I leave him in his prior status and I have not done something that is manifestly false, right? Maybe yes, maybe no—but not manifestly. So here there is no self-contradiction. Therefore here Rav Chisda can agree that we leave the judge in his prior status, like the Ba’al HaMaor basically, right? In our case. Here is the disconnect between the two topics. Or in other words: one who learns Rav Chisda according to the Rashbam connects the two topics to one another; one who learns like the Ri Migash does not connect them to one another. Clear? That is basically the difference. Can you explain again the difference between the Rashbam and the Ri Migash? The Rashbam claims that a doubtful witness is not a witness. Therefore when you take one of these two sets and it comes to testify in another case, you cannot extract money based on them, because they are doubtful witnesses, and doubtful witnesses are not witnesses. Okay? That is the Rashbam. If so, then also regarding a witness about whom the two sets are disputing—two witnesses say he is a robber, two witnesses say he is not a robber—and now he comes and testifies in another case. Can one extract money based on him? Can one leave him in his presumption of validity and extract money based on him? According to the Rashbam, no, because he is a doubtful witness; one cannot extract money on the basis of a doubtful witness.

But according to the Ri Migash, that is not true. Because according to the Ri Migash, why does Rav Chisda say regarding the sets of witnesses that one does not leave them in their prior status? Because to leave each one in its prior status is self-contradictory. Let’s say one of them dies, for example, and then there would be no need to leave it in its prior status regarding future testimony—it died. It may be that according to the Ri Migash Rav Chisda would admit that the other one could indeed be left in its prior status. He has no problem with their being doubtful witnesses. His problem is that you are performing two acts that contradict one another—you are making a mockery of the court. It cannot be that you validate both these and those, because one of them is certainly disqualified. So in such a case one does not leave something in its prior status. But according to this, that does not apply in the case of the judge, for example, in our passage, or the case of a witness. If there are two witnesses who say that this judge or witness is disqualified, and two other witnesses say he is valid, and now this witness comes and testifies in another case that money is owed—there is no problem. Why? Because leaving this witness in his prior status is not self-contradictory. There is doubt about him; you leave him in his prior status; you have not done something that is manifestly false. So there is no reason not to leave him in his prior status here according to the Ri Migash. Clear? It is important to me that you understand this; it is an important point because it will come back to us later as well.

Okay. Another practical difference: what happens according to the Rashbam now in the opposite direction—what happens if one of the two sets of witnesses comes and testifies in favor of someone, helping him retain the money, not extract the money from him? To retain money—yes, that one can. To retain money you do not need witnesses; on the contrary. To extract money you need witnesses. To retain money, any evidence can be good. But the case is not so clear—what is the court discussing? No, there are cases where even though you are in possession, you still need to bring proof in your favor. For example, when you admit part of the claim. There is suspicion that you also owe the rest, yet you still possess it. Or when there is one witness against you. So that you guarded your animal properly. What? If you guarded your animal properly. That drags us into other minefields, yes. But I’m saying at the conceptual level there are cases where the witnesses come to support retention, not extraction. And for retention, it could be that these witnesses would suffice even according to Rav Chisda. So that is a practical difference in which the Rashbam will be lenient. Because the Ri Migash would not agree even in such a situation. Here the Ri Migash would actually be stricter, because it is self-contradiction. I do not care whether it is to extract or to retain. You cannot validate both sets of witnesses whether they come to extract or come to retain. It is self-contradiction; one does not create self-contradiction. And from here, a practical implication for these witnesses. Yes, exactly. And therefore I am saying: I am preparing the ground for our discussion in our passage.

