ב"ה
Rambam - 1 Chapter a Day
Edut - Chapter 19
Edut - Chapter 19
1The following rules apply when two witnesses testify, saying: “So-and-so murdered a person in the eastern portion of the hall at this-and-this time,” two other witnesses come and say: “You were together with us in the western portion of the hall at that time.” If a person standing in the western portion could see what transpires in the eastern portion, they are not disqualified through hazamah. If, however, it is impossible to see what transpires, they are disqualified through hazamah. We do not say perhaps the eyesight of the first pair is very powerful and they can see things which transpire at a greater distance than all other men.אשְׁנַיִם שֶׁהֵעִידוּ וְאָמְרוּ 'בְּמִזְרַח הַבִּירָה הָרַג זֶה אֶת הַנֶּפֶשׁ בְּשָׁעָה פְּלוֹנִית', וּבָאוּ שְׁנַיִם וְאָמְרוּ לָהֶן 'בְּמַעְרַב הַבִּירָה הַזֹּאת הֱיִיתֶם עִמָּנוּ בָּעֵת הַזֹּאת': אִם יָכוֹל הָעוֹמֵד בְּמַּעְרָב לִרְאוֹת מַה יֵשׁ בַּמִּזְרָח - אֵינָן זוֹמְמִין; וְאִם אֵינוֹ יָכוֹל לִרְאוֹת - הֲרֵי אֵלּוּ זוֹמְמִין, וְאֵין אוֹמְרִין שֶׁמָּא מְאוֹר עֵינֵיהֶם שֶׁל רִאשׁוֹנִים רָב, וְרוֹאִין מֵרָחוֹק יָתֵר מִכָּל אָדָם.
Similar principles apply if two people testified saying: “In the morning, so-and-so committed murder in Jerusalem,” and two others come and tell them: “On that day, in the evening, you were together with us in Lod.” If it is possible for a person to travel, even on horseback, from Jerusalem to Lod from the morning to the evening, they are not disqualified through hazamah. If not, they are disqualified through hazamah. We do not say perhaps they found a speedy camel and were able to travel the route faster than usual. Instead, we always calculate the matter according to the known standards and disqualify them through hazamah.1וְכֵן אִם הֵעִידוּ שְׁנַיִם וְאָמְרוּ 'בַּבֹּקֶר הָרַג זֶה אֶת הַנֶּפֶשׁ בִּירוּשָׁלַיִם', וּבָאוּ שְׁנַיִם וְאָמְרוּ לָהֶן 'בְּיוֹם זֶה בָּעֶרֶב הֱיִיתֶם עִמָּנוּ בְּלוּד': אִם יָכוֹל אָדָם לְהַלֵּךְ אַפִלּוּ עַל הַסּוּס מִירוּשָׁלַיִם לְלוּד מִבֹּקֶר עַד עֶרֶב - אֵינָן זוֹמְמִין; וְאִם אֵינוֹ יָכוֹל לְהַגִּיעַ - הֲרֵי אֵלּוּ זוֹמְמִין, וְאֵין אוֹמְרִין שֶׁמָּא כַּר קַל בְּיוֹתֵר נִזְדַּמֵּן לָהֶן וְקִפְּלוּ בּוֹ אֶת הַדֶּרֶךְ. אֶלָא בְּדָבָר הַמָּצוּי הַיָּדוּעַ לַכֹּל, מְשַׁעֲרִין לְעוֹלָם וּמְזִימִין אוֹתָן.
