Ketubot 20a — the Talmud in English

And just as witnesses are made edim zomemim only in their presence,

because they come to punish them as the law of edim zomemim requires, and in testimony that creates a punishment, one must testify in the presence of the one being punished, as it is stated: “And it was testified against its owner,” regarding 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 .

And therefore here, since the first witnesses died and are not before us, the contradiction is not accepted, and their initial testimony concerning the document remains in force, and they collect by means of it.

Rav Naḥman said to him:

But

if the first witnesses had been

the first witnesses

before us

[in our presence],

and

they were

contradicting them

the second witnesses,

it would have been a contradiction. And we would not have paid attention to them—

the first witnesses—to collect with the document on their testimony, because

it would be contradicted testimony.

And if so,

now, since they are not here

the first witnesses,

that

there is concern lest

if they had been here, perhaps they would have

admitted to them

the second witnesses , certainly

the second witnesses are believed

to contradict them, and it is contradicted testimony .

If so, the question returns: why are the second witnesses not believed, at least in order to create contradicted testimony?

Rather, Rav Naḥman said:

That which we say in the beraita, “They are not believed,” does not mean that they collect with the document as with a fully valid document; rather, they do not tear up the document, and if he seized, we do not remove it from him , because we say:

Place two

first witnesses

opposite two

second witnesses ,

and

because of the uncertainty,

place the money in the possession of its owner .

It is as was the case with the property of Bar Shetaya [as occurred with the property of “Bar Shetaya”]

And this was the incident:

That “Bar Shetaya”—

who was at times sane and at times insane—

sold

[sold]

the property

[his landed property].

Two witnesses came; they said: When he was insane, he sold it,

and his sale is not a sale.

And two witnesses came

other

and said: When he was sane, he sold it.

And his sale is a sale.

Rav Ashi said: Place two

who said that he sold it when he was insane,

opposite two

who said that he sold it when he was healthy,

and place the money in the possession of Bar Shetaya,

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

And we said this

that we place the property in the possession of “Bar Shetaya,”

only

in a case

in which he has

with regard to this property

the presumption of his ancestors,

that is, that it came into his hands from his ancestors, and he did not acquire it himself.

But

if

he does not have the presumption of his ancestors,

but acquired this property himself,

we say that just as

his acquisition, so is his sale; and just as we establish that

when he was insane he bought

[he sold the land], so we say

and

certainly

when he was insane, he sold

[he acquired the land], and his original presumption is of no consequence.

Rabbi Abbahu said: Witnesses are made edim zomemim only in their presence,

because it is stated: “And it was testified against its owner,” and we derive from it that the defendant must be before us.

And witnesses are contradicted

in order to nullify their testimony—

not in their presence.

And discrediting without their presence, although it is not discrediting

in order to punish them as the law of edim zomemim requires, nevertheless

contradiction

in order to nullify their testimony

does exist, at least.

And the Gemara returns to explain the words of the beraita brought above:

The Master said—

“If there are witnesses whose handwriting is this, or whose handwriting appears elsewhere,

such as

from a document concerning which a challenge was raised and which was validated in court, they are not believed.”

And the Gemara infers: Only if

a challenge was raised against it,

and it was validated in court,

no!—

it is possible to validate their signatures from it; but if

no challenge was raised against it, no!

Since there is concern lest this document itself be forged .

And this inference

supports

the words of

Rabbi Asi. For Rabbi Asi said: The document may be validated only from a document against which a challenge was raised and which was validated in court.

Since there is concern lest the second document also be forged.

The Gemara further brings the laws of validating documents on the basis of the signatures of the witnesses in other documents:

The sages of Nehardea said:

If we do not have in our possession a document against which a challenge was raised and which was validated in court,

the document may be validated only from

comparing the signatures of the witnesses with their signatures on

two marriage contracts,

or

from

their signatures on

two

deeds of sale of

fields, whose owners possessed them

the fields

for three years, without challenge—that is, without any challenge. But from one document, as stated above, the document is not validated, because there is concern that it too is forged, unless a challenge was raised against it and it was validated in court.

Rav Shimi bar Ashi said, and

even those two marriage contracts, or two documents, are not useful for validating from them, but only

in

a case in which the documents

emerge

from

beneath the hand of another,

but from beneath his own hand, no!

Lest he forged them.

And we ask:

What is different

when they emerge

from beneath his own hand, that it is not [valid]?

Because there is concern

perhaps he forged them;

if so, even when they emerge

from beneath the hand of another also

let us be concerned

perhaps he went and saw,

[went and observed the form of their signatures]

and came and forged them,

and why is he believed?

And we answer: There is no concern for this, because

all this—

that is, to go and forge on the basis of mere observation—

he cannot accurately imitate,

and if he forges, it will be recognizable that it is a forgery.

The Sages taught

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

a person may write his testimony in a document and testify concerning it

on the basis of that document

even after several years.

Rav Huna said: And this is when he remembers

some of

the

testimony

by himself,

even without the document.

And

Rabbi Yoḥanan said: Even though he does not remember

the

testimony

at all

by himself,

only after he sees the document does he remember his testimony.

But if even after seeing the document he does not remember the testimony, Rabbi Yoḥanan agrees that he cannot testify. For it is testimony from writing, and it is written: “By the mouth of two witnesses shall a matter be established,” and we expound: From their mouths, and not from their writing .

Rabba said: Learn from the words of

Rabbi

Yoḥanan—

these two who know testimony

[two witnesses who saw testimony],

and one of them forgets

[and one of them forgot his testimony],

one reminds the other

[one of them can remind his fellow].

They raised a question—

we are uncertain: If the litigant

himself

reminded the witness,

what?

Is he believed or not?

Rav Ḥaviva said: Even

the litigant

himself

can remind the witness.

Mar, the son of Rav Ashi, said:

The litigant

himself, no

cannot remind the witness, since there is concern lest the witness not truly remember, and testify on behalf of the litigant.

And the halakha

is according to Mar, son of Rav Ashi, that the litigant

himself cannot

remind the witness!