1 Abaye ruled, His disqualification is retrospective;2 Raba maintained, He is disqualified only for the future.3 Abaye makes the disqualification retrospective: he was a wicked man from the time of testifying [falsely], and the Torah says: Do not accept the wicked as witness.4 Raba holds that he is disqualified prospectively [only]: now, the entire law of a falsified witness is anomalous; for [it is two against two, then] why accept the evidence of one pair rather than that of the other? Therefore it can take effect only from the time that this anomalous procedure is employed. Some say that Raba really agrees with Abaye; yet why does he rule [that the incompetence is] prospective? — Because of the purchaser's loss.5 Wherein do they [the two views on Raba's ruling] differ? — A difference arises where two have testified against one,6 or where he was disqualified on the grounds of robbery.7 And R. Jeremiah of Difti related that R. Papi ruled in a certain case in accordance with Raba's view; while Mar son of R. Ashi said: The law rests with Abaye. And, [concludes the Talmud], the law rests with Abaye in Y'AL KGM.8
As for a Mumar9 who eats nebelah10 merely to
satisfy his greed,11 all agree that he is
disqualified.12 If his purpose is provocative;13 Abaye said, He is ineligible; Raba ruled, He is
eligible. Abaye said: He is ineligible, because he is classed with the wicked, and the Torah said:
Do not accept the wicked as witness.14 Raba ruled: He is
eligible, because he must have been wicked for the sake of gain [hamas].15
An objection is raised: Do not accept the wicked as witness; [this means,] Do not accept a despoiler16 as witness; e.g., robbers, and those who have trespassed by [false] oaths.17 Surely this refers to both a vain oath18 and an oath concerning money matters?19 — No; in both cases,20 oaths concerning money matters are alluded to; then why state 'oaths' [plural]? — [To indicate] oaths in general.21
An objection is raised: Do not accept the wicked as witness; [this means,] Do not accept a despoiler as witness, e.g., robbers and usurers.22 This refutation of Abaye's view is unanswerable.
Shall we say that their difference is identical with that of Tannaim? [For it has been taught:]23 A witness proved a Zomem is unfit [to testify] in all Biblical matters: this is R. Meir's view. R. Jose said: That is only if he has been proved a Zomem in capital cases;24 but if in monetary cases, his evidence is valid in capital charges. Shall we affirm, Abaye agrees with R. Meir, and Raba with R. Jose? 'Abaye agrees with R. Meir,' who maintains that we impose [disqualification] in respect of major cases as a result of a minor transgression.25 'And Raba26 with R. Jose,' who says, We impose [disqualification] in respect of minor matters27 as a result of a major transgression;28 but not the reverse! — No! On R. Jose's opinion, there is no dispute at all.29 They differ only on the basis of R. Meir's opinion. Abaye certainly agrees with R. Meir. But Raba [may argue]: So far R. Meir gives his ruling only in the case of a Zomem in a monetary case, who is evil in the sight of God and man. But in this case, since he is evil in the sight of God alone,30 even R. Meir does not disqualify him. And the law rests with Abaye. But has he not been refuted? — That [Baraitha which refuted him] represents the opinion of R. Jose.31 Granted; yet even so, [wherever] R. Meir and R. Jose [are in dispute], the halachah rests with R. Jose!32 — In the other case it is different, for the Tanna has taught R. Meir's view anonymously.33 And where does this occur? — [As we find] in the case of Bar Hama, who committed murder. The Resh Galutha34 said to R. Abba b. Jacob:35 Go and investigate the matter, if he is definitely the murderer, dim his eyes.36 Two witnesses thereafter appeared and testified to his definite guilt; but he [Bar Hama] produced two other witnesses, who gave evidence against one of the accusing witnesses. One deposed: In my presence this witness stole a kab of barley; the other testified: In my presence he stole
