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Beit Midrash Mishna and Talmud Various Shiurim

"Motzie Shem Rah" - A Dissertation on Slander

The opening Mishna of tractate Sanhedrin states: A slanderer [is judged] by three - these are the words of R. Meir; the Sages say, a slanderer [is judged] by twenty-three, because such [an offense] involves capital punishment.
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1. Rashi
2. Rabbenu Tam
3. Tosafot
4. Rambam
5. No Intention to Execute
6. Rambam's Basis for the Accountability for Slander
7. Summary

Rashi
The opening Mishna of tractate Sanhedrin states:
A slanderer [is judged] by three - [these are] the words of R. Meir; the Sages say, a slanderer [is judged] by twenty-three, because such [an offense] involves capital punishment.

Rashi explains that what we are dealing with here is a case of a husband who demands a repeal of the marriage contract, saying, "I did not find your daughter to be a virgin," and desires to deprive her by reducing the financial obligation he accepted in the marriage contract. He is not, according to Rashi, attempting to have her executed, for he does not bring witnesses to testify that she had sexual relations with another man while she was engaged to him; for, had the husband been making a capital claim, R. Meir would not have said "a slanderer [is judged] by three."

The Gemara addresses our Mishna:
"What difference, though, does it make if such an offense involves capital punishment? - According to Ulah the discrepancy centers around the question of whether or not we need take slander into consideration: R. Meir estimates that we must; the Sages estimate that we need not."

Rashi elucidates, explaining that according to Rabbi Meir, we need not take into consideration that when the case is brought to the court and word gets out, witnesses will come and testify that she had sexual relations with another man while she was engaged to him, and at present the husband is not aware of the existence of these witnesses. Twenty-three are needed, then, due to the possibility of capital punishment. The Sages, on the other hand, hold that we do take this scenario into consideration.

Rabbenu Tam
The Tosafot cite Rabbenu Tam who attacks Rashi's explanation at length, and proceeds therefore to demonstrate that our question in fact deals with a husband who demands 100 silver coins from his father-in-law upon discovering, when consummating the marriage, that his daughter is not a virgin. Here, Rabbenu Tam introduces a unique rule: the term "slander," unless otherwise specified, applies to a situation in which the husband's witnesses are proven to have perjured themselves, what is known as in Jewish law as "hazama." In our case, though, it cannot be said that such is the case, for if the witnesses conspired falsely, it would become apparent that they had lied, and there is no reason to take into consideration the possibility of additional witnesses arriving. Therefore, Rabbenu Tam explains that we are dealing rather with a case wherein the testimony of a pair of witnesses was contradicted, more specifically "hakchasha" in Jewish law. This is an bold interpretation on the part of Rabbenu Tam; for, while with regard to false conspiring witnesses it is unquestionably evident that the witnesses lied, when it comes to contradicting testimonies (and, as we shall see later, according to Ran, here we are dealing not with two sets of witnesses, but with two witnesses that contradicted each other) it is not clear that they lied, and, despite this, the husband must pay 100 silver coins. All of this leads to the question: If we take into consideration the possibility of additional witnesses appearing, then it has not been established that the witnesses are lying. If so, how can we indict the husband? After all, it is impossible to grasp both ends of the rope?

Indeed, Rashi himself considers Rabbenu Tam's approach yet dismissed it, for, in Rashi's opinion, if the witnesses of the husband did not conspire but merely offered contradicting testimony, there can be no obligation to pay 100 silver coins, for they were not shown to have lied.

Ran explains Rabbenu Tam's approach: "And this contradiction of testimonies is between the two witnesses themselves; for example, their testimonies were not consistent with one another during the examination by the court. And because their testimony has been disqualified, the husband becomes obligated to pay 100 silver coins, for he appears to be lying." It becomes clear from his words that the basis for the payment is not that it has been proven that the witnesses lied, but, rather, that the husband appears to be lying because he brought witnesses whose testimony was disqualified. As we have said, it is necessary to understand the rationale of such a fine.

Tosafot
Ran brings the opinion of the Tosafot who rule out Rabbenu Tam's approach. Their reason for this rejection, though, is not the same as Rashi's. Rather, it is because in monetary cases there is no need for thorough examination of witnesses. This being the case, even if they contradict one another, the two of them are believed enough to have her marriage contract repealed, and, thus, the woman also becomes forbidden to her husband.

