Sanhedrin 23b (כג:) — the Talmud in English

And

with regard to this Mishna

Rav Dimi, son of Rav Naḥman, son of Rav Yosef, said:

that it is speaking

in a case where he accepted him upon himself

that he accepted his father or your father

as one,

so that one of them would be one of the judges, and two other fit judges would join him. And although he is only one of the three, the litigant may retract, according to Rabbi Meir, since he is disqualified by Torah law.

But if so, there is a difficulty: What did Rabbi Meir add, according to Reish Lakish, by teaching that if one accepted a single witness, whose testimony is likewise not valid by Torah law, as equivalent to two witnesses, he may retract? The Mishna has already taught us that he may retract with regard to accepting a disqualified judge.

The Gemara answers that nevertheless there is a novel element in the law of “witnesses” that was not taught by the law of a relative judge, such as “my father and your father.”

It is necessary

for the Mishna to teach us this.

For if the tanna had taught

only the law concerning accepting a judge as

my father and your father,

we would have thought that only

in this case the Sages say

that the Sages hold

that he cannot retract,

that once he accepted them, he cannot retract,

because my father and your father

are not generally unfit to judge, since

they are fit for others,

they are fit to judge other people.

But

if he accepted

one,

a single witness,

as two witnesses,

who

are not even fit for others,

as a single witness is not fit, with regard to any testimony in monetary matters, to extract money on the basis of his testimony,

one might say

that the Sages

agree with Rabbi Meir

and hold as he does, that the litigant may retract and say that he does not accept the single witness.

Therefore, the Mishna teaches us that even with regard to a single witness, the Sages hold that once one accepted him, he cannot retract.

And if you say: It would have been sufficient to teach the law of a single witness, and we would have understood on our own that if the Sages hold that one cannot retract even after accepting a single witness, all the more so with regard to accepting my father and your father to judge, since they are inherently fit to serve as judges—if so, there is a difficulty: Why does the Mishna teach us the law of my father and your father?

The Gemara answers:

And if it had taught us

only

this,

the law of a single witness, we would have thought that only

in this case,

in this law,

Rabbi Meir says

that the litigant may retract, since a single witness is not fit for other testimony.

But in that case,

if he accepted my father and your father, who are fit for the rest of the world,

one might say

that Rabbi Meir

agrees [

agrees]

with the Sages

that he cannot retract.

And therefore

it is necessary.

The Mishna had to teach us that with regard both to a single witness and to my father and your father, Rabbi Meir and the Sages disagree.

This is Reish Lakish’s interpretation.

The Gemara objects: Even if the reasoning is correct, nevertheless this interpretation is not precise in the wording of the Mishna.

Indeed,

the tanna of the Mishna was precise in his wording, as evidenced

by what it teaches in the first clause,

in the singular: “This one disqualifies

his judge

of that one,”

whereas

if

in the latter clause

it had taught in the plural: “This one disqualifies

his witnesses

of that one.”

Apparently,

it is proven that

it specifically teaches “his witnesses,”

meaning two witnesses.

And this is difficult for Reish Lakish, who said: Teach “his witness.”

The question returns: Is it possible that, according to Rabbi Meir, one litigant can disqualify the witnesses of the other litigant?!

The Gemara establishes a different interpretation of the Mishna [and the Mishna is not to be understood according to its plain meaning; rather, it speaks of a specific circumstance].

Rabbi Elazar said:

It is clear that one litigant cannot disqualify the witnesses of the other litigant. Rather, the Mishna is speaking of a case in which he does not disqualify them by himself, but

he comes together with another,

when the litigant comes and another person joins him,

to disqualify them,

and testify that the witnesses of the other side are disqualified from bearing witness. [ The Gemara will explain this at length].

According to this interpretation, the Mishna means as follows: “This one joins with another and disqualifies the witnesses of that one”—the statement of Rabbi Meir. And the Sages say: When is this so? When he brings proof against them—through two witnesses other than the litigant—that they are relatives or otherwise disqualified. But if he does not bring two other witnesses, they are fit, and he cannot disqualify them.

The Gemara asks: How is it possible that Rabbi Meir holds that one litigant can join with another person to disqualify the witnesses of the other side?

By what right

does he have such power? After all,

he is an interested witness?!

He has a personal interest in this testimony, since he does not want the witnesses to testify against him. And the law is that a witness who has a personal interest in the matter is disqualified from testifying.

The Gemara answers:

Rav Aḥa, son of Rav Ika, said:

The Mishna is speaking

of a case where a challenge was raised against him,

a trace of disqualification. That is, the litigant and the other person who joins him tell the court a reason why they are disqualifying the witnesses of the other side.

