Gittin 28b – One Who Has Been Led Out to Execution

  • Rav Yair Kahn
 
Sources:
 
1. Mishna Gittin 28b; Gemara until the next Mishna; Tosafot, s.v. u-ketani.
2. Rif; Rosh, sec. 5; Rashba, s.v. ika de-amri.
3. Rambam, Hilkhot Geirushin 6:29, and Mishneh le-Melekh, ad loc.; Hilkhot Terumot 9:2-3; Hilkhot Arakhin 1:13.
 
Preparatory Questions:
 
1. Explain the two versions of Rav Yosef's position.
2. Do the two versions disagree only about one who has been led out to execution by a Jewish court, or also about one who has been led out to execution by a Gentile court? 
3. The Mishneh le-Melekh discusses whether it is possible to compare our passage to the passage in Arakhin. What are the grounds for distinguishing between the two passages?
 
 
1. The Two Versions of Rav Yosef’s Position
 
The Mishna teaches:
 
Three statements were made by Rabbi Eliezer ben Parta before the Sages, who approved of them: [He said] that [people in] a besieged town, [people] in a ship storm-tossed at sea, and a man who has been brought to court to be tried [for his life] are presumed to be alive [so long as they are not known to be dead]. [People, however,] in a besieged town which has been captured or [in] a ship which has been lost at sea or a man who has been led out to execution are presumed to be either alive or dead according to whichever view entails the greater stringency. [Hence] the daughter of an ordinary Israelite who has married a priest as well as the daughter of a priest who has married an ordinary Israelite may not eat of teruma [if the husband has disappeared in this way]. (Gittin 28b)
  
Regarding one who has been led out to execution, who according to the Mishna, we only suspect that in fact he has been killed, but we do not assume this with certainty, the Gemara states: 
 
Rav Yosef said: This rule applies only to a Jewish court, but in the case of a Gentile court, once he is condemned to execution, [we can posit definitively] he is executed. (Gittin 28b)
 
In other words, only if the man has been led out to execution by a Jewish court do we suspect that he is not in fact dead, because if somebody finds an argument in his favor, the court returns him and reconsiders its verdict. In the case of a Gentile court, however, once he has been sentenced to death, he is presumed to be dead. 
 
But later in the Gemara it says:
 
There are some who say: Rav Yosef said: This rule applies only to Gentile courts, but in the case of a Jewish court, once it condemns him to execution, he is executed.  (Gittin 28b-29a)
 
The second version seems to be the very opposite of the first version. According to this version, a man who has been led out to execution by a Jewish court is presumed to be dead, whereas in the case of a Gentile court, we are in doubt, and so we impose upon his wife the stringencies following from the assumption that he is alive as well as the stringencies following from the assumption that he is dead, as is explained in the Mishna. Apparently, the reason for the distinction according to this version of Rav Yosef is that in the case of a Gentile court, we are concerned about possible bribes that might lead to the sparing of the condemned man's life, a possibility not considered in the case of a Jewish court. This explanation is explicit in Rashi.
 
This passage, however, still requires explanation. What is the basis of the disagreement between the two versions of Rav Yosef's position? Is there a disagreement about how to assess the situation, that is to say, that according to the first version, it is more likely that the verdict will be overturned by the Jewish court based on new testimony, whereas according to the second version, it is more likely that it will be overturned by the Gentile court as a result of bribery. The Rishonim do not elaborate on this matter, and their primary focus is on the halakhic question which version of Rav Yosef's position is to be accepted as normative law. The Rishonim disagree on this matter. 
 
2. The Halakhic Ruling
 
The Rashba on our passage explains that the two versions of Rav Yosef's position are in total disagreement, but he does not decide between them. He writes as follows:
 
Since the Gemara does not come to a clear conclusion whether the law is in accordance with this version or with that version, we follow the more stringent path, so that both in the case of a Jewish court and in the case of a Gentile court, we apply the stringencies that follow from the assumption that the man is alive as well as the stringencies that follow from the assumption that the man is dead, even if the verdict is signed. For according to the second version, no distinction is made between whether the verdict was signed or not signed, and it may be argued that according to the second version, bribes are taken even after the verdict is signed.
 