It must be noted, with regard to this approach, that because the basis for ruling that the wife becomes prohibited to her husband is arrived at through a "gezerah shavah" (verbal analogy), once the sages legislated regarding monetary cases that there is no need for thorough examination of witnesses in order for the testimony to be accepted, the same is true regarding prohibiting her from her husband. And, if she is not forbidden to her husband, there is no fine of 100 silver coins, for the Torah says, "They fine him 100 silver coins, and she becomes his wife," and if concerning such a woman it does not state, "she becomes his wife," it also does not proclaim a fine of 100 silver coins. It should be noted that this is a radical assertion, for reason would appear to dictate that because their testimony is biblically invalidated, he appears ipso facto to be lying, and, logically, the rule of 100 silver coins should become once again applicable.

Ramban resolves the difficulty raised by the Tosafot against Rabbenu Tam, explaining that because the essence of the testimony revolves around a capital case, the moment that the testimony is nullified in the capital arena, it is similarly nullified in the resulting monetary cases. And because the testimony was invalidated, the husband once again appears to be lying.

At any rate, regarding the bottom line of the law, Ran records, in the name of Ramban (who disagrees with Rabbenu Tam, and holds like Rashi) that in cases of contradicting testimonies the fine of 100 silver coins does not apply. Regarding the logic for this, Ramban provides a consideration which does not appear in our versions of Rashi: the source of the monetary fine for slander is "that he would have caused her to be executed; contradicting testimony, though, does not result in the wife's execution." The fine of 100 silver coins is only applied where witnesses are brought whose testimony will lead to her execution, but witnesses whose testimony is not thoroughly examined are viewed as if they had not given testimony at all.

Rambam
Regarding our question, Rambam writes as follows:
"What is 'slander'? Slander is when a party stands before the court and says, I had relations with this young woman and I did not find her to be a virgin, and when I inquired regarding this, I was made aware of the fact that she had sexual relations with another man while engaged to me, and these are my witnesses before whom she performed this act. The court hears the words of these witnesses and examines their testimony. If this turns out to be true, she is stoned to death, and if the father brings witnesses that invalidate the testimony of the witnesses that the husband brought - hence demonstrating that they testified falsely - they are stoned, and the husband receives lashes and must pay 100 coins."

Rambam mentions only the possibility of the conviction of false witnesses but not that of contradicting witnesses. Yet, this cannot be viewed as proof that he holds like Rashi, for it is entirely possible that he merely adduced the more simple case. Let us look further at what Rambam writes:
"A slanderer is first judged before a court of twenty-three judges, because his case involves an element of capital offense. For perhaps the claim will prove to be true, and the daughter will be stoned to death. If his words were found to be unreliable, and the father sued him for a fine, such a case is heard before a court consisting of three judges."

It is clear from here that Rambam did not agree with the position of Rabbenu Tam who claims that our Mishna is dealing with the accusation against the father; rather, we are dealing with an allegation against the husband. Yet, while Rashi emphasizes the fact that the husband did not bring witnesses - for were this the case, R. Meir would not have been satisfied with just three judges - Rambam does not mention this. What's more, from the words: "for perhaps the claim will prove to be true" it would seem that he has already brought witnesses. If, though, we understand Rambam in this manner, Rambam has to provide some solution to the difficulty in Rashi's approach - i.e., it is obvious that if the husband brought witnesses we are dealing with a clear capital case, and twenty-three judges are needed.

Let us also consider Rambam's words, "if his words were found to be unreliable, and the father sued him for a fine..." Lechem Mishneh explains that the words, "if his words were found to be unreliable," means that the testimony of his witnesses was invalidated. Yet it is a bit difficult to interpret Rambam's words "if his words were found to be unreliable" in such a manner - he should have just written explicitly: "the testimony of his witnesses was invalidated." The expression "if his words were found to be unreliable" leads one to believe, rather, that we are dealing with a case wherein the father did not bring witnesses. In Rambam's commentary to the Mishna, on our particular Mishna, the great sage similarly writes, "...in a case where he claimed that she was not a virgin, and his claim was not substantiated," but does not write that he was proven to be a liar.

In Rambam, then, we find a new explanation regarding the fine for slander - his claim "was not substantiated." In order to understand this expression, let us take a look at an additional ruling by Rambam.

