Ketubot 20a (כ.) — the Talmud in English

And just as witnesses are contradicted as zomemim only in their presence,

because they are being punished as eidim zomemim, and when testimony creates a punishment, one must testify in the presence of the person being punished, as it is stated, “And it has been testified to its owner,” with regard to an ox that gored; and we derive: Let the owner of the ox come and stand over his ox.

so too, witnesses are contradicted only in their presence.

Therefore, here, since the first witnesses died and are not before us, the contradiction is not accepted; their initial testimony concerning the document remains valid, and the debt is collected on its basis.

Rav Naḥman said to him:

But

if the first witnesses were

the first witnesses

here

before us,

and

were

being contradicted by

the second witnesses,

there would be a contradiction, and we would not heed them—

with regard to the first witnesses, to collect on the basis of the document according to their testimony, because

it would be contradicted testimony.

And if so,

now that the first witnesses are not

the first witnesses,

for

there is concern that perhaps

if they were here, perhaps they would

concede to

the second witnesses, certainly

the second witnesses are believed to contradict them, and the testimony is contradicted.

If so, the difficulty returns: Why are the second witnesses not believed, at least to create contradicted testimony?

Rather, Rav Naḥman said:

What we say in the beraita—“they are not believed”—does not mean that one collects with the document as with a fully valid document. Rather, it means only that we do not tear up the document, and if the claimant seized property, we do not remove it from him. Because we say:

place the two

first witnesses

opposite the two

second witnesses,

and

due to the uncertainty,

leave the money in the possession of its presumptive owner.

It is analogous to the case of the property of Bar Shatya [as in the incident involving the property of “Bar Shatya”].

And this was the incident:

“Bar Shatya”—

who was at times lucid and at times insane—

sold

sold

his property

his landholdings.

Two witnesses came and said: “He sold it when he was insane,”

and his sale is not a valid sale.

Then two

other witnesses

came and said: “He sold it when he was lucid.”

And his sale is valid.

Rav Ashi said: “Place the two

who say that he sold it while insane

opposite the two

who say that he sold it while lucid,

and leave the money in the presumptive possession of Bar Shatya,”

since he is the mara kamma, the original owner, and land remains in the presumptive possession of its first owners. Indeed, if he had sold movable property, we would, because of the uncertainty, leave it in the possession of whoever currently holds it.

And we said this

that the property is left in the presumptive possession of “Bar Shatya,”

only

in a case

where he has

with regard to this property

a presumption based on his ancestors’ ownership,

meaning that it came into his possession from his ancestors and he did not acquire it himself.

But

if

he does not have a presumption based on his ancestors’ ownership,

but acquired this property himself,

we say that

his acquisition is equivalent to his sale; just as we establish that

he acquired the land while insane

he sold the land, so too we say that

and

that

when he was insane, he acquired it

he purchased the land, and his initial presumption has no significance.

Rabbi Abbahu said: “Witnesses are declared zomemim only in their presence,”

because it is stated, “And it has been testified to its owner,” and we derive from this that the defendant must be before us.

But witnesses may be contradicted

in order to invalidate their testimony—

not in their presence.

And although declaring witnesses zomemim not in their presence is not a valid declaration of hazama—

for the purpose of punishing them as eidim zomemim, nevertheless

a contradiction

in order to invalidate their testimony

is nevertheless established.

The Gemara returns to explain the words of the beraita cited above:

The Master said—

“If there are witnesses who say, ‘This is their handwriting,’ or if their handwriting appears elsewhere,

for example,

“from a document that had been challenged and was validated in court, they are not believed.”

The Gemara infers: specifically if

it had been challenged

and validated in court,

yes—

their signatures may be authenticated from it; but if

it had not been challenged, no—

since there is concern that this document itself might be forged.

And this inference

supports the

words of

Rabbi Asi. For Rabbi Asi said: “A document may be authenticated only from a document that was challenged and validated in court.”

since there is concern that the second document, too, may be forged.

The Gemara further presents the laws governing authentication of documents on the basis of the witnesses’ signatures on other documents:

The Sages of Nehardea said:

If we do not have a document that was challenged and validated in court,

we may authenticate the document only from

a comparison of the witnesses’ signatures with their signatures on

two marriage contracts,

or

from

their signatures on

two

sales documents for

fields, provided that their owners have possessed them

the fields

for three years, without dispute—

that is, without any challenge. But a document may not be authenticated from a single document, as stated above, because there is concern that it, too, may be forged—unless it was challenged and validated in court.

Rav Shimi bar Ashi said, and

even those two marriage contracts or two documents are not sufficient for authentication from them, except

in a case

where

the documents emerge

the documents

from the possession of another; but if they are from his own possession, no!

Perhaps he forged them.

And we challenge this:

What is the difference

when they emerge

from his own possession, such that it is not sufficient?

Because there is concern

that perhaps he forged them.

If so, even when they emerge

from another’s possession as well,

let us be concerned

that perhaps he went and observed

went and saw the form of their signatures, and

then came and forged them;

why, then, is he believed?

And we answer: There is no need for such concern because

to such an extent—

that is, to go and forge merely on the basis of having seen the signatures—

he cannot accurately reproduce them,

and if he forges them, it will be apparent that they are forged.

The Sages taught

in a beraita: One who witnessed testimony and is concerned that he may forget it,

may write his testimony in a document and testify concerning it

on the basis of that document

even after several years.

Rav Huna said: This is so provided that he remembers

some of

the

testimony

on his own,

even without the document.

And

Rabbi Yoḥanan said: Even if he does not remember

the

testimony

at all

on his own,

but remembers his testimony only after seeing the document.

But if even after seeing the document he does not remember the testimony, Rabbi Yoḥanan concedes that he cannot testify, because this would be testimony based on writing; and it is written, “By the mouth of two witnesses shall the matter be established,” and we derive: From their mouths, and not from their writing.

Rabba said: Derive from the

words of

Rabbi Yoḥanan—

these two witnesses who know testimony

two witnesses who witnessed testimony,

and one of them forgets it

and one of them forgot his testimony,

one may remind the other

one of them can remind his fellow.

They raised a dilemma—

we are uncertain whether, if the litigant

himself

reminded the witness,

what is the law?

Is he believed or not?

Rav Ḥaviva said: Even

the litigant

himself

may remind the witness.

Mar, son of Rav Ashi, said:

The litigant

himself may not

remind the witness, since there is concern that the witness does not truly remember and will testify for the litigant.

And the halakha is

like Mar, son of Rav Ashi: the litigant

himself may not

remind the witness!