1) DIFFERING TESTIMONY FROM TWO WITNESSES ABOUT ONE EVENT

QUESTION: The Gemara relates an incident in which one witness testified about a loan that took place on an "upper porch," and another witness testified about a loan that took place on a "lower porch." Rebbi Chanina said that Rebbi accepted their testimony about the loan.

RASHI writes that this ruling follows the view of Rebbi Yehoshua ben Korchah, who says that the two witnesses do not have to see the event at the same time (they can testify about two different events).

Rashi continues and says that Rebbi is teaching that Beis Din accepts their testimony even though the two witnesses contradict each other with regard to the Bedikos, as Rav Yehudah rules.

Rashi seems to combine two incompatible explanations. The Gemara (at the beginning of the page) says that Rebbi Yehoshua ben Korchah discusses a case in which witnesses do not contradict each other, but they give testimony about two different events which both might be true. Rav Yehudah, on the other hand, discusses a situation in which two witnesses testify about the same event (the event they saw together), and one of them describes what happened differently from the other. How does Rashi understand the case of the "upper porch" and "lower porch"? If, in that case, the witnesses are testifying about what took place at two different times, then he should write simply that Rebbi follows the view of Rebbi Yehoshua ben Korchah, and he should not mention Rav Yehudah at all. If, on the other hand, the witnesses are testifying about the same event (but contradicting each other in a matter of the details), then he should mention only Rav Yehudah and not Rebbi Yehoshua ben Korchah! (RASHASH, SANHEDRI KETANAH, ARUCH LA'NER, KEREN ORAH (30b))

ANSWERS:

(a) The SANHEDRI KETANAH explains that Rashi understands that the Gemara is teaching that Beis Din accepts the testimony of the two witnesses even when it is necessary to combine the opinions of Rebbi Yehoshua ben Korchah and Rav Yehudah. For example, one witness testifies that on Sunday the lender loaned one Maneh to the borrower while standing on the upper porch, and a second witness contradicts that testimony and says that the lender was not on the upper porch at all on Sunday, but rather on Monday he loaned him one Maneh while standing on the lower porch. In such a case, not only are the witnesses testifying about different events (different loans), they are also contradicting each other (with regard to where the loans took place). Therefore, Beis Din can accept their testimony only if the Halachah follows Rebbi Yehoshua ben Korchah who combines testimony about different loans, *and* if the Halachah follows Rav Yehudah, who says that Beis Din accepts testimony of two witnesses even when they contradict each other in details of the Bedikos.

This explanation, however, is problematic. How does Rashi know that this is the case the Gemara is discussing, and how does he know that in such a case Beis Din accepts the testimony of the witnesses? Moreover, one witness is contradicting the testimony of the other entirely, saying that the loan to which the first witness attests never took place. Such a contradiction constitutes not only Hakchashah in the Bedikos, but it is a complete Hakchashah of the entire testimony of the witness (as the SEFER HA'TERUMOS (29:4) writes in the name of the CHOCHMEI LUNIL).

(b) The SHA'AREI YOSHER (6:7) explains that every case of Hakchashah in Bedikos is a violation of the condition of "v'Hu Ed" (Vayikra 5:1) which requires that the two witnesses say testimony *together*, as required by the Rabanan who argue with Rebbi Yehoshua ben Korchah (RASHI to 30b, DH v'Akati). Since each witness is describing a slightly different event in his testimony, they are not testifying "together," as one. Therefore, if the Halachah follows Rav Yehudah, it also must follow the opinion of Rebbi Yehoshua ben Korchah.

This approach is also problematic. Why does Rashi not make this point earlier, when the opinion of Rav Yehudah is introduced? Also, how does Rashi know that Hakchashah violates the requirement of "v'Hu Ed"? Perhaps any testimony said about an event that took place at one time is considered a single testimony and fulfills the condition of "v'Hu Ed."

(c) Perhaps Rashi is not suggesting a single approach, but rather he is suggesting two different explanations for the case of the Gemara. There are two ways of explaining the Gemara. The Gemara's case involves either witnesses who testify about what they saw at two different times (two different events), or witnesses who testify about a single event and contradict each other.

