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Kidushin, 66

KIDUSHIN 66 - sponsored by a generous grant from an anonymous donor. Kollel Iyun Hadaf is indebted to him for his encouragement and support and prays that Hashem will repay him in kind.


QUESTION: Abaye lists three cases in which the testimony of a single witness is accepted: when the single witness testifies that "you ate Chelev," when he testifies that "your Taharos became Tamei," and when he testifies that "your ox was Nirva." The Gemara explains why Abaye needs to teach in each of these cases that a single witness is believed, when we could have derived that he is believed from one of the cases.

RASHI (DH v'Tzericha) explains that we need to be taught in each case that the silence of the other person (the subject of the Ed Echad's testimony, such as the person who ate Chelev, or the person who owns the Taharos or who owns the ox) is considered Hoda'ah (admission). We might have thought that Shetikah (silence) can only be judged as Hoda'ah in certain circumstances, and therefore Abaye needs to teach that it is considered Hoda'ah in all cases.

It seems from the words of the Gemara that the reason the person is Chayav is due *not* to the Ed Echad's testimony, but due to his own admission. Abaye, though, is telling us that the *Ed Echad* is believed! How is Abaye's statement to be reconciled with the words of the Gemara (in its "Tzerichusos")?

Moreover, the Gemara then cites a Machlokes between Rava and Abaye. Abaye maintains that the testimony of an Ed Echad can be used even for a "Davar she'b'Ervah;" the single witness may testify that a man's wife committed adultery. Rava argues and maintains that "Ein Davar she'b'Ervah Pachos mi'Shenayim" (a matter of a prohibited relationship requires at least two witnesses). If Abaye's reasoning for why an Ed Echad is believed is because of the admission, Hoda'ah, of the other party, then what is Rava saying? Abaye is discussing Hoda'ah, while Rava is not addressing the issue of Hoda'ah at all! Perhaps Abaye agrees with Rava that "Ein Davar she'b'Ervah Pachos mi'Shenayim" in normal cases, but in a case where there is Hoda'ah, we do not need any testimony at all! In addition, why should Rava argue with Abaye, since, in this case, testimony is not necessary?

ANSWERS: Based on these questions, the Rishonim have a fundamental Machlokes as to how, and when, the testimony of an Ed Echad is accepted. We will briefly summarize each view, and then we will explain the Gemara in light of each view.

1. RABEINU TAM concludes that our Sugya is not teaching anything about accepting the testimony of an Ed Echad, but rather it is teaching that "Shetikah k'Hoda'ah" -- silence on behalf of the defendant is considered as admission to the claim against him.

2. The RITVA and most other Rishonim maintain that our Sugya is discussing the acceptance of the testimony of an Ed Echad.

3. TOSFOS (DH Rava) and the RAN maintain that the two concepts are, in some way, intertwined, such that the testimony of the single witness and the Hoda'ah of the defendant work simultaneously.

(a) RABEINU TAM. While the "Tzerichusos" of the Gemara imply that the issue of the Gemara is whether or not "Shetikah k'Hoda'ah," as Rabeinu Tam maintains, why, though, is it necessary to have the defendant's Hoda'ah? The testimony of an Ed Echad is believe with regard to Isurim, so why should his testimony not suffice, even without Hoda'ah?

TOSFOS (65b, DH Nitme'u) quotes the Gemara in Gitin (54b) which describes a case of a person who is working with someone else's food products, who testifies that those foods became Tamei. The Gemara there states that a person is not always believed in such a situation. If he is presently working with the food, then he is believed. If he is no longer working with the food but has finished all of the work on it and handed it over to the owner, he is not believed. The reason he is believed while he is still working with the food is because it is "b'Yado," in his ability, to make the food Tamei, and thus he is believed when he says that the food became Tamei.

Rabeinu Tam concludes, based on the Gemara in Gitin, that the testimony of an Ed Echad is fundamentally different that the testimony of two Edim. When two Edim testify, we accept whatever they say due to their trustworthiness. A single witness, in contrast, is not believed due to his trustworthiness (in cases of Isurim, where his testimony is accepted), but rather he is believed based on the logic of "b'Yado." Without "b'Yado," his testimony would not be accepted.

Rabeinu Tam explains, therefore, that since there is no element of "b'Yado" in any of the cases mentioned in our Sugya (it is not within the Ed's ability to make the other person eat Chelev, or to be Metamei the other person's Taharos, or to make the other person's ox a Nirva), it is necessary to rely on "Shetikah k'Hoda'ah" in order to substantiate the testimony of the single witness!

