Vicious Guy/Circle

[PlatinumGuy]

What means (care to elaborate): In that case it will be very hard to assume there weren't eideim about the chillul shabbos.

Since these 40 pairs walked through the taana's house in a city, it would be a big doichak to assume there weren't eidem to prove their being mechalel shaboos.

[SuperFlyer]

Since these 40 pairs walked through the taana's house in a city, it would be a big doichak to assume there weren't eidem to prove their being mechalel shaboos.

Why is that? unless I got the whole story wrong.

[PlatinumGuy]

Why is that? unless I got the whole story wrong.

80 eidem were walking in pairs from town X to BD in J'lem, and all stopped in town Y on the way to speak to a taana.
Its very hard to assume there were no 2 eidem who saw any of those 80 people going, which would be enough to testify to his being mechallel shabbos & thus a rasha

[SuperFlyer]

Were they going over the tchum? Otherwise what aveiro were they doing.

40 pairs, and not just one mega pair, so even if one is passeld, the 39 other pairs are still valid.

[PlatinumGuy]

Were they going over the tchum? Otherwise what aveiro were they doing.

40 pairs, and not just one mega pair, so even if one is passeld, the 39 other pairs are still valid.

Yes, over the techum. That's why after 40 he didn't let the rest go.

40 pairs and we know all were kosher, as otherwise the taana wouldn't have let them be mechallel shabbos to go.

[SuperFlyer]

Yes, over the techum. That's why after 40 he didn't let the rest go.

40 pairs and we know all were kosher, as otherwise the taana wouldn't have let them be mechallel shabbos to go.

the tana made drishos vachakiros ?

[PlatinumGuy]

the tana made drishos vachakiros ?

No, but he knew what was going on. So if they would be passul and their eidus not accepted he wouldn't have let them be mechalled shabbos to go to BD

[dirah]

the Kheloy Yaakov in R'H siman 20 proves eidues shey ata yachol lehazeima is meacev also in kiddush hachodesh, from tosfos in Kesovos 20a that explains the halacha of ein ed naasa dayan is because that way it is eidus shey ata yachol lehazima. Since ein eid naasa dayan also in kiddush hachodesh, we see from tosfos eidua shey ata yachol lehazima is passul by kiddush hachodes.

You probably mean תוספות כתובות כ"א עמוד ב' ד"ה אין עד.
I don’t know who the “Kheloy Yaakov” is (misspelling?), but I suppose he is basing himself on the יש מפרשים in that Tosfos. If that is the case, I refer you to Beis Halevi (3:6:4 – here is a link) who learns Tosfos differently. In a nutshell, he says that there is clearly no דין הזמה by קידוש החודש. Therefore, the פשט in Tosfos is that because there is the כלל of אין עד נעשה דיין (based on the דין הזמה) by דיני נפשות ודיני ממונות, therefore, by קידוש החדש there is also the דין of אין עד נעשה דיין. The reason for this is that we have to make equal דיני העדויות as much as possible (based on the פסוק of משפט אחד יהיה לכם), unless there is a clear גזירת הכתוב to the contrary. There is a גזירת הכתוב saying that there is no דין הזמה by קידוש החודש, however, there is no such גזירת הכתוב with regards to the כלל of אין עד נעשה דיין.
In short, there is a דין of אין עד נעשה דיין by קידוש החדש (which is derived בעלמא from עדות שאתה יכול להזימה), but there is not a דין of עדות שאתה יכול להזימה by קידוש החדש.

Also what u quote from R Shmuel that eidus shey ata yachol lehazima is based on being mevatel there eidus, is basically a rashi in Sanhderin 40a. However, this would still not answer the rebbes question, as in his case the eidus would not be void due to the eidim being muzamim, rather due to them being passul leidus. Even though we used hazomo to arrive at that conclusion, since we now know they are not eidem at all, they are eidem zommim, and the process was thus not a genuine hazomo. So even according to Rashis opinion it is lechorah an eidus shey ata yachol lehzsima.

Again, Reb Shmuel says (did you look it up?) that the דין הזמה itself carries within it two ענינים, one is that the עדות becomes בטל, second that there is the עונש of הזמה. The דין of עדות שאתה יכול להזימה is only regarding the first detail, not the second.
Now, in our case, the fact that Kat Alef were פסול לעשות at the time that they were מעיד is irrelevant to the first detail, and is relevant only to the second. Therefore, it is considered עדות שאתה יכול להזימה. [And I don't see how the מראה מקום to רש"י in סנהדרין is relevant.]
P.S. I hope the readers don’t mind the Hebrew type, it is just easier to do it that way, then to figure out how to spell it in English. [I imagine anyone reading this thread would not be the type to mind.]