Now I want for a moment to return to the Sma and Rabbi Akiva Eiger. There is a very interesting discussion, a dispute between the Sma and Rabbi Akiva Eiger on the question of what happens if the two sets of witnesses come together—according to Rav Huna now, I’m returning to Rav Huna—and testify about another case. All four witnesses come, and they testify that Reuven owes Shimon one hundred in another case, say after a year. What do you say? What do you mean? Why? He cannot accept them, because clearly two of them are liars. Wait, one at a time, Ruti. If they come together, then the implication between them is that both are disqualified. So what? We still have two who are telling the truth as well. So what? If there is a disqualification in testimony, then everything is uprooted. Ah—so you are saying: one of them is found to be a relative or otherwise disqualified, and therefore all their testimony is void. Do you know that rule? When there are two witnesses, or three, or five—if one of them is disqualified, he disqualifies all of them. That is the rule: if one of them is found to be a relative or otherwise disqualified, their testimony is void. Okay, so apparently if these two sets of witnesses come together to testify in the future, even Rav Huna will agree that we do not accept their testimony, even though each one separately is accepted. Because that is what he says: “this one comes separately and testifies”—but if they come together, not only one from this one and one from that one—even two from this one and two from that one also will not work. So why do the Ritva and Rashi in the passage in Shevuot say that if one comes from this and one from that they are disqualified? Generally, if the two sets come together they are also disqualified, no? Why do they need to create such a construction where one is from this set and one is from that set? Maybe because at least one—then at least one, so why does that matter? Maybe, maybe. But the claim of Rabbi Akiva Eiger is no. Rabbi Akiva Eiger claims that if the two sets come together we will accept their testimony, because although two of them are liars, we are still left with two other witnesses whose words are true, and there is no rule here of “one is found to be a relative or otherwise disqualified.” That is what Rabbi Akiva Eiger claims. Why is that rule not applicable? In a second, in a second, I’ll explain.

According to Rav Huna, why should there be such a rule? Because one of them are liars. Yes, but according to Rav Huna he does not disqualify; he leaves each pair in its prior status. Fine, but whichever way you look at it one of them is certainly lying. Each one separately you leave in its prior status. We said perhaps that because he lied the previous time, that still does not mean he lied here. No—the assumption is that if he lied then he is disqualified. No, but since we validated them as witnesses, what can you do? But there is something you can do. In this case, where whichever way you look at it you should disqualify—why say “what can you do”? There is something to do. We validated them when they come—what is the meaning of the fact that we validated them? “When it comes separately and testifies”—that is what Rav Huna says. Each set that comes separately is valid. On the contrary, this is even exact in his wording: “when it comes separately,” implying not when both come together. Okay? But Rabbi Akiva Eiger says no; he derives this from Tosafot in Sanhedrin. First of all—where exactly does he see in the Sma that the Sma does not say this? So look, the Sma in subsection 2, which he cites, writes as follows: “There is no testimony”—when there is one witness from this set and one witness from that set, the Shulchan Arukh says: “There is no testimony here.” The Sma says: “Even though one of them is valid”—after all, one of the two is indeed valid—“he need not take a Torah oath against him,” as the Rashba wrote in a responsum, cited by the Beit Yosef and the Darkhei Moshe, etc. “Nevertheless, the one who swears must take a rabbinic oath of inducement.” What is he saying? Apparently there is here—say one witness from this set joined with one witness from that set. You cannot extract the money; you do not have two witnesses. But you do have one witness, so why is he not obligated to swear? So maybe indeed he should be. So the Sma says no, he is not obligated to swear. Why not? Rabbi Akiva Eiger understands: because there is a rule of “one found to be a relative or otherwise disqualified,” where if one of them is disqualified he also disqualifies the other one. So I have zero witnesses, not one. Right? Suppose there are two witnesses, not in a two-against-two situation, just two witnesses, and one of them turns out to be a robber. Am I obligated to swear? They testified against me. The answer is no, because there is not even one witness against me, since the disqualified witness disqualified the valid witness alongside him. Okay? That is what the Sma says here. And thus Rabbi Akiva Eiger infers from the Sma that the Sma really understands that the rule of “one found to be a relative or otherwise disqualified” applies here.

