Siman 152

The law when the husband or she says that she was divorced, or when witnesses contradict one another. And it contains 22 seifim: A husband who said, "I divorced my wife," is not believed to establish her status as a divorcee even from this point forward—neither regarding the matter of her marrying another, nor that if he dies without children she would be permitted to the market. Nevertheless, as a stringency, we are concerned for his words, such that if he dies, she performs chalitzah and does not undergo yibbum. Thus ruled all the poskim, and so it is in the Shas (Bava Batra 135a). And it appears that she is also forbidden to the priesthood, and similarly if he is a kohen she is forbidden to him. And similarly, even if he is a Yisrael, they are forbidden to be in seclusion, for as a stringency we believe him that she was divorced, and it is forbidden for him to be in seclusion with an unmarried woman. Therefore, we say to him: do one of these two things—either give her a get now in our presence and she may marry another, or betroth her anew and you shall dwell together. And in all of this there is no difference whether she admits to his words or whether she contradicts him, because of the reason that will be explained with the help of Heaven.

For according to the essential law, as is explained in the Shas there (134b), it should have been thus: that if he says "I have divorced her now," he should be believed even to allow her to marry anyone, for he has a migo that if he wanted, he could divorce her now. Consequently, for this reason, even if she contradicts him, it is nothing, for her consent is not required for a get, rather she has merely placed a prohibition upon herself. And even in this time, when there is the enactment of Rabbeinu Gershom, nevertheless if he divorced her, she is divorced. But if he said "I already divorced her," according to the essential law he should not be believed; and it is not only regarding the matter that she may not marry another, but even if witnesses came that she committed adultery, she would be put to death in the time of the Temple. For regarding the past time he has no migo, as it is not in his power to make her divorced from then, and we do not say that since he could have divorced her previously [he is believed], for we do not say a migo retroactively. Consequently, even if she admits to his words, we do not concern ourselves with it, for since she was established as a married woman, it is impossible for them to remove her from this status except with witnesses or clear proof.

And if he said, "I divorced her previously," whether he is believed regarding the future depends on the dispute of whether we split the speech regarding a single entity—that we should believe his words in half and in the other half not believe him. This means that he says regarding this woman that she has been divorced for some time, and we believe him regarding her from now and into the future to establish her status as divorced, but for the past as a married woman; or do we not split the speech regarding a single entity? For regarding two entities, we hold that we do split, such as one who testifies, "So-and-so had relations with my wife," he is a valid witness regarding the person but not regarding his wife (Sanhedrin 10a). But regarding a single entity, there is a doubt whether we split or not; thus it is in the Gemara there. And even though we find in the Gemara that even regarding a single entity we hold that we split the speech, in the case of a person facing death who wrote all his property to his slave, and the law is regarding a person facing death that if he recovers he may retract his gift, and in writing to his slave and recovering he retracts regarding the property but does not retract regarding the slave (Gittin 9a), and we split his speech of the gift (as Rashi explained there) regarding the entity of the slave so that it is upheld in him but not in the property—nevertheless, it is not comparable to this. First, because even there they are like two entities, the slave and the property; and furthermore, because there it is necessary to say so because the reputation of a free man has gone out upon him and it is impossible to return him to being a slave, see there. And there is in the Gemara (Bava Batra ibid.) a dispute whether we split the speech in a single entity or we do not split; thus it is from the essential law as it should be in the halacha.

