אֶחָד אוֹמֵר בִּשְׁנַיִם בַּחֹדֶשׁ וְאֶחָד אוֹמֵר בִּשְׁלשָׁה בַחֹדֶשׁ, עֵדוּתָן קַיֶּמֶת, שֶׁזֶּה יוֹדֵעַ בְּעִבּוּרוֹ שֶׁל חֹדֶשׁ וְזֶה אֵינוֹ יוֹדֵעַ בְּעִבּוּרוֹ שֶׁל חֹדֶשׁ; אֶחָד אוֹמֵר בִּשְׁלשָׁה וְאֶחָד אוֹמֵר בַּחֲמִשָּׁה, עֵדוּתָן בְּטֵלָה. אֶחָד אוֹמֵר בִּשְׁתֵּי שָׁעוֹת וְאֶחָד אוֹמֵר בְּשָׁלשׁ שָׁעוֹת, עֵדוּתָן קַיֶּמֶת; אֶחָד אוֹמֵר בְּשָׁלשׁ וְאֶחָד אוֹמֵר בְּחָמֵשׁ, עֵדוּתָן בְּטֵלָה. רַבִּי יְהוּדָה אוֹמֵר, קַיֶּמֶת. אֶחָד אוֹמֵר בְּחָמֵשׁ וְאֶחָד אוֹמֵר בְּשֶׁבַע, עֵדוּתָן בְּטֵלָה, שֶׁבְּחָמֵשׁ חַמָּה בַמִּזְרָח וּבְשֶׁבַע חַמָּה בַמַּעֲרָב:
When one of them says 'it was on 2nd of the month' and the other says 'it was on 3rd of the month' their testimony stands, for the former knows of the intercalation of the month and the latter does not know of the intercalation of the month; but if one of them says 'it was on 3rd of the month' and the other says 'it was on 5th of the month' their testimony is dismissed. If one of them says it was at 2nd hour and the other says it was at 3rd hour their testimony stands; but if one of them says it was at 3rd hour and the other says it was at 5th hour their testimony is dismissed; Rabbi Yehudah says it stands. But if one of them says it was at 5th hour and the other says it was at 7th hour their testimony is dismissed, because at the 5th hour the sun is in the east whereas at the 7th the sun is in the west.
1:
The first mishnah of our present chapter established the ground rules for the 'investigatory' questions: the witnesses had to establish a common series of facts concerning what the accused did: "in which septade? in which year? in which month? on which date? on which day? at what hour? in what place?" Our present mishnah continues the discussion started in the previous mishnah concerning inconsistencies between the testimony of the two witnesses that may or may not invalidate their testimony.
2:
The first item is concerned with their response to the question "on which date" of the month did the accused do what he is alleged to have done. Obviously, they are required to give the number of the day in the month: 6th Tevet, 15th Shevat, 14th Adar and so on. Our mishnah states that if there is a discrepancy in the two testimonies of only one day this does not invalidate their testimony, since it could well be that one of them was aware that the previous month had been intercalated – extended by one day – whereas the other was not so aware – and this could explain the discrepancy between the two dates given by them, and they could well be referring to the same day. But this assumption may not be made if the discrepancy is greater than one day, since even when the month is intercalated no more than one day is ever added to the month.
3:
Obviously, we must here clarify the term 'intercalation'. We shall better understand the principles involved if we bear in mind that the term "intercalation" is but a rather 'high falutin' rendition of the Hebrew Ibbur ha-Ĥodesh, which means literally "declaring the month to be pregnant". In the days when the Jewish calendar was still fixed by actual observation of the heavenly bodies (which is a presumption that underlies our present mishnah) it was the task of the President of the Sanhedrin, sitting with two colleagues as a Bet Din shel Mumĥim, to judge exactly when the new month was to start. In order to understand this issue we must introduce a little astronomic arithmetic to our discussions.
4:
In the solar year that we are used to from the secular (Gregorian) calendar the fixed unit upon which everything else depends is a year (to be defined later), and the months are but twelve parts of a year each having an arbitrary length – 28, 29, 30 or 31 days. The fixed unit of the Jewish calendar is the month, which is of a recognized length, and a year is a multiple of such months – not less than twelve and not more than thirteen.
