Sanhedrin - Daf 9
- נמצא אחד מהן קרוב או פסול where the disqualified עד did not intend to testify
Ravina offers a sixth explanation of the machlokes about the requisite דיינים for "מוציא שם רע". The case is שנמצא אחד מן העדים קרוב או פסול – where one of the witnesses was found to be a relative of one party, or a disqualified witness, and their argument parallels Rebbe Yose and Rebbe’s machlokes about Rebbe Akiva’s principle. Rebbe Akiva taught that the Torah compared two עדים to three to teach that just if one of two witnesses is found ineligible, the testimony is invalid (since only one remains), so too if one of three witnesses is found ineligible, the remaining testimony is disqualified. Rebbe Yose says this only applies to דיני נפשות, but not to monetary cases. Rebbe says it applies to both, but only בזמן שהתרו בהן – when [the ineligible witness] warned [the transgressor], demonstrating his intended role as an עד. But if he did not warn him, the remaining witnesses remain valid, because otherwise, מה יעשו שני אחים ואחד שראו באחד שהרג את הנפש – what should two brothers and one more witness who saw someone kill a person do to avoid disqualifying their testimony? Our Mishnah discusses such a case, and the Tannaim argue if the testimony remains valid.
- If עדים זוממים of מוציא שם רע, who are killed, also pay money
Rav Yosef said that if the husband brought witnesses that his wife committed adultery, which would result in her execution and the loss of her kesubah, והביא האב עדים והזימום לעדי הבעל – and the father then brought witnesses who refuted the husband’s witnesses through הזמה, עדי הבעל נהרגין ואין משלמין ממון – the husband’s witnesses are killed, but they do not pay money. They cannot receive both punishments for a single act ("קים ליה בדרבה מיניה" – he is subject to the greater [punishment]), both of which resulted from their false testimony against this woman. The testimony of the father’s witnesses would have the husband’s witnesses killed, and the husband owes the father one hundred shekel for defaming his daughter. If the husband brought other עדים who rendered the father’s witnesses זוממים, עדי האב נהרגין ומשלמין ממון – the father’s witnesses are killed and pay money, ממון לזה ונפשות לזה – because their obligation to pay money is to this one [the husband], while the punishment of death is for their attempting to kill that one (the husband’s witnesses). Rav Yosef holds that a monetary punishment generated by a different person is not exempted by the death penalty.
- Testimony of a participant in the forbidden act (פלגינן דיבורא)
Rav Yosef said that if someone testifies that פלוני רבעו לאונסו – Ploni had relations with him against his will,” הוא ואחר מצטרפין להרגו – he and another witness can combine to have him killed for משכב זכר. Since this witness says he was forced in this act, he remains a valid witness. However, if he testifies that the relations were “לרצונו” – with his consent, רשע הוא – he has testified about himself that he is a sinner and disqualified from testifying, because the Torah says: "אל תשת רשע עד" – Do not use a sinner as a witness. Rava disagrees: אדם קרוב אצל עצמו – a person is related to himself, ואין אדם משים עצמו רשע – and therefore, a person cannot establish himself as a sinner. Although his testimony cannot be accepted regarding himself, the Gemara will explain that פלגינן דיבורא – we divide his statement and accept it regarding the other party. Similarly, Rava says if one testifies that his wife committed adultery with someone, his testimony is accepted to have the adulterer killed, although he cannot testify about his wife.