1 Then [R. Abba] said to the [defendant]: What is thy intention: [to disqualify this man] in accordance with the opinion of R. Meir?2 But wherever R. Jose is at variance with R. Meir, the halachah rests with R. Jose; and R. Jose ruled: One [a witness] who was proved a Zomem in a civil suit is competent [to testify] in capital charges. Said R. Papi: That [the rule] is only where the Tanna has not stated R. Meir's view anonymously. Here, however, he has. Whence do we infer this?3 Shall we say, from what we learnt? 'Whoever is competent to try capital cases, is also competent to try civil suits'?4 Now, whose opinion is this? Shall we say, R. Jose's? But what of a witness proved a Zomem in monetary cases, who, even though incompetent in civil suits, is nevertheless eligible in capital charges? Hence it must surely express the opinion of R. Meir.5 But why so? Perhaps it [the Mishnah] refers to those who are disqualified on account of [defective] family descent?6 For should you not agree, what of the latter clause of the Mishnah, viz., One may be competent to try monetary cases, but incompetent for capital cases? Now, why is he incompetent: because he was proved a Zomem in a capital charge? Is he then competent to adjudicate a monetary case? But all agree that he is ineligible! Hence it must refer to disqualification through [some defect of] family descent.7 Similarly, here too [the first clause of the Mishnah] it must refer to this type of disqualification!8 — But this is where the Tanna stated it anonymously, for we learnt:9 These are ineligible [to be witnesses or judges]: a gambler with dice, usurers, pigeon trainers, traders in Sabbatical produce, and slaves. This is the general rule: For all testimony for which a woman is ineligible, they too are ineligible.10 Now, whose opinion is this? Shall we assume, R. Jose's? But there is the case of testimony in capital charges, for which a woman is not eligible, whilst they are!11 Hence it must surely express the opinion of R. Meir.12 Thereupon Bar Hama arose and kissed his [R. Papi's] feet, and undertook to pay his poll-tax for him for the rest of his life.13
MISHNAH. NOW, THE FOLLOWING ARE REGARDED AS RELATIONS;14 A BROTHER,15 FATHER'S BROTHER, MOTHER'S BROTHER, SISTER'S HUSBAND, THE HUSBAND OF ONE'S PATERNAL OR MATERNAL AUNT, A STEP-FATHER, FATHER-IN-LAW, AND BROTHER-IN-LAW [ON THE SIDE OF ONE'S WIFE]; ALL THESE WITH THEIR SONS AND SONS-IN-LAW; AND ONE'S STEPSON HIMSELF.16
R. JOSE SAID: THIS IS [THE TEXT OF] R. AKIBA'S MISHNAH;17 BUT THE FIRST MISHNAH18 [READS]: AN UNCLE AND HIS SON,19 AND WHOEVER IS ELIGIBLE TO BE ONE'S HEIR.20 AND ALL WHO WERE RELATED AT THAT MOMENT.21 IF ONE HAD BEEN RELATED, BUT SUBSEQUENTLY CEASED TO BE SO,22 HE IS ELIGIBLE. R. JUDAH HOLDS; EVEN IF ONE'S DAUGHTER HAS DIED, BUT HE [THE SON-IN-LAW] HAS HAD CHILDREN BY HER, HE STILL RANKS AS A KINSMAN.
FURTHER, A FRIEND OR AN ENEMY [IS INELIGIBLE]. BY 'FRIEND' ONE'S GROOMSMAN23 IS MEANT; BY 'ENEMY', ANY MAN WHO, BY REASON OF ENMITY, HAS NOT SPOKEN TO ONE FOR THREE DAYS, IS UNDERSTOOD.TO THIS THE RABBIS REPLIED: ISRAELITES, AS A RULE, ARE NOT TO BE SUSPECTED ON SUCH GROUNDS.24
GEMARA. Whence is this law derived? — From what our Rabbis taught: The fathers shall not be put to death for [on account of] the children.25 What does this teach? Is it that fathers shall not be executed for sins committed by their children and vice versa? But is it not already explicitly stated, Every man shall be put to death for his own sin?26 Hence, Fathers shall not be put to death on account of children, must mean, fathers shall not be put to death on the testimony of their sons and similarly, and sons shall not be put to death on account of fathers, means, nor sons on the testimony of their fathers.
[To revert to the text.] Are not children then to be put to death for the sins committed by their parents? Is it not written, Visiting the iniquities of the fathers upon the children?27 — There the reference is to children who follow their parents' footsteps.28 As it has been taught: And also in the iniquities of their parents shall they pine away with them,29 [i.e.,] if they hold fast to the evil doings of their fathers. Thou sayest thus: Yet perhaps it is not so, but true even if they do not hold fast to their [evil] doings?30 When Scripture states, Every man shall be put to death for his own sin,31 [it must refer to those who do not hold fast to their fathers' ways. Then how shall we interpret, And also in the iniquities of their fathers shall they pine away with them?]32 — As referring to those who continue in the ways of their fathers.33 But do they [really] not [suffer for the sins committed by others]? Is it not written, And they shall stumble one upon another,34 meaning, One [will stumble] through the sin of the other, which teaches that all are held responsible for one another?35 — There the reference is to such as had the power to restrain [their fellowmen from evil] but did not.
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