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Sanhedrin, 31

1) DIFFERING TESTIMONY FROM TWO WITNESSES ABOUT ONE EVENT

QUESTION: The Gemara relates an incident wherein one witness testified about a loan that took place on an "upper porch," and another witness testified about a loan that took place on a "lower porch." Rebbi Chanina states that Rebbi accepted their testimony about the loan.

RASHI writes that this ruling follows the view of Rebbi Yehoshua ben Korchah, who says that the two witnesses do not have to see the event at the same time (they can testify about two different events).

Rashi continues and says that Rebbi is teaching that we accept their testimony even though the two witnesses are contradicting each other with regard to the Bedikos, like Rav Yehudah rules.

Rashi seems to be mixing together two incompatible explanations. The Gemara (at the beginning of the page) says that Rebbi Yehoshua ben Korchah discusses a case in which witnesses do not contradict each other, but give testimony about two different events which both might be true. Rav Yehudah, on the other hand, discusses a situation in which two witnesses are testifying about the same event (the event they saw together), and one of them describes what happened differently than the other. How does Rashi understand the case of the "upper porch" and "lower porch?" If the case was that witnesses testified about what took place at two different times, then he should write simply that Rebbi is following the view of Rebbi Yehoshua ben Korchah, and he should not mention Rav Yehudah at all. If they are testifying about the same event (but contradicting each other in a matter of the details), then he should mention only Rav Yehudah and he does not need to mention Rebbi Yehoshua ben Korchah at all! (RASHASH, SANHEDRI KETANAH, ARUCH LA'NER, KEREN ORAH (30b))

ANSWERS:

(a) The SANHEDRI KETANAH explains that Rashi understands the Gemara to be teaching that we accept the testimony of the two witnesses even when we will need to combine the opinions of Rebbi Yehoshua ben Korchah and Rav Yehudah. For example, one witness testifies that on Sunday the lender loaned to the borrower a Maneh while standing on the upper porch, and a second witness contradicts that testimony and says that the lender was not on the upper porch at all on Sunday, but rather on Monday he loaned him a Maneh while standing on the lower porch. In such a case, not only are the witnesses testifying about different events (different loans), they are also contradicting each other (with regard to where the loans took place). Therefore, we can accept their testimony only if we hold like Rebbi Yehoshua ben Korchah who combines testimony about different loans, *and* if we hold like Rav Yehudah, who says that we accept testimony of two witnesses even when they contradict each other in details of the Bedikos.

This explanation is problematic, though. First, how does Rashi know that this is the case the Gemara is discussing, and how does he know that in such a case we would accept the testimony of the witnesses? Second, one witness is contradicting the testimony of the other entirely, saying that the loan to which the first witness attests never took place; such contradiction is not only Hakchashah in the Bedikos, but it is a complete Hakchashah of the entire testimony of the witness (as the SEFER HA'TERUMOS (29:4) writes in the name of CHOCHMEI LUNIL)!

(b) The SHA'AREI YOSHER (6:7) explains that every case of Hakchashah in Bedikos is a violation of the condition of "v'Hu Ed" (Vayikra 5:1) which requires that the two witnesses must say testimony *together*, as required by the Rabanan who argue with Rebbi Yehoshua ben Korchah (RASHI 30b DH v'Akati). Since each witness is describing a slightly different event in his testimony, they are not testifying "together," as one. Therefore, when we rule like Rav Yehudah, we must also accept the opinion of Rebbi Yehoshua ben Korchah.

This approach is also problematic, though. Why does Rashi not make this point earlier, when the opinion of Rav Yehudah is introduced? Second, how does Rashi know that Hakchashah violates the requirement of "v'Hu Ed?" Perhaps any testimony said about an event that took place at one time is considered a single testimony and fulfills the condition of "v'Hu Ed!"

(c) Perhaps Rashi is not suggesting a single approach, but rather he is suggesting two different explanations for the case of the Gemara. There are two ways of explaining the Gemara. The Gemara is discussing either witnesses who are testifying about what they saw at two different times (two different events), or the witnesses are testifying about a single event and they are contradicting each other.

