The Torah relates in this week’s parshah that Moshe witnessed Dassan and Aviram fighting. As one of them raised his hand to strike the other, Moshe called out, “Rashah, why do you hit your fellow?”
The Gemara (Sanhedrin 58b) derives from Moshe’s statement that a person who merely raises his hand to hit someone is called a rashah even if he does not actually hit him. The Rambam codifies this ruling in Hilchos Chovel U’Mazik 5:2.
Being classified as a rashah has ramifications. The Torah (Parshas Mishpatim) states that a rashah may not testify in beis din; he is pasul l’eidus. The Rema (Choshen Mishpat 34:4) writes that a person who raises his hand to hit someone, even if he does not actually hit him, becomes pasul l’eidus m’drabanan.
Why isn’t he pasul l’eidus m’d’Oraisa? Because one only attains this status by performing an aveirah that is punishable by lashes or wrongfully taking someone else’s money. He is, however, pasul l’eidus m’drabanan because the Torah calls him a rasha (Beis Yosef and the Vilna Gaon [34]).
Some Acharonim were bothered by the following question: The criterion for becoming pasul l’eidus m’d’Oraisa – as prescribed by the pasuk – is to become a rashah. Since someone who lifts his hand to hit someone is called a rashah by the Torah, he should be pasul l’eidus m’d’Oraisa even though his deed isn’t punishable by lashes. Why, then, isn’t he?
Indeed, the Maharitz writes that he is pasul l’eidus m’d’Oraisa. But many other poskim do not agree. What is their reasoning? Some have suggested that when the Torah refers to someone who lifts his hand to hit someone as a rashah, it is not doing so as in a legal sense. It more like an asmachta. In other words, we do not have a true Torah source that a person who raises his hand to hit someone is considered a rashah m’d’Oraisa.
The question that remains, though, is: Why is it necessary to perform an aveirah punishable by lashes in order to be deemed a legal rashah and be pasul l’eidus m’d’Oraisa? Why isn’t it sufficient to perform any aveirah? Additionally, some Acharonim argue that a person should be liable for lashes for raising his hand to hit someone since the Torah calls him a rashah.
To answer these questions, some explain that the Gemara (based on the Torah) calls a person who raises his hand to hit someone a rashah only in the following limited sense: The Gemara (Kiddushin 28b) states that a person is not allowed to call someone degrading names, one of which is “rashah.” If a person calls someone a rashah who isn’t a rashah, the Gemara permits the target of the insult to hate his insulter and cause him loss in his business.
Perhaps it is regarding this matter that the Gemara identifies someone who raises his hand to hit someone as a rashah. In other words, someone who calls him a rashah may not be hated or caused loss in his business. This “rashah,” though, is still fit to testify in beis din.
The Chesek Shlomo (Choshen Mishpat 34, end of the siman) writes that although a person who raises his hand to strike someone is called a rashah, he does not receive lashes or become pasul l’eidus m’d’Oraisa because he didn’t do anything.