We are continuing in the third chapter of Tractate Sanhedrin, with the third mishnah, where we will continue to discuss the rules of conduct for the Beis Din. Our focus is now on witnesses, and specifically - who is valid to serve as a witness. This mishnah discusses those who are disqualified due to wickedness, meaning people who are known to be corrupt, especially in monetary matters, whereas the next mishnah will deal with the disqualification of relatives.
The Source of the Disqualification - "Al Tashes Rasha Ed":
The verse states: "Al tashes yadecha im rasha lihyos ed chamas" - do not join your hand with a wicked person to be a malicious witness. The simple meaning of the verse is a prohibition against joining forces with a wicked person to serve as a malicious witness. However, the Gemara derives from it - as it does with many verses throughout the tractate - "al tashes rasha ed": do not allow a wicked person to serve as a witness.
Who is considered a wicked person?
One who intentionally and willfully violates severe Torah prohibitions, such as those that carry the death penalty, for example, someone who publicly desecrates Shabbos.
Even one who intentionally violates prohibitions that are punishable by lashes - a much broader category - such as one who eats forbidden foods. Since he intentionally committed an act that carries the punishment of lashes, at least theoretically, it becomes clear that he is not God-fearing, and he cannot be relied upon for testimony.
In addition to the technical list of prohibitions, there are monetary offenses that do not carry the punishment of lashes but nevertheless disqualify one from testifying. The classic example is a robber: technically, there is no punishment of lashes for robbery, because it is a "lav hanitak la'aseh" (a prohibition that is rectified by a positive commandment) - the Torah established a rectification for this offense, "Veheishiv et hagezeilah asher gazal" - he shall return the stolen object which he robbed, and any prohibition for which the Torah provided a positive commandment to rectify it does not carry lashes. Nevertheless, someone who is known as a robber, a thief, one who withholds a worker's wages, or one who keeps money that is not his in his possession - is disqualified from testifying. We do not rely on his testimony, as such a witness is liable to be biased or bribed.
"Ve'eilu hein hapesulin" - And these are the disqualified individuals:
The mishnah lists several examples, some of which are disqualified by rabbinic law.
"Hamesacheik bekubya" - One who plays with dice:
This refers to playing with dice, meaning a gambler, and his disqualification is by rabbinic law. The Gemara gives two reasons for this:
He is considered somewhat of a robber, because "asmachta lo kanya" (a conditional agreement is not legally binding). The winner of the bet takes money that the other party did not give with complete willingness, since the loser thought he would win and did not truly intend to give him the money. Therefore, there is a semblance of robbery here.
He is not engaged in the settlement of the world - this is the reason cited by the Bartenura and the Rambam. He is not involved in building society and the economic welfare of the community, and since he has nothing to lose and does not invest in it, he does not care whether it succeeds or fails; and who knows how far his corruption reaches. The gambler is a detached person who is not invested in society, and therefore his integrity cannot be relied upon.
Later on, the mishnah will qualify this ruling with the words of Rabbi Yehudah, who distinguishes between someone who has no other profession but this, and someone who has another steady occupation.
The Bartenura's words here are a true philosophical insight. He writes: "A dice player is invalid for testimony because he is not engaged in settling the world," and adds an amazing statement - "Ve'asur leadam sheyisasek be'olamo ela" - a person is forbidden to engage in his world except in one of the following ways:
"O batorah" - studying Torah and teaching it to others.
"Ugemilus chasadim" - doing acts of kindness for others.
"O bischorah uva'umanus uvimelachah sheyesh bahem yishuvo shel olam" - commerce, a handicraft, and a profession, and any work that develops the world.
There are, therefore, three options: Torah, acts of kindness, or work that improves the world, contributes to society and people's welfare, and invests in it. The gambler stands outside all three, and therefore he cannot be relied upon.
In this context, it is worth relating a story: A young man in his late teens once asked Rav Yaakov Weinberg zt"l, who was one of the leaders of the generation at the time, how to choose a career. His answer was: "Do everything, but do not be a paper trader" - a profession such as managing a hedge fund and the like, whose entire essence is trading, and which does not develop the world but merely makes money at the expense of others. One could argue that even such an occupation is included in the words of the Bartenura, or one could argue otherwise.
"Hamalveh beribis" - one who lends with interest:
Fixed interest (ribis ketzutzah) is a Torah prohibition. When the interest is not fixed - meaning a set payment above the principal was not established in advance, but additional payments may occur at a later date - this is "the dust of interest" (avak ribis) which is rabbinically prohibited, and this too invalidates a person for testimony.
The Gemara notes that the borrower is also invalid, since he too violates a prohibition: it is forbidden to lend with interest and it is forbidden to borrow with interest. While the lender violates more prohibitions, the borrower violates at least one. Therefore, the Gemara says that one could read the language of the Mishnah not as "hamalveh beribis" - the one who gives the loan, but rather "hamilveh beribis" - the loan itself that is made with interest, in which both parties participate.