The Rif does not explicitly cite either version of Rav Yosef's position. Rather, he cites the Mishna as is, and then adds:
 
It was taught in a Baraita: If he heard [a report] from a [Jewish] court that So-and-so died or was put to death, they allow his wife to remarry. [If, however, the report came] from heathen jailers that he died or was put to death, they do not allow his wife to re-marry. And even though we maintain that any [Gentile] speaking without an ulterior motive is believed, that applies only to a matter in which they themselves have not participated, but where the matter is one in which they themselves have participated, they are not believed….
 
The Rif's understanding of the Baraita appears to be based on the first version of Rav Yosef's position, as we learned in the Gemara:
 
Come and hear: If he heard [a report] from a Jewish court that So-and-so died or was put to death, they allow his wife to re-marry [If, however, the report came] from Gentile jailers that he died or was put to death, they do not allow his wife to re-marry. Now what is meant here by "died" and "put to death"? Shall I say these terms are to be taken literally? Then why in the case of Gentiles is the wife not allowed to re-marry, seeing that we maintain that any [Gentile] speaking without ulterior motive is believed [in questions relating to marriage]? I must therefore understand the words "died" and "put to death" in the sense of "taken out to die" or "to be put to death." And yet it states [that if the report comes] from a Jewish court they do allow the wife to re-marry? [This would contradict the first version of Rav Yosef. The Gemara responds that the passage quoted means] really "died" and really "put to death," and as for your question why in such a case [if the report comes] from a Gentile court is she not allowed to re-marry, seeing that we maintain that any Gentile speaking without ulterior motive is believed, [the answer is that] this applies only to a matter in which they themselves have not participated, but where the matter is one in which they themselves have participated, they are prone to indulge in falsehood. (Gittin 28b)
 
This entire discussion is according to the first version of Rav Yosef's position, whereas according to the second version it is possible to explain that the Baraita is dealing with someone who was led out to execution by a Jewish court, and since we are not concerned that he will be exonerated, we allow his wife to re-marry. This is not the case with someone who was led out to execution by a Gentile court, where we do not allow his wife to re-marry, because we are concerned about bribery. The need to explain that the Baraita is dealing with a report that the man really died or was put to death and to add that a gentile speaking without ulterior motives is not trusted in if they participated personally, only arises according to the first version of Rav Yosef's position.
 
Therefore the Rosh concludes that the Rif adopted the first version of Rav Yosef:
 
It would appear that [the Rif] maintains that in the case of a Jewish court, the halakha is in accordance with the first version which is stringent insofar as we impose the both the stringencies following the possibility that the man is alive as well as those resulting from the option that he is dead. For a Baraita supports this [version], for it implies that the report said that the man died or that he was put to death, but if it said that he was led out to execution, this law does not apply. Therefore we rule in accordance with the first version. As for the matter of a heathen court, it is possible that the two versions do not disagree, for the second version is dealing with a case where the verdict was not signed. Even if [the two versions] disagree, the halakha is in accordance with the first version is lenient. 
 
The Rosh explains that the words of the Rif are based on the first version of Rav Yosef's position, and he adds that it is possible that the two versions of Rav Yosef's position disagree only about the case of the man who was being led out to execution by a Jewish court. According to the first version, we are concerned that perhaps they will find an argument in his favor and he will not be executed, whereas according to the second version, such a situation is unlikely, and therefore he is presumed to be dead. But in the case of the man who was being led out to execution by a Gentile court, both versions may agree that if the verdict was signed, he is presumed to be dead, and only if it was not signed are we concerned with the possibility of bribes, and therefore impose the stringencies that follow from considering both the possibility that the man is alive as well as the possibility that he is dead.
 
The Rambam, however, rules in accordance with the second version. He writes as follows: 
 
When, by contrast, a city has been conquered by an attacking army and [its wall] broken, a ship is lost at sea, a person is being led out to be executed by a Gentile court, or he is being dragged by a beast of prey, swept away by a river or an avalanche has fallen upon him, the stringencies applying to both the possibility that he is alive as well as the possibility that he is dead, are followed. If [a person in one of these situations gave] a get to an agent, the agent should not give it to the husband's wife. If, however, he gives it to her, the status of the divorce is in doubt. (Hilkhot Geirushin 6:29)
 
