Siman 158

Just as a woman is credible to say "my husband died" so that she may marry, so too she is credible to say "my husband died" so that she may be taken in yibbum, for it is the same reasoning: that she is precise before marrying, and it is a matter that is likely to be revealed, and because of the stringency that you placed upon her at her end, you were lenient with her at her beginning. Because of these reasons, the sages saw fit to believe her so that she should not remain an agunah, as has been written in siman 17. If so, there is no difference between whether she marries an outsider or a yavam; on the contrary, regarding a yavam it is more severe if the matter is a lie, for with a yavam there is a prohibition of ervah in addition to the prohibition of a married woman, and it is obvious that she is precise before marrying. And just as if she married an outsider she takes her ketubah from the property of her husband—on the grounds that we learn from the text of her ketubah, where it is written, "when you marry another, you shall take what is written for you"—so too if she is taken in yibbum based on her word, the yavam enters into the inheritance of his brother based on her word. For it is written, "he shall succeed in the name of his brother," and he has indeed succeeded. And even though regarding matters of money she would not be credible, nevertheless, since we expound the exposition of the ketubah that whenever she marries another she takes her ketubah, as has been written there, it is a kal vachomer that we should expound the exposition of the Torah that whenever she is taken in yibbum, the yavam descends to the property of his deceased brother (Gemara 117a).

Our Sages, of blessed memory, said (118b) that a woman is not believed to say "my yavam died" in order to marry an outsider. Therefore, if she and her husband and her yavam went to a province overseas, and she came and said "my husband and my yavam died," whether she said first "my husband" and afterward "my yavam," or whether she said "my yavam" and afterward "my husband," she is not believed. Because she was here under the presumption of being bound to a yavam, she is not believed to say that the yavam died and to release herself from him. Therefore, if she was not here under the presumption of being bound—for example, if the husband did not have a brother here, and only she and her husband alone went to a province overseas, and she came and said "a yavam was given to me in the province overseas, as the father of the husband married a woman there and she gave birth to a male, and my husband and my yavam died"—whether she said "my husband died and afterward my yavam," or whether she said "my yavam died and afterward my husband," she is believed, because she was here under the presumption of not being bound to a yavam (ibid.).

And why did the Sages, of blessed memory, not believe her regarding the death of the yavam so that she may marry into the general public? The Rambam, of blessed memory, wrote in chapter 3 that because it is only a negative prohibition, the prohibition is light in her eyes and we suspect her that she will lie. And even though it is not mentioned in the Talmud and the poskim regarding this—that they believed her to say her husband died—that the reason is because there is a prohibition of karet, but rather the reason is because she is precise before she marries, and it is a matter that is destined to be revealed, and because of the stringency that we apply to her if she lies, and we treat her with all the thirteen ways that were explained there; if so, why do we not believe her also that her yavam died, for the thirteen ways also apply to her when she marries into the general public, as will be explained in siman 159? For it can be said that the Rambam follows his reasoning in chapter 2 of Yibum, that the offspring is not a mamzer from a yevama who marries into the general public, and one of the thirteen ways is missing, and perhaps she fears this detail more than all the other details. And even according to those who hold that the offspring is a mamzer from a yevama who marries into the general public, as was written there, it is only rabbinic, as was written there, and she does not care. This is not the case if she lies about the death of the husband, for the offspring is a mamzer from the Torah. Furthermore, it can be said that regarding a yavam there is an additional reason why they did not believe her, for perhaps she hates the yavam; for because of this reason there is an inquiry in the Gemara whether one witness is believed to say that the yavam died (93b), see there. Therefore, she herself is not believed, for we say that the hatred overcomes her and her desire is to marry into the general public so that she will be forbidden to him (and see Tosafot 94a, beginning with "Ki," and examine carefully).

