Yevamot 27 - 33 Issue #307
18 - 24 Tevet 5760 / 27 December 1999 - 2 January 2000

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It's the Potential that Counts

Is the testimony of witnesses in writing acceptable as evidence in a Beit Din (a court ruling according to Torah Law)? The difference of opinion on this question revolves around a passage of the Torah paraphrased in our gemara: "Upon the testimony coming from the mouths of two or three witnesses shall the truth be established." (Devarim 19:15)

Based on this rule of evidence, our Sages determined that testimony must come "from their mouths, but not from their writing."

Rashi, in his commentary on the Torah, explains this as an insistence on oral testimony which disqualifies testimony which the witnesses send in writing to the court. Tosefot, however, quotes Rabbeinu Tam as stating that it is customary for witnesses to send their written testimony to the court. According to his view, the Torah only disqualified the testimony of witnesses who do not recall the event at all and rely entirely on the record they once wrote. If they do remember the event, however, there is no problem in their transmitting their testimony about it to the court in writing.

There seems to be a support for Rashi's position from the gemara (Mesechta Gittin 71a) which disqualifies a mute from being a witness since he is incapable of saying his testimony. When the gemara questions this by suggesting that he is capable of writing his testimony, the Sage Abaye explains that the Torah disqualified written testimony on the basis of the above quoted passage.

Rabbeinu Tam's response to this challenge is to refer us to a general rule found in Mesechta Menachot (103b). The mishna there tells us that if someone donates a mincha (flour offering) of 60 esronim he can bring the flour in one vessel; but if he donates 61 he must bring 60 in one vessel and the remaining one in another vessel. What limits a vessel to 60 esronim is the fact that this is the maximum amount which can be effectively blended with a lug of oil. The gemara challenges this explanation on the basis of the rule that a mincha is kosher even if the blending process was not done at all. To this, Rabbi Zeira responds that it is only kosher if it had the potential to be effectively blended and that it is the potential, not the actual blending, which is the determinant. In the same fashion, concludes Rabbeinu Tam, the Torah did not insist on a witness actually saying his testimony but rather on his potential to say it. The mute who lacks this potential is disqualified even if he writes his testimony, but a witness who has the potential to speak, and remembers his testimony, can also submit this testimony in writing.

The Unfaithful Minor

A woman who willingly commits adultery is forbidden to her husband. What about a minor (less than 12 years old) whose father used the power the Torah gave him to marry off his daughter — will she too become forbidden to her husband if she willingly commits adultery?

Rambam (Laws of Forbidden Relations 3:2 and Laws of Sotah 2:4) rules that she does become forbidden as a result of willingly committing adultery, in the same fashion that a grown woman does. His ruling is challenged by Ravid on the basis of our gemara which states that the willingness of a minor is considered coercion because of her lack of maturity, and she is therefore not forbidden to her husband; only the wife of a kohen becomes forbidden as a result of forced relations. He also raises a question about the warning which Rambam says is given by the husband who suspects his minor wife of infidelity, a warning which if ignored can lead to her becoming forbidden to him even without witnesses to actual adultery, only to her secluding herself with the man whom she was warned to avoid. How, he asks, can a warning have any meaning in regard to a minor who lacks the maturity to understand its significance?

In regard to the challenge from our gemara, the Maggid Mishna suggests that no definitive ruling was given to the effect that a minor does not become forbidden to her husband. The gemara merely undertook to refute an attempt to prove that our mishna must not be discussing a case of willful wife swapping because such action would have made the sinful women offenders forbidden to their husbands, something which the mishna states clearly is not the case. Perhaps the women in question were minors, challenges the gemara, and the willful adultery of a minor is considered coercion and does not make her forbidden? The gemara then proceeds to prove its interpretation of the mishna from another detail in it and therefore does not continue its discussion of a minor's adultery. Since Rambam has a basis for his opinion from another gemara (Mesechta Ketubot 9a) he did not view our gemara as a definitive ruling on this issue.

As for the question as to how can a warning to a minor be meaningful, the answer may be found in the approach taken by the Ohr Somayach (Laws of Forbidden Relations 3:2) in regard to the problem of how a minor can become forbidden to her husband if she is not yet obligated in mitzvot. He cites the famous ruling of Maharik that a woman who committed adultery because she thought that it was not forbidden is still considered a willful adulteress and is forbidden to her husband. The reason for this is that in explaining why she becomes forbidden, the Torah does not stress the sin involved, only the fact that she "betrayed her husband." Ignorance of the law may serve as mitigation of the sin but not of the betrayal. Even though a minor lacks the maturity to be held responsible for mitzvot or to be punished for violation, she is expected to be capable of being faithful to her husband. The warning therefore has a meaning and her unfaithfulness does result in her being forbidden.

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