This is Rabbi Akiva Eiger’s response: “This one comes by itself”—it appears at its side—and if afterwards the two sets testify together regarding some matter, according to the Sma subsection 2 it appears that this falls under the rule of ‘one of them was found to be a relative or otherwise disqualified.’” That is what he inferred from the Sma above. The Sma spoke about a case where one witness is from this set and one from that set. But he says that according to the Sma even two from this and two from that do not combine, because the disqualified ones invalidate them.

Rabbi Akiva Eiger says: “But Tosafot in Sanhedrin”—he means Tosafot in Sanhedrin 31—“wrote in one answer that this is not like the rule ‘one of them found to be a relative or otherwise disqualified,’ since the disqualification is not determined and known.” The rule of “one of them found to be a relative or otherwise disqualified” applies only when the witness has been formally declared a disqualified witness, ruled upon in court and declared disqualified. Then he disqualifies the valid witnesses at his side, together with him. But if you know he lied, yet he has not been formally declared a disqualified witness—and according to Rav Huna we leave them in their prior presumption—then there is no rule of “one found to be a relative or otherwise disqualified.” And then what would happen with one who joins with one, according to this? Then there would indeed be an oath obligation, right? Certainly there would not be two witnesses here, so we would not extract money, because one of them is disqualified, one of them spoke falsely—but there is one witness here, he has not been disqualified, and there will be an oath obligation here according to Rabbi Akiva Eiger.

So notice: all that the Talmud says according to Rav Huna—whose view the halakhah follows, I remind you—is “this one comes separately and testifies, and that one comes separately and testifies.” What does “separately” mean? Not together with the other. But if it comes together with the other, it is disqualified. Rabbi Akiva Eiger says no: if they come together, that is also valid. So why does it say “this one comes separately”? To teach that if one comes from this one and one from that one, then we do not extract the money. And there will still be an oath obligation. But then we do not extract the money. But if two from this side and two from that side come together, then yes: I have two valid witnesses, and there is no disqualification here. Can a rabbinic oath of inducement also be administered on the basis of one witness? No, a rabbinic oath of inducement has nothing to do with one witness; it is just on a complete denial. But if there are witnesses—after all, these are lying witnesses. No, it doesn’t matter, because they are saying the same testimony, so at least two of them are speaking truth. We impose the oath on the defendant. These two witnesses say that the defendant owes one hundred shekels; one of the two witnesses is telling the truth, so there is one witness against you—swear.

Now I move to Tosafot in our passage. I’m basically done with the topic in Shevuot, and now I move to Tosafot in our passage. And now you’ll understand that we are already equipped, right? After all, we saw that there was a discussion whether in the topic in Shevuot there is a connection between the topic in Shevuot, which deals with the validity of the sets of witnesses, and our topic, which deals with the validity of the judge over whom the dispute was conducted, not the witnesses. Okay? Tosafot assumes there is a connection, right? “The commentary explains”—Rashi explains—“and when they say ‘he did not rob,’ that is two against two, and he is not thereby validated.” Right? Rashi says one does not leave the judge in his prior status because there are two against two regarding him. “And this is difficult,” says Tosafot, “for here we are operating according to Rav Huna, who holds that ‘this one comes separately and testifies,’ so in a case like this we should have said to leave him in his prior status.” What is the difficulty? Why not validate the judge, if there is one set against the other and he has a presumption of validity? Tosafot is basically arguing like the Ba’al HaMaor, right? Against Rashi. Why do you not leave the judge in his prior status, even though there are two against two regarding him? There is nothing novel about that; the Ba’al HaMaor says the same. The novelty is in the proof. Tosafot brings a proof for the Ba’al HaMaor from Rav Huna in the passage in Shevuot. Why? Because he assumes what we read also in the Ritva. I said that in the Ritva I can smell it; in Tosafot it is explicit. Namely, that just as Rav Huna leaves the two sets in their prior status, so too he should leave the judge in his prior status. I asked: what connection is there? The judge is a conflict. The two sets are a question of anti-paradox, of a loop. What is the connection between what Rav Huna says there and the question what we do with the judge? That is exactly what Rashi would answer to Tosafot’s difficulty. Rashi says: leave me alone with Rav Huna; Rav Huna is irrelevant here. Rav Huna says that we leave the two sets in their prior status because he is talking about the anti-paradox. But here, in the conflict of two against two, we do not leave the judge in his prior status. What kind of difficulty is that? Tosafot learned like the Ritva. Tosafot thinks there is a connection between the topics, and Rashi will say there is no connection between the topics. Okay?

