Based on a shiur by Rav Daniel Wolf
It is well known that for matters of ritual law (issur), a lone witness' testimony can be accepted as evidence. In monetary matters (mammon), or for cases involving punishments (malkot and mita - lashes and execution), two witnesses are required. There are several differences between the laws of one witness - "ed echad be-issurim," and two witnesses - "shnei eidim:"
1) The number of witnesses required.
2) Pesulim (invalid witnesses) - e.g.; women, relatives, noge'a (interested parties) - all are accepted in issur, but not where two witnesses are necessary.
3) The rules of evidence are more lenient for issur. No cross-examination is required, and hearsay (ed mi-pi ed) and other rules are suspended.
Why do these differences exist?
The Number of Litigants
The distinguishing factor in a din Torah of mammon is the dispute itself. There are two parties at conflict, one of whom will not necessarily lose the other as to benefit. Consequently, the level of evidence required must be conclusive and beyond reproach.
Issur is certainly different; however, there can be several ways to view the distinction. One might take a radical approach and say that by monetary dealings there are two litigants, while by issur there are none. True, the meat is owned by someone; however, his ownership is not in question. Whether the cow was slaughtered or not is the issue, and that fact has no effect on the ownership of the meat. The value of the meat might change as a result of the edut but that is a by-product and not the essence of the testimony. A more moderate approach would be to accept the owner as a party to the case; however, since he has no adversaries the focus of bet din's judgement differs. In monetary judgements bet din must reach an objective decision, whereas by issur, the issues revolve around the individual. Bet din will enforce what he "should" do; however, it is more a subjective decision.
Monetary cases involve two litigants, and therefore require conclusive testimony.
Issur involves either zero or one ba'al din.
Either of these possibilities would explain the differences we mentioned above. Many Acharonim accept the first view; I tend towards the second since, as we will see, the owner has a special role in at least some of the cases.
Understanding Ed Echad
The relaxation of the rules of testimony are well documented and quite broad. How should we understand them? Are they leniencies (kulot) in the laws of testimony because of the special nature of issur? If so, the basic framework of edut still exists? Or are they so broad as to teach us that the Torah has totally abolished the need for testimony, and "ed echad" is an entirely different "ball game?"
There might be several ramifications of this question. The Ketzot and the Netivot argue whether there is hazama by issur. (If two other eidim place the original eidim at a different place at the time of the alleged edut, the original pair is punished - see the beginning of makkot). Does the issur of "edut sheker" apply there?
Perhaps we can see a clue from the source of ed echad. Rashi in Gittin (2b) explains "For the Torah has believed any Jew for the separation of tithes (hafrashat terumot), ritual slaughtering and the extricating of gid (ha-nasheh) and chelev (forbidden fats)." One might ask - how do I know that ed echad is believed in those cases? I think what Rashi is getting at, is that we can assume that every Jew is believed on day to day ritual observance, for we have no reason to doubt his word. This fits in with the 'no edut' theory since there is no opposing ba'al din. Tosafot (s.v. Havei) disagree and learn ed echad from nidda (menstruating woman) who is believed to count her days of purity for herself. This sounds like a very standard drasha. The nature of ed echad is not totally clear, but it hints at a kind of edut.
Tosafot also raise a distinction between "itchazek issura" or not, i.e., does bet din have prior knowledge of issur which the witness then tells us has changed (e.g. a nidda who tells us she has gone to the mikva and is now pure). In such a case, the ed is only believed if he has the power to nullify the issur (be-yado). (For instance, a nidda has the ability to purify herself by immersing herself in a mikveh.) Tosafot say that in a neutral case where bet din has no prior knowledge at all, the halakha might be different. Perhaps to change the status of an object (or bet din's assumptions) requires edut, whereas if bet din has no contradictory information we take every Jew's word at face value.
We have noted two possible approaches to understand the trust we place in an ed echad. We may view him within the general framework of edut (albeit with certain leniencies). Alternately, we may suggest that we are dealing with a totally new category. These two approaches may be dependent of the source of ed echad be-issurim. (Rashi vs. Tosafot.) There may be two types of ed echad. One within the framrk of edut. The second an independent category. The type of ed echad applied may depend on the case. (Itchazek issura or not.) There are halakhic ramifications regarding this issue (hazama).
If we have one ba'al din in cases of issur, it is more likely to require some form of edut. However, if there is no ba'al din whatsoever, it is reasonable that the framework of edut is not necessary.
Ed Echad to Prohibit
So far we have discussed ed echad to permit something. Is an ed echad believed to prohibit foods?
