If Witnesses say 'This is my handwriting'

Background:

            The disagreement between the two versions of Rami bar Chama's qualification of the mishna raises several questions: Does the rule that states that "since he has testified, he cannot come back and testify again" apply to the signatures attached to a contract? Does the rule that "a person cannot make himself out to be wicked" apply to witnesses who testify that they had signed the contract when they were minors? Does the rule that "the mouth that forbade is the mouth that permits" resolve the problem of "a person cannot make himself out to be wicked"? Why is there no problem of "since he has testified, he cannot come back and testify again" in the case of a contract the signatures which have not been authenticated?

            In the next shiur we shall learn the mishna on p. 18b and the Gemara until "ein adam mesim atzmo rasha." The passage deals with several issues, each of which deserving of a separate shiur: "the mouth that forbade," a miggo where there are witnesses, "a person cannot make himself out to be wicked," "since he has testified, he cannot come back and testify again," "we divide the testimony," and others. In this framework, we cannot dedicate a separate shiur to each of these issues, and therefore we shall try to focus on our particular passage and on the intersection of these issues in it. Analyse the two versions of Rami bar Chama's qualification of the mishna and the points of disagreement between them.

Additional sources:

1) [Background regarding "dividing testimony" (palginan dibura) (we may still dedicate a separate shiur to this issue): Sanhedrin 9b: "Ve-amar Rav Yosef: Peloni… ve-ein adam mesim atzmo rasha"; Rashi].

2) Tosafot to our passage, s.v. lo; Ramban, s.v. amar Rami bar Chama, s.v. ve-okimna, "… de-lo mesaimi bi-Gemara hakhi," [s.v. perash Rashi].

3) Rashi, s.v. keivan she-higid shuv eino chozer u-magid. Analyze his reasoning and the novelties in his position. For an expanded discussion, see Chidushei Rabbi Akiva Eiger, "Tosafot dibur ha-matchil ein ne'emanim… ad kan da'at achi."

4) Shita Mekubetzet 23a, in the following passage:

כתוב בהשלמה... ומאי דאמרינן גבי נשבית אם משנשאת באו עדים הרי זו לא תצא ואמרינן עלה לא שנשאת ממש אלא כיון שהתירוה לינשא אף על פי שלא נשאת איכא לעיוני אי אמרינן הכי גבי שדה כי אמר מעיקרא של אביך היתה ולקחתיה ממך והימנוהו משום הפה שאסר וכו' ואחר כך באו עדים של אבותיו אי אפקינן מיניה דמחזיק או לא ונראין הדברים דלא מפקינן ליה מיניה דכיון דהימנוהו הימנוהו ואף ע"פ שאין ראיה לדבר זכר לדבר אמר ר' מנחם בר יוסי אימתי אני אומר תצא בזמן שבאו עדים ואחר כך נשאת אבל נשאת ואחר כך באו עדים לא תצא ע"כ. וכבוד רבינו במקומו מונח דאיכא למימר דלא דמי דממונא מאיסורא לא ילפינן ומה יעשה זה שלא היה יודע שהיו לו עדים מתחלה ואחר כך נודע לו והביאם יפסיד נחלת אבותיו בשביל כך ומהא דמסכת סנהדרין פרק זה בורר משמע דאמרינן דכל זמן שמביא ראיה סותר את הדין. וצ"ע. הרב המעילי ז"ל.

***

[If] witnesses said: "This is our handwriting, but we were under duress, we were minors, we were disqualified [from giving] evidence," they are believed. But if there are witnesses that it is their handwriting, or where their handwriting came out from another place, they are not believed.

Rami bar Chama said: They only taught [this] where [the witnesses] said: "We were under duress because of money," But [if they said]: "We were under duress because of [danger to] life," they are believed.

Rava said to him: Is this really in his power? Since he has testified he cannot come back and testify again. And if you say: These words [apply to] oral [testimony], but not to a document, but surely Resh Lakish said: [If] witnesses are signed on a document, it is considered as if their testimony has been examined in court!

Rather, when [this] was said, it was said [in connection] with the first clause: "They are believed." Rami bar Chama said: They only taught [this] where [the witnesses] said: "We were under duress because of [danger] to life." But [if] they said: "We were under duress because of money," they are not believed. What is the reason? A person cannot make himself [out to be] wicked.