No Intention to Execute
"R. Yosef says: If the husband brings witnesses that she had sexual relations with another man, and the father brought witnesses who proved the husband's witnesses false, the witnesses of the husband are executed and no fine is paid." This is the standard case of slander in which the witnesses of the husband are proven false, and R. Yosef says that though they are executed on the grounds of the biblical admonition, "as he had thought to have done" (see Deuteronomy 19:16-19) - for, they had intended to cause the death of the woman - they do not have to pay the price of the marriage contract of which they had intended to deprive her, in accordance with the rule that a person who has committed two or more transgressions with a single act is exempt from punishment for the less severe crime.

Rashi explains that the witnesses are not obligated to pay the 100 silver coins of which they had intended to deprive the father, for, without them, the husband's liability would have had no foundation whatsoever. Rashi's words imply a new explanation of slander, one which he had not written beforehand: Without these witnesses, execution would not have been an issue." On the face of things, it sounds as if Rashi agrees with Ramban's position that liability for slander exists only when the witnesses come with the intention of having her executed.

The author of Korban HaEidah 5, though, explains that it is impossible to say that according to Rashi the obligation to pay 100 silver coins depends upon the possibility of the witnesses having her executed, for he made no mention of such when he ruled out Rabbenu Tam's approach, and one finds a clear proof of this in the words of Rashi himself in his elucidation of Abaye's approach. Abaye explained the Tannaitic discrepancy as "being one in which, for example, they warned her in a nonspecific manner," and did not say that she will face stoning, and the discrepancy centers around the question of whether or not a death sentence is effected in this manner. Rashi explains:

"For example, where he brought witnesses when first called to court, and does not have to bring more, and they say, before three, that they warned her of execution without mentioning stoning in accordance with the law of a betrothed girl who commits adultery. Rabbi Meir holds that there is no longer any issue of capital punishment, and these three are enough in order to reach a ruling over the monetary issue of the marriage contract, and when the witnesses are proven false he will pay 100 silver coins; and the sages hold that because they warned her of the death penalty, capital punishment becomes applicable, and execution is carried out."

Why does Rashi add the words "and when the witnesses were proven false he will pay 100 silver coins"? The answer is that he does this in order to resolve an apparent difficulty that exists in Abaye's position. If the discrepancy between R. Meir and the sages centers on warning in general, why is it brought in connection to slander? Rashi therefore adds that the issue is not only one of marriage contract payment, but also one of payment of 100 silver coins because of slander, "and when the witnesses are proven false he will pay 100 silver coins." At any rate, it is clear from Rashi's words that there is a fine of 100 silver coins despite the fact that they are not able to execute her.

It is clear that according to Rambam, too, the fine for slander is not dependent upon the fact that there is an attempt to have the wife executed. He explains:
"If one slanders a daughter of Israel, and it turns out to be a lie, he incurs lashes...and if one slanders an immature girl or a fully matured woman, he is exempt of any fine as well as of lashes, for he does not incur penalty unless slanders a young woman aged between twelve and twelve-and-a-half who is betrothed but not yet married, as the verse states, '...and present the girl's virtue....' The verse refers to a young woman aged between twelve and twelve-and-a-half."

This evokes astonishment on the part of Lechem Mishneh, for the Gemara concludes that one who slanders a young girl is exempt on different grounds:
"Resh Lakish says: One who slanders an immature girl is exempt, as the verse states: '[They shall fine him 100 (shekels) of silver for defaming an Israelite virgin], and give it to the girl's father.' The verse refers to a young woman ("naarah"). R. Adda bar Ahava contested this, saying: The reason that the Torah discusses a young woman is that if it had not done so one might arrive at the conclusion that Scripture is teaching us that this is also the rule regarding an immature girl."

R. Adda bar Ahava claims that even without a verse it is clear that one who slanders a immature n is exempt, for, after all, he is not attempting to have her executed. Lechem Mishneh is therefore surprised at Rambam: Why did he bring a verse that contradicts the Gemara's conclusion? If we look closely, we will see that the reasoning of the Gemara is the same as that of Ramban. This being the case, it is clear that Rambam too holds that the 100 silver coins penalty is incurred even if the witnesses cannot have her executed - like Rashi. Yet, the Gemara does not say this.

