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Kesuvos 22
1) THE PRINCIPLE OF "HA'PEH SHE'ASAR, HU HA'PEH SHE'HITIR"
QUESTIONS: The Mishnah discusses various cases in which Rebbi Yehoshua
agrees with Raban Gamliel that a person is believed with a "Ta'anas Bari" (a
claim of certainty) based on a "Migu." The Mishnah states, however, that if
there are witnesses who remove the Migu, the person is not believed.
The Mishnah mentions this in three places with regard to three different
cases. The first Mishnah (15b-16a) says that when the present owner of a
field says to the son of the original owner, "This field belonged to your
father, and I purchased it from him," he is believed because he could have
remained silent and never said that the field belonged to the other man's
father. It was "his mouth that prohibited [the field to him], and his mouth
that permitted it." The Mishnah there adds that "if there are witnesses that
the field belonged to the other person's father, *and this one says that he
bought it from him*, he is not believed."
The second Mishnah (18b) presents a similar case in which witnesses attempt
to invalidate the Shtar on which they are signed. When two witnesses say
that it is indeed their signatures on the Shtar, but they add that they
signed the Shtar under duress (and the information contained therein is
false), they are believed. "But if there are [other] witnesses that this is
their handwriting... then they are not believed" to disqualify themselves.
Finally, the Mishnah here (22a) teaches that "a woman who says, 'I was an
Eshes Ish and now I am divorced,' is believed because 'the mouth that
prohibited her is the mouth that permitted her.'" The Mishnah continues,
"But if there are witnesses that she was an Eshes Ish, *and she says that
she is divorced*, she is not believed," because she no longer has the
support of the "Peh she'Asar" principle. The same applies in a case of a
woman who says that she was taken captive as a Shevuyah but she was not
defiled and is still Tehorah; she is believed because of "Peh she'Asar." If,
however, two witnesses say that she was taken captive, "*and she says that
she is Tehorah*," she is not believed because she no longer has a "Peh
she'Asar."
REBBI AKIVA EIGER (in TOSFOS REBBI AKIVA EIGER on the Mishnayos) asks two
very strong questions on the wording of the Mishnah here (22a).
1. Why does the Mishnah say that a woman who says "I was an Eshes Ish and
now I am divorced," or "I was taken captive but I am Tehorah," is believed
because of a "Peh she'Asar"? The principle of "Peh she'Asar" is a special
Halachah derived from a verse (cited by the Gemara here) which teaches that
a person is able to remove an Isur that he created himself. Here, however,
the woman did not create any Isur in the first place! Normally, when a woman
says that she is an Eshes Ish, or she says that she was a Shevuyah, she
becomes Asurah because "Shavyah a'Nafshah Chatichah d'Isura" -- a person is
entitled, and believed, to make herself Asurah. When she claims that she is
Asurah, she is believed with regard to herself and she must abide by what
she claims. Here, though, she never said that she was Asurah. She said, "I
*was* an Eshes Ish and now I am divorced." She never claimed to have a
status of Isur. Why, then, does the Mishnah say that she is believed to
create her Heter because she created her Isur? She never made herself
Asurah, and there is no need for a "Peh she'Asar"!
This question is especially problematic in the case in which she says, "I
was taken captive but I am Tehorah." In that case, she does not say that she
was Teme'ah originally but later became Tehorah. On the contrary, she says
that although she was captured she was *never* defiled. Why, then, does the
Mishnah need to say that she is believed to say that she is Tehorah because
of a "Peh she'Asar" when she never made herself Asurah in the first place?
"Shavyei a'Nafshah" does not apply when she says that she was taken captive
but asserts that she is Tehorah!
