Pesachim 12a — the Talmud in English

And it is found that

one of them certainly erred

by

a

period of somewhat more than an hour,

for if the event took place at the end of the third hour, the one who said five erred by somewhat more than an hour. And if the event took place at the beginning of the fifth hour, then the one who said three erred by somewhat more than an hour.

Rav Huna son of Rav Yehuda went and stated this teaching

of Abaye

before Rava.

He said

Rava said concerning this: How is it possible to say that according to Rabbi Meir a person errs only by somewhat, whereas according to Rabbi Yehuda he errs only by somewhat more than an hour [according to the ika de-amrei]? If so, we should not have upheld their testimony, for from where do we know that the earlier witness intended the end of the hour, and the later one the beginning of the hour, so that there is between them only the measure of a person's error?

And

what

would it be

if

we were to say that these witnesses

were

precise witnesses,

one of whom said three and the other five, and we say

that the one who said

“three”,

intended

the beginning of three, while the one who said

“five”,

intended

the end of five,

so that it is found that the difference between them is almost three hours, which is more than the measure of time in which a person is ordinarily liable to err according to all opinions?

And

then certainly

the testimony would be contradictory, and we would not execute

the person about whom they testified.

And should we arise

and bring their testimony closer together

and execute

a man

on the basis of uncertainty

[according to Rabbi Yehuda]?

And

is it not so that

the Merciful One said

in the section concerning a murderer [Numbers 35:24]

“And the assembly shall judge,” “and the assembly shall save”,

that they search for every merit of the defendant in order to save him from execution by the court?!

Rather, certainly, this is why we uphold the testimony: because even if we distance their testimony from one another as much as possible, and say that the earlier witness intended the beginning of the hour and the later one its end, it still falls within the measure in which a person may err, and this is not contradictory testimony.

Rather Rava said: According to Rabbi Meir

indeed

a person errs

by

somewhat less than two hours.

And according to Rabbi Yehuda, a person errs

by

somewhat less than three hours.

Rava explains:

According to Rabbi Meir, a person errs

by

somewhat less than two hours.

And when one says two and the other three, even if we say that the one who said two intended the beginning of two, and the one who said three intended the end of three, it is obvious that if the event took place at the end of two or at the beginning of three, each one erred by only one hour. Rather, even if the

event, when it took place, was either at the beginning of two or at the end of three, and

it is found that

one of them erred

by

somewhat less than two hours,

even so, we do not have the power to invalidate the testimony, because a person is ordinarily liable to err by such a measure of time.

And

according to Rabbi Yehuda, a person errs

by

somewhat less than three hours.

And if one said three and the other five, even if we distance them from one another and say that this one intended the beginning of three and that one the end of five, and we also say that the

event, when it took place, was either at the beginning of three or at the end of five, and

it is found that

one of them erred

by

somewhat less than three hours,

even so their testimony stands, because a person may err even by such a measure of time.

The Gemara raises an objection to Rava:

We learned

there, in tractate Sanhedrin:

“They would examine them,”

the witnesses in capital cases,

“with seven inquiries”:

a.

On which week

—in which sabbatical year, counting among the seven sabbatical years that are in the Jubilee, did the event take place?

b.

In which year

—of the seven sabbatical years?

c.

In which month.

d.

On how many

days

of the month.

e.

On which day

of the week. f.

At what hour.

g.

In which place

did the event take place?

And we learned

there, later in the Mishna, that in addition to these seven inquiries, they would ask them further questions, and these are called “examinations.” For example: Did you recognize the slain person, lest he was a gentile? And what clothing was he wearing? And with what did they kill him? And did you warn the murderer? And any court that increases examinations is praiseworthy.

The Mishna continues:

“What is the difference between inquiries

and examinations,”

what is the difference between them in law?

Inquiries:

if

one of them said, “I do not know”

how to answer one of the questions,

their testimony is invalid.

But with regard to

examinations, even if both of them say, “We do not know”

how to answer the questions,

their testimony stands.

Unless they contradict one another, in which case their testimony is invalid.

And we considered it: “What is different about inquiries, and what is different about examinations”

—why does “I do not know” invalidate in this case but not in that case?

And we say:

“Inquiries”—

if one of them said, ‘I do not know,’ their testimony is invalid

because

it is testimony that you cannot make into a conspiring testimony!

