Daf Yomi - Yevamos 87/88 - Highlights

MISHNA REGARDING A HUSBAND WHO WENT OVERSEAS

If a woman's husband went overseas, and they came (one witness) and said to her, “Your husband died,” and she married, and afterwards her husband returned, she must leave this one and this one (A woman who committed adultery is forbidden to her husband and the adulterer. This woman has the same halachos. Even though the Sages accepted the testimony of one witness regarding a woman for the sake of agunos, they ruled in this manner because they relied upon the woman not to marry until she had thoroughly investigated and clarified the matter. Since she did not clarify the matter and married, the Sages penalized her that she must leave both.); and she requires a bill of divorce from this one and from this one; and she does not receive her kesuvah, or fruits (The husband does not pay her for the fruits that he consumed from her usufruct property. Even though the husband's right to the fruits of his wife's melog property is a compensation for his obligation to ransom her if she is taken captive by non-Jews, and he is not required to ransom this wife who is prohibited to him, and it therefore would be proper that he pay her for what he consumed of the fruits of her melog property, nonetheless the Sages punished her and she cannot collect from him the fruits he consumed, just as she does not collect her kesuvah.), or sustenance, or depreciation (if the husband made use of her melog property until it was worn-out, he is not required to pay her its monetary value); not against this one and not against this one. And if she took any of these payments from this one or from this one, she must return it. And the child born from either of these men is a mamzer (the child from the first man is a mamzer Biblically and the child from the second one is a mamzer Rabbinically). And neither this one nor this one may render himself tamei for her (if she dies). And neither this one nor this one is entitled to an object she finds, or to her earnings, and they are not authorized to annul her vows. If she was the daughter of a Yisroel, she is disqualified from the Kehunah, and if she was the daughter of a Levi, she is disqualified from ma'aser, and if she was the daughter of a Kohen, she is disqualified from terumah. And the heirs of neither this one, nor of this one inherit her kesuvah. And if they died, the brother of this one and the brother of this one submit to chalitzah and do not marry by yibum. Rabbi Yosi says: Her first husband’s estate is responsible for her kesuvah. Rabbi Elozar says: The first husband is entitled to an object she finds and to her earnings, and he is authorized to annul her vows. Rabbi Shimon says: Cohabitation with her or her chalitzah to the brother of the first husband exempts her co-wife from chalitzah or yibum, and the child born from the first husband is not a mamzer.

The Mishna continues: If she married without permission (there were two witnesses that her husband died), she is permitted to return to him (since she was not expected to investigate and clarify the matter).

If she married with the consent of Beis Din (through the testimony of one witness), she must leave both men (if the husband returns), and she is exempt from an offering (since a person who sins in consequence of a ruling of Beis Din is exempt from a sin-offering). If she did not marry with the consent of Beis Din (there were two witnesses that her husband died), she must leave both men, and she is liable to bring a sin-offering. Such is the power of Beis Din that it exempts her from an offering.

If Beis Din ruled that she may be married, and she went and acted improperly (she cohabited with another man), she is liable to bring a sin-offering, for they permitted her only to be married. (87b)

THE VALIDITY OF ONE WITNESS

The Gemora analyzes the first case of the Mishna, which stated: If a woman's husband went overseas, and they came and said to her, “Your husband died,” and she married, and afterwards her husband returned, she must leave this one and this one. Since the Mishna states later: If she married without permission, she is permitted to return to him; the latter ruling must be referring to a case where Beis Din didn’t grant permission, but rather, there were two witnesses (for otherwise, why would she be permitted to return to her first husband?). This implies that the former ruling is referring to a case where Beis Din granted permission based on the testimony of one witness. It emerges from here that one witness is trusted to permit a woman to remarry.

The Gemora cites another Mishna to support this conclusion. The Mishna states: It became established throughout Israel that if a person testifies that someone else witnessed the death of a man overseas, we accept the testimony of the second witness to allow the wife to remarry. We also accept the testimony of a woman who acquired her testimony by the mouth of a second woman. We also trust a woman who acquired her testimony by the mouth of a slave or a maidservant. (Although the second person’s testimony is not biblically valid, the Chachamim were lenient so the woman should not remain an agunah, a woman who is left in limbo regarding her marital status. Furthermore, every Jewish marriage is contingent on rabbinical protocol, and the Chachamim reserved the right to invalidate a marriage where a person offers hearsay testimony that the woman’s husband died overseas.) It emerges from here that one witness is trusted to permit a woman to remarry. (87b)

ONE WITNESS REGARDING OTHER PROHIBITIONS

The Gemora cites another Mishna proving that one witness is believed even in regards to other Biblical prohibitions. The Mishna states: If one witness testifies that a certain person ate cheilev (forbidden fats) inadvertently, and thus is liable to bring a chatas (sin-offering). That person claims that he did not eat it at all. The halacha is that he is exempt from bringing a chatas.

