1) THE TESTIMONY OF ONE WHO IS "NOGE'A B'DAVAR"

QUESTION: The Gemara explains that Shimon cannot testify that the field which Levi is holding does not belong to Yehudah, because he is "Noge'a b'Davar." He does not want Yehudah to win the case against Levi because that will make Yehudah the one who is Muchzak on the property.

The RASHBAM asks, why will Yehudah become Muchzak if he wins the case? If Shimon eventually takes Yehudah to court, and Yehudah's witnesses cannot override those of Shimon, Beis Din will take the field away from Yehudah in order to rectify the error they made when they gave it to Yehudah when he was in litigation with Levi!

The Rashbam answers that Beis Din rectifies its previous ruling only when their ruling in the same case was incorrect. In the case of the Gemara, though, there are two court cases -- the first case was between Yehudah and Levi, and the second case was between Shimon and Yehudah. Since the ruling in the first case was valid and not in error, Beis Din will not rectify it and take the field away from Yehudah, even though the second ruling affects the outcome of the first (that is, had Beis Din known that there was a doubt whether Shimon or Yehudah owned it, they would not have given it to Yehudah in the first place).

The Rashbam then writes that Shimon is Noge'a b'Davar in the case of Yehudah versus Levi because he wants Levi to win so that he will be able to bring Levi to court later and take the property from him. After that point, Yehudah will not be able to take the property from Shimon even if he brings witnesses who contradict Shimon's witnesses, for two reasons. First, Shimon already invalidated Yehudah's witnesses, and that testimony of invalidation remains in effect even after Yehudah takes Shimon to court to claim the land from him. Second, after Shimon wins his case against Levi, he will occupy the land, and thus Beis Din will tell Yehudah, "ha'Motzi me'Chaveiro Alav ha'Re'ayah."

The Rashbam's concluding statement contradicts his original statement. If it is true that Shimon is not merely trying to remove Yehudah from the land but he is also trying to settle himself on the land through intervening in the case of Yehudah versus Levi, then there is no question from the Gemara which says that Beis Din rectifies its previous mistake. Even if Yehudah wins the case because of Beis Din's mistake and Beis Din removes him from the land, Shimon will not be as satisfied as he would be if Levi were to win the case. If Levi wins, then Shimon will have rights to the land, either because he has already invalidated Yehudah's witnesses or because he will already be occupying the land when he takes the land from Levi. Why, then, does the Rashbam write that the Halachah that Beis Din rectifies its mistake contradicts the Gemara?

Moreover, if it is true that Shimon can invalidate the witnesses of Yehudah for all future testimony, why does the Rashbam explain earlier that Shimon gains from his testimony on behalf of Levi only because he prevents Yehudah from occupying the land and keeping it with the claim of "ha'Motzi me'Chaveiro Alav ha'Re'ayah"? Shimon has a much greater gain: by testifying now to prevent Yehudah from taking the land, he will actually win the court case later against Yehudah because he now invalidates Yehudah's witnesses! (M. KORNFELD) (It is perplexing that none of the Rishonim or Acharonim ask this question on the Rashbam.)

ANSWER: Apparently, this is another incident wherein the Rashbam originally explained the Gemara in one way and then changed his explanation, and he inserted the new explanation into his commentary before the original explanation (see Insights to 30b). The Rashbam indeed expresses two contradictory explanations. Originally, he explained the Gemara by saying that Shimon is Noge'a b'Davar because he wants to invalidate Yehudah's witnesses so that if Yehudah later wants to have a court case against him (Shimon), Yehudah's witnesses will not be accepted and Shimon will win the case. Even if Yehudah's witnesses will be accepted, Shimon will be Muchzak since he will be occupying the field that he obtained from Levi. The Rashbam said this in order to explain the Gemara in its most simple sense, without having it contradict the Gemara (31b) that says that Beis Din needs to rectify its mistaken ruling ("Anan Achsinei, Anan Maskinan Lei").

The Rashbam later changed his mind and rejected his original explanation. Instead, he explained that Shimon is trying only to keep Yehudah from occupying the land. Even though this creates a problem with the Gemara that implies that even if Yehudah wins the case, Beis Din will rectify its mistake and remove Yehudah from the land, the Rashbam gives an answer to explain why, in this case, Beis Din will allow Yehudah to stay on the land if Shimon does not testify, and therefore Shimon is Noge'a b'Davar because he is trying to make Yehudah not remain on the land and not win the case against Levi.