This is still not clear, and therefore the Gemara discusses it:

What sort of challenge

did they find against the witnesses?

If we say, a challenge of robbery,

that the witnesses of the other side are robbers, as they saw him commit robbery, and a robber is disqualified from testifying. [And this does not refer specifically to a robber; rather, it refers to all sins whose perpetrators are disqualified from testifying].

The question returns:

By what right,

what credibility does the litigant have regarding this, and who will believe him? After all,

he is an interested witness?!

Rather,

the meaning of Rav Aḥa’s statement is:

a challenge based on a family defect,

that he comes to challenge the fitness of a witness from the other side, saying that his family descends from slaves who were not emancipated, and that all members of the family are disqualified from testifying.

The Sages and Rabbi Meir disagree as to whether the litigant is considered an interested witness in such a case. The Sages hold that he is an interested witness, since he is now coming to disqualify the witness because he is testifying for his own benefit. Rabbi Meir, however, holds that since he is testifying about the entire family, he is not considered an interested witness, even though the litigant will benefit as a result of his testimony.

Rabbi Meir held: These,

the litigant and the other person,

are testifying about the family,

giving general testimony about the entire family and not specifically about the witness from the other side,

and he,

the witness,

will automatically be disqualified

by the court; therefore, he is not considered an interested witness.

But

if

the Sages hold: In the final analysis,

since the witness will be disqualified through his testimony,

he is an interested witness in his testimony,

and he cannot disqualify him.

This is Rabbi Elazar’s interpretation and his explanation of the Mishna.

The Gemara presents another interpretation of the dispute between Rabbi Meir and the Sages, and this interpretation has two versions [the second version and its explanation will be clarified in the notes].

When

he arrived,

Rav Dimi

from Eretz Yisrael to Babylonia,

he said

in the name of

Rabbi Yoḥanan: The dispute

between Rabbi Meir and the Sages is

with regard to two sets of witnesses,

in a case where the creditor said that he had two sets of witnesses testifying on his behalf, brought the first set, and the debtor [and another person who joins him] stood up to disqualify the creditor’s witnesses on the grounds that they were robbers. He also claims that he is not an interested witness, since, according to his claim, the creditor has another set of witnesses.

Rabbi Meir holds that the debtor’s claim is valid, and that the witnesses whom the creditor brought as the first set are disqualified from this testimony and even from other testimony, on the basis of the testimony of the debtor and the other person with him, who disqualified them.

Now that these witnesses are disqualified, if the creditor brings the second set that he claimed to have, the creditor will prevail in this claim on the basis of the second witnesses [and what he said, that he had two sets of witnesses, was because he believed this to be the case].

But if the creditor sought the second set and did not find it, he loses this claim as well. In any event, the first set is disqualified.

The Sages hold that the debtor and the other person with him cannot disqualify them, because the debtor is an interested witness: The creditor can retract and say, “I do not have another set, despite the fact that I said that I had another set.”

According to the Sages, the witnesses of the first set are not disqualified, whether or not he brought another set, either with regard to this testimony or with regard to other testimony.

And the basis of their dispute is:

Rabbi Meir holds that

the litigant

is required to clarify

and substantiate the truth of all his claims made in court, and to prove all his assertions. Therefore, in any event, the creditor was required to bring the second set as well. When he brought the first set, he was destined to bring the second set; therefore, when the debtor disqualifies them, he is not an interested witness.

And the Sages hold that

the litigant

is not required to clarify

and may bring only one set, even though he claimed and said that he had two sets of witnesses, and when he brought the first set, he was destined to bring the second set. Therefore, since he is not destined to bring the second set, the debtor cannot join in disqualifying the first set.

But with one set,

that is, if he did not claim that he had two sets of witnesses,

everyone agrees

Rabbi Meir concedes to the Sages that

no

the other litigant [and another person with him]