2The following rules apply when two witnesses state: “On Sunday, so-and-so murdered a person in this-and-this place,” and two other witnesses come and say: “On that date, you were together with us in another far removed place, but so-and-so certainly murdered the victim on the following day,” the murderer and the first pair of witnesses are executed.2 Even if the second pair of witnesses testify that he had committed the murder several days previously,3 the above laws apply. The rationale is that at the time they delivered testimony, the murderer had not yet been sentenced to death.4בשְׁנַיִם שֶׁאָמְרוּ 'בְּאֶחָד בַּשַּׁבָּת הָרַג זֶה אֶת הַנֶּפֶשׁ', וּבָאוּ שְׁנַיִם וְאָמְרוּ 'בְּיוֹם זֶה עִמָּנוּ הֱיִיתֶם בְּמָקוֹם אַחֵר רָחוֹק, אֲבָל בְּיוֹם שֶׁלְּאַחַר יוֹם זֶה הֲרָגוֹ בַּוַּדַּאי', אַפִלּוּ הֵעִידוּ הָאַחֲרוֹנִים שֶׁקֹּדֶם כַּמָּה יָמִים הֲרָגוֹ - הֲרֵי זֶה הַהוֹרֵג עִם עֵדָיו הָרִאשׁוֹנִים נֶהֱרָגִין, שֶׁהֲרֵי הוּזַמוּ; שֶׁבְּעֵת שֶׁהֵעִידוּ שֶׁהָרַג, עֲדַיִן לֹא נִגְמַר דִּינוֹ לֵהָרֵג.
If, however, two witnesses come on Tuesday, and say: “On Sunday, so-and-so was sentenced to death,” and two others come on Tuesday and say: “On Sunday, you were together with us in this distant place, but so-and-so was sentenced to death on Friday or on Monday,”5 these witnesses are not executed. The rationale is that at the time they testified, the person had already been sentenced to death.6אֲבָל אִם בָּאוּ שְׁנֵי עֵדִים בַּשְּׁלִישִׁי בַּשַּׁבָּת וְאָמְרוּ 'בְּאֶחָד בַּשַּׁבָּת נִגְמַר דִּינוֹ שֶׁל פְלוֹנִי לַהֲרִיגָה', וּבָאוּ שְׁנַיִם וְאָמְרוּ 'בְּאֶחָד בַּשַּׁבָּת עִמָּנוּ הֱיִיתֶם בְּמָקוֹם פְּלוֹנִי הָרָחוֹק, אֶלָא מֵעֶרֶב שַׁבָּת נִגְמַר דִּינוֹ, אוֹ בְּשֵׁנִי בַּשַּׁבָּת נִגְמַר דִּינוֹ' - אֵין עֵדִים אֵלּוּ שֶׁהוּזַמוּ נֶהֱרָגִין, שֶׁהֲרֵי מִכָּל מָקוֹם בְּעֵת שֶׁהֵעִידוּ עָלָיו כְּבָר נִגְמַר דִּינוֹ לַהֲרִיגָה.
Similar principles7 apply with regard to the payment of a fine. What is implied? Two people came on Tuesday and said: “On Sunday, so-and-so stole, slaughtered the animal he stole, and was sentenced to pay a fine of four or five times the animal’s worth.”8 Two other witnesses come and testify: “On Sunday, you were with us in a distant place, but he was sentenced on Friday” - or even if they said: “On Monday,9 so-and-so stole, slaughtered the animal he stole, and was sentenced on Monday,” the witnesses who were disqualified through hazamah are not required to make financial restitution. The rationale is that at the time they testified against him, the defendant was obligated to make financial restitution.10 Similar laws apply in all analogous situations.וְכֵן לְעִנְיַן תַּשְׁלוּמֵי קְנָס. כֵּיצַד? בָּאוּ שְׁנַיִם בַּשְּׁלִישִׁי בַּשַּׁבָּת וְאָמְרוּ 'בְּאֶחָד בַּשַּׁבָּת גָּנַב וְטָבַח וְנִגְמַר דִּינוֹ', וּבָאוּ שְׁנַיִם וְאָמְרוּ 'בְּאֶחָד בַּשַּׁבָּת עִמָּנוּ הֱיִיתֶם בְּמָקוֹם רָחוֹק, אֲבָל מֵעֶרֶב שַׁבָּת נִגְמַר דִּינוֹ', אַפִלּוּ אָמְרוּ 'בְּשֵׁנִי בַּשַּׁבָּת גָּנַב וְטָבַח וְנִגְמַר דִּינוֹ' - אֵין עֵדִים אֵלּוּ שֶׁהוּזַמוּ מְשַׁלְּמִין, שֶׁהֲרֵי מִכָּל מָקוֹם בְּעֵת שֶׁהֵעִידוּ עָלָיו חַיָּב הָיָה לְשַׁלֵּם. וְכֵן כֹּל כַיּוֹצֵא בְּזֶה.