I. The points of disagreement between the two versions of Rami bar Chama's qualification of the Mishna

Rava's objection brings the Gemara to introduce a second version of Rami bar Chama's qualification of the mishna, according to which his distinction refers to the first part of the mishna, which deals with the case where the witnesses' handwriting cannot be authenticated from another place. It stands to reason, then, that one of the points of disagreement between the two versions relates to the application of the rule of "since he has testified, he cannot come back and testify again" to a written document. The Gemara assumes that according to the first version, this rule does not apply to the testimony offered in a written document, and it refutes this view based on the words of Resh Lakish. As the Ramban writes: "We are forced to say that he maintains that we only say 'since he has testified, he cannot come back and testify again' with respect to oral testimony."[1] If we wish to explain the first version's position on this point, it stands to reason that it disagrees not about the rule of "since he has testified," but rather about the nature of signatures attached to a written document. It maintains that we are not dealing with real testimony, or at least not with testimony that is regarded as having been examined in court so that it can no longer be retracted. In any event, on this point the Gemara maintains that we are dealing with a problematic version. There are, however, other points of disagreement between the two versions, which did not concern the Gemara with respect to the first version. It falls upon us then to analyze the positions of each of the two versions on these points.[2]

"We were minors, we were disqualified from giving evidence"

            One point relates to the various disqualifications brought in the mishna. According to the second version, Rami bar Chama's distinction between the two types of duress was stated with respect to the first part of the mishna. That is to say, even when there is no problem of "since he has testified," if the witnesses claim that they had signed the contract under duress because of money, the problem arises that "a person cannot make himself out to be wicked." From here it follows that this problem does not exist with respect to the other disqualifications: duress because of danger to life, minors, and people who are disqualified from giving evidence. According to the first version, on the other hand, this distinction was made with respect to the last part of the mishna, the sole problem there being that "a person cannot make himself out to be wicked." And as far as this problem is concerned, it is said that those under duress because of danger to their life should be removed from this problematic list, for in their case there is no wickedness, as opposed to those under duress because of money, minors and people disqualified from giving evidence. According to this, then, the two versions disagree about "we were minors, we were disqualified from giving evidence," if such claims raise the problem that "a person cannot make himself out to be wicked." Of course, the more surprising view is that of the first version – what wickedness is there here? This question was raised by the Ramban, who says as follows:

And furthermore, it is difficult: What is the difference between "we were minors" and "we were disqualified from giving evidence," where they are not believed, and "we were under duress because of danger to life," where they are believed? You can say that Rami bar Chama maintains that a person cannot make himself out to be wicked, nor that he had acted in an improper fashion. Therefore, [in the case of] duress because of money, and so too "we were minors, we were disqualified from giving evidence" – since they illegally signed the contract, they are not believed. But [in the case of] duress because of danger to life, since they didn't do anything that was forbidden, they are believed.

            That is to say, even though the assertion that "we were minors" or "we were disqualified from giving evidence" doesn't turn the witnesses into wicked people, it does testify to improper conduct. For a person who is disqualified from giving testimony is forbidden to offer oral testimony or sign a contract.[3] It is, however, a very novel idea to say that when a person testifies that he had done something forbidden while he was still a minor, the problem arises that a person cannot make himself out to be wicked.

            What is the position of the second version? Granted with respect to "we were minors," the second version might simply reject the novel idea presented above, but what can be said with respect to "we were disqualified from giving evidence"? It seems that according to the second version there is no problem of a person making himself out to be wicked, because the witnesses do not explicitly testify to any wickedness, but rather their words merely imply wickedness. When the witnesses testify about themselves that "we were minors, we were disqualified from giving testimony," they are not saying that they had been wicked; they are merely stating a fact. It is only when we combine this with the fact that they had attached their signatures to a contract that we can infer that they had acted improperly.[4] Once again the first version is surprising, for it assumes that testimony is not accepted if it implies that the witness is a wicked person. The source of such a disqualification is not clear, for the source mentioned in the talmudic passages – "a person is considered a relative to himself, and cannot make himself out to be wicked" – does not seem to apply when the wickedness is not part of the substance of the witness's testimony.[5]

            Indeed, the Tosafot propose a different understanding of the first version, according to which the disqualification of "we were minors, we were disqualified from giving evidence," is not based on the rule that a person cannot make himself out to be wicked. And according to them, the novel points suggested by the Ramban fall away:

They only taught this where the witnesses said: We were under duress because of money" – they are not believed because they cannot make themselves out to be wicked. And minors [are not believed], like Rabbi Shimon ben Lakish.[6] And people who were disqualified from giving evidence [are not believed] because the lender himself takes great care about the witnesses, as will be stated shortly.[7]

In other words, the reason we don't believe the claims of "we were minors" and "disqualified from giving evidence," is because these claims run counter to certain presumptions and are therefore dubious.