What would happen according to Rav Chisda? According to Rav Chisda, who does not leave things in their prior presumption, then it sounds from Tosafot that Rashi is fine here, right? He understands Rashi according to Rav Chisda. I claim that even according to Rav Chisda it is not certain that Tosafot could not still object. Why? Because what Rav Chisda says—that we do not leave the sets in their prior status—may be because that is self-contradictory, like the Ri Migash. But with regard to the judge, maybe even Rav Chisda would agree that we leave him in his prior status, right? Basically, if you disconnect the two cases, then you really cannot infer from that dispute to the case… Yes, but the disconnects are different. The disconnect in Rav Huna and the disconnect in Rav Chisda are two different disconnects. Therefore one who disconnects Rav Huna from our case does not necessarily disconnect Rav Chisda from our case, and vice versa. These are two different disputes. And in fact—I want to show you that now. Tosafot connected Rav Huna from there to here, right? Altogether we were talking there about the validity of witnesses… No, no—but the discussion is an entirely different discussion. Here, I’ll prove it to you. Tosafot brings Rav Huna from there to here, right? Meaning, if Rav Huna leaves the witnesses in their prior status, then here too he should have left the judge in his prior status. What should Tosafot have said accordingly with regard to Rav Chisda? Just as there we do not leave witnesses in their prior status, so here too we should not leave him in his prior status. According to Rav Chisda that would really be fine. And that indeed is what seems from Tosafot, right? When he asks against Rashi, he asks only because this is Rav Huna. If this were Rav Chisda, I would understand you, Rashi, right? I said: what are you talking about? According to the Ri Migash, even according to Rav Chisda I can object to Rashi. Because Rav Chisda only said that with witnesses one does not leave them in their prior status because that is self-contradictory. Right? Therefore in the case of the judge, for example, he might say that even Rav Chisda would leave him in his prior status. That’s what the Ri Migash says. What would the Ri Migash say about Rav Huna? Rav Huna leaves the witnesses in their prior status. Does it necessarily follow that he would also leave the judge in his prior status? Not at all, because that is a different category. It could be yes. Therefore there is no connection between the discussion of Rav Huna and the discussion of Rav Chisda. I understand, yes. Fine. Therefore I say that in Tosafot here it seems that he connects the topics both for Rav Huna and for Rav Chisda, which is a double novelty. Because he could have connected the topics for Rav Huna and not connected them for Rav Chisda, and vice versa. Right? But from Tosafot there seems to be a double novelty. According to his approach, both Rav Huna’s position is imported into our Talmudic passage, and Rav Chisda’s position is imported into our Talmudic passage. Because otherwise Tosafot would not have had to preface that here we are speaking according to Rav Huna; he could simply have attacked Rashi, because here Rav Chisda too challenges Rashi. Tosafot says: no, no—according to Rav Chisda I understand you, Rashi. But here after all we are speaking according to Rav Huna. Which means Tosafot connects the two topics both for Rav Huna and for Rav Chisda. Clear? Which, first, means that he learned like the Rashbam and not like the Ri Migash, right? And second, even regarding Rav Huna he connects the two topics, even though one could have said that one is a clash and the other an anti-paradox, and one should not connect those two things.