And likewise, the yavam is not believed to say, "My brother died and I will perform yibbum with his wife." And even though if he left offspring he is believed to say that his brother died so that she may marry into the public—for all relatives are fit for the testimony of a woman—nevertheless, to perform yibbum with her, he is not believed. The Rambam wrote the reason is that we fear perhaps he set his eyes upon her. Therefore, even though she is precise and likely to reveal the truth, and we would apply to her all thirteen ways, nevertheless, since the yavam is the one testifying for himself, we fear he will entice her and she will not be so precise. And there is a doubt if this yavam says, "It is not my desire to perform yibbum with her and I will perform chalitzah for her," or in our countries where they do not permit performing yibbum, if the yavam is believed, for there is no concern here that he set his eyes upon her, or if even in such a case he is not believed. And some say that in such a case he is believed (Rashdam and Knesset HaGedolah), and there is one who is doubtful regarding this (Chelkat Mechokek siman 17 subsection 10 and see Beit Shmuel ibid. subsection 14). And see what I wrote in siman 17 section 36, for it appears like the opinion of those who permit. And it is a simple matter that even according to those who permit, it is necessary that he not be an interested party regarding a monetary matter, such as to take from his brother's inheritance or to take money from her in exchange for the chalitzah, for when he is interested in money, it is obvious that he is disqualified. Therefore, if he even mentioned money in his testimony, he is no longer believed, just as with the woman herself when she claimed her ketubah, as is explained there. And likewise, the man is not believed to say that his wife died so that he may marry her sister, and even one witness is not believed in this, for there is no release of an agunah in this (Rambam). And therefore, she also is not believed to say, "My sister died," so that her husband may marry her. And some say that in this time when there is a prohibition against marrying two women, one witness is not believed to testify for a man that his wife died so that he may marry another (Beit Shmuel subsection 1), but it does not seem correct to be stringent in this (and so wrote the Korban Netanel chapter 10 subsection 20).

The Rambam wrote (ibid.): One witness is trusted to testify for a yevamah that her husband died and she may undergo yibbum based on his word, or that her yavam died, or that a son was born to her husband to permit her to a stranger; even a slave, or a woman, or a Kutite speaking in innocence testifies regarding the death of the yavam just as he testifies regarding a married woman to permit her, etc., and the law of this testimony is like the law of that testimony regarding witnesses who contradict one another concerning the death of the yavam and for all matters. Thus far his words. And so wrote the Tur and Shulchan Arukh. And in the name of the Rosh, the Tur wrote that only to permit her to the yavam is one witness trusted, whether he says "your husband died" or whether he says "your son died and afterwards your husband," but to permit her to the world he is not trusted, whether he says "your yavam died" or whether he says "your husband died and afterwards your son." Thus far his words. And so wrote our teacher, the Rema.

And behold, regarding this matter of whether one witness is trusted to say that the yavam died, it is an inquiry in the Gemara; for even though she is not trusted, as the reason was written—because the prohibition is light in her eyes—this does not apply to a witness. And the primary doubt in the Gemara is this: whether the fact that they permitted an agunah based on one witness is primarily because it is a matter that is destined to be revealed, and here too it is a matter that is destined to be revealed and he is trusted; or perhaps the primary reason is because she investigates, and here she does not investigate because perhaps she hates him, and furthermore, since the child is not a mamzer from a yevama to a stranger, she will not be so concerned to inquire well and investigate. And behold, the Rambam, of blessed memory, already explained at the end of the laws of divorce that the primary reason is because it is a matter that is destined to be revealed, see there. Therefore, he ruled here that the witness is trusted. And the Rif also ruled to permit and wrote that even though there are rejections in the Gemara, they are merely rejections, and the primary point is to permit. And it appears to me that his reason is also because the primary reason is because it is destined to be revealed (and with this the difficulty of the Rosh in chapter 10, siman 4 is answered, and the primary reason of the Geonim is as I have written). And that which he is trusted to say "a son was born to him" is also because of the reason that it is destined to be revealed.

And behold, the Rambam did not clarify if the witness is believed to say "your husband died and afterwards your son," and our teacher, the Beit Yosef, in section 3 ruled that in this as well he is believed. According to what I have written, there is no proof for this, for in this case "it is likely to be revealed" does not apply. And even though she is believed in such a case, as is written in siman 156, section 37, this is by virtue of a migo that if she wanted she could have remained silent regarding the son, as is written there. And so wrote the Rosh there explicitly, that in such a case it is obvious that he is not believed, for regarding a witness migo does not apply, as it is possible that his intention is to ruin her, see there. However, there we explained another reason: because she is under the presumption of being permitted to the public. If so, he correctly said that the witness is also believed, for the reason of presumption applies also to the witness. Furthermore, it explicitly implies there in the Gemara that wherever she is believed, it is obvious that the witness is believed, see there (which says: this you need not ask, for even she herself is also believed).