The Gemora analyzes the Mishna. The reason why he is exempt from bringing the chatas is because he contradicted the witness and claimed that he did not eat the cheilev. If, however, he would have remained quiet, he would be liable to bring a chatas. It emerges from here that one witness is trusted even in regards to other Biblical prohibitions. (87b)



THE BIBLICAL SOURCE FOR ACCEPTING ONE WITNESS

The Gemora asks: How do we know from the Torah that one witness is believed in regards to Biblical prohibitions?

The Gemora answers: It was taught in the following braisa: It is written [Vayikra 4:23]: If his sin becomes known to him….he shall bring his chatas offering. The Torah teaches us that he must be aware of his sin, and not that others make him aware. One might think that even if he does not contradict the testimony, he should not be liable to bring the chatas; therefore the Torah states: If it becomes known to him, he is liable to bring the chatas in all cases.

The Gemora analyzes the braisa: What is the case that the braisa is discussing? If there are two witnesses, and he does not contradict them, why is the verse necessary (of course, he would be obligated to bring a chatas)? Obviously, the braisa is discussing a case where one witness testified, and he would be believed if he is not contradicted. We can learn from this braisa that one witness is believed even when it is relevant to Biblical prohibitions.

The Gemora asks: Perhaps he is liable to bring the chatas because he kept quiet, and this is a sign of admission (and the braisa would not be a proof that one witness is believed)?

The Gemora proves from the latter portion of the braisa that the reason he would be liable to bring the chatas is not because we believe one witness, but rather, it is because his silence is an admission of guilt. (87b - 88a)

The Gemora states that it is logical that one witness is believed. For the testimony regarding the husband who went overseas is similar to a case of a piece of fat that we are uncertain if it is cheilev (and it is forbidden), or if it is shuman (and it would be permitted), and one witness testified that it is shuman. Just as he is believed in that case, he should be believed in this case (that the husband died).

The Gemora objects to this comparison: Perhaps the one witness is believed only by the piece of fat, where a state of prohibition was not previously established. However, in the Mishna’s case, the state of prohibition of a married woman was already established, and the one witness will not be believed. Furthermore, there is a principle that two witnesses are required in all matters concerning ervah (forbidden marital relationships). (88a)

The Gemora offers another logical reasoning to believe one witness. For the testimony regarding the husband who went overseas is similar to the testimony of one witness permitting produce that had been previously established as tevel (untithed produce that one cannot eat until tithing has been performed), or permitting objects that had been previously established as hekdesh (consecrated items), or permitting an object that had been established to be subject to the prohibition of konamos (when one makes a vow not to derive pleasure from a certain object).
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The Gemora analyzes all three cases: What is the case of tevel? If the produce is his own (the witness’), perhaps the reason that the witness is believed is not because one witness is believed, but rather, it is because he has the capability of rectifying the prohibition through tithing the produce himself. Rather, it must be referring to a case where the tevel belongs to someone else. What does the one who offered this comparison hold? If he holds that separating terumah from his own produce for the sake of rectifying someone else’s produce does not require the willingness of the owner, what is the comparison? Perhaps the reason that the witness is believed is not because one witness is believed, but rather, it is because he has the capability of rectifying the prohibition through tithing the produce himself. And if he holds that separating terumah from his own produce for the sake of rectifying someone else’s produce requires the willingness of the owner, and the one witness testifies that the produce has in fact been tithed, how do we know that the witness would be believed in this situation?

What is the case of hekdesh? If the consecrated item is one that merely possesses monetary sanctity, perhaps the reason that the witness is believed is not because one witness is believed, but rather, it is because he has the capability of redeeming the object himself. And if the case we are discussing is dealing with a consecrated item that possesses physical sanctity (which cannot be redeemed), let us examine the case further. If the consecrated item is his own, perhaps the reason that the witness is believed is not because one witness is believed, but rather, it is because he has the capability of asking a sage to annul his vow, which would render the item unconsecrated. If the consecrated item belonged to someone else, and the witness testified that he knew that the owner asked a sage to annul his vow, how do we know that the witness would be believed in this situation?

The Gemora examines the case of konamos. If the one who offered this comparison holds that there is a halacha of me’ilah (the sin of deriving benefit from consecrated property) by konamos, and therefore these objects would obtain monetary sanctity, perhaps the reason that the witness is believed is not because one witness is believed, but rather, it is because he has the capability of redeeming the object himself. If he holds that there is no halacha of me’ilah by konamos, but merely an ordinary prohibition, let us examine the case further. If the item is his own, perhaps the reason that the witness is believed is not because one witness is believed, but rather, it is because he has the capability of asking a sage to annul his vow. If the item belonged to someone else, and the witness testified that he knew that the owner asked a sage to annul his vow, how do we know that the witness would be believed in this situation? (88a)

LENIENCY TO ALLOW A WOMAN TO REMARRY AND NOT TO REMAIN AN AGUNAH

(The Gemora did not find a source proving that one witness will be believed against an established prohibition.) Rabbi Zeira says: The reason why one witness is believed (that the husband died) is because of the severity with which we applied to her (the wife) at the end (when the husband returned), we are lenient with her at the beginning (and allow her to marry through the testimony of one witness).

The Gemora asks: Let us not treat her severely at the end (by not imposing penalties on her if the husband returns) and we would not be compelled to be lenient with her in the beginning?

