Rav Silver relates in his work Anfei Erez, that in the year 5674 (1913-1914) when he visited his former teacher, Rav Meir Simcha of Dvinsk, the renowned author of the Ohr Somayach, from Harrisburg, PA, where he was then serving as the rabbi, he shared the following Torah insight with Rav Meir Simcha, who was highly impressed by his explanation and praised it.
In America, he had been asked about the unusual way the Torah describes two witnesses in Devarim 17:6:
עַל פִּי שְׁנַיִם עֵדִים אוֹ שְׁלֹשָׁה עֵדִים יוּמַת הַמֵּת, לֹא יוּמַת עַל פִּי עֵד אֶחָד:
At the mouth of two witnesses, or three witnesses, shall he that is to die be put to death; at the mouth of one witness he shall not be put to death.
The Hebrew phrase used for two witnesses is “shnayim eidim” שְׁנַיִם עֵדִים, which is an unusual grammatical construction. The usual form is “shnei eidim” שְׁנֵי עֵדִים, which is the phrase the Torah uses a bit later in Devarim 19:15:
לֹא יָקוּם עֵד אֶחָד בְּאִישׁ לְכָל עָוֹן וּלְכָל חַטָּאת בְּכָל חֵטְא אֲשֶׁר יֶחֱטָא עַל פִּי שְׁנֵי עֵדִים אוֹ עַל פִּי שְׁלֹשָׁה עֵדִים יָקוּם דָּבָר:
One witness shall not rise up against a man for any iniquity, or for any sin, in any sin that he sinneth; at the mouth of two witnesses, or at the mouth of three witnesses, shall a matter be established.
In chapter 19, the Torah uses the standard form of “shnei eidim” שְׁנֵי עֵדִים for two witnesses, so why earlier in chapter 17 does it use the unusual form of “shnayim eidim” שְׁנַיִם עֵדִים?
Rav Silver explained this inconsistency based on a comment of the Midrash (Tanchuma Ma’asei 6) interpreting the story of Eliyahu’s battle with the false prophets of ba’al in Melachim 1 (18:22), when Eliyahu challenges the false prophets to a sacrifice competition:
וְיִתְּנוּ-לָנוּ שְׁנַיִם פָּרִים, וְיִבְחֲרוּ לָהֶם הַפָּר הָאֶחָד וִינַתְּחֻהוּ וְיָשִׂימוּ עַל-הָעֵצִים, וְאֵשׁ, לֹא יָשִׂימוּ; וַאֲנִי
אֶעֱשֶׂה אֶת-הַפָּר הָאֶחָד, וְנָתַתִּי עַל-הָעֵצִים, וְאֵשׁ, לֹא אָשִׂים.
Let them therefore give us two bullocks; and let them choose one bullock for themselves, and cut it in pieces, and lay it on the wood, and put no fire under; and I will dress the other bullock, and lay it on the wood, and put no fire under.
The phrase used for the two bulls is “shnayim parim” שְׁנַיִם פָּרִים, the same form as “shanyim eidim” שְׁנַיִם עֵדִים, and on this the Midrash in its retelling explains:
אמר להם אליהו בחרו לכם שנים פרים תאומים מאם אחת, הגדילים על אבוס אחד
Eliyahu said to them choose two bulls, twins from the same mother, who are growing at the same feed
According to the Midrash the challenge to find “shnayim parim” שְׁנַיִם פָּרִים meant that the cows should not only be similar, but twins, who have shared the same life experiences.
This differs from how the Sages describe the two goats which were used on Yom Kippur, called by the Torah (Vayikra 16:5) “shnei seirei eizim” שְׁנֵי-שְׂעִירֵי עִזִּים, (Mishna Yoma 6:1):
שְׁנֵי שְׂעִירֵי יוֹם הַכִּפּוּרִים, מִצְוָתָן שֶׁיִּהְיוּ שְׁנֵיהֶן שָׁוִין בְּמַרְאֶה וּבְקוֹמָה וּבְדָמִים וּבִלְקִיחָתָן כְּאֶחָד
The two goats of Yom Kippur: it is a requirement that they be alike in appearance, in size, in value, and that they be bought at the same time
The Mishna teaches they should be similar to each other, but they don’t need to be twins born from the same mother.