Rashi first suggests that the witnesses are discussing two different events, and that is why he explains that the ruling follows the view of Rebbi Yehoshua ben Korchah. Rashi then suggests a second approach and says that the witnesses are testifying about a single event and are contradicting each other. (According to this explanation, either the words "Iy Nami" need to be added into the text of Rashi, or one must say that the second half of Rashi was taken from a second edition (Mahadura) of Rashi's commentary which the printers inserted into the text of Rashi, as one finds in a number of other places in Sanhedrin (see also Insights to Bava Kama 18:1 and Bava Metzia 12:1).

This explanation is supported by the fact that Rashi on the Rif writes only the first half of what appears in the text of Rashi on the Gemara. This is also the way the NIMUKEI YOSEF and TALMID HA'RAMBAN quote this explanation of Rashi (even though they reject the first explanation and give instead the second explanation). RABEINU YEHONASAN MI'LUNIL also makes it clear that these are two different approaches.

Why, though, does Rashi find it necessary to give two approaches? The simple reading of the Gemara certainly supports the second approach -- that the witnesses contradict each other about the *same* event, because the Gemara here is a sequel to the discussion about Rav Yehudah, and because the wording of the case imply the second approach.

The answer to this question may be found in the NIMUKEI YOSEF and CHIDUSHEI HA'RAN. They question why Rav Yehudah accepts such testimony. Rav Yehudah accepts testimony only when the witnesses contradict each other with regard to the Bedikos. The witnesses in this case (according to the simple reading), however, contradict each other with regard to the *Chakiros* (since the location of the event is one of the Chakiros). The Nimukei Yosef and others answer that two porches (an upper and a lower one) are not considered two different locations since they are in the same house. Nevertheless, the discrepancy in the testimony is considered a minor contradiction in the Chakiros, and a minor contradiction in the Chakiros is comparable to a contradiction in the Bedikos.

Another answer might be that Rebbi accepts witnesses who contradict each other even with regard to the Chakiros. Indeed, a number of Rishonim rule this way. The RA'AVAN (#10) rules this way based on Rebbi Chanina's statement (32a) that the Rabanan annulled the requirement for Chakiros in Dinei Mamonos, monetary cases, and therefore there is no difference between a contradiction in Chakiros and a contradiction in Bedikos. The SEFER HA'TERUMOS (29:4) cites some Rishonim who say that even Rav Yehudah did not mean to exclude Chakiros when he ruled that Beis Din accepts testimony of two witnesses who contradict each other in details of the Bedikos, and he mentioned only Bedikos because Bedikos and Chakiros are the same with regard to Dinei Mamonos. The TALMID HA'RAMBAN writes that the teaching of Rebbi Yehoshua ben Korchah provides a source that Beis Din may accept testimony with a contradiction in Chakiros. Although the Gemara (at the beginning of the page) writes that the testimony in the case of Rebbi Yehoshua ben Korchah is not considered contradictory, the Gemara's argument is not accepted in practice because it is more logical to compare the case of Rebbi Yehoshua ben Korchah to the case of witnesses who contradict each other with regard to the Chakiros, since they are testifying about loans that occurred at two different times. (However, the RAMBAM (Hilchos Edus 3:3) and many other Rishonim rule that Beis Din does not accept testimony with a contradiction in the Chakiros, despite Rebbi Chanina's ruling.) The ME'IRI and RABEINU YEHONASAN MI'LUNIL cite those who answer that the Gemara is not discussing witnesses who are testifying about the same event, but witnesses who are testifying about two different events, and their testimony is accepted because of Rebbi Yehoshua ben Korchah's ruling. This is apparently the source for the first approach of Rashi, that the Gemara is discussing a case of witnesses who testify about two different events (the case of Rebbi Yehoshua ben Korchah). (M. KORNFELD)

