SHIUR #26: Himnei Rachmana Le-av

SHIUR #26: Himnei Rachmana Le-av - The Nature and Potency of a Father's Testimony

by Reuven Taragin

Introduction - the scope of 'Himnei'

The mishna (Kiddushin 64a) says that we believe a father who testifies that his daughter is either married or divorced. The gemara (63b) quotes an argument regarding the testimony's potency. Rav Asi maintains that the father's claim can be the basis for as monumental a decision as giving her capital punishment (e.g. by stoning for having had an incestuous relationship). Rav, however, counters that "ki himnei rachmana le-av - le-isura, le-ktala lo himneih"- although the testimony is deemed reliable enough to prohibit the daughter's marriage to another, we cannot mete out punishment based on it alone.

At first glance Rav's opinion seems to be correct. The Torah asserts "lo yakum eid echad be-ish le-khol avon u-lekhol chatat... (Devarim 19:15)" - punishment can only be meted out on the basis of the testimony of two witnesses. Even if the father is believed as a witness, we should still require a second one in order to execute someone.

Rav Asi can justify administering punishment on the basis of the father's testimony by challenging one of the two assumptions we have thus far made: a) that all punishment necessitates two witnesses, b) that the father's testimony is not considered to be like that of two witnesses.

I) The Evidence Required to Administer Punishment

A) Evidence Regarding Background Information

Rav's first assumption was that punishment needed to be grounded in the testimony of two witnesses. Rav Asi might distinguish between testimony concerning the actual committing of the crime, and the background evidence essential in order to establish the criminal nature of the action committed. Only our verification of a pre-existing marriage can allow us to brand the later relationship adulterous and punish the defendant as an adulterer.

The aforementioned pasuk demands that knowledge of the criminal action come from two witnesses. What about the necessary background information? The gemara (80a) asserts that "malkin al ha-chazakot; soklin ve-sorfin al ha-chazakot" - one can be lashed or killed on the basis of a chazaka (assumed status). The gemara gives, as an example, the case of a woman who arrived in Yerushalayim with a child assumed to be her son. After having raised the boy, the woman had relations with him. On the basis of the community's justified assumption that the boy was her son, the two were stoned. (Based on this gemara, the Tosafot Rid (63b s.v. "Ve-rav") limits Rav's position to cases in which the father's claim has not yet created a chazaka).

The Yerushalmi (Nazir 8:1) as well claims that background information can be supplied by one witness. For example, one is liable for having eaten a piece of meat previously declared unkosher by one witness. Rav Asi might see our case as analogous to that of the Yerushalmi - we rely on the father's pronouncement of the daughter's marriage just as we rely on one witness' disclosure of the meat's status.

B) The Uniqueness of our Case

At this point, we must consider why Rav rejects this argument. One possibility is that Rav disagrees with the basic distinction between testimony concerning the committing of the crime and that relating to background information. Although this claim is possible, the Pnei Yehoshua points out that the Rambam clearly did not understand him in this way. While, on the one hand, the Rambam quotes Rav's position (Hilkhot Issurei Bi'a 1:23), he also quotes the gemara regarding chazaka and the Yerushalmi's application to one witness (Hilkhot Sanhedrin 16:6). Obviously the Rambam felt that Rav accepted the general distinction, but felt that it was inapplicable to our case.

1) No Chazaka is Established

One way to explain the uniqueness of our case is to accept the claim of the Shev Shmateta (6:12) that we accept information supplied by one witness, not as a direct testimony of a witness, but via the chazaka it creates. (See Rambam Sanhedrin for the basis of this claim). Assuming this, the Shev Shmateta explains that our gemara applies to the period within thirty days of the testimony during which time the chazaka has not yet had time to materialize. Therefore, Rav claims that the father's testimony cannot be used as a basis for punishment.

The Meiri (63b s.v. "Af al pi") agrees with the Shev Shmateta's focus on the chazaka, but explains why it does not apply to our case differently - "chezkat eirusin eina chazaka." A testimony concerning an eirusin (engagement) cannot create a chazaka because a chazaka develops on the basis of people observing a certain reality (for example, a mother and child living under the same roof). Eirusin, however, does not cause a change in reality; its consequence is merely legalistic. There is nothing new to observe; therefore, no chazaka emerges.

