The Remarkable Torah of Rav Elimelech Wasserman HY”D

Translated and Annotated by Rabbi Yair Hoffman

This past Thursday, Hamas murderers opened fire at a Givat Shaul bus stop, injuring eleven and murdering three people in cold-blood. Among them was a remarkable Torah scholar who was a dayan in Ashdod – Rav Elimelech Wasserman zt”l and HY”D. One can see from the Torah below and as was well-known, Rav Wasserman’s erudition was extraordinary – a true Gadol. The fact that we had walking among us a gadol of such caliber waiting at a bus stop and so tragically killed is heart-wrenching, as is all those who were killed and injured since October 7th – including the defenders of Klal Yisroel who were lost. The loss to Torah is unimaginable.

As a zchus for his holy Neshama and for the hostages being held by the evil rashayim – please learn and spread his Torah.. What follows is a translation. It was originally published in Kovetz Ohel Sara Leah in memory of Rebbitzen Sara Leah Rothstein a”h. The topic is Witnesses on a Document.

Just one bit of background before we begin. The Torah tells us (Dvarim 19:15), “Al pi shnayim aidim..yakum davar – according to the mouth of two witnesses.. shall a matter be established.” The Talmud (Gittin 71a and Yevamos 31b) records a drasha on this verse – “According to their mouth – but not according to their writing.” This is the law according to the Torah. However, so as not to discourage lenders from lending, the Rabbis allowed the validity of witnesses on a document even when they are not present (see Rambam Hilchos Aidus 3:4).

WITNESSES ON A DOCUMENT

The Shulchan Aruch in Choshain Mishpat 28:12 rules we do execute rulings on monetary matters based upon the witnesses signed upon a document even though the witnesses are not extant. This is so as not to discourage lenders from lending.

THE FOUR INTERPRETATIONS OF THIS HALACHA

The author of the Ktzos HaChoshain (Rav Aryeh Leib HaCohen Heller (1745 – 1812) cites on this topic (CM 28:6) four different interpretations:

The opinion of Rashi and the Baal HaMaor – that since that which is written in the document is with the knowledge and intent of the person who had obligated himself on it, it does not fall under the rubric of mipihem velo mipi ksavam (from their mouth and not from the testimony of their writing) – rather it is considered from his writing.
The opinion of the Ramban that the limitation of mipi ksavam does not apply when dealing with a document because the document-like language is considered as if their testimony was examined in a Bais Din and the limitation of mipi ksavam is limited to writings that are not written in document-like language.
The opinion of the Baalei HaTosfos citing Rabbeinu Tam that the limitation of mipi ksavan is limited only to those who who are incapable of stating their testimony orally, such as one who is mute. Similar to the concept of Bila [See Menachos 103b that R’ Zeira says: For any measure of flour that is suitable for mixing with oil in a meal offering, the lack of mixing does not invalidate the meal offering, but flour that is not suitable for mixing with oil in a meal offering, the lack of mixing invalidates it.] It comes out that according to Rabbeinu Tam – there is no need for document-like language and the person may send his testimony in a letter.
The Rambam and the Shulchan Aruch’s opinion, is that testimony in regard to a shtar document for monetary matters is only valid by Rabbinic law – but from a Torah perspective signed witnesses are ineffective to create legal testimony.

THE QUESTION OF THE NESIVOS AND RAV CHAIM SOLOVEITCHIK

However, the Acharonim, the Nesivos HaMishpat and Rav Chaim Soloveitchik zt”l, explain that the Rambam holds that testimony in a document is effective by Torah law. The Rambam’s debate with the other Rishonim revolves around what the operative mechanism is for a document [i.e. how it works exactly].

According to Rashi the operative principle is that the document represents the desire and will of the person obligating himself.
According to the Ramban, the wording of the document is as if the testimony was examined thoroughly in a Bais Din.
The Rambam considers the Shtar as the item that effects the Kinyan. Therefore a sales contract or a gift document effects the Kinyan. Similarly, a Get effects the divorce.

DOCUMENTS THAT CREATE A KINYAN – STATUS CHANGE

Therefore, all of these are categorized like shtaros documents, and in a document that creates a kinyan transfer – the Torah has certified it as testimony, and that is why the Kinyan works. On account of this one may rely upon those witnesses who sign on a shtar document even for verification that a Kinyan took place or that the divorce took effect.

