Comentario sobre Levítico 5:1

‎‏‎ קול האלה ‎ה‎ושמע‎ [AND IF A SOUL SIN] AND HEAR THE VOICE OF AN OATH in a matter to which he was witness, i. e. that he (the person interested in the evidence) called upon him (the witness) by an oath that if he knows any evidence favourable to him he should testify for him before the court (cf. Sifra); if he does not tell it, he bears his iniquity.

AND HE IS A WITNESS, WHETHER HE HATH SEEN OR KNOWN³³²The section here discusses the offering of higher or lower value (see above, Note 15), the verse before us stating that this offering is required in the case of a false oath concerning testimony. Thus, if the person interested in the evidence called upon him by an oath, adjuring him that if he knows any evidence favorable to him he should testify before the court, and he swore that he knows of no testimony concerning him, when in fact he does know, in such a case, if he swore either unintentionally or wilfully, he must offer what is called an offering of higher or lower value. See “The Commandments,” Vol. I, pp. 82-83. In the following verse another transgression for which this offering is required is mentioned. — Ramban now proceeds to explain the sense of the triple expression, and he is a witness, or knows, or saw. These are not three separate matters, for it is impossible that one be a witness without seeing and knowing. Rather, Scripture is stating that if one hear the voice of adjuration that a party to a law-suit adjures him, concerning a matter in which he is a witness either by seeing or knowing of it, if he does not tell it he has committed an iniquity. Now the witness is not obligated to bring this offering unless he knows such a testimony that the party in suit who adjured him [to give witness] would have legally won his case because of it [and the witness nonetheless withheld his evidence]. It is for this reason that our Rabbis³³³Shebuoth 33b. interpreted [on the basis of the verse before us] that there is testimony which is valid by seeing without knowing, and [testimony which is valid] by knowing without seeing. How so? [Reuben says to Shimon:] “I have delivered to thee a maneh³³⁴A Hebrew unit of weight and value, equal to the sixtieth part of a talent. [as a loan] in the presence of such-and-such persons,” and [Shimon] claims “this never happened,³³⁵And Shimon claims: “Let such and such persons come and testify that they saw you [Reuben] delivering me the money, and I will pay you” (Rashi, ibid.). let the witnesses [you claim to have], come and testify.” This is a case of seeing without knowing [since although they saw Reuben handing the money to Shimon, they do not know the nature of this delivery, whether it was as a loan, or repayment of a loan that Shimon had originally made to him].³³⁶But since Shimon denied that this transaction had ever taken place, and says that if Reuben can produce the witnesses he claims he has to testify that they saw Reuben delivering him money, he will pay Reuben — then the witnesses’ testimony that they saw Reuben giving Shimon money is sufficiently valid to obligate Shimon to pay Reuben, although they did not know the nature of that transaction. If therefore they withhold their testimony, they are liable to bring the offering dealt with here. [If Reuben says to Shimon:] “You have admitted to owing me a maneh,³³⁴A Hebrew unit of weight and value, equal to the sixtieth part of a talent. in the presence of such-and-such persons,” [and Shimon replies]: “let them come and testify,” this is a case of knowing without seeing [and even though they did not see, they must testify what they know, and hence are liable if they withhold their evidence].
But in line with the plain meaning of Scripture, we need not [explain] the “seeing” here [to mean seeing] without knowing. Rather, the sense of the verse is as follows: whether he hath seen, meaning that he saw the loan or the sale completely [i.e., with knowledge], or known, i.e., that he heard [the defendants to the suit] admitting that transaction in the presence of witnesses, but he did not see it.
Now He does not state here: “and it is hidden from him,” [as He does in the following verse], because in this case [where the witness swears that he knows of no testimony for the party that adjures him to come and testify before the court], he is obligated to bring the offering [mentioned here in these verses] whether he swore [entirely] wilfully, or was in error on the oath whilst wilfully denying his knowledge of evidence. If, however, at the time of giving the oath he had forgotten the testimony, there is no guilt upon him.

