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Edut - Chapter 12

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Edut - Chapter 12

1Whenever a person is disqualified as a witness for committing a transgression, he is disqualified if two witnesses testify that he committed a transgression despite the fact that they did not warn him and hence, he does not receive lashes.1 When does the above apply? When the person committed a transgression that is universally known among the Jewish people to be a sin, e.g., he took a false or an unnecessary2 oath, he robbed, he stole, he ate meat from an animal that was not slaughtered in a ritual manner, or the like. Different rules apply, however, if the witnesses see him transgress a prohibition which he most likely violated unknowingly.3 In such an instance, they must warn him. Afterwards, if he transgresses, he is disqualified.אכָּל הַנִּפְסָל בַּעֲבֵרָה, אִם הֵעִידוּ עָלָיו שְׁנֵי עֵדִים שֶׁעָשָׂה עֲבֵרָה פְּלוֹנִית, אַף עַל פִּי שֶׁלֹּא הִתְרוּ בּוֹ וְאֵינוֹ לוֹקֶה - הֲרֵי זֶה פָּסוּל לְעֵדוּת. בַּמֶּה דְּבָרִים אֲמוּרִים? כְּשֶׁעָבַר עַל דְּבָרִים שֶׁפָּשַׁט בְּיִשְׂרָאֵל שֶׁהֵן עֲבֵרָה, כְּגוֹן שֶׁנִּשְׁבַּע לַשֶּׁקֶר אוֹ לַשָּׁוְא, אוֹ גָּזַל אוֹ גָּנַב, אוֹ אָכַל נְבֵלָה וְכַיּוֹצֵא בּוֹ; אֲבָל אִם רָאוּהוּ עֵדִים עוֹבֵר עַל דָּבָר שֶׁקָּרוֹב הָעוֹשֶׂה לִהְיוֹת שׁוֹגֵג - צְרִיכִין לְהַזְהִירוֹ, וְאַחַר כָּךְ יִפָּסֵל.
What is implied? If witnesses saw a person tying or untying a knot on the Sabbath, they must inform him that this desecrates the Sabbath,4 because most people are unaware of this.5 Similarly, if they see him performing a forbidden labor on the Sabbath or a festival, they must inform him that the day is the Sabbath or the festival, lest he have forgotten.כֵּיצַד? רָאוּהוּ קוֹשֵׁר אוֹ מַתִּיר בַּשַּׁבָּת - צְרִיכִין לְהוֹדִיעוֹ שֶׁזֶּה חִלּוּל שַׁבָּת, מִפְּנֵי שֶׁרֹב הָעָם אֵינָן יוֹדְעִין זֶה. וְכֵן אִם רָאוּהוּ עוֹשֶׂה מְלָאכָה בַּשַּׁבָּת אוֹ בְּיוֹם טוֹב - צְרִיכִין לְהוֹדִיעוֹ שֶׁהַיוֹם שַׁבָּת, שֶׁמָּא שׁוֹכֵחַ הוּא.
Similarly, if a person gambles continually, becomes a the collector of the king’s duty, or a tax collector takes more for himself, the witnesses must inform him that a person who does this is not acceptable as a witness.6 For the majority of the people are unaware of this matter. Similar laws apply in all analogous situations.וְכֵן הַמְּשַׂחֵק בַּקֻּבְיָא תָּמִיד, אוֹ מִי שֶׁנַּעֲשָׂה מוֹכֵס אוֹ גַּבַּאי שֶׁמּוֹסִיף לְעַצְמוֹ - צְרִיכִין הָעֵדִים לְהוֹדִיעוֹ שֶׁהָעוֹשֶׂה דָּבָר זֶה פָּסוּל לְעֵדוּת; שֶׁרֹב הָעָם אֵינָן יוֹדְעִין דְּבָרִים אֵלּוּ. וְכֵן כֹּל כַיּוֹצֵא בְּזֶה.
The general principle is: Whenever it appears to the witnesses that the person committing the transgression knew that he was acting wickedly and transgressed deliberately, he is not acceptable as a witness even though he was not given a warning and hence, does not receive lashes.כְּלָלוֹ שֶׁל דָּבָר: כָּל עֲבֵרָה שֶׁהַדְּבָרִים מַרְאִין לָעֵדִים שֶׁזֶּה יָדַע שֶׁהוּא רָשָׁע וְעָבַר בְּזָדוֹן, אַף עַל פִּי שֶׁלֹּא הִתְרוּ בּוֹ - הֲרֵי זֶה פָּסוּל לְעֵדוּת, וְאֵינוֹ לוֹקֶה.