Some Acharonim (KOVETZ SHI'URIM #58) attempt to answer this question by
saying that it depends on how the Halachah of "Shavyei a'Nafshah" works. The
KETZOS HA'CHOSHEN (34:4) cites the MAHARIT who explains that "Shavyei
a'Nafshah" works through the mechanism of a *Neder*: when a woman says that
she is prohibited to a certain person or thing, it is as if she prohibited
that thing upon herself through a Neder. The Ketzos ha'Choshen argues and
proves that "Shavyei a'Nafshah" does *not* work through a Neder, but it is a
Halachah derived from the principle of "Hoda'as Ba'al Din k'Me'ah Edim Dami"
-- self-admission is as good as [or better than] one hundred witnesses. The
Torah teaches that when a person admits he owes money, he must pay
regardless of how many witnesses say he is exempt, because when one
testifies about himself he is trusted more than any number of witnesses to
say that he owes money. "Shavyei a'Nafshah" is an extension of that Halachah
as applied to the category of Isur and not just to monetary matters.
Perhaps Rebbi Akiva Eiger understands that "Shavyei a'Nafshah" works like a
Neder, as the Maharit says. Accordingly, he is justified in saying that when
a woman says, "I was an Eshes Ish and now I am divorced," she never made a
Neder to make herself Asurah.
Others point out that it is not so simple to say that Rebbi Akiva Eiger
understands "Shavyei a'Nafshah" like the Maharit. In his comments to Yoreh
De'ah (1:12), Rebbi Akiva Eiger quotes the BECHOR SHOR in Yevamos (87b) who
discusses a person who makes an item prohibited to himself with "Shavyah
a'Nafshei Chatichah d'Isura," but he knows that it was a mistake and the
item is really permitted to him. For some reason, he cannot give a good
enough excuse (Amasla) to Beis Din in order to permit it to him. Is he
permitted to eat from that object as long as Beis Din is not watching, since
he knows that it is really Mutar, or does it remain Asur to him completely
(see TESHUVAS REMA quoted in the margin to YD 185:2). The Bechor Shor
concludes that according to the letter of the law, the item is Mutar, but
nevertheless one should conduct himself stringently (because "anything that
the Chachamim prohibited from being done in the eye of the public is
prohibited even in the inner chambers of one's home"). If Rebbi Akiva Eiger
agrees with the Bechor Shor, then he clearly does not hold that "Shavyei
a'Nafshah" works like a Neder, because then the item would be Asur even in
private because of the *Neder*.
In fact, most of the Acharonim reject the Maharit's explanation of "Shavyei
a'Nafshah" as a function of a Neder, and say that a person is believed to
create an Isur upon himself just as he is believed to obligate himself in
monetary matters (as the Ketzos ha'Choshen explains), since he alone loses
through his admission (see NODA B'YEHUDAH, end of EH 2:43, Kovetz Shi'urim
ibid.). Rebbi Akiva Eiger, however, asks that even if we understand "Shavyei
a'Nafshah" to work because of "Hoda'as Ba'al Din," that a person is believed
to prohibit himself, why should we consider the woman to be prohibiting
herself? She is *not* saying that she is prohibited.
2. Rebbi Akiva Eiger asks that the Mishnah writes (in both the case of
Gerushah and the case of Shevuyah) that if witnesses come and say that she
was married (or taken captive) "and she says that she is no longer married
(or is Tehorah)," she is *not* believed. This wording implies that the
Mishnah is discussing a new case in which the witnesses first testified
before she said anything, and then she replied that she is divorced or
Tehorah (see Tosfos to 15b, DH u'Modeh).
Why does the Mishnah mention such a case? All the Rishonim write that even
if the witnesses come *after* she says that she was married and is now
divorced (after her "Peh she'Asar"), she also is not believed because she no
longer has her "Peh she'Asar" -- because we know that she was married not
from her words but from the words of the witnesses. The Mishnah should not
give a completely new case, in which witnesses come first and say that she
was married, and then she says that she was married but is now divorced. The
Mishnah should continue the first case and say that if, after she says that
she was married and is now divorced, witnesses come and say that she was
married, her Heter is revoked because she no longer has a "Peh she'Asar"!
In fact, this is exactly how the Mishnah sets up the situation when it
discusses the case of verifying the signatures of witnesses in a Shtar. The
Mishnah says that if two witnesses testify that they signed the Shtar but
that they were forced to sign, *and then* a second group of witnesses come
and say that they recognize the signatures of the first two witnesses in the
Shtar, the first pair is no longer believed to say that they were forced to
sign. Why in the cases of the Gerushah and Shevuyah does the Mishnah present
the case where "Peh she'Asar" no longer works as a completely separate case?