Does the argument that "the Mouth that forbade, etc." solve the problem that "a Person cannot make himself out to be wicked"?

            Another point of disagreement between the two versions of Rami bar Chama's qualification of the mishna relates to the claim of "we were under duress because of money" in the case where the witnesses' handwriting cannot be authenticated from another place. According to the second version, even though the argument that "the mouth that forbade is the mouth that permits" should be applicable, the claim is not accepted, because a person cannot make himself out to be wicked; whereas according to the first version, the argument is accepted.

            According to the second version, the law is that we accept the witnesses' claim that this is their handwriting, but we do not accept their claim that they had been under duress because of money. The Rashba maintains that on this point Rava relies on his own position in Sanhedrin regarding "dividing a statement" (palginan dibura). The Gemara there states (9b):

And Rav Yosef said: So-and-so sodomized him against his will – he and another join to execute him. [If he said so and so sodomized him] with his consent – he is wicked, and the Torah said: "Put not [your hand] with the wicked [to be] an [unrighteous] witness" (Shemot 23:1).

Rava said: A person is [considered] a relative to himself, and a person cannot make himself out to be wicked (Rashi: Because we divide his statement and believe him with respect to the other person, but we don't believe him regarding himself to disqualify him from giving testimony).

            And the Rashba on our passage states:

[If the witnesses claim] that "we were under duress because of money," even though their handwriting cannot be authenticated from somewhere else, they are not believed, because it is not in their power to make themselves out to be wicked. And we divide their testimony, and believe them regarding what they said, "This is our handwriting," but we do not believe them regarding what they said, "We were under duress," since they make themselves out to be wicked. This is like what they said regarding "So-and-so sodomized him with his consent," that he is believed for this reason that we divide his statement. Since he makes himself out to be wicked, it is not in his power, and we divide up his statement, and regard it as if he had said: "So-and-so sodomized him without specifying [against his will or with his consent]."

            The Ramban also relates to this possibility, but inclines toward a different understanding:

Even according to the authority who says that [in general] we don't divide his statement, [here we can divide] for they are two [different] things. And some explain that Rava answers in accordance with his own position, for he said: We divide his statement. The first [explanation] seems right [to me].

            According to the Ramban, even those who reject the idea of "dividing testimony" would agree that here we are dealing with two entirely different issues. Regarding one of them – identifying their handwriting – the witnesses are believed, whereas regarding the second one – "we were under duress because of money" – they are not believed, because a person cannot make himself out to be wicked.

            As for the first version of Rami bar Chama, there seems to be a fundamental difference between the Ramban's explanation and that of the other Rishonim. Rashi explains: "They only taught – that if their handwriting can be authenticated from somewhere else they are not believed in the case where they said: 'We were under duress because of money' – because it is not in their power to make themselves out to be wicked… And in the first part [of the mishna], the reason is that "the mouth that forbade is the mouth that permits." The Rashba writes in similar fashion: "When their handwriting cannot be authenticated from somewhere else, Rami bar Chama maintains that [the witnesses] are believed to say 'we were under duress because of money' and to make themselves out to be wicked. For since it is they who validate the contract, they can [also] invalidate it, for the mouth that forbade is the mouth that permits." The implication is that the argument of "the mouth that forbade, etc." is strong enough to overcome the problem that a person cannot make himself out to be wicked.  Therefore, the words of the witnesses are accepted – it is, indeed, their handwriting, but they signed the contract under duress.

            The Ramban, however, proposes a totally different understanding:

Where their handwriting can be authenticated from somewhere else, they are not believed regarding the contract, because they are wicked. But when their handwriting cannot be authenticated from somewhere else, if you say that they are not believed regarding what they said, "we were under duress," they should also not be believed regarding what they said, "this is our handwriting," because he doesn't accept that we divide the statement.

            As we saw above, the Ramban himself maintains in the second version that even the authority who says that we do not divide testimony would distinguish between "this is our handwriting" and "we were under duress," for "they are two [different] things." It seems, however, that in the first version this is not the case, and that from Rami bar Chama's position the Ramban arrives at the conclusion that the witnesses' testimony cannot be divided. Since we cannot divide testimony we cannot accept the entire package, but rather to reject it. Were the Ramban to agree with Rashi and the Rashba that according to the first version "the mouth that forbade, etc." overcomes the problem that a person cannot make himself out to be wicked, we would be able to accept their words even without the argument that "we do not divide testimony." It seems that according to the Ramban we are not dealing here with "the mouth that forbade," since it cannot overcome the problem that "a person cannot make himself out to be wicked," this problem causes us to disqualify their entire testimony. As opposed to the plain sense of the mishna that "they are believed," they are not believed at all. But the bottom lime of what they say is accepted – the contract is not confirmed. [While it is true that our mishna is part of a series of mishnayot dealing with "the mouth that forbade, etc." according to the first version according to the Ramban, we are not really dealing here with "the mouth that forbade," but with a similar practical solution, based on a different halakhic foundation.]

