๐พ Archived View for scholasticdiversity.us.to โบ scriptures โบ jewish โบ t โบ Or%20HaChaim%20on%20Levitiโฆ captured on 2024-05-10 at 13:34:36. Gemini links have been rewritten to link to archived content
-=-=-=-=-=-=-
1 โ[1] ** ืื ืชืืื, if one sins, etc.** Why did the Torah have to introduce this paragraph with the words ืื ืคืฉ ืื ืชืืื ืืฉืืขื?, It would have sufficed to write ืื ืคืฉ ืื ืชืฉืืข. Perhaps the reason is that the person who is the subject of this paragraph is one who had previously denied knowing of testimony which could result in an accused's exoneration. When he does so a second time, he proves that he had already incriminated himself previously. The Torah alludes to this state of affairs by writing ื ืคืฉ ืื ืชืืื, someone who has already sinned, etc. The fact that the potential witness had lied already previously is accounted as a sin. All of this is confirmed by the letter ื the beginning of the word ืื ืคืฉ, at the start of this paragraph.
โ[2] We may also explain the wording based on *Shavuot* 30 where we learn of the culpability of someone who denied under oath that he knew testimony (concerning return of a loan being claimed by the creditor) and was aware that he would be guilty of offering a sin-offering even if he had denied testimony only inadvertently, but said person did not know that he had to bring a sin-offering for his perjury. If he did not know that he was culpable for the denial under oath of such testimony though he was aware that he lied, he is not guilty of such a sin-offering. Rashi explains that the Talmud means that only if the accused was unaware that he knew testimony that would help the creditor **and** was unaware of any penalty for withholding such testimony would he be free from bringing a sin-offering. Maimonides writes in chapter 1 of his *Hilchot Shavuot* that the definition of an inadvertent sin involving an oath concerning testimony is that the witness was unaware that refusal to testify to something one had knowledge of results in such a witness having to bring a sin-offering, whereas that same person is aware that his oath is sinful and that he perjures himself by swearing it. We note therefore that in order to be guilty of bringing the sin-offering the person had to be aware that his action was both forbidden and a lie. When the Torah writes: ืื ืคืฉ ืื ืชืืื the meaning is that regardless of whether the denial was intentional or unintentional the culprit is aware that he commits a sin; the Torah thereby excludes a person who was unaware of the sin or had forgotten that he had witnessed what he is accused of having witnessed is not obligated to render the oath mentioned in our verse. The *Zohar* understands this verse as referring to the warnings issued by G'd to the soul which descends into this deceitful world when entering man's body.
โ[3] **ืืฉืืขื ืงืื ืืื, when he heard a public imprecation,** this is explained by the following statement in the *Mishnah* on folio 30 in tractate *Shavuot:* "Culpability for this kind of oath exists both when the guilty party swore in the presence of the court or without the presence of a court provided he volunteered the oath. If, however, he merely denied such knowledge without swearing to his denial or saying "Amen," confirming what was put to him, he is not culpable until he had specifically denied his knowing testimony in the presence of a court. So far the view of Rabbi Meir. The other rabbis hold that there is no culpability for a false oath be it in the presence of a court or otherwise unless the perjurer had specifically denied his knowledge of testimony in the presence of a court in so many words, i.e. that he did not know of any testimony which would help the accused. From the above we note that in the view of Rabbi Meir culpability does not depend on what the accused actually said but on what he heard. Hearing a request to testify by the court and failing to do so brings in its wake culpability, i.e. ืืฉืืขื ืงืื ืืื, as long as he has **heard** the request to render an oath.
โ[4] The view of the other rabbis is explained by the ืจืื"ื and later authorities as follows: If the perjurer heard the demand to testify regardless of whether this was in the presence of a court or not, he is culpable if he denied knowledge even if he did not say "Amen," as long as his denial occurred in the presence of a court even at a different time than that when the demand to render an oath was made upon him. Again, the determining factor in his guilt is the fact that he failed to respond to a request to testify which he had **heard** with his ears.
โ[5] Although Maimonides rules in accordance with the view expressed by the majority of the rabbis that the denial must have occurred in the presence of a court in order for the perjurer to be culpable, he disagrees by saying that in order to be culpable in the absence of a court the accused must have at least said "Amen." (compare his rulings in chapter 9 ruling 1 and in chapter 10 ruling 17). This means that he holds that a denial in the absence of a court does not result in culpability unless the potential witness had uttered the word "Amen" in response to a statement suggesting that he had no knowledge of such testimony. ืจืื"ื disagrees with Maimonides claiming that one cannot rule according to Rabbi Meir. Furthermore, it is not clear why either according to Rabbi Meir or according to the other rabbis it should matter that the court is present at the time the potential witness denies under oath that he has any such knowledge as he is accused of having. Thus far the words of the ืจืื"ื. The author of ืืกืฃ ืืฉื ื adds that he has no idea about Maimonides' source for distinguishing between a denial in the presence of the court and a similar denial in the absence of a court.