However, from the Rambam it is explained that regarding a witness, the reason is not because of a chazakah nor because she is believed; for the witness is believed to say a son was born to him even though she left from here with the chazakah of being bound to a yavam, and she is not believed in such a case, as he wrote there, that she is not believed to remove herself from the chazakah she had here, yet the witness is believed. But it is possible to say that when there is the reason that "it is destined to be revealed," we do not require another reason, for in this the witness is believed even though he removes her from her prior chazakah. And she is not believed even though it is destined to be revealed, for the Rambam explicitly explained at the end of Hilkhot Gerushin that the reason of "destined to be revealed" pertains to the credibility of the witness; see there. And we have already explained this in siman 17 with the help of Heaven; see there. And one should not ask that when he says a son was born to him, this is not a matter destined to be revealed, for granted that it is possible to clarify if a son was born to him or not, however, perhaps the son died and afterwards he died and she is bound to a yavam, and the witness is believed in all manners, even when he says a son was born to him and the son died and afterwards he [died] and she is bound to a yavam, or he died and afterwards the son [died] and she is permitted to the public, and in this the clarification is difficult to know. For it can be said that in any case, since the witness is believed that a son was born to him, we no longer require his statement at all, because we grant the son a chazakah of being alive, and automatically she is permitted to the public. And the Rambam does not hold the concern that the Rosh wrote, that we concern ourselves that the witness is lying with the intent to cause her to stumble, for from where do we have reason to suspect the witness of this? And this reasoning was not mentioned in the Gemara. And even though regarding one witness in a state of quarrel the Rambam holds that we concern ourselves perhaps she hired the witness, however, we have already explained the Rambam's reason for this in siman 17, section 242, because she is found to be a liar; but that we should say the witness intends to cause her to stumble, from where do we have reason to suspect him?

And one should not ask how it is possible to say that for this reason the Rambam ruled that one witness is believed regarding a yevama, because since the doubt is regarding the reason for the witness's credibility—whether it is because it is "destined to be revealed" or because "she is precise"—and he follows his own reasoning that the primary reason is because it is "destined to be revealed"; for behold, regarding one witness in war or in a quarrel, there is also a query in the Shas, and it says there also this doubt, that if it is because it is "destined to be revealed" he is believed, and if it is because "she is precise" he is not believed, and according to this, the Rambam should have ruled there as well that he is believed, yet he does not rule so. The answer to this is that, on the contrary, from there is proof for our words; for it is true that he ruled in a quarrel that he is not believed, but he ruled so for the reason that we fear she hired him, as I wrote there regarding the Rambam's reasoning. And he was forced to explain thus because this is not a doubt at all regarding the primary reason for the witness's credibility, for certainly it is because it is "destined to be revealed." And regarding one witness in war, he also ruled that if he said "and I buried him," even one witness is believed, and we explained the reason for the matter there in section 231, see there. And the reason is because he fears "it appeared so to him," and behold, according to the opinion of the Rif, even with two witnesses we fear "it appeared so to him," as I wrote there in section 232. But the Rambam forever holds that the primary reason is because it is "destined to be revealed." And we have already explained there in section 23 that even though we certainly also need the reason that "she is precise," for without this the sages should have been stringent, nevertheless the primary permit from the Torah is because it is "destined to be revealed."

But the Rosh, of blessed memory, wrote that since the inquiry was not resolved, we follow the stringent view, and one witness is not believed regarding a yevama to permit her to the market, just as she herself is not believed. For we fear that perhaps because she hates her yavam, she will not investigate well. And it is an a fortiori argument: for if she herself is not believed because we fear that out of hatred she will speak a lie, all the more so will she not investigate after the witness. He follows his own reasoning, that the primary reason they believed one witness regarding an aguna is because she investigates, and here she will not investigate. And if it is difficult, for if so, how did they believe her to say the husband died so that she may be taken in yibbum? Let us fear the opposite, that perhaps she loves him, and out of love she will not investigate well. For it can be said that the hatred of those who hate is greater than the love of those who love (Tosafot 94a). Furthermore, regarding her love, she will not trust it, for perhaps he will not want to perform yibbum and will perform chalitza for her; but when she hates him, she is afraid that he will perform yibbum (Rosh). Furthermore, regarding a yavam, she is afraid to lie so that she does not make her children mamzerim, which is not the case for a yevama to the market, for there is no Torah-level mamzer here at all, as I wrote in section 3 (the Rosh holds that the reason they did not believe a woman to say "my yavam died" is because we fear that out of hatred she will lie).