(Rebbi Akiva Eiger concludes this question with the words, "'v'Tzarich Iyun
Gadol.")
Actually, it is unclear why Rebbi Akiva Eiger does not ask both of his
questions on the *first* Mishnah of the Perek. Both questions seem
applicable to the first Mishnah (15a) which discusses the ownership of a
field: Why is "Peh she'Asar" necessary if there never was a "Hoda'as Ba'al
Din" in the first place that the field belongs (at present) to another
party? Also, why does the Mishnah conclude that if witnesses testify that
the field once was another party's *and then* another person says "I bought
it from him," the second person is not believed? The Mishnah should say that
even if witnesses come *after* the "Peh she'Asar," the "Peh she'Asar" is
revoked upon their testimony.
ANSWERS: RASHI and TOSFOS (16a DH Hasam Shor Shachut, 15b DH u'Modeh)
present differing explanations for why Rebbi Yehoshua agrees with the
"Migu"s of these Mishnayos. Accordingly, the answers to these questions
according to Rashi will differ from the answers according to Tosfos.
Rashi writes that Rebbi Yehoshua agrees in these cases that the logic of
Migu applies because there is no claim; no one is challenging the landowner
such that he needs to make any response that the field is his. He came forth
of his own accord and said that the field belonged to the father of the
other person. Tosfos, in contrast, maintains that Rebbi Yehoshua agrees with
the logic of Migu under any circumstances. Rebbi Yehoshua argues with Raban
Gamliel only when there is no real Migu. (See Insights to 16a.)
Tosfos may answer Rebbi Akiva Eiger's questions as follows:
(a) The wording of the Mishnah provides proof for Tosfos' assertion that
Rebbi Yehoshua agrees with any Migu because The wording of the Mishnah
implies that there *was* a "Ta'anah" -- that is, someone *did* come and
challenge the ownership of the field. The Mishnah relates that the landowner
says, "This field was your father's and I bought it from him." Why does he
need to say an independent statement that "this field was your father's" and
then say a second statement that "I bought it from him"? Let him just say
one statement, "I bought the field from your father"! The fact that he
introduces his claim by saying that "this field was your father's" implies
that someone is challenging his ownership of the field and he is
*responding* to that challenge by admitting that the field once belonged to
the other person's father, but that it was bought from him (as Tosfos
himself explains on 15b, DH u'Modeh, with regard to a similar terminology on
17b).
Tosfos cites support for his interpretation from the end of the Mishnah
(16a). When the Mishnah says that "when there are witnesses who say that the
field belongs to the other person's father and the present owner says 'I
bought it from him' he is not believed," the Mishnah clearly refers to a
case in which one is making a claim against the person with the "Peh
she'Asar." Who brought witnesses if not the person making a claim against
the present owner? It is apparent that a claim is not enough to counteract a
Migu; the Migu is uprooted only by witnesses.
According to the approach of Tosfos, both questions of Rebbi Akiva Eiger may
be answered as follows. In the Mishnah's case of a woman who says, "I was an
Eshes Ish but now I am divorced," why does the woman first say the words
"Eshes Ish Hayisi"? The words "Gerushah Ani" already imply that she was once
married! The Mishnah must be teaching that there was a claim against her --
someone is challenging her status and saying that she cannot remarry because
he knows that she is an Eshes Ish. (Since he is a single witness and not a
pair of witnesses, she still has a Migu.) She is responding to the
allegation by admitting that it is true that she was once an Eshes Ish, but
now she is divorced.
If this is the case, then it is clear why the logic of "Shavyei a'Nafshah"
would have prohibited her from remarrying had it not been for "Peh
she'Asar." The statement of "I was an Eshes Ish" is not a prelude to her
statement of "but now I am divorced," but rather it is a response to
someone's claim that she is an Eshes Ish. She is admitting to the challenge
against her that she is an Eshes Ish, but in order to permit herself she is
adding "now I am divorced." Accordingly, "Shavyei a'Nafshah" indeed should
apply: she admits to the claim of the other person, which was a claim to
prohibit her from remarrying, and then she adds additional information to
permit herself to marry! The same applies to the Mishnah which discusses the
ownership of a field, in which case there is a bona fide "Hoda'as Ba'al Din"
as soon as the present owner replies in the affirmative to the claim against
him.
