Friday, December 21, 2007

Palginan Diburah

Chaim B. just put up a nice post on Palginan Diburah so I thought it was a good opportunity to write up what I had on the subject.

The Sugyos:

Gittin 8b: A guy writes a shtar to his eved that says "All my property belongs to you". Rava there says that we say palginan diburah. The eved goes free, but gets no property. [The reason he isn't believed on the property has to do with kiyum shtaros. On going free he is believed to say B'fanei Nichtav - like by get isha.]

Gittin 9a: A shchiv m'ra writes over all his property to his eved and then gets healed. On the property the kinyan is chozer, but on the freedom the eved still goes free (because he already has a "shem ben chorin"). This too is a halacha of palginan diburah.

Yevamos 25a/Sanhedrin 9b: Again, the shitah of Rava in two cases. If a guy testifies Ploni ravani lirtzoni or ploni rava ishti l'rtzonah. So on himself or his wife we say he is not believed. For himself he isn't believed because ein adam masim atzmo rasha. On his wife he is a karov. Nevertheless, due to palginan diburah we say he is believed on ploni.

It would seem that Rava in this last sugya is l'shitaso to Gittin where he holds palginan diburah.

Psak Halacha:

The Rambam in Avadim 7:2 and in Eidus 12:2 brings these sugyos l'halacha and seems to pasken palginan diburah.

The Issues:

The Ramban in Makkos 7a asks on Rava's shitah of palginan diburah from the sugya of Ilya v'Tuvia. Ilya and Tuvia were relatives of a guarantor of a loan. The gemara says that this means they are relatives of an involved party and they cannot be witnesses to the loan. The idea is that even though the guarantor is not the actual borrower, since he stands to lose money if the borrower defaults, he too becomes a baal davar. The Ramban asks, what about palginan diburah. Let us say that Ilya and Tuvia are believed as far as the loveh (the borrower) and not as far as the arev (the guarantor).

The Ramban brings the answer of the Raavad. He sets down the following principle. The concept of palginan diburah only applies when the person is testifying about himself. In such a case we say that the eidus is not eidus at all. Thus, we can nullify that part of the testimony and accept the rest. However, by relatives, the eidus on the guarantor is eidus, albeit eidus pasul. If so then we apply a different rule of eidus shebatlah miktsasa batlah kulah. So, according to the Raavad the thrust of the din of palginan diburah is really to say that part of the eidus has no shem eidus. Only then can we say the rest of the eidus is valid, through palginan diburah.

One issue to resolve in the Raavad is the case of Ploni Rava es Ishti. In that case the testimony is about a relative, the guy's wife. For this issue, the concept of Ishto K'gufo is employed so the testimony is, in fact, about the guy himself. Thus, we can still apply palginan dibburah. This is the Raavad's approach to palginan dibburah.

The next step is to address the Rambam's approach to the issue. We will start off by proving that the Rambam does not agree with the Raavad's distinctions. The easiest way to demonstrate this is from eidus 13:13 where the Rambam brings the psul of testifying for one's wife as being a regular psul of karov, like any other relative. Clearly, the Rambam isn't employing ishto k'gufo and thus cannot go with the Raavad's approach.

Also, there is a Raavad found in Mishne Torah Eidus 12:2 that seems l'shitaso, working with the same principle that palginan diburah applies only when someone is testifying about themselves. The Rambam there lists the various cases of palginan diburah and then adds:

וכן כל כיוצא בזה

On this line the Raavad argues that this is not the case. For example, if the case would be ploni rava es shori (my ox), we would not say palginan diburah, but rather eidus shebatlah miktzasa batla kulah. The Ravad is following the same principle that we only say palginan diburah by the baal davar. The implication of the Raavad is that the Rambam makes no such chiluk. In general, the fact that the Rambam never draws this distinction implies he doesn't hold of it. Rav Chaim in eidus 14:4 makes this point in the Rambam.

The Rambam never actually brings the sugya of Ilya and Tuvia l'halacha. The possibility exists that he doesn't bring it for this very reason. The story contradicts the principle of palginan diburah. (See the Grach in Eidus 14:7 discussing these points.)

However, the Rambam does bring some cases that are problematic with the psak of palginan diburah. In Eidus 14:7 the Rambam paskens that if someone writes of shtar giving his property to two people and the eidim are related to one and not the other we say the shtar is no good. The question is why not say palginan and let the eidus work for the party that is not a karov? The Ramban in Makkos actually says that we don't pasken this case l'halacha because we hold palginan dibburah. Obviously, the Rambam has some distinction that we need to discover. Even stranger is that the Yerushalmi (Gittin 1:1) ties this case to the case in Gittin of giving one's property to his eved. This case is based on palginan diburah. So how could the Rambam pasken palginan over there and not here?

These are some of the issues to deal with in palginan diburah. Perhaps in a future post we will address them. Here are some maareh mekomos that deal with the topics we just detailed:

Grach on Rambam 14:7
Ginzei HaGrach 29
Kobetz HeAros Yevamos 21: 1, 12, 13
Grach Stencils 208 (see also Minchas Chinuch Mitzvah 37)
Kobetz Shiurim Gittin 7
Mishnas Rav Aharon Gittin, Biinyan Palginan