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Can a Person Send Written Testimony to the Beit Din? – Gefet 32

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The Dispute Between Rashi and Tosfot – Can a Person Send Written Testimony to the Beit Din?

The mishna on daf 30b discusses situations where there is uncertain betrothal or uncertain divorce. Situations of uncertainty will require chalitza and not yibbum. We do not do yibbum, since there is an uncertainty, however, the woman is not exempt entirely, and therefore must do chalitza.ย 

ืžืชื ื™’. ื•ื›ื•ืœืŸ ืฉื”ื™ื• ื‘ื”ืŸ ืงื“ื•ืฉื™ืŸ ืื• ื’ืจื•ืฉื™ืŸ ื‘ืกืคืง, ื”ืจื™ ืืœื• ื”ืฆืจื•ืช ื—ื•ืœืฆื•ืช ื•ืœื ืžืชื™ื™ื‘ืžื•ืช. ื›ื™ืฆื“ ืกืคืง ืงื“ื•ืฉื™ืŸ? ื–ืจืง ืœื” ืงื“ื•ืฉื™ืŸ ืกืคืง ืงืจื•ื‘ ืœื• ืกืคืง ืงืจื•ื‘ ืœื” – ื–ื”ื• ืกืคืง ืงื“ื•ืฉื™ืŸ. ืกืคืง ื’ืจื•ืฉื™ืŸ? ื›ืชื‘ ื‘ื›ืชื‘ ื™ื“ื• ื•ืื™ืŸ ืขืœื™ื• ืขื“ื™ื, ื™ืฉ ืขืœื™ื• ืขื“ื™ื ื•ืื™ืŸ ื‘ื• ื–ืžืŸ, ื™ืฉ ื‘ื• ื–ืžืŸ ื•ืื™ืŸ ื‘ื• ืืœื ืขื“ ืื—ื“ – ื–ื”ื• ืกืคืง ื’ืจื•ืฉื™ืŸ.

The second part of the mishna brings a list of situations where there are uncertainties – this list turns into a point for further study in the sugiya which comes out of this mishna, one case of uncertain betrothal, and three cases of uncertain divorce.ย 

  1. Uncertain betrothal: the husband throws the betrothal object to her, but it is uncertain whether it lands close enough to her. 2. Uncertain divorce: a. the get is written by the husband but does not have signatures of witnesses. b. a get with signatures of witnesses, but missing the time. c. a get where the time is written, but there is only one witness signature.ย 

The gemara asks why the first case is specifically about betrothal? Also in the case of divorce there could be the same type of uncertainty, whether the get is close enough to her or not. There are two solutions brought to this problem, the first by Raba, and the second by Abayei. We will focus on the second. The gemara on daf 31b says:

ืืœื ืืžืจ ืื‘ื™ื™: ื™ื’ื™ื“ ืขืœื™ื• ืจื™ืขื•, ืชื ื ื‘ืงื™ื“ื•ืฉื™ืŸ ื•ื””ื” ืœื’ื™ืจื•ืฉื™ืŸ, ืชื ื ื‘ื’ื™ืจื•ืฉื™ืŸ ื•ื””ื” ืœืงื™ื“ื•ืฉื™ืŸ.”

Abayei suggests that the uncertainty presented in the mishna is not only regarding betrothal, but rather also comes to teach about divorce. Therefore, there is exactly the same uncertainty when a man throws a get to his wife – maybe it does not land close enough. Rava raises a challenge to Abayei from the language of the mishna:

ย “?ื”ืœ ืจื‘ื: ืื™ ื™ื’ื™ื“ ืขืœื™ื• ืจื™ืขื•, ืžืื™ ื–ื”ื• ื“ืงืชื ื™”ย 

The mishna says “ื›ื™ืฆื“ ืกืคืง ืงื“ื•ืฉื™ืŸ? ื–ืจืง ืœื” ืงื“ื•ืฉื™ืŸ ืกืคืง ืงืจื•ื‘ ืœื• ืกืคืง ืงืจื•ื‘ ืœื” – ื–ื”ื• ืกืคืง ืงื“ื•ืฉื™ืŸ”. The word โ€œื–ื”ื•โ€ indicates intentionality in the wording, not an expansion beyond this case. Therefore, Rava suggests an improvement to Abeyeiโ€™s suggestion:

ืืœื ืืžืจ ืจื‘ื: ื›ืœ ืฉื™ืฉ ื‘ืงื™ื“ื•ืฉื™ืŸ ื™ืฉ ื‘ื’ื™ืจื•ืฉื™ืŸ, ื•ื™ืฉ ื‘ื’ื™ืจื•ืฉื™ืŸ ืžื” ืฉืื™ืŸ ื‘ืงื™ื“ื•ืฉื™ืŸ, ื•ื–ื”ื• ื“ื’ื™ืจื•ืฉื™ืŸ ืœืื• ื“ื•ืงื, ืืœื ืžืฉื•ื ื“ืชื ื ื–ื”ื• ื‘ืงื™ื“ื•ืฉื™ืŸ, ืชื ื ื ืžื™ ื–ื”ื• ื‘ื’ื™ืจื•ืฉื™ืŸ. ื•ื–ื”ื• ื“ืงื™ื“ื•ืฉื™ืŸ ืœืžืขื•ื˜ื™ ืžืื™? ืœืžืขื•ื˜ื™ ื–ืžืŸ, ื“ืœื™ื›ื ื‘ืงื™ื“ื•ืฉื™ืŸ.”

Rava suggests making a partial comparison between the lists. While each disqualification which exists in betrothal also exists regarding divorce, there is one disqualification in divorce which does not exist regarding betrothal – disqualification due to the missing time. A get which is missing the time is invalid, however a betrothal document missing the time is valid. The following lines in the gemara are complicated, as they quote from a number of different sugiyot:

ย ื•ืžืคื ื™ ืžื” ืœื ืชืงื ื• ื–ืžืŸ ื‘ืงื™ื“ื•ืฉื™ืŸ? ื”ื ื™ื—ื ืœืž”ื“ ืžืฉื•ื ืคื™ืจื™, ืืจื•ืกื” ืœื™ืช ืœื” ืคื™ืจื™, ืืœื ืœืž”ื“ ืžืฉื•ื ื‘ืช ืื—ื•ืชื•, ืœื™ืชืงื™ืŸ ื–ืžืŸ!ย 

In order to understand these lines of the gemara, we must look at a sugiya in Masechet Gittin (17a) which brings a dispute between Rabbi Yochanan and Reish Lakish regarding the reason for requiring the time to be written on a get:ย 

ืื™ืชืžืจ: ืžืคื ื™ ืžื” ืชื™ืงื ื• ื–ืžืŸ ื‘ื’ื™ื˜ื™ืŸ? ืจื‘ื™ ื™ื•ื—ื ืŸ ืืžืจ: ืžืฉื•ื ื‘ืช ืื—ื•ืชื•, ืจื™ืฉ ืœืงื™ืฉ ืืžืจ: ืžืฉื•ื ืคื™ืจื•ืช.ย 

Our gemara claims that the fact that the rabbis did not make a parallel enactment regarding betrothal is a proof for the opinion of Reish Lakish who thinks that the reason for the enactment is โ€œbecause of the fruitsโ€. Rashi on our sugiya helps us understand the claim. Reish Lakish understands that the requirement of writing the time on the get is connected to the eating of fruits. We will explain: a man has the right to eat from the fruits of his wifeโ€™s usufruct property, but this is only during the time that they are married. It does not apply toย  when she is betrothed, and also not in the case where he decided to divorce her and wrote her a get, but has yet to give it to her and so she is not actually divorced. Therefore, the time on the betrothal document, even if it is earlier than when it actually happened, does not give the husband rights to the fruits, as only the chuppah gives him this right. In contrast, the date written on the get is what determines his losing his right to eat the fruits. Therefore, it is understandable why only with regards to divorce do we require writing the time, but not for betrothal. In divorce, the time is significant, but not in betrothal. However, Rabbi Yochanan thinks that this enactment is not connected to eating of the fruits, but rather to the husbandโ€™s desire to conceal his wifeโ€™s adultery, thereby saving her from the death penalty (in this case, when he is married to his neice). In order to do this, he will want to change the date of the betrothal document and push it off so that the testimony as to her adultery will be from before they were even married. Therefore, it is not clear why this enactment was not made regarding betrothal as well.ย 

The gemara suggests a way to explain Rabbi Yochananโ€™s opinion – why despite the fact that there is the same problem, the rabbis did not enact a requirement of writing the time on the betrothal document: ืžืฉื•ื ื“ืื™ื›ื ื“ืžืงื“ืฉ ื‘ื›ืกืคื ื•ืื™ื›ื ื“ืžืงื“ืฉ ื‘ืฉื˜ืจื, ืœื ืชืงื•ืŸ ืจื‘ื ืŸ ื–ืžืŸ.