3The witnesses to a legal document may not be disqualified through hazamah unless they testify in court,11 saying: “We composed the legal document at the time stated. We did not delay the dating of it.”גאֵין עֵדֵי הַשְּׁטָר נַעֲשִׂין זוֹמְמִין עַד שֶׁיֹּאמְרוּ בְּבֵית דִּין 'שְׁטָר זֶה בִּזְמַנּוֹ כְּתַבְנוּהוּ וְלֹא אֵחַרְנוּהוּ'.
If they did not say this, even though a document composed in Jerusalem is dated the first of Nisan and witnesses come and testify that the witnesses to the legal document were in Babylon on that date,12 the legal document is acceptable and the witnesses are acceptable. For it is possible that they composed the legal document and postdated it, i.e., they were in Jerusalem on the first of Adar13 and composed the legal document and postdated it, dating it the first of Nisan.14אֲבָל אִם לֹא אָמְרוּ כֵּן, אַף עַל פִּי שֶׁזְּמַנּוֹ שֶׁל שְׁטָר בְּאֶחָד בְּנִיסָן בִּירוּשָׁלַיִם, וּבָאוּ עֵדִים וְהֵעִידוּ שֶׁעֵדֵי הַשְּׁטָר הָיוּ עִמָּהֶם בְּיוֹם זֶה בְּבָבֶל - הַשְּׁטָר כָּשֵׁר וְהָעֵדִים כְּשֵׁרִים; שֶׁאֶפְשָׁר שֶׁכְתָבוּהוּ וּאֵחֲרוּהוּ, וּכְשֶׁהָיוּ בִּירוּשָׁלַיִם בְּאֶחָד בַּאֲדָר כָּתְבוּ שְׁטָר זֶה שָׁם, וְאֵחֲרוּ זְמַנּוֹ וְכָתְבוּ זְמַנּוֹ נִיסָן.
The following rules apply when, by contrast, they said: “We signed the document on the date stated,” and they were disqualified through hazamah.15 If there are witnesses who know the day they signed the legal document or witnesses saw the legal document with their signatures on it on this-and-this date,16 once they are disqualified through hazamah, they are disqualified retroactively from the date on which it is known that they signed the legal document. The rationale is that witnesses who sign a legal document are considered as if their testimony was delivered in court from the time they signed.17אָמְרוּ 'בִּזְמַנּוֹ כְּתַבְנוּהוּ', וְהוּזַמוּ: אִם יֵשׁ עֵדִים שֶׁיּוֹדְעִים הַיּוֹם שֶׁחָתְמוּ בּוֹ עַל שְׁטָר זֶה, אוֹ עֵדִים שֶׁרָאוּ זֶה הַשְּׁטָר וַחֲתִימַת יָדָם בּוֹ בְּיוֹם פְּלוֹנִי - כֵּיוָן שֶׁהוּזַמוּ, הֲרֵי נִפְסְלוּ לְמַפְרֵעַ מִיּוֹם שֶׁנּוֹדָע שֶׁחָתְמוּ עַל הַשְּׁטָר; שֶׁהָעֵדִים הַחַתוּמִים עַל הַשְּׁטָר, הֲרֵי הֵן כְּמִי שֶׁנֶּחְקְרָה עֵדוּתָן בְּבֵית דִּין בְּעֵת הַחֲתִימָה.