The second question may be answered as follows. According to Tosfos, the
reason why the Mishnah concludes that witnesses say she was an Eshes Ish
"and then she says that she is divorced" is to teach that a claim alone is
not enough to remove the Migu according to Rebbi Yehoshua (in contrast to
Rashi's view). Only the testimony of witnesses can remove the Migu. The
Mishnah intends to teach that a claim that comes *before* the statement of
"now I am divorced" will *not* refute the Migu, but witnesses *will* refute
it. The same applies to the Mishnah earlier (16a). The Mishnah there says
that witnesses came first and then the landowner said "I bought it from your
father." This shows that only witnesses can refute a Migu when they precede
the claims of the litigant, but a claim cannot refute a Migu, as Tosfos
proved from these very words in the Mishnah.
(It is possible that Rebbi Akiva Eiger himself considered this answer, and
that is why he did not ask his question on the first Mishnah of the Perek.
With regard to monetary matters, it is clear that a Ta'anah forces a person
to reply, and therefore an affirmative reply constitutes "Hoda'as Ba'al
Din." In addition, since the person must reply it is possible to presume, as
Rashi indeed suggests, that a Migu will not work when there is a Ta'anah
forcing a reply. With regard to matters of Isur (such as Eshes Ish or
Shevuyah), however, Rebbi Akiva Eiger understands that a Ta'anah does not
force a response since the person who makes the Ta'anah (that she is an
Eshes Ish or Shevuyah) is not demanding to receive something for himself
from the woman, unlike the previous owner of the field.)
Why does the Mishnah of Kiyum Shtaros (18b) not give a similar case for
where witnesses upset the Migu? It should say that if a second set of
witnesses comes and verifies the signatures of the witnesses in the Shtar,
*and then* those witnesses said that they signed the Shtar under duress,
they are not believed. Why does the Mishnah teach that they are not believed
in a case in which the second set of witnesses come *after* they say that
they signed under duress?
The answer is that in this case it is an obvious fact, even according to
Rashi, that a Ta'anah prior to the Migu will not remove the Migu. If someone
says, "This is your handwriting," and the witnesses respond, "Yes, it is our
handwriting, but we were forced to sign," the person's Ta'anah will *not*
ruin their Migu (see BEIS YAKOV to 16a, on Rashi DH Hacha). The reason for
this is as follows. Normally, a Ta'anah ruins a Migu because it forces the
person to make a counter-claim, and a Migu works only when the person could
have remained silent and still have won the case ("Iy Ba'i Shasik," Tosfos
ibid., Rashi to 16a, DH Iy Amart). Here, however, if a person challenges the
witnesses who claim that this is their handwriting on the Shtar, they have
no need to respond since nothing of theirs -- neither money nor freedom to
marry whom they choose -- is at stake. Since it is obvious that a Ta'anah
does not upset this Migu, the Mishnah does not need to teach that witnesses
who come prior to the Migu upset a Migu in order to infer that a Ta'anah
before the Migu does not upset the Migu. Therefore, the Mishnah mentions a
case in which the witnesses come after the Migu!
(b) The above answers are valid only according to the way Tosfos explains
the Sugya, because Tosfos says that a Ta'anah alone will not ruin a Migu.
According to Rashi, however, a Ta'anah *does* ruin a Migu, and thus it is
obvious that the Mishnah of Gerushah does not refer to a case in which one
challenged the woman with a Ta'anah claiming that she was an Eshes Ish.
Rebbi Akiva Eiger's question returns: she never said anything to prohibit
herself as an Eshes Ish through "Shavyei a'Nafshah"; why does she need a
"Peh she'Asar" to be permitted to remarry? She says that she is a Gerushah
and thus she should be permitted to remarry!
