Pesul Eidut De-Rabbanan

  • Rav Moshe Taragin

The mishna in Sanhedrin lists several people who the Rabbis invalidated from testifying. These people have not committed actual Biblical sins, which would disqualify them on a Biblical level as “resha’im,” per the gemara’s ruling (27a). Rather, these individuals have violated Rabbinic aveirot and are Rabbinically disqualified.


An interesting debate emerges as to the scope of aveirot which disqualify potential witnesses. Most Rishonim – both in their local comments to Sanhedrin (24b) as well as in scattered references throughout Shas – assume that only the Rabbinic sin of “greed” disqualifies a witness. Only sins performed for the acquisition of monetary gain disqualify a witness. However, if a person eats poultry and milk, which is only Rabbinically prohibited, he remains a valid witness. In contrast, the Rambam invalidates any witness who has violated ANY Rabbinic infraction, including those unrelated to financial gain. The Shulchan Arukh (Choshen Mishpat 34:3) cites both of these opinions.


On the surface, the Rambam’s position seems more appealing. Rava and Abbaye debated whether non-monetary BIBILICAL violations disqualify witnesses. Abbaye extended the invalidation to ALL aveirot, and the gemara clearly rules in his favor. Presumably, if ALL Biblical prohibitions – even non monetary ones – disqualify witnesses, ALL RABBINIC violations should create disqualification on a Rabbinic level.


Apparently, Rashi and those who limit the Rabbinic witness disqualification only to monetary violations believe that Rabbinic witness disqualifications are categorically different from Biblical ones. By describing the category of a “rasha,” the Torah creates a formal disqualification of anyone who has violated ANY Biblical violation. Since this is a FORMAL status, it is not limited only to greed-based violations. The Rabbanan, however, cannot create formal categories of disqualification. If a person has not violated a Biblical aveira, he is not considered a rasha and cannot formally be disqualified. Nevertheless, the Rabbanan CAN suspend the testimony of those whose integrity is questionable. Those who have demonstrated greed by violating even Rabbinic violations for the sake of monetary gain have proven to be of suspect character, and the Rabbanan can instruct not to accept their testimony. Since the Rabbanan cannot impose FORMAL disqualified status but can only suspend suspect TESTIMONY, only suspicious witnesses who have demonstrated greed are disqualified; those who have violated non-monetary violations cannot be invalidated. The imposition of a formal status of “Rasha” may only be operative at a Biblical level.


This may reflect an interesting tendency in the halakhic system. The Rabbanan possess the ability to legislate new halakhot, but they may not possess the ability to redefine formal statuses of people or objects. For example, Biblically forbidden chametz is inherently forbidden. In contrast, Rabbinically forbidden chametz may only carry a “legal” injunction against using it; it may not be defined an INHERENTLY issur chametz since it is only Rabbinic chametz. There may be significant differences between inherently prohibited chametz (Biblical chametz) and chametz which we are required to avoid even if it does not have the inherent status of chametz (since it is only Rabbinically forbidden).


By contrast the Rambam, who does equate the scope of Rabbinic disqualification, to the scope of Biblical witness disqualification may have believed that even Rabbinic invalidation was formally driven and therefore no distinction exists between monetary violations and formal ones. Alternatively, he may have agreed that the Rabbanan cannot redefine formal status, but at best can merely suspend testimony based on suspect behavior. However, ANYONE who disregards Rabbinic authority, even without monetary yield, has proven to be of weak character, and his testimony is therefore suspected as false and ultimately suspended.  To summarize: Rashi who limits the scope of Rabbinic witness disqualification may have believed that at most the Rabbanan can suspend testimony of suspicious witnesses. Unable to impose a “Rasha” status they cannot disqualify violators of non-monetary sin. By contrast the Rambam who stretched the scope of Rabbinic disqualification EVEN to non-monetary sins may have claimed that the Rabbanan DO possess ability to impose ‘Rasha’ status. Alternatively he may have believed that the Rabbanan can only suspend suspicious testimony; however testimony from ANY violator of ANY Rabbinic injunction is suspicious


Perhaps the most compelling indicator that Rabbinically disqualified witnesses are not formally disqualified stems from a comment of the Mordechai, (cited by the Shulchan Arukh Even Ha-ezer 42:5) who writes that these invalidated witnesses can still serve as eidei kiyum, attending witnesses for gittin and Kiddushin. Most Rishonim disagree with this position, but the mere existence of such a position is surprising. It is clear that the Mordechai maintained that the Rabbanan DO NOT possess the ability to inherently disqualify a witness on formal terms. They CAN only suspend his ability to TESTIFY. Since they are inherently valid witnesses, they can continue to serve as edei kiyum.


However, there are two halakhot that may indicate that the Rabbanan DO indeed possess the ability to formally designate a person as a rasha even though he has only violated Rabbinic violations. The Pitchei Teshuva (Choshen Mishpat 34) cites the Birchei Yosef, who writes that only ACTIVE Rabbinic violations disqualify the violators from testifying. If a person violates a Rabbinic mitzva through non-performance, he is not disqualified. Presumably, if the mechanism of Rabbinically driven disqualification is the suspension of testimony due to raised suspicions, there would be little room to distinguish between an active violation of a Rabbinic issur and a passive omission of a Rabbinic mitzva. In either case, the violator has demonstrated disregard for rabbinic authority and his integrity is questionable. Perhaps the Birchei Yosef maintained that violation of Rabbinic prohibitions confers “rasha” status, and this status only evolves in the wake of an active violation of halakha, rather than a passive omission.


A second possible indicator that the Rabbanan actually created formal disqualification stems from the requirement that Rabbinic violations be announced in court before the perpetrators are disqualified (see Sanhedrin 26b). If the disqualification were based solely on suspended reliability, the formal process of announcing the crime in beit din would seem unnecessary. Many Rishonim attribute technical reasons for hachraza, the public announcement of the crime. The Yad Rama (Sanhedrin 26b) suggests that it serves to warn people from relying upon these invalidated witnesses. Biblical crimes are presumably more public and litigants naturally avoid witnesses who have committed these crimes. Since Rabbinic violations are less flagrant, the hachraza process assures public awareness.


Alternatively, the need for hachraza may be more fundamental. A Biblical violation INHERENTLY renders a formal status of “rasha,” whereas Rabbinic violations do not automatically convey this status. In order to GENERATEthis status, a formal process of announcing the crime is necessary. If the Rabbinic violation merely yielded suspected reliability, no announcement process would be necessary.


This role of hachraza in generating a Rabbinic status of Rasha would confirm that the Rabanan DO possess this ability.