Shabbat Parashat Ki Tisa | 5769

"Ed Zomem"- a Torah Invention?

Hemdat HaDaf HaYomi

 Baba Kama 70-76

When two witnesses testify, the Torah states that, after the judges interrogate them, if they passed the interrogation, they are believed and the judges can even deliver capital punishment based on their testimony. Nevertheless, there is a possibility that two false witnesses will collaborate and plan their testimony and will pass the interrogation of the judges. The Torah (Devarim 19, 16-21) recognizes this possibility and therefore rules that witnesses, whose false testimony caused the judges to rule against an innocent person, receive the same punishment they tried to inflict. Witnesses who were determined to have lied are called "Edim Zomemim." The question is, how can we indeed determine that the witnesses lied, for even if new witnesses come and testify that the first witnesses lied, why should we believe the second witnesses?  Perhaps they are lying and the first witnesses are telling the truth.

The Mishna in Makot (1, 4) states that, indeed, we do not always believe the second witnesses, but rather it depends on the nature of their testimony. If they are arguing with the first witnesses regarding the content of the testimony, for example, if the first witnesses testified that they saw someone murder a person, and the second witnesses testified that he could not have murdered, since they saw him in a different place at the same time, in such a case we do not know who is telling the truth and therefore we do not accept either testimony. However, if the second witnesses do not address the content of the testimony of the first witnesses, but they rather testify regarding the witnesses themselves and claim that they could not have witnessed the murder, since they were at a different place at that time, then we believe the second witnesses and punish the first.

This week in the Daf Haymoi (72b) we learned an argument between Abayey and Rava regarding an "Ed Zomem," a witness who was determined to have lied in his testimony. According to Abayey, just like any person who transgressed a prohibition is deemed unqualified to testify from the time he transgressed, so too an Ed Zomem, since it was determined that he lied in his testimony, he is deemed unqualified to testify from the time he testified falsely. However, according to Rava, he is only deemed unqualified to testify from the time that the second witnesses testified that he lied in his testimony. The Gemara explains (in its first explanation of Rava's opinion) that according to Rava, the very fact that we believe the second witnesses is not something we understand but rather an 'invention' of the Torah; for who is to say that the second witnesses are telling the truth and not the first ones. Therefore, we can rely on the testimony of the second witnesses only from the point of time when the Torah stated that they should be believed, and that is from the time of their testimony.  However, we cannot retroactively disqualify the first witnesses from when they testified, on the basis of the testimony of the second witnesses, since we do not really know that they are the ones telling the truth. The Gemara (73a) states that the Halacha is according to the opinion of Abayey.

The Tur (Choshen Mishpat 38) wrote an explanation as to why the Torah ruled that the second witnesses are to be believed:

"What is the difference between Hakchasha (when the two sets of witnesses are considered to be contradicting each other and we do not accept both testimonies) and Hazama (where the second witnesses are believed)? Hakchasha is not a testimony as to the witnesses themselves but rather a contradiction regarding the content of their testimony, for example, if these say that A borrowed from B and these say that we know that A could not have borrowed, since we were with him all day and we saw that he did not borrow.  However, Hazama is testimony as to the witnesses themselves, for example, they say that at the time you say you saw him borrow you were with us. And, because of this, we believe the second witnesses since they testified regarding the first witnesses themselves and it is as if they testified that they (the first witnesses) murdered or violated the Shabbat and they (the first witnesses) are not believed regarding themselves to say we did not do such a thing."

The Lechem Mishne (Edut 18, 2) asks why the Tur is giving an explanation to this matter if the Gemara stated that this is an 'invention' of the Torah. He answers that the Gemara only stated so when explaining the opinion of Rava, but according to Abayey (and the Halacha is like Abayey), Hazama is not an 'invention' but rather is based on the reasoning stated by the Tur. However, he proves from the wording of the Rambam (Edut 18, 3) who writes "that which the Torah believed the second witnesses over the first witnesses is a decree of the Torah," that the Rambam disagrees with the Tur and feels that even according to Abayey this is an 'invention' of the Torah.  Abayey just disagrees about the scope of this "invention;" he believes that we accept the testimony of the second witnesses entirely and disqualify the first witnesses retroactively.

However, the Rambam in his commentary to the Mishna in Makot (1, 4) explained in a similar fashion to the Tur why the Torah ruled that the second witnesses should be believed. If the Rambam knew this explanation then why did he write in the Mishne Torah that this is a decree of the Torah?

The Netivot Hamishpat (38, 2) explains that even when we say that "Ed Zomem" is an 'invention', we do not mean that there is no logic behind it. Rather, we mean that the Torah gives us a new perspective. When two witnesses come and claim that the two other witnesses are lying, since they weren't present in the place of the event that the first witnesses are testifying about, we could have thought that this is just another case of a contradiction between witnesses. The Torah's 'invention' is to change our outlook. We should not look at this as a case of contradicting testimonies, but rather as a testimony regarding the first witnesses themselves, and therefore the second witnesses are believed. Therefore, on the one hand, this new an outlook is an 'invention', but on the other hand, this outlook is logical, and we accept it entirely.

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