Chapter "The Collector" – Lesson 16

Table of Contents

• Hiring false witnesses, indirect causation, and the Talmudic framing
• The prohibition on hiring false witnesses even when one is genuinely owed the money, and the monetary implications
• Tosafot: rejecting the reading of exemption in human law on the grounds that the court does not know
• Rabbi Akiva Eiger’s distinction between punishments and monetary obligations, and the role of a court ruling
• The meaning of “exempt in human law but liable in the law of Heaven” and its connection to indirect causation according to Meiri
• The obviousness of “there are no witnesses” and the difficulty with a reading that is not about indirect causation
• Pnei Yehoshua: a litigant’s admission, “the mouth that prohibited is the mouth that permitted,” and the prohibition of “distance yourself from falsehood”
• The dispute over “fruit of the poisonous tree”: the Shakh, Maharshal, and the case of forged documents and whispering in Bava Batra
• The principle that “we act only on valid testimony” and Tosafot in Gittin
• The limits of “a person may enforce his own rights,” and the discussion of offsetting and a denied debt
• The prohibition of falsehood in court, the plaintiff’s responsibility, and “do not place a stumbling block” / aiding
• Examples of the severity of damaging the process: conspiring witnesses and a judge’s question in capital cases
• Tosafot: the distinction between hiring and merely telling false witnesses
• The Sema and Rabbi Akiva Eiger: the meaning of “the words of the master and the words of the student” and its implications for hiring versus merely telling
• Conclusion and continuation: moving to the case of “one who knows testimony for his fellow and does not testify for him”

Summary

General Overview

The lecture examines the case of someone who hires false witnesses as an example of indirect causation, where one is exempt in human law but liable in the law of Heaven. It clarifies that the Talmud rejects the possibility that he hired them for his own benefit, because “the money would be collected from him,” meaning that if he extracted money for himself this would be a monetary claim against him and he would have to return it. The conclusion, then, is that we are dealing with someone who hired false witnesses for the benefit of his fellow. The lecture then returns to the question of what the law would be when the money really is owed to him but he has no witnesses. In the name of the Rosh, by way of Nimukei Yosef, and also as Jewish law in Beit Yosef and Rema, it is brought that it is forbidden to hire false witnesses even if, on the face of it, the money itself could be considered his. The lecture goes on to discuss the approaches of Tosafot and Pnei Yehoshua in understanding what it means to be exempt or liable in human law and in the law of Heaven, whether liability in the law of Heaven means payment or prohibition, and what it means to say that the court does not know the truth, alongside a broader discussion of the distinction between punitive obligations and monetary obligations and the status of the court process itself.

Hiring False Witnesses, Indirect Causation, and the Talmudic Framing

The lecture establishes that this case appears in the list of laws of indirect causation, where one is exempt in human law but liable in the law of Heaven. It explains that the Talmud rules out the possibility that he hired false witnesses for himself, because if he took money for himself then that creates a monetary claim against him and he must return it. The conclusion therefore is that he hired false witnesses on behalf of his fellow. The lecture raises the possibility that when the money really is owed to him and he simply lacks witnesses, then in itself the money belongs to him, but the act is forbidden because it is falsehood in court. It discusses the possibility that a religious court might still require him to return it, because the court does not know that there is a real debt.

The Prohibition on Hiring False Witnesses Even When One Is Truly Owed the Money, and the Monetary Implications

The lecture brings that in conclusion, the Rosh in the name of Nimukei Yosef, and likewise the Rema and Beit Yosef as Jewish law, rule that it is forbidden to hire false witnesses even if the money truly belongs to him. It presents the reasoning that despite the prohibition, perhaps he would not be obligated to return the money, because in the end the money is his. This is connected to the possibility of “a person may enforce his own rights,” while leaving open the question of whether that could really justify it here. The lecture notes that the practical difficulty is that the court does not know the real debt and may see the extraction as taking money that does not belong to him.

Tosafot: Rejecting the Reading of Exemption in Human Law on the Grounds that the Court Does Not Know

Tosafot suggests a hava amina—an initial thought—that perhaps we are dealing with someone who hired false witnesses for himself, and that the exemption in human law stems from the fact that the court does not know they are false witnesses, so only in the law of Heaven is he liable. Tosafot rejects this and says that since, if they knew it was false testimony, he would have to pay, it is not appropriate to define this as “exempt in human law,” because the monetary obligation exists even if the court lacks evidence to extract it from him. The lecture concludes from Tosafot that the discussion is not only about what a court can enforce, but about the character of the person’s obligation itself within the laws of indirect causation.

Rabbi Akiva Eiger’s Distinction Between Punishments and Monetary Obligations, and the Role of a Court Ruling

The lecture cites Rabbi Akiva Eiger in Makkot 5, who says there is a difference between a punitive obligation, where the court creates the obligation through its ruling, and a monetary obligation, where the obligation exists by virtue of the loan or the damage itself even without a court ruling. The lecture illustrates this with the example of Sabbath desecration in the presence of witnesses and warning: as long as there is no court ruling, there is no death penalty, and there is no room for a person to punish himself. It also applies this to the controversy over ordination in Safed in the 16th century, around the desire to flog forced converts in order to exempt them from karet, because lashes help only after the ruling of an ordained court. The lecture notes that fines in our time are not judged by court, and raises a side discussion about seizing fines and what that teaches us about whether the obligation exists even without a ruling.

The Meaning of “Exempt in Human Law but Liable in the Law of Heaven” and Its Connection to Indirect Causation According to Meiri

The lecture returns to its earlier comments on Meiri, who cites Hashlama as saying that “liable in the law of Heaven” means he must pay, and if he does not pay he is a robber and disqualified from testimony, except that the court does not compel him. The lecture clarifies that according to Tosafot, one cannot identify “exempt in human law” with a situation where the court simply does not know the truth. It argues that there is a difference between “liable in human law, only the court cannot enforce it” and “liable in the law of Heaven,” so non-enforcement is not the only criterion but a sign of a difference in the nature of the obligation. The lecture compares this, by association, to the discussion of women and positive commandment tied to time: between an act for which one may recite a blessing and a “commandment” that belongs only to one who is actually commanded in it.

The Obviousness of “There Are No Witnesses” and the Difficulty with a Reading That Is Not About Indirect Causation

The lecture raises the point that framing the case as one where the court does not know is obvious, because anywhere there are no witnesses the court cannot obligate payment, and there is no novelty in that for the list of four things. It argues that even if linguistically one could call this “exempt in human law but liable in the law of Heaven,” it still would not be an example for the list of indirect causation, because here the exemption stems from lack of knowledge and not from the nature of the act as indirect causation. The lecture notes that Pnei Yehoshua explicitly comments that the question of obviousness forces us to explain Tosafot differently.

Pnei Yehoshua: A Litigant’s Admission, “The Mouth That Prohibited Is the Mouth That Permitted,” and the Prohibition of “Distance Yourself from Falsehood”

Pnei Yehoshua explains that Tosafot is not talking about a situation where the court knows nothing at all, but rather where they know about the falsehood only through the admission of the litigant who hired the witnesses, while he claims that the matter is true and that there is a real debt. The lecture explains that according to this, the claim of “the mouth that prohibited is the mouth that permitted” arises, by virtue of which he can be believed about the underlying debt despite the disqualification of the testimony, and the money can therefore remain with him. Pnei Yehoshua explains that “liable in the law of Heaven” here means a prohibitory liability because of “distance yourself from falsehood,” not an obligation of payment, and in that way he resolves the possibility that the money is his but the act is forbidden.

The Dispute over “Fruit of the Poisonous Tree”: the Shakh, Maharshal, and the Case of Forged Documents and Whispering in Bava Batra

The lecture raises the possibility of an obligation to return the money in the law of Heaven even when the money rightfully belongs to him, based on the idea of canceling advantages achieved through an improper means, and describes this as “fruit of the poisonous tree.” It cites the Talmud in Bava Batra about forged documents and whispering, where there is a dispute whether we accept a migo created by presenting a forged document and then admitting it, and suggests a parallel to someone who creates a migo by hiring false witnesses. The lecture notes that Pnei Yehoshua quotes that the Shakh in the name of Maharshal in Yam Shel Shlomo requires him to return the money even if he says the claim is true, in contrast to Pnei Yehoshua’s own understanding that the focus is prohibition rather than payment. It notes that this ties into the question whether the court cancels a gain created by means of an improper legal move.

The Principle that “We Act Only on Valid Testimony” and Tosafot in Gittin

The lecture cites Tosafot in Gittin 4 on an internally forged document, that evidentiary force does not justify using disqualified witnesses or invalid evidentiary structures even when the content is true, and that “even though the matter is true, one may act only on valid testimony.” The lecture uses this to establish that reaching the correct result through invalid means is not desirable, and parallels this to hiring false witnesses even when the debt is real. It sharpens the point that in the case of disqualified witnesses one can choose valid witnesses, whereas in hiring false witnesses the problem becomes sharper when there are no other witnesses and the person may lose money that really belongs to him.

The Limits of “A Person May Enforce His Own Rights,” and the Discussion of Offsetting and a Denied Debt

In the classroom discussion, a claim is raised that requiring return on the basis of “fruit of the poisonous tree” would force one to return money even though there is a real counter-debt. The debate focuses on whether it is permissible to offset debts when one side denies the debt, and whether this counts as a person enforcing his own rights. The lecture presents the argument that the ability to hold the money and offset it is itself a gain created by the improper move, and therefore the money should be returned and then one should try to collect by another route. The discussion remains open regarding the boundary between natural offsetting and self-enforcement when the other side denies the debt.

The Prohibition of Falsehood in Court, the Plaintiff’s Responsibility, and “Do Not Place a Stumbling Block” / Aiding

The lecture lingers over the basis of the prohibition when the plaintiff is not himself a witness but uses lying witnesses, and it cites Pnei Yehoshua’s position that this is included in “distance yourself from falsehood” even if no one suffers monetary loss and the factual truth is preserved. It considers the possibility that the prohibition stems from “do not place a stumbling block” or at least from aiding the witnesses in the transgression of false testimony, and discusses the question of the “two sides of the river” case. The lecture presents the direction that “distance yourself from falsehood” also includes creating a system of falsehood within a court, even if the person himself later reveals what he did, emphasizing that a white lie outside court is not comparable to a white lie inside court.