[dirah]

Standing on Lamdan's pshat, I think the answer is that even if there are other eidem to prove the chilul shabbos, the eidem are innocent until proven guilty. Thus, we can be mekabel their eidus on the assumption of being meizem them. (Ein adam karov etzel atzomo, so we don't trust them about coming on shabbos).
Even if later eidem came to testify that they came to BD on shabbos, the eidus would remain acceptable as at the time of eidus it was kosher and roy lehzama. The only problem would be if we first accepted the testimony of those who say the eidem came on shabbos.
That would be impossible, as so long as we don't have eidi hazomo, we assume they are honest, and thus coming on shabbos is not chillul shabbos. Hence the testimony about their travelling on shabbos serves no purpose (as they remain kosher), and from the sugya of chetzi davar we know that we don't hear eidus without practical implications.

According to what you say, we would accept  עדי קידוש החדש on שבת only if it was not yet established in בית דין that they came on שבת. Such a big נפק"מ להלכה should appear in ש"ס or in רמב"ם. Since it doesn't, this answer can't be right.

[PlatinumGuy]

@dirah, I meant the kehilos yaakov.

I quite disagree - if the eid was determined passul, the eidus is batel because he is not an eid, not because of the geziras hakosov not to rely on eidem zommemim. Thus there is no eidus at all, and even in regard to the first detail above it is not roei lehazama.

According to what you say, we would accept  עדי קידוש החדש on שבת only if it was not yet established in בית דין that they came on שבת. Such a big נפק"מ להלכה should appear in ש"ס or in רמב"ם. Since it doesn't, this answer can't be right.

As I pointed out, it is impossible to establish that in beis din, as beis din don't hear eidus when there is no nafka mina on hand, since we don't yet know they are lying their coming on shabbos is not chillul shabbos, so since there is no relevence to it, BD cannot determine if they came on shabbos

[dirah]

@dirah, I meant the kehilos yaakov.
 

I will IYH look it up later. Although I don’t know how on earth anyone could say that there is a דין הזמה by קידוש החדש, it is a ירושלמי מפורש, and therefore the רמב"ם paskens accordingly.

I quite disagree - if the eid was determined passul, the eidus is batel because he is not an eid, not because of the geziras hakosov not to rely on eidem zommemim. Thus there is no eidus at all, and even in regard to the first detail above it is not roei lehazama.

Reb Shmuel vs. PlatinumGuy … lol … I’ll stick with Reb Shmuel, especially as it answers the questions.

As I pointed out, it is impossible to establish that in beis din, as beis din don't hear eidus when there is no nafka mina on hand, since we don't yet know they are lying their coming on shabbos is not chillul shabbos, so since there is no relevence to it, BD cannot determine if they came on shabbos

What about Beis Din Shero’u – if they saw it with their own eyes? Or it was a case where there was a Nafka Minah? Leave it to the Bochurim to think of a Heicha Timtza over lunch.

[PlatinumGuy]

I will IYH look it up later. Although I don’t know how on earth anyone could say that there is a דין הזמה by קידוש החדש, it is a ירושלמי מפורש, and therefore the רמב"ם paskens accordingly.Reb Shmuel vs. PlatinumGuy … lol … I’ll stick with Reb Shmuel, especially as it answers the questions.What about Beis Din Shero’u – if they saw it with their own eyes? Or it was a case where there was a Nafka Minah? Leave it to the Bochurim to think of a Heicha Timtza over lunch.

Reb Shmuel doesn't say in a case where the eidem were also found reshaim it is considered hazama. All R Shmuel says is that what's required is not the punishment, but the voidment of the eidus because of the geizara haksov of eidem zommemim. This is a Rashi on Sanhedrin 40a, who says eidus shei ata yachol lehazima is passul because its lacking an element of eidus (kinda like roi leibila).

In this scenario the reason there is no eidus is not because of them being zommemim, but because they are not eidem at all. The method that was determined doesn't turn them into eidem zommemim. Thus this eidus is ei ata yachol lehazima, as there is no possibilty to void their eidus becaue they are zommemim.



Even if there was a heicha timtza, you can't bring a rayeh from the Rambam/Shu'a not discussing that specific case. So I will argue that in that heicha timtza, the eidus will be passul.

[SuperFlyer]

I believe Plat makes more sense.

Ultimately the question is (if it wasn't clear before), how can anyone give eidus on kidush levana when doing a melocho on shabbes, since it can never be muzam, which is a basic requirement for their acceptance by bes din.

PS: using the hebrew fonts is great.

[shmuelb]

What about Beis Din Shero’u – if they saw it with their own eyes? Or it was a case where there was a Nafka Minah? Leave it to the Bochurim to think of a Heicha Timtza over lunch.

How can they see that the chillul Shabbos was b'meizid? How can they give hasraah? Let's say they the eidim coming off a plane, without hasraa how do they shtel avek that it was b'meizid? Maybe they had another heter?

