Rambam - 3 Chapters a Day

Sh’vuot 33b interprets testimony that is acceptable which involves sight, but not knowledge as referring to an instance where the plaintiff told the defendant: “I lent you money in the presence of so-and-so and so-and-so,” the defendant asks him to bring the witnesses to testify and the witnesses testify that they saw the plaintiff give the defendant the sum mentioned, but they did not know why he gave it to him. An instance where the witnesses know without seeing is when the defendant admits the debt in their presence.

I.e., with regard to cases involving capital punishment or lashes, by contrast, the witness must both see and know.

Sefer HaMitzvot (negative commandment 258) and Sefer HaChinuch (mitzvah 37) count this as one of the 613 mitzvot of the Torah. I.e., this command does not involve only a prohibition against telling an outright lie, but also against delivering any testimony that should not be given.

See Hilchot Sanhedrin 12:3 which discusses the warning issued to witnesses in cases involving capital punishment.

Although the witnesses testify in private, they are given a warning in public to create a greater sense of shame and embarrassment if they are in fact lying (Radbaz).

Sanhedrin 29a relates that famine and bloodshed come to the world because of the sin of delivering false testimony.

Sanhedrin, loc. cit., cites the example of the false witnesses hired by Izebel to testify against Nabot. Izebel herself referred to the witnesses as “unscrupulous men” (I Kings 21:10), implying that even she who hired hem looks down at them with scorn. Needless to say, in the world to come, the world of truth, they will be overwhelmed with shame.

This does not include the litigants themselves. For the witnesses must testify in their presence. See Sefer Me’irat Einayim 28:37.

As the Rambam states in Hilchot Toen ViNitan 6:1, we always ask a plaintiff and a defendant to clarify the claims they make. Similarly, the witnesses are asked to clarify their testimony.

But did not do so with the assurance necessary for a statement to be considered as an admission of debt. See Hilchot Toen ViNitan 6:7 which states that a person may admit owing other people money so that he does not appear wealthy. Such an admission is not binding in court.

For he must have direct knowledge of the matter, as explained above.

As the Rambam explains in Hilchot Toen ViNitan 6:7, the defendant can excuse himself saying: “I was only jesting with you.” Since he was not aware of the presence of the witnesses, we do not know whether or not he was speaking sincerely.

I.e., witnesses whom he sees.

In these instances, since the plaintiff was present and the defendant made these statements with a serious intent, we cannot accept the argument that he was jesting, speaking facetiously, or made the statement so as not to appear wealthy, as the Rambam explains in Hilchot Toen ViNitan 7:1-2.

If, however, he remained silent, but appeared to mock the lender, he is not considered to have accepted them as witnesses (Radbaz).

This statement serves as a legal record for the loan. It does not have the strength of a promissory note unless the borrower specifically requests that it does, as stated in Hilchot Malveh V’Loveh 11:1.

As stated in Halachah 1.

I.e., the student does not transgress the prohibition against giving false testimony, because he does not testify. Nevertheless, creating a false impression is also forbidden.

Since he himself did not cause his colleague financial loss - for the loss was caused by the witnesses who actually testified falsely, and they are responsible for their own conduct - he has no liability. His act is considered a secondary cause of damage (Bava Kama 56a and commentaries).

The literal translation of the Rambam’s words is “He is obligated according to the laws of heaven.” The Ramah (Choshen Mishpat 32:2) adds several qualifications to the Rambam’s ruling. Among them: a) If the plaintiffs claim is valid, although the person who hired the witnesses was forbidden to have done so, that person does not have even a moral and spiritual obligation to the defendant. b) If the person did not hire the false witnesses, but merely convinced them to testify, that person does not have even a moral and spiritual obligation to the defendant. c) The Rambam is speaking about a situation where a person hired witnesses to testify on behalf of a colleague. If he hired witnesses to testify on his own behalf and expropriated money not due him by law, he is liable to make financial restitution.

The Sefer Me’irat Einayim 28:10 rules that this law applies even if two witnesses do not deliver testimony. By mentioning one witness, the Rambam (and Bava Kama 56a, his source) are emphasizing that even in such a situation, the witness has a responsibility. Although his testimony would not obligate the defendant to make financial reimbursement - for financial responsibility is established only on the basis of the testimony of two witnesses - he would obligate the defendant to take an oath. And since it is possible that the defendant would rather pay than take the oath, the witness could have caused the plaintiff a loss.

The term zomeim has its source in Deuteronomy 19:19, which states that a witness should be punished “as he conspired to do against his colleague.”

Sefer HaMitzvot (positive commandment 180) and Sefer HaChinuch (mitzvah 524) count this as one of the 613 mitzvot of the Torah.

I.e., all the witnesses who testified falsely.

I.e., each of the lying witnesses receives a full 39 lashes. We do not divide the 39 lashes they wished the defendant to suffer between them.

See Hilchot Sanhedrin 17:1.
Even if the person whom he testified against would have received more or less lashes, the lying witness is given the amount of lashes that he can bear.

Makkot 5a distinguishes between the penalty of receiving lashes and the obligation to make financial reimbursement, stating that as far as the defendant is concerned, money is a sum which is cumulative. He is not concerned with the number of people from whom the sum is collected. Lashes, by contrast, is a punishment and that punishment comes in a total sum; it cannot be divided.