2) Our Case Deals with Issues of Personal Status

Even if we reject the Shev Shmateta's claim and assert that we utilize the testimony of the one witness directly, we can still justify Rav's opinion by recognizing two other unique aspects of our case. The first is that in our case we are dealing not with a question regarding a piece of meat's status, but rather with a question of personal status. One witness may be sufficient to declare meat unkosher, but he cannot be the basis of a change in one's status - issues of status fall under the rubric of "davar she-be'erva" which require two witnesses.

3) Our Case Involves the Death Penalty

Rav Akiva Eiger (Responsa Pesakim 107) points out that another distinguishing element of our case. Here we are dealing with the death penalty. Although in meting out lashes we accept background information supplied by one witness, applying capital punishment demands definite proof of every detail; even background information must be based on the eminent proof provided by two witnesses (or a chazaka). (Even two witnesses are questioned extra thoroughly. See, for example, Makot 7a.)

The Maharik (Responsa 77) makes a similar distinction regarding the gemara (80a) referred to above. The gemara relies on a chazaka in order to give lashes or to give the death penalty - based on two independent clauses in the verse. The Maharik claims that this is because the criteria in the two cases differ. In order to give lashes we can rely on any chazaka; in order to kill, however, we require a chazaka generated by a tangible reality (ma'aseh gadol). (The Maharik accepts the Meiri's distinction, but only concerning the death penalty, not lashes).

Summary

Rav and Rav Asi disagree whether or not we can execute a woman on the basis of her father's testimony concerning her marital status. We explained that the argument may revolve around the type of proof required in order to administer the death penalty. Rav Asi might claim that background information that is necessary in order to define the action as a crime can be provided by weaker proofs, such as an assumed status (chazaka) or the testimony of one witness. Even if Rav accepts this basic distinction, he might reject its application to our case because of: a) the lack of an assumed status in our case (due to technical timing considerations or because there is no change in reality), b) the fact that we are dealing with an issue of personal status, c) the fact that we are discussing the death penalty, as opposed to mere lashes.

II) The Status of the Father's Testimony

A) The Source of the Father's Reliability

Even if Rav Asi admits to the requirement of two witnesses regarding background information (at least in this case), he can justify convicting the daughter based on the father's testimony by claiming that we view the father's testimony as analogous to that of two witnesses. This classification of the father's testimony hinges on the gemara's analysis of the basis of the father's reliability (64a).

The gemara begins by linking the father's reliability to the concept of "be-yado" - the fact that the father has the capacity to otherwise achieve the result that he claims to already be true (i.e. he has the authority to marry off his daughter). According to this explanation, the reliability of the father would assumably be analogous to that of any other eid echad (one witness). The father requires the be-yado just as any other eid echad does in a situation where he attempts to prohibit something (Tosafot 65b "Nitmau").

After challenging this suggestion by pointing out that kiddushin is not really within the father's control (since marriage requires the husband's consent), Rav Ashi links the reliability to the pasuk - "Et biti natati la-ish ha-zeh" (Devarim 22:16)- which tells of a father affirming his daughter's marriage.

What remains unclear at this point is the relationship between Rav Ashi's pasuk and the first suggestion. At first glance one might assume that Rav Ashi disregards the concept of be-yado. The Ritva (Ketuvot 22a "Minayin"), however, claims that the pasuk merely teaches us that kiddushin IS considered to be be-yado of the father (even though he does not control the husband's consent). The Torah does not relate directly to the father's reliability; it merely asserts his CONTROL which implies reliability. According to the Ritva, Rav Ashi does not present a new concept; he uses the pasuk to simply justify the previous explanation. Thus, according to the Ritva, the father's reliability seems to be analogous to that of any eid echad.