The Rosh further wrote that in a case of "your husband died and afterwards your son died" and she marries an outsider, it is obvious that one witness is not believed, and there is no doubt about this in the Gemara. And even though she herself is believed through a migo that she could have said "my husband died" and remained silent, and automatically we would have established the son in his status of being alive, as written in siman 156 section 37, nevertheless the witness is not believed. Regarding him there is no migo, for we fear perhaps her enemies hired him to testify falsely, or the witness himself wants to ruin her and reasons: If I testify only that the husband died, it is possible she will find out about the death of the son and investigate who died first, and I will not be able to ruin her; but when I testify about both of them, she will not investigate much and I will ruin her. Thus far his words. And many wondered at this reasoning of his (Yam Shel Shelomo chapter 10 section 28, and brought in the Korban Netanel subsection 17, and in Tuv Ta'am VaDa'at of Maharshak subsection 1), for from where do we have the right to say this? Behold, this reasoning and concern is not found at all in the Shas. Furthermore, if so, why is there a doubt in the Shas whether the witness is believed to say "the yavam died"? Let us also say that certainly he is not believed for this reason. Rather, certainly it must be said that in truth the doubt in the Gemara is regarding both laws, and so it implies from Tosafot, see there. (And besides this, the words of the Rosh there are puzzling, for in "your son died and afterwards your husband died" he wrote that since she is believed to say "my husband died" so that she may perform yibbum, it is a kal vachomer that the witness is believed even in a place where she is not believed, such as in "your son died and afterwards your husband died"; yet in "your husband died and afterwards your son died" it is obvious to him that the witness is not believed even though she is believed. See there, and it requires great study.)

It appears to me that the reasoning of the Rosh is as follows: regarding a witness, one should not distinguish between whether there is a migo or there is no migo, or whether she has a presumption of permissibility or a presumption of prohibition. For since from the Torah there is no permission for a single witness to be believed to remove her from the presumption of a married woman, and the fact that he is believed is primarily because "she is precise and then marries," it necessarily follows that if we say the witness is believed in any matter, he is believed in all cases. Therefore, regarding her undergoing yibbum, since we find in the Talmud that the witness is believed to say "your husband died" so that she may undergo yibbum, it necessarily follows that he is also believed to say "your son died and afterwards your husband" so that she may undergo yibbum. And similarly the reverse, to testify for her that her yavam died so that she may marry an outsider; since we find in the Talmud that it remained in doubt whether the witness is believed to say "your yavam died" so that she may marry an outsider, it necessarily follows that there is at least a doubt regarding "your husband died and afterwards your son" so that she may marry an outsider, for one law is dependent on the other as I have written. And the reason for the matter—truly, why is the witness believed so that she may undergo yibbum, and we do not fear that perhaps out of her love [for the yavam] she will not be sufficiently precise, yet regarding the death of the yavam so that she may marry an outsider he is not believed, for we suspect her that perhaps out of her hatred [for the yavam] she will not be sufficiently precise? It is because the hatred of enemies is greater than the love of lovers. Furthermore, regarding her love, she would not be confident, for perhaps he would perform chalitzah for her, as we explained in section 10. Furthermore, regarding a yavam, she would make the child a mamzer by Torah law, as I wrote there. If so, it necessarily follows that regarding "your husband died and afterwards your son," he is certainly not believed. For since the entire basis of the doubt in the Gemara regarding "your yavam died" is because it is possible that in a matter likely to be revealed a person does not lie—for how could he say the yavam died and then he appears alive before us—it follows that regarding "your husband died and afterwards your son," he will never be caught in his lie, and this is not a matter likely to be revealed. For even one who contradicts him will also say that both of them died, but will say her son died and afterwards her husband; and how is it possible to reveal this to the whole world, as to who died first? Therefore, the Rosh spoke well that in such a case it is obvious that the witness is not believed. And that which the Rosh says, that we fear perhaps her enemies hired him or that he himself wants to ruin her, this is not the primary reason for the prohibition. The primary reason for the prohibition is as we explained, but he is stating the truth regarding the fundamental Torah law, that a single witness is not believed to remove her from the presumption of a married woman. And why is she believed with a migo? To this he says that the fundamental Torah law is indeed that every person is believed about themselves with a migo, whereas a single witness is not believed about others when there is a presumption of prohibition and the matter is not in his hand, as I wrote in Yoreh Deah siman 127. And why truly is it so? It is only because the Torah did not grant credibility to a single witness because we suspect him of lying, and certainly in a matter such as this where there is concern for enemies or that the witness himself hates her. Perforce it must be so, for we are compelled to find some reason why the Torah did not believe a single witness. However, the reason the sages did not believe him is because of the principle of "precision," because in this case there is no precision, as I have written.