"Umafrichei yonim" - pigeon flyers:
Here too, there are two approaches in the Gemara:
This refers to a type of gambling, similar to horse racing, except that here it is pigeon racing. The logic is identical to that of the dice player.
This refers to a person who lures the pigeons of others to himself. He sets up a dovecote in the public domain, scatters food, and attracts pigeons that lay eggs, and he benefits from them. Technically, the pigeons do not belong to him, since he never made a formal acquisition of them - they are wild pigeons that he neither caught nor bought, but they dwell in his dovecote and he collects the eggs and the other benefits. Therefore, one who lures them to cross over to him using his own pigeon is not a robber according to strict Torah law, since the pigeons do not belong to anyone; nevertheless, this is a rabbinic prohibition, a form of rabbinic robbery, and one who does so is rabbinically invalid for testimony.
"Vesocharei shevi'is" - traders of Shemitah produce:
One who trades in Shemitah produce violates a Torah prohibition, which is derived from an exegesis. The verse states: "Vehaysah Shabbos ha'aretz lachem le'ochlah" - the produce of the Shemitah year was given for eating, and the Sages expounded: "le'ochlah (for eating) - and not for commerce." Therefore, someone who obtains Shemitah produce, even ownerless produce that he received from poor people who gleaned them, and he buys and sells them - he is engaging in forbidden commerce, and is invalid for testimony.
The Mishnah continues: "Barishonah hayu korin osan osfei sheviis, umisherabu ha'anasin chazru likrosan soharei sheviis" - initially they called them gatherers of sheviis produce, but when the oppressors increased, they went back to calling them merchants of sheviis produce. This is not merely a matter of semantics, a change in their nickname. In the past, even "gatherers of sheviis", those who hoard the produce of the Shemittah year, were disqualified from being witnesses, since it is forbidden to hoard sheviis produce. While it is permitted to approach the trees and gather from the crops, one may not take more than enough for a few meals; we do not hoard large amounts. Thus, the very act of gathering and hoarding made a person disqualified, on a rabbinic level.
However, the Romans during the time of the Mishnah demanded rent from all landowners: for every plot of land, its owner was required to provide a set amount of wheat. The Romans had no consideration for the fact that the Jews do not plant wheat during the Shemittah year, and they insisted on their payment. The situation was so severe that there is a Gemara in which Rabbi Yannai permitted people to plow and plant their fields during sheviis - a biblical prohibition - because of pikuach nefesh, since anyone who did not provide the wheat would be killed. Because of this, people were forced to hoard crops to survive and to pay the taxes, and therefore being a 'gatherer of sheviis' was no longer considered a problem, since they had no choice. But 'merchants of sheviis', those who trade in the produce, remained disqualified. This is the meaning of the change in the text and in the definition of the category of those who are disqualified.
The Opinion of Rabbi Yehudah:
The Mishnah concludes: "Amar Rabbi Yehudah: eimasai? Bizman she'ein lahen umanus ela hi, aval yeish lahen umanus shelo hi - kesheirin" - Rabbi Yehudah said: When is this? When they have no profession other than this, but if they have a profession other than this, they are valid.
Rabbi Yehudah is referring to the first case in the Mishnah, the dice player, and possibly also to the pigeon racers, if both cases involve gambling. He is not coming to disagree, but rather to explain: the disqualification only applies to someone who has no other profession besides gambling, in which case he is not engaged at all in settling the world, is not involved in it, and is like an outsider. But someone who has another profession - a lawyer during the week who gambles on the weekend - has a share in settling the world and in society as a whole, and is valid to be a witness.
The halachah is ruled in accordance with Rabbi Yehudah, and this is the opinion of the Rambam and his colleagues. The entire discussion revolves around settling the world on the one hand, and that 'minor theft' involved in gambling on the other; practically speaking, someone for whom gambling is not his only profession but only a part-time pursuit is valid to be a witness.
In summary: In this Mishnah, we learned the source for the disqualification of a wicked person from being a witness from the exposition "do not place a wicked person as a witness", and we defined a wicked person as one who intentionally violates prohibitions punishable by death or malkus, as well as one who stumbles in monetary sins such as robbery, even though it does not carry malkus because it is a "negative commandment rectified by a positive one". We examined the four examples in the Mishnah: the dice player (due to the principle that an asmachta does not effect acquisition, or because he is not engaged in settling the world), the one who lends with interest (and the borrower is also included), pigeon racers (gambling or rabbinic robbery), and merchants of sheviis produce ("for eating - and not for trade"), as well as the change from "gatherers of sheviis" to "merchants of sheviis" following the decrees of the oppressors. Finally, we learned Rabbi Yehudah's qualification, which is ruled as the halachah: the disqualification only applies to one who has no profession other than this.
In the next Mishnah, we will discuss another disqualification for testimony - the disqualification of relatives.