כי תחטא, if one sins, etc. Why did the Torah have to introduce this paragraph with the words ונפש כי תחטא ושמעה?, It would have sufficed to write ונפש כי תשמע. Perhaps the reason is that the person who is the subject of this paragraph is one who had previously denied knowing of testimony which could result in an accused's exoneration. When he does so a second time, he proves that he had already incriminated himself previously. The Torah alludes to this state of affairs by writing נפש כי תחטא, someone who has already sinned, etc. The fact that the potential witness had lied already previously is accounted as a sin. All of this is confirmed by the letter ו the beginning of the word ונפש, at the start of this paragraph.

והוא עד או ראה או ידע, “and he is a witness, either having seen or having definitive knowledge.” The Torah does not speak of three different scenarios here, for it is impossible for someone to be a witness to something that he has neither seen nor otherwise has definitive knowledge of. It must deal therefore with the case of someone beseeching his friend or acquaintance to testify on his behalf to a matter which he has definitive knowledge of by having been an eye witness of it, or having ironclad knowledge of when the matter is not subject to eyesight, such as testifying to words spoken. He may have heard a party admit owing money to another party, for instance. The presence of such a party when money changed hands, would be “seeing” something, the hearing of an admission, would be “knowing” something without the benefit of having seen it. It is also possible to explain the words והוא עד, to mean that this refers to knowledge which includes both having seen what happens and having understood its impact, such as having been present when the loan was handed over and receipt was confirmed by the recipient. The subsequent או ידע would then mean that although the party had been fully aware of the loan having been transacted, the recipient having acknowledged it, he had not seen the money change hands. The Torah, in this case, does not write: ונעלם ממנו, “it was concealed from him,” as it did in the next three verses, seeing that the refusal to testify is not an inadvertent sin but a deliberately committed one. If, at the time when requested to render an oath, the witness had indeed forgotten what he had known at the time, he does not need to render such an oath.

נפש כי תחטא ושמעה קול אלה, “If a person will sin, having heard a sound (demand) for an oath, etc.” Tanchuma Vayikra 7, commenting on this introduction writes as follows: “take note that when both the creatures in the celestial regions and the ones in the terrestrial regions were created their creation was the result of G’d employing only one half of His name, i.e. Isaiah 26,4 כי ביה ה' צור עולמים, ‘that the Lord employed only the letters י-ה of His name when creating the universe.’ He did so in order that the sinners should not become guilty of desecrating His entire name when sinning.” Observe the sequence of the wording of the Torah in our verse. Instead of the Torah writing אדם כי יקריב מכם לה’ קרבן, the Torah writes אדם כי יקריב מכם קרבן לה'. The reason that the name “for the Lord” appears only at the end is to prevent the possibility of someone dying after having uttered the words “for the Lord” without his being able to complete the sentence. This is how careful one has to be not to utter the name of the Lord in vain.
This attitude is reflected in Solomon writing in Kohelet 5,1 “be not rash with your mouth, and let not your heart be hasty to utter a word before G’d.” Our sages (Tanchuma Vayikra 7) said that Jews should not be rash with offering vows and they should not make a practice of uttering oaths (even true ones). .hey tell of a king called Har in whose time 2,000 towns were destroyed all because of a true oath, because the oath was not called for. What was the oath all about? A person (not just one) swore an oath to his friend that he would go to a certain place and eat and drink there. He completed the journey and kept his oath. All the towns in which they confirmed all their intentions by phrasing them as an oath were ruined. If this is what happened to towns whose inhabitants honoured their oaths, how much worse is in store for people who do not honour their oaths! When in the future, G’d will judge people, the ones who will be accused for swearing a false oath will be put in the same company as the witches, sorcerers, and adulterers. This is all based on Maleachi 3,5: “But I will step forward to contend against you and I will act as a relentless accuser against those who have no fear of Me; who practice sorcery, commit adultery, who swear falsely, who cheat labourers of their hire and who subvert the cause of the widow.” G’d said: “the mouth which I gave you was meant to be used to sing My praises. Instead you use it to defame Me.” This is what is meant by Solomon in Proverbs 16,4: “the Lord made everything for a purpose, for His sake.” Another verse commenting on this subject is found in Isaiah 57,20: “but the wicked are like the troubled sea which cannot rest, whose waters toss up mire and mud.” Just as the waves of the sea in their arrogance rise higher and higher only to collapse upon themselves and be broken as soon as they hit the sand along the shore and the wave following it does not learn a lesson from the fate of the preceding wave, so the wicked do not learn from the fate which has befallen other wicked people before by becoming penitents. This is why they are compared to the waves of the sea which do not know the meaning of ever coming to rest in the world. The righteous, on the other hand, do know the meaning of calm and quiet as testified by Jeremiah 30,10 who writes: “and Yaakov shall again have calm and quiet with none to trouble him.”