But in practice, they ruled in the Gemara there that one must be concerned for the stringency, and he is not believed to permit her to the market even when saying "I divorced her now." The reason is that even though he has a migo, as I have written, nevertheless there is a contradiction to this migo, for if it were true that he divorced her, the matter would have a rumor (Rashbam and Tosafot ibid.), and it is like a migo in the place of witnesses (ibid.). Nevertheless, this is not exactly like a migo in the place of witnesses, for people are prone to divorce in private (Ketubot 23a). Even so, there is a bit of a contradiction to this migo, for many times the way is to divorce in public (ibid.) in order to publicize that she is a divorcee. This is what our sages, of blessed memory, said (Arachin 23a): "Does everyone who divorces, divorce in a beit din?"—meaning that in most instances they divorce in a beit din in order to publicize the get, yet there are those who are ashamed of the publicity and do not divorce in the house of the beit din but rather in private and in their home. Consequently, for the practical halacha, whether he said "I divorced her now" or whether he said "I divorced her some time ago," one must follow the stringency in every respect; and if he dies, she performs chalitzah and does not undergo yibbum. And even when he says "I divorced her already," for perhaps we split the statement and he is believed regarding the future. There is no difference whether she admits it or not, as has been explained.

And the matter is simple: if she married another in his lifetime before he released her with a get, after they remove her from the second, she requires a get from this one and from that one and is forbidden to both of them, and all thirteen ways apply to her. Yet it is possible that we are not stringent regarding her with the thirteen ways, for behold, both of them cry out that she is divorced and we have no clear matter to contradict them, and so it appears. However, if he is a kohen, it is certain that she is forbidden to him as I wrote in section 1 (and in the Be'er Sheva, subsection 2, there is a printer's error as the Turei Zahav and the Be'er Mayim wrote). And there is no difference in all this even when they say she was divorced in another city, for nevertheless, in most cases there would have been a rumor of this. And all this is when she was established as his wife; but without this, they are believed in every case, for "the mouth that forbade is the mouth that permitted." And the matter is simple: if she committed adultery afterward and gave birth to a child, since she was established as a married woman and we ruled that they are not believed, the child is a doubtful mamzer (Beit Shmuel there).

And know that in the language of the Rambam regarding this matter there are things that require explanation. This is his wording in chapter 12, law 5: If the husband said, "I divorced my wife," he is not believed, but we are concerned for his words and she is a doubtful divorcee. Even if she admitted to him that he divorced her, perhaps he intended to ruin her, or he divorced her with a void get and she does not know, or perhaps she will be emboldened since he supports her (so it is in the Tur). Therefore, we say to him, "If the matter is true, you are both here; divorce her now before us." Thus far his words. And it appears to me that it was difficult for him: what did the sages see to be stringent in this matter, for he has a migo as we have written? And that which we wrote, that if he had divorced her it would have a rumor, he does not hold of this, for the sages, of blessed memory, explicitly said that people are prone to divorce in private. And even though we settled the matters in section 4, he holds that it is a forced explanation. And it appears to me that he holds that the reason for the stringency is like that which we maintain in Yoreh Deah siman 1, that anywhere it is possible to clarify, we clarify and do not rely on a chazakah. And here too, since there is a remedy that he may divorce her before us, we do not rely on a migo. And therefore, even if she admits to his words—and we maintain that a woman who said to her husband, "You divorced me," is believed even if he denies her, and certainly when he admits—to this he says that on the contrary, it is even worse, for perhaps he divorced her with an invalid get, or perhaps he intended to ruin her, or since he assists her she is emboldened. That is to say, the reason she is believed is because of the chazakah that she is not emboldened, as written at the beginning of siman 17, and this is only when he denies her and not when he also says so. And in this law, when she says to him, "You divorced me," and he denies her, the Rambam holds that she is believed in every case, as he wrote there previously, and we do not say "if it were that she was divorced, it would have a rumor," which proves that the reason of a rumor is nothing. And regarding the law, it was explained in siman 17 at length with the help of Heaven, see there. (And the phrasing "doubtful divorcee" is difficult according to what I wrote, and one must say that he holds that they themselves are not believed to remove her from the chazakah of a married woman, and it requires further study).

In siman 17, section 86, it was explained that when there is a contradiction regarding his death—where two say he died and two say he did not die, and she also says he died—she may not marry, and if she married another, she must leave and is liable for an asham talui or a chatat. However, if she married one of her witnesses who says he died, she does not leave. And there in section 87 and 88, we explained the reason for the matter; see there. But regarding a get it is not so, for when two say she was divorced and two say she was not divorced, and she also says she was divorced, the sages of blessed memory said (Ketubot 22b) she must always leave, even if she married one of her witnesses who says she was divorced.