Why does the Rashbam reject his original explanation, that Shimon is trying to invalidate the witnesses of Yehudah? That seems to be a very straightforward benefit that Shimon gets from testifying! The answer is that even if Beis Din would accept the testimony of Shimon with regard to Yehudah (that is, Beis Din will not let Yehudah take the property from Levi), nevertheless it is clear that Beis Din will not accept the testimony of Shimon with regard to Shimon himself. Rather, if Shimon later brings Yehudah to court, the very same testimony that was accepted earlier (when Shimon invalidated Yehudah's witnesses) will be totally irrelevant to the case, and Beis Din will assume that no testimony was ever presented to invalidate the witnesses of Yehudah, since Shimon is a Noge'a b'Davar for that testimony. In other words, Shimon's testimony is believed only insofar as Yehudah's case against Levi is concerned, but not with regard to Yehudah's case against Shimon. With regard to the case between Yehudah and Levi, Shimon is not considered Noge'a b'Davar as a result of his desire to invalidate Yehudah's witnesses, because even if he does want to invalidate Yehudah's witnesses in the case of Yehudah versus Levi, it will not benefit him in any way; in the later case of Yehudah versus Shimon, Beis Din will ignore that testimony completely.

The same applies to the second point that the Rashbam made in his original explanation. The Rashbam wrote that Shimon wants Levi to retain the land so that when he (Shimon) ousts Levi from the land, he (Shimon) will be Muchzak. He wants to be Muchzak so that even if Yehudah brings more witnesses (besides the original ones), Shimon still will win the case because it will be a case of "Trei u'Trei" (two witnesses against two witnesses), in which case the one who is Muchzak (i.e. Shimon, who obtained the land from Levi) gets to keep the land. The Rashbam later decided that this is incorrect. Even though Shimon removes Levi from the land by showing that the one who sold it to Levi was a thief, Beis Din will not allow Shimon to remain on the land because Beis Din will say that perhaps the land is Yehudah's. Shimon will claim that Yehudah had the land after Levi and that Beis Din rejected Yehudah as the owner of the land. Beis Din will respond that "we rejected Yehudah only because of you, Shimon. And now, if you are evicting Levi in order that you can occupy the land, as far as you are concerned we must ignore your previous testimony, and again it will be a Safek whether the land was Levi's or Yehudah's, with regard to whether you can now occupy the land. We will not allow you to occupy the land because we will not rely on your testimony for that."

That is why the Rashbam changed his mind. The Rashbam explained instead that Shimon is not trying to let himself have the land. Rather, he is trying merely to keep Yehudah off of the land, and that is something that he will accomplish regardless of whether the case is between Shimon and Yehudah or between Levi and Yehudah. If Shimon is believed to keep Yehudah off the land when it is Yehudah versus Levi, then later when it becomes a case of Shimon versus Levi, Shimon will be able to evict Levi from the land. Even though Beis Din will not put him (Shimon) on the land, Beis Din also will not put Yehudah on the land. If one asks that Beis Din should not believe Shimon with regard to his case against Yehudah, the answer is that indeed Beis Din does not believe Shimon, but that does not mean that Yehudah is now able to occupy the land. Yehudah is still not on the land, because in practice Yehudah never actually occupied that land. Hence, whether or not Beis Din believes Shimon with regard to the case, Yehudah in practice is not on the land, and thus Shimon gains because Beis Din will not say "let the land remain in the hands of the person occupying it" and thereby let Yehudah keep it. Shimon has accomplished his goal of keeping Yehudah off the land by testifying in the case of Yehudah versus Levi. That is the Rashbam's conclusive explanation.

Perhaps the difference in understanding between the Rashbam's original explanation and his final explanation is as follows. Originally, the Rashbam maintained that Beis Din does not apply "Palginan Dibura." If Beis Din accepts Shimon's testimony with regard to Yehudah versus Levi, it must accept it completely, because once Beis Din rules in the case of Yehudah versus Levi that the witnesses of Yehudah are invalid (based on the testimony of Shimon), it effectively accepts that the witnesses of Yehudah are absolutely ineligible, and not that they are ineligible with regard to one case but are still valid with regard to another. Even though the principle of "Palginan Dibura" often applies such that Beis Din accepts a person's testimony with regard to how it affects others but not with regard to how it affects himself (if he is making himself a Rasha with his testimony), perhaps it applies only with regard to Isurim. With regard to cases of monetary matters, if Beis Din accepts his testimony for one matter, it must accept it completely (since he is not making himself a Rasha with his testimony), and therefore Beis Din cannot ignore his testimony with regard to its relevance to himself.

