Translated by Menachem Weinberg
In the course of the discussion, the gemara (Kiddushin 66a) discusses King Yannai's status as a kohen. The gemara raises the possibility that this was a case of 'trei u-trei,' 'two against two,' i.e., two witnesses said that his mother was captured, and two said that she was not.
Rashi says that if his mother had appeared we would have accepted her as eligible for marriage to a kohen based on her chezkat kashrut (Her original status was one of eligibility, and there is no clear-cut proof that this status changed)), and her son would consequently be ruled eligible as a kohen. However, because the mother did not come and our decision focuses on Yannai himself, it is impossible to transfer a chazaka from the mother and apply it to her son. Therefore we cannot establish Yannai as a valid kohen based on a chazaka.
Tosafot differ from Rashi and hold that we do transfer the chazaka of the mother to the son, and he should essentially be eligible. However, rabbinic law prevents the application of a chazaka in cases of trei u-trei.
We do not intend to relate directly to this machloket in the forthcoming shiur, but rather we will relate to the central issue of trei u-trei. After we learn the basics of trei u-trei, we will be able to understand where Tosafot and Rashi differ.
In the course of this shiur, we will discuss the power of eidut, testimony. As is well known, in other legal systems, testimony is not given the same import as in halakha where 'on the basis of two witnesses will a matter be established.' We will try to clarify whether in the case of trei u-trei perhaps we do allow a decision based on circumstantial evidence or other forms of verification.
The gemara in Bava Batra (31a-b) brings a machloket between Rav Huna and Rav Chisda regarding a case of trei u-trei. According to Rav Chisda all four witnesses are considered false witnesses and can no longer testify. According to Rav Huna, in future testimonies, 'this one comes independently and testifies, and this one comes independently and testifies.'
It seems that their machloket is simply whether trei u-trei is an invalidation of the testimony (psul ba-eidut), or an invalidation of the witnesses (psul ba-eidim). According to Rav Chisda the witnesses themselves become invalid and therefore can no longer testify. According to Rav Huna, only this specific testimony was contradicted and thereby nullified. Therefore the witnesses are valid for other cases. In practice, we rule in accordance with Rav Huna, but as we shall see, his approach requires further elaboration and explanation.
The Question from Ketubot
In Ketubot (22a, according to Rashi) the gemara brings a case of trei u-trei regarding the reliability of an individual to testify. If two witnesses say that he is reliable and two testify that he is not, the gemara concludes, that this individual is invalid to testify as a witness. The obvious question is why - Rav Huna clearly stated that trei u-trei does not invalidate the witnesses from future testimony, but rather (as the Rashbam in Bava Batra comments) leaves them in the status of kashrut as per their chazaka.
The Bakh (siman 34) answers that in the standard case of trei u-trei, there is no direct testimony against either of the groups that says that they are invalid. The eidim merely contradict each other regarding an independent issue. From this we infer that one set of witnesses has lied and is consequently invalid. Since we don't know which set has lied, we can apply chezkat kashrut. However, in Ketubot, the groups are arguing directly about the individual's validity. In such a case the stalemate is treated (by rabbinic law) as an objective safek, which cannot be decided by a chazaka.
The Chakham Tzvi (see Ketzot 34:6) answers differently. Normally we would accept the conclusion of the gemara in Ketubot; that we do not apply chazaka where we have a safek based on contradicting eidim. However, in the case of trei u-trei the doubt is weaker than normal, since the witnesses have two things in their favor (tartei le-tivuta):
1. The witnesses have a chazaka, 2. It is certain that one of the groups is valid. In other words, it is clear that there are valid witnesses here, but we just don't know which they are. The chazaka builds on the assumption that each group is the valid one.
Understanding the Bakh's answer - Approach #1 to trei u-trei
R. Akiva Eiger (Responsa 136-7) raises the following questions: What if someone demands the return of a loan based on a shtar (contract) and subsequently two witnesses say that the defendant paid the loan while two other witnesses testify that he did not. Should we say that since this is a case of trei u-trei, the plaintiff should prevail as usual due to his proof offered by the shtar Furthermore, what if two witnesses come and say that the defendant paid up before the time, and two say that he did not. Should we say again that the plaintiff wins because of the chazaka that a person normally does not pay before the loan is due. (Bava Batra 5b).
R. Akiva Eiger answers (in one approach) that the chazaka and the shtar have no effect and do not influence the outcome. A doubt raised by trei u-trei can not be decided by other indicators. He explains that witnesses are the ultimate proof and are considered more significant than other forms of evidence. Therefore it is not conceivable that a lesser proof should outweigh the witnesses. Even though you might think that eidim and a lesser proof merge to improve the quality of the evidence, this is not so. We know that two witnesses are like 100 - even if another 100 witnesses or groups come to testify for one side, it is insignificant. Clearly, lesser proofs can not be any stronger than additional groups of witnesses.