Examples of the Severity of Damaging the Process: Conspiring Witnesses and a Judge’s Question in Capital Cases

The lecture cites the Mishnah in Makkot about two groups of witnesses from two windows, where when one group is exposed as conspiring witnesses, he and they are executed and the second group is exempt. It emphasizes that the punishment of conspiring witnesses applies even when in the end the murderer really is executed on the basis of another group. The lecture presents this as proof that the problem is corruption of the process and the false testimony itself, not only damage to the final result. In addition, it raises a principled question about a judge in capital cases who knows that if he says the truth the defendant will go free because of the rule that “if they all say guilty,” and it says that simple reasoning forbids lying against a mechanism that the Torah established.

Tosafot: The Distinction Between Hiring and Merely Telling False Witnesses

Tosafot later distinguishes between someone who hires false witnesses and someone who merely tells them to testify falsely, and says that specifically one who hires them is liable in the law of Heaven, whereas one who merely tells them is exempt even in the law of Heaven because “he assumes they will not listen to him.” The lecture explains that Tosafot emphasizes that there is no novelty here in the exemption in human law, but rather in the liability in the law of Heaven, and fits this with the Talmud’s need to teach it, where there was an initial thought to exempt even in the law of Heaven because of “the words of the master and the words of the student—which words should one heed?” The discussion notes that the distinction depends on how one understands the reasoning of “the words of the master and the words of the student.”

The Sema and Rabbi Akiva Eiger: The Meaning of “The Words of the Master and the Words of the Student” and Its Implications for Hiring versus Merely Telling

The lecture presents that the Sema in Choshen Mishpat 182 explains “there is no agency for a transgression” as meaning that the sender assumes the agent will not obey him, so the sender can claim he did not expect the prohibition to be carried out. Rabbi Akiva Eiger in Bava Metzia challenges the Sema and argues that the main point is that the agency is void because the agent is obligated to obey the master, and therefore is not considered the sender’s agent for a transgression. The lecture concludes that according to the Sema, Tosafot’s distinction between hiring and merely telling is understandable, because payment creates an expectation that they will listen to him, whereas according to Rabbi Akiva Eiger it is difficult to see why payment changes the agent’s responsibility in the face of the master’s words. The lecture leaves for next time the clarification of how Tosafot can be reconciled even according to Rabbi Akiva Eiger’s direction, and what the relationship is between the laws of agency and liability in the law of Heaven.

Conclusion and Continuation: Moving to the Case of “One Who Knows Testimony for His Fellow and Does Not Testify for Him”

At the end of the lecture it is said that they will not manage to complete the whole line of discussion and that it will be continued in the next lecture. After that they will move on to the next case in the baraita: “one who knows testimony for his fellow and does not testify for him.” The lecture ends with the announcement that there will be no lecture next week, that the lectures will probably continue after Passover, and it concludes with holiday greetings.

In the previous lecture we began with someone who hires false witnesses to testify, another one of the examples of indirect causation, where one is exempt in human law but liable in the law of Heaven. We saw that the Talmud rejected the possibility of a person who hires false witnesses for his own benefit, because then there is a claim of “my money is in your hands.” Meaning, if he took the money then he has to return it, because it is money that isn’t his, and therefore the conclusion was that this is talking about someone who hires false witnesses for the benefit of his fellow, for somebody else. We also saw there, toward the end of the lecture, the discussion of what happens when the money really is owed to him. Meaning, the truth is on his side, but he has no witnesses for it. Is he allowed to hire false witnesses in order to extract, through them, the money that really does belong to him? The conclusion we saw then was that the Rosh brings it in Nimukei Yosef, and the Rema also brings it as Jewish law; the Beit Yosef and the Rema bring it as Jewish law that it is forbidden. But on the face of it, it seems that he would not have to return the money, because after all, the money really does belong to him. It is forbidden to do this because he took a forbidden step, lying in religious court, but from the standpoint of the money, the money is with him rightfully. There is some room to discuss exactly how the situation works here and whether the religious court would not force him to return the money, because the religious court does not know that there really is a debt. So it could be that the religious court would force him to return the money, because from the court’s perspective he used false witnesses, so he extracted money that did not belong to him. But from his own perspective, it seems there is no obligation to return it in such a case, because it really does belong to him; this might even be some element of a person taking the law into his own hands. There is even room to say that really it would be permitted to do such a thing, because a person may take the law into his own hands; all in all he wants to extract the money that belongs to him. So we’ll see later on. Tosafot here on the spot — I’ll share the file — Tosafot says as follows: “My money is in your hands; he should pay.” Since if he hires the false witnesses for himself, then he has to pay the money, because there is a claim of “my money is in your hands.” Tosafot says: “And if you should say that he is exempt in human law because we do not know that they are false witnesses?” Tosafot has a suggestion: maybe this is talking about a case where he really did hire the false witnesses for himself; we do not need to abandon that possibility. So why does it say here that he is exempt in human law but liable in the law of Heaven? Because after all, when he hired the false witnesses, the court does not know that they are false witnesses, so from the court’s perspective he extracted this money lawfully. Only he knows that they are false witnesses, so he is liable in the law of Heaven. Okay, that is basically the claim. A somewhat strange suggestion; in a moment we’ll discuss it. Tosafot says: “In any event, since if we knew that they were false testimony he would pay, it is not fitting to teach that he is exempt in human law.” Yes, regarding such a situation, it is not appropriate to say that this is called “exempt in human law,” because clearly he is liable in human law. The fact that the religious court has no evidence and therefore cannot extract it from him has nothing to do with the question whether he is liable or exempt. He is liable to pay the money; the court just has no evidence.

Maybe this can be connected to what Rabbi Akiva Eiger says in Makkot on page 5. He uses Tosafot there — not exactly in this way — Rabbi Akiva Eiger comments on Tosafot that there is a difference between punitive liability, even monetary punishment such as fines, certainly lashes and death, and ordinary monetary liability. In punitive liability, the court creates the liability; it does not merely discover it. Meaning, if a person desecrated the Sabbath in the presence of witnesses and warning, as long as he has not been sentenced by a court to the death penalty, he is not liable to death. It is not that he is already liable to death and the court just has not yet implemented it, or the court does not yet know it or has not yet clarified it; he is not liable to death at all. The death liability is created by the court’s ruling. So too with lashes, so too with fines, so too with everything. In contrast, with monetary liability — say I borrowed or caused damage — I owe money to my fellow. There the liability exists irrespective of the court’s ruling. The role of the court is only to clarify the liability and enforce its implementation, meaning to force you to pay if you are not paying what you owe. But the court has no constitutive role in such a case. In punitive payment, and in punishments generally, the court’s ruling has a constitutive role; in other words, the court is what creates the punishment. This has all kinds of interesting implications. A person desecrated the Sabbath in the presence of witnesses and warning. The witnesses died. Must he throw himself off a roof? Kill himself? There is no court that can sentence him to death because there are no witnesses. Obviously not. He is not liable to death as long as the court has not ruled. Meaning, there the court does not clarify the death penalty; it creates the death penalty. The court’s ruling is what creates that punishment.

Therefore, for example, in the controversy over ordination in Safed in the 16th century, there was a major debate over whether to renew ordination. Mahariv and his students supported renewing ordination, and they even ordained Mahariv as the first ordained sage, and he ordained five of his students — incidentally including Rabbi Yosef Karo, who really was ordained. And the sages of Jerusalem, led by Maharlbach, opposed this move. There was a major dispute there. What was the motivation for renewing ordination? Various testimonies indicate that the motivation was so that they could administer lashes to forced converts. In the expulsion from Spain, people were faced with no simple dilemma, and some of them outwardly at least accepted the Christian religion so they would not be expelled. Now in principle this is forbidden, one must be killed rather than transgress, and so on. So what they wanted to do was establish courts of ordained judges so that they could administer lashes to whoever was liable, and thereby exempt him from karet. Why is that? Because if you do not have a court of ordained judges that ruled that you are liable to lashes, then first, you are not liable to lashes, and second, even if you are lashed, it will not exempt you from karet. Meaning, lashes that one receives count only after there has been a ruling of a qualified court that he is liable to lashes. In other words, the ruling regarding lashes, regarding death, regarding fines — the ruling is constitutive, not merely directive. In contrast, in monetary cases, in monetary law, the ruling is directive. Therefore, for example, nowadays when there are no judges with that authority, we do not adjudicate capital cases. Why not? But the person is liable to death. No, he is not liable to death. Meaning, as long as he is not tried, he is not liable to death at all. Regarding fines, there is room to discuss it. On the simple level, nowadays we also do not adjudicate fines. But the question is whether one may seize a fine. If one may seize it, then there would be room to say that the fine liability exists even without a court ruling; otherwise, what does it mean that one may seize it? Okay, but that is a separate discussion.

In any case, for our purposes, monetary liability certainly exists. If I borrowed, I am liable to pay even if there are no witnesses at all, and the court does not know and therefore will not be able to extract it from me. The very fact that I borrowed obligates me to repay. Or if I caused damage, I am liable to compensate the injured party. Therefore Tosafot says: if so, then clearly in a place where he hired false witnesses but the court does not know that they are false witnesses, you cannot say that this thing is exempt in human law and liable in the law of Heaven. He is liable in human law. Why? Because this is monetary liability. Monetary liability exists even without a ruling by the court. He is liable in human law; the court has no evidence, so it will not be able to extract it from him. Fine, but that is not called liability in the law of Heaven.

By the way, as an aside, I talked in the previous lecture about the question of how the court knows that the witnesses are liars, and in the course of that I mentioned that in principle one could understand the topic as not dealing with the court at all, but with the person himself. A person who hired false witnesses to testify — the question is whether he is liable to pay, regardless of whether the court will extract it from him or not. It is a question about the person’s liabilities, not about the court’s liabilities. Tosafot here suggests that since the discussion is a discussion about the court — and the Meiri assumed this too, we saw that there — since he understands the discussion as a discussion about the court, maybe one could say that what he is exempt from here in human law is because the court does not know the witnesses are liars. But to that he answers that you cannot say he is exempt in human law. Why? Because he is liable in human law; the court just does not know. So what does that mean? That in the end Tosafot argues that the discussion is really about the exemption of the person himself, the person’s own exemption and liability, not what the court imposes on him. And that is somewhat connected to what we talked about in the previous lecture. And in fact, if we look at the context of the topic, after all this case appears in the context of the laws of indirect causation. Right? That with indirect causation you are exempt, and that is exempt in human law but liable in the law of Heaven. Now the exemption of indirect causation is not an exemption in the sense that the court does not enforce it. The exemption of indirect causation is an exemption in the sense that ostensibly I am not liable. The law of Heaven is another matter, but I am not liable in human law. It is not only that the court cannot enforce me, because on the simple level there is no liability here at all.

