Crossing The Divide
‘Then The Two Men Shall Stand…’
(Bava Basra 155b)
Our sugya explains that a minor cannot serve as a witness, as the Torah states (Devarim 19:17): “Then the two men shall stand…” i.e., men who are qualified to testify, but not minors (the verse could have just said “Then the two shall stand…”).
There is a halachic rule that a beis din must accept the testimony of any witnesses who comes before it. Now, as explained in Rosh Hashana, there is a mitzvah to determine the beginning of each month according to witnesses who testify that they have seen the New Moon.
The mitzvah was in practice until Hillel the Second (320-385 C.E.) convened a special beis din to fix our present calendar to overcome the fear that there would not be an expert beis din and other conditions necessary for determining Rosh Chodesh each month.
A Unique Perplexity
The Minchas Chinuch (Rabbi Yosef Babad 1801-1874) asks the following interesting question: Two young men come before beis din at the end of Nissan, claiming they saw the New Moon, and that day, as a consequence of their testimony, should be announced as the 1st of Iyar. The beis din, however, discovers that one or both of the witnesses will celebrate his 13th birthday on the first of Iyar.
As long as the beis din does not announce that day as the first of Iyar, one or both remain minors, but if the beis din accepts the testimony, then they are considered adults and that day may be announced as the first of Iyar. Therefore, what is the beis din to do – accept their testimony or not?
Beis Din’s Prerogative
Indeed, the Minchas Chinuch asserts that the matter is up to the beis din. They may accept the testimony, and as long as they announce that day as the first of Iyar, the witnesses are retroactively qualified. However, the beis din is not obligated to accept their testimony, as when they came to the beis din, they were considered minors (see Minchas Chinuch, ibid., that this solution is according to one answer of Tosafos in Makkos 2).
Another question related to our sugya arises from Rashi’s commentary on Bava Kama 88a (s.v. Pesulah l’edus). Rashi adds his own idea as to why the Torah disqualifies minors as witnesses. A minor, he explains, cannot be punished by beis din, and if his testimony is revealed as false, he cannot be penalized. He therefore cannot testify, as the halacha is that a beis din may accept only such witnesses that can be refuted.
Why, then, did Rashi feel the need to add to the above exclusion of a minor on the strength of the verse “Then the two men shall stand…” and on the other hand, since Rashi’s reasoning is logically valid, why must we derive the halacha from the verse at all? The Acharonim offer several solutions:
Meant No Harm
Rabbi David Rapaport, author of Daas Kedoshim, suggests a case that necessitates Rashi’s reasoning in addition to the halachic interpretation of the verse: If a beis din accepted the testimony of two witnesses and a doubt was later raised whether they were adults or minors, we must behave as the halacha requires in any instance of a doubt – to interpret strictly in the case of a prohibition stemming from the Torah.
According to Rashi, though, we have no need to behave strictly, as the rule is that a beis din cannot punish anyone for a doubtful transgression. The witnesses could have been minors when they testified and, as such, cannot be punished if their testimony is revealed as false.
Irrefutable Testimony
A beis din may accept only such witnesses as can be refuted, and their testimony would definitely be invalid (Hagahos Tzemach Tzedek on Teshuvos Rabbi Akiva Eiger, 1st edition, 176). Rabbi Akiva Eiger (1761-1837) approaches the question from the other direction. Why do we need the verse if we learn the same halacha from Rashi’s reasoning? Indeed, not all testimonies proven false are punishable. Someone who testified, for example, that he saw the New Moon and was discovered to have lied did not mean to harm anyone physically or financially, and so goes unpunished. We need the verse, therefore, to exclude minors from testifying in any instance.
