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Kesuvos, 27

1) A "SAFEK" THAT INVOLVES MORE THAN ONE PERSON

OPINIONS: The Mishnah states that if a city was under siege and conquered by Nochrim, all the wives of Kohanim in the city are prohibited to their husbands. In the Gemara, Rav Idi bar Avin states that if there is a place in the city where the women could hide, they are permitted to return to their husbands. Rav Yirmiyah questions what the Halachah would be when the hiding place is only large enough for one woman. Do we say that since some of the women have nowhere to hide and are prohibited to their husbands, all of them are prohibited out of doubt, or do we say that even though only one woman can hide, each woman is permitted when she comes to Beis Din by herself to ask if she is permitted to her husband, since we may assume that it was she who hid in the hiding place?

The source of such a leniency is the case of "two people and two paths," where one path is Tamei (since there is an item of Tum'ah in it), and one path is Tahor, and one person walked on each path. If each one asks Beis Din about his status (whether he is Tamei or Tahor) independently of the other, they are both Tahor. If, however, they come together and ask, they are both Tamei. If one of them asks for both of them, there is a Machlokes between Rebbi Yosi and Rebbi Yehudah whether they are Tahor or Tamei (Rebbi Yehudah says that they are both Tahor, and Rebbi Yosi says that they are both Tamei).

The logic behind this Halachah is that there is a principle that "Safek Tum'ah b'Reshus ha'Rabim Tahor" -- when there is a doubt about Tum'ah in Reshus ha'Rabim, the subject in question is Tahor. (This is a Halachah l'Moshe mi'Sinai, which is not based on a logical reason for resolving the Safek, but is a rule instructing Beis Din how to approach the Safek: as long as the case that Beis Din is addressing involves a question of Tum'ah in Reshus ha'Rabim, they rule that it is Tahor.) Since each person has a different, independent question (that is, his walk through one of the paths), Beis Din rules that each one is Tahor. Only when they both come to Beis Din and present both of their cases together do we treat this as one general case involving both persons, in which it is impossible to say that both are Tahor since one of the two is definitely Tamei.

TOSFOS in Pesachim (10a) says that when the Gemara rules that when they come together to ask about their status they are both Tamei, it means that they are Tamei only *mid'Rabanan*. Tosfos explains that the logic behind this is that even if they both come together, mid'Oraisa we view the two questions as two independent cases, since each Safek involves only one of the two people (was this path Tamei, or was the other path Tamei). Tosfos in Nidah (60a) says that the reason why the Rabanan were stringent to make them both Tamei is because it would look very odd for Beis Din to issue a self-contradictory ruling (that both are Tahor). (When they come separately, though, there is no fear for this, because there is no single verdict that involves both of them, but rather two completely separate verdicts.)

According to this logic of Tosfos, it is difficult to understand why Rebbi Yehudah holds that if one person asks on behalf of both of them, they are both Tahor, since in this case, too, the Beis Din is issuing a self-contradictory ruling that they are both Tahor! Tosfos in our Sugya (DH b'Ba) answers this question by saying that Rebbi Yehudah is referring only to where one person asked about himself, and only after he received his ruling did he ask about his friend. Since both questions were posed separately, there is reason to say that Beis Din may make both of them Tahor and it does not appear to be a single self-contradictory ruling.

(a) Tosfos understands that our Gemara concludes that the case of the woman in a besieged city where there is a hiding place for only one is equivalent to two women coming to Beis Din together to ask whether they are permitted to their husbands. Accordingly, *all* of the women should be prohibited, but since there is no certainly that *any* of them was raped, we can rule that they are permitted. Tosfos learns that the case is equivalent to two women asking at the same time, and therefore even according to Rebbi Yehudah the women should be prohibited.

(b) Rashi disagrees with Tosfos. Rashi understands that our case is equivalent to the case of *one* asking for the two of them, in which case they would all be prohibited only according to Rebbi Yosi.