Perhaps the answer may be derived from the Gemara later (23b). Rashi there
explains that the reason why the Mishnah gives so many examples of "Peh
she'Asar" is that they are progressively larger Chidushim. Had the Mishnah
taught only the first case, one might have thought that in the second case
(of witnesses who verify their signatures on a Shtar) "Peh she'Asar" does
not apply. In the case of the first Mishnah, where the person's first
statement (if accepted alone) would cause him to lose the field, he
certainly would not say that it is the field of the other person's father
unless he meant to finish his statement and say "and now it is mine."
However, in the case of Kiyum Shtaros, perhaps the witnesses *changed their
mind*. It is possible that they first said that it is their signatures with
intention to authenticate the Shtar, and then they changed their mind and
said that they were forced to sign. Perhaps "Peh she'Asar" does not apply in
that case.
Rashi's intention may be as follows. The reason the Mishnah does not give a
simple case in which the landowner says one statement ("I bought this field
from your father") but it separates it into two statements ("This field was
your father's, and I bought it from him") is to teach a Chidush. One might
have thought that since he split his statement into two, his second
statement is a *retraction* of the first and he actually changed his mind.
Perhaps he intended to say "this is your father's field, and it is still his
field," and now he is changing his mind about what he wants to say. The
Mishnah therefore teaches that we do *not* assume that he was changing his
mind, because he has a "Peh she'Asar." He is believed to say that it is all
one statement and that he intended from the start to say that the field is
now his. (The principle of "Peh she'Asar" itself teaches that he may claim
that he never intended to change his mind, even though his wording implies
differently.)
This logic refutes the proof cited above (at the beginning of answer (a)) to
Tosfos' interpretation of the Mishnah.
This is also the Chidush in the case of the woman who says that she was
married and is now divorced. The Mishnah means that the wording itself
implies that there are two separate statements and that she is *changing her
mind*. Her words imply that she first meant to admit that she was Asurah,
and immediately afterwards she regretted it and added that she is now
permitted to marry because she is divorced. There indeed seem to be *two*
statements -- not like Rebbi Akiva Eiger asserts that it is all one
statement and that she intended from the very start to complete her
statement and say that she is divorced. The Mishnah is teaching that since
she added the explanation of her first statement immediately ("Toch Kedei
Dibur"), "Peh she'Asar" allows her to remove the Isur that she seemingly
made with the first half of her statement by insisting that it was indeed a
single statement. This explains why "Shavyei a'Nafshah" would apply if not
for the "Peh she'Asar." This answers Rebbi Akiva Eiger's first question.
According to this approach, Rebbi Akiva Eiger's second question according to
Rashi may be answered as follows.
Rebbi Akiva Eiger asks, why does the Mishnah say that witnesses come before
the "Peh she'Asar" is activated? Even if they come afterwards, the woman
should not be believed! In order to answer this question, it is necessary to
explore how Rashi might answer Tosfos' second challenge to his explanation.
Tosfos asks: Why does the Mishnah (16a) state that witnesses come, and not
simply that the original owner has a claim (Ta'anah) that it was his
father's?
The answer to this question may be that the end of the Mishnah there (which
discusses a case in which witnesses come) expresses not only Rebbi
Yehoshua's opinion, but it means that *even Raban Gamliel* agrees with this
ruling (see Insights to 16a). This is why the Mishnah says that witnesses
come, and it does not say that the original owner makes a Ta'anah; the
Mishnah wants to present a case in which Raban Gamliel also maintains that
there is no Migu (and Raban Gamliel maintains that there *is* a Migu in the
face of a Ta'anah). This explains why the Mishnah splits the case into two
separate cases. The first case (where there is a Migu) expresses exclusively
the opinion of Rebbi Yehoshua, while the second case (where there is no
Migu) expresses an uncontested Halachah with which even Raban Gamliel
agrees.
This approach answers Rebbi Akiva Eiger's question. Had the Mishnah merely
continued with the first case and added that there is no Migu when witnesses
come later, we would not have known that the Mishnah is no longer discussing
Rebbi Yehoshua's opinion but rather an uncontested Halachah.
