Crossing The Divide
‘Then The Two Men Shall Stand…’
(Bava Basra 155b)
Our sugya explains that a minor cannot serve as a witness, as the Torah states (Devarim 19:17), “Then the two men shall stand.” The fact that the Torah uses the word “men” (when the verse would make perfect sense without it) teaches us that only men, not minors, are qualified to testify.
There is a mitzvah to determine the beginning of each month according to witnesses who testify that they have seen the new moon. This mitzvah was in practice until Hillel the second (320-385) convened a special beis din to fix our present calendar out of the fear that a time would come when we would be unable to determine the new moon to various reasons including the lack of an expert beis din.
A Unique Perplexity
The Minchas Chinuch (Rabbi Yosef Babad 1801-1874) presents the following interesting scenario: Two young men come before beis din at the end of Nissan, claiming they saw the new moon. That day, as a consequence of their testimony, should therefore be announced as the 1st of Iyar. Beis din, however, discovers that one of the witnesses is only 12 years old but will celebrate his 13th birthday on the 1st of Iyar.
As long as beis din does not announce that day to be Rosh Chodesh, the witness remains a minor. Once beis din accepts their testimony, though, that day is Rosh Chodesh, which means that the minor really had turned 13 that day. Can beis din accept his testimony?
The Minchas Chinuch asserts that the matter is up to the beis din. They can, but are not obligated to, accept the testimony (according to one of Tosafos’ answers in Makkos 2).
Another question related to our sugya arises from Rashi’s commentary on Bava Kama 88a (s.v. “Pesulah l’edus”). Rashi explains that minors cannot testify because minors cannot be punished by beis din if their testimony is revealed to be false, and the halacha is that a beis din may only accept witnesses that can be refuted.
Why, though, does Rashi offer this explanation considering that we already have a verse (“Then the two men shall stand”) which teaches us that minors cannot testify? And conversely, if Rashi’s reasoning is sound, what need is there to derive the rule about minors from a verse? Acharonim offer several solutions:
Meant No Harm
Rabbi David Rapaport, author of Daas Kedoshim, suggests a case that necessitates Rashi’s reasoning in addition to the verse: If a beis din accepted the testimony of two witnesses and a doubt was later raised whether they were adults or minors, we must behave as the halacha requires in any instance of a doubt – to behave strictly in the case of a Torah prohibition.
According to Rashi, though, we have no need to behave strictly since a beis din cannot punish anyone for a doubtful transgression. The witnesses could have been minors when they testified and, as such, cannot be punished if their testimony is revealed to be false.
Rabbi Akiva Eiger (1761-1837) approaches the question from the other direction. Why do we need the verse if we learn the same halacha from Rashi’s reasoning? He answers that not all testimonies proven false are punishable. Someone who testified, for example, that he saw the new moon and was discovered to have lied did not mean to harm anyone physically or financially and therefore goes unpunished. We need the verse to exclude minors from testifying in any instance.