And two reasons were stated regarding this in the Gemara ibid., why the law of a get is different from death. One reason is that regarding divorce, she is capable of contradicting him even when the husband comes and says "I did not divorce you," but regarding death, she cannot contradict him. And it means to say: regarding death, we consider her "certainty" when she says "my husband died" as a definite certainty, and therefore its law is like a case of "uncertain chelev, uncertain fat" when one says "it is certain to me that it is fat," as is written there. But regarding divorce, her "certainty" is nothing, and we say that even now she does not know clearly, and this that she says "I was divorced" is because she imagines it will not be revealed that he happened to come; and even if he comes and says "I did not divorce you," she will contradict him to his face. And even though a woman does not embolden her face before her husband, and for this reason she is believed to say "you divorced me" even if he contradicts her, that is when there are no witnesses who support her; but when there are witnesses who support her, she emboldens and emboldens. Therefore, her law reverts to being like "uncertain chelev, uncertain fat," and she is liable for an asham talui. And according to this reason, if she married she must leave, even if they say she was already divorced previously:

And the second reason is that certainly when they say she was divorced long ago, if she married one of her witnesses she does not leave, as in the case of death. However, that which we said, "she shall leave," is for instance when they say she was recently divorced, and we say to her: if so, show your get; and since you did not bring the get before us, we understand from this that it is a lie. But when they say she was divorced long ago, it can be said that she lost the get, whereas in a recent time it is not common that she would lose it, and it is evident that they are lying. And the Rif ruled according to this reason, see there. And even though where there is no contradiction from witnesses we are not concerned for her when she says "I lost my get," even when the witnesses say she was recently divorced, certainly this is so. But when two contradict and say she was not divorced, and the permission is that she does not leave when married to one of her witnesses, for this is like a doubt of chelev or a doubt of fat when one says "it is clear to me that it is fat," and therefore when there is some proof that it is not fat, we do not allow him to eat it; whereas when it is certainly fat, we are not concerned for this and we say that there is some error in the proof, and here too it is similar.

Through this, the words of our teacher, the Beit Yosef, in section 3 will be clarified. This is his wording: If two say she was divorced and two say she was not divorced, even if the husband is standing there and she says to him, "You divorced me," she remains in the status of a complete eshet ish because the witnesses support her and it is possible she would be brazen. Therefore, if she married, she must leave and the offspring is a mamzer. In what case does this apply? When they say she was divorced just now, for we say to her, "If the matter is true, produce your get." But if the witnesses said she was divorced many days ago, it can be said the get was lost; and since she says, "I am certainly divorced," and two witnesses testify for her, even though the two contradict her, if she married one of her witnesses she does not leave, for she and her husband know for certain that she is permitted, and there is a presumption that they do not ruin themselves. But if she married another, since the matter is a doubt to him, and likewise if she said, "I do not know," she must leave and the offspring is a doubtful mamzer. But in any case where there is no contradiction, but rather they say she was divorced just now and we say to her, "Show us your get," and she said it was lost or torn, we do not concern ourselves with her. Thus far his words.

If there is no absolute contradiction between the witnesses, but rather two say "we saw that this woman was divorced" and two say "we did not see," if they were not all in one courtyard, we do not concern ourselves at all with those who say "we did not see," and they are not considered as contradicting, and she may marry even ab initio; for would the entire city hear of the get? However, when they all dwell in one courtyard, it is a wonderous thing when they have not heard of the get. Nevertheless, they are not considered entirely as contradicting, because there are people whose way is to divorce in private due to shame. Therefore, ab initio she should not marry until she receives another get, but if she married, she shall not leave, and the offspring is kosher. And even if she has no children, she shall not leave. And even according to the system of Rashi and the Ran that we wrote, that divorce has a rumor, nevertheless, regarding the contradiction of witnesses we do not concern ourselves with it, and we say that she was divorced in private (Beit Shmuel, subsection 7), for even according to their system it is not a general rule that there is a rumor for divorce, as I wrote in section 4; see there.

