When Is A Single Witness Believed?

At the end of parshas Metzora the Torah discusses the halachos of when a woman becomes a niddah. The Torah says that a woman who becomes a niddah must count seven days from when she starts seeing blood, and then becomes tahor by immersing in a mikveh. The Gemara in Kesubos 72a says that a woman is believed when she counts the seven days on her own. Tosafos in Gittin 2b says that this is the source from the Torah for the rule that eid echad ne'eman b'issurim (one person is believed concerning issurim). Rashi in Yevamos 88a says that the source for this halacha is due to the fact that if the aforementioned rule was not so, no one would be able to eat from his fellow or even from his own household (and apparently that is not possible).

Testimony of two witnesses is always believed, even when it contradicts a chazakah – a halachic rule that states that when there is an unknown we should assume that everything remained status quo. There is a machlokes Rishonim whether the testimony of one person is accepted when it contradicts a chazakah. For example, a live animal is prohibited to be eaten since it is not shechted. If one person will testify that it was shechted, his testimony will contradict the chazakah that it was not shechted. Tosafos, the Rush, and the Mordechai hold that one witness is not believed against a chazakah. The Rashba believes that one witness is believed, even when contradicting a chazakah.

The Shev Shmeitza 6:7 asks the following question: the Gemara (Yevamos 119b) says that when determining a doubt one should follow the rov (majority) over a chazakah. This is known as ruba v'chazakah, ruba adif. Mathematically, since a rov is greater than a chazakah and a chazakah is greater than one witness (according to some Rishonim), we should infer that a rov is greater than one witness. Therefore if three pieces of meat get mixed up (two non-kosher and one kosher) and one witness says that he knows which is the kosher piece, he should not be believed. Since there is a doubt as to which piece is kosher and the halacha of following the rov is telling us that the selected piece is from the majority (non-kosher), one witness cannot contradict the rov and testify which piece is kosher. But today's norm dictates that this is not the correct halacha. Why? Because it is common for marketplaces to contain a majority of non-kosher meat and only a minority of kosher meat, and the seller is to be believed when saying which pieces are kosher.

The Chelkas Yoev writes that there is an explicit tosefta in Pesachim at the end of the fifth perek that says that one witness is believed over a rov. The Penei Yehoshua (Kiddushin 63b) also says that one witness will be believed over a rov. He explains that the rule that one witness is not believed against a chazakah only applies when the chazakah is foolproof. However when the chazakah is weakened prior to the testimony of the witness, the witness will be believed. The Penei Yehoshua adds that a chazakah that is not weakened is even stronger than a rov. Based on this there is no longer any indication that a rov is stronger than one witness. Thus in the case of the marketplace that contains a majority of non-kosher meat, one witness will be believed.

The Shev Shmeitza disagrees with the Penei Yehoshua and offers another suggestion. The only case where one witness is not believed against a chazakah is when even according to his testimony, the item was forbidden at one point and he is attempting to remove it from its current status. However, if according to his testimony the item was never forbidden, his testimony is not considered contradictory to the chazakah and thus he is believed. The same would apply when one witness testifies about a case that has a rov. As a result, in the case of the pieces of meat that were mixed up, the witness testified that he always knew which piece was kosher; therefore, according to his testimony, there is no mixture and thus there is no rov. If the pieces are not mixed, a rov does not apply since there is no doubt. Therefore his testimony is not contradicting the rov. Hence he is believed.

If a single witness would testify that he found an animal to be treif, his testimony would directly contradict the rov that states that the majority of animals are not treif. He may be believed on a different merit but, according to the Rishonim that say that a single witness is not believed against a chazakah, he would not be believed against a rov as well.

Reb Shmuel Razavsky suggests that the reason that one witness is not believed against a chazakah is not because chazakah is greater, but rather because one witness is not believed when it comes to changing the status of anything. However, when the testimony of one witness is not changing the status quo, he is believed. In a situation where there is a doubt and there is no chazakah, one witness will be believed since he is not changing the status quo.

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pesach; beracha over korech

Why Don't We Make A Berachah Over Korech?

