Commentary for Bava Metzia 7:4
פיו יוכיח מה לפיו שכן אינו בהכחשה עד אחד יוכיח שישנו בהכחשה ומחייבו שבועה
while several witnesses only oblige the defendant to pay money?<span class="x" onmousemove="('comment',' The sum regarding which the witnesses give evidence has to be paid by the defendant, and thus there is no oath to carry with it another oath. ');"><sup>4</sup></span>
Tosafot on Bava Metzia
[The oath obligated by] a single witness which is subject to contradiction and hazamah1See Artscroll 3B3 note 23 for a definition of hazamah. demonstrates [that an oath can be obligated by testimony which is subject to nullification by contradiction and hazamah]. For proper understanding of this Tosfos we must keep in mind:
Hazamah has a double function. It causes a) nullification of the testimony and also b) obligates the zomemim witnesses to pay their intended victim what their testimony would have cost him.
For the sake of clarity, we will mark each reference to witnesses’ testimony with:
z) for the zomemin witness who testify falsely about an intended victim.
m) for the second set of witnesses who are מזים - discredit the zomemim witnesses.
The word hazamah does not appear in our text of the Gemara. Tosfos will defend the text that does have this word in this sentence. The word hazamah usually conjures the punishment meted out to zomemim z) witnesses whose testimony is discredited by other m) witnesses who testify that we were with the zomemim witnesses elsewhere at the time of the purported event and they could not possibly have seen the event about which they are testifying.
Usually, zomemim witnesses are subject to the punishment for the crime that they are testifying about. This is not true when there is only one witness. This is of course the reason for not having the word hazamah in the text of our Gemara, since a single witness is not subject to this penalty. Tosfos explains that even though one witness is not subject to the standard b) punishment of zomemim witnesses, the word can appear in our Gemara.
The word hazamah can rightfully appear here in this sentence, since by the process of hazamah [the single witness’] testimony is nullified. Even though the usual punishment for hazamah b) is inapplicable, the process does a) nullify his testimony. This is an inherent weakness of a single witness’ testimony as compared to a defendant’s admission. At this point in the dialogue, where the Gemara is demonstrating the relative strengths and weaknesses of various sources of information, it is justified in mentioning that the single witness’ testimony is subject to a) nullification by the process of hazamah.
At this point the Gemara is attempting to disprove the kal v’chomer that witnesses’ testimony on half the plaintiff’s claim can obligate an oath by the defendant. The objective of such analysis is to show that one’s admission is inherently stronger than the testimony of witnesses and that is why one’s own admission generates an obligation to swear, whereas witnesses’ testimony which is inherently weaker cannot generate such an obligation.
Proof that one’s admission is more powerful > than witnesses’ testimony:
One’s own admission cannot be nullified by the hazamah process, whereas:
Witnesses’ testimony can be nullified by the hazamah process.
Tosfos now entertains the notion that there is an extremely powerful aspect of one’s own admission as compared to witnesses’ testimony that seems to have been overlooked by our Gemara. That is the fact that zomemim witnesses must pay the amount that they planned to obligate their victim to pay. For example: When z) witnesses testify that Ruvain owes Shimon one hundred zuz and it turns out that they are zomemim, the z) witnesses must pay Ruvain one hundred zuz.
This is totally untrue of one’s own admission. For example: If Ruvain admits that he borrowed a hundred zuz from Shimom on Sunday the first of Nissan at twelve noon in New York City. m) Witnesses testify that Ruvain was with them in Los Angeles on Sunday the first of Nissan at nine a.m. Pacific time. Ruvain is not obligated to pay even though m) witnesses say that he falsely admitted that he owes Shimon one hundred zuz.2Tosfos seems to understand that it is because one’s own admission is so powerful that he is not required to pay even when discredited by m) witnesses. Some of the latter commentators raise the following question: Perhaps the reason Ruvain is not required to pay is because there is nobody to whom he must pay. After all, he himself was the intended victim of his false admission. To whom should he pay the hazamah penalty? See אמרי בנימין and נחלת משה who discuss this question. Perhaps, we are speaking of a situation where others will be hurt by his own admission, even though he is not directly testifying about them. For example: his debtors sold his loans to other people. If his debts are minimal they are worth significantly more than if he is heavily in debt. By falsely admitting that he owes much more money than he actually does, he is reducing the value of his paper and would be harming the holders of such loans. Tosfos assumes that he does not have to pay those loan holders the difference in value between when he had not yet admitted his greater liability and when he did falsely admit his greater liability.
