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Yevamos, 122

1) FRUITS THAT WERE GUARDED DURING THE SHEMITAH YEAR

QUESTION: The Gemara cites a Beraisa that says that if a Nochri in the market sells fruits during the Shemitah year saying that they are "Peros Azeikah," he is not believed to make the fruits prohibited. We assume that he is just trying to impress potential buyers with the quality of his fruit, and it is likely that he is lying.

RASHI cites an explanation that "Azeikah" refers to a field that is guarded with a fence during Shemitah, and therefore such fruits are Asur. Rashi rejects this explanation, though, saying that guarding fruits during the Shemitah year does not make them Asur.

However, the Toras Kohanim teaches that when the verse says, "Invei Nezirecha Lo Sivtzor" -- "do not harvest the grapes that you guarded" (Vayikra 25:5), the verse means that one is permitted to harvest only fruit that is Hefker, ownerless. This implies that fruit that *was* guarded during Shemitah is Asur! How are we to understand this teaching of the Toras Kohanim?

ANSWERS:

(a) RASHI here learns that there is no prohibition to eat fruit that was guarded during Shemitah. Apparently, Rashi holds that the Toras Kohanim is not telling us that the fruit becomes prohibited if it is guarded. Rather, it is teaching that one is not allowed to guard the fruit, but one must leave it as Hefker. One is permitted to eat the fruit, though, whether he guarded it or left it as Hefker.

(b) TOSFOS in the name of RABEINU TAM writes that fruit that is guarded during Shemitah is indeed prohibited to be eaten. This is based on the straightforward understanding of the Toras Kohanim.

(c) TOSFOS in Menachos (84a, DH Shomrei) explains that the verse prohibits *harvesting* fruit that has been guarded. *Eating* such fruit, though, is permitted. (Rashi might have understood the Toras Kohanim this way as well.)

However, Tosfos adds, the Rabanan enacted an additional Isur and prohibited harvesting fruit (in the normal manner of harvesting) during Shemitah even when it is Hefker, and they prohibited *eating* fruit that was *guarded* during Shemitah. (See also Tosfos in Sukah 39b, DH ba'Meh.)

122b

QUESTION: The Gemara cites a Beraisa in which the Tana Kama holds that the witness who testifies about the death of a woman's husband does not need to be interrogated with Derishah v'Chakirah. Rebbi Tarfon argues and says that the witness is required to be interrogated.

The Gemara explains that the logic of the Machlokes is as follows. We know that Dinei Nefashos (cases involving capital punishment) require Derishah v'Chakirah mid'Oraisa. In court cases of Dinei Mamonos (cases involving financial matters), even though the Torah also requires Derishah v'Chakirah for such cases the Rabanan removed that requirement in order for people to be more willing to lend money to those in need ("she'Lo Tin'ol Deles Bifnei Lovin"). When the Tana'im argue whether a witness who testifies about the death of a woman's husband needs Derishah v'Chakirah, they are arguing whether permitting a woman to remarry is comparable to Dinei Mamonos, since it involves giving the woman the money of her Kesuvah, or whether it is comparable to Dinei Nefashos, since a woman who lives with another man while her husband is still alive is Chayav Misah.

Why should testimony about a woman's husband (Edus Ishah) be comparable to Dinei Mamonos just because of the Kesuvah? The primary subject of the case is whether the woman may remarry or not; the Kesuvah is simply a secondary consequence of the outcome of the case! Why should the secondary consequence change the case into a case of Dinei Mamonos?

ANSWERS: This question is addressed by the Rishonim on our Sugya:

(a) The RAMBAN answers that when the Rabanan enacted the leniency that Dinei Mamonos do not need Derishah v'Chakirah, they also wanted to be lenient with regard to a woman's Kesuvah (which is also Dinei Mamonos). In order to be lenient with regard to the Kesuvah, the Rabanan had to enact that we be lenient with regard to the matter of the marriage as well, because the Kesuvah stipulates that "*when she gets married to someone else*, she will receive her Kesuvah." Hence, we are able to give her the Kesuvah only if we permit her to get married. That is why the Rabanan permit her to get married without Derishah v'Chakirah.

(Even though the reason they were lenient in all other Dinei Mamonos was because of "she'Lo Tin'ol Deles Bifnei Lovin," which does not apply in the case of a Kesuvah, the Rabanan still wanted to be lenient with the Kesuvah in order not to differentiate between monetary laws ("Lo Plug"), or because of "Chen" -- to help ensure that the woman will be dedicated to her husbanded, knowing that it is easy for her to get her Kesuvah.)

