QUESTION: The Gemara explains that according to Rebbi Yehudah, an Eved Kena'ani does not receive payment of Boshes because the verse teaches that Boshes is paid only when one injures his "brother" (Devarim 25:11). An Eved Kena'ani is not considered one's brother (because he cannot marry into the Jewish people; see RASHI). The Gemara asks that if an Eved is not considered one's brother, then Edim Zomemim who testified that an Eved is Chayav Misah and were then proven to be Zomemim should not be Chayav Misah. Why, then, are they killed?
The Gemara answers that the verse which teaches the punishment of Edim Zomemim concludes, "u'Vi'arta ha'Ra mi'Kirbecha" (Devarim 19:19). These words teach that the Beis Din must kill the Edim Zomemim who tried to have the Eved killed, even though the Eved is not considered their "brother."
Why does the Gemara assume that Edim Zomemim of an Eved are killed? Perhaps they are not killed!
RASHI quotes the Beraisa in Makos (8b) which states that a Jew may be sent to Galus for the inadvertent killing of an Eved, and he may be punished with Malkus for hitting an Eved and causing an injury that is worth less than a Shaveh Perutah. Rashi clearly intends to explain how the Gemara knows that Edim Zomemim who testify against an Eved are punished, but how does the Gemara in Makos prove this? Perhaps Rashi reasons as follows. Just as a Jew is punished for the murder of an Eved with the same punishment one receives for killing an ordinary Jew, so, too, Edim who testify falsely about an Eved should receive the same punishment that the Torah imposes on Edim who give false testimony about an ordinary Jew. It is not logical that the Torah would exempt Edim Zomemim who testify falsely against an Eved, since there are punishments for committing other offenses against an Eved.
TOSFOS (DH Zomemei) takes a different approach and explains the Gemara's logic as follows. If Edim Zomemim who falsely testified against an Eved would not be killed, it would be impossible for a Jew to ever testify that an Eved is Chayav Misah (even when it is true) since such testimony would be "Edus she'Iy Atah Yachol l'Hazimah." The NODA B'YEHUDAH (EH 1:74, DH u'Mah she'Hevi Ra'ayah) explains that Tosfos seems to be addressing the question of how the Gemara knows that Edim Zomemim of an Eved are killed. Tosfos answers that they must be killed since it is obvious (because of everyday occurrences) that testimony can be brought against an Eved to prove that he is Chayav Misah, just as it can be brought against an ordinary Jew. Hence, a witness who testifies against an Eved must be able to become an Ed Zomem and be punished with Misah.
Both of these explanations, however, share a common difficulty. According to both Rashi and Tosfos, the Gemara should question not only how Edim Zomemim of an Eved are killed, but how Edim Zomemim can be punished with Malkus when they testify that an Eved is Chayav Malkus. According to Rashi, it is logical that Edim Zomemim of an Eved receive Malkus, since the Beraisa teaches that an ordinary Jew receives Malkus for wounding an Eved. Similarly, according to the logic of Tosfos, those who testify about an Eved are punished with "Ka'asher Zamam" (the punishment they tried to inflict which, in this case, is Malkus) because, otherwise, their testimony about the Eved would not be accepted, but it is known that such testimony is accepted.
The Gemara's logic, however, applies only to Edim Zomemim who tried to inflict the death penalty on an Eved. The verse of "u'Vi'arta ha'Ra mi'Kirbecha" teaches only that Beis Din must kill witnesses who attempted to kill someone by testifying against him, but it does not refer to other punishments (as the verse concludes, "and those who remain alive will hear and fear"). How, then, will the Gemara answer why Edim Zomemim of an Eved are punished with Malkus when they testify falsely that the Eved is Chayav Malkus? (See CHIDUSHEI REBBI AKIVA EIGER.)
Similarly, the Gemara should question the Mishnah itself, which states that if an Eved damages someone, witnesses can testify about him in court and obligate him to pay. However, monetary penalties cannot be derived from the verse the Gemara cites. Why should such testimony be accepted when the witnesses themselves cannot be obligated to pay if they become Edim Zomemim, since their testimony will be "Edus she'Iy Atah Yachol l'Hazimah"? (See NODA B'YEHUDAH, loc. cit.)
