Eidus Sh'ee Atta Yachol L'Haazimah

The first case of the mishnah in Makkos 2a involves two witnesses testifying that a particular kohen is a ben-gerushah v’chalutzah. The mishnah states that if the witnesses are proven to be eidim zommemin they do not receive the traditional punishment of kaasher zamam (in this case to become challalim); they receive malkos instead. Tosafos (d”h Meidin) ask on the mishnah from the concept known as eidus she’ee atta yachol l’hazimah. The halacha is that for eidus to be accepted it must be “yachol l’hazimah” - it must be possible to both falsify the witnesses through imanu hayissem as well as to punish them with kaasher zamam. Tosafos therefore ask that if it is true that eidim zommemin in the case of ben-gerushah v’chalutza don’t receive the punishment of kaasher zamam, why then is their testimony acceptable at all? Why isn’t it considered eidus she’ee atta yachol l’hazimah?

Tosafos offer two opposing answers to this question. First, Tosafos suggest that the malkos the eidim zommemin receive in the case of ben-gerushah v’chalutzah is in fact halachically considered kaasher zamam. Accordingly, testimony on a ben-gerushah v’chalutzah is yachol l’hazimah and therefore acceptable in court. Tosafos second answer takes the opposite approach. In reality, when it comes to creating a ben-gerushah v’chalutzah, there is no need at all for the eidus to be yachol l’hazimah. This is so because the entire source for the din of yachol l’hazimah is actually the pasuk of kaasher zamam. Since the gemara excludes eidim zommemin of ben-gerushah v’chalutzah from the punishment of kaasher zamam, they are excluded from the din of yachol l’hazimah as well.

It emerges from the second answer of Tosafos that the requirement for eidus sheyachol l’hazimah doesn’t apply to eidus on a ben-gerushah v’chalutzah at all. This position presents us with an interesting question. We know that the requirement of yachol l’hazimah in eidus actually expresses itself in two ways. First, there is the requirement that Tosafos highlight – that the eidim must be able to theoretically receive the punishment of kaasher zamam for their eidus to be accepted. This requirement is mentioned explicitly in several sugyas in shas.[1]

The requirement of yachol l’hazimah, however, expresses itself in a second way as well. The gemara in Sanhedrin (41b) discusses the requirement upon Beis Din of derishah v’chakirah (to investigate and question the eidim) and mentions two kinds of questioning – chakiros and bedikos. The gemara explains that chakiros are fundamentally different than bedikos in that chakiros are questions of where and when the eidus took place; bedikos, on the other hand, are questions of what exactly took place. When it comes to chakiros, the gemara says that the eidim must answer for their eidus to be accepted. Why? Because if the time and place haven’t been specified the eidus will not be yachol l’hazimah in the sense that other eidim won’t be able to say imanu hayissem. When it comes to bedikos, on the other hand, this isn’t true. Although it is a mitzvah upon Beis Din to conduct bedikos, the eidus is still acceptable even if the eidim don’t answer the questions. Since the information being sought from the bedikos isn’t needed for imanu hayissem, that information is not required.

Based on this, we can now ask on the second answer of Tosafos. If it’s true that eidus on a ben-gerushah v’chalutzah doesn’t need to be yachol l’hazimah, does that mean that the eidim don’t need to answer the chakirah’s? Is testimony on a ben-gerushah v’chalutzah acceptable even if the eidim don’t specify time and place?

The opinion of the Noda B’Yehudah is yes –testimony by a ben gerushah v’chalutzah is acceptable even if time and place aren’t specified according to the second answer of Tosafos.[2] He explains that the requirement upon Beis Din to ask chakiros and the requirement upon the eidim to answer them are completely separate. The requirement upon Beis Din to ask is from the pasuk of v’darashtah v’chakartah and applies to all testimonies – even testimony on a ben gerushah v’chalutzah. The requirement upon the eidim to answer, however, comes from the requirement of eidus sheyachol l’hazimah that is learnt from kaasher zamam. Since this requirement is waived by eidus on a ben gerushah v’chalutzah according to the second answer of Tosafos, the requirement to answer the chakiros is also waived. The Noda B’Yehudah goes further and extends this chiddush to other cases where there is no kaasher zamam, as well.

The Beis HaLevi[3]takes issue with the position of the Noda B’Yehudah. Most significantly, he notes how novel this position is, as it is never mentioned anywhere in shas that there are cases where chakiros - on a level of d’orayssa - need not be answered. More fundamentally, the Beis HaLevi offers a different understanding of the chakiros in general. He explains that in reality the din of yachol l’hazimah is not separate from the requirement upon Beis Din to ask derishos v’chakiros contained in v’darashtah v’chakartah. Rather, the gezairas hakasuv of kaasher zamam (i.e. eidus she’yachol l’hazimah) is that the chakiros that Beis Din asks are a part of the etzem ha’eidus itself. Unlike bedikos, chakiros are required not only from Beis Din’s perspective, but from the perspective of the eidim as well.