Since there are a number of ways to betroth a woman, the rabbis did not enact any kind of change in the betrothal document. The gemara raises a difficulty with this solution from the release document of a slave, where the rabbis enacted the requirement to write the time:ย 

ื”ืœ ืจื‘ ืื—ื ื‘ืจื™ื” ื“ืจื‘ ื™ื•ืกืฃ ืœืจื‘ ืืฉื™: ื•ื”ื ืขื‘ื“ื, ื“ืื™ื›ื ื“ืงื ื™ ื‘ื›ืกืคื ื•ืื™ื›ื ื‘ืฉื˜ืจื, ื•ืชืงื•ืŸ ืจื‘ื ืŸ ื–ืžืŸ!

The gemara brings two answers to this difficulty:

 

  1. ย ื”ืชื ืจื•ื‘ื ื‘ืฉื˜ืจื, ื”ื›ื ืจื•ื‘ื ื‘ื›ืกืคื.ย 
  2. ืื‘”ื: ืžืฉื•ื ื“ืœื ืืคืฉืจ, ื”ื™ื›ื™ ืœื™ืขื‘ื™ื“? ืœื™ื ื—ื” ื’ื‘ื™ ื“ื™ื“ื”. ืžื—ืงื” ืœื™ื”, ืœื™ื ื—ื” ื’ื‘ื™ ื“ื™ื“ื™ื” – ื–ืžื ื™ืŸ ื“ื‘ืช ืื—ื•ืชื• ื”ื™ื ื•ืžื—ืคื” ืขืœื”, ืœื™ื ื—ื” ื’ื‘ื™ ืขื“ื™ื – ืื™ ื“ื–ื›ื™ืจื™ ืœื™ืชื• ืœื™ืกื”ื•ื“, ื•ืื™ ืœื – ื–ืžื ื™ืŸ ื“ื—ื–ื• ืžื›ืชื‘ื ื•ืืชื• ืžืกื”ื“ื™, ื•ืจื—ืžื ื ืืžืจ: ืžืคื™ื”ื ื•ืœื ืžืคื™ ื›ืชื‘ื

The sugiya ends with a question about the second understanding – according to the second understanding, there is a technical problem with this enactment, as anyone who keeps the document, the man or the woman can change the time that is written there. If we would put the document in an objective place, the hands of the witnesses, this will create a problem in the laws of witnesses. The witnesses are likely to forget when the betrothal happened, and so will look at the date on the document to remember, and then their testimony will be invalid, as they are not allowed to testify from something written, but rather must remember the content of their testimony. This the ื’ื–ืจืช ื›ืชื•ื‘ of “ืžืคื™ื”ื ื•ืœื ืžืคื™ ื›ืชื‘ื”. This problem leads to many discussions among the rishonim, and we will soon turn to an important Tosfot on our daf. However, in light of this technical problem in the second solution, we can ask how can the time be established on a get? Also there somebody can erase it and change the time, and also there we have the problem of witnesses testifying from something written? The gemara asks and answers: ืื™ ื”ื›ื™, ื‘ื’ื™ืจื•ืฉื™ืŸ ื ืžื™ ื ื™ืžื ื”ื›ื™! ื”ืชื ืœื”ืฆืœื” ื“ื™ื“ื” ืงืืชื™, ื”ื›ื ืœื—ื•ื‘ื” ื“ื™ื“ื” ืงืืชื™. We will turn to Rashi to help us understand. Rashi explains that betrothal is a case where the document comes to remove the woman from her chazaka of being single, and gives her the status of a married woman. Therefore, if the betrothal document will be problematic, the woman will remain with the chazaka of being single, and so anyway, testimony as to adultery wonโ€™t affect her, as we are uncertain whether she is even betrothed. However, a get is meant to remove the woman from her chazaka as a married woman, and therefore, if the time on the get is cut off, the get will be problematic, and so she will remain a married woman, in which case the testimony as to her adultery will be significant.ย 

