1) SILENCE AFTER A "SHEVU'AS HA'EDUS"

OPINIONS: The Mishnah (31b) discusses cases of Shevu'as ha'Edus, when witnesses deny that they know testimony. A false denial, with an oath, obligates the witness to bring a Korban Oleh v'Yored. Is silence on the part of the witnesses, when asked to testify, considered denial of testimony?

(a) The YAD RAMAH proves from the Gemara here that silence is considered denial. The Gemara discusses the source for the law that a false denial of knowledge of testimony obligates the witness to bring a Korban only when that denial is done in Beis Din. Abaye infers from the verse, "Im Lo Yagid v'Nasa Avono" -- "If he does not say [the testimony], he shall bear his iniquity" (Vayikra 5:1), that the witness' denial of knowledge is relevant only when he denies it in a place where his testimony would be relevant.

Rav Papa questions Abaye's source. If this verse is the source, then the same law should apply not only to the witness' denial of testimony, but to the Shevu'ah itself: the witness should be obligated to bring a Korban only when he makes the *Shevu'ah* inside Beis Din. The Mishnah, however, states that a person is obligated to bring a Korban for a false Shevu'ah made *outside* of Beis Din.

Abaye answers that the verse, "l'Achas" (Vayikra 5:4), teaches that it is possible for a person to be obligated to bring multiple Korbanos for making multiple false Shevu'os about the same case. This cannot refer to when he made multiple Shevu'os in Beis Din, because the Mishnah states that in such a case he is obligated to bring only one Korban. The verse, therefore, must be referring to a case of multiple Shevu'os made outside of Beis Din.

The Yad Ramah points out that if silence is not considered denial, then the Gemara has no proof that making a Shevu'ah outside of Beis Din can obligate a person to bring a Korban. Perhaps the case in which a person is obligated to bring multiple Korbanos for multiple Shevu'os is when the witness was silent after each Shevu'ah (that is, the litigant said to him, "I hereby adjure you with a Shevu'ah that you do not know any testimony," and the witness remained silent). In such a case, the witness would be obligated to bring multiple Korbanos even if the Shevu'os were made *in* Beis Din; since the witness did not deny knowing testimony each time, after each Shevu'ah he still may testify, and thus each subsequent Shevu'ah is valid (to obligate him to bring a separate Korban). The fact that the Gemara does not question Abaye from this case -- and say that *this* is the case in which one is obligated to bring multiple Korbanos -- shows that the Gemara understands that silence in response to a Shevu'as ha'Edus is tantamount to denial. This is also the opinion of the RAMBAN.

(b) The RITVA refutes the Yad Ramah's proof and argues that the status of silence remains in doubt. He explains that when a witness remains silent in response to the Shevu'ah in Beis Din, both possibilities must be taken into account. If his silence is a denial, then he may no longer testify even if he wants to, because of the rule that once a witness has given his testimony (or declared that he has none to give) in Beis Din, he cannot retract his words. Since he may no longer testify, he cannot become obligated to bring another Korban for an additional denial. If, on the other hand, his silence is an admission that he knows testimony, then the same rule dictates that he may no longer testify that he does *not* know testimony (since he already said (through being silent) that he *does* know testimony). Therefore, the Gemara proves only that silence is not considered *only* agreement, but rather that silence *might* be denial or agreement. The Gemara does not prove that silence is considered *only* denial.

The Ritva asks a question on his own explanation. The witness cannot be obligated to bring a Korban for the second Shevu'ah because of the rule that a witness cannot retract his testimony. This rule applies, however, only after the witness has been silent for a period of "Toch Kedei Dibur." Perhaps the verse, which teaches that a witness can become obligated to bring multiple Korbanos, refers to a case in which another Shevu'ah is administered immediately after the witness was silent in response to the first Shevu'ah, within a period of "Toch Kedei Dibur." During those few seconds the witness has the opportunity to retract his first response and give different testimony! Why does the Gemara not give this case as the case in which the witness is obligated to bring multiple Korbanos?

The Ritva answers that the amount of time that it takes to administer the second Shevu'ah is more than "Toch Kedei Dibur." Consequently, by the time the second Shevu'ah is administered, more than "Toch Kedei Dibur" has elapsed, and the witness may no longer retract his original statement.

RASHI (31b) seems to agree with the Ritva that the status of silence is in doubt. However, according to Rashi, the doubt is not whether the witness' silence is understood as denial or as agreement, as the Ritva explains. Rather, according to Rashi, the doubt is whether the silence is denial or whether it counts as *nothing*. Rashi explains that if it is denial, the witness may no longer testify. If it is not denial, there is no reason to make another Shevu'ah in addition to the first one. The witness said nothing, and thus it is meaningless for Beis Din to administer another Shevu'ah to what is effectively a non-communicating entity. (Y. MONTROSE)

2) A "SHEVU'AS HA'EDUS" FOR WHICH THE WITNESS IS NOT OBLIGATED

QUESTION: Rav Papa presents a case in which everyone agrees that even though the witness denies knowing testimony, he is not obligated to bring a Korban for his false Shevu'ah. The case is one in which a witness tells a woman, outside of Beis Din, that her husband has died. In Beis Din, however, he either does not testify or he denies knowing testimony. Since the woman herself is believed to say that her husband died (Eduyos 1:12), the witness is not obligated to bring a Korban for a Shevu'as ha'Edus.

What exactly is the case that Rav Papa is discussing? Why is the woman believed to say that her husband died when the person who gave her this information refuses to testify? Moreover, why, in this case of false denial of knowledge of testimony, is the witness not obligated to bring a Korban?