DOCUMENTS THAT DO NOT EFFECT A STATUS CHANGE

This is not the case, however, for Shtar documents that do not create a Kinyan and are only there for a proof, such as a loan document – This is not categorized as a Shtar. Here, the Torah did not authorize the witnessing. The entire basis to rely upon it is only by Rabbini decree – so that it not deter people from loaning money.

With this explanation, a question on the Rambam is answered, The question was that if all witnessing on a document is only permitted by a Rabbinic enactment, how then can we divorce with a Get? With our explanation here, it is well understood. Documents that effect a change in status – do work froma Torah standpoint. But a document that just serves as a proof of what transpired – is only effective by Rabbinic decree.

THE DIFFICULT GEMORAH

Now, the Ktzos writes that according to all four of the opinions mentioned above, the Talmudic passage in Kesuvos 24b, presents a difficulty:

A dilemma was raised before them: What is the halakha with regard to elevating from documents indicating that one is a Kohain, to actual Kohanic lineage? The Gemara asks: What are the circumstances? If you say that it is written in the document: I, so-and-so, a Kohain, signed as a witness, in that case who is testifying about him that he is a Kohain? He is the only source asserting this!

The Gemara answers: No, this halakha is necessary in a case where it is written in the document: I, so-and-so, a Kohain, borrowed one hundred dinars from so-and-so, and witnesses signed the document, what is the halakha? Do the witnesses testify only concerning the loan of one hundred dinars in the document? Or, perhaps they testify concerning the entire matter and confirm with their signatures that every detail written in the document is true, including the fact that the borrower is a Kohain. With regard to the halakhic ruling, there is a dispute between Rav Huna and Rav Ḥisda. One said: One elevates from documents to actual Kohanic lineage, and one said: One does not elevate.

THE KTZOS’ QUESTION

[Based on this Gemorah,] The Ktzos asks: Even if we say that the witnesses testify on everything that is written in the document – it is still “written testimony” – and how would it be possible to elevate the testimony to actual Kohanic lineage? According to all of the above explanations except for that of Rabbeinu Tam – this Gemorah is problematic! According to Rabbeinu Tam “written testimony” is only problematic if the witness is not able to actually testify orally. So if witnessese testify as to everything in the document one would be able to elevate the testimony to actual Kohanic lineage.

THE KTZOS’ ANSWER

The Ktzos tries to answer that since all families have a Chazakah – an assumptive status of being “kosher” – and even a single witness would be believed regarding prohibitions related to pedigree were it not for the “special care” that was required [by the Rabbis] to require two witnesses and since it is only a Rabbinic requirement, they were lenient in allowing written testimony here.

SERIES OF QUESTIONS ON THIS BY RAV WASSERMAN HY”D

Rav Wasserman HY”D then asks a series of three questions on the aforementioned Rishonim according to the Ktzos’ explanation. [This will be followed by Rav Wasserman’s own analysis and an explanation as to how the questions are answered.]

Tosfos “Rav Yochanan” on Kesuvos 20a as well as Rashi, write that the operative principle is that the document represents the desire and will of the person obligating himself, so this is “from his writing” [which would be valid] rather than “and not from their writing” [which would be invalid]. Rav Wasserman HY”D, then asks – how does this resolve the problem?
How does this address the issue of a machaah – a protest? [YH: See Tosfos Bava Basra 40a and see Rav Wasserman’s further explanation in the original article. Also, this issue is addressed in Shiurei Rav Shmuel (Rozovsky) on Yevamos 31b and in Rav Shimon Shkop zt”l’s Shaarei Yosher 7:23).
In the Ramban’s explanation, where the language of the document is as if the testimony was examined thoroughly in a Bais Din – but the whole “thorough examination” was done in writing – and we now once again have the problem of it all being done through the invalid method of writing!

RAV WASSERMAN HY”D PROVIDES US WITH TWO COMPONENT PARTS OF TESTIMONY

The Acharonim explain that there are two elements of testimony:

The testimony itself
The relaying of that testimony

The testimony itself transpires (is chal) immediately – as soon as the witnesses saw the specific maaseh – the action. After this, “relaying the testimony” is actually a new component entirely. The concept of “mipihem velo mipi ksavam from their mouth and not from their written testimony” is only applicable to the second component.

The reader is invited to continue learning in Rav Wasserman’s original essay.

The translator can be reached at [email protected]