Accordingly, the verse which the Gemara quotes does not refer specifically to putting a person to death. Rather, it is a general verse that refers to all of the Halachos of "Ka'asher Zamam," even to Malkus and monetary obligations. (M. Kornfeld)
(b) In the beginning of Makos, TOSFOS asks why testimony is accepted from witnesses to make a Kohen a Ben Gerushah or Ben Chalutzah, if Beis Din cannot punish the witnesses in the same way if they are found to be Edim Zomemim (i.e. the witnesses themselves do not become Ben Gerushah or Ben Chalutzah). Why is their testimony not "Edus she'Iy Atah Yachol l'Hazimah"? One of his answers is that any form of testimony that is not discussed in the Parshah which describes "Ka'asher Zamam" does not have to be punishable with "Ka'asher Zamam," the same punishment that the witnesses tried to inflict on the defendant, in order to be valid testimony. Since the Torah specifically teaches that testimony that a Kohen is a Ben Gerushah is not included in the discussion of "Ka'asher Zamam," it does not have to be testimony that is "Yachol l'Hazimah."
The same answer may be applied here. Since the verse of "Ka'asher Zamam" discusses one who testifies against "Achiv," his brother, and not against an Eved, testimony against an Eved does not need the requirement of "Yachol l'Hazimah" in order to be valid.
This answer is problematic, however. This answer removes the need for the Gemara to derive from "u'Vi'arta ha'Ra" that the witnesses are killed. The Gemara could say instead that the witnesses are not killed, and nevertheless the Eved about whom the witnesses testify is killed if they are not found to be Zomemim, because their testimony does not have to be "Yachol l'Hazimah."
The answer to this question may be as follows. It is true that the witnesses' testimony does not have to be "Yachol l'Hazimah." In the case of testimony about a capital crime, it is "Yachol l'Hazimah," since the Gemara maintains that in truth the witnesses are killed because of "u'Vi'arta ha'Ra." In contrast, with regard to Malkus and monetary obligations, even though the witnesses will not be punished if found to be Edim Zomemim, their testimony is valid even when it is not "Yachol l'Hazimah," and thus the Eved will be punished as a result of their testimony (if they are not found to be Edim Zomemim), as Tosfos in Makos explains.
(c) Tosfos in Makos gives a second answer to his question there, which might provide a clearer understanding of the Gemara here. Tosfos explains that since the witnesses who testify about a Ben Gerushah receive Malkus if they are proven to be Zomemim, their testimony is considered "Yachol l'Hazimah." Only testimony intended to punish a person with death must be "Yachol l'Hazimah" with the same punishment (the death of the witnesses), since the verse says "Nefesh b'Nefesh." In contrast, testimony to punish a person with Malkus does not need to be punishable with "Ka'asher Zamam," as long as some other punishment is administered.
When witnesses testify against an Eved, although they will not receive Malkus for "Ka'asher Zamam" they will receive Malkus for "Lo Se'aneh v'Re'acha Ed Shaker" (Shemos 20:13) -- giving false testimony. Although the Eved is not "Achiv," he is "Re'acha." Since the witnesses will be punished with Malkus for "Lo Se'aneh," their testimony will be accepted to give Malkus to the Eved. (Since this applies only to Malkus and not to Misah, the verse of "u'Vi'arta ha'Ra" is still needed.)
Tosfos' answer, however, will not apply to testimony to obligate the Eved to pay money (such as in the case of the Mishnah), because with regard to money the verse says "Yad b'Yad" as it says with regard to death ("Nefesh b'Nefesh"), teaching that such testimony must be "Yachol l'Hazimah."
This problem may be resolved in a number of ways:
1. The Noda b'Yehudah (loc. cit.) writes that the Torah does not require that testimony about a monetary obligation be "Yachol l'Hazimah." (This is in contrast to the view of many Acharonim. See REBBI AKIVA EIGER in Gilyon ha'Shas to 88a.)
2. The CHIDUSHEI HA'RIM suggests that after the Eved becomes free the witnesses can testify that they saw the Eved damage a person while he was a slave, and the testimony will be "Yachol l'Hazimah." This answer would explain the Mishnah which states that an Eved can be obligated to pay for damages.
3. The Chidushei ha'Rim adds that since the Eved has no money until he is freed, the testimony against him -- even if it is said while he is an Eved -- is an attempt to damage only a free man (i.e. the Eved after he will be freed). Hence, it indeed may be called testimony about "Achiv" and is "Yachol l'Hazimah."
