Weekly DAFootnotes Bava Kama 72-78 Issue #11 Week of 20-26 Tishrei 5762 / October 7-13, 2001 By Rabbi Mendel Weinbach, Dean, Ohr Somayach Institutions ===================================== FOUR DIMENSIONS OF CONSPIRACY Do not put your hand with a rasha (wicked person) to be an unrighteous witness.” (Shmot 23:1) This is the source for disqualifying certain sinners as witnesses. In our gemara it is cited in regard to the disqualification of people who have been exposed as “eidim zomemim.” Eidim zomemim are witnesses about whom other witnesses testify that they were at an entirely different locale at the time they claim they saw the incident, such that there is no possibility of their testimony being true, and therefore they are considered wicked. But where is it indicated in this passage, whose literal meaning is a prohibition against joining with a rasha to present testimony, that the testimony of a rasha is not valid? Our gemara is very cryptic in regard to this interpretation and simply quotes four of the eight Hebrew words in this statement to read “don’t make (a) rasha (a) witness.” Rambam, in his codification of these laws (Laws of Testimony 10:1), cites this passage in its complete form as a source for the prohibition against joining a rasha (whose identity is unknown to the court) in presenting testimony even though you know he is telling the truth, and against joining a witness who is not yet a rasha but is testifying about something which he did not see and thereby rendering false testimony. It is clear from Rambam’s combining these concepts — the unacceptability of the testimony of a rasha with these two instances of conspiring with a rasha to create the impression of the testimony of two qualified witnesses — that all three points are derived from the same passage. By instructing us to avoid joining the rasha in testimony, the Torah is essentially demanding that we refrain from doing anything which will give force to the testimony of a rasha. The most basic application of this rule is for the court to disqualify his testimony, and this is what the gemara here means by “don’t make a rasha a witness.” The extended application is to the valid witness who is asked by the claimant to join a rasha whose identity or intended prevarication is unknown to the court. An interesting extension of the three aforementioned applications is raised by the commentaries. If someone is invited to testify about something he saw, yet he is aware that he has committed the sort of sin which disqualifies him as a rasha, he too is prohibited from testifying before the court, which is unaware of his status. He too is guilty of creating credibility for a rasha. Bava Kama 72b ===================================== STOLEN OX AND LOST ETROG A man makes a vow to bring an olah sacrifice and sets aside an ox for fulfilling his vow. The ox is subsequently stolen and the thief wishes to make restitution by providing his victim with a much smaller calf. The thief’s reasoning is based on the ruling of the Sages that if a man makes a vow to bring an olah sacrifice without specifying what sort of animal he will offer, he can fulfill his vow by bringing even a calf. Can the thief therefore get away with making compensation with a calf? The Sage Rava put forward this question in regard to a position taken by Rabbi Shimon (Bava Kama 76a). Rabbi Shimon holds that when the Torah (Shmot 22:6) speaks of something “being stolen from the house of the man” in regard to the thief’s obligation of restitution, this includes even an animal which the victim has designated for fulfilling his sacrificial vow. Since the man who made the vow must provide a substitute animal should the designated one be lost or stolen, this sacrificial animal is considered his property; it is therefore to him, not to the Sanctuary, that restitution must be made. On the one hand, states Rava, the thief can claim that he need repay no more than a calf, as his victim is able to fulfill his vow with this cheaper animal and will suffer no financial loss. On the other hand, the victim may argue that he was interested in performing his good deed of bringing a sacrifice in a big way by offering an ox, and therefore he can insist on receiving a large animal for his compensation. Rava’s conclusion, that the thief can indeed get away with a calf, led one of the early commentaries to an interesting ruling: If a man borrowed a very beautiful and very expensive etrog from his neighbor and lost it, he can compensate him with a much cheaper etrog with which he can fulfill his mitzvah of the four species. This ruling is challenged by Rabbi Zvi Ashkenazi of Amsterdam in his “Responsa Chacham Zvi” (Responsum 102). He argues that, while it is true that in the case of the animal designated for a sacrifice that the thief caused no financial loss to his victim, this is not so in the case of the expensive etrog. Being that the etrog owner could have sold it at full value, the borrower who lost it is obligated to compensate him in full for depriving him of this option. Bava Kama 78b ===================================== If you like this e-mail please share it with a friend. ===================================== To subscribe to this list please e-mail DafYomi-subscribe@ohr.edu To unsubscribe e-mail DafYomi-unsubscribe@ohr.edu ===================================== (C) 2001 Ohr Somayach International - All rights reserved.