THOUGHTS ON THE DAILY DAF
brought to you by Kollel Iyun Hadaf of Har Nof
Rosh Kollel: Rav Mordecai Kornfeld
Ask A Question about the Daf
Bava Basra, 128
BAVA BASRA 126-128 - have been generously dedicated by Dick and Beverly
Horowitz of Los Angeles, California. May they be blessed with a life of joy
and much Nachas from their children and grandchildren.
1) ACCEPTING TESTIMONY OF A PERSON WHO CAN HEAR BUT CANNOT SPEAK
OPINIONS: The Gemara discusses various cases of a person who saw an event
but then became disqualified from testifying, such as a person who became
mute. Does this imply that a person who can hear but cannot speak is
disqualified from testifying?
(a) The RASHBAM (DH v'Nischaresh) maintains that a person who can hear but
cannot speak is not intrinsically disqualified from being a witness. Rather,
a technical problem prevents him from testifying. His only method of
testifying would be through writing, and since written testimony is not
valid, it is not possible for him to testify.
(b) The ROSH (8:24) writes that such a person is disqualified from testimony
because the verse states with regard to witnesses, "Im Lo Yagid" -- "if he
does not say [the testimony]" (Vayikra 5:1), which implies that there is a
requirement that the witness be able to verbally express the testimony.
The KETZOS HA'CHOSHEN (46:19) writes that one who cannot speak may not serve
as a witness to sign a Shtar, even though no verbal testimony is necessary.
Such a person is disqualified from all forms of testimony. This is
consistent with the opinion of the Rosh. The Rashbam, however, would permit
the signature of such a person on a Shtar, as the DIVREI MISHPAT points out.
Since the Rashbam holds that a person who cannot speak is essentially a
valid witness but he cannot testify in a normal case because his written
testimony is not accepted; however, in a case where written testimony is
valid (such as a Shtar), he will be a valid witness.
RAV REUVEN GROZOFSKY (Yevamos 28:3) suggests that it is possible that even
the Rosh would accept the a mute person's signature on a Shtar. He explains
that there are two ways to explain why written testimony is not accepted.
The first way of explaining is that writing does not have the legal status
of speaking. The second way of explaining is that although writing does have
the legal status of speaking (and thus when the witness signs it is as if he
is speaking), nevertheless written testimony cannot be accepted because the
court must hear testimony from the witness and not just be aware of
testimony that took place at a different time (such as when the witness
signed the Shtar). If the second approach is correct, then the reason why a
Shtar is acceptable in court is because it is considered to be testimony
that was already accepted and verified by Beis Din at the time that it was
signed. Consequently, even though a person who is mute is disqualified from
testifying in person because he cannot convey his testimony orally, his
signature on a Shtar is accepted. His signature attesting to what is written
in the Shtar is considered to be testimony through speech, and such
testimony suffices in the case of a Shtar. (Y. Marcus)
2) WITNESSES WHO CONTRADICT A PERSON FOR HIS BENEFIT
QUESTION: Rebbi Aba sent to Rav Yosef his ruling in a case in which a lender
demands the repayment of a loan from the borrower, and he presents a Shtar
that attests to the loan. The borrower claims that he already paid back half
of the loan. Witnesses later come and testify that the borrower paid back
the entire loan.
Rebbi Aba (according to the explanation of most Rishonim) ruled that the
borrower must make a Shevu'ah of Modeh b'Miktzas in order to exempt himself
from paying the half of the loan that he denies that he owes. The other part
of the loan (which the borrower admits that he owes, but which the witnesses
say that he paid back) may be collected by the lender, but only from
Nechasim Benei Chorin and not from Nechasim Meshu'abadim (land which the
borrower owned at the time that he took the loan and which he later sold to
Lekuchos). Since the witnesses say that the borrower already paid back the
entire loan, the Lekuchos who bought his land can claim that they are
relying on the testimony of the witnesses.
This ruling seems difficult to understand. If we rely on the witnesses such
that the lender may not collect the loan from Nechasim Meshu'abadim, then
why does the borrower need to make a Shevu'ah on the part of the loan that
he says he already paid? Whenever a person is Modeh b'Miktzas, admitting
that he owes part of the claim and claiming that he paid back the other
part, and he has witnesses who support his claim that he paid back the other
part, he does *not* have to make a Shevu'ah! If, on the other hand, we
disregard the witnesses because the borrower himself contradicts them (and
we accept the borrower's word, since he is believed, with regard to
obligating himself, to contradict the testimony of witnesses), why, then, is
he believed with a Shevu'ah to say that he paid back half of the loan? The
lender is holding a valid Shtar that says that he owes the entire loan (and
the Shevu'ah of Modeh b'Miktzas applies only when there is no Shtar)!
(RA'AVAD cited by RASHBA, RITVA)
(a) The RA'AVAD answers that the case of our Gemara is when the borrower
states only, "I paid back half," and he does *not* say, "I paid back half
*and not more*" (see, however, RASHBAM in DH v'Loveh Amar). Since he says
nothing about the other half of the loan, it could be that he means that he
does not remember whether he paid it back or not. Perhaps he is saying that
he is certain that he paid back half of the loan, but he does not remember
whether he paid back the other half. The witnesses come and say that they
remember that he paid back all of the loan. Accordingly, the borrower is not
contradicting the witnesses (and thus he should be exempt from paying
anything, even without a Shevu'ah).
However, perhaps this is not his intention when he says that he paid back
half, but rather he means that he *only* paid back half and not more.
Since there is a doubt whether he is in agreement with the witnesses or
whether he is contradicting them, we rule stringently with regard to himself
and say that he is contradicting the witnesses and we disregard their
testimony. However, we accept their testimony with regard to weakening the
strength of the Shtar against him, and thus we treat this like a normal case
of Modeh b'Miktzas and require the borrower to make a Shevu'ah in order to
be exempt from paying half.
On the other hand, with regard to the people who bought his land, we say
that he is *not* contradicting the witnesses and we accept their testimony.
Therefore, the lender cannot collect from Nechasim Meshu'abadim.
(b) The RAMAH and RABEINU YONAH explain that, in essence, we accept the
testimony of the witnesses (and therefore the lender cannot collect from the
Nechasim Meshu'abadim from the Lekuchos). Even though, according to the
borrower's words, the witnesses are not telling the truth (and thus we
should not exempt him at all since there is a Shtar against him), we accept
his claim with a Shevu'ah because he has a Migu that he could have said that
he paid back everything. He would have been believed because there are
witnesses who support that claim. (The Migu does not exempt him from the
Shevu'ah, though, because of the general rule that a Migu cannot exempt a
person from a Shevu'ah.)
(c) Others (see ME'IRI) explain that the testimony of the witnesses (who say
that he paid) is able to nullify the power of the Shtar (who says that he
did not pay). However, the testimony of the borrower himself cancels the
testimony of the witnesses. Consequently, the claim against him (that he
owes the entire amount) is upheld only because of his own admission.
Therefore, he is believed with a Shevu'ah of Modeh b'Miktzas to exempt
himself from the half that he denies, while we do not accept his word to
obligate the Lekuchos.