One might perhaps have said — at least according to the Meiri we saw there, who says that what is meant here by liability in the law of Heaven is liability to pay, not punishment — one might perhaps have said no, it really is an obligation to pay, only the court does not enforce it. But I have an obligation. If you understand it that way, then indeed the whole discussion is only about the court. Because really I am obligated to pay even in indirect causation. And when it says here that he is exempt in human law, it does not mean that I myself need not pay. For according to the Meiri, under the law of Heaven I do have to pay. So it does not mean that under human law I do not have to pay, but rather that under human law they cannot force me. Then this really is only a discussion about the court. And then one can certainly better understand what Tosafot raises here, at least as an initial assumption: so why not say that the court does not know these are false witnesses, and therefore it cannot force him to pay? Because basically the claim is that when it says here “exempt in human law,” it does not mean that I myself do not have to pay. For according to the Meiri, under the law of Heaven I do have to pay, so it does not mean that under human law I need not pay; rather, under human law they cannot force me. Tosafot says: okay, if that is what is being discussed, then maybe this is simply a case where the court did not know that the witnesses were false witnesses, and therefore it could not force me. That is what is called exempt in human law. Tosafot says no. Still, once Tosafot says this, now we need to understand Tosafot’s conclusion. The question is understandable now; Tosafot’s conclusion is difficult. So why really not? Why really not set it up in such a case? If in fact with indirect causation too I am really obligated to pay, and all that is said here is that the court cannot extract it from me, but I am obligated to pay exactly as in direct damage — indirect damage, direct damage, there is no difference. The difference concerns only the question of the court. So if that is so, Tosafot’s suggestion is a good suggestion. It is talking about a case where the court did not know that the witnesses were false, and therefore the court cannot force him. And that is what is written as exempt in human law, that the court cannot force. There is no statement here about the essence of the obligation. From Tosafot’s answer it is clear there is a statement here about the essence of the obligation. Tosafot argues that in such a case this is not called being exempt in human law. So what is the difference between this and indirect causation? After all, with indirect causation too, when it says I am liable in the law of Heaven — again, at least according to the Meiri, unless Tosafot disagrees with the Meiri — but if we accept the Meiri, or the Hashlama — actually the Meiri brings it in the name of the Hashlama — that liable in the law of Heaven means liable to pay, and if he did not pay then he is a robber and disqualified from testimony, as he says there, only the court does not enforce it, the court does not compel it. If so, Tosafot’s suggestion is a good suggestion. So what is Tosafot’s answer? Why really did they not set it up in a case where the court does not know that the witnesses are false witnesses? This is a case where I really am liable, only the court will not be able to force me to pay, and according to the Meiri that is what is called exempt in human law. So why does Tosafot say that this is not called exempt in human law — it is liable in human law?

What do you say? It is obvious — you cannot call such a thing exempt in human law; it is simply ridiculous. Because if you say something is exempt in human law, that means that when it is known that this is the case, then he is exempt. Why? Because there it is not called exempt; there it is just that the court does not know. If they do not know, they are not judging this case; they are judging another case. I didn’t understand. But according to the Meiri, that is what is called exempt in human law. After all, with indirect causation too it is like this. With indirect causation it is not like this. Why? Because with indirect causation it means there is no court discussion here at all; the discussion is about the person, whether he is exempt or liable. No, obviously. But still, as a matter of the concept “exempt in human law,” it could also be said in such a case. Because according to the Meiri, the meaning of this phrase is not that I really am exempt from paying; I am obligated to pay, only the court does not compel me. So what difference does it make whether it does not compel me because I am indirect causation, or it does not compel me because it does not know the witnesses are false? If it does not compel you because it does not know, then from its perspective it is not judging this case. So when it rules exempt, that is about something else. That is simply not correct. It does not think this is the case in which you caused damage. When it judges and the court does not know the facts of the case, then from the court’s perspective it is judging a different case. No, no, but in this case, from the court’s perspective it cannot compel. But when it rules exempt in human law, that means that this case is exempt in human law. Not that if the court thinks something else happened then they will exempt you. Those are the facts they have — what does it mean, they think something else happened? Those are the facts they have. So that means they are not judging your case, because they are relying on data that does not match reality. They are judging some imagined case they have in mind, and there they exempted you. Very good, but that does not mean that in this case you are exempt. Maybe — I don’t know, one has to think about it; maybe.

I have thought about it. What I am saying now is very similar. What I want to argue is the following. First, you see here that there is a difference between saying exempt in human law and saying liable in human law, only the court does not compel. Even according to the Meiri. Even according to the Meiri I claim. Meaning, liability in human law, from the person’s own side, is a different liability than liability in the law of Heaven. It is not that the implication is that the court does not compel, but the character of the obligation itself is fundamentally different. And therefore here in this case you cannot say he is exempt in human law, because he is liable in human law in terms of the character of the obligation; only the court cannot extract it from him. In other words, the claim is that the character of the obligation — when the Meiri says exempt in human law, liable in the law of Heaven, he means liable to pay, only the court does not compel — the fact that the court does not compel is not really the difference; it is an indication of the difference. The difference is that the obligation is a different kind of obligation. It is hard to put one’s finger on exactly what, because after all here too he has to pay and there too he has to pay, here too the court does not compel and there too the court does not compel. Here you really perhaps see a sharper formulation of the difference. The sharpening of the difference is that in a case where the court does not know, you cannot say there is no liability in human law. True, the court does not compel, but you cannot say there is no liability in human law. In other words, we see that there being no liability in human law implies that the court does not compel, but the fact that the court does not compel does not mean that this is not a liability in human law. Even according to the Meiri, I want to argue this.

By association, this reminds me a little of something else. Usually it is accepted to think that positive commandments that are time-bound, for women, are optional positive commandments because they are not obligated, but at least according to most views of the medieval authorities (Rishonim), they are allowed to perform them, and if they perform them there is a commandment for them, and perhaps they may even recite a blessing according to some views. So the claim is that they have an optional commandment. I have never understood this. I think they do not even have an optional commandment. It may be that what they did is a blessed thing, but a commandment — for this thing to be a commandment, you have to be commanded. And women plainly are not commanded in these commandments. Now what is the difference? What is the difference between saying that women who did this did something good — perhaps may even recite a blessing, after all some views say one recites a blessing even on a custom — so according to some views they may even bless, but they did some act, a good act, let’s call it that, versus saying that this is an optional positive commandment? There is a difference. It is an obligation, a positive commandment — what is obligation? Not obligation in the sense that if you did not do it then that is bad, because it is optional, but still there is significance to the concept that a commandment was fulfilled here. You are commanded — not in the sense that if you did not do it you are a sinner, but in the sense that if you did do it, you did a commandment. In contrast, if you are not commanded, then it may be that if you did it, you did a good deed, but a commandment it is not. Because that commandment does not apply to you. If I go and, I don’t know, perform commandments that apply to a nazirite — I will not drink wine and I don’t know what, I won’t become impure through the dead — maybe there is value when a person does that, but you cannot say I fulfilled the commandment of naziriteship, because I am not a nazirite. As someone who is not a nazirite, I am not commanded in it. You can say I did good deeds, deeds of value, fine, but there is no commandment here.

That association just came to me now. I think this distinction is somewhat similar to what I said about the Meiri. I want to argue in the Meiri that when the Meiri says there is liability in human law, usually the court also compels it. But even if the court does not compel, perhaps it can still be liability in human law, and that is not the same as liability in the law of Heaven where the court does not compel. What is the difference? Because here there is an obligation, there is a commandment — yes, as I said regarding women — there is a commandment here. The fact that they do not compel it is another matter; the fact that one is not required to do it or not compelled to do it is another matter. But there is a commandment. In contrast, if it is liability in the law of Heaven, then there is no liability in human law on you at all. The implication is that the court will not compel, but that is only an implication. It is hard for me to put my finger on exactly what the difference is, or whether there would be a practical difference from this distinction; I do not know. There may be a practical difference, I don’t know, say, one engaged in a commandment is exempt from another commandment. If I am now going to pay this obligation, would I count as engaged in a commandment, exempt from another commandment? Maybe not with liability in the law of Heaven, whereas with liability in human law yes, because I am obligated to pay him; repaying a debt is a commandment. I have to pay him. Okay, this is not exactly a debt, it is damage, but never mind; there is a commandment on me to pay him, and therefore I am engaged in a commandment, so I am exempt from another commandment. Maybe that could be a practical difference; I am just thinking now, I don’t know. But you understand what I mean.

There is a formulation that I think is easier, and I think that is roughly what you, Binyamin, wanted to say, right? It seems to me. The indication is that here the court simply is not judging the real case. You said that the court simply is not judging this case but another case, but really — rather, what that means is that in this case there is liability. The fact that the court cannot compel him, fine, but there is liability. No, the point is more than that. Not only that there is liability — it is exactly the same strength as when the court knows. It simply has not yet become known to it. It is like before it became known. It is like saying that before the plaintiff sued the defendant, he was liable only in the law of Heaven. What are you talking about? He was liable in human law from the very second the debt was created, obviously. Yes, what I said before. No, but that has nothing to do with there being a different character of obligation here. The obligation is created from the moment of the loan, not from the moment of the claim in court. Obviously. Right. And this is liability in human law. You do not say that the moment one person lent another money, he became liable only in the law of Heaven. Correct. And that is what I am saying. The novelty here is that liability in human law — in other words, you see that liability in human law does not mean a liability that the court compels. The fact that the court compels is an implication, but there is some other character to the obligation. Even if that were the only criterion, that the court compels, it would still also apply to the obligation before the court carried out the compulsion. That is what I am claiming. Even if you say that is the only criterion, I have no problem — that liability in human law is only liability that the court compels — but it still has to exist even before it carries out the compulsion. That is not exactly what I said. Since I do not find any other implication beyond whether the court compels or does not compel, and still I think there is something else here. Fine, it seems to me quite similar.

