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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 where 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, though, that if there are witnesses who remove the Migu, then the person is not believed.

The Mishah says 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) gives a similar case regarding witnesses who attempt to invalidate the Shtar on which they are signed. When two witnesses say that it is indeed their signatures on the Shtar, but then 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) says 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 where a woman 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," but if two witnesses say that she was taken captive, "*and she says 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 our Mishnah (22a).

1. First, 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 himself created. Here, though, 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 she was a Shevuyah, she becomes Asurah because "Shavyei 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 where she says, "I was taken captive, but I am Tehorah." There, she never said that she was Teme'ah originally but later became Tehorah. On the contrary -- she is saying that although she was captured, she was *never* defiled! Why, then, does the Mishnah need to say that she is believed that she is Tehorah because of a "Peh she'Asar," when she never made herself Asurah? "Shavyei a'Nafshah" cannot be applied when she says she was taken captive only in order to finish her sentence and say that she is Tehorah!

Some Acharonim (KOBETZ SHI'URIM #58) attempt to answer this question by saying that it depends on how we understand the Halachah of "Shavyei a'Nafshah." The KETZOS HA'CHOSHEN (34:4) cites the MAHARIT who says that "Shavyei a'Nafshah" works through the mechanism of a *Neder*; when a person 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 tells us that when a person admits he owes money, he has to pay no matter how many witnesses say he is exempt, because when testifying with regard to oneself, a person is trusted more than any number of witnesses to say that he owes money. "Shavyei a'Nafshah" is an extension of that Halachah, applying it to the category of Isur, and not just monetary matters.

Rebbi Akiva Eiger perhaps understood that "Shavyei a'Nafshah" works like a Neder, like 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 understood "Shavyei a'Nafshah" like the Maharit. In his comments to Yoreh Deah (1:12), Rebbi Akiva Eiger quotes the BECHOR SHOR in Yevamos 87b who discusses a person who made 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 Mutar to him. For some reason, he cannot give a good enough excuse (Amasla) for Beis Din to accept 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 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 with it (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 Neder, and say that the person is believed to create an Isur upon himself just as he is believed to obligate himself in monetary matters (like the Ketzos ha'Choshen said), since he alone is losing through his admission (see NODA B'YEHUDAH, Even ha'Ezer, end of 2:43, Kobetz Shi'urim ibid.). Rebbi Akiva Eiger, though, is asking 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 at all!

2. Second, Rebbi Akiva Eiger asks that the Mishnah writes, in both the cases of Gerushah and 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 15b DH u'Modeh).

Why does the Mishnah give 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 will not be believed because she no longer has her "Peh she'Asar," for we know that she was married not from her words, but from the words of the witnesses. The Mishnah should not have given a completely new case, where witnesses come first saying that she was married, and then she says that she was married but is now divorced. The Mishnah should have continued the first case and said that if - after she said that she was married and is now divorced - witnesses come who say that she was married, then 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 they were forced to sign, *and then* a second group of witnesses come afterward and say that they recognize the signatures of the first two witnesses in the Shtar, then the first group 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 ends off with a baffled, "'v'Tzarich Iyun Gadol.")

Actually, it is somewhat strange that Rebbi Akiva Eiger does not ask both of his questions immediately on the *first* Mishnah of our Perek. They both would seem to apply to the first Mishnah (15a), which deals with the ownership of a field, as well: First, why is "Peh she'Asar" necessary, if there never was a "Hoada'as Ba'al Din" in the first place that the field belongs (at present) to another party? Second, why does the Mishnah conclude that if witnesses testified that the field once was another party's *and then* another person said "I bought it from him," the second person is not believed? It should have told us that even if witnesses come *after* the "Peh she'Asar," the "Peh she'Asar" is revoked upon their testimony!

ANSWERS: It seems necessary to suggest different answers to these questions according to Rashi and according to Tosfos (16a DH Hasam Shor Shachut, 15b DH u'Modeh), who have differing explanations as to why Rebbi Yehoshua agrees to the "Migu"s of these Mishnayos.

Rashi says that Rebbi Yehoshua agrees in these cases that the logic of Migu applies because there is no Ta'anah; no one is challenging the landowner such that he needs to make any response that the field is his. Rather, he came forth of his own accord and said that the field belonged to the father of the other person. Tosfos disagrees, maintaining that Rebbi Yehoshua agrees to the logic of Migu under any circumstances. He argues with Raban Gamliel only when there is no real Migu. (See Insights to 16a.) Let us first discuss how Tosfos would possibly answer Rebbi Akiva Eiger's questions.

(a) We can bring proof from the wording of the Mishnah that Rebbi Yehoshua will agree with any Migu, like Tosfos says. The wording of the Mishnah implies that there *was* a "Ta'anah" -- i.e., that 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 the person have 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 introduced 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 it was bought from him (as Tosfos himself explains, 15b DH u'Modeh, regarding a similar terminology on Daf 17b).

Tosfos (ibid.) 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 is clearly discussing a caase when someone is making a Ta'anah against the person with the Peh she'Asar. Who else brought witnesses if not the person making a Ta'anah against the present owner? We see, then, that a Ta'anah is not enough to counteract a Migu, and the Migu is only uprooted by witnesses.

According to the approach of Tosfos, we can answer both questions of Rebbi Akiva Eiger as follows. In the Mishnah's case of a woman who says, "I was an Eshes Ish, but now I am divorced," why did the woman first say the words "Eshes Ish Hayisi?" By just saying "Gerushah Ani" it is already implicit that she was once married! The Mishnah must be teaching that there was a Ta'anah 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 but a single witness and not a pair of witnesses, she still has a Migu.) She is responding to the Ta'anah by admitting that it is true that she was once an Eshes Ish, however now she is divorced.