For all disqualification of witnesses as conspiring witnesses is accomplished by other witnesses who come and say: On that day and at that hour when you say that you saw this testimony in such-and-such a place, you were with us in another place. But when one of the witnesses answers concerning one of the inquiries that he does not know, it is no longer possible to discredit him as a conspiring witness. And even if he says only concerning the inquiry of the hour that he does not know, it will not be possible to discredit him and say to him: You were with us at that hour.

And if you say: It is possible to discredit him through the day, for example, other witnesses could come and say: You were with us that entire day—nevertheless, since we learn from the verses that the witnesses must be examined with seven inquiries, it is necessary that the law of disqualification as conspiring witnesses be able to apply in each one of them; and if they do not know the hour, it is found that the law of disqualification as conspiring witnesses is lacking in the inquiry of the hour.

And any testimony that you cannot make into a conspiring testimony is not testimony. For it is stated in the Torah: “And the judges shall inquire diligently, and behold, the witness is a false witness, he has answered falsely against his brother. And you shall do to him as he intended to do to his brother.” This implies that only testimony in which the law of disqualification as conspiring witnesses can be applied is testimony.

But with regard to

examinations,

even if both say that they do not know, this is still

testimony that you can make into a conspiring testimony.

For the disqualification as conspiring witnesses does not depend at all on the examinations, since it is impossible to say “You were with us” with regard, for example, to the type of clothing worn by the slain person.

The Gemara concludes the question against Rava:

And if you say that a person errs by all this,

two hours according to Rabbi Meir, and even three hours according to Rabbi Yehuda, if so,

the inquiries concerning “which hour”

also

do not suffice to bring about disqualification as conspiring witnesses through them. For even if the witnesses state the hour at which the event occurred, still

it is testimony that you cannot make into a conspiring testimony

[based on the hour alone]. For if witnesses come and say, “You were with us at that hour,” then

the witnesses say

the first witnesses: Indeed, we were with you at that hour, but

we erred,

and the event took place one hour later or earlier than what we initially said?

And we answer:

We give them all their possible error.

For indeed, we grant the witnesses all the period in which they may err, and they can be discredited only if they say to them: You were with us during that entire hour and its error—that is, even during the time adjacent to it before and after it, up to the measure that can be attributed to error, you were with us.

In this manner the inquiry concerning the hour is useful, for if they had not stated the hour at all, it would not be possible to discredit them until they said to them: You were with us that entire day.

And we explain:

For Rabbi Meir,

who says that a person errs by two hours,

we give them

those witnesses, one of whom said “at two” and one “at three,”

from the beginning of the first hour

of the day

until the end of five

hours. That is, we give both of them together this entire period:

To the witness who says “at two,” we give from the first hour until the end of the fourth hour. For if they say to him: You were with us in the second hour, he can say: I erred by one hour backward, and the event was in the first hour. [And the Gemara will immediately explain why he cannot claim that he erred by two hours backward.] And even if they say to him that you were with us in the first hour as well, he can claim that he erred by two hours forward, and the event was in the third or fourth hour. [And when he said “at two,” he intended the end of two.] Only when they say to him: You were with us during all four first hours, is he discredited as a conspiring witness.

And to the witness who says “at three,” we also give the fifth hour.

That is, until they discredit him concerning all five hours, he can claim either that the event took place at the beginning of the first hour, and he intended the beginning of three, or that the event took place at the end of five, and he intended the end of three.

And by rights, we should give them

to that witness who says “at two,”

more at the outset,

one additional hour backward—that is, he should not be discredited until they say to him: You were with us even in the last hour of the night. For otherwise he could claim that the event took place at that hour, and he erred by two hours.

Rather,

we do not say so, because

people do not err between daytime and nighttime.

If the event had taken place at the end of the night, he would not err and say that it was in the second hour of the day.

And according to Rabbi Yehuda,

who says that a person errs by three hours,

we give them

those witnesses, one of whom said “at three” and the other “at five” [for Rabbi Yehuda validates even in such a case], the entire period

from the beginning of the first hour until the end of

the

sixth

[that is, to both of them together].

To the one who said “at three,” we give the first and second hours,

and by rights we should give them

more at the outset,

meaning that we should give him one additional hour, namely the last hour of the night. For according to Rabbi Yehuda a person may err even by three hours.