Similarly with regard to the two birds the Metzora brings upon becoming pure, described by the Torah (Vayikra 14:4) as “shtei tziporim chayot” שְׁתֵּי-צִפֳּרִים חַיּוֹת, the Sages describe it as (Mishna Negaim 14:1):
שְׁתֵּי צִפֳּרִים מִצְוָתָן שֶׁיְּהוּ שָׁווֹת בַּמַּרְאֶה וּבַקּוֹמָה וּבַדָּמִים, וּלְקִיחָתָן כְּאֶחָת.
With regard to the two birds: the commandment is that they be alike in appearance, in size and in price; and they must be purchased at the same time.
Here too, like the two goats, the Sages insist that the two birds should be similar, but no mention is made of them being twins, raised together. Why then does the Midrash intrepret the “shnayim parim” שְׁנַיִם פָּרִים of Eliyahu as being not only similar to each other, but also twins, who were raised together, and not like these other cases where similarity is required, but not sameness?
Rav Silver explained that the Sages interpret “shnayim” שְׁנַיִם to mean that not only do the two objects have to be similar, but they must be more fully connected, they must share the same purpose. “Shnei” שְׁנֵי on the other hand does not imply that unity of purpose, but rather that they are similar, without sharing a unified goal. Since regarding the goats and birds the Torah says “shnei” שְׁנֵי or “shtei” שְׁתֵּי, it implies they must be similar but not the same. Regarding Eliyahu’s bulls though the term is “shnayim” שְׁנַיִם, which means the same, and so the Midrash explains it as twins.
Accordingly this explains the change in terminology of the Torah with regards to witnesses. In chapter 17 the Torah is discussing witnesses in capital cases, while in chapter 19 the Torah is discussing witnesses in financial cases. There is a halachic difference between these two types of witnesses. According to the Gemara (Sanhedrin 30a), the capital case witnesses must testify at the same time, while financial case witnesses may testify at different times (about the same event they both witnessed.)
Following the grammatical rule laid out before, in capital cases the witnesses not only agree in substance to what they saw, but also must testify together, which is a case of “shnayim” שְׁנַיִם, since they both join together as unified witnesses. But in financial cases, where the witnesses can testify separately, it is more appropriate to label them as “shnei” שְׁנֵי since they testify to the same event, but not as a unified team. Therefore in chapter 19, regarding financial cases, the Torah implies similarity, but not sameness, whereas in chapter 17, regarding capital cases, the Torah implies sameness.
Regarding halachic witnesses this approach not only helps us to understand the grammar of the Torah, but it also imparts a key conceptual distinction. Financial witnesses are not considered partners in their testimony, while capital case witnesses are considered joined into one unit and partners in the process of testimony.
The Shaar Mishpat (Choshen Mishpat 410:37) asked a contradiction between the Gemara (Makkos 3a) which states that if there are two witnesses and one is proven to be false and has to pay and the other does not need to pay – the guilty witness only pays his portion, and not his friends portion too. But the general principle in the Gemara (Bava Kamma 53a) is that if two people damage another person, and only one is obligated to pay, he must pay both his portion and his partner’s portion. If so, why in the case of false witnesses if only one is obligated to pay does he not pay the full damages, both his portion and his friend’s portion, in keeping with the rule of damages?
Rav Silver explained based on his conceptual distinction between financial witnesses and partners. One has an obligation to pay for the damages of their friend who participated in the act of damaging, because the halacha views them as partners. But financial witnesses are not partners, and therefore there is no obligation to cover the full amount. A witness whose fellow witness does not pay, is not obligated to cover his portion, because they intrinsically have no relationship. This is derived from the Torah’s wording, which makes clear that financial witnesses are not unified through this act. The above would not be true of capital witnesses, where the Torah does view them as partners.
Using the above principle Rav Silver explained a number of other Rabbinic passages. When Yehoshua sends spies into the land of Israel it says (Yehoshua 2:1):
וַיִּשְׁלַח יְהוֹשֻׁעַ-בִּן-נוּן מִן-הַשִּׁטִּים שְׁנַיִם-אֲנָשִׁים מְרַגְּלִים, חֶרֶשׁ לֵאמֹר, לְכוּ רְאוּ אֶת-הָאָרֶץ, וְאֶת-יְרִיחוֹ; וַיֵּלְכוּ וַיָּבֹאוּ בֵּית-אִשָּׁה זוֹנָה, וּשְׁמָהּ רָחָב–וַיִּשְׁכְּבוּ-שָׁמָּה.
And Joshua the son of Nun sent out of Shittim two spies secretly, saying: ‘Go view the land, and Jericho.’ And they went, and came into the house of a harlot whose name was Rahab, and lay there.
