Was She Really Married?
‘One Said Two… The Other Said Three…’
(Shevuos 48a)
Huna b. Judah on our daf states that if two witnesses offer testimony as to what they saw, though their testimony is not exactly in synch with each other, they are accepted as valid witnesses in that matter. In the case cited, both witnesses saw the New Moon; however, one saw it as being two goads (a stick used by shepherds to drive cattle) high in the sky, while the other testified that it was three goads high.
We accept their testimony because their estimates vary only slightly. However, if one said it was at three goads high and the other said five, we invalidate their testimony, as the disparity is too great and perhaps one of the two is lying. R. Huna noted that nevertheless, they each may be included in another testimony – only not with each other.
Above (47b), we cited a case of two pairs of witnesses who contradicted each other. In that instance, R. Huna would allow either pair to come and testify jointly in another matter. However, we will not accept the joint testimony where one from each of the contradicting pairs are newly paired together.
In The City Of Brisk
The Shach (Choshen Mishpat 31:1) cites the following deliberation that took place in the city of Brisk in Lita (Lithuania). Some sages maintained that this halacha applies only in a case of two pairs of contradicting witnesses. It is only in such instance that we rule that one pair is invalid with all certainty, albeit we don’t know which pair, because they were opposed by a different pair of valid witnesses.
However, in the case of a pair of witnesses who came to court to testify and contradicted each other, neither is rendered as an invalid witness because he was only contradicted by an eid echad – a single witness. Their view is that 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), however, disproves their assertion from our Gemara. Our Gemara (as explained by Rashi s.v. “mai lav”) indicates that if two witnesses come to testify about the New Moon and they contradict each other, they may never testify as a pair again.
However, the Gemara does allow that each may join in another testimony with another witness. Here, they are each being contradicted by a single witness only.
Capital Punishment
The She’elas Dovid (at the end of the sefer, in the hashmatot – omitted items – section) raises the following interesting question in light of R. Huna’s halacha that each pair of contradicted witnesses may offer testimony in another matter. 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 those two witnesses who opposed him. Because in his view the woman was never halachically married, he should be exempt from the death penalty. The She’elas Dovid leaves the question unresolved.
Rabbi Zev Dickstein (editor of Al Hadaf) questions the logic of exempting this individual from the death penalty. Since the testimony he and his fellow witness gave was a separate matter, they are presumed to be valid witnesses, and the woman, as well, is presumed to be a married woman in the eyes of both beth din and the world.