2A person is not disqualified as a witness because of a transgression on the basis of his own testimony. What is implied? A person comes to court and admits that he stole, robbed, or lent money at interest. Although his own statement is sufficient to obligate him to make financial restitution,7 it does not disqualify him as a witness. Similarly, if he states that he ate meat from an animal that was not slaughtered in a ritual manner or had relations with a woman forbidden to him, he is not disqualified until two witnesses testify concerning the transgression. The rationale is that a person is not deemed as wicked on the basis of his own testimony.8באֵין אָדָם נִפְסָל בַּעֲבֵרָה עַל פִּי עַצְמוֹ. כֵּיצַד? הֲרֵי שֶׁבָּא לְבֵית דִּין וְאָמַר שֶׁגָּנַב אוֹ גָּזַל אוֹ לָוָה בְּרִבִּית, אַף עַל פִּי שֶׁמְּשַׁלֵּם עַל פִּי עַצְמוֹ - אֵינוֹ נִפְסָל. וְכֵן אִם אָמַר שֶׁאָכַל נְבֵלָה אוֹ בָּעַל בְּעִילָה אֲסוּרָה - אֵינוֹ נִפְסָל, עַד שֶׁיִּהְיוּ שָׁם שְׁנֵי עֵדִים; שֶׁאֵין אָדָם מֵשִׂים אֶת עַצְמוֹ רָשָׁע.
Accordingly, if Shimon testifies that Reuven lent money at interest,9 and Levi testifies: “Reuven lent me money at interest,” Reuven is disqualified as a witness on the basis of the testimony of Shimon and Levi. Although Levi admitted that he borrowed money at interest,10 he is not deemed as wicked on the basis of his own testimony. Hence, his word is accepted with regard to Reuven, but not with regard to himself.11לְפִיכָךְ רְאוּבֵן שֶׁהֵעִיד עָלָיו שִׁמְעוֹן שֶׁהִלְוָה בְּרִבִּית, וְהֵעִיד לֵוִי וְאָמַר 'לִי הִלְוָה בְּרִבִּית' - הֲרֵי רְאוּבֵן נִפְסַל בְּעֵדוּת שִׁמְעוֹן וְלֵוִי. אַף עַל פִּי שֶׁהַרֵי הוֹדָה לֵוִי שֶׁלָּוָה בְּרִבִּית - אֵינוֹ מֵשִׁים עַצְמוֹ רָשָׁע, וְנֶאֱמָן עַל רְאוּבֵן וְאֵינוֹ נֶאֱמָן עַל עַצְמוֹ.
Similarly, if a person testifies that so-and-so sodomized him, whether against the will of the person sodomized12 or with his consent,13 the person sodomized and one other witness can join together and through their testimony have the sodomizer condemned to execution. If a person states: “So-and-so had relations with my wife,”14 he and one other witness can join together and through their testimony have that person, but not the wife condemned to execution.15 Similar laws apply in all analogous situations. If a person testifies: “So-and-so sodomized my ox,” he and one other witness can join together and through their testimony have that person condemned to execution.16 The rationale is that a person is not considered as related to his property.17וְכֵן מִי שֶׁהֵעִיד שֶׁפְּלוֹנִי רְבָעוֹ, בֵּין בְּאֻנְסוֹ שֶׁל נִּרְבָּע בֵּין לִרְצוֹנוֹ - הוּא וְאַחֵר מִצְטָרְפִין לְהָרְגוֹ. פְּלוֹנִי בָּא עַל אִשְׁתּוֹ - הוּא וְאַחֵר מִצְטָרְפִין לְהָרְגוֹ, אֲבָל לֹא לְהָרְגָהּ. וְכֵן כֹּל כַיּוֹצֵא בְּזֶה. פְּלוֹנִי רָבַע אֶת שׁוֹרִי - הוּא וְאַחֵר מִצְטָרְפִין לְהָרְגוֹ, שֶׁאֵין אָדָם קָרוֹב אֵצֶל מְמוֹנוֹ.