Rashi first suggests that the witnesses are discussing two different events, and that is why he explains that it follows the view of Rebbi Yehoshua ben Korchah. Rashi then suggests a second approach and says that they are testifying about a single event and are contradicting each other. (We will either have to add in the text of Rashi the words "Iy Nami," or the second half of Rashi is from a second Mahadura of Rashi which was inserted into the text of Rashi, as we find in a number of places in Sanhedrin (see also Insights to Bava Kama 18:1, Bava Metzia 12:1).

This is supported by the fact that Rashi on the Rif writes only the first half of what appears in our Rashi. This is also the way the NIMUKEI YOSEF and TALMID HA'RAMBAN quote this explanation of Rashi (even though they themselves accept the second explanation). RABEINU YEHONASAN MI'LUNIL also makes it clear that these are two different approaches.

We have not explained why Rashi saw it necessary to give two approaches. The simple reading of the Gemara certainly supports the second approach -- that the witnesses contradict each other about the *same* event, because the Gemara here is a sequel to the discussion about Rav Yehudah, and because that is implied by the wording of the case. The answer to this question may be found in the NIMUKEI YOSEF and CHIDUSHEI HA'RAN.

They ask why Rav Yehudah should accept such testimony. Rav Yehudah accepts testimony only when the witnesses contradict each other with regard to the Bedikos. The witnesses in our case (according to the simple reading), though, are contradicting each other with regard to the *Chakiros* (since the location of the event is one of the Chakiros)! The Nimukei Yosef and others answer that two porches (an upper and a lower one) are not considered to be two different locations, since they are in the same house. Nevertheless, it is considered to be a minor contradiction in the Chakiros, and a minor contradiction in the Chakiros is comparable to a contradiction in the Bedikos.

Another answer might be that Rebbi accepts witnesses who contradict each other even with regard to Chakiros. There are a number of Rishonim who rule this way. The RA'AVAN (#10) rules this way based on Rebbi Chanina's statement (32a 2b) that the Rabanan annulled the requirement for Chakiros of Dinei Mamonos, monetary cases, and therefore there is no difference between a contradiction in Chakiros and a contradiction in Bedikos. The SEFER HA'TERUMOS (29:4) cites some Rishonim who say that even Rav Yehudah did not mean to exclude Chakiros when he said that we accept testimony of who witnesses who contradicts each other in details of the Bedikos, and he mentioned only Bedikos because Bedikos and Chakiros are the same with regard to Dinei Mamonos. The TALMID HA'RAMBAN finds a source that we accept testimony with a contradiction in Chakiros in the teaching of Rebbi Yehoshua ben Korchah. Although the Gemara (at the beginning of the page) writes that the testimony in Rebbi Yehoshua ben Korchah's case is not considered to be contradictory testimony, we do not accept the Gemara's argument in practice, because it is more logical to compare the case of Rebbi Yehoshua ben Korchah to the case where the witnesses contradict each other with regard to the Chakiros, since they are testifying about loans that occurred at two different times. (However, the RAMBAM (Hilchos Edus 3:3) and many other Rishonim rule that we do not accept testimony which contradicts in Chakiros, despite Rebbi Chanina's ruling.) The ME'IRI and RABEINU YEHONASAN MI'LUNIL cite those who answer that the Gemara is not discussing witnesses who are testifying about the same event, but that they are testifying about two different events, and their testimony is accepted because of Rebbi Yehoshua ben Korchah's ruling. This is apparently the source for the first approach of Rashi, that our Gemara is discussing a case of witnesses who testify about two different events (the case of Rebbi Yehoshua ben Korchah). (M. Kornfeld)

31b

QUESTION: In the Mishnah, the Rabanan and Raban Shimon ben Gamliel argue over whether we accept a litigant's evidence that he brings after he says that he has no more evidence. The Rabanan maintain that we do not accept such evidence, while Raban Shimon ben Gamliel maintains that we do accept it. The Gemara quotes Rav Dimi who says that Rebbi Yochanan ruled that a person *may* bring additional evidence for his case after he says he has no more evidence and then says, "Let these witnesses (who were there all along) come and testify for me." The Gemara asks that if Rebbi Yochanan meant to rule like Raban Shimon ben Gamliel -- who says that even after a person closes his case he may still bring further proof -- then he contradicts what he said as quoted by Rabah bar bar Chanah. Rabah bar bar Chanah says in the name of Rebbi Yochanan that we do *not* rule like Raban Shimon ben Gamliel in this case. The Gemara concludes by saying that Rav Shmuel bar Yehudah quotes a different statement in the name of Rebbi Yochanan: a person may bring proof until he "terminates his claims" and says "I have no more proof", at which point he may not present more proof even if he finds the proof afterwards (unless it was the type of proof that he was not able to find earlier, such as witnesses who came from abroad).