If, however, there are no witnesses who saw them sign, thus giving testimony, nor did anyone see the signed document beforehand,18 the witnesses are disqualified only from the time they testified in court that the signature was theirs, saying: “We signed it on that date.” The rationale is that it is possible that on the date that they testified in court, they signed a legal document that had existed for many years and they lied by saying: “We signed it on the day it was dated.”19אֲבָל אִם אֵין עֵדִים שֶׁרָאוּ עֵדוּתָן, וְלֹא רָאוּ הַשְּׁטָר מִקֹּדֶם - אֵינָן נִפְסָלִין אֶלָא מֵעֵת שֶׁהֵעִידוּ בְּבֵית דִּין שֶׁזֶּה כְּתַב יָדָן, וְאָמְרוּ 'בִּזְמַנּוֹ כָּתַבְנוּהוּ'; שֶׁאֶפְשָׁר שֶׁבְּיוֹם זֶה שֶׁהֵעִידוּ בְּבֵית דִּין, בּוֹ בַּיּוֹם חָתְמוּ עַל הַשְּׁטָר שֶׁיֵּשׁ לוֹ כַּמָּה שָׁנִים, וְהֵם שִׁקְּרוּ וְאָמְרוּ 'בִּזְמַנּוֹ כָּתַבְנוּ'.
Footnotes
1.
Rabbi Akiva Eiger states that if, however, they explicitly claim that they found such a swift camel, we do accept their claim.
2.
The murderer, because the latter pair of witnesses testified that he committed murder; the first pair of witnesses, because they were disqualified through hazamah.
3.
And thus the defendant was already worthy of being sentenced to death before the witnesses testified against them. Nevertheless, as the Rambam continues to explain, since he had not been sentenced to death at that time, the lying witnesses are held responsible for testifying against him (see Makkot 5a and commentaries).
4.
In contrast to the situation in the following clause.
5.
Since he had already been sentenced to death, it is as if they are testifying concerning a dead man.
6.
Thus it is as if he had already been executed and thus it is as if they are testifying about a dead person. Their testimony is of no consequence and hence, they are not punished (ibid.. See Hilchot Mamrim 5:12).
7.
I.e., a distinction is made whether a person had already been judged as liable or not.
8.
As required by Exodus 21:37.
9.
They also state that the witnesses were with them in a different place on Sunday. For this reason, based on the authoritative manuscripts and early printings, there are some versions of the text which begin this quote with “On Monday.”
10.
If, however, they testified only concerning the transgression itself, without mentioning that the person had been sentenced, both the first witnesses and the defendant would be convicted by the statements of the second witnesses.
The Kessef Mishneh emphasizes that these laws apply with regard to fines, but not with regard to monetary obligations (e.g., debts, damages, and the like). The rationale is that a monetary obligation exists even before it was declared by the court. The obligation for a fine, by contrast, exists only when declared by a court. If the person admits his responsibility, he is not held liable.
11.
Or write this statement in the legal document itself (Siftei Cohen 34:12).
12.
Since witnesses in Babylon could not sign a document in Jerusalem, one might assume that the document should be disqualified. Nevertheless, this is not so as the Rambam continues to explain.
13.
The month that precedes Nisan.
14.
And a postdated legal document is acceptable, as stated in Hilchot Malveh ViLoveh 23:2,4.
15.
The question discussed by the Rambam in this and the following clause is: “From when are the witnesses disqualified - from the date they testified in court or beforehand?” This is not merely an abstract point. Any legal documents that they signed and any testimony that they gave in court after the date from which their testimony is disqualified are similarly disqualified. See Chapter 10, Halachah 4.
16.
I.e., a date after the date on which the document was dated, but before the time the witnesses testified in court.
17.
Accordingly, since their testimony is disqualified through hazamah, they are considered as lying witnesses from that date onward.
18.
I.e., before the witnesses testified in court.
19.
Since they did not lie previously, they are disqualified as witnesses only from that date onward.
Rabbi Eliyahu Touger is a noted author and translator, widely published for his works on Chassidut and Maimonides.
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