3When two people testify that a person is not acceptable as a witness because he committed one of the above mentioned transgressions and two others come and testify that he repented and renounced his improper conduct or received lashes as punishment for the transgression, he is acceptable.18גשְׁנַיִם שֶׁהֵעִידוּ עַל אֶחָד שֶׁהוּא פָּסוּל בַּעֲבֵרָה מֵאֵלּוּ הָעֲבֵרוֹת, וּבָאוּ שְׁנַיִם וְהֵעִידוּ שֶׁעָשָׂה תְּשׁוּבָה וְחָזַר בּוֹ, אוֹ שֶׁלָּקָה - הֲרֵי זֶה כָּשֵׁר.
If, however, two witnesses came and contradicted the original witnesses, saying: “He did not commit the transgression and should not be disqualified,” there is an unresolved doubt if he is disqualified as a witness or not. Therefore he should not testify, we do not expropriate money on the basis of his testimony,19 and he should not serve as a judge20 until he repents.אֲבָל אִם בָּאוּ שְׁנַיִם וְהִכְחִישׁוּם, וְאָמְרוּ 'לֹא עָשָׂה עֲבֵרָה זוֹ וְלֹא נִפְסַל' - הֲרֵי זֶה סְפֵק פָּסוּל. לְפִיכָךְ לֹא יָעִיד, וְאֵין מוֹצִיאִין מָמוֹן בְּעֵדוּתוֹ, וְלֹא יָדוּן - עַד שֶׁיִּוָּדַע שֶׁעָשָׂה תְּשׁוּבָה.
4Whenever a person was obligated to receive lashes, he is considered as an acceptable witness21 again when he repents22 or when he received lashes in court.23 Other persons who were disqualified as witnesses because of money which they seized or stole must repent24 even if they made financial restitution.25 Instead, they are disqualified until it is known that they repented from their evil ways.דכָּל מִי שֶׁנִּתְחַיֵּב מַלְקוּת - בֵּין שֶׁעָשָׂה תְּשׁוּבָה בֵּין שֶׁלָּקָה בְּבֵית דִּין, חוֹזַר לְכַשְׁרוּתוֹ. אֲבָל שְׁאָר פְּסוּלֵי עֵדוּת, שֶׁהֵן פְּסוּלִין מִשּׁוּם הַמָּמוֹן שֶׁחָמְסוּ אוֹ גָּזְלוּ, אַף עַל פִּי שֶׁשִּׁלְּמוּ - צְרִיכִין תְּשׁוּבָה, וַהֲרֵי הֵן פְּסוּלִין, עַד שֶׁיִּוָּדַע שֶׁחָזְרוּ בָּהֶן מִדַּרְכָּן הָרָעָה.
5When is it considered that people who lend money at interest have repented?26 When they tear up their promissory notes on their own volition27 and manifest complete regret over their actions to the extent that they do not lend money at interest even to gentiles.28המֵאֵימָתַי חֲזָרַת מַלְוֶה בְּרִבִּית? מִשֶּׁיִּקְרְעוּ אֶת שִׁטְרֵיהֶן מֵעַצְמָן, וְיַחְזְרוּ בָּהֶן חֲזָרָה גְּמוּרָה שֶׁלֹּא יִלְווּ בְּרִבִּית, אַפִלּוּ לְעוֹבֵד כּוֹכָבִים.
6When is it considered that dice-players have repented? When they break their dice on their own volition29 and manifest complete regret over their actions to the extent that they do not even play without monetary stakes.30ומֵאֵימָתַי חֲזָרַת הַמְּשַׂחֲקִין בַּקֻּבְיָא? מִשֶּׁיְּשַׁבְּרוּ אֶת פְּסֵיפָסֵיהֶן מֵעַצְמָן, וְיַחְזְרוּ בָּהֶן חֲזָרָה גְּמוּרָה שֶׁלֹּא יַעֲשׂוּ אַפִלּוּ בְּחִנָּם.
7When is it considered that those who guide the flight of doves have repented? When they break the tools they use to snare them and manifest complete regret over their actions to the extent that they do not do this even in the desert.31זמֵאֵימָתַי חֲזָרַת מַפְרִיחֵי יוֹנִים? מִשֶּׁיְּשַׁבְּרוּ אֶת הַכֵּלִים שֶׁצָּדִין בָּהֶן, וְיַחְזְרוּ בָּהֶן חֲזָרָה גְּמוּרָה שֶׁאַפִלּוּ בַּמִּדְבָּר לֹא יְהוּ עוֹשִׂין.