2) ONE WHO BRINGS ADDITIONAL EVIDENCE AFTER HE HAS CLOSED HIS CASE

QUESTION: In the Mishnah, the Rabanan and Raban Shimon ben Gamliel disagree about whether Beis Din accepts the evidence that a litigant brings after he has said that he has no more evidence. The Rabanan maintain that Beis Din does not accept such evidence, while Raban Shimon ben Gamliel maintains that Beis Din accepts it. The Gemara quotes Rav Dimi who says that Rebbi Yochanan ruled that a person *may* bring additional evidence for his case and say, "Let these witnesses (who were there all along) come and testify for me after," even after he has said that he has no more evidence. The Gemara asks that if Rebbi Yochanan meant to rule like Raban Shimon ben Gamliel -- who says that even after a person closes his case he may bring additional proof -- then he contradicts what he said as quoted by Rabah bar bar Chanah. Rabah bar bar Chanah says in the name of Rebbi Yochanan that the Halachah does *not* follow the view of Raban Shimon ben Gamliel in this case. The Gemara concludes by saying that Rav Shmuel bar Yehudah quotes a different statement in the name of Rebbi Yochanan: a person may bring proof until he "terminates his claims" and says "I have no more proof," at which point he may not present more proof even if he finds the proof afterwards (unless it was the type of proof that he was not able to find earlier, such as witnesses who came from abroad).

Why does the Gemara reject Rav Dimi's statement in the name of Rebbi Yochanan based on the tradition of Rabah bar bar Chanah that Rebbi Yochanan did not rule like Raban Shimon ben Gamliel? In the Gemara earlier (31a), other Amora'im do not accept Rabah bar bar Chanah's statement in the name of Rebbi Yochanan and they quote him differently. Perhaps Rav Dimi had a different tradition from Rebbi Yochanan with regard to the ruling of the Mishnah, and the tradition that he received was that Rebbi Yochanan *did* rule like Raban Shimon ben Gamliel! (SANHEDRI KETANAH)

ANSWERS:

(a) The SANHEDRI KETANAH answers that the Gemara is not rejecting Rav Dimi's tradition, because Rav Dimi indeed can argue with Rabah bar bar Chanah and say that Rebbi Yochanan *did* rule like Raban Shimon ben Gamliel. The Gemara means merely that *we* do not follow Rav Dimi, since *we* accept the statement of Rabah bar bar Chanah in the name of Rebbi Yochanan (i.e. that the Halachah follows the Rabanan and not Raban Shimon ben Gamliel).

(b) The ARUCH LA'NER answers that the Gemara's question is based on the assumption that an Amora can make a mistake about *what* he heard from another Amora, but he is not likely to invent a statement out of nothing in the name of another Amora. Therefore, the Gemara considers it unlikely that the quote that Rav Dimi ascribes to Rebbi Yochanan is accurate, since Rabah bar bar Chanah would have to argue and say that Rebbi Yochanan never made such a statement in the first place. The Gemara answers that according to Rabah bar bah Chanah, there is no need to assert that Rebbi Yochanan never made any such statement. Rather, according to Rabah bar bar Chanah, Rebbi Yochanan made the statement that Rav Shmuel bar Yehudah quotes in his name, instead of the one that Rav Dimi quotes in his name.

(c) Perhaps the Gemara is not rejecting Rav Dimi's statement in the name of Rebbi Yochanan. Rather, it is rejecting the way Rav Dimi understood the statement of Rebbi Yochanan. Rebbi Yochanan said only that a person may bring proof until he terminates his claims. Rav Dimi understood from that statement that Rebbi Yochanan rules like Raban Shimon ben Gamliel. The Gemara challenges his interpretation from Rabah bar bar Chanah's tradition that Rebbi Yochanan ruled against Raban Shimon ben Gamliel, and therefore it accepts Rav Shmuel bar Yehudah's interpretation of Rebbi Yochanan's statement (that terminating one's claims simply means that he says, "I have no more proof," as the Rabanan say).

Accordingly, the Gemara's question from Rabah bar bar Chanah is easily understood. The Gemara assumes that if it is not necessary to create a new argument about Rebbi Yochanan's ruling, then certainly we avoid doing so. Even though it is possible that Rav Dimi argues with Rabah bar bar Chanah, since it is *possible* to explain the tradition he received from Rebbi Yochanan differently and have it conform with the teaching of Rabah bar bar Chanah, that is preferable. (M. KORNFELD)

3) FORCING A LITIGANT TO GO TO A DIFFERENT COURT

QUESTIONS: The Gemara discusses a case in which two people are involved in a dispute and one of them is acting impudently with the other. The second disputant demands that the case be brought to the Makom ha'Va'ad (or "Beis ha'Va'ad," the place of the assembly of judges), while the first demands that the case be judged in their town. Rebbi Yochanan says that the second litigant may force the impudent one to go with him to the Makom ha'Va'ad. Rebbi Elazar argues and says that a person cannot be forced to spend 100 Zuz in order to determine who is the rightful owner of 100 Zuz. Rather, the first litigant may force the second to be judged in their city.