In which he is a witness. This is derived from “He is a witness,” which is redundant [since the verse had already stated “he heard an oath” and continues with “or saw or knew”]; it excludes a witness who heard [secondhand] from another witness, a relative, or an invalid [witness] — even though he hears an oath [demanding testimony] he is exempt. Also, it teaches: “And he is a witness” — now, at the time of the oath, he is a witness in the matter, [but if they made him take an oath that if he will become aware of testimony in the future that he must testify, he is exempt].

ושמעה קול אלה, “by having heard an oath demanding him to testify, and having ignored it;” all the other paragraphs distinguish between inadvertently committed sins and those committed deliberately except the one involving an oath, known as שבועת בטוי, “a futile oath,” which is automatically considered as the one who uttered it doing so while aware of its implications. Solomon confirmed this in Kohelet 5,5 when he said: אל תתן את פיך לחטיא את בשרך ואל תאמר לפני המלאך כי שגגה היא, למה יקצוף האלוקים על קולך וחבל את מעשה ידיך, “do not let your mouth bring you in disfavour; and do not plead before the messenger (angel) that it was only an error; but fear the Lord else He may be angered by your talk and destroy your possessions.” When G–d will sit in judgment of all of His creatures, He will place such people next to the sorcerers and adulterers, as we know from the prophet Malachi (Malachi 3,5) והייתי עד ממהר במשפים ובמנאפים ובנשבעים (בשמי) לשקר, “I will act as relentless accuser against those that have no fear of Me, who practice sorcery, commit adultery and who swear falsely (using My name).”

We may also explain the wording based on Shavuot 30 where we learn of the culpability of someone who denied under oath that he knew testimony (concerning return of a loan being claimed by the creditor) and was aware that he would be guilty of offering a sin-offering even if he had denied testimony only inadvertently, but said person did not know that he had to bring a sin-offering for his perjury. If he did not know that he was culpable for the denial under oath of such testimony though he was aware that he lied, he is not guilty of such a sin-offering. Rashi explains that the Talmud means that only if the accused was unaware that he knew testimony that would help the creditor and was unaware of any penalty for withholding such testimony would he be free from bringing a sin-offering. Maimonides writes in chapter 1 of his Hilchot Shavuot that the definition of an inadvertent sin involving an oath concerning testimony is that the witness was unaware that refusal to testify to something one had knowledge of results in such a witness having to bring a sin-offering, whereas that same person is aware that his oath is sinful and that he perjures himself by swearing it. We note therefore that in order to be guilty of bringing the sin-offering the person had to be aware that his action was both forbidden and a lie. When the Torah writes: ונפש כי תחטא the meaning is that regardless of whether the denial was intentional or unintentional the culprit is aware that he commits a sin; the Torah thereby excludes a person who was unaware of the sin or had forgotten that he had witnessed what he is accused of having witnessed is not obligated to render the oath mentioned in our verse. The Zohar understands this verse as referring to the warnings issued by G'd to the soul which descends into this deceitful world when entering man's body.