From this we can infer that if two witnesses testify that someone is a valid witness, and two say the opposite, the fact that this individual has an additional chezkat kashrut is irrelevant because a chazaka can not have a greater effect than eidim. However, in our case, there is no direct eidut regarding the kashrut of the witnesses. Rather we merely infer that one of them must be lying since they contradict. Therefore we can apply the chazaka, and assume independently that each one is valid.
We can bring a proof for this approach from Tosafot in Bava Batra (31b s.v. Ve-zo Ba'a). Tosafot ask why we don't believe the second group of witnesses whenever they contradict the first. They should be believed because of a migo (see shiur #27) - they could have testified that the first group is invalid (e.g. thieves etc.). In their first answer Tosafot say that we don't apply migo where there are eidim. In other words migo will not help the second pair because they are up against other eidim. Again we see that eidim + a proof (like migo) is irrelevant, because eidim themselves are the maximum proof possible.
Understanding the power of witnesses
In all areas of Torah, we follow majority rule. Why then is testimony different where 2 witnesses have the power of 100? Following the majority is based on estimation - the majority rules what seems logical and reasonable. But in testimony there is no room for estimation - we need an accurate reflection of the facts. The Torah decreed that two eidim can present the equivalent of a perfectly clear picture of what happened, and we can even execute capital punishment on this basis. Now we can understand, that even if there are many witnesses, it only gives us additional parallel pictures. However, it does not qualitatively improve the accuracy (see shiur #31). (The strength of eyewitness testimony also stems from the great stringency that was practiced in checking and cross-examining the witnesses.)
We saw that R. Akiva Eiger understands that testimony represents the ultimate proof, and therefore chazaka and the like can not decide in a case of trei u-trei. We also showed a proof for this approach from Tosafot who say that in a case of trei u-trei, migo is inapplicable.
Approach #2 to trei u-trei
Tosafot bring an additional answer: There is no migo when a claim is made by more than one person. It is possible that the second answer argues with the first answer (see R. Akiva Eiger). Accordingly, the second answer would accept a valid migo within the context of trei u-trei.
It could be that the argument between the two answers revolves around how we perceive contradicting eidut. Everybody agrees that eidim are the ultimate proof; however, the first answer (and Rabbi Akiva Eiger) hold that when we have trei u-trei, we see both groups as still existing, and therefore there is no value to additional proofs and chazakot that attempt to support existent eidut. The second answer understands that in a case of trei u-trei we assume that the witnesses have canceled each other out. That is, we see both testimonies as invalid and therefore non-existent because of the contradiction. Therefore there migo or a chazaka can be decisive. (This is known as "keg-man de-leitnehu" - see shiur #19).
It is difficult to understand this second approach. If the eidim are considered non-existent, how can a migo give credence to their claim! It must be understood, therefore, that even those who say ke-man de-leitnehu do not think that we have erased the testimony as if they never existed. The eidim exist, but the special reliability that the Torah gave them has disappeared. Therefore, with a migo it is possible to retrieve this status for one of the groups.
Chazaka in a case of trei u-trei
It could also be that the first answer in Tosafot is not a proof for Rabbi Akiva Eiger's approach. The Tosafot spoke of the fact that migo can not decide between trei u-trei, but perhaps that is limited to migo and does not apply to chazaka.
The Torah believed witnesses and therefore migo can not add support to the reliability of the eidim (In a case of trei u-trei their reliability falls off. Migo can not return this reliability in a place where the reliability from the Torah has fallen off.) However, maybe specifically for this reason, side proofs can be decisive. If we see the witnesses ke-man de-leitnehu - as if they are no longer existent - then since the testimony is denied, other evidence can 'take center stage' and help arbitrate. Therefore, if the testimony falls away, the chazaka or the shtar etc. are useful as if no witnesses ever came at all. However, migo does not help us for it is a support of the testimony which has been disqualified.
Perhaps we can support this idea from Rabbenu Yona. He relates to a complex case in Bava Batra (32a) where a rumor had circulated about a kohen claiming that he was the son of a divorcee (thereby disqualifying him from kehuna). Subsequently, two sets of eidim came with conflicting testimony. The gemara concludes that the kohen is assumed to be valid by virtue of his chazaka. The Rishonim ask: Why shouldn't the rumor provide support for those eidim that testify to his disqualification? Rabbenu Yona answers that the rumor is irrelevant because it is based on people's general opinion and is therefore no better than two witnesses. But then he adds (32a s.v. Ve-ata Ed): "But chazaka surely supports testimony even though two witnesses that help them do not, because chazaka is not the same type as testimony." It seems from this that side proofs can decide a case of trei u-trei, while all forms of testimony are invalid.