In the case of Kiyum Shtaros, the Mishnah does not make two separate cases,
because there Rebbi Yehoshua and Raban Gamliel do not argue. In that case,
even though there is a Ta'anah Rebbi Yehoshua agrees that a Migu works.
Thus, that entire Mishnah, the Reisha and the Seifa, is the uncontested
opinion of both Rebbi Yehoshua and Raban Gamliel. (M. Kornfeld)
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Kesuvos 23
23b-----------------------------------23b
1) "SHEVUYAH" AND "ED ECHAD NE'EMAN B'ISURIM"
QUESTION: The Mishnah states that two women who were captured (Shevuyos) may
testify that the other was not defiled and is permitted to marry a Kohen.
RASHI writes that the Chachamim were lenient in the case of a Shevuyah to
accept the testimony of one witness, even a woman.
Why does Rashi say that the Chachamim were lenient in the case of a
Shevuyah? There is a general rule that "one witness is believed in matters
of prohibitions" ("Ed Echad Ne'eman b'Isurim"), even when the witness is not
valid for testimony in court (such as a woman or a relative). The case of
Shevuyah involves a question of Isur (whether or not the woman is permitted
to marry a Kohen), and thus the normal rule of "Ed Echad Ne'eman b'Isurim"
should permit us to accept the testimony of a single witness! Why does Rashi
say that there is a special leniency in the case of Shevuyah?
ANSWERS:
(a) The TOSFOS RID in Kidushin (66a, cited by the SHEV SHEMAITSA 6:15)
proves from the Gemara there (see Shev Shemaitsa) that judging whether or
not a woman is a Shevuyah, or whether she is prohibited from marrying a
Kohen for another reason (such as Gerushah or Chalutzah), is considered a
"Davar sheb'Ervah" and therefore two witnesses are required. Accordingly, it
is clear why a special leniency is needed in the case of Shevuyah to accept
the testimony of a single witness.
The source for the requirement of two witnesses in the case of a "Davar
sheb'Ervah" is the verse which discusses a woman who becomes prohibited to
her husband because she committed adultery (Devarim 24:1). According to the
Tosfos Rid, the verse apparently refers not only to an adulteress (who
transgressed an Isur Kares) but to any testimony that causes a woman to
become prohibited (or permitted) to certain men. According to this logic,
two witnesses should be required even to prove that a person is, or is not,
a Mamzer or Mamzeres. (One might distinguish, however, between Isurim that
can take effect only upon a woman -- such as Pesulei Kehunah and Z'nus,
which require two witnesses -- and those that can apply to men as well --
such as Mamzer, which is not a "Davar sheb'Ervah" and requires only a single
witness.)
(b) REBBI AKIVA EIGER and the NESIVOS HA'MISHPAT (both cited in TESHUVOS
REBBI AKIVA EIGER #124, 125) posit based on the MORDECHAI in Yevamos that a
court case is considered to be a "Davar sheb'Ervah" only if it creates (or
removes) an Isur on the woman which prevents the enactment of Kidushin with
that woman (similar to the Isur of Eshes Ish).
This explanation of the Mordechai needs clarification. The Isur of an
adulteress to her husband does not preclude "Tefisas Kidushin"; it is simply
an Isur Lav. Similarly, the Isur of Shevuyah to a Kohen is only a Lo Ta'aseh
(a normal negative commandment) which does not prevent Kidushin from taking
effect, but it is clear from the Gemara here and in Kidushin (ibid.) that
two witnesses are required to prohibit a Shevuyah.
The Nesivos ha'Mishpat explains that according to the Mordechai there are
two acts which are considered "Davar sheb'Ervah": one is an act which
*creates* an Isur which precludes the enactment of Kidushin, and the other
is an act in which a woman becomes prohibited to others because she *had
relations with* a man with whom Kidushin could not take effect. A Shevuyah
(who is suspected of being raped by her non-Jewish captors) and an
adulteress fit into the second category.
