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Week 40 - Wednesday - 30 August 2000

ROSH HASHANAH: CHAPTER 1: MISHNAH 8

And these are the ineligible: the player with the kubiya, loaners for interest, fliers of pigeons, and dealers in shevi'it, and servants. This is the general rule: any testimony which the woman is ineligible to give, they are also ineligible to give.

Kehati

This mishnah discusses those who are ineligible to give testimony because of a transgression they have committed. By Torah law whoever is called "wicked" is unfit to give testimony, as it is written, "Do not put you hand with the wicked to be an unrighteous witness" (Ex. 23:1), from which it is learned, 'do not put the wicked as a witness.' It follows that whoever has committed a transgression punishable by lashes is ineligible for giving testimony, for it is written regarding those liable lashes, "Then it shall be, if the wicked man deserve to be beaten" (Deut. 25:2), and whoever is liable karet or the Court-imposed death penalty is certainly called "wicked," and he is unfit to give testimony. Similarly, whoever unlawfully took money from his fellow, such as a thief or a robber, is ineligible for giving testimony, though he is not liable to lashes, but must make payment. This mishnah lists only those who are ineligible by Rabbinic law, for each of these is suspect to commit transgressions involving money, and therefore also suspect to accept bribes to give false testimony, and also to mislead the Sages with their testimony about the New Moon.

And these are the ineligible - to give testimony:

The player with the kubiya - who plays with dice, bones, or smooth stones (similar to modern-day card games), for money, according to the rules of the game. Tractate Sanhedrin elaborates that this applies only if the person has no other occupation (Sanh. 3:3), "Because he does not contribute to society" (Gemara), i.e., he does not engage in activities that bring benefit to society, such as Torah, labor, etc. According to Hameiri, this is because he does not realize what worries and cares people have, and is not concerned about causing his fellow losses, nor is he ashamed to lie, for he is accustomed to use trickery in his games and is not despised for it. According to another interpretation, the player with the kubiya is a robber by Rabbinic law, because the fellow whose money he won did not transfer possession of it wholeheartedly, for he hoped to win himself (Rashi; Bartenura). Other authorities, however, disagree, for they hold that the transfer is valid - and is not half-hearted (asmakhta) - and he is ineligible for giving testimony only because of the first reason cited above;

The loaners for interest - even for interest prohibited only by Rabbinic law (see B. M. 5:1-2). The borrower and the lender are both ineligible (Gemara), for the prohibition of interest applies to both.

Fliers of pigeons - in the Gemara (Sanh.) there are two interpretations for this term: (1) pigeon race, the owner of the winning pigeon winning the wagered money. This is similar to playing with the kubiya; (2) people lure pigeons to come to them by whistling; this is regarded by Rabbinic law as robbery.

And dealers in shevi'it - who do business with produce of the shemitah year, though this is a Torah prohibition, as it is written, "And the Sabbath-produce of the land shall be for food for you" (Lev. 25:6) - for food, and not for merchandise, the mishnah nevertheless lists the dealers in shevi'it among those who are ineligible by Rabbinic law (as was explained in the introduction to the mishnah), for this refers to shevi'it at the present time, when the Torah prohibition does not apply (see Tosefot Yom Tov); according to another explanation, this is included in this mishnah because since they again purchase foodstuffs for themselves with the proceeds of the shevi'it produce, people do not think that this is a Torah prohibition (Rabbeinu Nissim; Hameiri). According to another interpretation, the mishnah does not refer to people regarding whom it is known that they deal in the produce of shevi'it, but rather to people who were idle all the years, and when the shemitah year began they started to deal in produce, and are therefore presumed to deal in produce of shevi'it (Rambam); an allusion to this interpretation can be found in the wording of our mishnah, which is "dealers in shevi'it," and not of "dealers in produce of shevi'it" (Hameiri);

And Canaanite servants - who are ineligible to give testimony by Torah law, because they have the same legal status as women.

This is the general rule: any testimony which the woman is ineligible to give - e.g., for monetary and capital lawsuits, as it is written, "then both the men shall stand" (Deut. 19:17), from which it was learned, men and not women, for women do not come to court, because "The King's daughter is all glorious within" (Ps. 45:14), i.e., they - all the ineligibles listed in this mishnah, are also ineligible to give - this testimony. But regarding all the testimony for which a woman may give, e.g., that a woman's husband died, so that she may remarry, or that a sotah became unclean, so that she will not be given the water of bitterness to drink, those listed in this mishnah are also eligible to testify. Those, however, who are unfit to give testimony by Torah law due to the commission of a transgression are unfit, even for testimonies for which a woman is eligible.

ROSH HASHANAH: CHAPTER 1: MISHNAH 9

If a person saw the New Moon and is unable to walk, they bring him on an ass, or even on a bed; and if any lie in wait for them, they take sticks in their hands; if the way is long, they take food in their hands, because for a journey lasting a night and a day they may violate the Shabbat, and they go forth to give testimony about the New Moon, as it is written, "These are the appointed seasons of the Lord…which you shall proclaim in their appointed season" (Lev. 23:4).

Kehati

This mishnah is the continuation of mishnayot 4-6, and teaches how the witnesses to the New Moon are permitted to violate the Shabbat.

If a person saw the New Moon and he is unable to walk - to the Court to testify, due to weakness or illness, they bring him on an ass - even on Shabbat, even on a bed - even if the witness is ill and they must carry him on a litter, and though the rule that "a living person carries himself" (see Shab. 10:5), does not apply to a sick bedridden person, and is prohibited to carry him on Shabbat, it is permitted to violate the Shabbat and carry him to the Court so that he can testify concerning the New Moon; and if any lie in wait for them - they fear that people are lying in wait on the way. According to another interpretation, the Sadducees and the Boethusians were lying in wait for the witnesses to the new month and would detain them, in order to mislead the Sages (Rashi), they take sticks in their hand - to defend themselves;

And if the way to the Court is long, they take food in their hands - and they carry the food with them on the Shabbat, because for a journey lasting a night and a day they may violate the Shabbat, and they go forth to give testimony about the New Moon - if the witnesses are only a day and a night's journey from the Court, and able to arrive at the Court on Shabbat during daylight, so that the Court will have enough time to proclaim the thirtieth day as Rosh Hodesh on the basis of their testimony, then they may violate the Shabbat and go to testify before the Court. But if the witnesses were farther away from the Court, and they would arrive at the Court only on Saturday night, after the Shabbat, they may not violate the Shabbat, for their testimony is not effective for kiddush ha-hodesh, for if the Court did not proclaim the new month before nightfall, the thirty-first day would be proclaimed as Rosh Hodesh, and this is not dependent upon the observation of the moon, for no month has more than thirty days. I.e., if the new month is not sanctified on the thirtieth day, it is sanctified automatically on the thirty-first day. And whence do we learn that the witnesses to the new moon may violate the Shabbat?

As it is written, "These are the appointed seasons of the Lord…which you shall proclaim in their appointed season" - from which it was learned, "in their appointed season" - even on the Shabbat, i.e., the Torah prohibited missing the appointed time of proclaiming the holy convocation, i.e., the proclamation of the new month by the Court (Rashi).

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