Sanhedrin 27a (כז.) — the Talmud in English

Conspiring witness

A witness whom other witnesses conspired to disqualify is disqualified from bearing testimony, since he is a “wicked” person, and a wicked person is disqualified from bearing testimony

— Rather, Abaye and Rava disagree concerning the validity of testimony that he gave between the time of his false testimony and the time that he was exposed as a conspiring witness. For example, he testified in Nisan and was exposed as a conspiring witness in the following Tishrei, and in the interim he gave additional testimonies: Are those testimonies retroactively invalid, as will be explained?

Abaye said:

A conspiring witness is disqualified even

retroactively.

And Rava said:

Only

from that point forward is he disqualified.

The Gemara initially explains Abaye’s opinion.

Abaye said: From that point forward is he disqualified,

because

from the time that he testified,

from the moment that he gave his false testimony, i.e., beginning in Nisan,

he is wicked. And the Torah said: “Do not join your hand with the wicked.”

It is as though the verse had said:

“Do not appoint a wicked person as a witness.”

Indeed, it was only now, in Tishrei, when he was exposed as a conspiring witness, that it became known to us that he was wicked; but his wickedness dates from the time of his testimony in Nisan, and from then he was disqualified from bearing testimony.

The Gemara now explains Rava’s opinion and presents two approaches to it.

The first approach:

Rava said: From that point forward is he disqualified,

because the entire basis of the law of

a conspiring witness,

by which the latter witnesses are believed to expose the first witnesses as conspirators and disqualify them,

is a novelty

established by a scriptural decree and not by logical reasoning. For logical reasoning would indicate that one should say:

What did you see

that caused you

to rely on these,

believing and accepting the testimony of the witnesses who exposed them?

Rely on those,

and accept the testimony of the first witnesses. Therefore, since it is a novelty,

you have in it

to disqualify them

only from the time of its novelty and onward.

That is, if it were indeed clear that their testimony in Nisan was false, there would be reason to disqualify them already from Nisan. But since we did not disqualify them as certainly false witnesses—for who tells us that they lied? It is possible that the latter witnesses who exposed them were the ones who lied. Rather, the Torah established by a scriptural decree that from the time they exposed the first witnesses, their status is that of liars. Therefore, they are considered liars only from Tishrei, and not before then.