can disqualify them,

since he is certainly an interested witness. [According to this interpretation, the Mishna is explained as follows: If the creditor said that he had two sets of witnesses, “this one” may join with another person to “disqualify the witnesses of that one.” And the Sages say: When is this so? When he brings proof against them through two other witnesses, apart from the debtor, that they are relatives or disqualified. But if they were fit, and the debtor, together with another person, wishes to disqualify them through his testimony, the debtor cannot disqualify them] . A further explanation is still necessary: What innovation is there in Rashi’s difficulty? Is this not precisely Rabbi Meir’s position—that we do not take into consideration the possibility that the second witnesses will be disqualified, and as long as they have not been disqualified, the debtor may disqualify the first witnesses? Further explanation is also necessary, since, on the contrary, once it was clear to the debtor that the court would tell the creditor, “Clarify your claim and bring a second set,” and it had not yet occurred to anyone—not to the court and not to the litigants—that the second set would be disqualified, the debtor is certainly not an interested party if he disqualifies the first set, according to Rabbi Meir. This is, in fact, Rabbeinu Tam’s answer to Rashi’s difficulty. It appears that Rashi’s difficulty can be explained based on the inquiry raised by later authorities—our masters the Levush, the Sema, and the Shakh (Ḥoshen Mishpat, section 37)—concerning the law of an “interested party.” Is his disqualification due to a concern that he is lying, or is his disqualification due to the fact that he is a litigant? That is, since he has an interest, even if he is unaware of his interest, he is not categorized as a “witness”; rather, he is categorized as one who is litigating before the court. If an interested witness is disqualified because of a concern that he is lying, Rashi’s difficulty is not difficult, as we explained: As long as the second witnesses have not been disqualified, and it has not occurred to anyone that they will be disqualified, he is not suspected of lying, since he knows that his lie will not benefit him if the creditor brings the second set. But Rashi’s intention is to ask that, in the final analysis, the debtor is a litigant in this testimony, even without any concern that he is lying. In what sense is he a litigant? With regard to the entire testimony, since it is possible that the second witnesses will be disqualified. Even if the debtor is unaware that he has an interest and is not lying, he is nevertheless a litigant. Rashi and Rabbeinu Tam disagree over this principle. Rabbeinu Tam therefore holds that the debtor is not lying, since he knows that the creditor will be instructed by the court to bring the second set, as stated above. Rashi therefore explains the matter differently, based on another version. His explanation is as follows: The creditor claimed that he had two sets of witnesses, and indeed brought both of them, and the debtor [and another person with him] stood up to disqualify one set. The Sages hold that one is required to clarify his claim. If he claimed that he had two sets of witnesses, he must bring them, and the testimony of each set is necessary. Each set is the creditor’s witnesses; therefore, the debtor cannot disqualify them on the grounds that he is an interested witness. Just as they are not disqualified with regard to this testimony, so they are not disqualified with regard to other testimony. Rabbi Meir holds that one is not required to clarify his claim. As a matter of law, it is sufficient for him to bring only one set, and one set is superfluous. Therefore, the debtor may disqualify one set, and he is not an interested witness. Although the debtor derives no benefit from disqualifying this testimony, since in either event he will lose through the testimony of the other set, the witnesses will nevertheless be disqualified with regard to other testimony. [More precisely: Since disqualifying them will not benefit the debtor in this testimony, he is not an interested party and may disqualify them with regard to other testimony.] The two difficulties raised by Rashi are thereby resolved. First, according to the Sages, who hold that one is required to clarify his claim, he properly clarified his statement and brought two sets of fit witnesses. Second, there is no concern here that the second witnesses might be disqualified; this possibility did not occur to the litigants or to the court. [Rather, Rabbi Ami and Rav Asi ask what the law would be if the second witnesses were subsequently disqualified.] And later in the discussion as well, the version must be reversed.

Additional explanations of the discussion. All of the above follows Rashi’s explanation, that the debtor [and another person with him] wishes to disqualify one set, and that the dispute concerns whether he is an interested witness. But our early authorities explain the matter in other ways, and according to their explanations, the debtor does not come to disqualify them and is not an interested witness. Rabbeinu Ḥananel explains that the creditor claimed that he had two sets of witnesses, brought the first set, and they were disqualified because they were relatives or otherwise disqualified—that is, other witnesses came and disqualified them. The creditor now wishes to bring the second set. Rabbi Meir holds that he cannot bring them, because he holds that one is required to clarify his claim and bring fit witnesses. He is told: “If you brought them as witnesses, you thereby clarified your statement, and the other witnesses are invalid, while the witnesses you brought are your witnesses; and if they were disqualified, they are disqualified.” The Sages hold that one is not required to clarify his claim, and he may bring whichever set he wishes. Maimonides, in his Commentary on the Mishna, explains that the case is one in which the creditor brought one set and then brought another set, and they testified as did the first set, and the debtor claimed that they were disqualified [and he does not testify together with another person, nor does he bring others to disqualify them; rather, he merely makes this claim]. Rabbi Meir holds that his claim is heard, and the creditor is told: “Prove that they are fit, since you would not bring witnesses after witnesses concerning the very same matter unless you knew that some of them were unfit to testify. And we do not know which set among them is unfit.” Therefore, he must clarify his claim and prove their fitness. The Sages say that he need not clarify his claim or prove their fitness, and that the reason he brought one set after another was to strengthen his claim and demonstrate that many people testify on his behalf. If the debtor wishes to disqualify them, he must bring witnesses that they are disqualified. The Yad Ramah explains that the case is one in which the creditor claimed that he had two sets of witnesses, brought one set, and did not find the other set. Rabbi Meir holds that one is required to clarify his claim, and the debtor argues: “You are required to bring the second set; just as you lied when you said that you had another set, so you have lost your credibility regarding this set that you brought.” [This claim is very similar to the claims concerning a document and presumptive ownership: “Just as you did not find the document, so you have lost your credibility regarding the witnesses of presumptive ownership.”] The Sages hold that one is not required to clarify his claim, and he may bring only one set. According to the Yad Ramah, Rabbi Ami and Rabbi Asi’s question is as follows: According to Rabbi Meir, if he did in fact bring a second set and they were disqualified, is this considered as though he did not bring them—for what difference is there whether the witnesses are disqualified—or, in the final analysis, has he clarified his statement, since he was not precise in distinguishing between fit and disqualified witnesses?