            There may be an important practical ramification between the two understandings of the first version, though this depends on a disagreement among the Rishonim regarding the principle that "the mouth that forbade is the mouth that permits." "The mouth that forbade" is based on the fact that our knowledge comes from the speaker, there being no witnesses to the facts to which he admits. What happens if witnesses come afterwards? The Gemara on p. 23a implies (at least with respect to the case under discussion there regarding a captive woman) that the witnesses do not retroactively impair the trustworthiness achieved by virtue of the argument that "the mouth that forbade is the mouth that permits," but the Rishonim there disagree whether this is true in general regarding "the mouth that forbade, etc.":

It says in the Hashlama… we must examine whether we say this regarding a field, when a person says at first: "It belonged to your father, but I bought it from you," and they believed him because of the "the mouth that forbade," and afterwards witnesses came saying that it had belonged to his father – whether we remove it from the person enjoying current possession or not. It seems that we do not remove it from him, for since they believed him, he is believed… [However, one can argue on this position], for it can be said that the two cases are not comparable, for we do not learn the law in a monetary case from a prohibition, and what should this person do who did not know at first that he had witnesses, and afterwards it became known to him and he brought them – should he lose his father's inheritance for this reason?… This requires further examination. Rav Me'ili, z"l. (Shita Mekubetzet 23a)

            On the simple level, there is room to connect this question to the different reasons underlying the law of "the mouth that forbade." If the idea is that we are dealing with a package deal of "take it or leave it," we can say that from the moment that we have our own source of information about the matter to which the claimant admitted – that the field had belonged to the other party, that the woman had been a married woman, that this was their handwriting, etc. – we no longer need his admission, and there is no "a mouth that forbade." But if we are dealing with trustworthiness, similar to a miggo, it is reasonable to say like the Hashlama: "Since they believe him, he is believed" – the reason to believe him is not weakened by the subsequent arrival of witnesses. The words of the Ramban on p. 18a imply that he maintains that "the mouth that forbade" is a kind of miggo: "And miggo is by Torah law, as we say below: From where do we know that 'the mouth that forbade is the mouth that permits' is by Torah law…." And in light of what we said it is reasonable to assume that he would accept the position of the Hashlama.

            Now if indeed we accept the view of the Hashlama, and say that once we invoke the rule of "the mouth that forbade," we believe the claimant even if witnesses come later and testify about the original information - then there may be an important practical difference between the various explanations. According to most of the Rishonim who understand that the fact that we believe the witnesses in the first part of the mishna is because of "the mouth that forbade," which is strong enough to overcome the problem that "a person cannot make himself out to be wicked," it turns out that the words of the witnesses are accepted: This is our handwriting, but we were under duress. This being the case, even were witnesses to come now and authenticate the signatures, this would not effect our believing the first witnesses. According to the Ramban, however, the witnesses' words are not accepted, for just as we don't accept what they said about having been under duress, so too we don't accept what they said that this is their handwriting. And therefore were witnesses to come now and authenticate the handwriting, we would accept this new testimony and confirm the contract, and there is no clash with the previous testimony, which had never been accepted.

            According to the second version, in any event, it seems to be clear that "the mouth that forbade" does not solve the problem that "a person cannot make himself out to be wicked," and therefore even in the first part of the mishna, we cannot accept the claim that "we were under duress because of money." But the matter is not so simple, for it follows from the words of the Tosafot (63b, s.v. aval) that miggo can be reason to accept a woman's claim that she had committed adultery with her consent and that her husband must divorce her, for she has a miggo that she could have said "he is repulsive to me." Later in the shiur we will see an answer to this question.

II. The application of the rule that "Since he has testified, he cannot come back and testify again" In our mishna according to the second version

After we have established that the law of "since he has testified, he cannot come back and testify again" applies to our mishna, the witnesses cannot retract their testimony in the contract - even with the claim of "we were under duress because of danger to life," which does not involve the problem of "a person making himself out to be wicked" – because of the rule of "since he has testified." This, however, gives rise to a question regarding the first part of the mishna – how do we overcome the problem of "since he has testified," in a situation where there is no problem of "a person making himself out to be wicked"?