Explanation of the final answer The eminent Rabbi Akiva Eger raised the following difficulty: Here, they did not seek to derive a law from the law of conspiracy, concerning which one could say, “One does not derive from a novelty.” Rather, we wanted to say that there is no need to derive the disqualification of the first witnesses from conspiring witnesses, because they are disqualified by logical reasoning, since they are also disqualified in contradictory testimony. What, then, did Tosafot answer? One may add to his difficulty that Tosafot of the Rosh (cited in the Shita Mekubetzet to Bava Batra, there) cites this answer of Tosafot in the name of the Riva, and this is his language: “Here too, it is a novelty that the witnesses who expose them as conspirators are fit when the witnesses exposed as conspirators are disqualified. What difference is there between these and those? Therefore, since the witnesses who expose them are fit, it would be appropriate for the witnesses exposed by them to be fit as well; therefore, it is a novelty.” These words require explanation: Does the fact that the witnesses who expose them are fit require that the witnesses exposed by them also be fit?! On the contrary, if the witnesses who expose them are fit, the witnesses exposed by them are disqualified! Rabbi Shmuel Shtrasson explains (Ketubot, siman 26, and Bava Batra, siman 16): Seemingly, Rav Ḥisda’s reasoning requires examination. Why should we disqualify both sets, and why should we not say that each set independently has a presumption of fitness, as in the case of two paths? He explains: Granted, in the case of two paths, the ritual impurity of each path does not result from the purity of the other; rather, each individual is subject to uncertainty, and in every case of uncertainty we leave him with his presumption of fitness [but when they came before us simultaneously, they contradict one another, and with regard to this it was said that one may rely on the presumption]. But here, in contradictory testimony, the entire discussion of the fitness of each set results directly from the uncertainty concerning the other set. For if we establish that one set is fit, it necessarily follows that the other is disqualified; and if we establish that one set is disqualified, the other is fit. Therefore, since the uncertainty concerns the interrelationship of the two sets, it is impossible to leave each set with its presumption, since its status is intertwined with that of the other set, which testifies against it that, because of the uncertainty, it is disqualified. It therefore follows that if there were a situation in which there were no discussion and no practical consequence concerning one set, and it did not stand for consideration before us at all, thereby severing the connection between them, and only one set remained to be considered, we would leave it with its presumption of fitness. Therefore, with regard to conspiring witnesses, where the Torah gave complete credence to the second witnesses through the Torah’s novelty concerning conspiring witnesses and not through factual logical reasoning, there is no uncertainty concerning the first witnesses that undermines their presumption, and we should have left the first set with its presumption of fitness [and this is the explanation of Tosafot of the Rosh]. The Torah therefore came to introduce the novelty that nevertheless the first set is disqualified. The essential point of Rabbi Shmuel Shtrasson’s explanation is that the disqualification of the first witnesses in a case of conspiracy is a greater novelty than the disqualification of each set in a case of contradiction. Therefore, Rava maintains that conspiring witnesses are a novelty even if he follows Rav Ḥisda. This is the explanation of Tosafot’s answer. Rabbi Akiva Eger’s difficulty is thereby resolved: The disqualification of the first witnesses in a case of conspiracy does not result from the reasoning that their status is no better than in a case of contradiction; it is superior and far more novel. Explanation of the difference between the first and second answers. In the first answer, Tosafot maintain that Rav Ḥisda cannot maintain that a conspiring witness is a novelty. For they wrote that when Rava says that it is a novelty, he does not say so according to Rav Ḥisda. This is difficult: Ultimately, it is a novelty, since in the case of contradictory witnesses they are disqualified only because of uncertainty and are believed—at the very least—to establish money in its owner’s possession. The Torah’s novelty in the case of conspiring witnesses is that they are certainly disqualified and are not believed even to establish money in its owner’s possession [as stated in the second answer]. The Sha’ar HaMishpat explains this based on the words of Maimonides (Hilchot Edut, chapter 9, halakha 3): “Similarly, a tumtum and an androgynos are disqualified because they are of doubtful female status. And anyone whose status is doubtful—fit or disqualified—is disqualified, since a witness comes only to remove money on the basis of his testimony or to impose punishment on the basis of his testimony, and money is not removed because of uncertainty, nor is punishment imposed because of uncertainty, by Torah law.” It follows that Maimonides maintains that there is no concept of witnesses whose status is doubtful, neither for establishing money in a person’s possession nor for removing it, since witnesses clarify and establish a matter, and something that is not clarified is not testimony; witnesses whose status is doubtful are not witnesses. Tosafot, in their first answer, maintain this reasoning; therefore, according to Rav Ḥisda, they are completely disqualified, even from establishing money in a person’s possession. Explanation of Abaye’s reasoning The Leḥem Mishne (Hilchot Edut, chapter 18, halakha 2) explains that Abaye’s reason for disqualifying the witness retroactively is that he maintains that a conspiring witness is not a novelty, based on the Tur’s explanation of the reason for the law of conspiring witnesses. The Tur wrote (siman 38), and this is his language: “And for this reason the latter witnesses are believed, since they testify about the bodies of the witnesses, and it is as though they testified about them that they killed a person or desecrated Shabbat, and they are not believed regarding themselves to say, ‘We did such and such.’” (See also Kovetz Shiurim, Bava Kamma, section 43, and the lessons of Rabbi Shimon Shkop, Makkot, section 138.) It follows from the words of the Leḥem Mishne that Abaye and Rava disagree on this reasoning. It is difficult to say this, first, because it is not only Rava who says that conspiring witnesses are a novelty; Rabbi Akiva also maintains this—without dissent—in tractate Makkot (2b). Maimonides rules there in accordance with Rabbi Akiva, whereas in our sugya he rules in accordance with Abaye. Furthermore, Rava himself says below that if two witnesses disqualified other witnesses as robbers, they are believed without any novelty; see there in the name of the Yad Ramah and Ramban. If so, what is the novelty concerning conspiring witnesses? The Divrei Ḥayyim responsa (part 1, Ḥoshen Mishpat, siman 11, and the additions at the end of the book, siman 31) further challenged the Tur’s words: Conspiring witnesses are not comparable to witnesses who testify about others that they are wrongdoers. In the case of witnesses who testify that the first witnesses desecrated Shabbat, and the first witnesses deny it, the witnesses are testifying about themselves and are not believed, since they are בעלי דבר and have an interest in their testimony. In the case of conspiring witnesses, however, when they came to testify that so-and-so borrowed money, they had no interest whatsoever in this testimony. If they are subsequently exposed as conspirators, and now they dispute whether they saw the loan or not, although they now have an interest in the matter and are testifying about themselves, nevertheless, at the time of their testimony concerning the loan they had no interest in the matter, and their testimony was accepted in the court. If there is still a dispute whether they saw the loan, then “What did you see that caused you to rely on these? Rely on those.” Perhaps the first witnesses are truthful and the second witnesses are liars. Therefore, the Torah requires a novelty whereby the latter are believed and not the first. Rather, certainly the Tur’s intention is that the Torah’s novelty is that we believe the latter as though they had testified that the first witnesses were wrongdoers. That is, the first witnesses are now giving two testimonies: one concerning the loan and the other concerning themselves. Without the Torah’s novelty, we would not relate to their testimony about themselves—for they are not believed—but only to their testimony concerning the loan. The Torah came to teach us that we do indeed relate to their testimony concerning themselves [as the Tur wrote]. Returning to our matter: The Tur does not maintain that there is no novelty concerning conspiring witnesses, and Abaye agrees that conspiring witnesses are a novelty. The later authorities explained that his reason for disagreeing with Rava is that although it is a novelty, nevertheless they are disqualified because they gave false testimony, and they are disqualified retroactively from the time that they gave false testimony. Rava maintains that the disqualification is not based on the reality of false testimony, but on the legal status of false testimony, and one has in it only the consequence of the novelty from the time of its novelty and onward. The second approach:

