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Babylonian Talmud: Tractate Sanhedrin

Folio 27a

A witness who was proved a Zomem:1  Abaye ruled, His disqualification is retrospective;2  Raba maintained, He is disqualified only for the future.3   Abaye makes the disqualification retrospective: he was a wicked man from the time of testifying [falsely], and the Torah says: Do not accept the wicked as witness.4  Raba holds that he is disqualified prospectively [only]: now, the entire law of a falsified witness is anomalous; for [it is two against two, then] why accept the evidence of one pair rather than that of the other? Therefore it can take effect only from the time that this anomalous procedure is employed. Some say that Raba really agrees with Abaye; yet why does he rule [that the incompetence is] prospective? — Because of the purchaser's loss.5 Wherein do they [the two views on Raba's ruling] differ? — A difference arises where two have testified against one,6  or where he was disqualified on the grounds of robbery.7  And R. Jeremiah of Difti related that R. Papi ruled in a certain case in accordance with Raba's view; while Mar son of R. Ashi said: The law rests with Abaye. And, [concludes the Talmud], the law rests with Abaye in Y'AL KGM.8

     

Dilling discussion of highlighted text
    As for a Mumar9   who eats nebelah10  merely to satisfy his greed,11  all agree that he is disqualified.12  If his purpose is provocative;13  Abaye said, He is ineligible; Raba ruled, He is eligible. Abaye said: He is ineligible, because he is classed with the wicked, and the Torah said: Do not accept the wicked as witness.14  Raba ruled: He is eligible, because he must have been wicked for the sake of gain [hamas].15

An objection is raised: Do not accept the wicked as witness; [this means,] Do not accept a despoiler16  as witness; e.g., robbers, and those who have trespassed by [false] oaths.17  Surely this refers to both a vain oath18  and an oath concerning money matters?19  — No; in both cases,20  oaths concerning money matters are alluded to; then why state 'oaths' [plural]? — [To indicate] oaths in general.21

An objection is raised: Do not accept the wicked as witness; [this means,] Do not accept a despoiler as witness, e.g., robbers and usurers.22  This refutation of Abaye's view is unanswerable.

Shall we say that their difference is identical with that of Tannaim? [For it has been taught:]23  A witness proved a Zomem is unfit [to testify] in all Biblical matters: this is R. Meir's view. R. Jose said: That is only if he has been proved a Zomem in capital cases;24  but if in monetary cases, his evidence is valid in capital charges. Shall we affirm, Abaye agrees with R. Meir, and Raba with R. Jose? 'Abaye agrees with R. Meir,' who maintains that we impose [disqualification] in respect of major cases as a result of a minor transgression.25  'And Raba26  with R. Jose,' who says, We impose [disqualification] in respect of minor matters27  as a result of a major transgression;28  but not the reverse! — No! On R. Jose's opinion, there is no dispute at all.29  They differ only on the basis of R. Meir's opinion. Abaye certainly agrees with R. Meir. But Raba [may argue]: So far R. Meir gives his ruling only in the case of a Zomem in a monetary case, who is evil in the sight of God and man. But in this case, since he is evil in the sight of God alone,30  even R. Meir does not disqualify him. And the law rests with Abaye. But has he not been refuted? — That [Baraitha which refuted him] represents the opinion of R. Jose.31  Granted; yet even so, [wherever] R. Meir and R. Jose [are in dispute], the halachah rests with R. Jose!32  — In the other case it is different, for the Tanna has taught R. Meir's view anonymously.33  And where does this occur? — [As we find] in the case of Bar Hama, who committed murder. The Resh Galutha34  said to R. Abba b. Jacob:35  Go and investigate the matter, if he is definitely the murderer, dim his eyes.36  Two witnesses thereafter appeared and testified to his definite guilt; but he [Bar Hama] produced two other witnesses, who gave evidence against one of the accusing witnesses. One deposed: In my presence this witness stole a kab of barley; the other testified: In my presence he stole