It is possible to explain the Machlokes between Rashi and Tosfos concerning how to understand the Gemara in the following manner. Tosfos learns that as long as Beis Din is presented with a case that involves both parties, they may not issue a ruling that permits either one of them, since it might be inferred from that ruling that the other one is also permitted, and that would be a self-contradictory ruling (as it is impossible for both of them to be permitted). Therefore, there is no difference whether both people involved in the question at hand come together and present their Safek, or one presents the whole story on behalf of both of them. Therefore, Tosfos learns that Rebbi Yehudah is lenient only because the person did not present both of their Sfeikos at the same time. Tosfos also learns that the case of the besieged city is equivalent to both of them coming to Beis Din together.

Rashi (Pesachim 10a), on the other hand, says that Rebbi Yehudah is lenient even in a case where the person presented both of their Sfeikos together. Rashi explains that Rebbi Yehudah agrees that if both come to Beis Din together, Beis Din cannot *issue a ruling* that both are Tahor (or permitted to their husbands, in our case). When the second person did not actually come personally to ask his question, though, but his question was brought up merely as part of the first person's question, Beis Din does not have to *issue a ruling* that involves both of them, but Beis Din can simply say that the first person is Tahor, and *we can infer* that the second one is also Tahor. Based on this, we can understand that in the case of the besieged city, when not all of the women come to Beis Din together, only Rebbi Yosi says that all of the women are prohibited to their husbands.

The Gemara in Pesachim (10a) discusses a case in which a mouse took Chametz into one of two houses, and it is not known which of the house now needs another Bedikas Chametz. The Gemara there says that this case is the same as the case of "two paths." The TUR derives from this comparison that if the owners of both houses come to the Rav together and ask if they are required to search their houses for the Chametz, they both must perform another Bedikah, but if they come to the Rav separately, then *neither* one has to perform another Bedikah. The RAMBAM does not differentiate between when they come together and when they come separately, a view which the Tur questions from the Gemara in Pesachim that equates this case with the case of "two paths." The MISHNAH L'MELECH answers that the Rambam's opinion is based on our Gemara in Kesuvos, that since it is not certain that any of the women were actually raped, they are all permitted to their husbands even though they come together to Beis Din. Likewise, in the case of the mouse, it is possible that the mouse ate the Chametz, and thus neither house has any Chametz in it.

According to Tosfos in our Sugya, who says that whenever Beis Din is asked a Safek that involves both persons, both Rebbi Yosi and Rebbi Yehudah agree that Beis Din must rule stringently for both persons -- in the case of the mouse, the Halachah should be that even if only one of the homeowners comes to ask the question, he is required to perform another Bedikah. This is in contrast to the Tur who differentiates between a case where they come to ask together and where they come separately. It seems that the Tur is following the approach of Rashi in our Sugya.

27b

QUESTION: The Mishnah (27a) states that if a woman was captured, even a slave or maidservant is believed to testify that she was not defiled, and she is permitted to marry a Kohen. The Gemara here infers from the Mishnah that even her own maidservant is believed to testify to her benefit. The Gemara challenges this from a Mishnah (Gitin 73a) that states that a divorced woman "may not seclude herself (Yichud) with her former husband unless there are witnesses present, even a slave or a maidservant, *except for her own maidservant*." We see from there that her own maidservant would *not* be believed to testify about her.

What is the Gemara's question from the Mishnah in Gitin? The reason her own maidservant is not trusted is because a woman is not embarrassed to sin in front of her own maidservant. It is *not* because her maidservant has no trustworthiness. Why, then, does the Gemara assume that since Yichud in her maidservant's presence is prohibited, her maidservant will not be believed to testify that her owner was not defiled? One has nothing to do with the other! (RASHBA)

ANSWERS:

(a) The RASHBA answers that if there is a chance that the maidservant would reveal to others what her owner did, then there would be no Isur of Yichud when she is present, since her owner would be afraid that her maidservant will tell others what happened in private. Since the Mishnah in Gitin states that there *is* an Isur of Yichud in her presence, it must be that the maidservant would never reveal that her owner did anything wrong, even when questioned in court. For this reason, the Gemara assumes that the maidservant would not be believed to say that her own was not defiled, since she would never admit it if something really did happen.

Rav Ashi's answer in the Gemara is also in agreement with this premise. Although he says that the maidservant will not reveal what happened, she would only be silent, but she would not actively *lie* and say that nothing happened if something did happen to her owner.

