Thursday, August 02, 2007

ERRONEOUS RULINGS- Yevamos 91 - Daf Yomi

Rav Papa desired to decide a case on the principle of “What should she have done?” (He permitted a woman who remarried based on the testimony of two witnesses to return to her husband after he reappeared.) Rav Huna the son of Rabbi Yehoshua asked to Rav Papa: How can you rule like this? But surely all those Mishnayos were taught that challenged this ruling?

Rav Papa replied: Were they not explained?

Rav Huna the son of Rabbi Yehoshua said in return: Shall we then rely on explanations in order to render a lenient decision?

Rav Papa accepted this argument and retracted his ruling.

Shulchan Aruch (E”H 17:26) rules accordingly that a woman who remarried based on the testimony of two witnesses, and then her husband reappears, she must leave both of them.

The Rashba in his teshuvos (Vol. I, 1,189) writes regarding a woman who marries based on the ruling of the Beis Din, for example, there was a question regarding the effectiveness of the kiddushin, and Beis Din ruled that the kiddushin did not take effect. She married to another man and then Beis Din realized that they had erred in their previous ruling, and she is actually a married woman to the first man. The halacha is that she is permitted to her first husband because it was an unavoidable circumstance. What should she have done? There is no reason to penalize her.

The Rama (E”H, 17:58) rules in accordance with the Rashba.

The Taz (ibid. 71) and the Beis Shmuel (ibid. 172) are bewildered regarding this ruling. Why is this case different than the ruling from our Gemora regarding the woman’s remarriage based on two witnesses? It is clearly ruled upon that she is penalized and is forbidden to return to her first husband.

Furthermore, the Beis Shmuel asks: The Rama contradicts himself! He rules (ibid. 31:10) in accordance with the Maharik, who states: A woman who married another man based on a faulty ruling of a Sage regarding her first marriage is prohibited from returning to her initial husband. What is the difference between Beis Din’s mistake and the Sage’s mistake?