Some say: Rava also agrees with Abaye,

that their wickedness began in Nisan, from the time that they gave the testimony that was subsequently exposed as false.

And for what reason did he say

that Rava said that a conspiring witness is disqualified only

from here

and onward,

despite the fact that his wickedness had already begun in Nisan?

Because of the potential loss of purchasers.

This is to prevent the purchasers who bought fields between Nisan and Tishrei, and had this witness sign the sale document, from suffering a loss, since they did not know that he was disqualified. If we disqualify his testimony on the document, the purchasers will suffer a loss. Therefore, Rava maintains that, as a rabbinic enactment, the conspiring witness is not disqualified retroactively. [Abaye was not concerned about this.]

The Gemara clarifies:

What is the practical difference between them?

What practical legal difference is there between Rava’s two explanations?

There is a difference between them

in a case

where two testified concerning one [

The reading of the Bach:

and two concerning one ],

where two sets of witnesses came to expose the testimony of the two initial witnesses as conspiratorial: One set exposes one witness, saying, “You were with us on that day in another place, and you could not have seen the matter about which you are testifying in the other place,” and the second set exposes the other witness. Therefore, according to Rava’s first explanation, Rava agrees that in this case they are disqualified retroactively, because the fact that the two are believed to expose the one, and that the first witnesses are disqualified, is not a novelty, since it is logical that two witnesses are superior to one witness.

But according to the explanation based on the potential loss of purchasers, they are not disqualified retroactively, because of the loss that would be suffered by the purchasers.

Alternatively,

there is another practical difference, in a case where

the

second witnesses did not expose the first witnesses as conspirators, but merely

disqualified them

the first witnesses

as robbers,

testifying about them that they had already been robbers in the preceding month of Nisan and had been disqualified from then onward. According to Rava’s first explanation, Rava agrees that they are disqualified retroactively, because the fact that the two are believed and that the first witnesses are disqualified is not a novelty; it is logical that two witnesses who testify that others committed robbery can disqualify them. But according to the explanation based on the potential loss of purchasers, they are not disqualified retroactively, because of the potential loss of purchasers.