In any case, let me formulate it now differently. In our case — let us leave aside for the moment the phrase exempt in human law and liable in the law of Heaven — let us say that according to the Meiri, a case where the court does not know that the witnesses were false witnesses is indeed called exempt in human law and liable in the law of Heaven. Let us say so. Still, that is not a good way to establish this case. Because after all, this case was brought in the context of exemptions of indirect causation. And here, the reason the court cannot compel me is not because I caused damage indirectly, but because it simply does not know. So what does that have to do with it? How does that setup help? Let us say we set it up in such a way that the court does not know that the witnesses were false witnesses, and let us say that according to the Meiri such a thing may be called exempt in human law and liable in the law of Heaven, without Tosafot’s answer. Let us say that this is what the Meiri means by exempt in human law and liable in the law of Heaven. But still, even if such a thing is called exempt in human law and liable in the law of Heaven, it is certainly not an example within the examples we are looking for here. Because here we are looking for examples where my exemption in human law does not stem from lack of knowledge, but from the fact that I caused damage indirectly, even if the court did know. So in that respect, even if this setup would bring me to the correct law, as a setup for the case of one who hires false witnesses within this list of four cases, it does not help. Because here I need to explain that the exemption — what is the novelty? Let us formulate it differently. What is the novelty? The novelty is that when the court does not know, it does not compel. Come on. It is obvious that if the court has no evidence, it cannot enforce the ruling. What — but there are novelties here. The novelty is that if you cause damage indirectly, you are nevertheless exempt in human law, and on the other hand liable in the law of Heaven. That is a novelty. So even if I accepted Tosafot’s setup, that this is a case where the court does not know about the false witnesses, and I accepted that such a thing could be considered exempt in human law and liable in the law of Heaven, it still would not help.

Now true, that is not what Tosafot says. Tosafot does not argue the obviousness point. Tosafot could have said something else: it is obvious, therefore we did not set it up in such a case, because if the court does not know it does not compel — obvious. What do you need to tell me? That is what really should have been said here. Tosafot does not reject it that way; rather Tosafot argues that this is not called exempt in human law. Such a thing is called — that is not what Tosafot says. But I think — this is perhaps even some kind of comment on Tosafot — that basically the question from the outset does not arise. Even if you were not right in the answer, the question from the outset does not arise, because that setup would not help here. So maybe Tosafot also wants to teach me the point he says, even though I am right. Meaning, true, it would not have helped, but besides that Tosafot says, know that such a thing cannot be considered exempt in human law. Fine? It could be that Tosafot does not intend to disagree with that point. It is very hard to assume that he disagrees with that point.

Look here at the Pnei Yehoshua. On Tosafot, beginning “my money is in his hands; he should pay,” “and if you should say exempt in human law because we do not know they are false witnesses,” etc. “It seems that Tosafot’s words cannot be explained literally, that we do not know at all whether they are false witnesses, because if so, what is the novelty? Why do I need to say there are four things exempt in human law? In every place where there are no witnesses too, one is exempt in human law and liable in the law of Heaven.” Here he asks the obviousness question, right? He says according to Tosafot — and indeed the Pnei Yehoshua senses this, so he asks why? For indeed what Tosafot says here is obvious. Therefore the Pnei Yehoshua says it cannot be that Tosafot means that the court really does not know the witnesses are false. Okay? So what does he say? “Rather, we must say that Tosafot means that we do not know they are false witnesses except through the admission of the litigant himself.” But he says that the matter is true as I wrote just above. Here he takes us back to the Ra’ah and Nimukei Yosef that we saw. Meaning, what Tosafot means, according to the Pnei Yehoshua — and incidentally, in my view this is not forced at all — he argues that what Tosafot means is that we do not know they are false witnesses except on the basis of the admission of the hirer. We are talking — note — about someone who hired witnesses for his own benefit, in the Talmud’s initial assumption. Later that is rejected and they say we are talking about his hiring them for the benefit of someone else. But right now we are dealing with the stage in the Talmud where he hired the witnesses for his own benefit. And about that the Talmud says that in such a case “my money is in your hands; he should pay.” Tosafot asks why; maybe the court does not know there are false witnesses. And the Pnei Yehoshua says: if so, that is obvious. The Pnei Yehoshua says no — the case is that what Tosafot intended to ask is perhaps this is a case where the hirer himself admitted that he hired false witnesses, but the court learned this only based on the hirer’s own admission. It has no independent source saying this. And that hirer says: true, I hired false witnesses, but know that the debt really exists. Meaning, this money really is owed to me. What the witnesses said is true. They did not know it, they are liars, I hired them, but their testimony is true testimony. What happens in such a case?

So what happens in such a case? Let us think what the law should be in such a case. I come and say: the witnesses are false witnesses, I hired them, but there really is a genuine debt that he owes me. I did this in order to extract the money that belongs to me because I had no real witnesses. In fact, more than that — not only did I do it because I had no real witnesses, now I am also telling you that the witnesses are false witnesses; in the end I did not even lie. In the end I even told the court the whole trick I used. Rather, I created for myself a “the mouth that forbade is the mouth that permitted.” After all, I took false witnesses, okay? I told them: testify that so-and-so owes me money. And then I put this before the court. The court has no indication — two witnesses came, so the court rules: okay, if so, then he owes you the money. Now I come and say: court, wait a second. Know that these witnesses — I hired them, they are false witnesses. But I have a real debt. He really does owe me the money. So I have “the mouth that forbade,” right? If you believe me that the witnesses are false, then believe me also that I have a debt. The mouth that forbade is the mouth that permitted. So ostensibly in such a case I am believed that I had a debt, and also that the witnesses are false — not in order to disqualify them, but I cannot use them as witnesses, or I do not need them as witnesses, because “the mouth that forbade” proves there is a debt to me. So the money really should remain with me.

So in such a case, what should the law be? I do not return the money, because it really belongs to me. The court will accept, by force of “the mouth that forbade,” my claim that there really is a debt to me. Under the law of Heaven, do I have to pay back that money? Why? What are you talking about? The money is mine. After all, the court really became genuinely convinced — this is legal credibility — that this money is mine. So even under the law of Heaven he should not have to pay. At most one could say there is an prohibition here because I lied. I simply lied before the court, so I transgressed an prohibition. So the question Tosafot asks here, maybe this is a case where the court does not know the witnesses are false witnesses — and the Pnei Yehoshua explains: the court does not know except on the basis of the hirer’s own admission, but it does know, just on the basis of the hirer’s admission — and then what? What did Tosafot ask according to the Pnei Yehoshua? That there should be “the mouth that forbade,” and perhaps on this the Talmud says “exempt in human law and liable in the law of Heaven.” Liable in the law of Heaven in what sense? Not to pay. He is exempt in human law because there really was a debt, and he is believed by force of “the mouth that forbade.” But if there was a debt, then even by the law of Heaven he need not pay; the money is his. Perhaps he is liable in the law of Heaven, meaning liable to punishment under the law of Heaven, not like the Meiri. He did something forbidden, because he caused false witnesses to be brought before the court, and that is the meaning of liable in the law of Heaven. According to the Pnei Yehoshua, that is what one must say.

Now I remind you that the Pnei Yehoshua consistently disagrees with the Meiri. Throughout this whole topic here, the Pnei Yehoshua understands “liable in the law of Heaven” to mean liable to punishment, meaning he transgressed a prohibition. So here too, it seems to me that when he explains Tosafot this way, his intent is not that he must pay under the law of Heaven, but rather that he is liable to punishment because he acted improperly; it is forbidden to do such a thing. But the money, since the money is his, then even under the law of Heaven he need not pay it back.

Although there might have been room to say that there would even be an obligation to pay back the money under the law of Heaven, for two reasons that are really one. Meaning, it could be that where you used evidence that is good evidence but you obtained it in a deceitful way, in such a case they penalize you and do not let you use the benefit that this evidence brought you. Return the money under the law of Heaven. Under the law of Heaven, return the money in order to be clean before Heaven; return the money because this money arrived as the fruit of the poisoned tree. Right, the fruit of the poisoned tree — that is exactly it. Meaning, you obtain evidence that is correct evidence, it proves that you are right, but you obtained it in an improper way. You made an illegal secret recording or something like that, and on the recording one really hears that so-and-so owes you the money. So if you ask, am I right? I am right. It is just that I obtained the recording unlawfully. So that is called the doctrine of the fruit of the poisoned tree. In Israel there is a problem here; I don’t think this doctrine would work here because after all, once I am owed, there is a straightforward debt created, a claim of “my money is in your hands,” and I can offset that against the debt that he owes me.

I didn’t understand. I would have to pay him because I did not extract it — he owes me money; that is where it starts. I lied so that the court would think he has to return it to me for a different reason. So you say this is fruit of the poisoned tree and therefore I have to return what the court awarded me. So right now I owe him one hundred shekels, but he also owes me one hundred shekels. No, he does not owe. No, it is not erased; he owes. No, it is erased, of course it is erased. No, the fruit of the poisoned tree cannot erase the original obligation. They can say that what was established because of the evidence — but the original debt existed. No, that debt exists only because of the fruit of the poisoned tree. The very fact that we know there is a debt is the fruit of the poisoned tree. No, the fact that you know there is a debt — that is the fruit. Cancel that, fine with me. But the debt still existed before. No, then the court will extract the money from you. What will the court extract? The court will not extract. Under the law of Heaven you need to pay the money. No, that is not how it works. But I am saying the fruit of the poisoned tree means that the advantages you gained as a result of your lies, those you have to return. What I gained as a result of my lies is one advantage: that the court came to know that I am owed, and because of that it collected. Fine, so cancel that, no problem. So now what do I have to do? Return it, right? But the original debt is not cancelled by the poisoned tree because it existed before. Yes, but he denies the debt. Correct, he denies it, but I know it exists. You are taking the law into your own hands. I am not taking the law into my own hands. I am only saying: as far as I am concerned, I know so-and-so owes me money. You are taking the law into your own hands; you are not returning money you owe because he owes you? No — if someone owes me money and I owe him money and I do not return it because of that, is that taking the law into your own hands? Yes, because he denies it. It offsets; what difference does it make that he denies it? “My money is in your hands”! Because he denies it! Of course that is a person taking the law into his own hands. That is called a person taking the law into his own hands. Not taking the law into his own hands would be to enter his house and take things. What are you talking about? A person taking the law into his own hands also means not paying something you owe because he owes you. That is the topic of “a person may take the law into his own hands.” I don’t understand. If someone lent me money — I am just asking now according to Jewish law — if someone lent me one hundred shekels and then asks for it back, but the truth is that I also lent him one hundred shekels before that, and he denies that loan. Okay. He does not sue me in court; he says forget court, just according to Heaven pay me. What — my denying your debt — the whole point is that he sued you in court. What is this? No, but here the court is not involved; we are talking about a case where the court is not involved because they do not know. Does not matter. Here there are two debts and they are supposed to offset one another — that is exactly the case. No, that is taking the law into your own hands; again I say it. The fact that you can take the law into your own hands is the fruit of the poisoned tree. Otherwise you would not succeed in doing it. That is true, but that — so it is fruit of the poisoned tree. But you cannot — but you cannot cancel the original debt. I am not cancelling, not cancelling, but return the money and then go look for evidence to extract the debt from him. But the right to leave the money with you — you gained that as fruit of the poisoned tree. That is true, but still, as long as you have not cancelled the original obligation, I have the right of offset. Then that means you are benefiting from the fruit of the poisoned tree. True, but the fruit of the poisoned tree — but the only way for you to prevent me here from benefiting from the fruit of the poisoned tree is to take from me things that I had even before that. A strange situation is created — that is the situation. Because if you do not cancel the original obligation — I cannot cancel the original obligation, but the advantage — you want to take the law into your own hands? Return the money to him and afterwards go in and punch him in the face and take the money. But in any other situation in the world, if so-and-so owes me money and I owe him, it is not called taking the law into my own hands if I do not pay. I simply say the debts offset one another. First of all, I do not agree. It is called taking the law into your own hands. It is called taking the law into your own hands if the other one denies it. Why? Because according to my own knowledge, I know that I owe nothing. You know — everyone who takes the law into his own hands knows that. No, a person who takes the law into his own hands not only knows that the money belongs to him, he also got up and did an act. Here I do nothing. I do not pay you against what you owe me. No, a person taking the law into his own hands — not true. A person taking the law into his own hands can do so passively, actively, with varying degrees of brutality. The question is how far you are allowed to go with it, but all of that is just different levels of taking the law into your own hands. Even passive is taking the law into your own hands. Obviously. What do you mean? It is not even passive — it is not passive; I am not taking the law into my own hands. I say the opposite: you are taking the law into your own hands by asking me for the money. What are you talking about? The money is with you because of the poisoned tree. Return it to me and now we’ll talk about taking the law into your own hands. Sounds extremely strange to me.