(b) Perhaps we may suggest another approach. The Gemara understands that if there is no Isur of Yichud in the presence of her maidservant, then it must be that the maidservant is viewed not as a separate entity, but as part of her owner, as the Gemara itself suggests in Rav Papa's answer, "her maidservant is like her." As such, it makes sense that she may not testify for her owner, since the Mishnah (27a) says that "a person is not believed [to testify] about himself!" (See Insights below, #4, for a similar discussion regarding a woman's husband.) When Rav Papa answers that the Mishnah agrees that her maidservant is not believed, he is learning that the Mishnah agrees that her maidservant is a "part" of herself and thus she may not testify for "herself." (Indeed, the SHITAH MEKUBETZES cites the SHITAH YESHANAH that says that this is the Gemara's intention when it says that "her maid is like herself.")

Further support for this approach is found in the RAMBAM. The Rambam (Hilchos Isurei Bi'ah 18:19) writes that a husband is not believed to testify for his wife since "one may not testify for himself, and so, too, her maidservant may not testify for her." The words of the Rambam imply that the reason the maidservant is not believed is because she is considered to be part of her owner.

QUESTION: We find in various places that the Rabanan were lenient with regard to a Shevuyah (for example, even a minor and a woman's servants are believed to testify that she was not defiled by her captors). What is the reason for this leniency? ANSWERS:

(a) TOSFOS (36b, DH v'Elu) writes that mid'Oraisa, she does not have a "Chezkas Be'ulah" -- we do *not* assume that she was defiled. The Isur of a Shevuyah to a Kohen is mid'Rabanan, and therefore the Rabanan were lenient when applying their laws in the case of a Shevuyah. This is also the intention of Tosfos (27b, DH b'Mesichah, according to the Girsa of Mahari Landau in the margin of the Gemara, and Tosfos in Kidushin 12b, DH Im) when he says that the Rabanan were lenient and permitted relying on testimony of a person who is "Mesi'ach l'Fi Tumo" since the Isur of Shevuyah is mid'Rabanan.

(The NODA B'YEHUDAH, Mahadura Kama, Even ha'Ezer 66, learns that although a Shevuyah does *not* have a Chezkas Kashrus, because Ovdei Kochavim are steeped in immorality (13b), the Rabanan were lenient with a Shevuyah because of the logic that a woman makes herself disgusting so that they will not be attracted to her ("Menavlah Nafshah"), as the Gemara says in Kidushin (13b). The Rambam, quoted below (b), also treats her situation as a Safek, without a Chezkas Kashrus. However the MAHARSHA in Bava Kama 114b writes that the Chezkas Kashrus alone allows us to be lenient in the case of Shevuyah.)

Tosfos (36b) questions this approach. If, mid'Oraisa, the Shevuyah is assumed to be a Besulah, then why does a man who rapes her not have to pay a Kenas? Tosfos answers that mid'Rabanan we treat her like a Be'ulah in *all* respects, so that she will not think that she may marry a Kohen. Likewise, this explains why she does not receive the Kesuvah of a Besulah; the Rabanan enacted that she has the status of a Be'ulah with regard to all Halachos, so that she will not come to marry a Kohen.

(The SHA'AR HA'MELECH (Hilchos Isurei Bi'ah 18:24) cites RASHI in Bava Kama (114b) who seems to disagree with Tosfos and maintain that the Safek of the status of a Shevuyah is a Safek mid'Oraisa. However, Rashi there is explaining the Hava Amina of the Gemara. It seems from his explanation of the Maskanah there that the Gemara retracts this and maintains that a Shevuyah is indeed only a Safek d'Rabanan, see Maharsha there.)

(b) The RAMBAM (Hilchos Isurei Bi'ah 18:17) writes that the reason we are lenient in the case of a Shevuyah is because the Isur created by a Safek is only mid'Rabanan. The Rambam seems to learn that the Safek whether or not she was defiled is even a Safek *d'Oraisa*, but that the principle that Safek d'Oraisa is deemed to be Asur is only *mid'Rabanan*. The Rambam is thus following his well-known view (Hilchos Avos ha'Tum'os 16:1, Hilchos Kil'ayim 10:27, Hilchos Tum'as Mes 9:12) that all Sfeikos d'Oraisa are only Asur mid'Rabanan.

