Kiddushin, Daf Mem Gimmel, Part 5

 

Introduction

Today s section continues to discuss whether agents can also serve as witnesses.

 

אמר רבא אמר רב נחמן אמר לשנים צאו וקדשו לי את האשה הן הן שלוחיו הן הן עדיו וכן בגירושין

וכן בדיני ממונות

 

Rava said in the name of R. Nahman: If one says to two, Go out and betroth a woman for me, they are both his agents and his witnesses.

And the same is true in respect to divorce; and also in monetary cases.

 

Just as agents can be witnesses for marriage, so too they can for divorce or monetary cases.

 

וצריכא דאי אשמעינן בקידושין משום דלמיסרה קאתי אבל גירושין ניחוש שמא עיניו נתן בה

 

Now, these are all necessary. For if it had taught us this of kiddushin, [I would say] that is because they make her forbidden; but as for divorce, we might fear that he [one of these] desired her for himself.

 

The Talmud now explains why R. Nahman needed to teach that agents can also be witnesses in all three fields of law.

If the law had been stated about betrothal, I might have thought that he is believed because betrothal makes her prohibited to him. But divorce would make her permitted to him. So maybe we wouldn t believe him to say that he had been sent to divorce her.

 

ואי אשמעינן גירושין משום דאיתתא לבי תרי לא חזיא אבל ממונא אימא הני מיפלג פלגי צריכי

 

Again, if he had taught us [thus] of divorce, that may be because a woman is not eligible to two men; but as for a monetary matter, I might argue that these [witnesses] are sharing the proceeds. Thus they are [all] necessary.

 

If R. Nahman had taught us about divorce, we might have thought that the agents are believed to be witneseses because both witnesses cannot marry the woman. There is less fear of collusion. But they could both lie about a monetary matter and share the illicit proceeds.

 

מאי קסבר אי קסבר המלוה חבירו בעדים צריך לפורעו בעדים הני נוגעים בעדות נינהו דאי אמרי לא פרעניה אמר להו פרעוני

 

What does he hold? If he holds that he who lends [money] to his neighbor in the presence of witnesses must repay him in the presence of witnesses, then these are interested witnesses, for should they say: We did not repay him, he [the debtor] can say to them, Then pay me!

 

There is a dispute among amoraim whether or not when one takes a loan in front of witnesses he must also repay in front of witnesses. If he does, then these agents are interested witnesses. They would want to say we did repay him because otherwise the sender will claim the money back, since there are no witnesses to say that they (the agents) gave him the money back. In other words, these agents have an incentive to lie.

 

אלא לעולם קסבר המלוה את חבירו בעדים א"צ לפורעו בעדים ומגו דיכלי למימר אהדרינהו ללוה יכולין למימר פרעניה למלוה

 

Rather he holdw that he who lends money to his neighbor in the presence of witnesses need not repay him in the presence of witnesses, and since they can say, We returned it to the debtor, they can also say, We repaid the creditor.

 

Rava holds that one need not pay back a creditor in front of witnesses. These agents would be believed to say that they had returned the money to the sender. Therefore, since they have no incentive to lie, they are believed to say that they did indeed give it to the creditor.

 

והשתא דתקון רבנן שבועת היסת משתבעי הני עדים דיהיבנא ליה ומשתבע מלוה דלא שקיל ליה ופרע ליה לוה למלוה

 

Now, however, that the Rabbis have instituted an oath of inducement, these witnesses [the agents] must swear that they repaid him [the creditor], the creditor swears that he did not receive it [the repayment], and the debtor must repay the creditor.

 

The rabbis instituted that when one completely denies a monetary claim the one denying must take an oath that he does not owe money. If the agents claim that they returned the money to the sender, they would have to take an oath. Therefore, they have an incentive to say that they gave the money to the creditor, and such their testimony is not believed. To be believed they must take an oath that they indeed gave the money to the creditor (the person to whom they were sent to give the money). If the creditor then takes an oath that he has not received the money, the sender will have to repay him the money. In short, do not send out agents if you do not trust them.