Tosfotโ€™s Approach to the Law of ืžืคื™ื”ื ื•ืœื ืžืคื™ ื›ืชื‘ื

By way of our sugiya, a fascinating law regarding the validity of witnesses is mentioned. Witnesses must testify from their own mouths, and not from something written. This law led to lively discussions among the rishionim, and Rabbeinu Tam has a unique approach as to the interpretation of this law. We will examine Tosfot on our daf to become familiar with this approach. We will open with the question which bothered the rishonim, and in its specific formulation by Ri of the Tosfot:

ื“ื—ื–ื• ื‘ื›ืชื‘ื ื•ืืชื• ื•ืžืกื”ื“ื™ ื›ื•’ – ืงืฉื” ืœืจ”ื™ ื“ื‘ื”ื’ื•ื–ืœ ืงืžื (ื‘”ืง ื“ืฃ ืฆื—. ื•ืฉื:) ื’ื‘ื™ ื”ืฉื•ืจืฃ ืฉื˜ืจื•ืชื™ื• ืฉืœ ื—ื‘ื™ืจื• ืคืจื™ืš ื•ืื™ ื“ืื™ื›ื ืกื”ื“ื™ ื“ื™ื“ืขื™ ืœื™ื›ืชื‘ื• ืœื™ื” ืฉื˜ืจื ืื—ืจื™ื ื ื•ืืžืื™ ื”ื ืืžืจ ื”ื›ื ื“ืžืคื™ื”ื ื•ืœื ืžืคื™ ื›ืชื‘ื .

Ri asks – there seems to be a contradiction between sugiyot. In Masechet Bava Kamma, it seems that there is no problem of ืคื™ื”ื ื•ืœื ืžืคื™ ื›ืชื‘ื, as witnesses can reconstruct a document. In other words, the witness testifies from something written! Other rishonim formulate the question a little differently. If we say ืžืคื™ื”ื ื•ืœื ืžืคื™ ื›ืชื‘ื, how can it be thatย  documents are valid according to the Torah – documents are written testimony! We will notice that here, Ri doesnโ€™t ask about the writing of the document itself. His approach regarding the validity of documents will be clarified very soon. Riโ€™s question is more specific. If there was a valid document which was destroyed, seemingly, in order to recreate the document, all of the sides and the witnesses would need to gather again in order to rewrite the document in the presence of all of them. Yet, in Bava Kamma it says that the witnesses can recreate the document on their own, without recreating the event. This contradicts our sugiya which has the law of ืžืคื™ื”ื ื•ืœื ืžืคื™ ื›ืชื‘ื.ย 