Regarding the primary dispute of the Rosh with the Rambam, of blessed memory, most poskim agreed with the words of the Rambam, and several of the great later poskim agreed that in a case of pressing need and igun, one may rely on the Rambam, of blessed memory, that one witness is believed to say the yavam died so that she may marry into the general public (Beit Shmuel, subsection 2). Consequently, he is also believed to say your husband died and afterwards your son, for they share one reasoning as has been written. And it is obvious in this time, when there is no yibbum but only chalitzah, that one witness is believed (ibid.), for there is no concern here that perhaps she will not investigate well because she hates him and fears that he will perform yibbum upon her. And some say further that in this time she is also believed to say my yavam died so that she may marry into the general public, but it is not definitive (ibid.). And if the yavam is before us and one witness testifies that a son was born to the husband in the province overseas, some say she should perform chalitzah due to doubt (Bach). And some say since the sages were meticulous regarding chalitzah, for when it becomes known that she did not require chalitzah and we permit her to a kohen, they will say a chalutzah is permitted to a kohen as written in siman 156, it is better to rely on the Rambam that she does not require chalitzah (Beit Shmuel, ibid.). And it appears to me that specifically in siman 156, where the matter can be clarified, the sages were concerned about the chalitzah; therefore, here too, if it is possible to clarify, she should not perform chalitzah until the matter is clarified. However, when it is impossible to clarify, she should certainly perform chalitzah due to doubt, for how can we exempt her without chalitzah because of a slight concern in a place where there is a dispute of the poskim regarding the primary law (and it appears to me that this is also the intention of the Bach, and the difficulty of the Beit Shmuel is resolved):

The five women who hate one another who were explained in siman 17, who are not believed to say her husband died, likewise they are not believed to say that her yabam died so that she may marry into the public. Even according to the opinion of the Rambam who ruled that one witness is believed, and consequently relatives and women are also believed, nevertheless the women who hate are not believed. And that which the poskim said "five women" is not precise, but they employed the language from there. In this law there are only two women, for among the five women there is her husband's daughter, and regarding yibbum this is not applicable, for if he has offspring she is not subject to yibbum (Beit Shmuel) and there is no need to testify that the yabam died. Likewise, one of the five women is her rival-wife, and it is obvious that regarding yibbum this is not applicable, for she herself is bound to the yabam, and how could she be believed (ibid.). However, it is possible to say that nevertheless one could say: granted that regarding herself she is not believed, she should be believed regarding her rival-wife; and it comes to teach us that she is not believed.

Among the five women who are not believed, one of them is the wife of her husband's brother, as written in siman 17. Therefore, regarding two brothers who went to a distant land with their wives, and the women came before us—this one says "my husband died" and that one says "my husband died"—each one is believed regarding herself concerning the death of the husband, as written there. Nevertheless, both are forbidden to marry into the general public, for each one is not believed regarding her fellow woman, as they are among the five women. Consequently, each is forbidden because perhaps her husband's brother is alive and she is bound to a yabam, for she herself is also not believed to say "my yabam died," as has been written. From this it is understood automatically that if one had a witness according to the method of the Rambam, or witnesses according to the method of the Rosh, that her husband died, the second is permitted to the general public; for regarding her husband she is believed herself, and regarding the yabam there is a witness or witnesses. And this one who has a witness or witnesses remains in her prohibition for the reason we have written. The same applies even if neither has witnesses, but one has children from her husband and the other does not; the one who has children is permitted, for regarding her husband she is believed herself, and she is not bound to a yabam because of the children. And the one who has no children is forbidden for the reason we have written until the matter is clarified. (All this is a Mishnah at the beginning of the chapter "Ha'isha Batra").

And not only this, but even if these women had a yavam or two yevamin here, and each of them came and said that her husband died and they have no children, and they performed yibbum and the yevamin died, each one remains in her previous prohibition. That is to say, because neither one is believed regarding her fellow as has been written, and consequently there is a concern regarding each one that perhaps her husband's brother who is in the provinces overseas is alive. Even though each one already performed yibbum here and they were believed that their husbands died, nevertheless, now that the yevamin who were here have died, if we permit them to the market, it would result in there being credibility from one regarding her fellow. Therefore, both are forbidden until the matters are clarified, and we do not say that since they were permitted to the yevamin, they are permitted to every man (ibid.). However, if they have children from these yevamin, or if they divorced them with a get in a manner that they no longer have the zikat yevamin upon them, both are permitted, for even if they have yevamin, they are not bound to them.