ושמעה קול אלה, when he heard a public imprecation, this is explained by the following statement in the Mishnah on folio 30 in tractate Shavuot: "Culpability for this kind of oath exists both when the guilty party swore in the presence of the court or without the presence of a court provided he volunteered the oath. If, however, he merely denied such knowledge without swearing to his denial or saying "Amen," confirming what was put to him, he is not culpable until he had specifically denied his knowing testimony in the presence of a court. So far the view of Rabbi Meir. The other rabbis hold that there is no culpability for a false oath be it in the presence of a court or otherwise unless the perjurer had specifically denied his knowledge of testimony in the presence of a court in so many words, i.e. that he did not know of any testimony which would help the accused. From the above we note that in the view of Rabbi Meir culpability does not depend on what the accused actually said but on what he heard. Hearing a request to testify by the court and failing to do so brings in its wake culpability, i.e. ושמעה קול אלה, as long as he has heard the request to render an oath.

The view of the other rabbis is explained by the ראב"ד and later authorities as follows: If the perjurer heard the demand to testify regardless of whether this was in the presence of a court or not, he is culpable if he denied knowledge even if he did not say "Amen," as long as his denial occurred in the presence of a court even at a different time than that when the demand to render an oath was made upon him. Again, the determining factor in his guilt is the fact that he failed to respond to a request to testify which he had heard with his ears.

Although Maimonides rules in accordance with the view expressed by the majority of the rabbis that the denial must have occurred in the presence of a court in order for the perjurer to be culpable, he disagrees by saying that in order to be culpable in the absence of a court the accused must have at least said "Amen." (compare his rulings in chapter 9 ruling 1 and in chapter 10 ruling 17). This means that he holds that a denial in the absence of a court does not result in culpability unless the potential witness had uttered the word "Amen" in response to a statement suggesting that he had no knowledge of such testimony. ראב"ד disagrees with Maimonides claiming that one cannot rule according to Rabbi Meir. Furthermore, it is not clear why either according to Rabbi Meir or according to the other rabbis it should matter that the court is present at the time the potential witness denies under oath that he has any such knowledge as he is accused of having. Thus far the words of the ראב"ד. The author of כסף משנה adds that he has no idea about Maimonides' source for distinguishing between a denial in the presence of the court and a similar denial in the absence of a court.

I believe that Rabbi Meir and the other rabbis disagreed only in a situation in which the potential witness volunteered his oath outside the confines of a court and did not deny any knowledge in the presence of the court at all. According to Rabbi Meir he would be guilty of perjury seeing Rabbi Meir derives this from a different kind of oath called שבועת הפקדון. Just as someone who denies having received money or objects on trust and he does so at his own behest he is guilty of perjury even if such an oath did not take place in the presence of a court. The other rabbis adhere to the principle known as דון מינה ואוקי באתרא, that one may derive the essential parts of one legislation and apply it to a different type of legislation without applying all the details pertaining to the legislation which serves as the source of the exegesis. [The principle is explained by Rashi in Shevuot 31. Ed.] In situations where the supposed witness is challenged to testify by third parties but not in the presence of a court, and the supposed witness declares that he does not know any such testimony, he does not have to bring a sin-offering even if he subsequently admits before a court that he had lied. When such a lie had occurred in front of a court and is subsequently retracted, the liar is guilty of the sin-offering according to all the rabbis.

Maimonides holds that any oath which is not sworn to in the presence of a court needs to be initiated by the person who swears it in order for him to be guilty of perjury and the sin-offering which is required. He derives this rule from the following words in the Mishnah quoted in Shevuot 31: "What is meant by the term שבועת העדות, "an oath concerning testimony?" If a party said to two others: "please testify on my behalf that you have been witnesses to a certain occurrence;" if the two people in question reply: "we swear we have no such knowledge," or if they simply say: "we do not know anything about the matter you want us to testify to (without volunteering an oath)" and the first party challenges them to confirm this on oath and they confirm it by saying "Amen," they are guilty of perjury. If the person demanding such an oath repeated his request five times but never in the presence of a court, and received a negative answer each time and both parties subsequently come to court where the ones who had denied their knowledge five times now admit that they did have knowledge, they are not guilty concerning their previous denials. If they deny their knowledge also in front of the court and are subsequently found to have lied, they are guilty of a sin-offering for every previous denial separately. Thus far the Mishnah. We note that according to the text of the Mishnah the witnesses had said "Amen." Who is the author of that Mishnah? If it is Rabbi Meir and there was no subsequent denial in the presence of a court we would have a disagreement between Rabbi Meir and the other rabbis in the previous Mishnah followed by this Mishnah in which all rabbis are agreed. We are entitled to view this anonymous Mishnah as reflecting the opinion of Rabbi Meir, seeing he is not quoted as diagreeing. Seeing that Maimonides demanded that the perjurer must have first denied his knowledge in front of a court before becoming liable for the sin-offering even if his original denial had been at his own initiative, it is clear that he interpreted the Mishnah according to the consensus of the Rabbis. The Mishnah spoke of the perjurers having said "Amen." When did they do so? When they were not in the presence of a court, for if they had denied their knowledge in front of the court they would have been guilty of perjury according to all opinions even without having uttered the word "Amen" as confirmation of an oath. It emerges that according to the view of the majority of rabbis the word "Amen" is the minimum required for such potential witnesses to become guilty of perjury when not in the presence of a court. [At any rate our author has succeeded in demonstrating that Maimonides did not rule according to a minority view so that the complaint of ראב"ד is not in place. Ed.]