A precise reading of the Rambam's wording indicates that the stringencies resulting from considering both options, life and death, are noted only to one who was being led out to execution by a Gentile court. The Maggid Mishneh notes that the law applying to one who was being led out to execution by a Jewish court is not spelled out by the Rambam. However, in Hilkhot Terumot the Rambam explicitly writes that one who was being led out to execution by a Jewish court is presumed to be dead:
 
If, however, a city was captured by besieging forces, a ship was lost at sea, or a person was going out to be executed by a Gentile court, or a person was dragged by a wild beast, one upon whom a landslide fell, or one was carried away by a river, we regard the individuals with the stringencies appropriate to both options, life and death. Therefore if among the women were the daughter of a priest married to a Israelite or the daughter of an Israelite married to a priest, they may not partake [of teruma].
If, however, a person was sentenced to death in a [Jewish] court and was taken to the place where he will be stoned, we presume that he is dead and his wife may not partake [of teruma]. (Hilkhot Terumot 9:2)
 
It is clear, therefore, that according to the Rambam, the second version disagrees with the first version both with regard to someone who was being led out to execution by a Jewish court and with regard to someone who was being led out to execution by a Gentile court.
 
In summary, there is major controversy between the Rishonim with regard to the halakhic ruling on this issue. According to the Rashba, there is no way to decide between the two versions, and we rule stringently, following the stringencies that apply to both the living and the dead in both cases. According to the Rif, we rule in accordance with the first version, whereas the Rambam rules in accordance with the second version. In addition, the Rishonim disagree about how to understand the disagreement between the two versions: According to the Rashba and the Rambam, the two versions disagree both in the case of a Jewish court and in the case of Gentile court, whereas according to the Rosh, the two versions of Rav Yosef's position do not necessarily disagree about the case of a Gentile court. 
 
The Foundation of the Disagreement Between the Two Versions
 
Even after this discussion, the foundation of the disagreement between the two versions is still unclear. Granted according to the Rosh, who understands that the two versions disagree only in the case of a Jewish court, it may be argued that they disagree about the level of likelihood that is required to raise concern that the person who was sentenced to death is still alive. But according to the Rashba and the Rambam, who understand that the versions disagree also in the case of a Gentile court, this argument cannot be made. It would seem that we are forced to say that the versions disagree only about the assessment of reality.
 
However, according to the Kesef Mishneh in Hilkhot Arakhin, there is room to view this disagreement in a different way. The Rambam writes there:
 
Similarly, if a person was sentenced by a Jewish court to be executed because of a transgression that he committed and another person pledged his valuation, he pledged his own valuation, or he pledged his worth or another person pledged his worth, none of the above are liable for anything. For the person is considered as if he is already dead and a deceased person has no valuation, nor any worth. (Hilkhot Arakhin 1:13)
 
The Kesef Mishneh adds:
 
Our master was precise to write that the person was sentenced by a Jewish court, for in a Gentile court, even if he was sentenced, he is not considered as if he is already dead, as is stated in chapter Kol ha-Get. (Hilkhot Arakhin 1:13)
 
Now, on the face of it, the law in Arakhin doesn't depend on the likelihood that the convicted party will actually be executed or exonerated, but rather the Halakha determines that in the wake of a guilty verdict in a Jewish court, the convicted party is considered from a halakhic perspective as if he is already dead, who has no value according to Jewish law. Even if someone will come and offer an argument in his favor that will overturn the verdict, as long as he has not come, the convicted party is still a person who was sentenced to death, who is viewed by halakha as if he is already dead.
 
The Gemara in Makkot states:
 
Rava further stated that if two witnesses came and declared that So-and-so had killed So-and-so on Sunday [at a specific location] and two others came and said: But were you not with us on Sunday [elsewhere]? It was [in fact] on Monday that So-and-so killed him. Or, furthermore, even if the latter witnesses declared that So-and-so had [actually] killed the person on the [previous] Friday, the former witnesses are still executed as zomemim, inasmuch as Sunday, the time stated in their evidence [was undermined, and] the murderer had then not yet been [found guilty and] sentenced to the death-penalty. What does he teach us? [That the murderer as well as the perfidious witnesses are ultimately executed!] We have learned [that] already: Consequently, if one of these [two sets of witnesses] has been found zomemim, both the criminal and the zomemim are executed, while the other set is let go? Yes, but one must wait to hear the latter part of Rava's statement, in reference to evidence bearing on the time of the verdict, namely, if two came and declared that So-and-so had been convicted [of murder] on Sunday, and two others then came and said to the first: You were with us [elsewhere] on Sunday, but So-and-so was [in fact] convicted on Friday. Or furthermore, even if the latter said So-and-so was [not] convicted [until] Monday, the former are not executed as zomemim, because at the time the first witnesses gave their [fictitious] evidence, the man charged had already been sentenced to death. (Makkot 5a)
 
