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1) SAFEK ENGAGEMENT AND DIVORCE

(a) Answer: Since we require the Tzarah to do Chalitzah, people realize that this is only a stringency, and will not err.

1. Suggestion: By divorce also, we should teach the case (when we don't know to whom the Get was closer) and require Chalitzah, so people will know, this is only a stringency!
2. Objection: If we say that Chalitzah is required, people will come to do Yibum!
3. Counter-objection: Also by Safek engagement, say that by requiring Chalitzah, people will come to do Yibum!
4. Answer: There is no problem if they do Yibum - the Chazakah says that Yibum is permitted!

(b) Question (Abaye - Mishnah): The house fell on him and his brother's daughter (one of his wives); we do not know which died first. The Tzarah does Chalitzah, not Yibum.

1. We should say, Chazakah says that the Tzarah is exempt from Yibum and Chalitzah!
2. If you will say that Chalitzah is just a stringency - this will lead to a leniency!

i. If we say that Chalitzah is required, people will come to do Yibum!

(c) Answer #1: Divorce is common, Chachamim decreed not to do Chalitzah, lest people come to do Yibum; a house falling down is uncommon, no decree was made.
(d) Answer #2: By divorced, the Ervah is around, and people will think that Chachamim clarified the matter, and saw that the divorce was valid, and will do Yibum on the Tzarah;

1. By the falling house, no one will think that Chachamim clarified which dies first!

(e) Question: Regarding divorce, a Mishnah teaches, 'She was standing in a public domain, and he threw a Get to her. If it is closer to her, she is divorced; closer to him, she is not divorced; in the middle, she is divorced and not divorced."

1. 'Divorced and not divorced' means that if he is a Kohen, she is forbidden to him; if she is Ervah, her Tzarah must do Chalitzah!

i. We do not say, if we require Chalitzah, people will come to do Yibum!

(f) Answer (Rabah): The case is, there are 2 pairs of witnesses. One pair says the Get was closer to her, 1 pair says it was closer to him.

1. This case is a mid'Oraisa Safek; in our Mishnah, there is only 1 pair of witnesses, the Safek is Rabbinic.

(g) Question: How do we know that in our Mishnah, there is only 1 pair?
(h) Answer: Just as there is only 1 pair regarding engagement, also by divorce.
(i) Question: How do we know that by engagement, there is only 1 pair - perhaps there are 2!
(j) Answer: If there are 2 pairs, there is no reason not to do Yibum!
(k) Objection #1: 2 witnesses say that the money is closer to her - how can you say there is no reason not to do Yibum?!
(l) Objection #2: When there are 2 pairs of witnesses, the Safek is also Rabbinic!

1. By Torah law, the pairs of witnesses cancel each other, and we leave her on her Chazakah (she is not engaged, and the Tzarah may do Yibum).
2. An example is the property of Bar Shatya (a man who alternated between sanity and insanity).

i. Bar Shatya sold property. 2 witnesses came and said that he was sane when he sold; 2 say that he was insane when he sold.
ii. (Rav Ashi): The witnesses cancel each other, the property remains in the Chazakah of Bar Shatya.

(m) Answer #2 (To question 4:d, Daf 30B - Abaye): The neighboring case reveals about it.

1. The case taught by engagement also applies to divorce; the cases taught by divorce also apply to engagement.

(n) Objection (Rava): If so, what does 'This is (the case)' come to exclude?
(o) Answer #3 (Rava): The case of engagement also applies to divorce; there is a case by divorce which does not apply to engagement.

1. 'This is' which was also taught by divorce, doesn't exclude anything - it was taught on account of 'This is' by engagement.

(a) Question: What does 'This is' by engagement exclude?
(b) Answer: The date.
(c) Question: Why didn't Chachamim enact that a document of engagement needs a date?

1. We understand according to the opinion that the date on a Get is to clarify from when the husband lost his right to eat the fruits of her property - a husband does not eat the fruit of his engaged wife's property, there is no need for the date!
2. According to the opinion that the date on a Get is to prevent a husband from saving his wife from execution if she had adultery (by giving her a Get without a date), such as his sister's daughter, on whom he has compassion - the same concern exists by engagement!

(d) Answer #1: Because some people engage with money, and some with marital relations (where we cannot enact a date), we did not enact for a document either.

1. Question (Rav Acha): But a date was enacted for a deed of sale of a slave, even though some people buy with money, and some with a deed!
2. Answer: Most people buy slaves with a deed; most people engage women with money.

(e) Answer #2: We didn't enact a date on a document of engagement, since it would not prevent the husband from saving his wife.

1. Suggestion #1: If we would leave the document by her - she will erase the date!
2. Suggestion #2: If we leave it by the husband - when he has compassion on her, e.g. his sister's daughter, he will cover up for her!
3. Suggestion #3: We leave it by the witnesses.
4. Objection: If they remember the date - they do not need the document!

i. If they do not remember the date - they may testify based on what they see written, and the Torah said, testimony must be "From their mouths", not from what they wrote!

(f) Question: If so, we should say the same by divorce!
(g) Answer: There, the Get saves her (and she would not erase the date); here, the document condemns her!

(a) (Mishnah): 3 brothers are married to unrelated women. One man died; a brother gave a Ma'amar to the Yevamah, then he died. Both Yevamos do Chalitzah, not Yibum;

1. "And one of them dies" - that she has Zikah from 1 brother, not from 2.

(b) R. Shimon says, the Yavam may do Yibum with whichever he wants, and Chalitzah to the other.
(c) (Gemara) Question: If the prohibition of Zikah from 2 brothers is mid'Oraisa, Chalitzah should not be required!
(d) Answer: It is only mid'Rabanan, lest people say that when 2 Yevamos fall from 1 brother, both may do Yibum.
(e) Question: We should say, 1 does Yibum, the other, Chalitzah!
(f) Answer: We decreed not to, lest people say that some Yevamos from a brother do Yibum, others, Chalitzah.