Tossaphot, aware of an imprecision in the text of the Mishnah, state that this is due to the Mishnah's attempt to be brief; this is true if we were to assume that the alternative would have been for the perjurers to have said: "we do not know of any testimony we can offer on your behalf." Maimonides does not agree with this but holds that any oath sworn outside a court must be volunteered, i.e. the perjurer must have recited the substance of his oath with his own words. His reason is that the Torah discusses an occurrence in front of a court as we know from the words אם לוא יגיד, "if he will not reveal it." Only in such a situation is it enough for the perjurer to have merely heard the demand to testify, i.e. ושמעה קול for him to become guilty without uttering the substance of what he denies.

Shevuot 32 asks: "whence do we know that the denial of the witnesses's knowledge must have occurred in the presence of the court so that he would only then be guilty for such denial (perjury)?" Abbaye answered there that we derive this from the words ואם לוא יגיד, "if he refuses to testify," and that these words only make sense in a setting in which one normally testifies, i.e. a court. Rabbi Papa counters that if we were to accept the exegetical comment by Abbaye we would come to the conclusion that even an oath freely volunteered but not within the confines of a court would not be subject to the laws of perjury seeing that it was not sworn at a place defined as one designated to hear testimony? This argument is rejected in light of a Baraitha which interprets the word לאחת, "one of" in 5,4 to mean that the party who has become guilty of perjury is liable for each violation separately. If we were to assume that any oath must be sworn only in front of a court in order for one to become guilty of perjury, why would we have to be told that if the perjurer perjured himself five times in the presence of a court (on the same subject) he needs to bring only a single sin-offering? It follows that an oath may be sworn to also outside a court, whereas the denial must have taken place in front of a court for the perjurer to be liable. All this teaches that the oath which is sworn in the presence of the court is identical to the one sworn outside the court, and that one is certainly liable for perjury if one had sworn falsely outside the court. Having accepted this, it makes no difference if the party who is the subject in our verse was sworn by others in the presence of the court or elsewhere.

This is important if we want to understand Maimonides' source for his ruling. The use of the word לאחת which we quoted to mean that the perjurer is liable for every previous denial is really problematical; after all, 5,4 speaks of שבועת בטוי [undertakings by a person on oath to either do something or not do something. Ed.]. How can we apply the rules which pertain to such an oath to the type of oath discussed in 5,1? The two types of oath are so dissimilar that we would need an exegetical instrument to permit us to derive הלכות applicable to the one kind of oath to the other! We are forced to conclude that the only situation in which the two oaths are comparable is when the שבועת העדות, the oath concerning testimony, has been entered into voluntarily just as the שבועת בטוי discussed in 5,4. In the case where the potential witness only responded to a challenge to deny his knowledge on oath there is no way we can derive a הלכה applicable to שבועת בטוי as applicable also to שבועת העדות. This is why Maimonides derives culpability in the case of שבועת העדות only when such denial occurred in the presence of the court. He saw no way of proving culpability of שבועת העדות which was imposed by the creditor on the supposed witnesses by comparison to culpability of the person who swore a שבועת בטוי. Let us now return to Rabbi Papa's suggestion that if we were to use Abbaye's interpretation of the words לוא יגיד, we would have to conclude that every oath has to be sworn in the presence of a court in order for someone to legally incriminate himself as guilty of perjury! We do not find that Abbaye rejected Rabbi Papa's conclusion! He only rejected Rabbi Papa's exegetical proof. This means that Abbaye agreed with Rabbi Papa that culpability for שבועת העדות, the denial of knowledge as a witness which is the result of the creditor initiating the formula of the oath, must have occurred in the presence of a court in order for the perjurer having to offer a sin-offering. Thus Abbaye's view is identical with the ruling of Maimonides.

