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Shabbat Parashat Vayakhel Pikudei | 5770
Hemdat HaDaf HaYomi: Disqualification of a Rasha from Testifying (24b-27b)Rav Ofer Livnat
This week in the Daf Hayomi, the Gemara deals with different people who are disqualified from testifying. One type of person who is disqualified is a rasha (evil person). The Gemara gives several examples of prohibitions whose transgression would qualify one to be a rasha, and he would thus be disqualified from testifying. For some of the prohibitions, one is disqualified from the Torah, and for others, one is disqualified Rabbinically. The Rishonim disagree as to the general guidelines which can be derived from the Gemara.
According to the Rambam (Hilchot Edut chapter 10), a person who transgressed a Torah prohibition, which incurs lashes or death, is disqualified from testifying from the Torah. So too, if he transgressed a Torah prohibition that involves taking money that doesn't belong to him, such as stealing or lending with interest, even though there is no punishment of lashes, he is disqualified from the Torah. Similarly, a person who transgressed a Rabbinic prohibition for which there is a punishment of lashes (Macat Mardut) is disqualified Rabbinically. Here too, a person who transgressed a Rabbinic prohibition which involves taking money, such as taking interest in a form which is only Rabbinically prohibited, is disqualified Rabbinically. However, for a prohibition for which there is no punishment of lashes and doesn't involve taking money; it appears from the Rambam that one is not disqualified even if it is a prohibition from the Torah.
The Tosfot (Baba Metziah 72a d"h shtar) disagree with the Rambam. They claim that by transgressing any prohibition from the Torah one is disqualified from testifying. However, for Rabbinic prohibitions, one is only disqualified for violating a prohibition which involves a desire for profit, but one would not be disqualified for violating a Rabbinic prohibition where no profit is involved.
Rabbeinu Yerucham (Meisharim Netiv 2 Chelek 4) quotes an intermediate position. For a Torah prohibition for which there is a punishment of lashes, one is disqualified from the Torah. For a Torah prohibition for which there are no lashes one is disqualified Rabbinically. For a Rabbinic prohibition, one is disqualified only for a prohibition where a desire for profit is involved.
The Rishonim agree that a person who transgressed a Torah prohibition which involves taking money or which incurs lashes or death is disqualified from testifying from the Torah. So too it is agreed that a person who transgressed a Rabbinic prohibition which involves a desire for profit, is Rabbinically disqualified.
Regarding other cases, The Remmah (Choshen Mishpat 34, 2-3) rules like the opinion quoted by Rabbeinu Yerucham, that a person who transgressed a Torah prohibition which does not incur lashes is disqualified Rabbinically. Regarding Rabbinic prohibitions, the Mechaber (ibid 3) writes that a person who transgresses a Rabbinic prohibition is disqualified Rabbinically. The Pitchei Teshuvah (ibid 7) quotes some who interpreted the Mechaber like the Rambam, that he is referring only to Rabbinic prohibitions which incur lashes (or which involve a desire for profit). The Remmah quotes the opinion of the Tosfot and Rabbeinu Yerucham that only for Rabbinic prohibitions, which involve a desire for profit, is one disqualified.
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