Sanhedrin 23b — the Talmud in English

And

on this Mishna

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

that it is speaking

for example, where he accepted him upon himself

—that he accepted his father or your father

as one,

that he should be one of the judges, and two other fit [judges] joined him; and despite the fact that he is only one among the three, the litigant may retract, according to Rabbi Meir, since he is disqualified by Torah law.

And if so, it is difficult: What did Rabbi Meir innovate, according to the words of Resh Lakish, that if he accepted one witness upon himself—whose testimony is also not valid by Torah law—that he should be trusted like two, he may retract? After all, he has already taught us that he may retract with regard to accepting a disqualified judge?

And the Gemara answers that nevertheless there is an innovation in the law of “witnesses” that it did not teach us in the law of a relative judge, such as “my father and your father.”

It is necessary

—the Mishna needed to teach us this.

For if the tanna had taught

if the tanna had taught only the law of accepting a judge for

my father and your father

, we would have thought that only

in this case did the Rabbis say

the Sages hold

that he cannot retract

if he accepted them,

because my father and your father

are not generally unfit to judge, for

they are fit for the world

—they are fit to judge other people.

But

if he accepted

one

, one witness,

like two witnesses

, who

are not fit even for the world

—one witness is not fit for any testimony in monetary law to extract money on his word—

I would say

there would be room to say that the Sages

agree with Rabbi Meir

and hold like him, that he may retract and say that he does not accept one witness.

Therefore the Mishna teaches us that even with one witness the Sages hold that if he accepted him upon himself, he cannot retract.

And if you say: It would have been sufficient to teach the law of one witness, and we would understand on our own that if the Sages hold that even when accepting one witness he cannot retract, all the more so with accepting my father and your father to judge, since they are intrinsically fit to be judges—if so, it is difficult: Why does the Mishna teach us the law of my father and your father?

And the Gemara answers:

And if it had taught us

if the Mishna had taught us only

in this case

the law of one witness, we would have thought that only

in this case

, in this law,

does Rabbi Meir say

that he may retract, since one witness is not fit for other testimonies.

But in that case

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

I would say

we could say that Rabbi Meir

agrees

with

the Rabbis

that he cannot retract.

And therefore

it is necessary.

The Mishna needed to teach us that with both one witness and my father and your father, Rabbi Meir and the Sages disagree.

This is Resh Lakish’s establishment [of the Mishna].

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

Behold

, the tanna of the Mishna was precise in his wording, as is evident

from what he teaches in the first clause

in the singular: “This one disqualifies

‘his judge’

of that one,”

whereas

if

in the latter clause

he had taught in the plural: “This one disqualifies

‘his witnesses’

of that one.”

Evidently

, it is proven that

it specifically teaches

“his witnesses,” who are two witnesses.

And this is difficult for Resh Lakish, who said: Read “his witness.”

And the question returns: Is it possible that according to Rabbi Meir one litigant disqualifies the witnesses of the other litigant?!

And the Gemara establishes another interpretation of the Mishna [and the Mishna is not to be understood according to its plain meaning, but speaks of a specific situation].

Rabbi Elazar said:

It is clear that a litigant cannot disqualify the witnesses of the other litigant, but rather the Mishna is speaking of a case where he does not disqualify him alone, but

where he comes together with another

, when the litigant comes and another person joins him,

to disqualify them

and testify concerning the witnesses of the other side that they are disqualified from testimony. [And the Gemara will explain this at length].

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

And the Gemara objects: How is it possible that Rabbi Meir holds that the litigant can join with another to disqualify the witnesses of the other side?

Is it within his power

—how does he have such power? After all,

he is interested in the testimony?!

He has a personal interest in this testimony, since he does not want them to testify to his detriment. And the law is that a witness who has an interest in the matter is disqualified from testimony.

And the Gemara answers:

Rav Aḥa, son of Rav Ika, said:

The Mishna is speaking

for example, where a challenge was raised against him,

a trace of disqualification. That is, the litigant and the other who joins him state to the court a reason why they disqualify the witnesses of the other side.

And it is still not explained, and therefore the Gemara discusses:

What sort of challenge

, what disqualification did they find in the witnesses?

If you say, a challenge of robbery,

that the witnesses of the other side are robbers, for they saw him rob, and a robber is disqualified from testimony. [And not specifically a robber, but rather all transgressions whose perpetrator is disqualified from testimony].

The question returns:

Is it within his power,

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

he is interested in the testimony?!