Let’s see. Look, I’ll bring you — incidentally, one more question not directly connected. This whole thing of the fruit of the poisoned tree — does it have any basis in Jewish law? Because I know — look, that is what I was about to bring now, the Talmudic passage in Bava Batra about “he stooped and whispered.” I’ll tell you why I am asking, because here the rationale is not so strong. The fruit of the poisoned tree is more in order that law enforcement systems not behave that way. But here we do not have that rationale. What difference does it make to us if someone uses lies when these are things really owed to him? It is not so simple, not so simple. There is the Talmud in Bava Batra about “he stooped and whispered.” Yes. Here — wait, I brought it later, I’ll jump there for a moment. Look.

There was someone who said to his fellow: “What are you doing on this land?” Yes, in the laws of land possession, I sue someone who is in possession of land. He says to him: “I bought it from you, and here is the deed.” He says to him: “The deed is forged.” You did not buy it from me; it is a forged deed. “He stooped and whispered to Rabbah.” So the possessor of the land whispers to the judge — Rabbah was the judge — “If the deed is forged, nevertheless I had a valid deed and it was lost, and I said: I will hold this one in my hand, whatever it is.” So he whispers to Rabbah and says: look, actually he is right, the deed is forged. I forged the deed. But really I did have a deed, I was in lawful possession of the land, I bought it and had a deed, only it was lost. There was not three years of possession, because if there were three years then no deed would be needed. So he has possessed the land for less than three years, but I had a deed and it was lost. So what? But after all, I could have left the forged deed and not admitted that it was forged. So “the mouth that forbade” is a kind of miggo, right? I created for myself — this is exactly fruit of the poisoned tree, like in our case. I created a miggo for myself by forging a deed. Not only did I create a miggo; I even inform the judge: know that the deed is forged. Meaning, in the end I did not even lie to the court; I just told him the truth in stages. What advantage did I gain? That if I tell the court the truth in stages, I created a miggo for myself, a real miggo. And since that is so, believe me. So Rabbah said: “Why would he lie? If he wished he could have said to him: it is a valid deed.” So Rabbah says indeed he has a miggo. Rav Yosef said to him: “Why do you rely on this deed? This deed is mere clay.” What are you relying on? You rely on this deed? This deed is nothing. And what about the miggo? So he says no — and again, this is a dispute among medieval authorities (Rishonim); I will not get into all the views there — but basically what Rav Yosef at least according to some medieval authorities is arguing there is fruit of the poisoned tree. If you create a miggo for yourself by forging a deed, or in our case by hiring false witnesses, then I will not take the miggo into account. And therefore you will not win the case. This is exactly like our case. And if so, then one could perhaps explain the Pnei Yehoshua even according to the Meiri, that liability in the law of Heaven means liable to pay under the law of Heaven: in such a case we cancel all the advantages he got from the poisoned source and he would even have to return the money.

Although on the simple level I would say that according to the Pnei Yehoshua there is no need to get there. Meaning, one can explain the Pnei Yehoshua in accordance with Rabbah there in Bava Batra, who is willing to accept such a miggo, and it seems that here too he would be able to accept such a miggo. Therefore when it says here that he is liable in the law of Heaven, it does not mean he must pay back the money; he can keep it, as Binyamin said before, but he did commit an prohibition. It is forbidden to trick the court. It is forbidden to hire false witnesses in court, even though if you ask me what the truth is, the truth really is on your side. But I will not act on that truth because that truth was produced in an improper way. Okay? So I say there are two possibilities for understanding the Pnei Yehoshua — sorry, the Meiri, the Pnei Yehoshua. One possibility is that we are talking about an prohibition, and a second possibility is that we are talking about a real obligation to pay.

I will bring you the Pnei Yehoshua himself. The Pnei Yehoshua himself on the Talmud, not on Tosafot, raises this question, or a similar question. “If for himself — should he not have to pay in human law?” There is a difficulty: why not simply establish it as for himself, namely where he admits that the witnesses testified falsely, but says that nevertheless the matter is true, and if so he need not pay money, because the mouth that forbade is the mouth that permitted. And in the law of Heaven he is certainly liable because of ‘keep far from a false matter.’” In Tosafot it is unclear, but in the Talmud you can see that his suggestion — and apparently that is how he explains Tosafot too — is that when it says liable in the law of Heaven, that means liable to punishment under the law of Heaven. He transgressed the prohibition of “keep far from a false matter,” but the money he may keep. In other words, this follows Rabbah and not Rav Yosef there in Bava Batra. Then he says: “And it can be resolved with Tosafot’s answer, since if it were known to the court that the testimony was false testimony he would be liable to pay; it is not fitting to say exempt in human law.” It seems the explanation is linguistic, but the law is true. It is just that it is not correct to call this exempt in human law. Therefore they did not make that setup, but the law is indeed true. Okay? And after that he brings the Ra’ah. “Afterwards I found in Nimukei Yosef that he indeed wrote so in the name of the Ra’ah.” I just brought it in abbreviated form in the summary. “But the Beit Yosef in Tur Hoshen Mishpat and the Rema imply that he explained the words of Nimukei Yosef as one who hired to testify for his fellow.” We already discussed that in the previous lecture; that is not correct. It is an extension. One who hires for himself and one who hires for his fellow are the same law.

And after that, look what he brings in the name of the Shakh. “I also found there in the Shakh that he brought in the name of Maharshal in Yam Shel Shlomo, that in such a case where the litigant admits that he hired false witnesses, even though he says that the matter is true, nevertheless he is obligated to return it.” What does that mean? What I said before — he has to return the money. Not like the Pnei Yehoshua who said he transgressed “keep far from a false matter,” but rather liability in the law of Heaven can be interpreted like the Meiri: he must pay back the money under the law of Heaven. Why? But there is “the mouth that forbade,” and we know — we rule that there is a debt; he has a debt. Correct — by fruit of the poisoned tree he has to return the money. Ostensibly this is exactly the dispute of Rabbah and Rav Yosef if one adopts a certain interpretation in the Talmud in Bava Batra. I said there are disputes among medieval authorities in Bava Batra; I am not going to get into that whole story right now.

In any case, this is a bit difficult, because the whole story here is, as I said earlier, even if you are right that one could call this exempt in human law and liable in the law of Heaven, this is not an exemption of indirect causation. After all, all the examples brought here in the Talmud are examples that come to teach the exemption of indirect causation: exempt in human law and liable in the law of Heaven. Here, even if you are right that this is exempt in human law and liable in the law of Heaven — either an prohibition or paying back the money according to the Shakh; this is basically a dispute between the Shakh and the Ketzot — still it does not belong in this list brought here in the baraita in the name of Rabbi Yehoshua ben Levi. Because here it is supposed to be exempt in human law and liable in the law of Heaven because you caused damage indirectly, not because we cannot obligate you due to the fruit of the poisoned tree and you transgressed an prohibition or all kinds of things like that. So this whole setup is a strange setup. But if the Pnei Yehoshua thinks so, and if he explains Tosafot that way, then perhaps they are willing to say that after all, it does not explicitly say — it does not explicitly say that all these cases are indirect causation; Rashi says that. The Talmud itself does not explicitly say that all these cases have to be indirect causation, so perhaps one who hires false witnesses we really will explain as follows: what it means that he is exempt in human law and liable in the law of Heaven applies just to witnesses — exempt in human law and liable in the law of Heaven — but really this is not because of the laws of indirect causation, but is a different kind of case.