If this is the case, then it is clear why the "Shavyei a'Nafshah" would have prohibited her to marry 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 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." If so, "Shavyei a'Nafshah" should indeed apply. She is admitting to the Ta'anah of the other person, which was a claim to prohibit her to marry, and then she is adding additional information to permit herself to marry! The same applies to the Mishnah that deals with the ownership of a field; there is a bona fide Hoda'as Ba'al Din as soon as he replies in the affirmative to a Ta'anah.

The second question could also be answered according to the view of Tosfos. According to Tosfos, the reason the Mishnah concludes that witnesses say she was an Eshes Ish "and then she says that she is divorced" is in order to teach that a Ta'anah 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 wants to show that a Ta'anah 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 is to show that only witnesses can refute a Migu when they precede the claims of the litigant, but a Ta'anah will not refute a Migu -- as Tosfos proved from these very words.

(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 is a Hoda'as Ba'al Din. In addition, since the person must reply it is possible to think, as Rashi indeed suggests, that a Migu will not work when there is a Ta'anah forcing a reply. With regard to Isur, though (such as Eshes Ish or Shevuyah), Rebbi Akiva Eiger understood that a Ta'anah does not force a response, since the person making the Ta'anah (that she is an Eshes Ish or Shevuyah) is not demanding to receive something for himself from the woman, like the previous owner of the field or his son.)

Why does the Mishnah of Kiyum Shtaros (18b) not give a similar case for where witnesses upset the Migu? It should have said that if witnesses came and verified the signatures of the other 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 where the second set of witnesses come *after* the first set say that they signed under duress?

The answer is that in that 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, Daf 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 ("Iy Ba'i Shasik," Tosfos ibid., Rashi 16a DH Iy Amart). Here, though, if a person challenges the witnesses claiming 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 please -- is at stake. Since it is obvious that a Ta'anah does not upset this Migu, the Mishnah does not have to tell us 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 tells us a case where the witnesses come after the Migu!

(b) The above answers are correct only according to the way Tosfos learns the Sugya, because Tosfos says that a Ta'anah alone will not ruin a Migu. According to Rashi, a Ta'anah does ruin a Migu, so obviously the case in the Mishnah of Gerushah is not referring to a case where someone challenged her with a Ta'anah claiming that she was an Eshes Ish. If so, Rebbi Akiva Eiger's question returns -- she never said anything to prohibit herself as an Eshes Ish through Shavyei a'Nafshah; why do we need a "Peh she'Asar" to permit her to marry? She is simply saying that she is a Gerushah and permitted to remarry!

The answer might be derived from the Gemara later (23b). Rashi there explains that the reason the Mishnah gives so many examples of "Peh she'Asar" is because they are progressively larger Chidushim. Had it only said the first case, then we might have thought that in the second case (of witnesses who verify their signatures on a Shtar), we do not say "Peh she'Asar." In the first Mishnah, where he would be making himself lose the field, he clearly would not say that it is the other person's father's field unless he meant to finish and say "and now it is mine." But 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, and therefore perhaps "Peh she'Asar" does not apply in that case.

Rashi might mean as follows. The reason the Mishnah does not give a simple case where 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 in order to teach a Chidush. We 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. We might assume this based on the way that he said it. 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 tells us that he could say he never intended to change his mind, even though the wording implies differently.)

This refutes the proof we brought earlier (at the beginning of answer (a)) to Tosfos' interpretation of the Mishnah.

This, too, is 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 was divorced. There indeed seem to be *two* statements -- not like Rebbi Akiva Eiger asserts that it is all one statement and that she intended to complete her statement and say that she is divorced from the very start. The Mishnah is teaching that since she added the explanation of her first statement immediately ("Toch K'dei 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 all was indeed a single statement. This explains why "Shavyei a'Nafshah" would apply if it were not for the "Peh she'Asar." This answer's Rebbi Akiva Eiger's first question.

We can answer Rebbi Akiva Eiger's second question according to Rashi as well: 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! First, let us show how Rashi might answer the second refutation of Tosfos: Why does the Mishnah (16a) says that witnesses come and not just that the original owner has a claim (Ta'anah) that it was his father's?

The answer to this question might be that the end of the Mishnah there (when witnesses come) is not just expressing Rebbi Yehoshua's opinion, but is also saying that this Halachah is agreed upon *even by Raban Gamliel* (see Insights to 16a). That is why it says that witnesses come, rather than saying that the original owner makes a Ta'anah -- because it wants to give a case where Raban Gamliel also holds that there is no Migu (and Raban Gamliel holds that there *is* a Migu in the face of a Ta'anah). That is why the Mishnah splits it into two cases. The first case (where there is a Migu) is solely discussing the view of Rebbi Yehoshua, while the second case, where there is no Migu, is discussing an uncontested Halachah, agreed upon even by Raban Gamliel.

This answers Rebbi Akiva Eiger's question. The Mishnah does not just add that if witnesses come later, there is no Migu because it wants to show that in this case Raban Gamliel agrees that there is no Migu. Had the Mishnah just continued with the first case and added that there is no Migu when witnesses come later, we would not have known that it was 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, Reisha and Seifa, is the uncontested opinion of both Rebbi Yehoshua and Raban Gamliel. (M. Kornfeld)

22b