8When is it considered that merchants of produce in the Sabbatical year have repented? When the Sabbatical year arrives, they are investigated and it is discovered that they did not sell such produce. Expressing regret verbally is not sufficient. Instead, they must compose a document, stating: “I, so-and-so, the son of so-and-so, earned 200 zuz from the sale of the produce of the Sabbatical year and this sum is given as a present to the poor.”חמֵאֵימָתַי חֲזָרַת סוֹחֲרֵי שְׁבִיעִית? מִשֶּׁתַּגִּיעַ שְׁבִיעִית וְיִבָּדְקוּ. וְלֹא חֲזָרַת דְּבָרִים בִּלְבַד, אֶלָא כּוֹתֵב: 'אֲנִי פְּלוֹנִי בֶּן פְּלוֹנִי כִּנַּסְתִּי מָאתַיִם זוּז מִפֵּרוֹת שְׁבִיעִית, וַהֲרֵי הֵן נְתוּנִים בְּמַתָּנָה לָעֲנִיִּים'.
9When is it considered that a person suspected of benefiting32 from taking a’ false oath has repented? When he goes to a court which does not recognize him33 and tells them: “I am suspect to take a false oath.” Alternatively, when he is obligated to take an oath in a court which does not recognize him with regard to a significant amount of money and he chooses to make financial restitution rather than take the oath.טמֵאֵימָתַי חֲזָרַת הַמּוֹעֵל בִּשְׁבוּעָה? מִשֶּׁיָּבוֹא לְבֵית דִּין שֶׁאֵין מַכִּירִין אוֹתוֹ, וְיֹאמַר לָהֶם 'חָשׁוּד אֲנִי', אוֹ יִתְחַיֵּב שְׁבוּעָה בְּבֵית דִּין שֶׁאֵין מַכִּירִין אוֹתוֹ בְּמָמוֹן חָשׁוּב, וִישַׁלֵּם וְלֹא יִרְצֶה לְהִשָּׁבַע.
Similarly, a butcher would check the animals he slaughtered34 by himself and market the meat who sold meat35 that was trefe is considered like those who partake of such meat36 and who are unacceptable as witnesses. Such a butcher is unacceptable as a witness until it is evident from his deeds that he regrets the evil he performed. He must wear black clothes, robe himself in black,37 and go to a place where his identity is not known and return a lost object that is significantly valuable or acknowledge that an animal that is significantly valuable which he owned and slaughtered is trefe.וְכֵן טַבָּח שֶׁהָיָה בּוֹדֵק לְעַצְמוֹ וּמוֹכֵר, וְיָצָאת טְרֵפָה מִתַּחַת יָדוֹ, שֶׁהֲרֵי הוּא בִּכְלַל אוֹכְלֵי טְרֵפָה שֶׁהֵן פְּסוּלִין לְעֵדוּת - הֲרֵי זֶה פָּסוּל לְעֵדוּת, עַד שֶׁיֵּרָאֶה מִמַּעֲשָׂיו שֶׁהוּא נִחַם עַל רָעָתוֹ, וְיִלְבֹּשׁ שְׁחוֹרִים וְיִתְכַּסֶּה שְׁחוֹרִים וְיֵלֵךְ לִמְקוֹם שֶׁאֵין מַכִּירִין אוֹתוֹ, וְיַחְזִיר אֲבֵדָה בְּדָבָר חָשׁוּב, אוֹ יוֹצִיא טְרֵפָה מִתַּחַת יָדוֹ בְּדָבָר חָשׁוּב.
10Similarly, a witnesses who was discovered to have lied who went to a place where he was not recognized and was offered a significant amount of money to deliver false testimony, but refused is considered to have repented and is reinstated as a witness. Similar principles apply in all analogous situations.יוְכֵן עֵד זוֹמֵם שֶׁהָלַךְ לְמָקוֹם שֶׁאֵין מַכִּירִין אוֹתוֹ, וְנָתְנוּ לוֹ מָמוֹן חָשׁוּב לְהָעִיד בְּשֶׁקֶר, וְלֹא רָצָה - הֲרֵי זֶה עָשָׂה תְּשׁוּבָה, וְיַחֲזֹר לְכַשְׁרוּתוֹ. וְכֵן כֹּל כַיּוֹצֵא בְּזֶה.