And there are some among the Rishonim who raised a difficulty: that if so, why specifically [is it the case that] where they did not see that she was divorced she shall not leave? For even if they say clearly that she was not divorced, if she married she shall not leave, as has been written. And they answered that there it is specifically when she married one of her witnesses, but here even if she married another she shall not leave. And furthermore, that there it is specifically when the witnesses who testify that she was divorced say that she had already been divorced, and not when he divorced her now, as has been written; but here, even if they say that he divorced her now, she shall not leave (Shitah Mekubetzet, Ketubot 23a, in the name of the Ramban, of blessed memory). And there is one who says further that here, even if she does not say "it is certain to me that I was divorced," she shall not leave (ibid. in the name of the Ra'ah). And it requires further study, for it appears from logic that since there is a flaw before us, in that these [witnesses] did not know of the get, and she also does not know with certainty, why should she not leave? And it is possible that this is not a flaw at all, for the fact that she should not marry ab initio is only because of "evil talk," as Rashi explained, and therefore if she married she shall not leave (and according to this, it is possible that even if she did not marry and it is impossible to obtain another get, she may marry ab initio since this is only because of "evil talk"; however, from the fact that the Rishonim did not answer thus, it implies that they hold that in any event she shall not marry, and one must deliberate on this, and examine it closely).

Our teacher, the Rema, wrote in section 4 that there are those who say that if they said they were all in one standing and two say "we did not see," it is a contradiction, for such a matter is not done in private. Thus far his words. And we hold accordingly in Choshen Mishpat at the end of siman 29, and from there it was explained that this is specifically when they say "their hands did not move from ours," see there (in the Sma, subsection 12). And it is possible that regarding a get, even without such a case, it is a contradiction; for specifically regarding a loan and the like, which is performed in a brief moment, we require such a case, but regarding a get, where the writing and the arrangement involve a duration of time, it is a contradiction even without such a case. Furthermore, it is explained from there and from siman 30 that if the contradiction was in such a manner that the two who say "we saw that she was divorced" say that these two were also with them, and these others contradict them, it is not called a contradiction, for a witness does not precisely note who was with him at the time of the testimony, and it can be said that it appeared so to them (and it is difficult to distinguish between one and two). And there is room to doubt if these two who testify that she was divorced say that they were not all in one standing, and these others say that they were in one standing, whether it is called a contradiction or not. And it appears that it is a contradiction, and it requires further study (see Shevuot 41b and in Choshen Mishpat siman 70, section 2).

The Rambam, of blessed memory, wrote (ibid.): A woman who was not established as a married woman, and one witness came and said she was a married woman and was divorced, and one witness came and said she was not divorced, behold both of them testify that she is a married woman and one testifies that she is a divorcee, and the words of one do not stand in the place of two; therefore, she shall not marry, and if she married, she must leave. Thus far his words. And even if she also says that she was divorced (Lechem Mishneh). And even though regarding a witness who says he died and afterwards one came and said he did not die, we do not rule accordingly, as I wrote in siman 17, this is because regarding an agunah they were lenient, such that one witness is considered as two, and the words of one do not stand in the place of two, as I wrote there; which is not the case regarding divorce. And similarly, it is not comparable to one witness saying she was betrothed and one witness saying she was not betrothed, where we rule in siman 47 that she does not leave, for there both of them testify regarding a single woman and the words of one do not stand in the place of two, but here both of them testify regarding a married woman (Gemara).