I.e., although they violated the negative commandment against giving false testimony and that commandment is punishable by lashes, they are not given that punishment. The rationale is that whenever a person is liable for a financial penalty and lashes for the same transgression, he is given the financial penalty and not punished by lashes (Makkot 4a; Hilchot Na’arah Betulah 1:11; Hilchot Sanhedrin 18:2).

This automatically disqualifies their testimony, for if they were in Babylon on that date, there is no way they could have observed what took place in Jerusalem.

If they testified with regard to murder.

If they testified with regard to a loan.

I.e., ultimately, it is the word of these two witnesses against that of these two. Seemingly, there is no reason why one should be favored over the other (Bava Kama 72b; Sanhedrin 27a.)

See also Chapter 20, Halachah 5.

Once two acceptable witnesses testify together, their testimony is binding. The fact that their are more witnesses in another group is of no consequence whatsoever. See Makkot 5b.

For there is no Scriptural decree to follow the testimony of the latter pair when the testimony of two pairs of witnesses contradicts each other.

The Rambam’s statements here are amplified by his statements in Chapter 20, Halachah 4: “There is no concept of inadvertent action with regard to lying witnesses, because there is no deed involved.’” Since the entire purpose of a warning is to differentiate between an act pert. ormed intentionally and one performed unintentionally (Hilchot Sanhedrin 12:2), a warning is unnecessary.
Ketubot 33a gives a different interpretation. The lying witnesses sought to have the defendant executed without a warning. Since we are obligated to requite them as they conspired, they are also executed without a warning.

I.e., we do not say that since the testimony was contradicted, it was already nullified and hence is of no consequence. See Bava Kama 73b.

Since the lying witnesses become obligated for punishment or a financial penalty through hazamah, the testimony against them must be delivered in their presence, as stated in Chapter 3, Halachah 11.

For in this instance, the only effect of their testimony is to release the defendant.

The punishments associated with hazamah can be administered only when the disqualifying testimony is delivered in the witnesses’ presence. The witnesses’ testimony, however, is disqualified even if the testimony is delivered in their absence. Since these statements have the power to disqualify their testimony if they were made in their presence, certainly they have the power to disqualify their testimony when made in their absence, for it is possible that were they made in their presence, they would admit their falsehood (Ketubot 20a).
The Rivash (Responsum 266) emphasizes that even in such a situation, we accept the testimony of the last pair of witnesses as true. We do not consider this as a situation where there are two pairs of witnesses whose testimony contradicts that of each other (see Chapter 22, Halachah 1). The Noda B’Yehudah (Even HaEzer, Responsum 72) does not accept this conclusion and instead interprets the Rambam’s words as meaning: “There is no valid testimony at all,” i.e., neither of the pairs of witnesses are accepted.

Although the prohibition against delivering false testimony is punishable by lashes as stated in Halachah 1, that punishment is not given in this instance for the reason the Rambam proceeds to explain.

This would prove without a doubt that the testimony they delivered was false.

I.e., were their testimony to be disqualified because of hazamah, they would have been executed for this is the punishment they wished to inflict upon the defendant.

See Hilchot Sanhedrin 16:3, 18:5, and notes for a definition of this punishment and the situations where it is applied.

I.e., as implied by the Rambam’s words, after the lying witnesses are punished, a proclamation is circulated throughout the land of Israel.

This verse is referring to all the inhabitants of the Holy Land.

I.e., it is not restitution for money which they caused the defendant to lose, because he did not in fact suffer a loss. Instead, it is a fine, levied against them as a penalty for their undesirable conduct.

For whenever a person admits an obligation which is a fine on his own initiative, he is not held liable (Hilchot Nizkei Mammon 2:8).

This is speaking about a situation where a decision was not rendered by the court. Hence a financial obligation has not yet been established.

Since a verdict has already been rendered, this is no longer considered as a fine, but as any other admission of debt.

I.e., half the sum he conspired to have the defendant forfeit. Although his word is not sufficient to obligate the other witness, it creates a binding obligation for his own self (Makkot 2b,3a).

Rabbi Akiva Eiger states that if, however, they explicitly claim that they found such a swift camel, we do accept their claim.

The murderer, because the latter pair of witnesses testified that he committed murder; the first pair of witnesses, because they were disqualified through hazamah.

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).

In contrast to the situation in the following clause.

Since he had already been sentenced to death, it is as if they are testifying concerning a dead man.

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).

I.e., a distinction is made whether a person had already been judged as liable or not.

As required by Exodus 21:37.

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.”

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.

Or write this statement in the legal document itself (Siftei Cohen 34:12).

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.

The month that precedes Nisan.

And a postdated legal document is acceptable, as stated in Hilchot Malveh ViLoveh 23:2,4.

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.

I.e., a date after the date on which the document was dated, but before the time the witnesses testified in court.

Accordingly, since their testimony is disqualified through hazamah, they are considered as lying witnesses from that date onward.

I.e., before the witnesses testified in court.

Since they did not lie previously, they are disqualified as witnesses only from that date onward.