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Kesuvos, 28

1) TESTIFYING ABOUT SOMETHING ONE SAW WHILE HE WAS A KATAN

QUESTION: The Mishnah lists the topics about which a person may testify when he is an adult, even though he witnessed them when he was a Katan. If a person is trusted to testify about these things that he witnessed when he was a Katan, why does he have to be an adult to testify about them? He should be able to testify about them while he is a Katan!

ANSWERS:

(a) The RITVA and TOSFOS RID learn that the Mishnah is teaching that although a witness must be a valid witness both at the time that he sees the event, and at the time that he testifies about it, since the topics mentioned in the Mishnah (such as Kiyum Shtaros) are mid'Rabanan, it suffices that the witness be a valid witness at the time he testifies, even if he was not a valid witness at the time that he saw the event. (See also RAMBAM, Hilchos Edus 14:2.)

The TOSFOS RID says that we believe him only when he is an adult, because once we see that he, as an adult, personally relies on what he saw as a child, we may assume that he indeed carefully examined it as a child and recognizes it well. This explains why the Rabanan were not lenient to accept his testimony when he says it as a Katan.

(b) The RAMBAN (in MILCHAMOS, 8b in the pages of the Rif) explains that testimony about the veracity of a Shtar differs from other types of testimony. In other cases, the witness is testifying about what he previously saw. If he was not a valid witness at the time that he saw the event, we cannot accept his testimony even though he is a valid witness when he testifies. In contrast, when testifying about the veracity of a Shtar, the witness is testifying that he *presently* recognizes the signature, and it does not matter to us when he first saw the signature, since his testimony involves only what he sees now.

Our Gemara states that he is believed to testify about what he saw when he was a Katan only because Kiyum Shtaros is mid'Rabanan. According to the Ramban, it is unclear why we trust him only because it is mid'Rabanan; even at the beginning of his testimony he was a valid witness!

It must be that even though the witness himself is a valid witness, there is another problem with anything that a witness says based on that which he saw when he was a Katan, since a Katan does not carefully examine what he sees. Therefore, even though he is testifying on what he is seeing now, while he is a Gadol, it still cannot be accepted for any d'Oraisa purpose, because it is based on what he saw when he saw without carefully examining when he was a Katan. This idea is implied in the Gemara that suggests that a witness is believed to testify about something he saw when he was a Katan only when he is testifying on his father's signature, or his Rebbi's signature, since he indeed is more careful to study their signatures and to recognize them than other signatures.

QUESTION: The Mishnah implies that a person may not testify, when he is an adult, for something he saw when he was a Katan, even for an Isur that is only d'Rabanan. TOSFOS asks that the Gemara in Pesachim (4b) contradicts this when it says that we trust a Katan who says that Bedikas Chametz (which is d'Rabanan) was performed in a certain house. How do we reconcile the two Gemaras?

ANSWERS:

(a) TOSFOS answers that the Rabanan permitted a Katan to testify only in the case of Bedikas Chametz, since it is in his ability to search for Chametz himself. In the cases of our Mishnah, though, the subject of his testimony (such as Kehunah or Techum Shabbos) is not something that is within his control; it is not "b'Yado."

(b) The RASHBA adds that in the case of Bedikas Chametz, the Katan is saying that he himself searched for Chametz. We may trust him when he tells us about something that he himself did because he is more careful about it when he did it himself.

(c) The RASHBA further answers that Bedikas Chametz is something that is done every year and it involves everyone. Therefore, a child knows what he is talking about when he testifies that Bedikas Chametz was done (in contrast to signatures and the like). (See also REMA, end of YD 127.)

28b

QUESTION: The Gemara cites a Tosefta that states that a child is believed to testify that his father said a certain family is Kesheirah and that another family is Pesulah.

Why do we believe this child? Our Mishnah states that a Katan is believed to testify about certain things only after he becomes a Gadol!

ANSWERS:

(a) RASHI and the RASHBA learn that this Tosefta is also referring to when the Katan testifies after he becomes a Gadol. (The words of the Tosefta, "Ne'eman Tinok...," though, does not fit well with this explanation.)

(b) The RITVA and RAN in the name of the RA'AVAD say that the Tosefta refers to a case where a Katan testifies when he is a Katan, and we do not accept his testimony absolutely but we still must be wary for his words.

(c) The RITVA says further that the Tosefta is discussing a case where we know that part of the families mentioned by the Katan is Pasul, and the Katan is just clarifying which one is Kasher. Since he is merely clarifying a situation that is already known, we accept what he says. We do not accept what he says, though, to Pasul a family that we did not know, heretofore, to be Pasul.

The Ran suggests a similar explanation, but limits the trustworthiness of the Katan, writing that for those whom he says are Kasher, we believe him, but when he says that some are Pasul, we do not believe him at all.