The Tur wrote: if one says she was divorced and one says she was not divorced, she shall not marry; and if she married, if she was under the presumption of being a married woman, she must leave in any case. And if she was not under the presumption of being a married woman except by their word, if there is a contradiction in their testimony—such as one saying she was divorced and one saying there was never a doubt of divorce—she may marry ab initio. And if there is no contradiction in their testimony—such as if he threw her a get and one says it was closer to him and one says it was closer to her—if she married, she must leave. Thus far his words. And so wrote the Shulchan Aruch in section 5. And the reason is that since they contradict one another, it is impossible to join their testimony, and one of them is disqualified, and consequently she remains under the presumption of being unmarried; therefore, she may marry ab initio. But regarding "closer to him" or "closer to her," this is not a contradiction, for people are prone to err in this, and consequently she is established as a married woman by their word; therefore, one witness is not believed to remove her from the presumption of the prohibition of a married woman (Ran). And that which they wrote at the beginning of their words, "she shall not marry," is a routine phrasing because in the Shas the language is such, see there; but in truth, there is no law here at all that she shall not marry ab initio, for where she was established as a married woman, or by their word when there is no contradiction between them, behold, even if she married she must leave, and where she was not established, she may marry ab initio. And in the language of the Shas it is well-settled: "she shall not marry, and if she married she must leave," meaning we warn her that she should not marry, and if she transgressed and married, she must leave.

And from the wording of the Rambam, of blessed memory, which we brought, it is proven that in any case she must leave, for he did not distinguish according to the distinction of the Tur (and see Beit Shmuel subsection 9). And we could say that it deals with a case where she herself said, "I was a married woman and I was divorced," for she made herself a forbidden object upon herself, and she is not believed through the reasoning of "the mouth that forbade is the mouth that permitted" since there are witnesses; and consequently, she is forbidden based on herself, and one witness does not have the power to remove her from her prohibition (so wrote the Ra'ah there). However, even this he should have clarified. But in truth, there are some among the early authorities who said that there is no law here of contradicted testimony, for there are two witnesses who testify that she is a married woman, and in this they do not contradict one another; and furthermore, one testifies regarding the divorce and one contradicts him, and the testimony regarding the marriage stands. And that which they do not join with one another, this is regarding the future and not regarding the past, and here the testimony regarding the marriage is as if it preceded the contradiction of the divorce (Shitah Mekubetzet ibid. in the name of the Rashba and his students, see there).

The sages taught in the Mishnah (Ketubot 22a): A woman who said, "I was a married woman and I am divorced," is believed, for the mouth that forbade is the mouth that permitted. But if there are witnesses that she was a married woman, and she says, "I am divorced," she is not believed. And some say that this belief in the absence of witnesses is specifically when she said "I am divorced" within the time of a speech (toch k'dei dibur), but after the time of a speech she is not believed unless she provides a justification (amatla) for why she did not say it immediately (the Ri in the Tur). And their reasoning is that this is like retracting her words and requires an amatla (the Maggid Mishneh at the beginning of chapter 12). And some say that certainly when she says, "I am a married woman and I am divorced," in this case it must be immediate, but when she says it after a time she needs an amatla; however, when she says, "I was a married woman," which does not imply at all that she is now a married woman, she is believed even after a time to say "I am divorced" even without an amatla (ibid.). And some say that we do not require within the time of a speech, but nevertheless we require that she say "I am divorced" while they are occupied with that same matter (the Ramah in the Tur). And the opinion of the Tur appears like the opinion of the previous "some say," see there. And our teacher, the Beit Yosef, in section 6 mentioned only the first "some say," see there (and perhaps it was difficult for him regarding the second "some say" which divides between "I was" and "I am," for let it divide and teach within its own case; and see the Maggid Mishneh and Beit Shmuel who left it in difficulty, and delve into this).

And when there are witnesses, she is not believed; even if she married, she must leave. And even if she married before the witnesses arrived and testified that she is an eshet ish, she must leave. And one should not ask: Is this not "ways of pleasantness," that first we permit her to marry and afterwards we remove her from her husband? For it can be said that certainly, even beforehand, we warn her: "Know that perhaps witnesses will come; do not marry until you bring proof of the divorce." And it is upon her to know if there is a concern that witnesses will come here or not, and when she did not do so, she was negligent toward herself (it appears to me). And specifically two witnesses, but one witness is nothing (Beit Shmuel, subsection 11). And likewise, if there is a rumor that there are witnesses in such-and-such a place who know that she was an eshet ish, we do not allow her to marry until she brings proof of the divorce (ibid.). And only regarding a captive woman did they treat a rumor leniently in siman 7, but not regarding an eshet ish.