The two spies are described as “shnayim anashim meraglim” שְׁנַיִם-אֲנָשִׁים מְרַגְּלִים, but their names are not used. The Midrash (Tanchuma Shelach 1) identifies them as Calev and Pinchas, two well-known leaders of the Jewish people at the time. How did the Sages know who these two spies were? Rav Silver explained based on this principle that since the phrase “shnayim” שְׁנַיִם is used in this regard, it must mean not only people who were both spies, but people who were connected through a prior unity of purpose, and this would fit with Calev and Pinchas, both of whom had a history of leadership of the Jewish nation through difficult times.
Similarly the Sages offer a reading of the famous story of the two women who came to Shlomo Hamelech for judgement, each claiming that the other’s baby had died and then stolen her living child instead. The Navi (Melachim 1, 3:16) describes the two women as:
אָז תָּבֹאנָה, שְׁתַּיִם נָשִׁים זֹנוֹת–אֶל-הַמֶּלֶךְ; וַתַּעֲמֹדְנָה, לְפָנָיו
Then came there two women, that were harlots, unto the king, and stood before him
The Midrash (Shir Hashirim Rabbah 1:10) explains that these two women were not strangers, but they were relatives, a mother-in-law and daughter-in-law, and their fight concerned the Torah law of yibom (for a woman to marry her dead husband’s brother.) The mother-in-law claimed that her daughter-in-law’s son had died before her husband’s death and she required yibom, while the daughter-in-law insisted her child was alive and she was free to marry whomever, now that her husband had died.
But what led the Midrash to conclude there was more complexity to this story than the surface reading that the women were arguing over who the living child’s mother was? Rav Silver pointed to the phrase “shtayim nashim” שְׁתַּיִם נָשִׁים as the clue which the Rabbis interpreted as pointing to a prior relationship between these women. Since “shtayim” שְׁתַּיִם implies a prior connection, it cannot be that the two women had no connection, and so the argument must have related to something which would affect both of them, like a yibom argument between the mother and wife of a deceased husband.
A final example is the Mishna (Menachos 11:1) which distinguishes between the Lechem Hapanim (Showbread in the Beis Hamikdash) and Shtei Halechem (Two Loaves of Shavuos) which were baked differently.
שְׁתֵּי הַלֶּחֶם נִלּוֹשׁוֹת אַחַת אַחַת, וְנֶאֱפוֹת אַחַת אַחַת. לֶחֶם הַפָּנִים נִלּוֹשׁ אֶחָד אֶחָד, וְנֶאֱפֶה שְׁנַיִם שְׁנָיִם
The Shtei Halechem were kneaded each on its own and baked each on its own. The Lechem Hapanim were kneaded each on its own and baked two at a time.
The Lechem Hapanim were baked two at a time, while the Shtei Halechem were baked one at a time. Rav Silver explained this distinction based on this same grammatical principle. The Lechem Hapanim is described in the Torah (Vayikra 24:6):
וְשַׂמְתָּ אוֹתָם שְׁתַּיִם מַעֲרָכוֹת, שֵׁשׁ הַמַּעֲרָכֶת, עַל הַשֻּׁלְחָן הַטָּהֹר, לִפְנֵי יְהוָה
And thou shalt set them in two rows, six in a row, upon the pure table before the LORD
The word the Torah uses for the rows is “shtayim marachos” שתים מערכות, which implies not only alike, but the same, and therefore they had to be cooked together. But the Shtei Halechem is described as (Vayikra 23:17):
מִמּוֹשְׁבֹתֵיכֶם תָּבִיאּוּ לֶחֶם תְּנוּפָה, שְׁתַּיִם שְׁנֵי עֶשְׂרֹנִים…
Ye shall bring out of your dwellings two wave-loaves of two tenth parts of an ephah…
Here the word “shtayim” שתים appears after the word bread and does not modify the bread in the way it does in the previous cases we have discussed, and so the Shtei Halechem does not need to be cooked at the same time. Rather so long as the bread is similar, it is permitted to cook it separately. This is why the Sages refer to it as Shtei Halechem שְׁתֵּי הַלֶּחֶם, using the word “shtei,” which means similar.
Based on this Rav Silver suggested a new halachic rule that when the Lechem Hapanim was being baked they had to keep track of which loaves were cooked together to be sure that the two cooked together were placed parallel to each other, in one row. They could not have loaves being mixed up with loaves which hadn’t been cooked together, otherwise it would not fulfill the dictates of “shtayim” שתים for the rows, which implies not only similarity, but sameness too.