How can the Gemara reject Rav Dimi's statement in the name of Rebbi Yochanan based on the tradition of Rabah bar bar Chanah that Rebbi Yochanan did not rule like Raban Shimon ben Gamliel? We find in the Gemara (31a) that other Amora'im do not accept Rabah bar bar Chanah's statement in the name of Rebbi Yochanan and they quote him differently. Perhaps Rav Dimi had a different tradition from Rebbi Yochanan with regard to the ruling of our Mishnah, and the tradition that he received was that Rebbi Yochanan *did* rule like Raban Shimon ben Gamliel! (SANHEDRI KETANAH)

ANSWERS:

(a) The SANHEDRI KETANAH answers that the Gemara is not rejecting Rav Dimi's tradition, because Rav Dimi indeed can argue with Rabah bar bar Chanah and say that Rebbi Yochanan did rule like Raban Shimon ben Gamliel. The Gemara just means that *we* will not rule like Rav Dimi, since *we* accept the statement of Rabah bar bar Chanah in the name of Rebbi Yochanan (i.e. that we follow the Rabanan and not Raban Shimon ben Gamliel).

(b) The ARUCH LA'NER answers that the Gemara's question is based on the assumption that an Amora can confuse *what* he heard from another Amora, but he is not likely to invent a statement out of nothing in the name of another Amora. Therefore, the Gemara considered it unlikely that the quote that Rav Dimi ascribes to Rebbi Yochanan is accurate, since Rabah bar bar Chanah would then have to argue and say that Rebbi Yochanan never made such a statement in the first place. The Gemara answers that according to Rabah bar bah Chanah we do not have to assert that Rebbi Yochanan never made any such statement. Rather, according to Rabah bar bar Chanah, Rebbi Yochanan made the statement that Rav Shmuel bar Yehudah quotes in his name, instead of the one that Rav Dimi quotes in his name.

(c) Perhaps the Gemara is not rejecting Rav Dimi's statement in the name of Rebbi Yochanan. Rather, it is rejecting the way Rav Dimi understood the statement of Rebbi Yochanan. Rebbi Yochanan's quote was only that a person may bring proofs until he terminates his claims. Rav Dimi interpreted that to mean that Rebbi Yochanan is ruling like Raban Shimon ben Gamliel. The Gemara challenges his interpretation from Rabah bar bar Chanah's tradition that Rebbi Yochanan ruled against Raban Shimon ben Gamliel, and therefore it accepts Rav Shmuel bar Yehudah's interpretation of Rebbi Yochanan's statement (that terminating one's claims simply means that he says, "I have no more proof," as the Rabanan say).

Now, the Gemara's question from Rabah bar bar Chanah is more easily understood. The Gemara assumes that if it is not necessary to create a new argument about Rebbi Yochanan's ruling, then we certainly should avoid doing so. Even though it is possible that Rav Dimi argues with Rabah bar bar Chanah, nevertheless since we can explain the tradition he received from Rebbi Yochanan differently and have it conform with the teaching of Rabah bar bar Chanah, that is preferable. (M. Kornfeld)

QUESTION: The Gemara discusses a case in which two people are involved in a dispute and one of them is acting impudently with the other. The second disputant demands that the case be brought to the Makom ha'Va'ad (or "Beis ha'Va'ad," the place of the assembly of judges), while the first demands that the case be judged in their town. Rebbi Yochanan says that the second litigant may force the impudent one to go with him to the Makom ha'Va'ad. Rebbi Elazar argues and says that we do not force a person to spend 100 Zuz in order to determine who is the rightful owner of 100 Zuz! Rather, we force him to be judged in the city.