"Abbaye said: An ed echad said your food became 'tamei' - if the owner was silent, the ed is believed. A Tanna taught that if an ed said (your food) is tamei and he (the owner) said it is not tamei he is exempt (from a sacrifice if he ate the food - meaning the food is presumed 'tahor')." (Kiddushin 65b)
The clear implication of this passage is that unless the owner has contradicted the ed, the testimony is believed. Naturally, if the owner objects, there is no reason to prefer the ed's word over the owner's.
Tosafot and many Rishonim bring an apparent contradiction from a gemara in Gittin (54b). "He (the ed) was working with him (the owner) with his taharot (undefiled food) and he informed him, 'your taharot have been defiled (nitme'u),' - he is believed; however, if he says "your taharot on a previous day were defiled" he is not believed." What is the distinction between the two cases? Abbaye explains as long as he has the power to defile the foods himself, he is believed - "kol she-beyado ne'eman."
From our sugya it would seem that an ed echad is believed to prohibit (as long as the owner does not contradict the ed) whereas the sugya in Gittin implies that the ed is only believed if he is in control (i.e., he can defile the food himself). The Rishonim have different approaches to reconciling the sugyot.
Tosafot (Kiddushin ad loc.) explain that the gemara in Gittin is the normative halakha and the ed is not believed (if he has no control); however, if the owner is silent we consider his silence to be an admission (shtika ke-hoda'a).
Rambam maintains that the sugya in Kiddushin is the standard, and an ed is always believed to prohibit. The gemara in Gittin is the exception since the worker originally returned the food without indicating any problem we doubt his delayed "revelation" that the food is 'tamei.'
How can we understand Tosafot's principle of "shtika ke-hoda'a?" One way is to take it literally - we assume that the owner has knowledge of the tum'a and he "neglected" to tell us. His silence is understood literally as an admission. Naturally, if the owner can prove or claim reasonably that he didn't know of the issur his silence is not indicative. Some Rishonim understand Tosafot in this way. However, there is nothing in the gemara to indicate that he does have knowledge. It seems that he resorts to the ed precisely because he actually doesn't know.
Perhaps we can interpret the silence in a different manner. As we said before, the basis of "ed echad be-issurim" is the lack of a ba'al din. Perhaps, if the owner vigorously defends his interest he becomes a ba'al davar, an interested party who forces the need for shnei eidim - full witnesses and legal testimony. As long as the owner remains silent because he does not view the edut as harming himself, he does not become a ba'al din, and ed echad is allowed. This approach allows us to give weight to his silence even if he has no specific knowledge of the issur.
There are several differences between edut in mammon and issur:
1) No technical pesulim apply (relatives, interested party etc.)
2) No rules of testimony apply (hearsay, cross-examination etc.)
This may be due to the fact that in Mammon we have two ba'alei din, in Issur - one or zero ba'alei din.
We discussed two ways to understand ed echad be-issurim:
1) Not edut at all.
2) Edut with special dispensations.
We saw three cases that involve ramifications of this question:
1. Ketzot and Netivot - is there hazama?
2. Source of ed echad be-issur:
Rashi - the Torah believes every Jew (no edut at all).
Tosafot - from the counting of nidda.
3. Itchazak issura introduces a reason to require actual edut.
Lo itchazak - not edut
Itchazak - edut.
Can ed echad prohibit? We saw a contradiction between gemara Kiddushin and Gittin. We tried to explain Tosafot's understanding, by recalling that ed echad is believed in issurim because there is no ba'al din.
Sources and questions for next week's shiur:
1) Kiddushin 66a; machloket Abbaye ve-Rabba le-inyan ishto zinta. Tosafot Rid s.v. Amar Abbaye. Ra'avan siman 64, at the beginning of the third column from "Ibbaye lehu ... ein yekholin pachot mi-shnayim le-ossrah al ba'alah.
2) Tosafot s.v. Amar and s.v. Rabba.
3) Shev Shma'tata 6:15
[4) Sota 3b "Tnan ha-Tam ... af kan edim shnayim." 26b "Ela amar Rabba ... ka kapid ka-mashma lan."]
a) What is the relationship between the halakha of "ein davar she-be'erva pachot mi-shnayim" and "ha-mekadesh be-ed echad ein chosheshin le-kiddushav"?
b) Why are two witnesses better than one? What implications does this have for the previous question?
c) Try to think of a possible connection between ein davar she-beerva and the opinion that a single eid is not relied upon in a case of eit chazak issura?
[d) Is there a difference between issur sota in a case of kinui ve-setira and a sota witnessed by two eidim?]