Makos 6a

Shiur 8/19/2014 With Thanks to Eli Chitrik

1.  We continued to discuss the question of last week of the Rov of Vilna, Reb Chaim Oizer Grodzinsky regarding the concept of ‘toch ke’dai dibur’.

Either it takes effect immediately (at the beginning of the three second period) but it can reversed within three second .Or – it only takes effect at the conclusion of the three seconds. Before the end of the three second period nothing has been affected.

Reb Chaim Oizer brings a simple proof that it is the latter. Case of the fellow that tore ‘kriah’ before his relative actually passed away. But within 3 seconds of him tearing ‘kriah’ the relative did actually pass on. The Gemora states clearly that he is ‘yotze’ the chiyuv of ‘kriah’.

Now if we were to say that it takes effect right when he did it, then he tore ‘kriah’ prior to the chiyuv!

On the other hand, if we say that it only takes effect at the conclusion of the 3 second period, so at the time it actually took effect his relative has already passed on and he was obligated to do tear ‘kriah’ and therefore he is yotze.

There is more to it but that’s enough for today.

2. The Mishnah/Gemora discusses the Gezeiras Hakosuv that if a group of witnesses ‘join together’ they form one entity. Therefore if even a single member of this group is found to be a relative (to the plaintiff or defendant) or unqualified to be a witness (e.g. a gambler) the entire group is disqualified.

The Gemora initially thought that anyone witnessing the act becomes part of the ‘witnessing group’.

So it asks a simple (funny) question: A group of people witness a murder. The poor victim who was murdered also saw himself being murdered. He thus belongs to the ‘group’ of witnesses. And he is obviously disqualified to testify for himself (see further as to why).  If this logic holds true then we can never convict a murder since the ‘group of witnesses’ is disqualified because of the victim who by witnessing is part of the group!

Can you please tell us who murdered you?

The Gemorah answers that this Torah rule applies only to the people seeing/witnessing the act, but not to actual players, such as the murderer or murdered.

Back to the original question: The Gemora assumed that the victim is disqualified to testify against his murderer. Rashi explains that since a person is his own relative and relatives are disqualified to testify (for their relatives). Tosfos adds another answer: The victim is obviously not a friend of his killer. He therefore is disqualified because of the rule that a hater or enemy cannot testify against his enemy.

We mentioned the opinion of the famous Rishon, Reb Mordechai ben Hillel 1250–1298. (See here in English Hebrew)  Known simply as the Mordechai his writings served as one of the basic Halocho seforim which the Bais Yosef wrote his Shulchan Oruch. He had a tragic life, dying as a martyr when he and his entire family were killed in a pogrom.

 

See more information about the series of massacres here and here. Ed.

His original Pesak is that the relatives of someone who was murdered are not considered “Kerovim” relatives and they are permitted to give testimony against the murderer.

If a murder victim is not considered his own relative then why did the Gemorah want to disqualify the entire group of witnesses due to the murdered seeing his own execution?

The Mordechai answers (and it is indeed fascinating) that the Gemora was talking in a case where the victim was killed….but didn’t die yet…. He is a ‘treifa…and he comes to Beis Din to testify against his killer. He is disqualified to testify because a ‘treifa’ cannot be a witness and thereby he disqualifies the entire group!

~

3. Tosfos raises and interesting question: A divorce is not valid unless it takes place before qualified witnesses. Since relatives are often present and therefore witnesses to the proceeding, why do these relatives not invalidate all the other witnesses? By being present they become part of ‘the witness group’. See above #2. This is especially problematic according to R’ Yossi who automatically considers everyone who sees an event part of the set of witnesses. However, it is a problem even according to Rebbi, since it is possible that one of the relatives will unwittingly intend to view the proceedings as witness, which would make part of the set and disqualify all the witnesses.

We discussed the custom in many communities that avoid this issue by announcing at a Chupa that the selected witnesses are “to the exclusion of all others”.

Tosfos answers that a disqualified witness invalidates the rest of the testimony only if he actually testifies in court.  The mere presence of relatives at a divorce would not disqualify the set of witnesses even if the relatives intended to serve as witnesses.

The Ketzos Hachosen (See here in English Hebrew) comes up with a unique explanation. Unlike all other cases where the witnesses are just present for verification, at a wedding or divorce they are not only witnesses but part of the process.

 He writes that at a wedding or divorce due to the importance of the witnesses, the man and woman have in mind particular witnesses to observe the ceremony and become part of the ceremony. It is thus obvious they are designating only people who are permitted to testify. They automatically exclude relatives.

The Ketzos does conclude that it is best to designate specific witnesses so that there be no question about the validity of the divorce or marriage proceeding.