Babylonian Talmud: Tractate Kethuboth

Folio 20a

and as witnesses can be rebutted only in their presence,¹  so can they be contradicted only in their presence.²  R. Nahman said to him: If they³  had been before us and [the other two witnesses] had contradicted them, it⁴  would hake been a contradiction,⁵  and we would not have paid any attention to them,⁶  because it⁷  is a contradicted testimony. Now that they⁸  are not here⁹  — [when it could be maintained] that if they had been before us, they¹⁰  might [even] perhaps have admitted to them¹¹  — should they be believed? No, said R. Nahman; set the two [witnesses]¹²  against the two [witnesses]¹³  and leave the property¹⁴  in the possession of its master.¹⁵  It is analogous to the [case of the] property of a [certain] madman. A [certain] madman sold property. Two [witnesses] came [and] said [that] he sold [the property] when he was insane, and two [witnesses] came and said [that] he sold [the property] when he was sane.¹⁶  [And] R. Ashi said: Set the two [witnesses]¹⁷  against the two [witnesses]¹⁸  and leave the property¹⁴  in the possession of the madman. And we say [this] only when he has the ownership-right of his forefathers,¹⁹  but if he has not the ownership-right of his forefathers, we say that he bought [the property] when he was insane and that he sold [It] when he was insane.²⁰  — R. Abbahu said: One rebuts²¹  witnesses only in, their presence, but one contradicts them also in their absence. And a rebuttal in their absence — granted that it is not an [effective] rebuttal,²²  but it is a contradiction.²³

The Master said [above]: 'If there are witnesses that this is their handwriting, or their handwriting came out from another place. [namely] from a document which was contested and was confirmed in court, they are not believed'. [This is only] if it was contested, but not, if it was not contested.²⁴  This is a support²⁵  for R. Assi, for R. Assi said: A document²⁶  is confirmed only from a document, which was contested and was confirmed in Court. The Nehardeans²⁷  said: A document is confirmed only from two kethuboth or from two fields,²⁸  and [only] when their owners²⁹  used³⁰  them for three years, and [that] in comfort.³¹  R. Shimi b. Ashi said: And [only] when it is produced by another person,³²  but not [if it is produced] by himself.³³  — Why not [if from] under his own hand? Because he may have forged [the signatures of the witnesses].³⁴  [If so]. even when produced by another person also, perhaps he went³⁵  and saw³⁶  and forged?³⁷  — So clearly³⁸  he cannot fix [it in his mind].³⁹

Our Rabbis taught: A person⁴⁰  may write [down] his testimony in⁴¹  a document⁴²  and may, through it,⁴³  give evidence even after many years. R. Huna said: Only when he remembers it⁴⁴  by⁴⁵  himself. R. Johanan said: Even if he does not remember it by himself.⁴⁶  Rabbah said: You may infer from [the words of] R. Johanan [that] if two [persons] know evidence⁴⁷  and one of them has forgotten [it], the other one may remind him⁴⁸  [of it]. They asked: [In the case of] himself⁴⁹  — what is [the law]?⁵⁰  — R. Habina said: Even he himself [may do so]. Mar b. R. Ashi, said: He himself [may] not. And the law is: he himself [may] not.