The Beis Halevi provides logical proof to his position. He argues that if eidus merely needed yachol l’hazimah as a separate din (and not because it was part of the etzem haeidus) that wouldn’t require such specificity regarding the time of the eidus. After all, let the mazimin come in and say imanu hayissem for the past 50 years. Why the need to specify the exact day, and even time of day? The Beis HaLevi therefore explains that in reality Beis Din ask specifics because of v’darashtah v’chakartah. The din of kaasher zamam then tells us that the specifics of where and when (as opposed to the specifics of what) are part of the etzem ha’eidus and therefore both punished by kaasher zamam and absolutely required.[4] According to the Beis HaLevi, it emerges that eidim need to answer chakiros not as a separate requirement, but rather because it’s not considered eidus at all without certain details.

Based on this, the Beis HaLevi explains that even if the requirement for the eidim to receive the kaasher zamam punishment is waived by eidus on ben-gerushah v’chalutzah, the requirement for them to state the when and where of their eidus is certainly not waived. This is so because that second requirement is mandated not by the mere gezairas hakasuv of kaasher zamam, but rather by the fundamental definition of eidus itself. In Chiddushei R’ Chaim HaLevi Eidus 3:4, R’ Chaim seems to accept the position of his father, the Beis HaLevi. He writes that within the din of derishah v’chakirah there is contained two chiddushim. First, there is the requirement that the eidim be questioned. Second, there is a chiddush that the chakiros themselves are a part of the gufah shel eidus.

---

[1] See Sanhedrin 41a regarding a naarah meorassah, Sanhedrin 78a regarding a teraifah, and Babba Kamma 75b regarding modeh b’knas.

[2] See Nodah BiYehudah Mahadurah Kamma 57.

[3] 3:6.

[4] See the Beis HaLevi inside for various formulations on how kaasher zamam works together with v’darashtah v’chakartah.

Malkos D'Orayssa on Ben Chalutzah Midrabbanan

The first Mishnah in Makkos states that if witnesses testify that someone is a ben-chalutzah they do not get the punishment of kaasher zamam if they are found to be zommemin; rather they are punished with malkos. The Ramban and the Ritvah both comment on this that this is not really true, and that ben-chalutzah was thrown in the mishnah merely because it is often grouped with gerushah. In reality, ben chalutzah is only midrabbanan and therefore there can be no malkos mid’orayssa for ben chalutzah testimony that is only d’rabbanan.[1]

The Rambam in Hilchos Eidus 20:8, however, clearly includes ben chalutzah in getting malkos implying that it is no different than ben gerushah. The question is how can eidim get malkos mid’orayssa for eidus that only exists on a d’rabbanan level according to the Rambam?

R’ Akiva Eiger explains the Rambam simply that even though ben chalutzah is only mid’rabbanan, still the testimony is false and is a transgression of lo’ saaneh on a d’orayssa level; and it is this transgression of lo’ saaneh that is michayev malkos.[2] The question then becomes what precisely is the nekudas hamachlokes between the Rambam and the Ramban/Ritvah?

One approach we can take to answer this question would be to suggest that it is only the Rambam that holds that malkos in a case of ben chalutzah is directly related to lo’ saaneh. The Ramban and Ritvah, however, hold that malkos only results if there is also a chalos din of “harshaas hatzadik” (from the pasuk of v’hitzdiku brought in Makkos 2b). In the case of ben chalutzah the shem rasha the witnesses are trying to create is only d’rabbanan and therefore cannot result in malkos mid’orayssa.[3]

A variant of this answer would be to suggest that everyone agrees that we need harshaas hatzadik to be mechayev malkos. The argument between the two sides would stem instead from different views of issurei d’rabban. There is a well known chakirah from R’ Shimon Shkop as to whether issurei d’rabbanan are “chal in the cheftza” or not. According to the view that they are, if a piece of food is assur mid’rabbanan we say that the food itself is a cheftza shel issur – the same as we do by food that is assur mid’orayssa. The opposing view holds that there is a distinction between issurei d’rabbanan and issurei d’orayssa. By issurei d’rabbanan the food itself is not issur. Rather, the din merely is that the person must conduct himself as if the food is assur. In short, it is a din in the gavra, not the cheftza. Along these lines we can suggest that the Ramban and Ritvah hold that the din of ben chalutzah is just a din relevant to how the kohen must conduct himself, but there is no challos shem challal in the kohen himself. Therefore, it is not harshaas hatzadik and there is no malkos. The Rambam, on the other hand, would hold that there is harshaas hatzadik because issurei d’rabbanan are chal in the cheftza and the eidim zommemin would in turn get malkos.[4]