The Gemara now discusses whose opinion the halakha follows.

And Rabbi Yirmeya of Difti said: Rav Pappa carried out

and performed

an act,

putting it into practice,

in accordance with him,

according to the opinion of

Rava.

Whereas

Mar bar Rav Ashi said: The halakha is in accordance with Abaye,

that he is disqualified retroactively.

And although whenever Abaye and Rava disagree, the halakha is in accordance with Rava, here the halakha is in accordance with Abaye, for the rule is:

And the halakha is in accordance with Abaye in ya'al kega"m,

in these six halakhot: ye'ush שלא מדעת, an owner’s relinquishment of an item without his knowledge; a conspiring witness is retroactively disqualified; a leḥi that stands by itself; betrothals not given for the purpose of consummation; disclosure of intent with regard to bills of divorce; and an apostate who eats nevelot to satisfy his appetite [this is the next halakha].

The Torah says: “Do not join your hand with a wicked person to be a dishonest witness.” And Abaye and Rava disagreed concerning the definition of a “wicked person” who is disqualified from bearing witness.

A Jew who is

an apostate [

one who defiantly rejects the mitzvot], in that he

eats non-kosher meat to satisfy his appetite,

because of his great desire for it—

according to all,

both Abaye and Rava maintain that he is

disqualified

from bearing witness. Since he does so because of his desire for money, as non-kosher meat is cheaper than the meat of a kosher animal, his status is like that of “a dishonest wicked person,” and he is disqualified from bearing witness.

But with regard to an apostate who sins

defiantly,

one who commits a transgression in order to anger his Creator, without deriving monetary gain from it [for example, when both non-kosher and kosher meat are before him and both are free, yet he eats the non-kosher meat; or when he violates a prohibition from which there is no monetary benefit or enjoyment], Abaye and Rava disagree:

Abaye said: He is disqualified

from bearing witness.

Rava said: He is fit.

And the Gemara explains their dispute:

Abaye said: He is disqualified,

because

he is a wicked person,

and the Merciful One said: “Do not appoint a wicked person as a witness.”

And Rava said: He is fit,

because

a dishonest wicked person,

one motivated by desire for money,

is required,

for us to disqualify him from bearing witness.

And the Gemara brings a beraita that is proof for Abaye and a difficulty for Rava.

Meytivi

from that which was taught in a beraita: The Torah says [Exodus 23:1], “Do not extend your hand to be a dishonest witness.” And we expound the verse as though it were written as follows:

“Do not appoint a wicked person as a witness”; “Do not appoint a dishonest person as a witness”—

these are robbers and those who violate oaths.

What

is the meaning of the word “oaths” in the plural? Is it

not one,

whether

a vain oath,

one who swears that a stone pillar is made of gold ,

and one

whether

a monetary oath,

one who denies under oath a monetary obligation imposed upon him to pay?

But a vain oath provides him with no monetary benefit or enjoyment, and he is not “a dishonest wicked person.” Yet the beraita derives from the verse that he is disqualified, which is difficult for Rava! The Gemara answers:

No,

not as you said. Rather,

both this and that,

the “oaths” mentioned by the beraita in the plural, are

monetary oaths. And what is

the meaning of the term

“oaths”

in the plural used by the beraita? It refers to

oaths in general.

Many oaths, taken by many people, who swear to one another.

And the Gemara brings another beraita, which is proof for Rava and a difficulty for Abaye.

Meytivi

from that which we learned in a beraita:

“Do not appoint a wicked person as a witness”; “Do not appoint a dishonest person as a witness”—

these are robbers and those who lend at interest.

And it is implied that only those who violate a prohibition because of desire for money, as well as those who eat non-kosher meat to satisfy their appetite, who resemble transgressors involving money, are disqualified from bearing witness. This is because only with regard to them is there concern that just as their desire for money causes them to violate a prohibition from the Torah, so too it will cause them to give false testimony in exchange for a bribe. But an apostate who sins defiantly is not disqualified from bearing witness!?