ื•ืืจ”ื™ ื“ื””ื  ืื ื”ื™ื• ืžืขื™ื“ื™ื ืฉื›ืš ืจืื• ื‘ืฉื˜ืจ ืฉืคื™ืจ ื”ื•ื• ืขื‘ื“ื™ ื“ื”ืจื™ ื”ื ื›ืื™ืœื• ืžืขื™ื“ื™ื ืจืื™ื ื• ืขื“ื•ืช ืฉื ืชืงื‘ืœ ื‘ื‘”ื“ ื“ืขื“ื™ื ื”ื—ืชื•ืžื™ื ืขืœ ื”ืฉื˜ืจ ื ืขืฉื” ื›ืžื™ ืฉื ื—ืงืจื” ืขื“ื•ืชืŸ ื‘ื‘”ื“ ืื‘ืœ ื—ื™ื™ืฉื™ื ืŸ ืฉืžื ืœื ื™ืขื™ื“ื• ืฉื›ืš ืจืื• ื‘ืฉื˜ืจ ืืœื ืฉืžื ื™ืขื™ื“ื• ืขืœ ื”ืžืขืฉื” ืขืฆืžื• ื›ืื™ืœื• ื”ื ื–ื•ื›ืจื™ื ื•ื”ื ืื™ื ืŸ ื–ื•ื›ืจื™ืŸ ืืœื ืขืœ ืคื™ ื”ื›ืชื‘ ื•ื›ืŸ ื”ื ื“ืืžืจื™ื ืŸ ื‘ืค”ื‘ ื“ื›ืชื•ื‘ื•ืช (ื“ืฃ ื›.) ื›ื•ืชื‘ ืื“ื ืขื“ื•ืชื• ืขืœ ื”ืฉื˜ืจ ื•ืžืขื™ื“ ืขืœื™ื” ืืคื™ืœื• ืื—ืจ ื›ืžื” ืฉื ื™ื ื•ื”ื•ื ืฉื–ื•ื›ืจื” ืžืขืฆืžื• ืื‘ืœ ืื™ืŸ ื–ื•ื›ืจื” ืžืขืฆืžื• ืœื ื”ืชื ื ืžื™ ืœื ืื™ื™ืจื™ ื‘ืžืขื™ื“ ืฉื›ืš ืจืื” ื›ืชื•ื‘ ืืœื ื‘ืžืขื™ื“ ืขืœ ืžืขืฉื” ืขืฆืžื• ื•ืขื•ื“ ื“ื”ืชื ืœื ื”ื•ื” ืฉื˜ืจ ืืœื ืฉื›ื•ืชื‘ ืœื–ื›ืจื•ืŸ ื“ื‘ืจื™ื ื‘ืขืœืžื ื•ืœื ืฉื™ื™ืš ืœืžื™ืžืจ ื ืขืฉื” ื›ืžื™ ืฉื ื—ืงืจื” ืขื“ื•ืชื• ื‘ื‘”ื“.

Ri limits the rule of ืžืคื™ื”ื ื•ืœื ืžืคื™ ื›ืชื‘ื and explains that there are two cases in which writing can meet testimony:

  1. The first explanation reveals Riโ€™s approach as to the validity of the document: a signed document is valid as it has a special status. A signed document is like testimony which was heard in the beit din and was accepted. Therefore, although it is something written, it is considered testimony. Through this, we can understand the gemara in Bava Kamma. There, the witnesses can recreate the document since they are like witnesses who are testifying that certain testimony was accepted in beit din.ย 
  2. The second explanation of Ri relates to an additional sugiya in Ketubot 20. In Ketubot, there is also a seeming contradiction with the rule of ืžืคื™ื”ื ื•ืœื ืžืคื™ ื›ืชื‘ื which appears in our sugiya. There it says that a person can testify from something written! Ri explains that gemara in a different way, and says that writing can be a tool for remembering. The witnesses cannot testify if they donโ€™t remember themselves, but they can use tools to help them remember.ย 

The last part of our Tosfot is very well known, as Ri brings the approach of Rabbeinu Tam who greatly expands the ability to use written testimony, well beyond the laws of documents. We will examine his words.ย 

ย ื•ืืจ”ื™ ื“ืฉืžืข ืžืจ”ืช ืฉื ื•ื”ื’ื™ืŸ ืขื›ืฉื™ื• ืฉืฉื•ืœื—ื™ืŸ ื”ืขื“ื™ื ืขื“ื•ืชืŸ ื‘ื›ืชื‘ ื™ื“ื ืœื‘”ื“ ื•ืœื ืงืจื™ื ืŸ ื‘ื™ื” ืžืคื™ื”ื ื•ืœื ืžืคื™ ื›ืชื‘ื ื›ื™ื•ืŸ ืฉื”ื ื–ื•ื›ืจื™ืŸ ืขื“ื•ืชืŸ ื•ื”ื ื“ืชื ื™ื ื‘ืžื™ ืฉืื—ื–ื• (ื’ื™ื˜ื™ืŸ ื“ืฃ ืขื.) ื•ืื ืœื ื™ื’ื™ื“ ืคืจื˜ ืœืืœื ืฉืื™ืŸ ื™ื›ื•ืœ ืœื“ื‘ืจ ื•ืคืจื™ืš ื•ืืžืื™ ื•ื”ืจื™ ื™ื›ื•ืœ ืœื“ื‘ืจ ืžืชื•ืš ื”ื›ืชื‘ ืฉืื ื™ ืขื“ื•ืช ื“ืจื—ืžื ื ืืžืจ ืžืคื™ื”ื ื•ืœื ืžืคื™ ื›ืชื‘ื ืฉืื ื™ ืืœื ืฉืื™ืŸ ืจืื•ื™ ืœื”ื’ื™ื“ ื›ื“ืืžืจื™ื ืŸ (ืžื ื—ื•ืช ื“ืฃ ืงื’:) ื›ืœ ืฉืื™ืŸ ืจืื•ื™ ืœื‘ื™ืœื” ื›ื•’ ืื‘ืœ ืื—ืจ ืžื•ืขื™ืœ ื›ืชื‘ ื™ื“ื• ื›ืฉื–ื•ื›ืจ ื”ืขื“ื•ืช ื•ืžื™ื”ื• ื‘ืคื™ืจื•ืฉ ื—ื•ืžืฉ (ื“ื‘ืจื™ื ื™ื˜) ืคืจืฉ”ื™ ืข”ืค ืฉื ื™ื ืขื“ื™ื ืคืจื˜ ืฉืœื ื™ืฉืœื—ื• ื›ืชื‘ื ืœื‘”ื“.