5:
In the Jewish calendar a month is the exact time that it takes the moon to make one complete revolution of the Earth's axis. This time was determined aeons ago as being 29 days, 12 hours, 44 minutes and three and one-third seconds. When we know the exact specifications of the start of the very first month of the system all we have to do is to add 29:12:44:3.3r to those specifications and we arrive at the start of the next month – and so on ad infinitum. The precise moment when a month starts is called in Hebrew molad [birth], and the specifications of the very first molad have been determined – even though everyone agrees that they are completely fictional. The molad of Tishri in the Hebrew year 1 falls nearly 11¾ months before the presumed moment of creation (!) and it is therefore called molad Tohu [pre-creation molad]. This, more than anything else teaches us that this presumed starting point is a rabbinic extrapolation backwards from a particular (and undetermined) point in time.
6:
The problem is that 29:12:44:3.r is not a complete number of days, but it is very near to 29½ days (we shall return to the remaining 45 minutes at a later stage). Thus, Jewish months consist of 29 and 30 days alternately. However, the Torah is understood to establish the calendar in Exodus 12:2, and this verse reads "This month [of the spring equinox] shall be to you the first of the months; it shall be for you the first of the months [of the solar year]". The sages note that the phrase "for you" occurs in this sentence twice, and this means that the determination of the months is in your jurisdiction and not Mine – God's.
7:
The present permanent calendar was inaugurated in 357/8 CE. Prior to that time, even though the astronomical calculations were known, the Bet Din of the President of the Sanhedrin was required to interview the witnesses to the new moon and to declare the start of the new month according to acceptable testimony. (The veracity of the witnesses was determined by showing them various diagrams of the night sky and asking them to identify which diagram replicated the moon as they saw it [Mishnah Rosh ha-Shanah 2:8]. (In order to encourage witnesses to come forward the "successful" ones were treated to a "night out" at public expense!) The sages already knew the exact time of the molad, but if no witnesses had come forward during the 29th day of the month a 30th day was added to the month, thus indicating that it was still "pregnant" and had not yet "given birth". If no witnesses came forward on the 30th day of the month either, the 31st day was declared to be the first day of the next month. Thus a month which consisted of 30 days was 'intercalated'.
8:
This practice fell into dissuetude, and during the 4th century CE, Hillel II, the President of the Sanhedrin, established the permanent calendar that is in use today and which is calculated by the simple (?) arithmetic that I have described above. Prior to the institution of the permanent calendar the general population had to be informed that a month had been intercalated: if no such information reached them they must assume that the previous month had consisted of only 29 days. The inhabitants of Jerusalem and the surrounding areas would know of the intercalation of the month within minutes or hours of the declaration by the Sanhedrin. The rest of the population of Eretz-Israel would know of the intercalation by the following day, since an elaborate system of relay bonfires was created to transmit the news throughout the country – and even to the Diaspora in Babylon! When this relay system began to be sabotaged by sectarians the news of the intercalation of the month was relayed by means of messengers sent out from Jerusalem to the various centers of the Jewish population of the world.
9:
Such messengers could arrive at their destination as late as two weeks after the intercalation. Thus, it was possible that one of the witnesses was aware that the previous month had consisted of 30 days and not 29, and therefore knew that the day of the event being established was 3rd of the month, whereas his partner, who did not know of the intercalation of the previous month, thought that the same day was 4th of the month.
10:
The Gemara [Sanhedrin 41b] points out that a discrepancy of one day between the two testimonies could only be acceptable until the middle of the month in question: by the middle of the month everybody would know the correct date in the month. Those who think all this is strange and unlikely might consider the meaning of a discrepancy today of one hour in the period immediately after a switch from 'ordinary' time to 'Summer' time, when we artificially advance our timepieces by one hour.
To be continued.
In san074 we learned that "if one of them [the witnesses] says that the victim was wearing plain white clothes and the other says that he was wearing coloured clothes, this does answer to the criterion of truth."
Ed Frankel writes:
On first reading we see here an apparent contradiction, and yet as noted in the lesson, Rashi did not see a contradiction on anything but circumstantial evidence that did not affect the thrust of the case. Our Mishnah does not relate to the time of the killing for which one is accused. Still, I can, based on our own past lessons, find another reason that this quote would not be indicative of a contradiction. Two witnesses may perceive of colors differently, or even seen the colors in question moments apart. My basis is the first mishnah in Berakhot where the sages speak of the times when one can dsistinguish white from pale blue or leek green. If such sensitivities to color apply there, they apply here as well.