And Rav Dimi continues to transmit the give-and-take that took place in the study hall of Rabbi Yoḥanan.

Rav Ami and Rav Asi said to him

to Rabbi Yoḥanan:

If there is only one set, what is the ruling

what will the halakha be?

Rabbi Yoḥanan understood their intention: The lender had initially said that he had no more than one set. Rabbi Yoḥanan therefore responds to them in the form of a question:

If there is only one set?

But you said [

it should read:

and we said]

and I explicitly said:

But with one set, everyone agrees that he cannot disqualify them.

Rather

the intention of Rav Ami and Rav Asi is: What is the ruling if

the second set is found to consist of relatives or disqualified witnesses

that is, other witnesses subsequently arrived and disqualified the second set, and their question is according to Rabbi Meir:

what is the ruling

? Shall we say that in this case Rabbi Meir concedes that the witnesses of the first set are not disqualified, since the second set is not valid, and it is retroactively revealed that he had only the first set, which the borrower could not disqualify on the grounds that he had a personal interest in the testimony?

Or perhaps we should say that although it is now known that the second set is disqualified, nevertheless, at the time when the borrower [together with another person] disqualified them, he had no personal interest in the matter, and they remain disqualified as witnesses both for this testimony and for other testimony.

He said to them

Rabbi Yoḥanan:

The first witnesses have already testified.

There are those who say

that this tradition was transmitted in a different formulation: It was not Rabbi Yoḥanan who said this, but later amoraim:

Rav Ashi said: The first witnesses have already testified.

That is, since at the time when it was not yet known that the second set would be disqualified, the borrower [together with another person] had no personal interest in the testimony, and his testimony had already been accepted, the first witnesses are disqualified both for this testimony and for other testimony. [And we do not say that it is retroactively revealed that the borrower had a personal interest in his testimony concerning the first witnesses, since they had already been disqualified] .

The Gemara discusses and clarifies: Shall

we say

that this dispute between Rabbi Meir and the Rabbis

is subject to the dispute

in another dispute,

between Rabbi and Rabban Shimon ben Gamliel—

they are disputing?

That is,

when a person occupied another person’s land, and the owner of the land [the previous owner] came and said to him, “What are you doing on my land?” If the occupant claims, “No one ever said anything to me,” his claim is not a valid claim, and he is removed from the land, since he does not even claim that the land belongs to him. But if he said to the owner of the land, “You sold it to me,” which is a valid claim, then the truth of his claim must be established.

Either he must prove through a deed that he purchased the land, or he must bring witnesses who saw him occupying the land for three years, in which case he does not need a deed. The reason is that a person is not careful to preserve his deeds of ownership for more than three years.

And the Gemara in tractate Bava Batra [169] discusses the case in which the occupant claimed that he had both a deed and witnesses attesting to three years of possession, but ultimately could not find the deed: Did he forfeit his ownership rights, despite having brought witnesses attesting to his ḥazaka?

The two sides of the issue are: Must he substantiate the statement he made that he had a deed, or not?

As it was taught

there in a beraita:

One who comes to litigate

one who claimed that he would bring his proofs of ownership before the court, both

with a deed and

also

with ḥazaka—

is judged on the basis of the deed

these are

the words of Rabbi. Rabban Shimon ben Gamliel says: He is judged on the basis of ḥazaka.