Ri brings a dispute between Rashi and Rabeinu Tam. Rashi on the Torah (ื“ื‘ืจื™ื ื™ื˜), writes in his explanation of the passuk ” ืขืœ ืคื™ ืฉื ื™ื ืขื“ื™ื”, that testimony needs to be oral. However, Rabbeinu Tam writes that it is possible to accept written testimony in beit din. Rabbeinu Tamโ€™s words are difficult, as we have the rule of ืžื™ืคื”ื ื•ืœื ืžืคื™ ื›ืชื‘ื. Ri explains that Rabbeinu Tam understood this rule as meaning that a person who cannot speak cannot testify through writing. However, someone who can speak, can also send his testimony to the beit din. Much has been written about the approach of Rabbeinu Tam, and many rationales which have been suggested, and bring with them great practical implications for understanding his words. For our purposes, we will suffice with one rationale. As long as the beit din has the ability to question the witness, the witness can also send his testimony in written form. But if they do not have this ability, it cannot accept such testimony. Why is oral questioning so important? We will suggest that only through live conversation can we really understand the witness, and if he is telling the truth. It is enough that we have the ability to question, even if we do not actually use it. Since the witness knows that the beit din can call him for an interrogation, this is enough to validate his written testimony. We will note that there were those who understood Ri in a completely different way, however, this is not the place to go into it, and so we will leave it for another time.ย 

Summary:

In the pshat of the sugiya, we learned new and important topics regarding the dispute between Rabbi Yochanan and Reish Lakish about the enactment of requiring the time to be written on the get.ย 

In Tosfot, we saw that there is a large dispute among the rishonim regarding the extent of the rule of ืžื™ืคื”ื ื•ืœื ืžืคื™ ื›ืชื‘ื. All of them of course agree that the document is valid, but they argue as to why. They also argue as to the question of whether witnesses can send written testimony to beit din. Rabbeinu Tamโ€™s approach is surprising and far fetched – that witnesses can send written testimony as long as they are not mute, and the rule of ืžื™ืคื”ื ื•ืœื ืžืคื™ ื›ืชื‘ื only applies to mute people. We suggested one rationale for this explanation, but this is the place to try and come up with and learn other rationales for his opinion.ย 

Rabbanit Yael Shimoni

Rabbanit Yael Shimoni is the Ramit and Deputy Rosh Yeshiva at Yeshivat Drisha in Kfar Etzion. Rabbanit Shimoni has learned at Migdal Oz, Matan, and the Susi Bradfield Womenโ€™s Institute for Halakhic Leadership at Midreshet Lindenbaum. She holds a BFA from Bezalel Academy of Arts and Design and a BEd in Torah Shebeโ€™al Peh and Jewish Thought from Herzog College. She is currently studying towards an MA in Jewish Thought Education at Herzog College. Rabbanit Shimoni taught gemara and halakha at Pelech High School and served as a ramit for shana bet at Migdal Oz. She directs Meshivat Nefesh, the online responsa program of the rabbaniyot of Beit Hillel. She is also a plastic artist and member of โ€œA Studio of Her Own.
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