Quiz Yourself on Edut Chapter 12

Footnotes
1.

See Hilchot Sanhedrin 16:4; 12:2.

2.

Note the distinctions between the two in Hilchot Sh’vuot, Chapter 1.

3.

I.e., in a situation where we assume that he was unaware that he was transgressing as the Rambam continues to explain.

4.

See Hilchot Shabbat 10:1.

5.

Sanhedrin 26b and the Shulchan Aruch (Choshen Mishpat 34:4) give another example: people who bury the dead on the first day of a festival. Although it is a transgression, they are under the impression that they are performing a mitzvah.

6.

See Chapter 10, Halachah 4.

7.

For the admission of the person himself is equivalent to the testimony of 100 witnesses (Bava Metzia 3a). The intent is not that his word is accepted as the testimony of witnesses, but that his admission of liability obligates him.

8.

Just as a person’s testimony is not accepted with regard to his relatives, his testimony is not accepted with regard to himself. He is “his own relative” (Sanhedrin 9b). Nevertheless, such a person should not be appointed as a witness as an initial and preferred option [Ramah (Choshen Mishpat 34:28)].

9.

A transgression that would disqualify him as a witness, as stated in Chapter 10, Halachah 4.

10.

And that is also a transgression which disqualifies a person as a witness (ibid.).

11.

We follow the principle palginon diburo, “we divide his words.” We accept the portion of his statements which say that so-and-so lent money at interest; we do not accept the portion which states that the person testifying was the recipient of the loan.

12.

In which instance, he would not be disqualified as a witness.

13.

In which instance, were two witnesses to testify that this transpired, he would be disqualified as a witness.

14.

A person’s testimony is ordinarily not accepted with regard to his wife, for she is considered as his own person (Chapter 13, Halachah 3).

15.

Following the principle of palginin diburo.

16.

In this instance, the ox is also executed, for the reason the Rambam continues to explain.

17.

Hence we do not require the principle palginon diburo.
The Ra’avad interprets Sanhedrin 10a, the source for the Rambam’s ruling, as implying that since we do not employ the principle palginin diburo, the person’s testimony is not accepted at all. The rationale is that since the ox is his property, he is considered an involved party and his testimony is not accepted (see Chapter 15). Since we do not accept his testimony with regard to the ox, we also do not accept it with regard to the sodomizer.

18.

As stated in the following halachah.

19.

For the defendant can claim: “I will pay the money when you prove that he is an acceptable witness.” We do not say: “Let us follow the assumption that the witness, like all Jews, is acceptable unless it is proven otherwise,” for the defendant can say: “The money is presently in my possession. Let it remain there unless it is proven that I owe it to the other person.”

20.

For a person disqualified as a witness is also disqualified as a judge (see Chapter 16, Halachah 4).

21.

The Siftei Cohen 34:33 states that his word is accepted even with regard to matters which he observed before he repented.

22.

Our translation follows the text suggested by the Kessef Mishneh. He interprets this as referring to a situation where the person does not receive lashes, because a warning was not given.
The Sefer Me’irat Einayim 34:72 and the Siftei Cohen 34:34 emphasize that the transgressor is not reinstated as a witness until testimony was given in court that he repented. Until that time, legal documents he signed are invalid. Although there are opinions which differ, this perspective is borne out by the ruling of the Shulchan Aruch (Choshen Mishpat 46:26).

23.

