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This week we started Rosh Hashanah. Much of the masechet deals with kiddush ha'chodesh. A Jewish month is either twenty-nine or thirty days. We learn that Rosh Chodesh – the beginning of the month – is declared based on witness testimony regarding sighting the new moon. We learn that many of the criteria of witnesses in other legal contexts also applies to the witnesses for kiddush ha'chodesh. A child, for example, cannot serves a witness. The Minchat Chinnuch however raises a question regarding minors that were born on Rosh Chodesh Nissan. These children saw the new moon on the night of thirtieth of Adar and approach Beit Din the next morning. The Minchat Chinnuch asks whether Beit Din must accept their testimony. If they do, then the boys were already bar mitzvah and the testimony is valid. On the other hand, at the moment, until Beit Din declare that the day is Rosh Chodesh, they are still minors and unable to present witness testimony. What is the law?
The Minchat Chinnuch connects this question to another that provides us with a cross-over to Daf Yomi. One of the requirements for witnesses to be valid is that the witness must have the capacity to be found zomemin (loosely translated as false witnesses) – edut she'yacholim le'hazima. In other words, the nature of the testimony must be such that other witnesses can declare that the first set was with them at the time they claim to have witnessed the event and thereby liable to receive the reciprocal punishment. The question posed is does this requirement also apply to witnesses for Kiddush ha'chodesh?
The Minchat Chinnuch explains that it depends on two different answers on the Tosfot. The Tosfot asks how one can accept testimony for a pair who testify that a kohen is a ben gerusha (son of a divorcee)? This appears to be a case that is not yacholim le'hazima since, if the witnesses were found to be zomemin, they would not receive the reciprocal punishment, but instead receive lashes? The Tosfot first answers that, the punish of lashes qualifies as yacholim le'hazima. For Kiddush ha'chodesh, the Minchat Chinnuch concludes, that one would expect that eidim zomemin would also receive lashes. Consequently, the requirement of edut she'yecholim le'hazima would also apply.
The Tosfot's second answer however is that whenever a reciprocal punishment is not relevant then there is no longer a requirement of edut she'yecholim le'hazima. The being the case, with respect to edut ha'chodesh, this would mean that there is no requirement of edut she'yecholim le'hazima. How does this relate to our issue?
The Minchat Chinnuch explains that according to understanding that there is such a requirement, and the punishment of lashes qualifies for edut she'yecholim le'hazima, then the young men could no present as valid witnesses. Even if we accept that they would be considered as adults once the testimony was accepted, such a testimony would not meet the requirement of edut she'yochlim le'hazima. That is because, if they were found to be eidim zomemin, this would mean that they were indeed minors when they provided the testimony and we would not be able to punish them with lashes.
According to the second understanding that the requirement of edut she'yecholim le'hazima does not apply, can we accept the witness testimony of these (potentially) young men? The Minchat Chinnuch explains that the Beit Din are not obligated to accept their testimony (as with other witnesses), because at the moment they are minors. Nevertheless, if they want to they can. This is because once they accept the testimony and declare the day as Rosh Chodesh, they will retroactively be considered adults at the time they witnessed the new moon and presented they testimony to Beit Din.1
1 The Zichron Shmuel cites the Rambam (Kiddush HaChodesh 2:2) who maintains that derisha ve'chakira and by extension edut she'yecholim lehazima is not required for edut ha'chodesh. The Zichron Moshe uses this fact to answer how we can accept testimony from witness that arrive on Shabbat. It would appear that this is not edut she'yecholim le'hazima. This is because if they are found to be false, then they would have violated prohibitions of Shabbat and thereby considered invalid witnesses from the outset. Since however, edut she'yecholim le'hazima is not a requirement for Kiddush ha'chodesh, there is no problem.
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