2) THE SOURCE THAT AN "EVED" IS NOT A VALID WITNESS
RASHI (DH Pesulah) explains that a woman is Pesulah l'Edus because the verse says, "v'Amdu Shnei ha'Anashim" -- "And the two men shall stand" (Devarim 19:17). Rashi adds that this verse also excludes a Katan from Edus. Rashi adds another reason for why a Katan's testimony is not accepted: it is "Edus she'Iy Atah Yachol l'Hazimah" since Beis Din cannot give a punishment to a Katan.
Rashi's words are difficult to understand.
(a) As the Acharonim here point out, Rashi quotes the Gemara in Bava Basra (155b) which derives the exclusion of a Katan from Edus from the verse "v'Amdu Shnei ha'Anashim." Why, though, does the Gemara there need to derive this Halachah from a verse if the Edus of a Katan is invalid anyway because it is "Edus she'Iy Atah Yachol l'Hazimah"? This reason alone should disqualify a Katan from giving testimony, as Rashi says. (REBBI AKIVA EIGER, Teshuvos #176)
(b) Why does Rashi need to add a second reason to disqualify a Katan from giving testimony, in addition to the Gemara's reason? Why does the Gemara's reason not suffice? (AYELES AHAVIM, Kesuvos, Kuntrus Acharon #108)
(c) REBBI AKIVA EIGER (in Gilyon ha'Shas) asks that Rashi's second reason -- that a Katan's testimony is invalid because it is "Edus she'Iy Atah l'Hazimah," seems inconsistent with the Gemara here. The Gemara seeks to derive from the laws of a Katan -- either through a Kal va'Chomer or through a Binyan Av -- that an Eved is also disqualified from giving testimony. However, if the reason for why a Katan is disqualified is that it is impossible to make him into an Ed Zomem, then the disqualification of an Eved cannot be derived from that of Katan, since an Eved can be made into an Ed Zomem! In fact, according to Rashi's second reason, there is no specific disqualification of a Katan from Edus; rather, his testimony is disqualified because of the general law that Edus must be "Yachol l'Hazimah." How, then, can the Gemara here suggest that from the fact that the Torah disqualifies a Katan, it certainly disqualifies an Eved as well? The Torah never specifically disqualifies a Katan!
1. REBBI AKIVA EIGER (Teshuvos, loc. cit.) explains that if "Yachol l'Hazimah" would be the only reason to disqualify a Katan from Edus, a Katan's testimony would be accepted in certain cases. He would be accepted as a witness to testify about a Kohen who is a Ben Gerushah or Ben Chalutzah, according to the second answer of TOSFOS in Makos (2a), which asserts that such testimony does not have to be "Yachol l'Hazimah" (see previous Insight). Similarly, Rebbi Akiva Eiger points out that testimony about Kidush ha'Chodesh does not have to be "Yachol l'Hazimah" since it is not testimony against any person. Also, testimony to protect a person from being killed (by contradicting witnesses who say that a person is Chayav Misah) obviously does not have to be "Yachol l'Hazimah" since such testimony cannot cause harm to anyone. Since the reasoning of "Yachol l'Hazimah" would not disqualify a Katan from these forms of testimony, the Gemara in Bava Basra must learn from the verse of "v'Amdu Shnei ha'Anashim" that a Katan is inherently invalid as a witness.
2. RAV SHLOMO EIGER (in Teshuvos Rebbi Akiva Eiger, loc. cit.) and the GEVUROS ARI (Makos 2a) answer that had the Katan been disqualified only because his Edus is not "Yachol l'Hazimah," his testimony would be accepted when he testifies after he reaches adulthood (at which time he is punishable). The verse of "v'Amdu Shnei ha'Anashim" teaches that even as an adult he may not testify about something he saw when he was a Katan.