Perhaps the Gemara should have used this strength of one’s admission as compared to witnesses’ testimony to undermine the basis of the kal v’chomer. We should not ask this question to undermine the kal v’chomer by proving that one’s admission is stronger than witnesses’ testimony, as follows: What can you prove from one’s own admission, which is so powerful that he does not need to pay even when his admission is nullified by the process of hazamah? Can you say the same for witnesses who do need to pay their intended victim when their testimony is nullified by the process of hazamah?
Proof that one’s admission is more powerful > than witnesses’ testimony:
Witnesses must pay when their testimony is discredited by hazamah, whereas,
One does not need to pay when his admission is discredited by hazamah.
This challenge to the kal v’chomer is much more potent than the Gemara’s present challenge, which is demonstrating that one’s own admission stands even when assailed by hazamah as compared to the testimony of witnesses which is nullified by the process of hazamah. This is countered by introducing a solitary witness, whose testimony can also be nullified by hazamah and even so his testimony generates an oath obligation.
Proof that even testimony that can be nullified by hazamah generates an oath obligation:
The testimony of a single witness can be nullified by hazamah and even so it generates an oath obligation.
But if the Gemara is demonstrating the power of an admission that he cannot be obligated to pay by the process of hazamah, we cannot use the single witness to prove that even when testimony is from a source that needs to pay when nullified by hazamah as proof that even testimony that is subject to the penalty of hazamah can generate an oath obligation, because the single witness also does not pay when his testimony is nullified by hazamah.
Then had the Gemara focused on aspect b), the admission not being subject to paying when nullified by hazamah, [the Gemara] could not have said - a single witness proves that even testimony that is b) subject to pay when nullified by hazamah generates an oath obligation, because a single witness also does not pay when his testimony is nullified by hazamah. If so, both source of the common characteristic system would be instances where they cannot be obligated to pay via the process of hazamah. How can we learn from either of these two sources that witnesses’ testimony, which is subject to pay via the process of hazama can also generate an oath obligation?
Tosfos explains that this argument that both sources of the kal v’chomer are beyond paying via hazamah is simply not true. It is definitely true that one’s admission is more powerful than witnesses’ testimony and that is why he does not pay when his admission is discredited by hazamah, but the same cannot be said for the single witness who does not pay when his testimony is nullified by two witnesses.
For the reason that a single witness does not pay when his testimony is nullified by hazamah, is not because it is more stringent or more powerful than the testimony of two witnesses, as is one’s admission, rather, the reason for his not needing to pay is the inherent impotence of his testimony, because with his testimony he cannot obligate his intended victim to pay money. Therefore, since his statement is a) nullified4See Rashi חולין קטז. ד'ה אבל: We challenge common characteristic derivation with even an insignificant challenge. So are the systems of expounding the written law handed to us from Sinai. via the hazamah process, it is considered that his testimony is subject to hazamah.
In the case of a single witness, the b) punishment aspect cannot be invoked, because of the inherent impotence of a single witness’ testimony, but the a) nullification aspect can be applied. Thus his testimony is viewed as subject to hazamah. Even so, he can generate an oath obligation, so too, two witnesses whose testimony is subject to hazamah can also generate an oath obligation.
The Gemara will soon say: How can you learn from the common characteristic of an admission and a single witness, but in both those cases the punishment of hazamah is not applied? We see that the Gemara does consider aspect b) a proper challenge to the derivation.
But shortly the Gemara does use this aspect b) to challenge the common characteristic derivation? That is because when dealing with a common characteristic derivation we may challenge it even with an insignificant challenge. There is a definite weakness in this challenge as Tosfos pointed out earlier. That a single witness does not pay when nullified by hazamah is not because of the strength of his testimony, but rather because of its weakness. The Rabanan consider this challenge as too weak to disprove a healthy kal v’chomer, but since ultimately both a single witness and one’s own admission are not subject to the penalty of hazamah, this can be used to negate a common characteristic derivation, even though it cannot be used to overturn a kal v’chomer.3See אוצר מפרשי התלמוד who quotes קצות החשן who discusses whether there is hazamah liability in an instance wherea solitary witness does cause a victim to pay. For example: In a situation where the defendant would have to swear, but cannot do so, he must pay. Would the zomem single witness be required to pay or not? See there for more discussion of this subject.