1. In view of the retaliatory punishment which it involves, the accusation of an 'alibi' can be made only in the presence of the witnesses concerned.
2. [No evidence is accepted refuting the subject-matter of the evidence in the absence of the witnesses, and since in the case of the document they are dead, the evidence of the second set of witnesses is not accepted. The evidence disqualifying the witnesses as having been forced or minors is considered [H].]
3. The witnesses who signed the document.
4. The testimony of the new witnesses.
5. Of the testimony of the witnesses who signed the document.
6. The witnesses who signed the document.
7. The testimony of the witnesses of the document.
8. The witnesses who signed the document.
9. They died.
10. The witnesses who signed the document.
11. To the other witnesses. I.e., there is an additional reason for disregarding the testimony of the document. The witnesses who signed the document might even have admitted that what the other witnesses said was true.
12. On the one side.
13. On the other side.
14. Lit., 'money'.
15. I.e., of him who happens to have it now. [E.g., in the case of a note of indebtedness, either the debtor, or the creditor should the latter have happened to distrain on the debtor's goods. And when the Baraitha rules that they are not believed, it means only in so fat that the document is not destroyed.]
16. Lit., 'well'.
17. On the one side.
18. On the other side.
19. The ownership-right came to him from his forefathers by inheritance.
20. And the property passes to the purchaser.
21. V. supra p. 108 nn. 9 and 10
22. And they do not incur the retaliatory penalty for Zomemim witnesses.
23. I.e., the evidence stands contradicted.
24. Lit., 'If it is contested, yes. if it was not contested, no'. If the document was contested and confirmed in court as valid, the new witnesses are not believed; but if the document was not contested and confirmed, the new witnesses are believed.
25. Lit., 'supports'.
26. I.e., the signatures of a document. If the confirmation is made by comparing it with the signatures attached to another document.
27. The Scholars of Nehardea.
28. From signatures of the same witnesses attached to two marriage settlements it deeds of sale of fields.
29. I.e., the occupants who claim to be owners.
30. Lit., 'ate'.
31. Without anyone protesting against their holding of the fields.
32. Lit., 'it comes out from under the hands of'. I.e., when the two documents, with which the contested document is compared, were in the possession of other persons and they produced them.
33. Lit., 'from under his own hand'. I.e., if they were in the possession of the person whose document is contested.
34. In the contested document.
35. To the other persons.
36. The other documents.
37. The signatures of the witnesses on the contested document.
38. Lit., 'all that'.
39. He cannot hope to imitate the handwriting of the witnesses in the other documents, since the documents are not in front of him. By seeing the documents once or twice in the hands of others, he cannot forge the signatures.
40. Who is going to be a witness in a legal dispute.
41. Lit., 'on'.
42. We would say 'on paper'.
43. [H] 'through it', 'by it', 'by means of it'. There is apparently a legal nicety in the word. Not [H], 'from it'. If his evidence is only from it, that is if be does not recollect the evidence even when looking at the paper, his evidence would not be valid. The written testimony should be an aid to his memory. But if it does not recall anything to him, it is valueless.
44. Part of the evidence (Rashi).
45. Lit., 'of, or from himself'. And the written testimony brings it all back to his mind.
46. Only after looking at the document, in which be bad written his testimony at the time, he reminds himself of the facts of the case. But if he cannot now recollect anything, the written testimony has no value (Rashi). The same rule obtains in the English Law of Evidence. V. Cockle, Cases and Statutes on the Law of Evidence, third edition, pp. 266-7: 'A witness may refresh his memory by referring to any writing or document made by himself, at or so soon after the transaction in question that the judge considers it was fresh in his memory at the time. But it is not necessary that the witness should have any independent recollection of the fact recorded, if he is prepared to sweat to it on seeing the writing or document.' V. also Powell's Principles and Practice of the Law of Evidence, ninth edition, pp. 269-172. On p. 169: 'A witness may refresh his memory by looking at any memorandum — [1] Which revives in his mind a recollection of the fact to which it refers.' Paragraphs [2] and [3] on p. 170 are also very interesting. [3] is 'an extreme case,' and it is difficult to say whether R. Johanan would have gone as far as that.
47. Knew facts of a case to which they could testify.
48. Lit., 'one reminds his fellow'.
49. I.e., the litigant.
50. Lit., 'how is it'? I.e., may the litigant remind the witness of the evidence?

But if he¹  is a scholar,²  even he himself³  [may remind the witness].⁴  As that case of R. Ashi: He knew evidence for R. Kahana, [and] he⁵  said to him:⁶  Does the master remember that evidence?⁷  And he⁸  said to him:⁹  No. But was it not so and so?¹⁰  He¹¹  replied: I do not know. In the end, R. Ashi reminded himself, and he gave evidence for him.¹²  He¹¹  saw that R. Kahana was surprised,¹³  [so] he¹¹  said to him:¹⁴  Do you think [that] I relied upon you? I threw it upon my mind¹⁵  and I remembered it.¹⁶

We learnt elsewhere:¹⁷  Mounds which are near a town or a road, whether they are new or old, are unclean;¹⁸  those [mounds] which are distant — if they are new,¹⁹  they are clean,²⁰  and if they are old,²¹  they are unclean.²²  What is near? Fifty cubits.²³  And what is old? Sixty years.²⁴  [This is] the view²⁵  of R. Meir. R. Judah says: 'near', [denotes] when there is none nearer; 'old', when one remembers it.²⁶  [Now] what is [meant by] a town and what is [meant by] a road? Shall I say: [by] a town is [meant] an ordinary town, [and by] a road is [meant] an ordinary road? Do we presume uncleanness out of doubt? Did not Resh Lakish say: They²⁷  found some pretext²⁸  and declared the land of Israel unclean?²⁹  — Said R. Zera: [By] a town is [meant] a town which is near a burial place, and [by] a road is [meant] a road [leading] to a burial place. I grant you [in the case of] a road [leading] to a burial place,³⁰  because sometimes it might happen [that a funeral took place] at twilight, and it chanced that they buried it³¹  in the mound.³²  But [in the case of] a town which is near a burial place — all go to the burial place!³³  — Said R. Hanina: Because women bring there³⁴  their abortions and lepers³⁵  [bring there]³⁶  their arms.³⁷  [And it is assumed that] till fifty cubits she³⁸  goes alone,³⁹  but for a longer distance⁴⁰  she takes a man with her and [then] she goes to the burial place.⁴¹  Therefore, we do not presume uncleanness in Eretz Israel.⁴²  R. Hisda said: You may infer from [the words of] R. Meir⁴³  [that] one remembers⁴⁴  evidence till sixty years, for a longer⁴⁵  [period than sixty years] one does not remember. But it is not so, [for] there⁴⁶  [he does not remember the evidence after sixty years] because it⁴⁷  is not his concern,⁴⁸  but here,⁴⁹  since it is his concern, even for a longer [period⁵⁰  he] also [remembers the evidence].