The Rashbam later changed his mind and decided that Beis Din certainly may accept his testimony with regard to only one case (Yehudah versus Levi) and not with regard to himself, and therefore the Rashbam gave a different explanation for the Gemara.

The original explanation of the Rashbam seems to be the opinion of the RAMBAN (43b), the RASHBA (43b, DH v'Amur, and DH uv'ha'Hi), and the NIMUKEI YOSEF, who all explain that Shimon's benefit through his testimony against Yehudah is not just that he is taking the land away from Yehudah but that he is giving it to himself. The TUMIM (37:19) also points out that this is evident from the Rashbam later (44a, DH Mi Dami), who seems to follow this explanation. On the other hand, RABEINU YONAH (44a) seems to follow the second explanation of the Rashbam, that the testimony of a person who is Noge'a b'Davar is not accepted when it is pertinent to him.

It seems, however, that the basis for this difference of understanding goes even further. The Tumim and other Acharonim ask, how can the Rashbam and these Rishonim suggest that a person may give testimony which is pertinent to him in part, and once he is believed with regard to the person about whom he is testifying, he is believed as well with regard to himself? Why should he be believed for the part that relates to himself? He certainly is Noge'a b'Davar! What is the source for saying that he is believed with regard to himself?

Perhaps the source for this is the Gemara (43b) which says that if Shimon testifies that the field belongs to Levi, he may no longer claim the field for himself, and therefore he is not Noge'a b'Davar and should be able to give testimony that it belongs to Levi. Why does Shimon no longer have a claim to the field? The Rashbam here explains that it is because of Hoda'as Ba'al Din. Once Shimon says that it belongs to Levi, he has given his Hoda'as Ba'al Din, his own admission, that he no longer has any rights to the land. Once Beis Din establishes that Shimon has no rights to the land, it makes no difference whether it belongs to Levi or to Yehudah; Shimon will never be able to claim it for himself. That is what the Gemara means when it says that if he says that it belongs to Levi, Shimon cannot take it away from Levi afterwards, and, therefore, from now on his testimony is accepted.

The other Rishonim (such as the Rashba), however, have a different Girsa there. Instead of the Girsa, "if he testifies that it belongs to Levi, can he later take it away from Levi?" their Girsa reads, "if he testifies for Levi, can he later change his mind?" It seems that according to that Girsa, the Gemara is not saying that there is a Hoda'as Ba'al Din here and that is why Shimon cannot claim the field for himself later, but rather it is saying that Shimon is not allowed to change his mind about the testimony that he gave. If he testified for Levi, he cannot change that testimony. It is not because Shimon admits that the field does not belong to him, and that is why he cannot take it away from Levi. Rather, Shimon cannot remove the testimony that he already said against himself, because it was already accepted as testimony. It is clear from the words of the Rashba, Ran, and Nimukei Yosef (on 43b) that this is how the other Rishonim understand the case. The Rashba (DH d'Amar Yadana) writes that "we see from our Sugya that a person who is Noge'a b'Davar can testify if Beis Din determines that he does not have any Negi'ah in this testimony; that is why we accept the testimony when Shimon says that the land belongs to Levi."

What does the Rashba mean? The reason why Beis Din accepts Shimon's testimony when he says that the land belongs to Levi is that he has just admitted that the land is not his and thus his testimony is not relevant to himself, and he is not Noge'a b'Davar. It is not that he is Noge'a b'Davar but Beis Din does not think that his Negi'ah is involved in his testimony.

The TUMIM (end of 37:21) asks this question. He answers, as explained above, that the Rashba learns that the Gemara is not saying that there is a Hoda'as Ba'al Din. When Shimon "admits" and testifies that the land belonged to Levi, he certainly may come back later and claim that the land belongs to him and that he did not really mean it when he said that it belonged to Levi, because he has a perfect excuse for why he said earlier that it belongs to Levi: he simply did not want Yehudah to get hold of the land. He testified that the land belonged to Levi only because he did not want Yehudah to get it, since he would not have been able to get it from Yehudah. Hence, later, he certainly may claim that the land is really his and that he did not really mean that it belonged to Levi when he testified earlier.