However, Rebbi Akiva Eiger asserts that this is not the Mordechai's
intention. He suggests instead that prohibiting an adulteress to her husband
is considered a "Davar sheb'Ervah" even though it does not prevent Kidushin
from taking effect with her, because the Torah refers to that particular
Isur as "Tum'ah" (see Yevamos 11a) just as it refers to the Isurim of
Arayos. Shevuyah is considered a "Davar sheb'Ervah" for the same reason; the
Gemara in Yevamos (56b) teaches that the wife of a Kohen who was raped is
prohibited to her husband because of an Isur of "Tum'ah." However, this is
true only in the case of a married woman who was raped (see Teshuvos Rebbi
Akiva Eiger #125, and TESHUVOS V'CHIDUSHEI REBBI AKIVA EIGER 20:3). If a
single woman is captured and raped, testimony about her would not be
considered a "Davar sheb'Ervah" at all according to this logic. According to
Rebbi Akiva Eiger, there must be another reason for why any Shevuyah, even a
single woman, would have required two witnesses without the special
leniency.
This also appears to be the opinion of the RAMBAM (Hilchos Sanhedrin 16:6,
see Shev Shemaitsa ibid.), who writes that only one witness is necessary to
determine whether or not a woman is a Zonah or Gerushah and prohibited to a
Kohen. Similarly, TOSFOS in Gitin (2b, DH Midi) writes that the law that a
"Davar sheb'Ervah" requires two witnesses applies only to testimony
concerning marriage, divorce, and Z'nus that prohibits a woman to her
husband.
(c) TOSFOS (Gitin 2b, DH Ed Echad) writes that one witness is not believed
even in order to *remove* an ordinary Isur that has already been established
("Ischazek Isura," or a "Chezkas Isur"). Accordingly, since the Chachamim
assume that a Shevuyah definitely was defiled until proof is brought
otherwise (see Kesuvos 13b), she is considered to have a "Chezkas Isur" and
thus a single witness would not be believed to remove that Isur if not for
the special leniency the Chachamim instituted in the case of a Shevuyah.
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Kesuvos 24
24b-----------------------------------24b
1) HALACHAH: A NON-KOHEN WHO RECITES THE PRIESTLY BLESSING
QUESTION: The Gemara discusses whether the fact that a person recited Birkas
Kohanim may be used as proof that he is a Kohen. The Gemara says that if a
non-Kohen recites Birkas Kohanim, he transgresses an Isur Aseh. RASHI
explains that the source for this is the verse which says that "*they* shall
bless" the people, implying that only Kohanim may bless the people.
There is a widespread custom for a father to bless his children with the
text of the Birkas Kohanim every Friday night and on Erev Yom Kippur. Why is
this permitted? The Halachah is that one who is not a Kohen is not permitted
to bless others with the priestly blessing.
ANSWERS:
(a) The BI'UR HALACHAH (OC 128) offers two answers. He cites the BACH who
says that the Isur applies only when the blessing is recited with
outstretched hands. Therefore, a non-Kohen is permitted to bless his child
without outstretched hands.
(This implies that blessing one's child with outstretched hands is
prohibited. It is said in the name of the VILNA GA'ON that one should bless
his child with only one hand outstretched, but not two, since only Kohanim
are permitted to bless with two hands outstretched.)
(b) Alternatively, the recitation of Birkas Kohanim was established as part
of the prayer service. When one recites the verses of Birkas Kohanim outside
of the context of Tefilah, he does not have intention to fulfill the Mitzvah
of Birkas Kohanim and thus he is permitted to recite the verses.
2) USING A DOCUMENT AS A WITNESS
QUESTION: The Gemara discusses whether a document (Shtar) may be used as
proof that one is permitted to marry a full-fledged Kohen (a "Kohen
Meyuchas").
The KETZOS HA'CHOSHEN (28:6) asks that there is a rule that testimony must
be verbally stated and not written. How, then, can a document be used as
testimony that one is a Kohen? The Ketzos ha'Choshen adds that although
documents are legally valid, that status does not apply here to permit the
document to serve as testimony.