It is expressly stated here that everything depends on the time of the verdict, because the verdict bestows the status of a man who has been sentenced to death [gavra ketila] who is considered as if he is already dead. If witnesses testified falsely about a person before a verdict was issued against him, the witnesses are liable, but if they testified about him after a verdict was issued and he was sentenced to death, then even though they testified falsely, they are not liable, because they testified against a person who was sentenced to death, who is considered as if he is already dead.
 
The Sifrei states:  
 
Rabbi Yonatan said: If a person was being led out to execution, and another person went ahead and killed him, he is exempt. Or perhaps he is exempt even if he killed him before his sentence was issued? The verse states: "That is guilty of death" (Bemidbar 35:31) – Before he is sentenced, [his killer] is liable. After he is sentenced, he is exempt. (Sifrei, Parashat Mas'ei)
 
We see from here that after a person has been sentenced to death, even if someone kills him with his own hands, the killer is exempt. We are forced to say that this is because a person who has been sentenced to death is considered by halakha as if he is already dead.
 
In our passage, on the other hand, we are discussing the likelihood that the convicted party will actually be executed. The convicted party's wife is certainly forbidden to all other men even after he has been sentenced to death, even though he is considered as if he was already dead. Only the actual death of the husband will permit his wife to re-marry. Therefore the Mishneh le-Melekh notes that it is possible to reject the comparison the Kesef Mishneh draws between the two areas, and his reasoning is sound:
 
This may be rejected, for regarding arakhin it does not depend on this, but rather it all depends on the verdict, and once he is sentenced to death, he is considered as if he was already dead… Therefore our master there does not mention being led out to execution, but being sentenced to death. But here, where the matter depends upon whether he is (physically) dead or not dead, there is still room for doubt in the case of a person who was being led out to execution by a Jewish court, whether we allow his wife to re-marry or not. (Mishneh le-Melekh, Hilkhot Geirushin 6:29)
 
As stated, however, the Kesef Mishneh draws a comparison between the two halakhot. See our sugya, which brings a proof for the second version of Rav Yosef's position from a case where a sentence was issued, but the convicted party was not being led out to execution: 
 
Let us say that this view is supported by the following:  Whenever two persons come forward and say: We testify against So-and-so that he was condemned to death in such-and-such a court, So-and-so and So-and-so being witnesses against him, such a man has to be put to death? (Gittin 28b)
 
But surely according to the Mishneh le-Melekh's distinction, the law in our passage applies only to a person who was being led out to execution, and not to a person who was only sentenced to death! However, according to the Kesef Mishneh the halakhic status of a person who is sentenced to death is what causes us to consider him as if he was already dead, and therefore we do not consider the option that he might live unless his sentence is actually overturned. In other words, the status of a person sentenced to death that applies to a person in the wake of a death sentence in a Jewish court is the reason that we presume him to be dead and not be concerned that perhaps he will remain alive unless we have specific information that says otherwise.
 
In light of this, ostensibly the disagreement between the two versions of Rav Yosef's position does not depend only variant assessments of reality. The first version deals with the likelihood that the convicted party will actually be executed, and according to this understanding only one who was sentenced in a Gentile court is presumed to be dead after the verdict has been signed. In such a case, there is little likelihood that the convicted party will survive, despite the fact that from a halakhic perspective the verdict of a Gentile court has no validity, and he is still not considered as if he was already dead.
 
According to the second version, even though the likelihood of survival is low, nevertheless, since the status of a person sentenced to death has not yet been applied to him, and the possibility of survival exists, we consider the option that he may still be alive, as long as we have not heard testimony to his actual death. Only a death sentence issued by a Jewish court bestows the status of a person sentenced to death, and even though the possibility exists that the sentence will be overturned and he will be exonerated, nevertheless, as long as we do not know that the sentence was overturned, he has the status of a person sentenced to death, and this generates a chazaka (a halakhic presumption) that the death sentence was carried out.
 
 
(Translated by David Strauss)