Rather,

the meaning of Rav Aḥa’s words is:

a challenge of family defect

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

And the Sages and Rabbi Meir disagree whether the litigant has the status of one who has an interest in the testimony in such a case. The Sages hold that he has an interest in the testimony, since now he comes to disqualify him because he is coming to testify for his own benefit. But Rabbi Meir holds that since he testifies about the entire family, he is not considered to have an interest in the testimony, even though as a result of his testimony the litigant will benefit.

Rabbi Meir reasoned: These

, the litigant and the other,

testify about the family

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

and he

, the witness,

is disqualified in any event

—the court will disqualify him; therefore he is not considered to have an interest in the testimony.

And

if

the Rabbis reason: In the end,

since through his testimony the witness will be disqualified,

he has an interest in his testimony,

and he cannot disqualify him.

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

And the Gemara brings another establishment in explaining the dispute between Rabbi Meir and the Sages, and in this establishment there are two versions [and the second version and its explanation will be explained in the notes].

When

he arrived,

Rav Dimi

from the Land of Israel to Babylonia,

he said

in the name of

Rabbi Yoḥanan: The dispute

between Rabbi Meir and the Sages is

with two groups of witnesses,

when the creditor said that he had two groups of witnesses testifying in his favor, and he brought the first group, and the debtor stood [and another joined him] to disqualify the creditor’s witnesses on the claim that they were robbers. And he also claims that he does not have an interest in the testimony, since, according to his claim, the creditor has another group.

And Rabbi Meir holds that the debtor’s claim is a valid claim, and the witnesses whom the creditor brought as the first group are disqualified from this testimony and even from other testimonies, based on the testimony of the debtor and the other who joined him, who disqualified them.

And now that these witnesses are disqualified, if the creditor brings the second group that he claimed he had, the creditor will prevail in this claim on the basis of the second witnesses [and what he said—that he had two groups of witnesses—was because he thought so].

And if the creditor requested the second group and did not find it, he also lost this claim. In any event, the first group is disqualified.

And the Sages hold that the debtor and another with him cannot disqualify them, because the debtor has an interest in his testimony, since the creditor can retract and say, “I have no other group, even though I said that I had another group.”

And according to the Sages, the witnesses of the first group are not disqualified, whether he brought another group or whether he did not bring another group, neither for this testimony nor for another testimony.

And the basis of their dispute is:

For Rabbi Meir reasoned,

the litigant

must clarify

and establish all the claims that he made in court as true, and prove all his justifications. Therefore, in any event the creditor was required to bring the second group as well, and when he brought the first group he was destined to bring the second group. Therefore, when the debtor disqualifies them, he does not have an interest in the testimony.

And the Rabbis reasoned,

the litigant

need not clarify

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

But with one group,

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

everyone agrees

Rabbi Meir concedes to the Sages that

no

second litigant [and another with him]

can disqualify them

, since he certainly has an interest in the testimony. [According to this establishment, the Mishna will be explained as follows: If the creditor said that he had two groups of witnesses, “this one” can join with another to be one who “disqualifies the witnesses of that one.” And the Sages say: When is this so? When he brings proof concerning them, through two other witnesses, apart from the debtor, that they are relatives or disqualified. But if they were fit, and the debtor, through his testimony together with another, wishes to disqualify them, the debtor cannot disqualify them] .

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 Yohanan.

Rav Ami and Rav Asi said before him

before Rabbi Yohanan:

There is only one group; what is [the law]?

What will the law be?

And Rabbi Yohanan understood their intent: that initially the lender had said that he had no more than one group, and therefore Rabbi Yohanan answered them in the language of a question:

There is only one group?

But you said [

it should say:

and we said]

and I explicitly said:

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

Rather,

the intent of Rav Ami and Rav Asi is: what will be the law if

the second group is found to be relatives or disqualified,

that is, afterward other witnesses came and disqualified the second group, and your question is according to Rabbi Meir:

what is [the law]?

Shall we say that in this case Rabbi Meir admits that the witnesses of the first group are not disqualified, since the second ones are not [valid], and it is revealed retroactively that he had only the first group, and the borrower could not disqualify them on the grounds that he has an interest in the testimony?

Or shall we say that although now it has become known that the second group is disqualified, nevertheless, at the time when the borrower [and another with him] disqualified them, he did not have an interest in the matter, and they remain disqualified for this testimony and for other testimony?

He said to them

Rabbi Yohanan:

The first witnesses have already testified.

Some say:

there are those who transmitted this report in another version, that it was not Rabbi Yohanan who said this, but the 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 ones would be disqualified, and the borrower [and another with him] did not have an interest in the testimony, and his testimony had already been accepted, the first ones are disqualified for this testimony and for other testimony. [And we do not say that it is revealed retroactively that the borrower had an interest in his testimony concerning the first ones, since they had already been disqualified] .