Before the Gemara concludes its question, it explains the beraita.

And we raised the following difficulty

when we were there—that is, when we were studying tractate Bava Batra—we asked: Is it possible to say that Rabban Shimon ben Gamliel holds

on the basis of ḥazaka and not on the basis of a deed

that the court would compel him to bring witnesses attesting to his ḥazaka and would not be satisfied with a deed? Surely, if he has a deed, he must bring the deed, since the entire concept of possession for three years is a substitute for a deed: If his deed is lost, he can bring witnesses attesting to his ḥazaka, but certainly a deed is preferable.

Rather, say

it should be explained as:

“also on the basis of ḥazaka.”

This is what Rabban Shimon ben Gamliel holds. Rabbi, by contrast, holds that it is specifically on the basis of a deed.

And on what principle does their dispute depend, since apparently witnesses attesting to ḥazaka should suffice?

And we established

there,

that they dispute the issue of “it must be substantiated”—

they disagree. Rabbi holds that since he claimed that he had a deed, he must bring his deed and substantiate his claim, and he cannot suffice with witnesses attesting to ḥazaka [although ḥazaka without a deed also grants him the right to retain possession of the land, had he not claimed that he had a deed]. Now that he did not find his deed, he forfeits his rights. Rabban Shimon ben Gamliel holds that it need not be substantiated, and even if he initially claimed that he had a deed, he need not bring it; his rights are established on the basis of the witnesses attesting to his ḥazaka.

Therefore, the Gemara asks: Shall we say [according to our version] that Rabbi Meir holds like Rabbi—“it must be substantiated”—while the Rabbis hold like Rabban Shimon ben Gamliel—“it need not be substantiated”?

And the Gemara answers:

The Gemara answers:

No

it is not necessary to establish that the Rabbis, who hold here that it need not be substantiated, hold like Rabban Shimon ben Gamliel. It is possible to establish that both Rabbi Meir and the Rabbis hold like Rabbi.

For

according to Rabban Shimon ben Gamliel,

if we were to hold like Rabban Shimon ben Gamliel, that it need not be substantiated,

everyone agrees

that certainly here as well, with regard to witnesses, Rabbi Meir and the Rabbis would hold that it need not be substantiated; consequently, the borrower could not disqualify the witnesses of the lender’s first set.

Rather,

when they disagree

what is the basis of the dispute between Rabbi Meir and the Rabbis?

It is according to Rabbi.

That is, both hold in the case of a deed and ḥazaka as Rabbi does, and nevertheless they disagree here with regard to the laws of testimony. And on what does their dispute depend?

Rabbi Meir

holds

like

Rabbi,

who

said there, “It must be substantiated,” and he must bring the deed; so too here, it must be substantiated, and therefore he does not have a personal interest in the testimony.

But the Rabbis would say to you

that they would explain their position as follows: Although we hold like Rabbi, nevertheless, the law concerning witnesses differs from the law concerning a deed and ḥazaka. How does it differ?

Rabbi stated that principle there only

that Rabbi holds that he must bring a deed when

the ḥazaka derives its authority from the deed.

The claim of ḥazaka in itself is not a claim at all, for what of it if he occupied the land for three years? It is entirely possible that he occupied it by robbery. Rather, his entire claim is that he had a deed and it was lost. It follows that the ḥazaka is a post facto substitute for a deed. Therefore, if he had initially claimed, “You sold it to me and I had a deed, but I was not careful with it. My ḥazaka is evidence for my claim that I had a deed and lost it,” he would certainly be deemed credible. But since he claimed that he still had a deed, the ḥazaka cannot serve as a substitute for the deed. Therefore, Rabbi holds that he must substantiate his statement and bring the deed, and if he did not find it, he forfeits his claim.

But here,

in contrast to the case of the deed and ḥazaka, the Rabbis hold

that these witnesses

of one set

do not derive their authority from other witnesses

their authority and fitness do not derive from the second set, and the two sets are unrelated. With regard to them,

even Rabbi concedes that it need not be substantiated,

since these are two sets that are not dependent on one another, and each set independently constitutes complete testimony proving the validity of his claim. Therefore, he need not substantiate his statement and bring both sets.

The Gemara now presents another explanation of the dispute between Rabbi Meir and the Rabbis.

When Ravin came

from Eretz Yisrael to Babylonia,

he said

in the name of

Rabbi Yoḥanan: The opening clause

of the Mishna, “This one disqualifies the other’s judge,” refers there to a case in which the borrower disqualifies them—that is, he claims that they are disqualified, both the judges and the witnesses.