(b) RITVA. The Ritva explains our Sugya as discussing the trustworthiness of a single witness. According to the Ritva, two things need to be understood: the "Tzerichusos" of the Gemara (which imply that the Sugya is discussing "Shetikah k'Hoda'ah" and not the trustworthiness of a single witness), and the Gemara in Gitin mentioned above (which implies that without the logic of "b'Yado," the testimony of a single witness is not acceptable).

The Rishonim (see Ran) explain that the Gemara in Gitin is unique and it does not apply to the cases in our Gemara. Since the worker's job is to ensure that the food is prepared properly and does not become spoiled or ruined, there is a form of a Chazakah that he did his job and nothing went wrong, and that he did not let the food become Tamei. Therefore, in order to accept his testimony that the food did become Tamei, the logic of "b'Yado" is necessary, for without "b'Yado," his testimony is contradicted by the Chazakah.

Regarding the "Tzerichusos" of our Gemara, the Gemara is not saying that we believe the Ed Echad's testimony only because of "Shetikah k'Hoda'ah." Rather, the Gemara is giving reasons why we may assume that the defendant did not *deny* the Ed Echad's claim. Even though an Ed Echad's testimony is normally accepted in cases of Isurim, if the subject of his testimony denies what the witness says, then the testimony of the witness is *not* accepted (it is considered one witness against one witness, and they cancel each other out). We might have thought that the reason the defendant is not responding to the Ed Echad's claim is because he feels that the single witness is speaking nonsense and is not worth answering. Therefore, we must be taught that his silence is to be viewed as Hoda'ah (or at least that he is not arguing with the Ed Echad's testimony).

(c) RAN. The Ran agrees with the view of most Rishonim that the testimony of an Ed Echad is believed even without the logic of "b'Yado." However, the Ran explains the "Tzerichusos" of the Gemara in the same manner as Rabeinu Tam -- i.e. that they are reasons for saying "Shetikah k'Hoda'ah," and he introduces a new understanding of why the testimony of an Ed Echad is accepted.

The Ran first points out that the concept of "Shetikah k'Hoda'ah" of our Gemara applies only to cases of Isurim. Such "Shetikah," silence, could not be viewed as Hoda'ah with regard to other laws, such as cases dealing with monetary matters. The degree of Hoda'ah necessary to take money away from someone is not accomplished by merely not answering an Ed Echad's claim. Moreover, the lack of response to an Ed Echad's claim cannot even be considered a Hoda'ah to create a situation of "Shavya a'Nafshei" (wherein a person, through his own explicit admission, makes something Asur to himself), which is a type of Hoda'as Ba'al Din in reference to Isurim. The Hoda'ah by itself has no Halachic ramifications.

On the other hand, the Ed Echad's testimony alone is not sufficient either. The Ran proves this from the "Tzerichusos" of the Gemara, as mentioned above.

The Ran, therefore, teaches that there is a new, unique type of Hoda'as Ba'al Din. It is not a Hoda'ah that works through the mechanism of admission, but rather a Hoda'ah that enables the testimony of an Ed Echad to be believed. Since only one witness is present, we cannot accept his testimony as we accept the testimony of two witnesses. Rather, the testimony of the single witness needs something else to strengthen it in order to give it validity. It is the silence of the defendant that gives strength and credence to the Ed Echad's claim. These two factors together -- the testimony of the Ed Echad and the silence of the defendant -- combine to give the Ed Echad the trustworthiness that is needed in order for us to accept his testimony.

The Ran goes on to explain the Machlokes between Rava and Abaye in accordance with this explanation. Although Abaye requires that there be Hoda'ah, it is not through the mechanism of Hoda'ah (Hoda'as Ba'al Din) that the claim is substantiated. Rather, the claim is substantiated through the new Ne'emanus of "Hoda'ah l'Ed Echad" ("admission to the testimony of a single witness"). Rava argues with Abaye. If Abaye held that the Ed Echad alone could be relied upon, then Rava perhaps might have agreed. But since Abaye is discussing a case of Davar she'b'Ervah, Rava rejects Abaye's new form of Ne'emanus and maintains that two Edim are necessary.

(According to the approach of Rabeinu Tam, the Machlokes between Rava and Abaye still requires explanation.)


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