RASHI explains that the reason why one of the litigants wants to go to the Makom ha'Va'ad is that there are a lot of Talmidei Chachamim there, and he assumes that his brazen disputant will be embarrassed to make such audacious claims and demands in front of so many Talmidei Chachamim.

(a) Why does Rashi give this reason for why he wants to go to the Makom ha'Va'ad? The simple reading of the Gemara implies that he wants to go to the Makom ha'Va'ad because he has more faith in the judgment of the Beis Din in a place which has more Talmidei Chachamim. This also seems to be the implication of the following Gemara, which says that when two people are being tough with each other and one wants to be judged in the Makom ha'Va'ad and the other wants to stay in their town, they are forced to stay and be judged in the town. If the Beis Din of that town has a question about how to rule in the case, then they may send the question to the Makom ha'Va'ad. The purpose of the Makom ha'Va'ad is to clarify doubts that arise in smaller courts. This indeed is the way the RAMBAM and CHIDUSHEI HA'RAN explain the Gemara. Why, then, does Rashi explain differently? (TORAS CHAIM)

(b) Why does Rashi explain that the *defendant* seeks to take the case to the Makom ha'Va'ad *in response* to the stubbornness of the *claimant*? He should explain instead that the stubborn party is *the defendant* himself, who stubbornly insists on bringing the case to the Makom ha'Va'ad! (MAHARSHAL)

(c) If Rebbi Yochanan is discussing only a case in which the claimant is being stubborn, then how can the Gemara disprove his statement (and bring support for Rebbi Elazar's statement) from the statement of Rav Safra, who is *not* discussing a stubborn claimant! (ARUCH LA'NER)

ANSWER: Perhaps Rashi was bothered by the next statement of the Gemara. Rav Safra says in the name of Rebbi Yochanan that when two people have a dispute, one may force the other not to go to the Makom ha'Va'ad but to stay in the city. How can Rebbi Yochanan say that the case is judged in the city when Rebbi Yochanan himself says in the preceding Gemara that one litigant may force the other to go to the Makom ha'Va'ad? It is because of this question that the MAHARSHAL erases the words "Amar Rebbi Yochanan" from the text of the Gemara here. The RIF and ROSH omit these words as well.

RABEINU CHANANEL seems to take a different approach and explains that Rebbi Yochanan and Rebbi Elazar in the first Gemara do not argue with each other. Rather, Rebbi Yochanan refers to a case in which the *lender* insists on going to another city, while Rebbi Elazar refers to a case in which the *borrower* insists. The Gemara ("Itmar Nami") is saying that Rebbi Yochanan agrees with Rebbi Elazar that in a case in which it is the borrower who insists on going to a different city, the lender is not forced to go.

According to this explanation, the Gemara already knew that there is a difference between the lender and the borrower, which Rav Ashi in the following Gemara did not know (Rav Ashi assumed that it is a contradiction).

Rashi might be suggesting a different answer. The first statement of Rebbi Yochanan involves a case of "ha'Tokef Es Chaveiro ba'Din," in which one disputant is tougher than the other. The second statement involves a case in which two people are acting equally impudently with each other. Rashi explains that in the first case, one disputant is acting brazenly and is making all sorts of unreasonable demands; the other wants to go to the Makom ha'Va'ad so that his disputant will be embarrassed to act that way in front of all the Talmidei Chachamim. In contrast, when two people merely argue over the ownership of money and they make no unreasonable demands of each other, and one of them wants to go to the Makom ha'Va'ad because there are greater Talmidei Chachamim there, then even Rebbi Yochanan agrees that they stay in the city, and only if the Beis Din has difficulty resolving the case do they then send the question in writing to the Makom ha'Va'ad.

This answers the questions of the MAHARSHAL and the ARUCH LA'NER as well. It is true that the statement of Rav Safra cannot disprove Rebbi Yochanan's statement. On the contrary, Rashi sought a way to reconcile Rebbi Yochanan's statement with Rav Safra's statement that follows, since Rav Safra was citing Rebbi Yochanan's ruling. It must be that the first statement of Rebbi Yochanan applies only under specific circumstances, such as when the claimant is being overly stubborn. (M. KORNFELD)