According to all the foregoing we may interpret the words ושמעה קול אלה as referring to the perjurer having denied knowledge of what he had been invited to confirm even if he did not say "Amen." This must have taken place in the presence of a court as we derived from the words אם לוא יגיד. In the event he denied his knowledge by uttering an oath, he would also be liable for another aspect of this oath, the one that we derive from the גזרה שוה of the word תחטא occurring both here and in connection with the שבועת פקדון, (5,21) an oath in which one swears not to have been guilty of carelessness or other trespass involving an object entrusted to one to keep on behalf a third party, providing the denial occurred in court. As to the conclusion of the Talmud on Shevuot 32 that oaths may be sworn outside the court and result in the penalty for perjury, this refers to that kind of oath, i.e. someone denying that he had dealt treacherously with his fellow man's property while in fact having done so. [The unnecessary repetition of the word תחטא in those two paragraphs is the exegetical basis for learning across from one kind of oath to another. Ed.].

We have now completely understood the way Maimonides interprets our verse. Our verse speaks of a single scenario namely that the creditor beseeches the witness to testify on his behalf in court and the (so-called) witness refuses to respond while in court. Both the two requirements mentioned in our verse are mandatory in order for the witness to become guilty of the sin-offering. 1) The attempt to make the witness deny on oath must occur in court, whereas if the denial occurred outside the court it does not result in a sin-offering even if at a different time the same witness had denied this in court. 2) The denial has to take place while the party denying is in court. If that were not the case the liar would not even be guilty of the sin-offering if he had volunteered a false oath outside the court as we derive from the comparison with the שבועת פקדון and the words תחטא that he would not be guilty. In the event that the denial occurred in the court whereas the oath had been sworn outside the court, we derive from the comparison with שבועת בטוי that if the perjurer had uttered the words of the oath himself that he is culpable for swearing a false oath. Anyone studying this carefully will agree that Maimonides' ruling is most illuminating and is fully supported by the text of our paragraph.

That is that He also commanded us to bring a variable burnt-sacrifice for certain specific sins. And the sins for which one is liable for this sacrifice are impurification of the Temple and its sanctified objects; an oath of speech; and an oath of testimony. And that is one who is impure from one of the primary sources of impurity - as we set out in the introduction to the Order of Purities (Commentary on the Mishnah) - and entered the Temple or ate consecrated [food] inadvertently; and that is impurification of the Temple and its consecrated objects. Or that he swore falsely, as with an oath of speech that he inadvertently transgressed; or if he swore falsely with an oath of testimony - whether inadvertently or volitionally. Behold for any of these actions, he must bring a sacrifice that is called a variable burnt-offering. And that is His saying, "And if a person sin, and hear the voice of adjuration [... Or when a person touches any unclean thing...] and it be hid from him [and he come to know of it, and be guilty]. Or if a person swear, speaking with his lips [...] And it shall be, when he shall be guilty [...]. And he shall bring his guilt offering [...]. But if his means do not suffice" (Leviticus 5:1-7). And for this reason is it called a variable burnt-offering - because it does not remain one type; but rather he will once bring this type, and another time that type. Everything is according to what the means of the sinner, who is obligated to offer the sacrifice, suffice. And the regulations of this commandment have already been explained in Tractate Keritot and in Shevuot. (See Parashat Vayikra; Mishneh Torah, Offerings for Unintentional Transgressions 10.)