Monday, December 28, 2009

when an eid echad can cause a chiyuv misa

I admit that I’m surprised at how much interest there is lomdish posts based on the little poll posted on the side, but the poll is still open and results can change. Thank you to everyone who bothered to put in their 2 cents -- much appreciated. My guess is people like chakiros and also like being me'dameh milsa l'milsa and making chilukim. Unfortunately for me thinking of sugyos in those terms is very hard to do when one has a regular job taking up most of the day.

The gemara (Chulin 96) offers a proof that eyewitness recognition, teviyus ayin, is stronger proof than simanim: if two witnesses come forward and say they recognize a murderer, their testimony is enough to create a chiyav misa and cause the murderer to receive the death penalty. However, if two witnesses do not recognize the murderer, but identify him through simanim, certain marks or features, that is not sufficient to convict.

Tosfos challenges the gemara’s assertion that the death penalty cannot be given on the basis of simanin with the following case: A woman may rely on simanim to establish that her first husband is dead. If she then remarries and is not faithful to her second husband, she is guilty of adultery and punished. Without the simanim proof that her first husband is dead and she is legally married to her second husband, there would be no way to establish the woman’s guilt (you can't commit adultery if you are not legally married). Therefore, we see that simanim can provide a basis for the death penalty.

Tosfos is forced to conclude that if the death of the first husband is established either through simanim or a single witness alone the adulteress would not be punished.

Compare this Tosfos with the following chiddush of the Rambam (Hil. Sanhedrin ch 16):

אינו צריך שני עדים למלקות, אלא בשעת מעשה; אבל האיסור עצמו, בעד אחד יוחזק. כיצד: אמר עד אחד חלב כליות הוא זה, כלאי הכרם הם פירות אלו, גרושה או זונה היא אישה זו, ואכל או בעל בעדים אחר שהותרה בו--הרי זה לוקה, אף על פי שעיקר האיסור בעד אחד.

If a single witness says that Reuvain ate cheiliev, Reuvain gets no punishment -- two witnesses are needed to establish guilt. However, if a single witness testifies that a piece of meat is cheilev, and then afterwards two witnesses come forward and testify that Reuvain ate that piece of meat, Reuvain would get malkos. Even though we only have the say-so of a single witness that the meat is cheilev, since that one witness is believed before the fact, Reuvain is chayav.

Does Tosfos argue on this Rambam? Is there a difference between convicting Reuvain of eating meat we know to be cheilev based on the prior testimony of only one witness and convicting a woman of adultery based on the prior testimony of only one witness that her first husband is dead and she is legally married to her second husband?

8 comments:

  1. RE Poll: Hey, you get more votes than I do! I didn't vote. I think you draw the most comments when you do social criticism, or when some of your commentators turn the topic in that direction.

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  2. butthat doesn't mean people like those posts better. It just means they have more to comment on. When it comes to lomdishe topics, once the ba'al hablog has spoken there is no room to argue :-)

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  3. Re: social criticism - That's why I am surprised at all the votes for lomdus. Social commentary is easy -- everyone has an opinion, and people just throw boich sevaros around all day. It is harder (for me) to write lomdish posts, but I usually learn something in the process and I gain from the comments, esp. where people challenge my thinking or point out a sevara or mareh makom I hadn't seen.

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  4. a) The gemara in Chullin proves rov works from the fact that you kill someone who is mekallel or mekah aviv veimo based on rov be'ilos holchos achar ha'baal. If tosafos argues on chazaka why would they agree to rov?

    The gemara (Bava Basra) has a question if ruba ve'chazaka ruba adif or chazaka adif.

    b) I don't understand tosafos, if you can be matir an issur eshes ish and let the woman remarry why can't you kill her on the same basis. What is the difference between her remarrying and being chayav misah?

    c) What is the question why the woman is chayav misah? Mima naphshach, if the simanim are not a proof, then she is marries to the first husband and she is chayav misoh. If the simanim are a proof then she is married to the second husband and she is still chayav misah. Even if the simanim are only me'orer a safek then she is still married to either the first or the second husband?

    pc :-)

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  5. chaim b.7:35 PM

    a) Ruba v'chazakah ruba adif. Anyway, Tos. is about simanin, not chazakah.

    b) Tosfos brings ra'ayos that there can be limited ne'emanus that works for some areas and not others. For example, she can remarry through an eid echad's testimony, but the eid echad doesn't hold any weight in terms of yerushah.

    c) My fault for not clarifying -- Tos. says even if you have 2 eidim that the first husband was dead at the time the woman was mezaneh, it still doesn't seal her fate because maybe the first husband was alive when husband #2 did his kiddushin. That would mean kiddushin of husband #2 was never chal, and husband #1 was dead at the time of znus (as the 2 eidim told us), so she gets off.
    The only problem is that we have simanim that tell us husband #1 was dead when husband #2 did the kiddushin -- so is that enough to trigger misa?

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  6. maybe ed echad is better than simanim becuase beis din are mekabel ed echad and then pasken accordind to what they have accepted the facts are.

    In the case of simanim however there is no kabbalas edus so the death of the first husband has never formally been accepted as a fact in beis din, just that we are saying well you see the husband is dead so you can remarry.

    In other words in the case of simanim beis din are saying to the wife you can rely on this to assume your husband is dead, not that we are matir you to remarry.

    pc :-)

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  7. There is no kabalas eidus in beis din by eid echad. For example, you believe your butcher that the meat you eat is kosher based on eid echad -- B"D is not involved.

    But you are headed in the right direction to resolve this.

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