According to the Rambam, we can understand why she is treated like a Safek Be'ulah even with regard to monetary matters, and she does not receive a Kenas if she is raped, nor does she receive the Kesuvah of a Be'ulah.

OPINIONS: The Mishnah says that Rebbi Zecharyah ben ha'Katzav testified that his wife was not defiled by Nochrim during their siege on Yerushalayim. The Chachamim did not accept his testimony, saying that "a person may not testify about himself." In this case, Rebbi Zecharyah was not the subject of the testimony, so why was he not believed?

There are two basic approaches for understanding why a man in such a situation is not believed. The first possibility is that the testimony of the woman or the testimony of her husband is not accepted simply because we are concerned that each one might lie in order to prevent becoming prohibited to each other (that is, the husband is "Noge'a b'Davar"). According to this approach, the Mishnah says that the husband may not testify for his wife because he stands to benefit from the testimony and therefore he might be lying.

The second possibility is that even if in a case where the husband is *not* Noge'a b'Davar, he is still not able to testify about his wife. T here is a rule that testimony must come from an external witness, an outside party, and not from the actual subject of the testimony (the "Ba'al Davar"). When the Mishnah says that a husband is not believed because one may not testify for himself, it might mean that he is not believed since the husband and wife are considered to be one unit ("Ishto k'Gufo"). Hence, the Mishnah means that his testimony about his wife is considered testimony for himself, since he and his wife are one (and the husband is the "Ba'al Davar").

This issue seems to be the subject of a dispute among the Rishonim.

(a) The RASHBA here and the MAGID MISHNAH (Hilchos Isurei Bi'ah 18:19) say that the husband and the wife are not believed even if they are "Mesi'ach l'Fi Tumo" (they randomly mentioned what happened in a casual conversation, and not as testimony in court). The reason is because we must suspect that they are attempting to trick us and they are just pretending to be "Mesi'ach l'Fi Tumo" in order for us to believe them. (The Rashba explains that although a person is believed when he says that he is a Kohen while talking "Mesi'ach l'Fi Tumo" (see 25b), we are particularly concerned that a Shevuyah might be lying since she was originally permitted to marry a Kohen and now we are prohibiting her.) They do not mention the added possibility that the husband and his wife are considered to be a single entity.

(b) The SHITAH MEKUBETZES says that "Ishto k'Gufo," the husband and wife are considered a single entity, and therefore he is not believed just like she is not believed to testify about herself.

Our Mishnah states that Rebbi Zecharyah ben ha'Katzav was not believed to testify that his wife was not defiled. REBBI AKIVA EIGER in his commentary on the Mishnah points out that Rashi on the Mishnah does not mention that Rebbi Zecharyah was a Kohen, while only later in the Gemara Rashi mentions that Rebbi Zecharyah was a Kohen! Rebbi Akiva Eiger explains that from the Mishnah there is no proof that he was a Kohen, because the Mishnah might simply be teaching that a husband is not believed to testify about his wife, since she is considered part of him, "Ishto k'Gufo." Even though his testimony is not relevant to himself, since even if she was defiled she would be permitted to live with him (if he is not a Kohen), he is not believed because he is the "Ba'al Davar," as he and his wife are one. (His testimony is relevant in case he dies and she wants to marry a Kohen.) Hence, there is no proof from the Mishnah that Rebbi Zecharyah was a Kohen, since the Halachah of the Mishnah is perfectly clear even if the husband is not a Kohen. Only later, when the Gemara discussed that the Chachamim prohibited his wife from living with him, does Rashi need to explain that he was a Kohen!

According to the explanation of the Rashba, who says that the husband's testimony is not accepted because of the concern that he is lying in order to permit his wife to live with him, it is possible to suggest that a woman's husband who is *not* a Kohen *would* be believed, since he has nothing to gain by lying (see HAGAHOS REBBI AKIVA EIGER to Even ha'Ezer 7:2). It seems that Rashi does not agree with the Rashba's explanation, and he holds that the husband is not believed because of "Ishto k'Gufo."