The simple answer to this question seems to be that the rule of "the mouth that forbade" is strong enough to overcome the problem of "since he has testified."[8] Rashi, however, suggests a different direction:

Since he has testified, he cannot come back and testify again – for regarding testimony the verse speaks of a single telling: "If he does not tell" (Vayikra 5:1). And here too, since they are signed on the contract, that is their telling. How then are they believed to uproot [their testimony], inasmuch as their handwriting can be authenticated from somewhere else? Granted the first part [of the mishna], when their handwriting cannot be authenticated from somewhere else, and we rely upon them, it is all one telling, for surely in the same act of speaking in the time it takes to ask about someone's welfare they said, "But we were under duress." But here we do not rely on their mouths.

            Let us try to explain what Rashi is saying: The source of the rule of "since he has testified, he cannot come back and testify again" is from the fact that every person is given a one-time opportunity to testify on any given topic. Generally speaking, the testimony of witnesses who sign a contract ends at the time of the signing. But when the handwriting of the witnesses can't be authenticated from somewhere else, and we must rely upon them to confirm the document, there is a new definition of the testimony of the witnesses who signed the contract, that the witnesses who confirm their own signatures end their testimony only at the time of that confirmation.[9] [It is a little difficult to understand from where this new definition is derived, and why we should distinguish between confirmation by way of other witnesses and confirmation by way of the signatories themselves. The simple understanding is that when witnesses attest to their own signature, this is separate testimony - distinct from their original testimony – dealing with their signatures.[10] It is possible that Rashi's novel idea stems from a difficulty – how can the witnesses testify about themselves and about their signatures? This question has been raised in other contexts and given various answers, but it is possible that Rashi's answer is that indeed this is a special mechanism of confirmation, which constitutes a completion of the original testimony]. In any event, the reason that in the first part of the mishna there is no problem of "since he has testified" is not that "the mouth that forbade it" overcomes it, but rather that the testimony is not finished until the end of the confirmation process and it was during this process that the witnesses added, "but we were under duress."[11]

            The very need to authenticate the signatures on a contract is a rabbinic enactment, for by Torah law if witnesses are signed on a document, it is considered as if their testimony has been examined in court. It turns out then that by Torah law their testimony is complete as soon as they sign the document. However, once the Sages enacted that a contract is only valid after the signatures have been authenticated, an invalidated contract is defined as suspect.  As long as the testimony remains suspect and is not accepted by the court, it is not considered testimony even according to Torah law.

            The issues that we have been dealing with – the ability of "the mouth that forbade" to overcome "a person cannot make himself out to be wicked" and "since he has testified" – are subject to extensive discussion in the novellae of Rabbi Akiva Eiger ad loc., in a passage that he wrote and in a long passage authored by his son, R. Shelomo Eiger that is appended there, (it is recommended that you examine what is written there.) In this framework, I wish to dwell on one point raised by R. Shelomo Eiger.

            As was noted above, it follows from the second version that "the mouth that forbade" does not solve the problem that "a person cannot make himself out to be wicked," though we noted that this contradicts what is stated in Tosafot 63b. If we take this together with the words of Rashi, we should conclude that "the mouth that forbade" justifies believing the claimant where we would otherwise not believe him, but it does not solve the problems that prevent us from believing him, e.g., "a person cannot make himself out to be wicked" and "since he has testified." R. Shelomo Eiger proposes a different understanding. According to him, it is possible that "the mouth that forbade" solves the problem that "a person cannot make himself out to be wicked," as argued by the Tosafot on p. 63b. But in that case we are not dealing with the giving of testimony, but rather we believe the claimant because of the general assessment (umdana) that underlies miggo and "the mouth that forbade." Accordingly, the witnesses are believed when they say "we were under duress because of money" when their signatures cannot be authenticated from somewhere else, but then it is not part of their testimony, but an outside umdana. Their testimony is already complete, and thus there is a problem of "since he has testified," this being based on the words of Rashi, that "the mouth that forbade" does not solve the problem of "since he has testified," and the law in the first part of the mishna is based on the fact that the testimony is not complete. Based on this novel idea, R. Shelomo Eiger proposes solutions for other difficulties as well (see what he writes there).

(Translated by David Strauss)

 

For our next shiur, please continue learning through Ketubot 19. "Abaye amar." The shiur will focus on the dispute regarding the acknowledgment of the deed that they wrote, if it need be maintained.

Try to understand both opinions on the subject and the questions that arise within each position, and carefully review the Tosafot s.v. Modeh.