A refutation of Abaye,

for the words of the beraita are a difficulty for Abaye, and the conclusion of the Gemara is that they are indeed

a refutation.

Since Abaye does not explain them away.

The Gemara now considers: Should

we say,

that the dispute between Abaye and Rava concerning the fitness of an apostate who sins defiantly to bear witness

is subject to a dispute between tanna’im,

that it is a dispute between tanna’im?

For we learned in a beraita:

A conspiring witness,

he is

disqualified for all

testimony throughout

the entire Torah, this is the statement of Rabbi Meir.

Rabbi Yosei says: When is this statement

that he is disqualified for all testimony applicable? It is when

he was shown to have conspired,

when they proved him false concerning testimony that he gave to impose liability

in capital cases.

Since he was suspected of violating the severe prohibition of giving testimony in capital cases, thereby killing a person through false testimony, he is suspected with regard to all testimony throughout the Torah, all of which is less severe than this [or similar to it].

But if he was shown to have conspired

when they proved him false concerning testimony that he gave

in monetary cases,

he is still not suspected, and he is

fit to

testify in

capital cases,

because one suspected of violating a less severe prohibition is not yet suspected of violating a more severe prohibition.

Rabbi Meir does not distinguish in this manner, and holds that even one suspected with regard to the less severe is suspected with regard to the more severe.

Should

we say that Abaye

holds

like Rabbi Meir, and Rava

holds

like Rabbi Yosei?

The Gemara now explains how the dispute between Abaye and Rava can be linked to the dispute between Rabbi Meir and Rabbi Yosei:

Abaye

holds

like Rabbi Meir, who says that we say

that he should be disqualified from testimony even

from a less severe matter,

from false testimony in monetary cases,

to a more severe matter,

capital cases. Since one suspected with regard to the less severe is also suspected with regard to the more severe.

And Abaye also said this, for an apostate who eats non-kosher meat defiantly is considered one suspected with regard to the less severe, since he is not bad toward other people, but only bad toward Heaven. Yet Abaye holds that he is nevertheless suspected with regard to the more severe, namely, the serious sin of giving false testimony, since he is bad toward Heaven and bad toward other people, causing them monetary loss.

Whereas

Rava,

who holds that one suspected with regard to the less severe is not suspected with regard to the more severe—for according to him, one suspected of eating non-kosher meat, who is not bad toward other people, is not suspected of giving false testimony, which is bad toward Heaven and bad toward other people—holds

like Rabbi Yosei, who says that only

from

a more severe matter to a less severe matter

may one be considered suspected with regard to the latter,

we say

that he should be disqualified. But

from a less severe matter to a more severe matter,

considering one suspected with regard to the less severe to be suspected with regard to the more severe—

we do not say

that he should be disqualified.

The Gemara rejects this:

No!

We cannot say that the dispute between Abaye and Rava depends on the dispute between the tanna’im. Rather, this is what we must say:

According to Rabbi Yosei, everyone agrees.

That is, it is certain that Abaye cannot reconcile his position at all according to Rabbi Yosei. For if Rabbi Yosei holds that even from monetary matters to capital matters—where both are bad toward Heaven and bad toward other people—we do not disqualify a person by moving from the less severe to the more severe, all the more so Rabbi Yosei holds that one suspected of eating non-kosher meat, who is bad toward Heaven but not bad toward other people, is not suspected of giving false testimony, which is bad toward Heaven and bad toward other people. This is contrary to Abaye’s opinion, according to which he is disqualified. Therefore, Abaye’s position is indeed dependent on the dispute between the tanna’im.

They disagree according to Rabbi Meir.

That is, according to Rava, there is no need to forcefully say that Rava does not hold like Rabbi Meir. Rava too can reconcile his position even according to Rabbi Meir. And what is their dispute?

Abaye

holds

like Rabbi Meir;

just as Rabbi Meir disqualifies one from the less severe to the more severe, so too does Abaye.

