Torah Community Connections

Week 111 - Shabbat - 12 January 2002

SANHEDRIN: CHAPTER 3: MISHNAH 4

Now these are the relatives: his father, brother, father's brother, mother's brother, sister's husband, the husband of his father's sister, the husband of his mother's sister, his mother's husband, his father-in-law, his brother-in-law - they and their sons and their sons-in-law, and his stepson alone. Rabbi Yose said, This is the Mishnah of Rabbi Akiva, but the First Mishnah: his uncle and his uncle's son, and everyone qualified to be his heir. And everyone who was a relative to him at that time. If he was a relative and ceased to be so, then he is eligible. Rabbi Yehudah says, Even if his daughter died and he has sons from her, they are relatives.

Kehati

Mishnah 3:1 taught that relatives are ineligible to testify. From whence do we learn this? As it is written, "The fathers shall not be put to death for the children, neither shall the children be put to death for the fathers" (Deut. 24:16), which the Sages expounded, a father shall not be put to death on account of the testimony of his children, nor children by the testimony of their fathers. The plurals "fathers" and "children" further indicate, according to a baraita (Sanh. 28a), that not only fathers and children, but also other relatives are ineligible to testify. There are three types of family relationship: (1) paternal relationship; (2) maternal relationship; (3) relationship by marriage, i.e., through wife or husband. According to Rambam, only paternal relations are prohibited by Biblical writ, while the other relations are prohibited by Rabbinic law (Hil. Edut 13:1). According to the Gemara (Sanh. 28a), only the following three degrees of relationships are prohibited, whether they are paternal or maternal: (1) first with first - e.g., a father and son, or two brothers, whether from the father or from the mother; (2) first with second - e.g., a grandfather and his grandson, or an uncle and nephew, e.g., A and the son of his brother B; (3) second with second, e.g., cousins (the sons of brothers and/or of sisters) one with the other. Relatives, however, whose family relationship is of a more distant degree than these three, e.g., the grandson of A with the grandson of B (A's brother), which is a case of "third with third," or the grandson of A with the son of B, which is a case of ''third with second'' and similarly even the grandson of A with B, which is a case of "third with first" - all these are eligible to testify (R. Yitzhak Alfasi; Rambam).

According to another opinion, "third with first" is prohibited (Rabbeinu Tam; the author of Halakhot Gedolot. According to the author of Halakhot Gedolot, however, this invalidation is by Rabbinic law - see Tosafot, B. B. 129a). There is a general halakhic rule that a wife and her husband are in law one person so if A is ineligible regarding B, e.g., B is A's brother or A's nephew, A is similarly ineligible to B's wife, since she and her husband are one; and if A is ineligible regarding C, e.g., C is A's daughter or A's sister, A is similarly ineligible regarding C's husband, again because husband and wife are one. It follows from this that a step-father and stepson, or son-in-law and father-in-law or similar cases, as well as the husbands of two sisters, or the husbands of a woman and her daughter, are all instances of "first with first," and are ineligible to testify, for the degree of family relationship (on the woman's part) is of the "first with first" type. Two men whose wives are relatives of the "second by second" degree, e.g., they are the daughters of two brothers, are eligible; and similarly, the relatives of the husband are eligible regarding the relatives of the wife. There are other fine points of law, but this is not the place to elaborate (see Tiferet Yisrael). To understand our mishnah one should add that relatives who are ineligible to testify on their own may also not testify together with each other, i.e., one may neither testify about his relative, nor give testimony together with his relative. In other words, two relatives may not jointly testify about a third party; the introduction to the preceding mishnah pointed out that those ineligible to testify are also unfit to judge.

Now these are the relatives - who are ineligible to testify and to judge: his father - the version of the mishnah in the Gemara does not include the wording, "his father"; Rambam and Hameiri explain the omission because fathers and sons are mentioned explicitly in the Torah - "The fathers shall not be put to death for the children," (see introduction, supra), brother, father's brother, mother's brother, sister's husband - for husband and wife are one, as was explained above, and these are cases of "first with first" regarding his wife, the husband of his father's sister, the husband of his mother's sister - "first with second," regarding his wife, his mother's husband - who is not his father, his father-in-law - the father of his wife, his brother-in-law - the husband of his wife's sister, they - all the relatives listed above, and their sons and their sons-in-law - are ineligible due to family relationship, and his stepson - his wife's son from another husband, alone - is ineligible because of family relationship, but his stepson's son and son-in-law are eligible; his stepson's wife, however, is the same as his stepson, because wife and husband are one (see supra).