In fact, the Tosafot have already addressed the disparity between these two sources: According to Abaye in tractate Sanhedrin it is apparent that there is a fine of 100 silver coins even where there is no intention to have her executed. The Tosafot, in light of this, write that R. Adda is not to be understood as holding that where she is liable to be executed one is guilty of slander, and therefore goes a bit far in interpreting the words of R. Adda. Rambam and Rashi, though, understood these two sources to be contradictory.

Rambam's Basis for the Accountability for Slander
We must still clarify what exactly it is that forms the basis for fining a person for slander. Later authorities raise the question: Why is one punished for bringing witnesses whose testimony was proven false? After all, he has merely done what he is obligated to do.

There are those who wish to explain that we are talking about a situation in which he admitted lying. This, though, is a bit difficult, for one who admits lying regarding a fine is exempt. Based upon this difficulty, Rabbi Yaakov Moshe Charlop offers a unique explanation: The payment of 100 silver coins is what one must pay in response for the very statement, "My wife had forbidden relations," and on the actual bringing of witnesses. Yet, the moment that it becomes established that the accusation is true, he is exempted. The actual fine, though, is incurred immediately.

Rabbi Charlop's explanation fits well with the wording of Rambam which we brought above: "his words were found to be unreliable," and, "for perhaps the claim will prove to be true." Despite the fact that, according to Lechem Mishneh, his witnesses were proven to have falsely conspired, Rambam refers to the principal reason for his accountability as the fact that, "his words were found to be unreliable."

Now we may explain Rabbenu Tam's approach in an additional manner, one which makes the husband responsible even where his witnesses contradicted each other. We asked: When was it ever proven that he lied? Ran writes that the accountability is due to the fact that he appears to be lying. Yet, in light of what Rambam writes, it is possible to explain that the fine has nothing to do with it having been proven that he lied. It is because of the very fact of his having slandered, and only if it turns out that his witnesses spoke the truth is he exempt. This explanation is nearly explicit in the words of the Gemara in tractate Arakhin. The Mishna there states, "The law regarding a slanderer is at times in the direction of leniency, at others in the direction of stringency. How is this? Whether a man slanders a woman from the noblest of priestly stock or of the humblest in Israel, he must pay a hundred sela coins. Thus, he who speaks with his mouth suffers more than he who commits an act; for we find that the judgement against our fathers in the wilderness was sealed only because of their evil tongue, as it is written, 'They have put Me to test these ten times, etc.' (Numbers 14:22)."

The Gemara asks: Whence do we know that one who speaks with his mouth suffers more than one who commits the act? Perhaps it is due to the fact that he wanted to bring about her death, as it is written, "But if this thing is true...then they shall bring out the girl..." (Deuteronomy 22:20). Rabba answers: Scripture says: "Because he has slandered..." (ibid. 19), i.e., because of the slander he has spoken.

It is explicitly stated, then, that his liability is due to the very fact that he slandered.

Summary
In summary, the classical commentators and decisors disagreed in their understanding of the prohibition of slander:
a. According to Ramban, the reason for accountability is that the husband wished to have the woman executed. Hence, if he were to bring witnesses whose testimonies contradicted one another, he is exempt, for their testimony was never accepted, and, this being the case, he is not seen as having attempted to have her executed. For the same reason, one who slandered an immature girl would be exempt, in accordance with the plane reading of the Gemara where it deals with this issue in tractate Ketubot.

b. According to Rabbenu Tam (based upon Ran), even if the witnesses were to contradict one another, the prosecutor would be charged with slander, because he appears to be lying, but not if they were contradicted by a second set of witnesses, for in such a situation the alleged slanderer can claim that his witnesses are the true ones.

c. Rashi and Rambam hold that even if the witnesses were incapable of having her executed (for example, where they warned her of execution in a nonspecific manner without mentioning stoning) he is held accountable for slander. Rabbi Charlop explains that the basis for this fine is the act of slander itself, in accordance with a plane reading of the Gemara in tractate Arakhin. Rashi, though, concurs that the accountability exists only if it becomes apparent that he lied; hence, if the witnesses, instead of being proven to have perjured themselves, merely contradicted one another, the alleged slanderer is exempt. This understanding of accountability for slander also fits Rabbenu Tam's understanding where the witnesses contradicted one another. Here, though, even if the two witnesses were contradicted by a separate set of witnesses, he is held guilty.

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