Tuesday, November 27, 2007

Kesubos 87a - Combining testimony of two witnesses

The gemara says that when the husband has a single witness, reuven, testifying that he paid the kesuba and his wife is denying receiving the payment, he should pay her the kesuba a second time in the presence of shimon and then use reuven and shimon together to testify that she received her kesuba, she will likely admit to the second payment as receiving her kesuba, so then the husband can use reuven independently to testify about the first payment that she owes the original money as a "loan" on which she will need a shevuah d'oraysa to get out of. The gemara asks on this, "How can we combine the first witness with the second?". Rashi explains the question that they didn't witness the same act, so she can technically deny each witness individually with a shavua and collect a third time. Tosafos asks, that there is an opinion that even when two people witness different loans, they can combine together to testify about it, so here too they should be able to combine to testify that she received the kesuba. The Maharsha comments that even according to this opinion that reuven and shimon can testify that she received her kesuba and prevent her from collecting a third time, the gemara may still be asking, how can we use the testimony of reuven to testify about receiving the kesuba and also as a single witness on a loan. Meaning, even if we combine reuven and shimon as a testimony that she received the kesuba, there is no eid echad testifying to create a shavua d'oraysa. The rashash seems to understand the question of the gemara similar to the maharsha. The gemara is asking that the same eid who only saw one transaction cannot be used for 2 jobs, to both combine as eidus that she received her kesubah and then as an eid echad to be mechayev a shavua (he supports this understanding from the biur hagra c.m. 30:16, who basically says that based on the maharsha's understanding tosafos has no question on the gemara).

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