Original footnotes renumbered. See Structure of the Talmud Files
      

Dilling discussion of highlighted text
   
  1. V. Glos. This refers to a case where a period elapsed between his giving of evidence and being proved a Zomem.
  2. I.e., from the time he began to give his evidence in court, and all the evidence he has given in the intervening period becomes invalidated.
  3. I.e., from the time when he is proved a Zomem.
  4. An interpretation of Ex. XXIII, 1.
  5. If purchasers have transacted business through documents signed by the Zomemim, having been unaware of their disqualification, they would become involved in considerable loss, should their evidence be declared invalid.
  6. Rashi: two pairs against one pair, each of the former refuting the testimony of a single member of the latter; in this case there is no anomaly, hence disqualification is retrospective. Tosaf.: there are two witnesses refuting one, leaving the other unaffected. The reason based on the injury to purchasers, on both interpretations, however, is still valid.
  7. Here again the argument that it is an anomalous procedure no longer holds good. It should be observed that, strictly speaking, the term Zomem is inapplicable in that case, but it is here used rather loosely in the sense of a witness proved to have been ineligible. Tosaf. however, gives this explanation: A and B attested a certain act, claiming that they had witnessed it together, whereupon C and D declared A a Zomem, but leaving the testimony of B unaffected. Now, in point of fact, since A and B jointly testified, they both (including B), deny the allegation of C and D, and therefore it is an anomaly that credence is given to the latter pair. Here, however, B too was proved to be incompetent, though on other grounds, viz., robbery; therefore it is no anomaly that the testimony of C and D against A should be accepted.
  8. [H]. Six decisions scattered throughout the Babylonian Talmud in which Abaye differs from Raba, and where the law rests with the former. Y'AL KGM is composed of six initial letters of words which indicate various legal terms, YOD (')[H], 'abandonment of lost article,' B.M. 21b. 'AYIN ([H]) [H], referred to here. LAMED ([H]) [H], 'A pole put up accidentally,' 'Er. 15a. KOF (e) [H], 'Betrothal which cannot result in actual cohabitation,' Kid. 51a. GIMEL ([H]) [H] 'The act of revealing one's attitude indirectly in regard to a Get,' Git. 34a. MEM [H]) [H], A Pervert, in the following discussion.
  9. [H] (from run convert, exchange), hence a pervert; an apostate; an open opponent of the Jewish law; a non-conformist. The word Mumar is also employed by the Talmud to designate one who transgresses a Biblical command in general.
  10. [H] carrion, an animal that died a natural death or which was not slaughtered according to ritual law.
  11. I.e., his greed for money, because it is cheaper.
  12. Because he is classed with the wicked, who commit their misdeeds for gain.
  13. I.e., to defy, and show his contempt for, the law.
  14. Cf. Ex. XXIII, 1.
  15. [H], 'violence', 'plunder'. Cf. Ex. XXIII, 1, 'to be a witness of violence' (E.V. 'unrighteous witness'). I.e., such as a robber; whereas in this case his action is prompted by other motives.
  16. One who violates another's rights to satisfy his own greed.
  17. I.e., perjurers.
  18. E.g., an oath that a pillar of stone is made of stone, which is a needless oath.
  19. As follows from the plural, oaths. Hence the motive for his evil act need not be lust for money, in contradistinction to Raba's opinion.
  20. Actually, only one case is mentioned, viz., oaths. But the phrase is used on the questioner's hypothesis (v. n. 6), and the answer proceeds to demolish that assumption.
  21. I.e., such as are made in litigation.
  22. Hence his wickedness must, to disqualify him, have been prompted by gain for money only, in contradistinction to the opinion of Abaye.
  23. Tosef. Mak. I.
  24. For, having been found dishonest in grave matters, his evidence is all the more suspect in matters less grave.
  25. And the case under discussion is similar: that of a provocative Mumar only; nevertheless, he is declared incompetent to testify in a civil suit, though false evidence in such a case is evil both in the sight of God and man, and hence constitutes a greater transgression.
  26. Who maintains that the evidence of a man who transgressed a ritual law (an evil in the sight of God alone) need not be doubted in a civil case.
  27. E.g., is the case of a Zomem in monetary cases.
  28. E.g., in the case of a Zomem in capital cases.
  29. Abaye can certainly not agree with R. Jose, for he can in no wise hold that a Zomem in civil cases is eligible in capital cases.
  30. Such as is involved in the open defiance of the ritual law by eating Nebelah.
  31. In accordance with the preceding argument (cf. n. 3). Abaye, however, rules as does R. Meir.
  32. Cf. 'Er. 46b. This is a general rule.
  33. It is a general principle that if an individual view is stated anonymously, as though it were a general opinion, the halachah rests with it.
  34. Exilarch.
  35. [Read with Ms.M., R. Aha b. Jacob, v. D.S. a.l.]
  36. Perhaps, 'blind him,' 'put out his eyes.' Capital punishment was abolished four decades before the fall of Jerusalem (cf. infra 41a). Others, however, interpret it of Kenas, i.e., confiscation of property.