Okay, let’s stop here for a few minutes — say four or five minutes — freshen up, wash your face, and come back. All right? In any event, one way or another it comes out from here that, as the Pnei Yehoshua writes, and perhaps this is also Tosafot’s intent if the Pnei Yehoshua is right, it is forbidden to do such a thing. Meaning, it is forbidden for me to hire false witnesses and create for myself “the mouth that forbade” in order to win this money, because at least I have transgressed the prohibition of “keep far from a false matter,” even though on the evidentiary plane the court will accept my claim that he owes me because I have “the mouth that forbade.” Okay, but it is forbidden to do this because of “keep far from a false matter.” Ostensibly the prohibition should be “do not place a stumbling block,” not “keep far from a false matter,” because the witnesses are transgressing the prohibition of false testimony. But the Pnei Yehoshua writes “keep far from a false matter.” So that is what I do not understand, because I am not sure there is a prohibition to lie in court as a plaintiff. Meaning, I am not even sure there is “do not place a stumbling block” here. Why? I caused the witnesses to sin by false testimony. You did not cause the witnesses to sin; you told them to do something and they did it. Why? If I pay someone to commit a transgression, that is not “do not place a stumbling block”? No, what are you talking about? There is something even greater than that. Fine, I understand. What are you talking about? That is perhaps assisting. Assisting, certainly, but ostensibly it is even “do not place a stumbling block.” Why? Is this “two sides of the river”? What, they cannot come on their own initiative and give false testimony on behalf of so-and-so? Do I need to hire them for that? First of all yes, they would not do it on their own initiative. Whether they would do it or not is irrelevant. But this is not “two sides of the river.” “Two sides of the river” means they are unable to do it. I understand, but it is at least assisting. But you say that only applies in idolatry. Fine. No, assisting may apply to all prohibitions. So this is probably assisting. But I am simply asking: from the side of lying in court, what prohibition is it? “Keep far from a false matter.” That is what the Pnei Yehoshua says. But “keep far from a false matter” — is that not only in lies from which someone loses? Here nobody loses anything, except liars who were called liars. Who says? He claims there is “keep far from a false matter” even regarding this lie. But those three matters in which a Torah scholar may lie — where everyone benefits — those are white lies. No, what a Torah scholar may lie about is not in such a situation. A Torah scholar may tell white lies, but not in court. This is completely white; no one loses anything from it. Not because of white, but because it is in court. But not as a witness. If I were a witness, I would understand, because then I am telling them what happened, but I am not here as a witness. As a plaintiff I am really telling them, in other words, that he owes me money. You are not telling them that; you are bringing false testimony. What do you mean? I am not testifying; I do not have the status of a witness. If I had the status of a witness, you would be right. But here I am only claiming the money. I brought some evidence or other; that is something else. Therefore, in fact, there may be a difference between saying and hiring. When you hire them, they see you as the one responsible for the lie in court. Like in the case of “he stooped and whispered,” where I bring the — in “he stooped and whispered” we will see. No, because there I bring a deed, so maybe that is testimony. More than that, I’ll note there too that even according to Rabbah, who accepted the “why would he lie,” it is not written that there is no prohibition in doing that. The dispute is only on the evidentiary plane: is this evidence that we accept or not. Yes, but maybe there because he brings a deed it is different, because a deed is like telling what happened. It is his deed. In any case, but as for claiming — I am simply asking — to claim, is there a basis to say this is “keep far from a false matter”? A person is making a true claim; he is just using the wrong pretext. That is ostensibly a white lie, because no one loses anything. A white lie outside court and a white lie in court are not the same thing. Why? When you tell a white lie in court, you corrupt the judicial system. You are not a witness — no, only if I am a witness. Because if I am a witness you are right, because then I myself am the evidence. But — either way, if you lie in court, then you lie. What do you mean? You can say I am not lying, fine. So if you did not lie, then what is the question? But we are talking about where you did lie about what happened. I am certainly lying. And this is Maimonides in Laws of Claims and Pleas, chapter 6. There is a long Maimonides there. He talks about where a Torah scholar comes and knows that with the claim he is about to make he will lose. And they tell him: don’t worry, because we use miggo everywhere. What does that mean? You do not need to lie in order to get your money, because even if you have a lie by means of which you would win, if you tell the truth you still will not lose, because you have a miggo that will give you the force. That Maimonides there is really the source for the force of pleading, I think, the best source for the force of pleading. But in any event, from the underlying logic of Maimonides you see that this whole mechanism of miggo is basically intended in order to prevent a person from lying a white lie in court. We do not want him to lie a white lie. And there is even room to understand that according to Maimonides, the whole idea of miggo was created for this purpose, so that people would not find themselves compelled to lie in court.

Yes, but all this matter of not wanting — how does it enter into the Torah’s words “keep far from a false matter”? Because it causes damage, as it were, to the judicial system; that is the “false matter.” Yes. Lying in court is something different from lying outside of court. Even if it is white. Even if it is white. I always thought the only measure was whether someone loses. If no one loses, then why not lie in principle? One can explain it that way. But I am saying that here you see, at least in the Pnei Yehoshua — no, but there is someone here who loses, and that is the answer. Someone loses because the judicial system is being used. Yes, but I think it is more than that. There is something here — even if no one would lose later, I could still say this reasoning. It is beyond that. There is some idea that the judicial system should function properly because this is a public matter. And true, through these lies they arrive at the correct result. The correct result, yes, but not proper conduct. It is a poisoned tree even if its fruit is good fruit. I think that if we were sure that all poisoned trees produced good fruit, we would not have a problem. The problem is that we know that cultivating trees — maybe, but I am really not sure. There is something that sanctifies the process. Why do I care about the bottom line? What if you go to gentile courts that judge according to our law? Why not go to them? After all, all in all the result is good. What is the problem? One day you will go and there will be a bad result. No, I go only where their law is the same as ours. In my opinion that is the rationale. If you go now, then one day — there is a Torah-level fence. A Torah-level fence? “Torah-level fence” — he could have brought that as an example of Torah-level fences. There are many Torah-level fences; what do you mean? I do not think so. But never mind, he is not bringing that as the rationale of the verse. What rationale of the verse? I am saying it is not because of the prohibition; that is also not — the main prohibition is in places where they rule not according to Torah law. That is the main prohibition. But the prohibition also includes these cases. Why? How do you know? How do you know that? That it also includes situations where their law is the same as ours. Yes, so I am saying that because here I am inferring the rationale of the verse, I say there is a good reason to prohibit. I am not sure that is the rationale of the verse, but we do not infer the rationale of the verse. Fine, yes okay. In the end we do infer, with all — rather, what are you saying? The more likely possibility, in my view, is that this is problematic in itself, not because of possible consequences later. That is also the accepted view, that in Torah law, usually these are not means to something else. They are not fences. They are things that are inherently problematic. Fine, one can argue about that, but I say I could have said that reasoning even beyond that. There I can hear it, but here it is harder for me.

Look, I’ll bring a few examples; maybe that will help more. Look, for example, Tosafot in Gittin on page 4a, regarding “forged from within.” “And Rabbi Elazar in a case forged from within…” Yes, this is talking about two witnesses who signed the deed not for her sake, on a bill of divorce. “The Ri wondered: what does ‘not for her sake’ have to do with ‘forged from within,’ where relatives or disqualified witnesses signed it? There, by law it is disqualified because perhaps they will come to rely on them to permit a woman to remarry or to extract money on the basis of their testimony, even though the matter is true, one may act only through valid testimony, as is said in the chapter ‘Four Brothers,’ etc.” As is said in the chapter “Four Brothers,” that makes sense regarding witnesses: sometimes they look at a writing and testify, whereas the Merciful One said “from their mouths” and not “from written testimony.” “But here, where the witnesses are valid, only that they signed not for her sake, what danger is there if we rely on them?” What does that mean? Tosafot says as follows: this is a case where two witnesses signed not for her sake. Now there were also witnesses to delivery, so the divorce itself is completely fine. The only question is whether I can use this document as documentary evidence. Yes, now the bill of divorce functions as a document of proof. A discussion arises in court whether the woman was divorced or not. She brings out the bill of divorce as evidence that she was divorced. Is the documentary proof valid even if the witnesses signed not for her sake? Right? So the Talmud says no, this is “forged from within.” Because if people come to rely on these witnesses who signed not for her sake, that is “forged from within.” Tosafot asks: what does this have to do with “forged from within”? “Forged from within” is a case where we have relatives or disqualified witnesses — wicked people or whatever — signing a deed.

Now note: a loan took place. Reuven lent Shimon money, okay? Now Reuven wants a deed from Shimon. There are no witnesses around, only Shimon’s two brothers are present. So they have Shimon’s two brothers sign the loan deed for a loan that truly took place, with the assumption that when a future dispute arises in court, I will produce this deed. The court, after all, will not know that these witnesses are related witnesses. It will rely on them, and the ruling will be a true ruling because there really was a loan. What is the problem? Who loses from this? Tosafot says no: “even though the matter is true, one may act only through valid testimony.” Although when one comes to rely on these witnesses no error at all will result, because there really was a loan, so what is the problem? So he says, “one may act only through valid testimony.” And what is his proof? A Talmudic passage in Yevamot that discusses writing testimony or written testimony, and the question is what to do with that written testimony if we leave it by the witnesses. Then the witnesses will look at the written text and testify from the written text, and we will rely on them even though this is testimony from writing. And again, the testimony is true testimony because they wrote here content that is true content. So if the witnesses look at it and testify from it, they are giving valid testimony — what is the problem? The problem is that it is “from written testimony.” So what? But the result is a proper result. Yes, but one does not seek to arrive at the correct legal result by means that are themselves disqualified. Disqualified here is not necessarily falsehood, by the way; disqualified can also be by scriptural decree, “from written testimony,” or relatives, or whatever. But that is the point: one cannot arrive at the correct legal result by improper means. That is what you see in Tosafot here.

And ostensibly that really parallels what happens in our case. You are basically arriving at the correct legal result by disqualified means — you hire false witnesses to testify — “keep far from a false matter,” and therefore, as Tosafot says here, one does not do such a thing; it is forbidden. However, there is a difference. Why? Because in Tosafot’s case here, after all, I am having witnesses sign a deed that attests that there was a divorce here or there was a loan here or whatever. Instead of these witnesses I can have valid witnesses sign, fine. But here, when I hire false witnesses, I have no other witnesses. There were no witnesses who saw the loan. After all, there was a loan — why am I hiring these witnesses? Because there were no witnesses who saw it. I have no valid witnesses, or the witnesses who were there died, I don’t know. So in order to extract the money I have to hire two witnesses who will lie. Now note that here this is a case that perhaps even according to Tosafot in Gittin one could permit, because in our case, if he does not do this he will lose money that rightfully belongs to him. And understand — I am saying even more strongly than that — after all, the fellow does not even lie. After all, he causes the witnesses to testify falsely in court, and then he himself goes to the judges and says to them: know that these witnesses are liars; I only did this in order to create a miggo for myself. So that in practice, in the end, he did not even lie, and the result is a true result. I am strengthening your point, Binyamin, from before. So that even according to Tosafot in Gittin, where the problem was: instead of disqualified witnesses, have valid witnesses sign — there this is a question of which witnesses to choose from the outset. It is not the question of what to do now, when money is already owed to me. Okay? There Tosafot says: “one may act only through valid testimony.” In other words, only in a proper way. The end does not justify the means. Even if the result is a correct result, I am not willing for you to do it by improper means. But here, you are basically demanding that I lose money. After all, a person may take the law into his own hands. And note: I do this in a way that is not even a lie — it is a crafty maneuver. Because afterwards I go to the court and tell them that the witnesses lied. After all, by the time the whole process is over and the court writes the ruling, there will not be a single false word in the ruling. They will say: two false witnesses came before us saying that Reuven owes Shimon money. We reject their testimony, but Shimon wins the case because he has “the mouth that forbade.” And everything is true; every word is true. And in the judgment there will not be a single lie. We just played a trick to create “the mouth that forbade.” There was a temporary lie before we informed the court that it was a lie, in order to create “the mouth that forbade,” and then we also told the court that this was a lie, so we came out completely clean and there was nothing problematic. The Pnei Yehoshua assumes that even that is forbidden. And if he is right in explaining Tosafot, then Tosafot says this too.

