Was She Really Married?
‘One Said Two… The Other Said Three…’
R. Huna b. Judah on our daf states that if two witnesses testify, their testimony is believed even though their words do not exactly align. The case the Gemara gives is that of two witnesses to the new moon, one of whom said it was two goads high in the sky (a goad was a stick used by shepherds to drive their cattle) while the other testified that it was three goads high.
We accept their testimony because their estimates vary only slightly. If they vary more – for example, one said it was three goads high and the other said it was five goads high – we don’t accept their testimony as we fear one of the two may be lying. R. Huna, however, argues that each one may nevertheless join another witness whose recollection (more closely) matches his.
The Gemara (47b) discusses a case of two pairs of witnesses who contradicted each other. R. Huna would not allow one from each set to join together to offer testimony.
In The City Of Brisk
The Shach (Choshen Mishpat 31:1) writes of the following argument that was made in the city of Brisk in Lita (Lithuania): Only members of two pairs of contradictory witnesses cannot join together since one set is completely invalid having been opposed by a different pair of valid witnesses. Two contradictory witnesses, however, are not rendered invalid since each one was only contradicted by an eid echad – a single witness. To disqualify a person as a witness, there must be contradictory testimony of two witnesses.
The Vilna Gaon Disagrees
The Gra (Choshen Mishpat ad loc. 1) disagrees with this theory based on our Gemara. As explained by Rashi (s.v. “mai lav”), our Gemara indicates that if two witnesses come to testify about the new moon, they may never testify as a pair again if they contradict each other. But the Gemara allows each one to testify with another witness.
She’elas Dovid (in the hashmatot) raises an interesting question in light of R. Huna’s ruling. He offers the following scenario. Two pairs of witnesses contradicted each other in court. Later on, one of the witnesses committed adultery with a woman whose kiddushin took place in the presence of the two witnesses who opposed him. Because the woman was never halachically married in the view of this witness, should he be exempt from the death penalty? He leaves the question unresolved.
Rabbi Zev Dickstein (editor of Al Hadaf) questions the logic of exempting him from the death penalty. Since the witness’ testimony was concerning a separate matter, they should be presumed to be valid witnesses and the woman should therefore be considered a married woman.