MISHNAH. [IF] ONE⁵¹  WITNESS SAYS, 'THIS IS MY HANDWRITING AND THAT IS THE HANDWRITING OF MY FELLOW, AND THE OTHER [WITNESS] SAYS, 'THIS IS MY HANDWRITING AND THAT IS THE HANDWRITING OF MY FELLOW,' THEY ARE BELIEVED. [IF] ONE SAYS, 'THIS IS MY HANDWRITING,' AND THE OTHER SAYS, 'THIS IS MY HANDWRITING,' THEY MUST JOIN TO THEMSELVES ANOTHER [PERSON].⁵²  [THIS IS] THE VIEW⁵³  OF RABBI. BUT THE SAGES SAY: THEY NEED NOT JOIN TO THEMSELVES ANOTHER [PERSON], BUT A PERSON IS BELIEVED TO SAY, 'THIS IS MY HANDWRITING'.⁵⁴ GEMARA. If you should find [that] according to the view of Rabbi

1. The witness.
2. If the witness is a scholar he will know whether the reminding of the facts recalls the facts, or some of the facts, to his memory. If his memory is not aided, he will not give evidence.
3. The litigant.
4. Of the facts.
5. R. Kahana.
6. To R. Ashi.
7. I.e., do you remember those facts?
8. R. Ashi.
9. R. Kahana.
10. R. Kahana asked R. Ashi.
11. R. Ashi.
12. For R. Kahana.
13. R. Kahana was surprised that R. Ashi gave evidence after be bad said twice that be did not remember it.
14. To R. Kahana.
15. Lit., 'upon my soul'. — The meaning of these words is: I tried bard to recall the facts to my mind.
16. His own mental efforts were successful. — This story shows that a scholar may be reminded of the evidence by the litigant himself.
17. Oh. XVI, 2.
18. We assume that there are graves in those mounds.
19. Lit., 'new ones'.
20. If a dead body bad been buried there, it would have been known.
21. Lit., 'old ones'.
22. They might have been used as burial places.
23. Or less.
24. Or more.
25. Lit., 'the words'.
26. When it originated.
27. The scholars.
28. V. Nazir (Sonc. ed.) p. 247, n. 7.
29. Why should we then presume uncleanness out of a doubt?
30. That it is regarded as unclean.
31. The dead body.
32. As the funeral took place on the eve of Sabbath at twilight they might not have had time to reach the burial place before the commencement of Sabbath, and therefore they buried the dead body in the mound. Therefore, the mound is unclean.
33. Since the burial place is near, why should the town, then, be unclean?
34. In the mounds.
35. Lit., 'those who are afflicted with boils (leprosy)'.
36. In the mounds.
37. Or other limbs, which have been amputated or have fallen off through the disease of leprosy.
38. The woman.
39. And in that case she would bury the abortion in the mound.
40. Lit., 'more'.
41. As she takes a man to accompany ber she does not mind going to the burial place and burying the abortion there.
42. Lit., 'the land of Israel'.
43. Who says, 'What is old? Sixty years.'
44. Lit., 'this evidence is remembered'.
45. Lit., 'more'.
46. In the case of the mound.
47. I.e., the matter of the origin of the mound.
48. Lit., 'not thrown upon him'. I.e., there is no reason why he should remember how the mound originated mote than sixty years back.
49. In the case of a legal dispute, he is interested in the facts of which he was a witness, and, therefore, he remembers the evidence even after sixty years.
50. Than sixty years.
51. Lit., 'this'.
52. So that there should be two witnesses for each handwriting (signature).
53. Lit., 'the words'.
54. And the two witnesses thus confirm the document which they signed.