However it is possible to understand Rabbenu Yona differently. R. Yona did not say that the chazaka works because it does not relate to the testimony, as we explained in the Tosafot. Rather, he said that "chazaka is not a type of eidut." It appears from his wording that no factual verification can be made whatsoever, but here the chazaka is not verification. Since we see the eidim in a case of trei u-trei as nullified, we leave the case in its previous state - i.e. the chazaka. (Even though chezkat beirur is usually better than chezkat hanhaga, in the situation of trei u-trei this switches. Since chezkat beirur deals with facts, it is ignored where there are eidim. But chezkat hanhaga does not deal with the facts.)
We explained the opinion which allows for other forms of verification in the case of trei u-trei based on ke-man de-leitnehu. Based on this we can also understand Tosafot (Bava Batra 32a s.v. Anan). The gemara says that when trei u-trei argue whether or not the husband died, the woman can not get married, but if she did marry she does not require a divorce. Tosafot ask why - she should have to get divorced because she has a chazaka of being an eshet ish (a married woman)? They answer that the chazaka that a woman is careful when she gets married is stronger than the chezkat eshet ish. However, we must ask - how can we factor in this chazaka since we have explicit witnesses - trei u-trei! It must be that we view the eidim as ke-man de-leitnehu, non-existent and therefore a side proof can be decisive.
According to this approach, in cases of trei u-trei we cannot bolster the testimony of the contradicted eidim. Nevertheless, it is possible to verify the facts utilizing other indicators.
It could also be that the rationale of this opinion stems from a variant understanding of trei ke-mea (two eidim are like a hundred): According to our first understanding the power of two witnesses is absolute, and, therefore, even if they bring more eidim, there will be no enhancement of the evidence. Perhaps, the power of two eidim is not considered to be absolute. Nevertheless, two eidim are equivalent to 100, since the testimony of 100 adds nothing qualitatively. Therefore, when the eidim contradict, other forms of verification can actually help to tip the scales. (See Kovetz Shiurim Baba Kama 49)
We saw three possible approaches in deciding a case of trei u-trei.
1. Eidim are considered as absolute proof. Even when two sets of eidim contradict we consider the eidim as ke-man de-itnehu, the witnesses are still considered to be present. Therefore, no verification is irrelevant.
2. Eidim are considered as absolute proof. However, contradictory eidim are ke-man de-leitnehu, the witnesses are canceled out and other evidence is decisive.
3. Eidim is not considered as absolute proof. As long as there are no contradicting witnesses, this testimony is the best proof and no other evidence can have sway. Only when the testimony is contradicted and we can not use it is there meaning to additional proofs
We introduced this shiur by quoting the argument between Rashi and Tosafot regarding the use of Yannai's mother's chazaka in a case of trei u-trei. According to Tosafot, according to torah law the chazaka of the mother can be applied to Yannai since we view the eidim as non-existent -ke-man de-letnahu. However, on the rabbinic level we consider the eidim existent, and therefore cannot apply any chazaka.
According to Rashi, we would apply chazaka in the case of trei u-trei if the chazaka related to Yannai directly; however, we cannot apply the chazaka of Yannai's mother in the case of Yannai. Tosafot question this ruling based on a gemara in Ketubot (13a) which states explicitly that the chazaka of the mother affects the child. Furthermore, if we can determine (based on her personal chazaka) that Yannai's mother is qualified for kehuna, it follows automatically that Yannai qualifies as well.
We can suggest that according to Rashi there are two types of chazakot. One type is a chezkat beirur which uses chazakot in order to verify the facts. This type of chazaka is a form of proof. The second type is chezkat hanhaga which guides the ruling when the facts cannot be verified. When the chazaka functions as verification, the chazaka of the mother can be applied to the son as well, since the same events determine both cases (see Ketubot 13a). However, in our gemara which is a case of trei u-trei, chezkat beirur cannot be applied (if we consider the eidim ke-man de-itnehu). Consequently, we are dealing only with a chezkat hanhaga. Since the mother has a personal chezkat kashrut, we would not disqualify her without sufficient proof. Yannai, on the other hand, is disqualified mi-safek, lacking a personal chezkat kashrut.
Kiddushin - Summer Semester
Today's shiur is the last one based on the shiurim given in the Yeshiva this winter. The Yeshiva reached Kiddushin 66 before the Pesach break, and has been studying Pesachim this summer. (The VBM will be studying Pesachim next fall.) Starting this week, the VBM will continue in Kiddushin. From the mishna in 66b, a totally new section of Kiddushin begins, dealing with "yuchsin" - personal marriage status and genealogy. The shiurim will be based on a "seder bekiyut" - that is, they are intended to aid, fill in gaps, and broaden your own learning, rather than deal intensively, as an independent lecture, with one topic. The shiurim will be prepared by Rav Ezra Bick, who encourages questions from the subscribers. An introduction will be sent this Tuesday.
Since this constitutes an independent unit of study, this is a good time to re-establish your own "seder," if you haven't been keeping to it as much as you expected. This is also an opportunity to sign up your friends, find a chavruta, or organize a study group for the summer.