The Gemora answers: Since we were concerned that the woman will remain an agunah (a woman that cannot get married because we do not have sufficient evidence that her husband died), the Rabbis treated her leniently, and accepted the testimony of one witness. (88a)

REMARRYING BASED UPON TWO WITNESSES

The Mishna had stated: If a woman's husband went overseas, and they came (one witness) and said to her, “Your husband died,” and she married, and afterwards her husband returned, she must leave this one and this one. Rav says that this is the halacha only if she married on the basis of the testimony of one witness. However, if she remarried on the basis of the testimony of two witnesses, she is not required to leave.

In Eretz Yisroel, they mocked at this ruling by saying: “The first husband has returned, and you say that she is not required to leave the second husband?”

The Gemora answers: Rav is discussing a case where we did not recognize the man who claims to be her first husband.

The Gemora asks: If we do not recognize him, then she should be permitted to stay with her second husband even if there was only one witness testifying that her husband died?

The Gemora answers: Rav is referring to a case where we do not recognize the man who claims to be her first husband, and there are two witnesses who testify and say the following: “We were with this man from the moment he left until now (and we are certain that he is her husband), and you do not recognize him because his appearance has changed.”

The Gemora proves from Yosef and his brothers that it is possible that a person’s appearance can change in such a manner that even his family will not recognize him.

The Gemora asks: But the bottom line in this case is that we have contradictory witnesses. We have two witnesses testifying that the husband died, and two witnesses testifying that the husband has returned. One who cohabits with this woman should be liable to bring an asham taluy (a korban that one is required to bring if he is uncertain if he mistakenly committed a transgression). Why then, do we allow the second husband to remain married to her?

Rav Sheishes answers: We are discussing a case where she is married to one of the witnesses who testified that the husband has died. (He is not required to bring an asham taluy since he does not suspect at all that he has committed any transgression.)

The Gemora asks: But, what about her? She herself is liable to bring an asham taluy.

The Gemora answers: We are discussing a case where she is certain that her husband died (and the man claiming to be her husband is a fraud).

The Gemora asks: If so, what is the novelty of Rav’s ruling? Even Rabbi Menachem the son of Rabbi Yosi said that a couple must separate when the legitimacy of their marriage is in question only if they married after both sets of witnesses testified; however, if they married on the basis of testimony from one set of witnesses and a conflicting set testified afterwards, they are not obligated to separate. For it was taught in the following braisa: If two witnesses testify that her husband died or that they got divorced, and another set of witnesses testify that the husband did not die or they did not get divorced, she should not get married. If she does remarry, she is not obligated to leave. Rabbi Menachem the son of Rabbi Yosi says: She is required to leave. Rabbi Menachem the son of Rabbi Yosi explains: When do I say that she is required to leave? Only if she remarried after the testimony of both sets of witnesses. However, if she remarried based on the supporting testimony from one set of witnesses, and afterwards, the opposing witnesses testified, she is not required to leave. (Accordingly, why did Rav need to repeat this ruling?)

The Gemora answers: Rav is referring to a case where she remarried after the testimony of both sets of witnesses, and Rav ruled that she is not required to leave in accordance with the Tanna Kamma, and to exclude the opinion of Rabbi Menachem the son of Rabbi Yosi.

There are others that say that the reason Rav ruled that she is not required to leave is because she married prior to the testimony from the opposing witnesses; however, if she remarried only after both sets of witnesses testified, she would be required to leave. This would be in accordance with the opinion of Rabbi Menachem the son of Rabbi Yosi. (88a – 88b)

Rava asks on Rav from the following braisa: How do we know that if a Kohen does not want to separate himself from tumah or from a forbidden woman that we physically force him until he obeys? It is written [Vayikra 21:8]: And you shall sanctify him. The Torah teaches us that it is incumbent upon Beis Din to force him to comply.

Rava examines the braisa: What is the case of the forbidden woman? If we are referring to a case where the Kohen married a woman based upon the testimony of witnesses who testified that her husband had died, and the Kohen was not one of the witnesses, and she did not claim that she is certain that her husband died, is it necessary to teach us that we force the Kohen to separate from the woman? Obviously not! Rather, the braisa must be referring to a case where the Kohen is one of the witnesses who testified that her husband died, and she is certain that her husband died, and nevertheless, the braisa rules that Beis Din forces the Kohen to separate from her. This would be inconsistent with Rav’s ruling that they are permitted to remain married.

The Gemora answers: We are stricter when we are dealing with a Kohen, whereas Rav was discussing a non-Kohen.

Alternatively, the Gemora answers that the braisa is not discussing a case where both sets of witnesses testified, and we obligate the couple to separate. The case is that the Kohen wishes to marry her based on the testimony of one set of witnesses. The Torah requires that we force him to refrain from marrying her until we determine that there are no opposing witnesses.

Alternatively, the Gemora answers that the braisa is discussing a case where both sets of witnesses testified, and only then do we require the couple to separate. This would be in accordance with the opinion of Rabbi Menachem the son of Rabbi Yosi. (88b)

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