Look, Tosafot suggests this as a setup for the case of one who hires false witnesses to testify, regarding which it says he is liable in the law of Heaven. So according to the Shakh, where liable means liable to pay, then it is even more plausible that this is forbidden because this is fruit of the poisoned tree — meaning there is poison here. But even according to the Pnei Yehoshua himself, where it is only “keep far from a false matter,” still there is a prohibition here. That is what he argues. Here, the Pnei Yehoshua — or the Talmud here, or Tosafot, or whoever explains the Talmud this way — is basically extending what we see in Tosafot in Gittin. Even where you will lose money, you are forbidden to save your money by improper means.

Now here there is an interesting question about a person taking the law into his own hands, because a person taking the law into his own hands may even beat the other party. That is also an improper means. You are forbidden to strike; one who strikes his fellow is called wicked; one who raises his hand against his fellow is called wicked. That too is an improper means. So what is the difference? I think the difference really is that here this is corruption of the system. An improper legal means means that the judicial system, which is the core, the very heart of our halakhic-social functioning, is operating incorrectly. And that, apparently — at least the Pnei Yehoshua or Tosafot or whoever it is — they are not willing to accept. Even though the result is true, and in the end the protocol, everything written in it, is true, and the court was not misled, everything is fine. We just used tricks.

Maybe it is because of the witnesses’ prohibition specifically, not his. The witnesses too, no problem. No, the witnesses certainly are a problem, because when they come initially, they do not say they are liars. Why? He conspires with the witnesses in advance. He tells them: look, you will testify, and afterwards I will come to the court and say that I hired you to give false testimony in order to create “the mouth that forbade” for myself. When they testified the first time, that was forbidden because then they told a lie to the court in their capacity as witnesses. Never mind, but the whole thing was planned in advance, that afterward the man would come and say they are false witnesses. I understand that. No, but I am trying to think what prohibition he violated. I did nothing, because you say “do not place a stumbling block” — and the witnesses, or he, whatever it is, you see that according to — no, that is very important, because here it comes out that it is forbidden to benefit from the fruit of the poisoned tree even if the one who benefits is not the one who committed the prohibition. No, on condition that he did commit a prohibition. The Pnei Yehoshua writes that he committed the prohibition, that he lied in his words. Fine, I understand that maybe this does not fit what the Pnei Yehoshua says, but why can’t one explain it like this: say that I did not do anything, the witnesses did, but still — do not benefit from what the witnesses did. I have a problem here saying what prohibition he did. You say “do not place a stumbling block” — one can also accept that, no problem. One can also talk about fruit of another person’s poisoned tree. We apparently have to talk about that here, because I do not understand what prohibition can be pinned on him. He did not do any prohibition from beginning to end. If you remove “do not place a stumbling block” from the equation, what remains? That he spoke with the witness beforehand? He did not merely speak; he hired. Fine — so what? Is there an prohibition “do not hire witnesses”? Yes. No, that is “do not place a stumbling block,” that is the prohibition. No, not “do not place a stumbling block.” The prohibition is that the witnesses’ action is considered your action. You lied in court when you paid them. If you merely told them, then it is their lie; we will get to that in a moment. But if you paid them, once I paid someone it becomes — he becomes my agent. An agent for a transgression. Wait, I’ll get to that in a moment. I’ll get to that in a moment.

By the way, I just thought of something stronger. It says “keep far from a false matter.” Rabbi Cherlow once wrote this in an article in Tzohar, I think, yes — he had an article in one of the early issues on a Shulchan Arukh of the laws of lying. He wrote there some schematic Shulchan Arukh of the laws of lying, and he opens with the point that there are very few things from which the Torah demands not only that we not do them but that we keep far from them. From sexual prohibitions one must keep far, and from falsehood one must keep far. Now what does it mean to keep far from falsehood? Here it fits in well. The claim is: you are right, I did not lie, but all in all I created here a situation in which falsehood arose in court. So this falls under “keep far from a false matter,” not under falsehood itself. You are taking away the free choice of the witnesses; I only offered them money. They created the situation. No, no, that is “the words of the master and the words of the disciple,” and we’ll get to that in a moment. It is not connected. Even if they have free choice, one still cannot say that I kept far from falsehood. That does not remove the blame from me. It may be that they are also guilty; that is not the point. But I am not. Many times, when you say someone has contributory blame, they immediately tell you: look, if you tell a woman who walks around in revealing clothes and therefore was assaulted or harassed or whatever, everyone gets indignant: what do you mean? I am allowed to do as I please. So are you blaming the victim? My answer is yes, but not only the victim. Obviously the one who did it is also guilty, but that still does not mean there is no contributory blame on the victim. Meaning, the fact that I blame the witnesses and they have free choice — all true. Does that mean I myself am pure and clean, that I even kept far from falsehood, not only that I did not lie? Absolutely not. The question is where to draw the line. Because if you say this is actually defined as a prohibited act, then you have to say where. And if I only persuaded them — “keep far from a false matter.” No, but this “keep far” also has to have some boundary. And the boundary is that if you hire witnesses and pay them to lie, I do not think this belongs in the gray area. That is fine. If there is anything that is not keeping far from falsehood, it is exactly this. On the contrary, if he just said to them, there may perhaps be room to discuss it, and we will soon see, if he only said it and did not hire them.

Okay, one more thing before I move on. First of all, there is the case of “he stooped and whispered” in Bava Batra, and I already told you that there the dispute is only on the civil plane, whether we accept a miggo created that way, through such a trick. But it does not say in the Talmud there whether it is permitted or forbidden to do this. Those are two different things. There is also another nice example regarding a court — in capital cases. The well-known paradox: what happens if all the judges think that so-and-so is guilty? The rule is that if they all judge him for death, he goes free. So twenty-two judges have already expressed their opinion and said he is guilty. Now I am the twenty-third judge, and I also think he is guilty and deserves death. But if I say that, he will go free, because then all the judges said so. Am I allowed to lie and say that in my opinion he does not deserve death, in order to ensure that he receives the death penalty as I truly think he deserves? Again, this is a question of whether I may reach the true result by false means. The opposite question is much more interesting. Same thing, yes, of course. Someone who thinks he is not liable — may he lie and say that — what is your interest? You want to kill him? For that you will make an effort and lie? Not make an effort — the question is whether I am permitted. I want to bring the truth to light. Fine, the question whether it is permitted or forbidden to bring the truth to light is one thing, but here it is another question: you can save a person whom you know is innocent, and for that you need to say — certainly, that is the question, to bring the truth to light; I do not think there is a difference.

But there too it is also quite clear to me — people discuss it, though I do not remember a clear source — but it is clear to me logically that one may not do this. But there the logic is simple and not connected to us. Why? Because suppose the Torah said that if twenty-three judges say he is liable, then he goes free — because apparently there is some bias in the proceedings there, or everyone was drawn after someone very wise, very charismatic, or whatever, and they are concerned that not everyone independently formed his own opinion. Now the truth is that all of us think he is guilty, so about this very case the Torah says: I am concerned that something is wrong here. What happens if I lie? If I lie, I say that in fact he is innocent, and then they will put him to death — but the Torah did not want him put to death when all of us think he deserves death. So here I am directly opposing what the Torah said. Here in my opinion there is no side at all to permit me to lie. Here clearly I have to say what I really think, and whatever judgment comes out will come out. Of course the court can always imprison him in a cell and do other things to deal with the problem it sees, but a death sentence is what the Torah said. The Torah said that in such a case I do not want them to kill him. So now what are we saying? I too think he deserves death, which means that the deliberation is certainly flawed. Now I lie so that the judgment the Torah wants will not come out. That is not reasonable. Therefore, in my opinion, that example is not a good example. There it is obvious that one may not do this, obvious that one may not do it, because it is directly against what the Torah did not want done.

Maybe one last example. The last example is the Mishnah in tractate Makkot. I keep disconnecting the screen-share because I want to see you, and every time the page is up there in sharing, I do not see you. “There were two who saw him from this window, and two who saw him from that window, and one person warned him in the middle. When some of them see one another, these are one testimony; and if not, these are two testimonies. Therefore, if one of them is found to be zomem, both he and they are executed, and the second group is exempt.” Meaning, there are two groups of witnesses in split testimony, each from a different window, okay, who testify that Reuven murdered Shimon. One of the two groups was found to be zomem. At that point — two different windows, so it is not one group but two groups. If it were one group, then if part is discredited as zomem, all are discredited as zomem. So you could not put him to death. But if it is two distinct groups, then one group is discredited and the second remains in force. So the murderer is put to death because there is one group testifying that he is liable to death and it was not discredited. And the second group is put to death as false plotting witnesses. But this is unbelievable. They testified true testimony. They testified that Reuven murdered Shimon. And we, the court, rule that the truth is that Reuven murdered Shimon, based on the second group of witnesses. And we kill them as false plotting witnesses? But they testified — we saw that Reuven murdered Shimon. Is that not true? Is that not true? They did not see? They were discredited — they were elsewhere. They did see. They did see. After all, this is exactly what the Talmud says: false plotting witnesses is “two against two,” it is a novelty, right? The Talmud in Sanhedrin. It is two against two. There are two witnesses who say “you were with us,” and we say no, we were there and we saw. Now it becomes clear to the court that Reuven really did kill Shimon in that place and in that situation. So why does that itself not only not make them valid as the witnesses who kill the murderer — forget it, let us say it is a doubt. But at least there should be a doubt for you. You kill them because they are certainly liars? After all, you have supporting testimony that they really saw the murder. So perhaps the discrediting witnesses are liars. At least as a doubt.