(The Rambam explains that a Shtar is an enactment instituted by the Rabanan
to help a person in need borrow money. (Without a Shtar, lenders would be
very reluctant to lend money.) This power of a Shtar obviously does not
apply to allow a Shtar to serve as testimony that a person is a Kohen,
because such a case has nothing to do with borrowing money. Moreover, even
according to the other Rishonim who say that a Shtar's power is mid'Oraisa,
this applies only when the information in the Shtar was given to the
witnesses by the writer of the document to establish a legal status based on
the document. Here, though, the Shtar was given as proof that a loan
transpired and not as proof that the lender is a Kohen (as that piece of
information is irrelevant to the transaction).)
ANSWER: The Ketzos ha'Choshen answers that according to TOSFOS (24a) who
says that mid'Oraisa normal families (Stam Mishpachos) are permitted to
marry into the families of Kohanim as they are assumed to have valid Yichus,
the entire need for testimony is only mid'Rabanan. Therefore, we may rely on
written testimony (like in the case of Kiyum Shtaros, which is also only
mid'Rabanan).
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Kesuvos 25
25b-----------------------------------25b
1) ACCEPTING THE TESTIMONY OF A RELATIVE
QUESTION: The Gemara discusses a case in which a person claims, "This is my
son, and he is a Kohen." Rebbi says that he is believed inasmuch as we may
give the son Terumah to eat, but we may not permit him to marry the daughter
of a Kohen Meyuchas. Rebbi Chiya says that if we accept his testimony with
regard to Terumah, we must also accept his testimony with regard to Yichus,
and if we do not accept his testimony with regard to Yichus, we should not
accept it at all. (The Gemara understands that Rebbi Chiya maintains that
the testimony is not accepted at all.)
Why is a father not believed to testify that his son is a Kohen? The issue
of Kehunah is a matter of Isur, for which a single witness is believed ("Ed
Echad Ne'eman b'Isurim").
ANSWER: The ROSH in Gitin (5:12) writes that a person is not believed to
testify about himself that he is a Kohen in order to be permitted to eat
Terumah, because accepting his claim that he is a Kohen would provide him
and his descendants with a great benefit, and therefore a person who makes
such a claim is suspected of lying. The Rosh apparently understands that the
only reason why one is not believed to testify that he is a Kohen is the
concern that he is lying for personal gain. This may also be the reason why
a father is not believed to say that his son is a Kohen.
TOSFOS here points out that the statement, "This is my son, and he is a
Kohen," implies that there are two details which are unknown and which the
father is revealing: the first is that the child is his son, and the second
is that the child is a valid Kohen. Tosfos asks that if it is not known that
the child is his son, why is the father not believed when he says that his
son is a valid Kohen with a "Migu" that he could have said that the child is
*not* his son and is a Kohen? Had he made that claim, he would have been
believed because he would have no ulterior motive, as he would not be
claiming to be the child's father. He would be testifying about an unrelated
person for whom he is believed to testify.
Tosfos answers that he is not believed even though he has a "Migu" because,
according to his present statement, he is a relative and one is not believed
to say that his relative is a Kohen.
This logic seems flawed. According to the Rosh, the only reason why a
relative is not believed for Kehunah is because he might be lying. If there
is a "Migu," however, that "Migu" provides reason to believe that he is
*not* lying. Why, then, is he not believed even though he is a relative of
the one for whom he testifies? Apparently, Tosfos understands that there is
some other reason for why a relative is not believed. (The TOSFOS HA'ROSH
rejects Tosfos' logic and suggests another answer to Tosfos' question. See
KOVETZ HE'OROS #65, who suggests a Chidush with regard to the Pesul of a
Karov (relative) who testifies, which may be applied here.)
Perhaps the answer is that although with regard to Kehunah a relative is not
accepted as a witness because he is suspected of lying, there is a different
reason for why his testimony is not accepted even when there is no suspicion
that he is lying (such as when he has a "Migu"). Since a relative is not
valid as a witness when *two* witnesses are necessary even though he is
*not* suspected of lying, the Chachamim made a general decree that a
relative is not accepted as a witness for Kehunah just as he is not accepted
for normal, two-witness testimony. Therefore, even in a case where there is
a "Migu" (and thus there is reason to assume that he is not lying), the
testimony of a relative is not accepted. (E. Kornfeld)
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