And even though she is not believed when there are witnesses, nevertheless, as a stringency, we are concerned for her words and she is forever disqualified from the priesthood. And if the husband died, even though we do not allow her to marry into the general public, nevertheless, we also do not allow her to be taken in yibbum; rather, she performs chalitzah and does not undergo yibbum. And even if witnesses came and said, "We heard that she is divorced," this is not testimony to remove her from the status of a married woman, for this is like a witness based on a witness, until they testify that they know she is a divorcee. Nevertheless, as a stringency, we are concerned for their rumor. And all this is when witnesses testified that they know she is a married woman; but if they do not testify that they know she is a married woman, but only say, "We heard she was betrothed," or "We heard she was betrothed and divorced," their status is like a mere rumor, and there are detailed laws regarding this which were explained in siman 46. And when there are witnesses who know she is a divorcee, she is permitted in every case, even though they testify that she was just now divorced and the get is not before us, as she says it was lost or torn, and she may marry ab initio. And this is not a deficiency except when there are witnesses of contradiction, as I wrote in section 9.

Our teacher, the Beit Yosef, wrote in section 9: If she produced a get from her hand and said, "My husband divorced me with this," she is believed and may marry with it even though it is not verified, as was written in siman 141 and 142. If the husband came and contested, saying, "It fell from me and she found it," he is not believed, for he has admitted that he wrote it for her and it is produced from her hand. But if the husband said, "It was conditional and the condition has not yet been fulfilled," or "It was a deposit," or "I never wrote it," or "It is a forgery," it must be verified by its signatories or by the witnesses of delivery as was written in siman 141 and 142. And if it is not verified, she is not divorced to be permitted to others, but she has disqualified herself from the priesthood. Thus far his words. And there are many detailed laws in this, and they were explained at length there with the help of Heaven; see there.

He further wrote: A woman who possesses a beit din document cannot marry based on it until the signatures of the beit din are recognized. Thus far his words. And it has already been explained there that the recognition of one signature is sufficient. And know that our teacher, the Rema, at the end of siman 142, wrote that in a case of iggun one may rely on the signatures even without a beit din authentication, for by Torah law, witnesses signed on a document are considered as if their testimony was investigated in a beit din. Furthermore, one may rely on the poskim who hold that a beit din document does not require authentication. And why did he not provide a gloss here as well? It can be said that he relied on what was stated there, or perhaps it is possible to distinguish: for there, where the get itself is present, we rely on this as it is like proven evidence that it is not forged; but here, with a mere writing, we fear forgery. And there are some of the great authorities who disagree on this (as written in the Pitchei Teshuva, subsection 19). And it appears to me that if there is a seal on the beit din document, one certainly may rely on it in a case of iggun. However, in this time, the matter is simple that it must be clarified via the post office and via the iron wires, and she shall not marry until they clarify. And all this is when she was established as a married woman, but otherwise, nothing is required.

The Tur wrote that they asked the Rosh, of blessed memory, regarding a get where witnesses testified about one of the witnesses of the get that he stole, and there are witnesses that he performed repentance, for they saw him fasting and donning tefillin, and also that an oath came to his hand and he did not wish to swear. And he responded that the get is invalid even though they did not proclaim about him that he is invalid, and the repentance that he performed is not effective until he performs repentance regarding the money that he stole. And similarly, they asked him regarding a get where the scribe testifies that the husband did not command to sign, and similarly one witness from the witnesses of the signature themselves testifies so. And he responded that the get is invalid, and even if the handwriting of the witness is produced from another place, he is believed to say "the husband did not command me to sign," and this is not like one who testifies about himself that he acted falsely, for it can be said that since he commanded to write, it does not seem to people that it would be a false signature. And furthermore, since the scribe also testifies thus (Beit Yosef).