Now in this case — but I say, that is one wonder, but that is not what I am talking about. I am talking about the second point. These witnesses basically plotted to kill a genuine murderer. Let us say they really are false plotters, the second pair is valid and these lied — they were not there. But they came to testify testimony that would bring about the execution of someone who really did murder, in that very place and at that very time. So why do you kill them? I kill them because they corrupted the judicial process. They came and lied in court in order to bring out a true judgment, not to bring out a false judgment. Do you understand what I am saying? You see here that to such an extent, they are not merely seen as ordinary liars — “you transgressed a prohibition” — they are put to death under “as he plotted.” Even though in fact they testified about someone who truly did murder and truly deserved death. By the way, if he had already been sentenced to death, then of course they would not be killed, because then they testified about a dead man. But here we are talking about where both groups testify to the case before the sentence was issued, and one group is discredited. So at the moment he is not yet a dead man, because as we saw earlier in a death sentence, it does not exist until the court rules it. But still, clearly they testified true testimony in the sense that they testified that Reuven murdered, and he really did murder.

But I go back to what Doron said. I think I do understand his point more. All in all, in order for everything to fit together, we have to say that if you ask the court what the factual truth is, it will say: Reuven murdered, and the zomem witnesses did not see him, only the first group did. That is the only way to put all the pieces in place. Now if that is the case, then they deserve death because they lied and said they did see him. That is all. Not because they plotted to kill a person. That is not the prohibition. The prohibition is that they lied. No, but they lied in order to testify true testimony. Does not matter. The Torah did not state that limitation. So what does that mean? It means only one thing: with zomem witnesses, the novelty is not that the prohibition is to kill an innocent person. The novelty of zomem witnesses is the punishment. Oh, then excellent. So now I ask: what is the difference between that and one who hires false witnesses? In one who hires false witnesses, the witnesses came and lied in order to produce the true judgment. So they too are lying witnesses. That is what I say from there. It is not the same thing, because if this is a monetary issue, then okay, in money cases I do not care what lies there are between the two sides. Why is it money? I say these witnesses came and gave false testimony in court. Now you tell me: true, they lied, but the content is true. That is what you see in the Mishnah in Makkot. No — in the Mishnah in Makkot I do not care about the content at all. If they told a lie, whether the content is true, I have no problem — but they told a lie, they deserve punishment. And that is the novelty of false plotting witnesses. But then they are lying witnesses. The novelty of lying witnesses and of “as he plotted” is: punish him for the fact that he told a lie. Exactly. But that is not the point. But aside from punishing him, the final result should not change. I am not talking about the final result; I am talking about the prohibition. Why is there a prohibition on witnesses who lie when in the end nothing defective actually comes out of their testimony? I want to argue that there is still a problem, a problem in doing such a thing. I am not talking now about whether to believe them or whether to extract money; I am talking about the prohibition. After all, before, you argued with the Pnei Yehoshua — what prohibition is there here? So I am showing you that giving testimony that brings about the true result — if you yourself are lying, then you are a lying witness. And that is a separate question from what they do with your testimony. That is another discussion. That is the difference between capital and monetary cases. Fine, that could be. But as to your being a lying witness, you transgressed “keep far from a false matter.”

Okay, now Tosafot later on — I see I am not going to finish all of this; we will continue. In the next lecture I will still do part of this and then move on, because I see I am not going to finish it all. Look at another Tosafot in our topic, beginning “rather specifically one who hires.” “But if he said…” Yes, if he hires the witnesses, then yes. “But if he said to the witnesses to give false testimony, he is exempt in the law of Heaven, because he assumed they would not listen to him.” Yes, if he pays them, then they will probably do the job because they want the money. But if he just tells them, then he assumes they will not listen to him, and therefore he is not only exempt in human law, he is also exempt in the law of Heaven. “Not for nothing did the Talmud establish this specifically in one who hires false witnesses and not in one who says to false witnesses. For it does not seem right to say that it mentions one who hires in order to teach us that even one who hires is exempt in human law, for that is no novelty at all. And later the need is only regarding the law of Heaven.” Yes, later on the Talmud makes a “this is needed,” why is this needed here? Because you would think “the words of the master and the words of the disciple — whose words should one obey?” and therefore he would be exempt even in the law of Heaven, so it teaches us that he is liable in the law of Heaven. Meaning, the whole discussion of why this case is needed concerns the law of Heaven.

Okay, he brings some proofs for this. But for our purposes, what does Tosafot say? That this is specifically one who hires. But if he says it to them, then he is exempt even in the law of Heaven, because he can say: “I did not think they would listen to me, that they would really lie.” By the way, according to the Pnei Yehoshua’s reading in Tosafot this is a little more difficult, because the person is basically hiring them as false witnesses, and it may be that from the outset he tells them: this whole thing is a conspiracy in advance — you will give false testimony, and afterward I will come to the court and say that this was false, and all of this is a legitimate maneuver that we did in order to extract my money. Then it comes out that they too are not lying, and perhaps to such a conspiracy they would agree. Fine, but maybe not.

I do not understand this reasoning, “he assumed they would not listen to him.” But they did listen to him! But they did listen to him, so he caused it, so they listened to him! That is what they chose. “The words of the master and the words of the disciple — whose words should one obey?” Okay. But here this depends on the following question. Look, it is well known that there is a dispute among the later authorities about this reasoning of “the words of the master and the words of the disciple — whose words should one obey?” This reasoning is said in several contexts in the Talmud, mainly regarding “there is no agency for a transgression.” There is no agency for a transgression because “the words of the master and the words of the disciple — whose words should one obey?” The Sma in Hoshen Mishpat 182 explains it as follows: “The sender can say: I thought he would not listen to me to do it; therefore the sender is not liable.” Why is the sender exempt when it comes to agency for a transgression? Because he basically says: I assumed that the agent would not listen to me at all. After all, this is forbidden, so clearly he would not listen to me. So what do you want from me? On this Rabbi Akiva Eiger comments in his novellae to Bava Metzia: “And I saw that the Sma explains the reasoning that there is no agency for a transgression by saying that he can claim, ‘I thought he would not listen to me.’ See there. According to this, in the case of a Jew who is an apostate to the entire Torah, this does not apply.” After all, if I send an apostate Jew as an agent to commit a transgression, he does not keep Jewish law, so clearly I know he will listen to me; he has no problem transgressing prohibitions. “But I do not know where the Sma got this from. On the contrary, it seems to me I can prove not like his words,” etc. He brings proofs. “Rather, we must say that the whole reasoning that there is no agency for a transgression is that since he should not have listened to the words of the master, automatically the agency is void.” Another explanation. It is not an excuse of the sender, saying that I thought the agent would not listen to me. Rather, the agent himself cannot be considered my agent, because I told him one thing and the Holy One, blessed be He, told him something else. If he decided to listen to me and not to the Holy One, blessed be He, then the transgression is his. The responsibility rests on him. So I told you — so what if I told you? The Holy One, blessed be He, told you something else. So can you exempt yourself by claiming “but he told me”? What does “he told me” mean? What, if he told you to jump off a roof, as people say? No. Meaning, you have responsibility. The Holy One, blessed be He, told you something else, and therefore the agency is void; he is not acting on my behalf.

Now what Tosafot says here ostensibly fits the Sma, right? Because really, if this is what “the words of the master and the words of the disciple — whose words should one obey?” means, then according to Rabbi Akiva Eiger why should there be any difference between one who hires and one who merely says? What, if they get money then they are allowed to lie? They are also forbidden to lie. “The words of the master and the words of the disciple — whose words should one obey?” If you are talking about the concern that perhaps they will not listen to me, then fine: if I paid them money, then clearly they will listen to me, otherwise they would not have taken the money. So the claim that they would not listen to me does not apply in the case of hiring; it applies in the case of merely saying. Fine? But if the point is “the words of the master,” meaning the responsibility is on you, the agent, because after all the Holy One, blessed be He, told you something else, and therefore you cannot shelter behind the fact that you are acting on my behalf — then what difference does it make whether I tell you or hire you? Even if you got money from me, can you then exempt yourself by saying that I paid you money? Theft, falsehood — the Holy One, blessed be He, forbids doing this; you should have listened to Him. So according to Rabbi Akiva Eiger, Tosafot’s distinction does not exist. Tosafot’s distinction exists only according to the Sma. And indeed Tosafot really says “because he assumed they would not listen to him.” He does not even use the phrase “the words of the master and the words of the disciple — whose words should one obey?” which appears later in the Talmud. Rather he immediately gives the Sma’s explanation too: “because he assumed they would not listen to him.” Okay?

I do not think, by the way, that this is necessarily correct. In my view this can fit with Rabbi Akiva Eiger too. But I’ll leave that. In the end, if he thought — if in the end he thought they would not listen to him, everyone should agree that he is exempt. He is simply completely inadvertent; he did not seriously intend it. The question is whether one really accepts that claim. That is not connected, because here we are talking about liability in the law of Heaven, no? Whether we accept the claim? What? I did not understand. What does “whether we accept the claim” mean? Obviously — what? Because we do not know — no, with ordinary agency for a transgression — are you talking about ordinary agency for a transgression or our case? Ordinary agency for a transgression is a matter for the court, not for Heaven. I am talking about our case. Yes. Here after all, the discussion is whether he is liable or exempt in the law of Heaven. So if you say that if he really thought they would not listen to him, that is reason to exempt him in the law of Heaven — that is what he thought, what can he do? It is difficult if he really thought so. Obviously, if he did not really think so, then Tosafot certainly thinks he thought so. No, but when we determine that he is liable in the law of Heaven, we have to determine it according to the presumption of what is in his heart, even though you can ask why we need to determine whether he is liable in the law of Heaven. Right, that is what I am saying. Clearly we know it depends on this. Tosafot says that since he thinks they will not listen to him, therefore he is exempt. In a case where he did not think that, then he really is liable. Exactly so. Then he is liable — so what is the problem? So this fits also according to Rabbi Akiva Eiger. That is what I am saying. So we are talking about a case where he did think that? He made a setup that it is talking about a case where he did think that. Exactly. Maybe. I think I have a stronger explanation than that why this is not really connected, but we will discuss that next time. The question is whether the laws of agency even apply here at all. I think not. But in the next lecture. Think about it, and I might also send you something.

We are moving to the next case. What time is it? The fourth case. After one who hires false witnesses to testify — wait. “One who knows testimony for his fellow and does not testify for him.” Yes. One who knows testimony for his fellow and does not testify for him. Yes. So after that we will move to the second case — I mean the last case, the fourth. Okay. Fine. Next week there is no lecture. When does the semester end? I did not look. Next Sunday is the last day. Do they still study on Sunday? Yes. Oh, then apparently it will only be after Passover. Too bad I did not finish. Fine. Okay. All right, no matter. Thank you very much. Happy holiday. Happy holiday, goodbye.