Sanhedrin 27b

the handle of a burtya.1  Then [R. Abba] said to the [defendant]: What is thy intention: [to disqualify this man] in accordance with the opinion of R. Meir?2  But wherever R. Jose is at variance with R. Meir, the halachah rests with R. Jose; and R. Jose ruled: One [a witness] who was proved a Zomem in a civil suit is competent [to testify] in capital charges. Said R. Papi: That [the rule] is only where the Tanna has not stated R. Meir's view anonymously. Here, however, he has. Whence do we infer this?3  Shall we say, from what we learnt? 'Whoever is competent to try capital cases, is also competent to try civil suits'?4  Now, whose opinion is this? Shall we say, R. Jose's? But what of a witness proved a Zomem in monetary cases, who, even though incompetent in civil suits, is nevertheless eligible in capital charges? Hence it must surely express the opinion of R. Meir.5  But why so? Perhaps it [the Mishnah] refers to those who are disqualified on account of [defective] family descent?6  For should you not agree, what of the latter clause of the Mishnah, viz., One may be competent to try monetary cases, but incompetent for capital cases? Now, why is he incompetent: because he was proved a Zomem in a capital charge? Is he then competent to adjudicate a monetary case? But all agree that he is ineligible! Hence it must refer to disqualification through [some defect of] family descent.7  Similarly, here too [the first clause of the Mishnah] it must refer to this type of disqualification!8  — But this is where the Tanna stated it anonymously, for we learnt:9  These are ineligible [to be witnesses or judges]: a gambler with dice, usurers, pigeon trainers, traders in Sabbatical produce, and slaves. This is the general rule: For all testimony for which a woman is ineligible, they too are ineligible.10  Now, whose opinion is this? Shall we assume, R. Jose's? But there is the case of testimony in capital charges, for which a woman is not eligible, whilst they are!11  Hence it must surely express the opinion of R. Meir.12  Thereupon Bar Hama arose and kissed his [R. Papi's] feet, and undertook to pay his poll-tax for him for the rest of his life.13

MISHNAH. NOW, THE FOLLOWING ARE REGARDED AS RELATIONS;14  A BROTHER,15  FATHER'S BROTHER, MOTHER'S BROTHER, SISTER'S HUSBAND, THE HUSBAND OF ONE'S PATERNAL OR MATERNAL AUNT, A STEP-FATHER, FATHER-IN-LAW, AND BROTHER-IN-LAW [ON THE SIDE OF ONE'S WIFE]; ALL THESE WITH THEIR SONS AND SONS-IN-LAW; AND ONE'S STEPSON HIMSELF.16

R. JOSE SAID: THIS IS [THE TEXT OF] R. AKIBA'S MISHNAH;17  BUT THE FIRST MISHNAH18  [READS]: AN UNCLE AND HIS SON,19  AND WHOEVER IS ELIGIBLE TO BE ONE'S HEIR.20  AND ALL WHO WERE RELATED AT THAT MOMENT.21  IF ONE HAD BEEN RELATED, BUT SUBSEQUENTLY CEASED TO BE SO,22  HE IS ELIGIBLE. R. JUDAH HOLDS; EVEN IF ONE'S DAUGHTER HAS DIED, BUT HE [THE SON-IN-LAW] HAS HAD CHILDREN BY HER, HE STILL RANKS AS A KINSMAN.

FURTHER, A FRIEND OR AN ENEMY [IS INELIGIBLE]. BY 'FRIEND' ONE'S GROOMSMAN23  IS MEANT; BY 'ENEMY', ANY MAN WHO, BY REASON OF ENMITY, HAS NOT SPOKEN TO ONE FOR THREE DAYS, IS UNDERSTOOD.TO THIS THE RABBIS REPLIED: ISRAELITES, AS A RULE, ARE NOT TO BE SUSPECTED ON SUCH GROUNDS.24

GEMARA. Whence is this law derived? — From what our Rabbis taught: The fathers shall not be put to death for [on account of] the children.25  What does this teach? Is it that fathers shall not be executed for sins committed by their children and vice versa? But is it not already explicitly stated, Every man shall be put to death for his own sin?26  Hence, Fathers shall not be put to death on account of children, must mean, fathers shall not be put to death on the testimony of their sons and similarly, and sons shall not be put to death on account of fathers, means, nor sons on the testimony of their fathers.

