July 30, 2022

Ketubot 20

Amidst its wide-ranging discussion about evidence, testimony and memory, today’s daf (Ketubot 20a) draws a fascinating distinction between the concept of הזמה (hazama) and הכחשה (hakhasha). But to explain the difference between the two, we need to define what each of these are.
If a pair of witnesses testify in a Beit Din that someone committed a crime in order find them guilty and in order for them to therefore be punished by the Beit Din – either monetarily or physically, and then a further pair of witnesses testify that this first pair are lying since they were with them, elsewhere, at the time when this purported crime was committed, then the first set of witnesses are called ‘edim zomemim’ and the Beit Din then punish them – where possible – with the punishment that they maliciously intended that the innocent party to receive (see Devarim 19:19). The testimony and ruling debunking the testimony of the first pair of witnesses is called הזמה (hazama).
In contrast, if a pair of witnesses testify in a Beit Din that someone committed a crime, and then a further pair of witnesses also testify about that same incident but they present contradictory information to the first which would mean that the individual did not, in fact, commit a crime (eg. they claim that the event did occur but at a different time when such an act would not be considered to be prohibited), then though, like ‘edim zomemim’, it seems that this first pair of witnesses were intent on causing an innocent party to be punished, we treat this case differently since there are times when well-intentioned witnesses get certain facts wrong. Here, the testimony and ruling leading to the contradiction of the testimony given by the first pair of witnesses is called הכחשה (hakhasha).
Having explained all this we can revert to the statement of Rabbi Abahu in today’s daf who tells us that the debunking of testimony by a Beit Din thereby rendering a pair of witnesses to be ‘edim zomemim’ can only be done in their presence, whereas a Beit Din can rule that the testimony of a pair of witnesses is contradictory even when they are not present. But why is there a difference between these two?
Rabbi Nachum Rabinovitch explains (in his commentary to Rambam’s Hilchot Edut 18:5) that the difference in these two cases lies in the fact that the process of הזמה (hazama) challenges the personal integrity of the ‘edim zomemim’ (i.e. it about them as people) and may lead to them being punished, whereas the process of הכחשה (hakhasha) challenges the testimony of these witnesses (i.e. it is about the accuracy of their testimony) and does not lead to them being punished. And while it is permitted to rule on the testimony of witnesses not in their presence, it is not permitted to rule on witnesses themselves when they are not present.
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