Although to two above approaches are valid, there is a third approach that uses a more direct and universal principle. In Shoresh Rishon of Minyan Hamitzvos we find that the Ramban takes issue with the Rambam’s approach to dinei d’rabbanan in general.[5] From several places in the Rambam it seems that within every din d’rabbanan there is some element of the d’orayssa lav of lo’ sassur contained within. The Ramban asks numerous questions on the Rambam all along the same lines. Basically, the Ramban argues that dinei d’rabbanan can only be mid’rabbanan, and they cannot possibly contain d’orayssa elements. Any sugyos that bring in lo’ sassur, says the Ramban, are more along the lines of asmachta.

The explanation of the Rambam would seem to be as follows. Of course it is true that dinei d’rabbanan are not d’orayssa in the technical sense. There is no malkos mid’orayssa, no safek l’chumra etc. However, the torah does recognize the existence of dinei d’rabbanan. R’ Soloveitchik phrased it that a din d’rabbanan is considered a cheftza shel torah mid’orayssa. One example he used to illustrate this was a case of someone who learned Meseches Megillah - a mesechta involving only d’rabbanan dinim - all day. Would anyone in their right mind suggest that this individual hasn’t fulfilled the mitzah of limud hatorah on a d’orayssa level? Would you not make Birchas HaTorah on this learning? The answer is of course that learning dinim mid’rabbanan is limud hatorah because dinei d’rabbanan are cheftzai torah mid’oraysa. The torah essentially recognizes these dinim as existing.

The Rambam holds that the idea that all dinei d’rabbanan are cheftzei torah mid’orayssa is learned from the pasuk of lo’ sassur. The pasuk doesn’t give dinei d’rabbanan a d’orayssa status, as the Ramban implies the Rambam holds, but it does at least confer recognition upon the existence of these dinim. The Ramban and the Ritvah on the other hand disagree. They hold that although the Rabbis have authority from the torah to create dinim, the torah doesn’t then go ahead and “recognize” particular dinei d’rabbanan on a d’orayssa level. Therefore, if eidim come and testify on a ben chalutzah, they haven’t testified at all on a d’orayssa level because that category of halacha doesn’t exist on the d’orayssa plane. The Rambam argues that the d’orayssa level does recognize categories of halacha created by the rabbanan.

This same machlokes is found in another area of halacha as well. In Avodah Zarah 22a, Tosafos b’shem Rabbeinu Tam (d”h teipuk) state that even though the issur of melacha on chol hamoed is d’rabbanan, still if one Jew causes another Jew to transgress this issur he transgresses lifnei iveir on a d’orayssa level. The Ramban and the Ritva[6] there argue and ask how can this be? If the issur is only d’rabbanan surely the lifnei iver cannot be d’orayssa?[7] Therefore, the Ramban states his position that the issur melacha on chol hamoed is d’orayssa. The Rambam (Hilchos Yom Tov 7:1) disagrees with the Ramban and paskens that the issur melacha on chol hamoed is d’rabbanan. It would seem that the machlokes revolves around the same issue. The Rambam recognizes that the issur d’rabbanan exists as an issur even on a d’orayssa level and there can therefore be lifnei iveir. The Ramban, on the other hand, disagrees.

---

[1] See Rashi (Makkos 13a d”h gerusha v’chalutza) who seems to say that the din ben chalutzah is d’orayssa. Tosafos there argue based on an explicit gemara. The Rambam Issurei Biah 17:7 states clearly that ben chalutza is d’rabbanan so Rashi’s opinion cannot be used to explain the Rambam.

[2] See notes of R’ Akiva Eiger on side of Frankel Rambam.

[3] See Birchas Avraham Makkos 2a quoting Hagahos HaMeiri.

[4] See Birchas Avraham Makkos 2a.

[5] See Shiurei R’ Shmuel Makkos 2a

[6] See various girsaos in the Ritva.

[7] In terms of lifnei iveir see Minchas Chinuch 232 b’shem Pnei Yehoshua that suggests that causing someone to transgress a d’rabbanan couldn’t possibly be worse than giving any other form of bad non-halachik advice that is also lifnei iveir mid’orayassa, so what exactly is the issue? The Achiezer 3:65:9 explains that lifnei iveir by advice and by halacha are two separate categories. By halacha one transgresses even if the “blind” person knows he is doing something wrong. The enabling of the transgression itself is lifnei iveir even if there is no trickery involved. This, however, is not the case by bad advice.