R’ Chiya who does hold that we can learn from the common characteristic derivation that witnesses’ testimony can generate an oath obligation holds that even a common characteristic derivation, cannot be challenged with this insignificant challenge, because the reason that a single witness does not pay when nullified by hazamah, is because of his inherent weakness, because he did not have the power to generate a payment of money with his testimony.
Hazamah has a double function. It causes a) nullification of the testimony and also b) obligates the zomemim witnesses to pay their intended victim what their testimony would have cost him.
For the sake of clarity, we will mark each reference to witnesses’ testimony with:
z) for the zomemin witness who testify falsely about an intended victim.
m) for the second set of witnesses who are מזים - discredit the zomemim witnesses.
The word hazamah does not appear in our text of the Gemara. Tosfos will defend the text that does have this word in this sentence. The word hazamah usually conjures the punishment meted out to zomemim z) witnesses whose testimony is discredited by other m) witnesses who testify that we were with the zomemim witnesses elsewhere at the time of the purported event and they could not possibly have seen the event about which they are testifying.
Usually, zomemim witnesses are subject to the punishment for the crime that they are testifying about. This is not true when there is only one witness. This is of course the reason for not having the word hazamah in the text of our Gemara, since a single witness is not subject to this penalty. Tosfos explains that even though one witness is not subject to the standard b) punishment of zomemim witnesses, the word can appear in our Gemara.
The word hazamah can rightfully appear here in this sentence, since by the process of hazamah [the single witness’] testimony is nullified. Even though the usual punishment for hazamah b) is inapplicable, the process does a) nullify his testimony. This is an inherent weakness of a single witness’ testimony as compared to a defendant’s admission. At this point in the dialogue, where the Gemara is demonstrating the relative strengths and weaknesses of various sources of information, it is justified in mentioning that the single witness’ testimony is subject to a) nullification by the process of hazamah.
At this point the Gemara is attempting to disprove the kal v’chomer that witnesses’ testimony on half the plaintiff’s claim can obligate an oath by the defendant. The objective of such analysis is to show that one’s admission is inherently stronger than the testimony of witnesses and that is why one’s own admission generates an obligation to swear, whereas witnesses’ testimony which is inherently weaker cannot generate such an obligation.
Proof that one’s admission is more powerful > than witnesses’ testimony:
One’s own admission cannot be nullified by the hazamah process, whereas:
Witnesses’ testimony can be nullified by the hazamah process.
Tosfos now entertains the notion that there is an extremely powerful aspect of one’s own admission as compared to witnesses’ testimony that seems to have been overlooked by our Gemara. That is the fact that zomemim witnesses must pay the amount that they planned to obligate their victim to pay. For example: When z) witnesses testify that Ruvain owes Shimon one hundred zuz and it turns out that they are zomemim, the z) witnesses must pay Ruvain one hundred zuz.
This is totally untrue of one’s own admission. For example: If Ruvain admits that he borrowed a hundred zuz from Shimom on Sunday the first of Nissan at twelve noon in New York City. m) Witnesses testify that Ruvain was with them in Los Angeles on Sunday the first of Nissan at nine a.m. Pacific time. Ruvain is not obligated to pay even though m) witnesses say that he falsely admitted that he owes Shimon one hundred zuz.2Tosfos seems to understand that it is because one’s own admission is so powerful that he is not required to pay even when discredited by m) witnesses. Some of the latter commentators raise the following question: Perhaps the reason Ruvain is not required to pay is because there is nobody to whom he must pay. After all, he himself was the intended victim of his false admission. To whom should he pay the hazamah penalty? See אמרי בנימין and נחלת משה who discuss this question. Perhaps, we are speaking of a situation where others will be hurt by his own admission, even though he is not directly testifying about them. For example: his debtors sold his loans to other people. If his debts are minimal they are worth significantly more than if he is heavily in debt. By falsely admitting that he owes much more money than he actually does, he is reducing the value of his paper and would be harming the holders of such loans. Tosfos assumes that he does not have to pay those loan holders the difference in value between when he had not yet admitted his greater liability and when he did falsely admit his greater liability.
Perhaps the Gemara should have used this strength of one’s admission as compared to witnesses’ testimony to undermine the basis of the kal v’chomer. We should not ask this question to undermine the kal v’chomer by proving that one’s admission is stronger than witnesses’ testimony, as follows: What can you prove from one’s own admission, which is so powerful that he does not need to pay even when his admission is nullified by the process of hazamah? Can you say the same for witnesses who do need to pay their intended victim when their testimony is nullified by the process of hazamah?