And the Gemara discusses and clarifies: shall we

say

that this dispute between Rabbi Meir and the Sages

is in the dispute

in another dispute,

that of Rabbi and Rabban Shimon ben Gamliel—

they disagree?

A person who held his fellow’s land, and the owner of the land [the former owner] came and said to him, “What are you doing on my land?” If the holder claims, “No one ever said [anything] to me,” his claim is not a claim, and they remove him from the land, since he does not even claim that the land is his. 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 clarified.

Either he must prove with a document that he acquired the land, or he must bring witnesses who saw him holding the land for three years, and then he does not need a document. The reason is that a person is not careful to preserve his documents of ownership for more than three years.

And the Gemara in tractate Bava Batra [169] discusses the case where the holder claimed that he had both a document and witnesses of three years, and in the end he did not find the document: did he lose his rights, despite having brought witnesses of possession?

And the sides of the law are: does he need to clarify his words, when he said that he had a document, or not?

For it was taught,

we learned there in a beraita:

One who comes to litigate,

a person who claimed that he would bring to the court his proofs of ownership, both

by a document and

also

by possession—

he is judged by the document,

these are

the words of Rabbi. Rabban Shimon ben Gamliel says: He is judged by possession.

And before the Gemara concludes its objection, it explains the beraita.

And we raised the matter,

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

by possession and not by a document,

that the court would compel him to bring witnesses of possession, and would not be satisfied with a document?! Surely, if he has a document, he must bring the document, since the entire matter of “possession for three years” is a substitute for a document: if his document were lost, he could bring witnesses of possession, and surely a document is preferable.

Rather, say

it must be explained: “

also by possession.”

This is what Rabban Shimon ben Gamliel holds. Whereas Rabbi holds specifically by a document.

And upon what principle does their dispute depend, since seemingly witnesses of possession are sufficient for us—

And it is established for us

that we established there:

that “it must be clarified”—

they disagree.

Rabbi holds: since he claimed that he had a document, he must bring his document and clarify his claims, and he cannot be satisfied with witnesses of possession [although possession without a document also gives him the right to hold the land, if he had not claimed that he had a document], and now that he did not find his document, he has lost. And Rabban Shimon ben Gamliel holds: it need not be clarified, and even if he initially claimed that he had a document, he need not bring it, and his rights are based on the witnesses of possession.

And therefore the Gemara asks: shall we say [according to our version] that Rabbi Meir holds like Rabbi, “it must be clarified,” and the Sages hold like Rabban Shimon ben Gamliel, “it need not be clarified”?

And the Gemara answers:

No,

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

everyone agrees

that certainly here too, with regard to witnesses, Rabbi Meir and the Sages would hold that it need not be clarified, and consequently the borrower could not disqualify the witnesses of the lender’s first group.

Rather,

when they disagree,

upon what does the dispute between Rabbi Meir and the Sages depend?

According to Rabbi.

That is, both of them hold in the law of a document and possession like Rabbi, and nevertheless they disagree here in the laws of testimony. And upon what does their dispute depend—

Rabbi Meir

holds

as

well

Rabbi,

who said there, “it must be clarified,” and he must bring a document; so too here, it must be clarified, and therefore he does not have an interest in the testimony.

And the Rabbis will say to you,

they will explain their words: although we hold like Rabbi, nevertheless, the law of witnesses differs from the law of a document and possession. And in what way does it differ?—

Rabbi did not say there

that a document must be brought except when he has possession that derives from a document.

A claim of possession in itself is no claim at all, for what of it that he held it for three years? It is entirely possible that he held it through robbery. Rather, his entire claim is that he had a document and it was lost. It follows that the possession is, after the fact, a substitute for a document. And from now, if he had initially claimed, “You sold it to me and I had a document, but I was not careful with it. And my possession is proof of my claim that I had a document and it was lost,” he would certainly be believed. But since he claimed that he still had a document, the possession cannot be a substitute for the document. Therefore Rabbi holds that he must clarify his words and bring the document, and if he did not find it, he loses.

But here,

in contrast, with witnesses, the Sages hold

that these witnesses

of one group

do not derive their authority from other witnesses,

their authority and fitness do not derive from the second group, and they have no connection to one another; and with regard to them

even Rabbi admits that it need not be clarified,

for they are two groups that do not depend on one another, and each group by itself is complete testimony proving the truth of his claim; therefore, he need not clarify his words and bring both groups.

And now the Gemara brings another establishment in explanation of the dispute between Rabbi Meir and the Sages.

When Ravin came

from the Land of Israel to Babylonia,

he said

in the name of

Rabbi Yohanan: The opening clause

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

Rabbi Yohanan: The first clause

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