[To revert to the text.] Are not children then to be put to death for the sins committed by their parents? Is it not written, Visiting the iniquities of the fathers upon the children?27  — There the reference is to children who follow their parents' footsteps.28  As it has been taught: And also in the iniquities of their parents shall they pine away with them,29  [i.e.,] if they hold fast to the evil doings of their fathers. Thou sayest thus: Yet perhaps it is not so, but true even if they do not hold fast to their [evil] doings?30  When Scripture states, Every man shall be put to death for his own sin,31  [it must refer to those who do not hold fast to their fathers' ways. Then how shall we interpret, And also in the iniquities of their fathers shall they pine away with them?]32 — As referring to those who continue in the ways of their fathers.33  But do they [really] not [suffer for the sins committed by others]? Is it not written, And they shall stumble one upon another,34  meaning, One [will stumble] through the sin of the other, which teaches that all are held responsible for one another?35  — There the reference is to such as had the power to restrain [their fellowmen from evil] but did not.

Original footnotes renumbered. See Structure of the Talmud Files
  1. [H]; a corruption of verutum — a spit; spear; javelin.
  2. That the evidence of a Zomem in monetary cases is also doubted in capital cases.
  3. For it is nowhere explicitly taught.
  4. Nid. 49b.
  5. According to whom the evidence of one proved a Zomem is monetary cases is also unacceptable in capital charges.
  6. The family tree of judges in capital cases must be without defect. V. infra 36b.
  7. In which instance they may be competent in monetary, through incompetent in capital, cases.
  8. And so, in reality, it may express the opinion of R. Jose.
  9. Supra 24b; R. H. 22a.
  10. 'Ed. II, 7.
  11. In accordance with his ruling that one whose wickedness has been prompted by monetary gain is not disqualified from testifying in capital cases.
  12. This then is the anonymous Mishnah taught in accordance with R. Meir. Hence the evidence of evil-doers by reason of their monetary greed is invalid in capital charges; hence one of the witnesses against Bar Hama was disqualified.
  13. In recognition of his successful defence of his case.
  14. Of any of the parties, and so incompetent to act as judge or witness, according to an earlier Mishnah.
  15. The editio princeps of the Mishnah adds (and begins with) ONE'S FATHER.
  16. I.e., he alone, and not his children etc.
  17. V. n. 7.
  18. A collection of Halachoth the compilation of which began, according to Gaonic accounts, as early as Hillel and Shammai. When owing to political disorders many Halachoth of the Mishnah had been forgotten and their words had become a subject of controversy, the one Mishnah developed into many. This multiplication of Mishnahs occurred during the period of the later Beth Hillel and Beth Shammai. In order to avert the danger which threatened its uniformity a synod was convened in Jabneh to examine differences and to consider revision. But as the mass of material grew and with it the need for a methodical arrangement, R. Akiba undertook the task of sifting the material and editing it systematically in various sections (Sedarim) and treatises (Massekoth). J.E. vol. VIII, p. 610.
  19. [H] is the brother of one's father.
  20. Cf. B.B. 108a. These words belong, according to Rashi, to the First Mishnah; according to Maimonides and Bertinoro, to the Mishnah of R. Akiba.
  21. When the incident which they wished to attest occurred, though they are no longer so at the time they wish to testify in court.
  22. Lit., 'became estranged', e.g., a son-in-law whose wife, the litigant's daughter, had died, or had been divorced before the incident occurred.
  23. 'Best man' at marriage. Generally an intimate friend of one's youth, v. B.B. (Sonc. ed.) p. 618, n. 10.
  24. I.e., they are not suspected of giving false evidence through friendship or enmity; hence they are competent to testify. Nevertheless, they cannot act as judges, because it is difficult for them to be unbiassed and impartial.
  25. Deut. XXIV, 16. Fathers and sons are unnecessarily in the plural. The Rabbis deduce from this that the text refers to fathers who are brothers, whose relationship is next to that of father and son, so that not only the kinship between one another but also that between one and the son of the other debars from giving evidence. The following kinsmen are thus derived from the text: Father, son, brother and nephew. V. infra.
  26. Deut. XXIV, 16, cf. Lev. XXVI, 39.
  27. Ex. XXXIV, 7.
  28. Lit., 'who hold in their hands the deeds of their parents'.
  29. Lev. XXVI, 39.
  30. I.e., that they are still held accountable for their fathers' iniquities.
  31. Deut. XXIV, 16.
  32. Lev. XXVI, 39. The passage in brackets is a marginal addition to the text.
  33. Cf. Ber. 7a.
  34. Lev. XXVI, 37, lit., 'upon his brother'. The prefix [H] is here taken in the sense of 'because of'.
  35. Shewing that the iniquities of one may be borne by the other.