โ[6] I believe that Rabbi Meir and the other rabbis disagreed only in a situation in which the potential witness volunteered his oath outside the confines of a court and did not deny any knowledge in the presence of the court at all. According to Rabbi Meir he would be guilty of perjury seeing Rabbi Meir derives this from a different kind of oath called ืฉืืืขืช ืืคืงืืื. Just as someone who denies having received money or objects on trust and he does so at his own behest he is guilty of perjury even if such an oath did not take place in the presence of a court. The other rabbis adhere to the principle known as ืืื ืืื ื ืืืืงื ืืืชืจื, that one may derive the **essential** parts of one legislation and apply it to a different type of legislation without applying **all** the details pertaining to the legislation which serves as the source of the exegesis. [The principle is explained by Rashi in *Shevuot* 31. Ed.] In situations where the supposed witness is challenged to testify by third parties but not in the presence of a court, and the supposed witness declares that he does not know any such testimony, he does not have to bring a sin-offering even if he subsequently admits before a court that he had lied. When such a lie had occurred in front of a court and is subsequently retracted, the liar is guilty of the sin-offering according to all the rabbis.
โ[7] Maimonides holds that any oath which is not sworn to in the presence of a court needs to be initiated by the person who swears it in order for him to be guilty of perjury and the sin-offering which is required. He derives this rule from the following words in the *Mishnah* quoted in *Shevuot* 31: "What is meant by the term ืฉืืืขืช ืืขืืืช, "an oath concerning testimony?" If a party said to two others: "please testify on my behalf that you have been witnesses to a certain occurrence;" if the two people in question reply: "we swear we have no such knowledge," or if they simply say: "we do not know anything about the matter you want us to testify to (without volunteering an oath)" and the first party challenges them to confirm this on oath and they confirm it by saying "Amen," they are guilty of perjury. If the person demanding such an oath repeated his request five times but never in the presence of a court, and received a negative answer each time and both parties subsequently come to court where the ones who had denied their knowledge five times now admit that they did have knowledge, they are not guilty concerning their previous denials. If they deny their knowledge also in front of the court and are subsequently found to have lied, they are guilty of a sin-offering for every previous denial separately. Thus far the *Mishnah*. We note that according to the text of the *Mishnah* the witnesses had said "Amen." Who is the author of that *Mishnah?* If it is Rabbi Meir and there was no subsequent denial in the presence of a court we would have a disagreement between Rabbi Meir and the other rabbis in the previous *Mishnah* followed by this *Mishnah* in which all rabbis are agreed. We are entitled to view this anonymous *Mishnah* as reflecting the opinion of Rabbi Meir, seeing he is not quoted as diagreeing. Seeing that Maimonides demanded that the perjurer must have first denied his knowledge in front of a court before becoming liable for the sin-offering even if his original denial had been at his own initiative, it is clear that he interpreted the *Mishnah* according to the consensus of the Rabbis. The *Mishnah* spoke of the perjurers having said "Amen." When did they do so? When they were not in the presence of a court, for if they had denied their knowledge in front of the court they would have been guilty of perjury according to all opinions even without having uttered the word "Amen" as confirmation of an oath. It emerges that according to the view of the majority of rabbis the word "Amen" is the minimum required for such potential witnesses to become guilty of perjury when not in the presence of a court. [At any rate our author has succeeded in demonstrating that Maimonides did not rule according to a minority view so that the complaint of ืจืื"ื is not in place. Ed.]
โ[8] Tossaphot, aware of an imprecision in the text of the *Mishnah*, state that this is due to the *Mishnah's* attempt to be brief; this is true if we were to assume that the alternative would have been for the perjurers to have said: "we do not know of any testimony we can offer on your behalf." Maimonides does not agree with this but holds that any oath sworn outside a court must be volunteered, i.e. the perjurer must have recited the substance of his oath with his own words. His reason is that the Torah discusses an occurrence in front of a court as we know from the words ืื ืืื ืืืื, "if he will not reveal it." Only in such a situation is it enough for the perjurer to have merely heard the demand to testify, i.e. ืืฉืืขื ืงืื for him to become guilty without uttering the substance of what he denies.
โ[9] *Shevuot* 32 asks: "whence do we know that the denial of the witnesses's knowledge must have occurred in the presence of the court so that he would **only** then be guilty for such denial (perjury)?" Abbaye answered there that we derive this from the words ืืื ืืื ืืืื, "if he refuses to testify," and that these words only make sense in a setting in which one normally testifies, i.e. a court. Rabbi Papa counters that if we were to accept the exegetical comment by Abbaye we would come to the conclusion that even an oath freely volunteered but not within the confines of a court would not be subject to the laws of perjury seeing that it was not sworn at a place defined as one designated to hear testimony? This argument is rejected in light of a *Baraitha* which interprets the word ืืืืช, "one of" in 5,4 to mean that the party who has become guilty of perjury is liable for each violation separately. If we were to assume that any oath must be sworn only in front of a court in order for one to become guilty of perjury, why would we have to be told that if the perjurer perjured himself five times in the presence of a court (on the same subject) he needs to bring only a single sin-offering? It follows that an oath may be **sworn** to also outside a court, whereas the **denial** must have taken place in front of a court for the perjurer to be liable. All this teaches that the oath which is sworn in the presence of the court is identical to the one sworn outside the court, and that one is certainly liable for perjury if one had sworn falsely outside the court. Having accepted this, it makes no difference if the party who is the subject in our verse was sworn by others in the presence of the court or elsewhere.
