by Rivital Singer and Batsheva Weinstein
In Midreshet Avigayil, we are learning to analyze a text by first picking out the keywords that form the structure. Then, knowing how the sugiya is built, and the general way in which the gemara will reach its conclusions, it becomes easier to understand the details and their importance to the sequence. Another technique we use is reading the text with Rashi’s commentary inserted throughout. We talked about how when Rashi is commenting on the mishnah and throughout the gemara, he is not necessarily giving us his opinion, but rather preparing us for the continuation of the gemara. He does this by making sure we notice the confusing things that the gemara will later try to resolve, giving us spoilers about the gemara’s interpretation in places where he thinks we may get stuck trying to understand, and leading the reader to believe things that the gemara will see as a הוה אמינא so that they are in the right mind to read the gemara.
This week we learned the first sugiya in the tenth chapter of Masechet Yevamot, which opens with the case of a woman whose husband is missing and who has some form of evidence that he is dead. Based on this evidence, she marries another man. The mishnah deals with the ramifications of the first husband returning. There are four cases brought in the mishna, each with different forms of evidence (one or two עדים), and different levels of בית דין involvement in accepting the evidence (checking the עדים or stating directly that the woman should remarry).
The gemara starts by quoting the second case in the mishnah, “נשאת שלא ברשות מותרת לחזור לו”. It can be inferred from the fact that this case refers to a woman who was “נשאת שלא ברשות” (which, Rashi adds, is a case in which רשות ביד דין is not necessary since there are two עדים) that in the first case in the mishnah, “אישה שהלך בעלה למדינת הים…”, we are referring to a case in which there is one עד and רשות בית דין. Being great תלמידי חכמים, we all know that this is a little strange. Usually, sufficient evidence can only be brought by two עדים!?
On this exciting note, we pause to take you into our beit midrash and walk you through the steps of understanding a sugiya through its structure.
We learned to try and first notice statements that were made by Amoraim, as we know that the goal of the sugiya is to try and recreate their thought process. The one Amoraic statement in our sugiya is “אמר ר’ זירא מתוך חומר שהחמרת עליה בסופה הקלת עליה בתחילה”: Due to the stringencies that we may later impose on the woman, we are more lenient in letting her remarry (the gemara will continue to question this claim, and bring another explanation). Knowing the end goal of the gemara will help us to understand each step of the discussion. As we continue, keep R’ Zeira’s statement in mind.
Now let us return to our עד אחד and the mystery as to why his statement is considered sufficient evidence (we know you’ve been holding your breath, just waiting to find out! ;).
In order to try and prove that עד אחד can be sufficient, we bring two other cases in which עד אחד is believed, from which we may be able to derive that we believe עד אחד in this case as well. We first mention how when proving marriage, we believe עדות based on hearsay, even with women and slaves, who are usually פסולי עדות. We then bring a case in which one עד saw someone eat חלב and tells them in court. The accused then denies having eaten חלב, and is פטור from bringing a קרבן. Based on this case we say that עד אחד must be believed דאורייתא, since the fact that the mishna mentioned that the accused man denied his action clearly indicates that had he not done so he would have been חייב, meaning the עד אחד would have been believed.
However, the gemara concludes that the sufficient evidence in this case might be the accused man’s silence rather than the testimony of the עד אחד, and really this case proves only that silence in the face of an accusation can have the same legal status as a confession.
Having failed to prove that עד אחד is נאמן דאורייתא based on a פסוק, we now try to say that it is instead a סברא, as on the basis of סברא we believe an עד אחד who tells us that a piece of fat is kosher שומן rather than nonkosher חלב. Rashi says that the סברא is that if food had needed two עדים while being made in order to be considered kosher, no one would ever eat at anyone else’s house (and that would be CRAZY!). We then ask how we can compare the case of חלב to the case of אישה seeing as before the witness testifies, we don’t know for sure if the food is kosher or not, but we do know for sure before the witness testifies that the woman is an אשת איש.
We suggest that our case should instead be compared to a piece of meat that you are certain is חלב, but then one witness claims it is not. In that case the one witness is not believed, so perhaps this demonstrates that there is no סברא to believe one witness regarding a husband’s death. But the gemara argues that this case is also not comparable to our Mishnah, since the status of the meat cannot ever change – once treif, always treif – whereas the woman’s status can change from wife to widow.
Seeing now that the issue of חלב/שומן does not generate a case that can be compared to the אישה עגונא, we bring three other cases in which there is also a חזקה that something is אסור (the same way there is a חזקה that the woman is an אשת איש and therefore אסורה to other men), and yet עד אחד is sufficient evidence to permit the object. The cases are טבל, הקדש and קונמות, all of which are אסור to use. We dismiss all three cases, however, as they are generally situations that can be easily fixed (the prohibition can be removed) by their owner. Whenever they cannot be fixed, the Talmud says, perhaps the testimony of an עד אחד is not sufficient.
We finally get to R’ Zeira’s answer, which is that theoretically עד אחד should not be sufficient evidence מדאורייתא to permit the woman to remarry, but since we have made the ramifications of the woman’s second marriage (if the first husband turns up alive) so harsh (for example, we forbid her permanently to both husbands as if she had committed adultery deliberately), we are able to be more lenient by allowing her to use the testimony of one witness. The gemara then asks why couldn’t we have just not been particularly harsh or lenient at any point in the case. The answer is that the reason we wanted to be particularly lenient is because we are dealing with an עגונא and we want to be as nice to her as possible (we want to make sure that if her husband is truly dead, she can remarry), and we can’t do this without adding the harsh ramifications, which lead the woman to be extra cautious and מדייק when trying to claim her husband is dead.