Rabbi Yose said, This is the Mishnah of Rabbi Akiva - this is how Rabbi Akiva taught in his Mishnah, but the First Mishnah - prior to Rabbi Akiva taught that these are the relatives: his uncle and his uncle's son, and everyone qualified to be his heir - the mishnah used the wording of the Torah, "Or his uncle, or his uncle's son, may redeem him" (Lev. 25:49). Rashi explains, "I.e., the relatives of the father, for 'his uncle' means his father's brother, and 'his uncle's son' means the son of his father's brother, but the mother's relatives, e.g., his mother's brother, are eligible regarding him, for he is not qualified to inherit him." According to another interpretation, the First Mishnah taught that father's relatives and mother's relatives alike, i.e., whoever is connected with the process of inheritance, either those who receive as an inheritance and who bequeath as an inheritance, such as his brother and his father's brother; or those who bequeath as an inheritance but do not receive as an inheritance, such as his mother's brother and his father-in-law; or those who receive as an inheritance but do not bequeath as an inheritance, such as his sister's husband or the husband of his father's sister (see B. B. 8:1) - all these are ineligible. The First Mishnah disagrees with the mishnah of Rabbi Akiva only regarding the husband of his mother's sister, his mother's sister, and his brother-in-law; since they have no connection with the process of inheritance, they are fit (Hameiri). Rambam however, writes in his commentary, "'And everyone qualified to inherit him' is not from the wording of the First Mishnah, but is a supplement from the mishnah of Rabbi Akiva" (see Rambam, loc. cit.; see also: Bartenura; Tosefot Yom Tov; Hidushei Harashash). In any event, the law is not in accordance with the First Mishnah.

And everyone who was a relative to him at that time - this is the continuation of the mishnah of Rabbi Akiva (according to all the commentators), and it teaches that whoever is his relative at the time that he saw that about which he will testify, or at the time that he comes to testify, is ineligible; if he was a relative and ceased to be so e.g., his son-in-law whose wife (i.e., his daughter) died, before he saw that about which he will testify, then he is eligible - for at the time that he saw that about which he will testify he no longer was his relative. Rabbi Yehudah says, Even if his daughter - the wife of his son-in-law, died and - but - he - his son-in-law, has sons from her - his daughter, they are relatives -and he and his son-in-law are ineligible vis-a-vis each other. The law is not in accordance with Rabbi Yehudah; but at any event, if the judge sees that he solicits this testimony for the benefit of the members of his family, then he will postpone the judgment (Hameiri).

SANHEDRIN: CHAPTER 3: MISHNAH 5

A friend and an enemy: a friend - this is his shushevin, an enemy - whoever did not speak with him three days in enmity. They said to him, Israelis not suspected of this.

Kehati

This mishnah is the continuation of the words of Rabbi Yehudah.

A friend and an enemy - are unfit to judge and to testify: a friend - this is his shushevin - who brought him a present to his wedding celebration and ate and drank with him (see B. B. 9:4), is ineligible vis-a-vis him all the days of the wedding celebration (Bartenura), an enemy - whoever did not speak - refrained from speaking - with him three days in - due to - enmity.

They - the Sages, said to him - Rabbi Yehudah, Israel is not suspected of this - that they would testify falsely because of either love or hatred. The Sages, however, disagreed with Rabbi Yehudah only regarding witnesses, for according to their opinion a friend and an enemy are eligible to testify, but agreed with him that they are ineligible to judge, for a person is not capable of seeing merit in his enemy or fault in his friend. Furthermore, even two scholars who hate each other are prohibited from sitting in judgment together (Gemara), for this will lead to a distorted verdict, for, due to the hatred between them, each one will tend to contradict the words of his fellow (Rambam, Hil. Sanhedrin 23:7).

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