โ[10] This is important if we want to understand Maimonides' source for his ruling. The use of the word ืืืืช which we quoted to mean that the perjurer is liable for every previous denial is really problematical; after all, 5,4 speaks of ืฉืืืขืช ืืืื [undertakings by a person on oath to either do something or not do something. Ed.]. How can we apply the rules which pertain to such an oath to the type of oath discussed in 5,1? The two types of oath are so dissimilar that we would need an exegetical instrument to permit us to derive ืืืืืช applicable to the one kind of oath to the other! We are forced to conclude that the only situation in which the two oaths are comparable is when the ืฉืืืขืช ืืขืืืช, the oath concerning testimony, has been entered into voluntarily just as the ืฉืืืขืช ืืืื discussed in 5,4. In the case where the potential witness only responded to a challenge to deny his knowledge on oath there is no way we can derive a ืืืื applicable to ืฉืืืขืช ืืืื as applicable also to ืฉืืืขืช ืืขืืืช. This is why Maimonides derives culpability in the case of ืฉืืืขืช ืืขืืืช only when such denial occurred in the presence of the court. He saw no way of proving culpability of ืฉืืืขืช ืืขืืืช which was imposed by the creditor on the supposed witnesses by comparison to culpability of the person who swore a ืฉืืืขืช ืืืื. Let us now return to Rabbi Papa's suggestion that if we were to use Abbaye's interpretation of the words ืืื ืืืื, we would have to conclude that **every oath** has to be sworn in the presence of a court in order for someone to legally incriminate himself as guilty of perjury! We do not find that Abbaye rejected Rabbi Papa's conclusion! He only rejected Rabbi Papa's exegetical proof. This means that Abbaye agreed with Rabbi Papa that culpability for ืฉืืืขืช ืืขืืืช, the denial of knowledge as a witness which is the result of the creditor initiating the formula of the oath, must have occurred in the presence of a court in order for the perjurer having to offer a sin-offering. Thus Abbaye's view is identical with the ruling of Maimonides.
โ[11] According to all the foregoing we may interpret the words ืืฉืืขื ืงืื ืืื as referring to the perjurer having denied knowledge of what he had been invited to confirm even if he did not say "Amen." This must have taken place in the presence of a court as we derived from the words ืื ืืื ืืืื. In the event he denied his knowledge by uttering an oath, he would also be liable for another aspect of this oath, the one that we derive from the ืืืจื ืฉืื of the word ืชืืื occurring both here and in connection with the ืฉืืืขืช ืคืงืืื, (5,21) an oath in which one swears not to have been guilty of carelessness or other trespass involving an object entrusted to one to keep on behalf a third party, providing the denial occurred in court. As to the conclusion of the Talmud on *Shevuot* 32 that oaths may be sworn outside the court and result in the penalty for perjury, this refers to that kind of oath, i.e. someone denying that he had dealt treacherously with his fellow man's property while in fact having done so. [The unnecessary repetition of the word ืชืืื in those two paragraphs is the exegetical basis for learning across from one kind of oath to another. Ed.].
โ[12] We have now completely understood the way Maimonides interprets our verse. Our verse speaks of a single scenario namely that the creditor beseeches the witness to testify on his behalf in court and the (so-called) witness refuses to respond while in court. Both the two requirements mentioned in our verse are mandatory in order for the witness to become guilty of the sin-offering. 1) The attempt to make the witness deny on oath must occur in court, whereas if the denial occurred outside the court it does not result in a sin-offering even if at a different time the same witness had denied this in court. 2) The denial has to take place while the party denying is in court. If that were not the case the liar would not even be guilty of the sin-offering if he had **volunteered** a false oath outside the court as we derive from the comparison with the ืฉืืืขืช ืคืงืืื and the words ืชืืื that he would not be guilty. In the event that the denial occurred in the court whereas the oath had been sworn outside the court, we derive from the comparison with ืฉืืืขืช ืืืื that if the perjurer had uttered the words of the oath himself that he is culpable for swearing a false oath. Anyone studying this carefully will agree that Maimonides' ruling is most illuminating and is fully supported by the text of our paragraph.
Version: Or Hachayim, trans. Eliyahu Munk
Source: http://www.urimpublications.com/or-hachayim-commentary-on-the-torah-5-vols.html
License: CC-BY