The Gemara in Pesachim 115a says that there was a machlokes regarding how one was supposed to eat matzah and marror in the times of the Beis HaMikdash. Hillel said that during those times, when there was a korban Pesach, matzah and marror should be eaten together. His peers argued that they must be eaten separately. The Gemara concludes that since the halacha was not paskined we eat matzah separately, then marror separately, and then both together to accommodate both opinions.

The Rambam (Hilchos Chametz U'matzah 8:8) says that one should korech matzah and marror together, dip it into charosses and eat it without reciting the berachah, "zecher l'mikdash." The Rambam's words imply that the reason that we do not recite a berachah on the takanah of korech is because it was instituted zecher l'mikdash (as a remembrance of the Beis HaMikdash). Rabainu manoach explains that any takanah that was instituted zecher l'mikdash does not require a berachah.

However the Achronim ask the following question: Originally the mitzvah of lulav was to take the lulav only on the first day, with the exception of taking it in the Beis HaMikdash – where it was taken for seven days. The Mishnah in Sukkah 41a says that after the destruction of the Beis HaMikdash, Reb Yochanan ben Zakai instituted the policy that the lulav should be taken for seven days everywhere, even outside the Beis HaMikdash, as a remembrance of the Mikdash. Why is it that regarding the institution of taking a lulav for all seven days of Sukkos we recite a berachah, and regarding the institution of korech we do not? The rule that we do not recite a berachah on an institution that was initiated zecher l'mikdash should exempt a berachah on the takanah to take the lulav for the remaining six days of Sukkos.

I would like to suggest that the answer lies in the words of the Rambam. The Rambam (Hilchos Lulav 7:15) says that after the destruction of the Beis HaMikdash, it was decided that the lulav should be taken on each of the seven days of Sukkos – zecher l'mikdash. One should recite the berachah of "…al netilas lulav" over it every day because it is a mitzvah midivrei sofrim (from the Rabbanan). The Rambam seems to be alluding to this question when he answers that this takanah is a mitzvah. I think this can be better understood based on the following explanation:

The Gemara in Sukkah 44a brings a dispute as to whether a certain rabbinic institution was a takanah or a minhag. The Gemara says that if it is a takanah, a berachah is recited; if it is a minhag, a berachah is not recited. Rashi explains that as the Gemara in Shabbos 23a and Sukkah 46a both say, in order to recite a berachah on a rabbinic decree and say "vetzivanu" (Hashem commanded us) it must be decreed that if one disobeys this ruling he will have transgressed the Torah's prohibition of lo sasor. Rashi explains that only if one disobeys a takanah will he transgress the Torah's prohibition; therefore one can make a berachah on it. But if one does not follow a minhag of the Rabbanan, he does not transgress the Torah's prohibition of lo sasor. As a result, a berachah is not recited.

The Rambam, in Hilchos Mamrim 1:2, says that if one does not adhere to even a minhag he transgresses the Torah's prohibition of lo sasor. According to this opinion this question remains: Why don't we recite a berachah on a minhag of the Rabbanan?

The Brisker Rav, in his sefer on the Rambam, explains that there are two requirements that must be met in order to recite a berachah on a rabbinic decree. One is that it was a commandment; this is met when one will transgress a Torah prohibition by disobeying the decree. The second is that its essence must be a mitzvah. Even though one who does not follow a minhag that the Rabbanan instituted will transgress the Torah's prohibition, it was nevertheless not instituted to be a mitzvah by nature; rather it is a minhag. We do not recite a berachah over minhagim. We only recite a berachah on mitzvos.

By applying this rule we can differentiate between the takanah of taking a lulav on all seven days of Sukkos and that of korech. By the takanah of taking the lulav on all seven days, the actual decree was an institution of a mitzvah in its essence. The reason why this mitzvah was established was zecher l'mikdash. The takanah to eat korech with matzah and marror together was not instituted as a mitzvah, but rather its essence is to commemorate and remember the Beis HaMikdash. The Rambam writes that the takanah of taking the lulav on all seven days of Sukkos is a mitzvah, and therefore we recite a berachah. Regarding the takanah of korech, the Rambam does not say that it is a mitzvah because it was not established as a mitzvah – but rather as a zecher l'mikdash. Thus we do not recite a berachah on korech since its essence is not a mitzvah.

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