The Ramban, on the other hand, seems to have understood the gemara differently. The mishna asserts that the father is only believed regarding the daughter's marriage and divorce, not concerning the possibility of her having been captured. If captured she would be rendered unfit to marry a kohen because of the possibility that she had been defiled during her captivity. Rav Ashi explains that since the pasuk refers only to the daughter's marital status, the father's reliability extends no further.

At this point the Ramban (Ibid "Ha") wonders why the father is not believed with a "migo" (literally -"since;" figuratively - since one could, potentially, have accomplished the same end with a variant claim which we would have accepted, we accept the claim that he actually makes). The father could have prohibited his daughter to the kohen by claiming that she had been married to a mamzer (bastard), rather than claim that she was once captured. After suggesting that the migo is flawed, the Ramban explains that even had it not been, it would be inapplicable; here we are dealing with formal eidut (testimony) which a migo cannot assist. Formal eidut must survive on its own inherent legitimacy - it cannot be buttressed by external supports.

The Ramban assumes that we view the father's testimony as formal eidut. This seems to imply that the father's testimony is like that of two witnesses, and not merely the informal reliability of one (that can be buttressed by a be-yado or a migo). This point, only implied by the Ramban, is made clearly by the Ritva (Ibid. "Nishbeit"). This approach sees Rav Ashi, as suggesting a radically new approach to the father's reliability: - his testimony is not seen as the equivalent of merely an eid echad, but, rather, of two eidim. (The only explanation I have for the apparent contradiction between the Ritva in Ketuvot and Kiddushin is that he changed his mind in between the writing of the two commentaries).

This approach assumes that the requirement of two witnesses for all testimony, is not an intrinsic necessity, an end in itself, but merely a preeminent means. Two witnesses' significance lies in the fact that we view them as the ultimate means of establishing fact. The Torah teaches us that a father, the one responsible, and thus best informed of his daughter's status, can play the same role.

The fact that we can buttress the evidence of one witness through the arguments of be-yado or migo, indicates that he is not accepted as absolute fact. He merely convinces us in relative terms.

Retraction

The divergent understandings of the father's reliability are the backdrop of the debate between Provencial and Spanish Rishonim (Responsa of Chakhmei Proventzia 13-15) regarding the possibility for the father to retract his testimony based on an "amatla" (an explanation given for the earlier erroneous testimony). The Shev Shmateta (Ibid.) explains that only the analogy between the father's testimony and that of two witnesses would allow for the application of the principle "keivan she-higid, shuv eino chozer u-magid" which disallows the retraction of formal testimony. If the father's reliability counts merely as the informal testimony of one witness, though, it is flexible enough to allow for retraction. This linkage is borne out by the formulation of Rav Yaakov Propei (Ibid. 15) - "acher she-hatorah he'eminto, harei hu ke-shnei eidim ksheirim, ve-acher she-hu ba le-beit din ve-he'id...eikh yukhal lihiyot chozer u-magid." (Once the Torah believed the father as two witnesses, he cannot retract his testimony.) (See Chiddushei Rav Akiva Eiger Bava Batra 127b for another implication of this issue).

B) Rav Asi's Basis

The comparison of the father's testimony to that of two witness' might be what allowed Rav Asi to recognize the testimony as a basis for punishment. The Shev Shmateta (Ibid.) circuitously links Rav Asi to this understanding of the father's reliability. He posits that the death penalty can be enforced only once a verdict is irreversible. The possibility of a witness' retraction of his testimony would undermine the finality necessary for implementation of an irrevocable death sentence.

Based on the afore-mentioned linkage to the issue of an amatla based retraction, the Shev Shmateta asserts that Rav Asi would administer capital punishment on the basis of the father's testimony only because he considers the testimony to be as immutable as that of two witnesses. Rav, on the other hand, rejects execution because he equates the testimony to that of the standard eid echad who retains the right of retraction.

According to the Shev Shmateta, Rav Asi needs to view the testimony like that of two witnesses only in order to eliminate the possibility of retraction. It is possible to suggest, perhaps, that Rav Asi requires the analogy for a more fundamental reason? The Torah demands two witnesses as a basis for any punishment since two witnesses halakhically establish fact. Only if the father's testimony is considered like that of two witnesses can it take their place.