Proof that one’s admission is more powerful > than witnesses’ testimony:
Witnesses must pay when their testimony is discredited by hazamah, whereas,
One does not need to pay when his admission is discredited by hazamah.
This challenge to the kal v’chomer is much more potent than the Gemara’s present challenge, which is demonstrating that one’s own admission stands even when assailed by hazamah as compared to the testimony of witnesses which is nullified by the process of hazamah. This is countered by introducing a solitary witness, whose testimony can also be nullified by hazamah and even so his testimony generates an oath obligation.
Proof that even testimony that can be nullified by hazamah generates an oath obligation:
The testimony of a single witness can be nullified by hazamah and even so it generates an oath obligation.
But if the Gemara is demonstrating the power of an admission that he cannot be obligated to pay by the process of hazamah, we cannot use the single witness to prove that even when testimony is from a source that needs to pay when nullified by hazamah as proof that even testimony that is subject to the penalty of hazamah can generate an oath obligation, because the single witness also does not pay when his testimony is nullified by hazamah.
Then had the Gemara focused on aspect b), the admission not being subject to paying when nullified by hazamah, [the Gemara] could not have said - a single witness proves that even testimony that is b) subject to pay when nullified by hazamah generates an oath obligation, because a single witness also does not pay when his testimony is nullified by hazamah. If so, both source of the common characteristic system would be instances where they cannot be obligated to pay via the process of hazamah. How can we learn from either of these two sources that witnesses’ testimony, which is subject to pay via the process of hazama can also generate an oath obligation?
Tosfos explains that this argument that both sources of the kal v’chomer are beyond paying via hazamah is simply not true. It is definitely true that one’s admission is more powerful than witnesses’ testimony and that is why he does not pay when his admission is discredited by hazamah, but the same cannot be said for the single witness who does not pay when his testimony is nullified by two witnesses.
For the reason that a single witness does not pay when his testimony is nullified by hazamah, is not because it is more stringent or more powerful than the testimony of two witnesses, as is one’s admission, rather, the reason for his not needing to pay is the inherent impotence of his testimony, because with his testimony he cannot obligate his intended victim to pay money. Therefore, since his statement is a) nullified4See Rashi חולין קטז. ד'ה אבל: We challenge common characteristic derivation with even an insignificant challenge. So are the systems of expounding the written law handed to us from Sinai. via the hazamah process, it is considered that his testimony is subject to hazamah.
In the case of a single witness, the b) punishment aspect cannot be invoked, because of the inherent impotence of a single witness’ testimony, but the a) nullification aspect can be applied. Thus his testimony is viewed as subject to hazamah. Even so, he can generate an oath obligation, so too, two witnesses whose testimony is subject to hazamah can also generate an oath obligation.
The Gemara will soon say: How can you learn from the common characteristic of an admission and a single witness, but in both those cases the punishment of hazamah is not applied? We see that the Gemara does consider aspect b) a proper challenge to the derivation.
But shortly the Gemara does use this aspect b) to challenge the common characteristic derivation? That is because when dealing with a common characteristic derivation we may challenge it even with an insignificant challenge. There is a definite weakness in this challenge as Tosfos pointed out earlier. That a single witness does not pay when nullified by hazamah is not because of the strength of his testimony, but rather because of its weakness. The Rabanan consider this challenge as too weak to disprove a healthy kal v’chomer, but since ultimately both a single witness and one’s own admission are not subject to the penalty of hazamah, this can be used to negate a common characteristic derivation, even though it cannot be used to overturn a kal v’chomer.3See אוצר מפרשי התלמוד who quotes קצות החשן who discusses whether there is hazamah liability in an instance wherea solitary witness does cause a victim to pay. For example: In a situation where the defendant would have to swear, but cannot do so, he must pay. Would the zomem single witness be required to pay or not? See there for more discussion of this subject.
R’ Chiya who does hold that we can learn from the common characteristic derivation that witnesses’ testimony can generate an oath obligation holds that even a common characteristic derivation, cannot be challenged with this insignificant challenge, because the reason that a single witness does not pay when nullified by hazamah, is because of his inherent weakness, because he did not have the power to generate a payment of money with his testimony.
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