And Rava could say to you:

Rabbi Meir said that only there,

that one suspected with regard to the less severe is suspected with regard to the more severe, but only

with regard to a conspiring witness in a monetary case, who is bad toward Heaven and bad toward other people.

For although monetary matters are less severe than capital matters, nevertheless, the severity they share is that in both cases he is bad toward Heaven and bad toward other people. Therefore, Rabbi Meir holds that one suspected with regard to the relatively less severe of the two is suspected with regard to the more severe.

But here,

in the case of one who eats non-kosher meat defiantly,

for

he is

bad toward Heaven but not bad toward other people—

no.

Even Rabbi Meir does not disqualify him from testimony, because the severity of his status with regard to testimony is certainly greater, as he is bad toward Heaven and bad toward other people.

In summary: Rava can hold like Rabbi Meir, and certainly like Rabbi Yosei. Abaye, however, can hold only like Rabbi Meir.

The Gemara rules:

And the halakha is in accordance with Abaye.

This is the wording of the Rambam (Laws of Testimony, chapter 10, halakhot 1–4): “The wicked are disqualified from testimony by Torah law, as it is stated: ‘Do not join your hand with a wicked person to be a dishonest witness.’ Through the received interpretation they learned: ‘Do not appoint a wicked person as a witness.’ Who is a wicked person? Anyone who committed a transgression for which one is liable to lashes; this is a wicked person and is disqualified, for the Torah called one liable to lashes ‘wicked,’ as it is stated: ‘And it shall be, if the wicked man is liable to be flogged.’ Needless to say, one liable to a court-imposed death penalty is disqualified, as it is stated: ‘who is guilty of death.’ There are also other wicked people who are disqualified from testimony even though they are liable to monetary restitution and are not liable to lashes. Since they forcibly take money that is not theirs, they are disqualified, as it is stated: ‘When a dishonest witness rises against a person’—for example, thieves and extortionists.”

And the Gemara raises an objection:

But it was refuted!

We challenged Abaye from the beraita above, and he did not answer.

And the Gemara answers: That beraita

that one

is not according to everyone; rather, it follows the view of

Rabbi Yosei,

who maintains that one suspected regarding a minor matter is not suspected regarding a major matter. But Abaye holds in accordance with Rabbi Meir.

And the Gemara raises an objection:

Let it also be so,

even if it is the teaching of

Rabbi Yosei,

and Rabbi Meir disagrees with him, nevertheless, we have an established principle that when

Rabbi Meir and Rabbi Yosei

disagree, the halakha is in accordance with Rabbi Yosei;

how, then, could Abaye have ruled contrary to Rabbi Yosei?!

And the Gemara answers:

There it is different [the version of the Yad Ramah reads:

Here], because

the tanna left it anonymous,

as it was taught as an “anonymous Mishna”

in accordance with Rabbi Meir,

and the halakha follows an “anonymous Mishna.”

And where

did

he leave it anonymous

for us, the tanna, in accordance with Rabbi Meir?

The Gemara relates a story in which an anonymous Mishna in accordance with Rabbi Meir was found concerning this halakha.

Like this,

as in this case,

when

a man named

Bar Ḥama killed someone,

he committed murder.

The Exilarch [the head of the Babylonian exile, who was appointed by the government to judge the Jewish people]

, said to Rav Abba bar Yaakov: Go out,

go,

examine it,

investigate the matter.

If he certainly killed,

if he indeed committed the killing,

let them blind him,

let them gouge out his eyes!

Two witnesses came,

two witnesses arrived,

and testified against him,

testifying against Bar Ḥama

that he had certainly killed,

that he had committed the killing.

He went,

Bar Ḥama went,

and brought two witnesses,

he brought two other witnesses,

who testified against one of those,

testifying to disqualify one of the two witnesses who had testified against him. However, those two witnesses disqualified him on the basis of two different incidents.

One,

one of the two witnesses brought by Bar Ḥama,

said

about the witness who had testified against him:

Before me,

in my presence,

this witness stole

this witness

a kav

a kav

of peeled barley,

peeled barley.

And the other,

whereas the second testified about that same man:

Before me,