C) Rav's Response

Rav could respond to this possible claim of Rav Asi by rejecting one of it's two assumptions: a) that the father's testimony is equivalent to that of two witnesses, b) that the basis for punishment need not necessarily be the testimony of two actual witnesses, but merely the equivalent. The Ritva (Ibid.) claims that Rav disagrees with the second assumption - "ein soklin, ela bi-shnei eidim mamash -" the Torah demands the testimony of two actual, real - life, individuals. Alternatively, Rav may dispute the first assumption by claiming that the father's testimony equals no more than the average testimony of one witness. (See Responsa of Maharshadam Even Ha-ezer 9 for an additional way of explaining Rav's understanding of the father's testimony.)

D) Two Tracks

The nature of the father's reliability may depend on his testimony's specificity. The gemara discusses the argument between Rav and Rav Asi in the context of the mishna which refers to a case in which the father declares his daughter's marriage, but does not name the husband. This contextual connection implies that the argument deals with this specific case. (See Shita Lo Noda Le-mi {63b s.v. "Mahu"} who discusses this question). Why, though, would the argument relate to only this case?

The pasuk that Rav Ashi used as a source for the father's reliability - "et biti natati la-ish ha-zeh" refers to a case in which the father names the husband (ish ha-zeh - this specific man). Rav might have understood this textual nuance as aiming to distinguish between a case in which the father names the husband and a case, like that of our mishna, in which he does not. Rav agrees that the pasuk equates the father's testimony to that of two witnesses, but this is so only in the case of the pasuk in which the father tells a complete story - one that includes the husband's name. Where his testimony does not include this crucial component, however, the father's testimony is accepted, but valued only like that of any other eid echad. Thus, conviction is possible only in a case in which the father names the husband.

III) Summary

The shiur dealt with the various understandings of the argument between Rav and Rav Asi regarding the possibility of executing a woman on the basis of her father's testimony concerning her marital status. We explained that the argument could relate to one of two general issues: a) what type of proof enforcement of the death penalty demands, b) what level of proof we consider a father's testimony to be.

Regarding the first issue we explained that even though all agree that we require the testimony of two witnesses regarding the actual committing of the crime, Rav Asi might claim that background information necessary to define the action as a crime can be provided by lesser proofs, such as an assumed status quo or the testimony of one witness. Even if Rav accepts this basic distinction generally, he might reject its application to our case because of: a) the lack of an assumed status in our case (due to technical or conceptual circumstances), b) the fact that we are dealing with an issue of personal status, c) the fact that we are discussing the death penalty, as opposed to mere lashes.

Alternatively, the argument may focus on the nature of the father's reliability. Execution on the basis of the father's testimony may be possible for Rav Asi only because he views the father's testimony like that of two witnesses. Rav disagrees because he views the testimony like that of merely one witness, or because he requires as a basis for punishment, not merely the equivalent of two witness, but two actual individuals.

Sources and questions for next week's shiur:

1) Kiddushin 64a; the second mishna and the gemara until the next mishna with Rashi. Ba'al Ha-maor, Milchamot (2 lines before the wide lines), "Ve- R. Natan" until "amar R. Natan nami ne'eman"; Rashi s.v. Ve-R. Natan. According to R. Natan, does the husband's claim have any significance? If yes, what and why? Is the husband's recantation significant?

2) Bava Batra 5b (3 lines from the end) "chazaka" until 6a (second line) "leshaker"; Tosafot 5b s.v. Mi. Is the sugya in Bava Batra dependent on the machloket of Rebbi and R. Natan in Kiddushin? Ramban Kiddushin 64b s.v. R. Savar, until "yoter me-chaverta." Are the chazakot in the two sugyot similar? Is the "ma li leshaker" similar? Ramban Milchamot (last 3 lines, starting "ve-im tomar"). Is there a difference between a claim made by the husband that he never had brothers and a claim that he no longer has brothers? Why?