The KOVETZ SHI'URIM (Bava Basra #566, #583) asks another question on the Gemara in Bava Basra: Why does the Gemara not give a third reason for a Katan's disqualification from Edus -- the fact that a Katan's word is not reliable? The Kovetz Shi'urim proves that a Katan's word is not reliable from the fact that the Mishnah in Kesuvos (28a) disqualifies the testimony of a Katan even with regard to an Isur, and even if the Katan testifies about the Isur after he becomes an adult (except when he testifies about an Isur d'Rabanan). If the only reason a Katan is disqualified is the verse of "v'Amdu Shnei ha'Anashim" or the principle of "Edus she'Iy Atah Yachol l'Hazimah," his testimony should be accepted with regard to Isurim, since such testimony does not require all of the Halachos of Edus (such as two witnesses); even the testimony of a woman is accepted with regard to Isurim (see TOSFOS to Kesuvos 28a, DH Elu).
The answer to this question might be that the fact that a Katan's testimony is unreliable is not always true. When the Katan has a mature mind (for example, the day before he reaches the age of Bar Mitzvah), his testimony is just as reliable as it is on the day after his Bar Mitzvah. When the Mishnah in Kesuvos teaches that a Katan is not trusted to testify when he is an adult about what he saw when he was a Katan, it refers to what he saw when he was very young, when his testimony certainly was not reliable. Perhaps the Rabanan instituted that he may not testify about what he saw shortly before he became Bar Mitzvah, but mid'Oraisa his testimony indeed should be accepted with regard to Isurim. (M. Kornfeld)
(b) The reason why Rashi finds it necessary to introduce a new reason to disqualify a Katan from Edus (the reason of "Edus she'Iy Atah Yachol l'Hazimah") is that there is no other way to explain the Gemara. When the Gemara attempts to derive that an Eved is disqualified from Edus through a "Tzad ha'Shaveh" between Katan and Ishah, the Gemara rejects the "Tzad ha'Shaveh" with the argument that the Halachah of an Eved cannot be derived from Katan and Ishah because those two have a common element which is the cause for their disqualification -- neither one is an Ish, while an Eved is an Ish! As the TORAS CHAIM points out, this is an extremely odd "Tzad ha'Shaveh." If such a form of "Tzad ha'Shaveh" is valid, then a similar "Tzad ha'Shaveh" can be advanced to reject any attempted "Mah ha'Tzad" with the argument that C cannot be derived from A and B because the common element of A and B is that they are not C! This contradicts the most basic premise of the methodology of "Tzad ha'Shaveh," which is that the presence of a common element can be the cause of a certain Halachah, but it cannot cause a common lack of a Halachah!
The only way to understand the Gemara is the way that Rashi (DH she'Ein Ish) explains it, which is that both an Ishah and a Katan are excluded by the same verse, "v'Amdu Shnei ha'Anashim," and therefore their exclusion is considered a single Halachah from which the exclusion of an Eved cannot be derived, since the verse that excludes non-"Anashim" does not apply to an Eved. If this is true, however, then what does the Gemara mean when it initially suggests that an Eved's disqualification for Edus should be derived from a "Tzad ha'Shaveh" between Ishah and Katan? Ishah and Katan are not disqualified by two different verses such that one could make a "Tzad ha'Shaveh." Rather, they are both disqualified by a single verse that teaches that a witness must be an Ish, and thus an Eved -- who is an Ish -- obviously cannot be disqualified from Edus by this verse!
This is why Rashi finds it necessary to propose that the Gemara initially thinks that a Katan is disqualified from Edus not just because he is excluded by the verse requiring "Anashim," but due to another factor as well. Without this second reason, the Tzad ha'Shaveh would not be valid. The reason which Rashi proposes is that Edus of a Katan is not "Yachol l'Hazimah." (M. Kornfeld)
(c) There remains one difficulty with Rashi's explanation. As the Gilyon ha'Shas asks, the factor which invalidates a Katan's testimony -- that it is "Edus she'Iy Atah Yachol l'Hazimah" -- does not invalidate the Katan himself. That is, it does not disqualify the Katan as a witness. Consequently, an Eved's disqualification for Edus cannot be derived from that of a Katan.
This difficulty, however, may be resolved with different interpretation of the Gemara.
The Gemara initially assumes that, logically, the verse "v'Amdu Shnei ha'Anashim" is not a valid source to disqualify both an Ishah and a Katan from giving testimony. The reason for this is that the two Derashos are not equal (see Bava Kama 3a). Rather, it is more logical to derive that a woman is disqualified from the verse, "Kol Kevudah Bas Melech Penimah" (Tehilim 45:14), as the Gemara says in Shevuos (30a). A Katan, on the other hand, whose mind is fully developed but does not yet have two Se'aros or has not yet reached the age of adulthood logically should be accepted as a witness like an adult (or like a child who has two Se'aros, as the Gemara implies in Bava Basra 155b).