(b) The RAMBAN suggests a second explanation. He says that on one hand, Edus Ishah is not exactly like Dinei Nefashos, because the case involves whether or not the woman may remarry, and not whether she is to be punished. On the other hand, Edus Ishah is not exactly like Dinei Mamonos either, because the subject of the testimony is the marriage, and not the Kesuvah. Therefore, the question is to which type of case is Edus Ishah more similar?

Those who say that Edus Ishah does not need Derishah v'Chakirah maintain that since today Dinei Mamonos are much more common than Dinei Nefashos (as Beis Din does not rule on cases of Dinei Nefashos today), it is logical to assume that the Rabanan said that we should treat Edus Ishah like Dinei Mamonos, the more common type of court case (not just because of the Kesuvah, but because we have to compare it to one of the two types of cases, so we compare it to the more common type of case).

(c) The RITVA in the name of the RE'AH writes that *mid'Oraisa* Edus Ishah does not need Derishah v'Chakirah. This is because the verse mentions the requirement for Derishah v'Chakirah only with regard to Dinei Nefashos and Dinei Mamonos, but not with regard to Edus Ishah. (The Gezeirah Shavah of "Davar, Davar" (from Dinei Mamonos) does not apply to Edus Ishah to teach that it needs Derishah v'Chakirah.)

Why, then, should anyone say that Edus Ishah requires Derishah v'Chakirah? The Re'ah explains that the reason Edus Ishah should require Derishah v'Chakirah is because mid'Oraisa the testimony for the *Kesuvah* really needs Derishah v'Chakirah (since it is Dinei Mamonos), and the only reason it does not need Derishah v'Chakirah is because the Rabanan enacted that other Dinei Mamonos do not need Derishah v'Chakirah (because of "she'Lo Tin'ol Deles..."). Therefore, they also applied that enactment, as a "Lo Plug," to the Kesuvah. However, since this reason (for exempting the testimony with regard to the Kesuvah from Derishah v'Chakirah) has a weak basis, the Rabanan take advantage of any reason *to require* Derishah v'Chakirah for the Kesuvah. Therefore, the Rabanan instituted Derishah v'Chakirah for Edus Ishah because of its similarity to Dinei Nefashos, in order that the testimony -- as it affects the Kesuvah -- have Derishah v'Chakirah.

It seems that the Re'ah is following his opinion elsewhere. On 88a (see Insights there), the Re'ah (cited by the Ritva) comes up with the novel suggestion that a single witness is believed *mid'Oraisa* to testify about the death of a woman's husband. The reason he is believed mid'Oraisa is because if the witness is lying, his lie will become known sooner or later through the return of the husband ("Milsa d'Avida l'Giluyei"). This supplies sufficient grounds to assume that the witness is not lying, and he is believed mid'Oraisa.

It seems that the Re'ah holds that a Rabbinic enactment is not sufficient reason to allow us to accept the testimony of Edus Ishah, which involves Isurim d'Oraisa. Therefore, the requirement for Derishah v'Chakirah *cannot* be d'Oraisa for Edus Ishah, because if it was required mid'Oraisa, then the Rabanan would not be able to be lenient and remove that requirement. (The logic of "Milsa d'Avida l'Giluyei" is obviously not enough to exempt Edus Ishah from the requirement of Derishah v'Chakirah, since the Gemara does not mention that possibility here.)

(d) The RASHBA understands from the words of the RAMBAM (Hilchos Gerushin 13:28) that the Rambam has another answer to this question.

The Rambam writes that the reason Edus Ishah does not need Derishah v'Chakirah is because the Rabanan were lenient due to their concern that women do not become Agunos ("Hataras Agunah"). How can the Rambam give a different reason than the reason the Gemara gives? The Gemara says that the reason Edus Ishah does not need Derishah v'Chakirah is because it is considered Dinei Mamonos, since it involves the Kesuvah!

The Rambam must mean that the Kesuvah does not make Edus Ishah into a case of Dinei Mamonos. Rather, Edus Ishah is clearly Dinei Nefashos, since the Beis Din is permitting an Eshes Ish to remarry. However, out of concern for Agunos, the Rabanan instituted that since the Kesuvah introduces an element of Dinei Mamonos into Edus Ishah, we may treat the entire case like Dinei Mamonos, foregoing Derishah v'Chakirah. (Others explain the Rambam differently; see footnote #109 to the Rashba.)