RASHI explains that the reason why one of the litigants wants to go to the Makom ha'Va'ad is because there are a lot of Talmidei Chachamim there, and he assumes that his brazen disputant will be embarrassed to make such audacious claims and demands in front of so many Talmidei Chachamim.

(a) Why does Rashi explain that this is the reason he wants to go to the Makom ha'Va'ad? The simple reading of the Gemara implies that he wants to go to the Makom ha'Va'ad because he has more faith in the judgment of the Beis Din in a place which has more Talmidei Chachamim. This would seem to be the implication of the following Gemara as well, which says that when two people are being tough with each other, and one wants to be judged in the Makom ha'Va'ad and the other wants to stay in the town, we force them to stay and be judged in the town. If the Beis Din of that town has a question about how to rule in the case, then they may send the question to the Makom ha'Va'ad. The purpose of the Makom ha'Va'ad is to clarify doubts that arise in smaller courts. This is indeed the way the Rambam and Chidushei ha'Ran explain the Gemara. Why, then, does Rashi explain differently? (TORAS CHAIM)

(b) Why does Rashi explain that the *defendant* is asking to take the case to the Makom ha'Va'ad *in response* to the stubbornness of the *claimant*? He should have explained that the stubborn party is *the defendant* himself, who stubbornly insists on bringing the case to the Makom ha'Va'ad! (MAHARSHAL)

(c) In addition, if Rebbi Yochanan is only discussing a case in which the claimant is being stubborn, then how can we disprove his statement (and bring support for Rebbi Elazar's statement) from the statement of Rav Safra, who is *not* discussing a stubborn claimant! (ARUCH LA'NER)

ANSWER: Perhaps Rashi was bothered by the next statement of the Gemara. Rav Safra says in the name of Rebbi Yochanan that when two people have a dispute, one can force the other not to go to the Makom ha'Va'ad but to stay in the city. How can Rebbi Yochanan say that the case is judged in the city when Rebbi Yochanan himself says in the first Gemara that one litigant can force the other to go to the Makom ha'Va'ad? It is because of this question that the MAHARSHAL erases the words "Amar Rebbi Yochanan" from the Gemara here. The RIF and ROSH leave out these words as well.

RABEINU CHANANEL seems to take a different approach and explains that Rebbi Yochanan and Rebbi Elazar in the first Gemara are not arguing. Rather, Rebbi Yochanan is referring to a case in which the *lender* insists on going to another city, while Rebbi Elazar is talking about a case in which the *borrower* insists. The Gemara ("Itmar Nami") is saying that Rebbi Yochanan agrees with Rebbi Elazar that in a case in which it is the borrower who insists on going to a different city we do not force the lender to go.

According to this explanation, the Gemara already knew that there is a difference between the lender and the borrower, which Rav Ashi in the following Gemara did not know (Rav Ashi thinks that it is a contradiction).

Rashi might be suggesting a different answer. The first statement of Rebbi Yochanan involves a case of "ha'Tokef Es Chaveiro ba'Din," in which one disputant is tougher than the other. The second statement involves a case in which two people are being equally impudent with each other. Rashi explains that the first case is when one disputant is acting brazenly and is making all sorts of unreasonable demands; the other wants to go to the Makom ha'Va'ad because then his disputant will be embarrassed to act that way in front of all the Talmidei Chachamim. If two people merely are arguing over the ownership of money without making any unreasonable demands of each other, and one of them wants to go to the Makom ha'Va'ad because there are greater Talmidei Chachamim there, then even Rebbi Yochanan agrees that they stay in the city, and if they have any difficulty then the Beis Din sends the question in writing to the Makom ha'Va'ad.

This answers the questions of the MAHARSHAL and the ARUCH LA'NER as well. It is true that the statement of Rav Safra cannot disprove Rebbi Yochanan's statement. On the contrary -- Rashi was looking for a way to reconcile Rebbi Yochanan's statement with Rav Safra's statement that follows, since Rav Safra was citing Rebbi Yochanan's ruling! It must be that the first statement of Rebbi Yochanan was made only under specific when the claimant is being overly stubborn. (M. Kornfeld)