Although a Katan is neither obligated to observe the Mitzvos nor punished for transgressing them, since testimony is merely a question of trustworthiness a Katan who is almost an adult should be just as trustworthy as an adult.
This is why the Gemara initially assumes that a Katan would not have been disqualified from Edus had his testimony not been "Edus she'Iy Atah Yachol l'Hazimah." Since the testimony of a Katan usually is not "Yachol l'Hazimah" (except in the cases mentioned above, such as testimony for Kidush ha'Chodesh, or testimony he gives when he becomes an adult), a verse is needed to disqualify a Katan only in the few cases where the problem of "Edus she'Iy Atah Yachol l'Hazimah" does not apply. In order to extend the Pesul of a Katan and make it a general Pesul (even in the cases mentioned above), it suffices to derive from the verse of "v'Amdu Shnei ha'Anashim" that he is disqualified from giving testimony, even though that verse already teaches that a woman is disqualified. That is, the fact that a Katan's testimony is rejected for other reasons most of the time makes him equal to an Ishah, and thus the two exclusions (that of Katan and that of Ishah) are equal.
This answers the question of the Gilyon ha'Shas. Although Rashi writes that a Katan's Edus is "Edus she'Iy Atah Yachol l'Hazimah," ultimately this is not what disqualifies a Katan from giving testimony. It is the verse that says "ha'Anashim" that disqualifies the person himself from testifying; the Pesul is not merely because the Katan's testimony is not "Yachol l'Hazimah."
Nevertheless, the Gemara assumed that it could make a "Mah ha'Tzad" between Ishah and Katan, since the main reason why a Katan is disqualified is not that he is not an Ish, but that most of his testimony is not "Yachol l'Hazimah." The Gemara ultimately concludes that this is not so; rather, the main reason why a Katan is disqualified is because he is not an Ish, like a woman, and indeed a Katan and an Ishah are considered equal aside from the consideration of "Edus she'Iy Atah Yachol l'Hazimah." (M. Kornfeld)
3) TESTIMONY OF FATHERS WHO ARE NOT CONSIDERED RELATED TO THEIR SONS
Mar brei d'Ravina's reading of the verse is difficult to understand. How can he read the verse such that "Avos" refers to the witnesses (as opposed to the defendant)? If it refers to the witnesses, where does it say that the witnesses do not have a familial relationship with their sons? On the contrary, the verse says "Avos Al Banim," implying that the "Avos" are considered to have a familial relationship with their sons. The verse clearly implies that Beis Din cannot put someone to death based on the testimony of fathers who have a familial relationship with their children!
ANSWER: The RA'AVAD cited by the Shitah Mekubetzes explains the verse as follows. "Lo Yumsu Avos" -- defendants should not be killed, "Al Banim" -- because of something that has to do with children. The verse means that a familial relationship with children is a factor to take into account when considering whether to accept testimony.
This approach, however, does not seem consistent with the words of the Gemara. The Gemara paraphrases the verse as saying, "Lo Yumsu Al Pi Avos she'Ein Lahem Chayis Banim" -- one should not die based on [the testimony of] fathers who have no familial relationship with their sons. Since the "Avos" in the verse are the defendants and not the witnesses, how are the words "*Al Pi* Avos" ("*based on [the testimony]* of fathers") to be understood? Those words completely deviate from the simple meaning of the verse.
The Shitah Mekubetzes cites manuscripts that state, "Lo Yumsu Avos Al Pi she'Ein Lahem Chayis Banim," reversing the order of the words "Al Pi" and "Avos." According to this Girsa, the "Avos" indeed are the defendants, and the verse is saying that "fathers shall not be put to death based on [the testimony of] those who have no familial relationship with sons." (The Hamburg manuscript, cited by the Dikdukei Soferim, has a similar Girsa.)
According to our text, the words "Al Pi" should be read like "Al Pi Hem," and they should be read with a pause after them. The Gemara thus means, "Lo Yumsu Al Pi" -- [they] shall not be put to death based on verbal testimony -- "Avos," the fathers (meaning the defendant), "Al Banim" -- because of something that has to do with familial relationship (as the Ra'avad explains).
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