ANSWERS:

(a) According to the Girsa of RASHI as recorded by the RITVA, the woman says that a person told her that her husband died, and then that person comes to Beis Din and denies knowing this information. The woman's testimony is not accepted, since the source of her information denied that information. The woman, however, is permitted to go to a different Beis Din and testify that her husband is dead. The witness is not obligated to bring a Korban, since his testimony no longer is relevant, because he has already told the woman information that she can use in a different Beis Din.

The Ritva questions this explanation. How can the second court accept the woman's testimony, when the first court rejected it? Since the woman's source of information (the witness who told her that her husband died) proved to be an invalid source (because he denied, in the first court, that he knew anything about her husband), her testimony should not be accepted in any court!

The Ritva explains that Rashi understands that the testimony of a woman about the death of her husband differs from other forms of testimony. In the case of testimony about the death of a woman's husband, the Chachamim permitted even a single witness to testify in order to enable women to remarry. They even permitted the woman herself to testify in court based on what a single witness told her; it is assumed that the woman researched the matter and is telling the truth, because no woman would lie about such a matter due to the severe penalties that the Chachamim instituted for a woman who remarries unlawfully (see Yevamos 87b). Rashi understands that the Chachamim consider the woman to have the status of a Beis Din when the witness tells her that her husband died, and thus his testimony is considered to have been given in the presence of a Beis Din. When she then comes to the real Beis Din and testifies (based on the witness' word) and then that witness comes and denies the testimony, his denial should not be accepted because it is a retraction of his earlier testimony. Since the woman had the status of a Beis Din when the witness originally told her that her husband had died, he may no longer change or retract his testimony due to the rule of "Keivan she'Higid Shuv Eino Chozer u'Magid." However, the Beis Din cannot accept *her* testimony either because, in practice, the witness is contradicting it in their presence. If, however, she is so certain that her husband indeed is dead, she may testify to that effect in a different Beis Din, and there her testimony is accepted. Since her testimony is accepted, the witness' testimony is not relevant, and thus he cannot become obligated for a Shevu'as ha'Edus.

The AYELES HA'SHACHAR questions the Ritva's explanation that the witness' retraction in court is not valid because of the rule that a witness cannot retract the testimony he gave earlier in front of Beis Din, and, in this case, the witness is considered to have given testimony in front of Beis Din when he told the woman that her husband had died. The Gemara earlier (see Insights to 31b) teaches that once a witness denies knowledge of testimony in Beis Din, he cannot become obligated to bring additional Korbanos for additional denials of testimony. This is because of the rule that once a witness testifies, he cannot retract his testimony. When a witness denies in Beis Din that he knows testimony, he may no longer give any further testimony, and thus he cannot become obligated for any additional Korbanos of Shevu'as ha'Edus. According to the Ritva's explanation that the woman is considered like a Beis Din when the witness tells her that her husband died, why does the witness need to deny testimony in Beis Din in order not to be obligated to bring a Korban for Shevu'as ha'Edus? Even when that witness tells her *outside* of Beis Din that he does not know testimony, he should no longer be able to testify in Beis Din and he should not be obligated for Shevu'as ha'Edus!

The Ayeles ha'Shachar explains that there is a difference between a witness who says that the woman's husband died, and a witness who says that he does not know anything about her husband. Whenever a witness makes a statement in front of Beis Din, it is categorized as "testimony" (which he cannot retract). There is a special leniency with regard to testimony about the death of a woman's husband: a single witness is believed when he tells the woman (outside of Beis Din) that her husband died. His statement is categorized as "testimony" because the woman herself is given the status of a "Beis Din" because of this leniency. However, no other exceptions were made for this type of testimony; a witness who tells the woman outside of Beis Din) that he does *not* know testimony is *not* considered to have made a statement in front of Beis Din.

The Ritva, however, rejects the explanation of Rashi (according to his Girsa of Rashi) for a different reason. He asks that the witness should *not* be exempt from a Korban for Shevu'as ha'Edus. Although the woman may go to a different Beis Din and testify there that her husband died, this does not provide any assurance that the witness himself is no longer relevant. Perhaps the woman will not go to the second Beis Din to testify, fearing that the witness will go there, too, and contradict her testimony, or that the second Beis Din already knows about the witness' counter testimony. Alternatively, she does not know the Halachah that she would be believed in another Beis Din. Consequently, his denial of testimony *does* affect her, and thus he should be obligated to bring a Korban for Shevu'as ha'Edus!

The RADVAZ (Teshuvos #1313) answers the Ritva's question on Rashi. He explains that although the woman might choose not to go to another Beis Din for the reasons the Ritva mentions, the case has not been closed. No absolute verdict has been passed about the status of the woman's husband. Since the woman still is *able* to testify in another Beis Din that her husband is dead, the testimony of the opposing witness still makes no difference, and thus he is not obligated to bring a Korban.

(b) The RITVA prefers the explanation of the RAMBAN and RASHBA. Since Beis Din accepts the woman's own testimony about her husband's death, the testimony of the witness is not needed. Therefore, that witness is not liable for Shevu'as ha'Edus when he told the woman, outside of Beis Din, that he knows that her husband died, and then she adjured him to come to Beis Din but he refused to testify. He is exempt from liability for Shevu'as ha'Edus because the woman herself can go to Beis Din and testify that her husband died (and thereby collect her Kesuvah), and thus the witness causes her no loss by refusing to testify.

(The Ritva adds that according to the Ramban, a woman may go to Beis Din and say that her husband died without disclosing the source of her information. If, however, she says that she heard this information from a witness who is easily accessible, Beis Din must ascertain that the witness concurs with the information that she provided in his name.) (Y. MONTROSE)

Indeed, this is the explanation of RASHI according to the Girsa in our texts.