And Tosafot further says: “For Rav Chisda, who says ‘what do I need with false witnesses,’ would admit here that this man is automatically validated. For if one of these sets testifies about a person that he is disqualified, then according to Rav Chisda, who regards them as false witnesses, that testimony would not be believed, even though no one contradicts them. All the more so where there are witnesses who contradict them, they are certainly not believed.” What is he saying? Now he adds: even according to Rav Chisda I do not accept Rashi. Why? Think about one contradicted set of witnesses that goes and testifies about some individual judge that he is invalid. Not two against two—just one of the two sets of witnesses that had been contradicted in one case, and one of them testifies about a certain judge and says he is invalid. According to Rav Chisda, do we accept their testimony? No, we certainly don’t, right? Because after all they were contradicted. If they were contradicted, then we do not accept their testimony. Now Tosafot says: so in our case, two witnesses come and disqualify the judge. But according to Rav Chisda, even if there were no set standing against them, we still would not accept their testimony, right? And now there is also another set standing against them. So obviously we will not accept their testimony. Then the judge remains valid? Then it turns out the judge remains valid, right? He remains in his presumption. Why do we not accept their testimony? Because Rav Chisda does not leave them in a presumption of validity, right? So we do not accept their testimony. So what remains with the judge? He remains with his presumption of validity, because the witnesses disqualifying him are not accepted. Now in addition there are two more witnesses saying he is valid. You may or may not accept them, but that certainly doesn’t make things worse than the ordinary case. So the judge remains valid. That is what Tosafot says: the judge remains valid even according to Rav Chisda. But according to Tosafot, isn’t this the same move, only reversed in Rav Huna? That’s how I understood it. Tosafot basically challenges from Rav Huna not because with respect to the set of witnesses itself Rav Huna validates them. Why? Because there was one set of witnesses who lied and said the others were liars, and still he leaves them in their prior status. In our case they also have another set saying he is not a robber, so all the more so he should validate. That is Tosafot’s question, basically. No. Like—how does he start? “And furthermore, according to Rav Chisda, who says ‘what do I need with false witnesses’…” No, I’m asking about the first part. The first part—you are right—that is according to Rav Huna. But I’m talking now about the “and furthermore.” No, but then doesn’t it mean that basically he is doing something like the Ritva, namely that he is really connecting the topics? He is always talking about the case. Meaning—just as the judge is parallel to the set of witnesses. That is not a different kind of connection between the topics. Well, that is the connection—that is the same connection. If the judge is parallel to the set of witnesses, then you are saying it is the same topic. That the discussion about the person over whom the dispute concerns is like the discussion about the witnesses themselves. But only because he has an a fortiori argument, not because he is making some broader connection. Fine, but bottom line, it comes out that the two topics are connected. You cannot sever the ruling about the witnesses from the ruling about the case. No, I can. I’m simply turning the witnesses—in the case of Shevuot—into the case. Fine. In other words, what he says about the witnesses, he will say about the case. What he says about the case, he will say about the witnesses. Practically, you can’t sever the topics. No, I can think that Rav Huna would say like the Ritva regarding the money about which these witnesses testify—that Rav Huna… Why? And it would remain… I don’t know, whoever is stronger prevails or something like we said before. But regarding the witnesses, that is now a special rule. I now want to ask about the witnesses: are they valid or not? Not about the case. No, no. About the witnesses—that is the very dispute of Rav Huna and Rav Chisda. We are speaking about the case. Right. So now the case is between testimony about a judge and testimony about money. What is the difference? It is the same thing. What difference does it make whether I testify about a judge whether he is valid or not, or whether I testify about the money whether you owe it or not? If you disqualify the testimony… if you accept my testimony because I have a presumption of validity, then what is the problem? It’s the same thing. No, because Tosafot basically turns the witnesses in the case in Shevuot into the case. Fine. So bottom line, what he says is that there are not two topics. It does not matter whom he turns into what; but you cannot rule one way about the witnesses and another way about the case. Because the witnesses too are only a particular case of the case. So bottom line he is saying it is the same topic. Clear?

Good, we’ll stop here, because the continuation of Tosafot is really only… he proposes another explanation in the passage, and we’ll still get to it later. Next time I’ll begin with the passage in Yevamot. Here I only wanted to show you the implication, because the passage in Yevamot is the one that deals directly with the question: what is the status of the case when there are two against two about it. Okay? Thank you very much. All right. Thank you very much. Goodbye. Goodbye. Bye-bye.