Sorry, I did not learn this sugyas in years and never really learnt it up.

The demographics here allow for some good lomdishe reid with the gemarakups here. 

[Lamdan]

Earlier in this thread I wrote a post starting with the words "veod yesh lomar", I don't think it was written well, but I think it's a good תירוץ, so let me rewrite it. There is no reason logically to trust the second pair of witnesses that claims the 1st pair is lying, it is a גזירת הכתוב. Therefore, it is possible to say, that we only believe them over the 1st pair לגבי the testimony that the 1st pair testified, and we'll disqualify the 1st pair's testimony. But the 1st pair won't have a din rasha, because לגבי wether they were michalel shabbos we don't believe the 2nd pair over the 1st, the גזירת הכתוב doesn't extend to believing the 2nd pair לגבי anything else that's a פועל יוצא of their testimony.

[asd]

@lamdan there is a whole sugya about eidus lechatzoin when something is preventing us from believing the whole eidus lemoshol if he implacates himself in the eidus (ploiny ruvany lirtzoiny) but lechoira your sevara is true nonetheless because here the eidus of zoimimim is specifc to the eidus the whole neemunes is only benogaiah the eidus and the chillul shabbos was never part of their eidus just derech agav, or maybe not

[PlatinumGuy]

How can they see that the chillul Shabbos was b'meizid? How can they give hasraah? Let's say they the eidim coming off a plane, without hasraa how do they shtel avek that it was b'meizid? Maybe they had another heter?

Sorry, I did not learn this sugyas in years and never really learnt it up.

The demographics here allow for some good lomdishe reid with the gemarakups here. 

Huh? What does hasraa have to do with passul leidus? One is passul leidus even if he is oiver an averah w/o hasraa.

A person is neeman when he says mezid haysi, see rishonim Makkos 2a why that's so.

[Lamdan]

@lamdan there is a whole sugya about eidus lechatzoin when something is preventing us from believing the whole eidus lemoshol if he implacates himself in the eidus (ploiny ruvany lirtzoiny) but lechoira your sevara is true nonetheless because here the eidus of zoimimim is specifc to the eidus the whole neemunes is only benogaiah the eidus and the chillul shabbos was never part of their eidus just derech agav, or maybe not

Thanx for being maskim. There is a yesod from the Bais Halevi, that if you're traveling between two big cities and you don't meet anyone on the way, it's because you're on the wrong route, so too in learning if no one agrees with you it's bec. you have the wrong mehalech.

[shmuelb]

Earlier in this thread I wrote a post starting with the words "veod yesh lomar", I don't think it was written well, but I think it's a good תירוץ, so let me rewrite it. There is no reason logically to trust the second pair of witnesses that claims the 1st pair is lying, it is a גזירת הכתוב.

From what I remember, there is a sevara that you can not be meid about yourself. That is why "imanu hayisem" works to be mazim but "nirtzach haya imanu" etc does not work.

An example of what you are waying can be why in the Mishna in Makos, 6b

מתני' היו שנים רואין אותו מחלון זה ושנים רואין אותו מחלון זה ואחד מתרה בו באמצע בזמן שמקצתן רואין אלו את אלו הרי אלו עדות אחת ואם לאו הרי אלו שתי עדיות לפיכך אם נמצאת אחת מהן זוממת הוא והן נהרגין והשניה פטורה

you can ask how it was one Kat if they were not there so they never really saw each other?

With your answer, ken zein you can say that the mazimim are not neeman legabey that. Ayin b'Ktzos, Rav Chaim and more iirc.

[PlatinumGuy]

Earlier in this thread I wrote a post starting with the words "veod yesh lomar", I don't think it was written well, but I think it's a good תירוץ, so let me rewrite it. There is no reason logically to trust the second pair of witnesses that claims the 1st pair is lying, it is a גזירת הכתוב. Therefore, it is possible to say, that we only believe them over the 1st pair לגבי the testimony that the 1st pair testified, and we'll disqualify the 1st pair's testimony. But the 1st pair won't have a din rasha, because לגבי wether they were michalel shabbos we don't believe the 2nd pair over the 1st, the גזירת הכתוב doesn't extend to believing the 2nd pair לגבי anything else that's a פועל יוצא of their testimony.

Assuming we have another pair of eidem to testify that they came on shabbos, the only question remaining to determine if they were mechallel shabbos is if they were meid trully or falsely.

So basically, what you're saying is that in geizars haksov of eidem zommemim not to believe them in this eidus, we reckon the eidus was false for all ramifications such as what day yo'k is, and even about their eidus itself (hence we give them malkus), + they become passul for future eidus (B'K 74a) but we still mantain they were truthfull when judging if they were mechallel shabbos for a true eidus?
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