We Were Forced

Ketubot (2:3) | Yisrael Bankier | 9 years ago

The second chapter includes many cases where people volunteer information and follow it with further details that effectively undoes any affect of that original admission. Many of these cases are considered “ha’peh sh’asar hu ha’peh she’hitir”. This loosely translates to meaning, the same mouth that incriminates is the mouth that acquits. Since the subject could have remained silent, we believe the full story. This is of course, as the Mishnah details, is only if there are no witnesses that incriminate him and we are dependant on his admission.

One interesting case (2:3) involves a financial contract where the signatures of the witnesses have not been substantiated. The Mishnah teaches that if the witness admit that the signatures are theirs but claim that they were forced to sign the document, then they are believed and the document is considered invalid.

The Gemara qualifies this explaining that the Mishnah only refers to when the witnesses claim they were force due to threats against their life. If however they were threatened financially then they are not believed and the contact is not invalid. This is because one who provides false testimony for monetary reasons is considered a rasha. We have learnt that one is not able to testify and make themselves into a rasha.Consequently they are not believed regarding the invalidity of the contract.

The Tosfot Yom Tov cites the Tosfot who question the above by citing a Mishnah that we learnt not so long ago. The Mishnah in Yevamot (9:2) teaches that if an individual testifies that he killed a woman’s husband, she is free to marry someone else. The explanation in that case is that “we divide his words” (palginan dibura), i.e. we do not accept his confession with respect to himself, but we do accept it with respect to the woman’s husband. Why can we not apply same principle here? Why do we not split the witnesses’ words and invalidate the document?

The Tosfot answer that kiyum shtarot, the necessity of validating signatures on documents, is rabbinic. Consequently, the Chachamim did not employ palginan dibura to invalidate the document. (The Tosfot provide a number of other solutions as well.)

The Tosfot Yom Tov also cites the answer of the Ran who explains as follows. With respect to the earlier Mishnah we believe him that the husband was indeed killed; whether this person was the murder or it was someone else is a separate issue. Consequently we can divide his words. In this case however, it is difficult to fragment what the witnesses are saying. If we were to suggest, for example, that they were forced by another means we no longer divide their words, but entirely uprooting them.

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