Why, then, does the Gemara say that if Shimon testifies that the land belongs to Levi, he may no longer change his mind and say that it belongs to him? The reason is that it is a rule in the laws of testimony that "he may not change his mind" (as the Rashba's Girsa in the Gemara reads). This means that once Beis Din accepts the testimony of Shimon (together with another witness) that the land belongs to Levi, Shimon cannot come later and change that testimony and say that the land really belongs to him. Since there were two witnesses (Shimon and the other witness) who testified earlier that the land belongs to Levi, Shimon cannot say now that the land belongs to him. Once his testimony has been accepted, he cannot contradict it. Thus, the Gemara says that before the moment at which he originally gave testimony for Levi, Shimon still was Noge'a b'Davar. Even though his testimony was not a Hoda'as Ba'al Din and he could later claim that the land belongs to him, something else prevents Shimon from changing his testimony, and that is the rule that after a person's testimony has been accepted he cannot change that testimony.

However, this means that only after his testimony is accepted he is no longer Noge'a b'Davar. How can his testimony be accepted while he is Noge'a b'Davar such that after his testimony is said he no longer will be Noge'a b'Davar because he cannot change his testimony? It is true that if Beis Din accepts his testimony, then afterwards he will no longer be Noge'a b'Davar. How, though, does Beis Din accept it in the first place, while he is still Noge'a b'Davar? If there is a rule that the testimony of a person who is Noge'a b'Davar is like the testimony of a Karov (relative) and is not acceptable, then Shimon's testimony cannot be accepted in the first place to create a situation in which he will not be Noge'a b'Davar (by taking away his Negi'ah by preventing him from changing his mind)!

It must be that if Beis Din decides that if it is not because of a Negi'ah that Shimon is giving his testimony (because if Beis Din accepts it, then afterwards he no longer will be able to gain anything from the testimony), then Beis Din may accept his testimony and make him no longer Noge'a b'Davar.

This is the intention of the Rashba, Ran, and Nimukei Yosef. This Gemara teaches that Beis Din may accept the testimony of a Noge'a b'Davar as long as Beis Din determines that it is not because of the Negi'ah that he is saying the testimony. That is why Beis Din accepts the testimony of Shimon before he is removed from the Negi'ah; Beis Din accepts the testimony while he still can say that the land is his, because after Beis Din accepts the testimony he will not be able to say that it belongs to him.

This Gemara also teaches the second Chidush, that if Beis Din decides, for whatever reason, that Shimon is not saying his testimony because of a Negi'ah, then his testimony becomes a full-fledged testimony and it can be used even against Shimon himself. One might have thought that his testimony is accepted only with regard to Yehudah, but not with regard to himself (to say that the land does not belong to him), since a person cannot testify against himself. If there is no Hoda'as Ba'al Din, then his testimony against himself certainly should not be effective. This Gemara teaches that this reasoning is incorrect; rather, if, for any reason, Beis Din decides that Shimon is not saying his testimony because of his Negi'ah, Beis Din must accept it absolutely, and once Beis Din accepts it as valid testimony it is accepted for all matters, even for matters that are detrimental to Shimon.

This explains the reasoning behind the words of the Rashbam and other Rishonim who say that Beis Din accepts Shimon's testimony if he says that Yehudah's witnesses are invalid, such that even when Shimon himself has a case against Yehudah, the testimony that Yehudah's witnesses are invalid remains. Their proof is from the Gemara (according to their Girsa and their understanding), which says that accepting the testimony of a person is subject to the decision of Beis Din, and once Beis Din accepts it, it can be brought to bear even against the witness himself. His own testimony can be used against him. This is the strongest proof that once Beis Din accepts testimony, that testimony affects even those people who originally were Noge'a b'Davar to the testimony.

The Rashbam is saying that if Beis Din decides that Shimon's testimony to invalidate Yehudah's witnesses was genuine and was not because of his Negi'ah (in having the land not go to Yehudah), then even though it is possible that his testimony will affect Shimon himself in the future, such as when Yehudah brings those witnesses against Shimon, nevertheless Shimon's testimony is accepted absolutely, even when it has a bearing on Shimon.