Hilchot Sanhedrin 17:7 states: “Whenever a person sins and is lashed, he returns to his [original state of] acceptability, as [implied by Deuteronomy 25:3]: ‘And your brother will be degraded before your eyes.’ Once he is lashed, he is ‘your brother.’”
In his Kessef Mishneh, Rav Yosef Karo notes that there are texts of the Mishneh Torah that read: “Whenever a person was obligated to receive lashes, he is considered as an acceptable witness, when he receives lashes in court.” Rav Yosef Karo states that he prefers the version used above because: a) it also deals with situations where the person does not actually receive lashes, and b) it implies that if a person receives lashes, but does not repent, he is not reinstated as a witness. In his Shulchan Aruch (Choshen Mishpat 34:29), however, he does not mention repentance in this clause.

24.

I.e., perform actions which indicate that he sincerely regrets his previous conduct, as the Rambam illustrates in the following halachot.

25.

See the notes to Chapter 10, Halachah 4.

26.

The Ramah (Choshen Mishpat 34:29) states that repentance is required only when a person frequently transgressed. If, however, he transgressed only once and returned the money on his own volition, that is sufficient.

27.

And not because of the compulsion of the court. If the court compels them, we have no proof that they themselves regretted their actions (Kessef Mishneh).
The promissory notes must be torn up, because the obligation to pay interest is stated in the promissory note itself. In such an instance, the borrower is still required to return the principal. Nevertheless, the loan is given the status of a debt supported by a verbal commitment alone. As such, the creditor cannot expropriate property sold to others.

28.

Although it is permitted - indeed, according to Scriptural Law, even a mitzvah – to lend to gentiles at interest, as stated in Hilchot Malveh ViLoveh 5:1-2, an exception is made in this instance, because of the tendency that was already ingrained in the person’s character.
The Shulchan Aruch (Choshen Mishpat 34:29) adds that the lender must also return the money which he took at interest. If he does not know from whom he took the money, he should give it to the community to use for the public benefit.

29.

This phrase is added on the basis of the authoritative manuscripts and early printings of the Mishneh Torah.

30.

For we fear that this will lead to them playing for money again.
The Ramah (Choshen Mishpat 34:31) quotes opinions that state that the gamblers must also return any money that they won before they are reinstated as acceptable witnesses.

31.

Where there is no question of theft involved. In this instance, as well, the Ramah (ibid.) quotes opinions that require that any doves stolen be returned.

32.

The Ramah (Choshen Mishpat 34:33) emphasizes that the severe measures the Rambam requires are necessary before the person is reinstated only when the person derived financial benefit from committing a transgression. If, however, a person violates a transgression that does not bring him financial gain, it is sufficient for him to make a public admission of his guilt and promise never to transgress again.

33.

Making such a statement in a court that is familiar with him is not possible, for they will never require him to take an oath.

34.

I.e., check to make sure that there are no lesions in the lungs or other factors that render the animal as trefe; alternatively, check the knife which he uses to slaughter the animal.

35.

If the butcher does not sell the meat, but merely slaughters an animal for another person and tells him that it is kosher when it in fact is non-kosher, he is also disqualified as a witness. Nevertheless, since he did not garner any financial gain from his transgression, he need not undertake all the measures the Rambam continues to describe. Instead, it is sufficient for him merely to repent (Kessef Mishneh).

36.

Since he sells non-kosher meat to others, we can assume that he partakes of it himself. This is a prohibition punishable by lashes. Hence he is disqualified as a witness (Kessef Mishneh).
Selling the non-kosher meat itself - even though it involves the violation of the prohibition “Do not place a stumbling block before the blind” - does not disqualify the butcher as a witness. The rationale is that this prohibition is not punishable by lashes (ibid.).

37.

It is necessary for him to clothe and robe himself in black to humble his heart and cause him to regret having caused others to sin (Sefer Me’irat Einayim 34:84).

The Mishneh Torah was the Rambam's (Rabbi Moses ben Maimon) magnum opus, a work spanning hundreds of chapters and describing all of the laws mentioned in the Torah. To this day it is the only work that details all of Jewish observance, including those laws which are only applicable when the Holy Temple is in place. Participating in one of the annual study cycles of these laws (3 chapters/day, 1 chapter/day, or Sefer Hamitzvot) is a way we can play a small but essential part in rebuilding the final Temple.
Download Rambam Study Schedules: 3 Chapters | 1 Chapter | Daily Mitzvah
Rabbi Eliyahu Touger is a noted author and translator, widely published for his works on Chassidut and Maimonides.
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The text on this page contains sacred literature. Please do not deface or discard.