Siman 17

A married woman is included among the forbidden relations, and kiddushin do not take effect with her, as is the case with all forbidden relations. When does this apply? Regarding a certain married woman; however, if she is of uncertain kiddushin or uncertain divorce—such as if the money of the kiddushin or the get were in a state of being uncertainly close to him or uncertainly close to her, or other types of uncertainties, and similarly two groups of witnesses who contradict one another, and even within one group where this one says thus and that one says thus—it is a rabbinic uncertainty, the kiddushin take effect out of doubt and she requires a get from both of them. The same law applies to rabbinic invalidations of gittin: if another man came and betrothed her, she requires a get from both of them—from the first rabbinically and from the second by Torah law. We do not follow the chazaka in this matter to say that when there is a doubt in the kiddushin we should establish her in her chazaka as an unmarried woman, or when there is a doubt in the get to establish her in her chazaka as a married woman; for even though by Torah law we follow the chazaka, nevertheless, due to the stringency of a married woman, the sages were stringent for it to be treated as a doubt. Therefore, when there is a dispute among the poskim regarding these kiddushin or this get as to whether it is valid or invalid, it is an uncertainty of a married woman and she requires a get from both of them. And even if the majority of poskim decide toward one side, we do not follow the majority, for sometimes regarding the stringency of a married woman we are concerned even for a minority if it is a noticeable minority; unless it is against a singular opinion that the vast majority of poskim did not concern themselves with, for then certainly we are not concerned for that opinion, for if not so, there is no end to the matter. Similarly, if Reuven betrothed her with a chuppah and Shimon came and betrothed her with money or a document, she requires a get from both of them since there is a dispute among the poskim whether chuppah effects acquisition; however, if Shimon also betrothed her with a chuppah, she does not require a get from him in any case, and only from Reuven does she require a get. Furthermore, it will be explained in siman 150 that even with a get that is void by Torah law, if she married another and the offspring from him is a complete mamzer, she nevertheless requires a get from both of them so that they should not say a married woman leaves without a get, as not everyone knows that the get is void by Torah law. But a certain married woman about whom no rumor of divorce has emerged, we are not concerned for the kiddushin of another; and even if he betrothed her such that the kiddushin should take effect when she is divorced, and afterwards she was divorced, she does not require a get from him, for a person does not betroth something that has not yet come into the world and that is not in her domain since she was a married woman at the time he betrothed her, as I wrote in siman 40, see there. And if she erred and thought she was unmarried and married another, and afterwards it became known that she was previously betrothed, she requires a get from this one and from that one and is forbidden to both of them, as will be explained at the end of this siman with the help of Heaven. And know, that in every uncertainty of kiddushin where she requires a get from both of them, the first is not permitted to marry her, lest they say that he divorced her and she married another and he divorced her, and this first one is taking back his divorcee after she married another, as I wrote in siman 31. And if the second had relations with her before the first divorced her, she becomes forbidden to the second as well, for through his relations she became forbidden to the first; and just as she is forbidden to the husband, so she is forbidden to the paramour, as I wrote there, and see what I wrote in siman 46.

A woman who said to her husband, "You divorced me," and he says, "I did not divorce you" – the Sages, of blessed memory, said that she is believed, for there is a presumption that a woman does not embolden herself in the presence of her husband regarding a matter that he knows she is lying about. Therefore, a woman who accepted kiddushin from another in the presence of her husband – she is betrothed to the second on the grounds that she does not embolden herself in the presence of her husband. And some say that the credibility is not to the extent that she would be permitted to the second, or that when she says, "You divorced me," she may marry another; rather, we are concerned for her words to require her to receive a get from the second, for it is not logical at all that because of the reason of the presumption that she would not embolden herself, we would permit her without a new get. And how could we permit a severe forbidden relationship based on her speech in a matter where he contradicts her? For behold, regarding one who says, "My husband died," the Sages, of blessed memory, said she is believed because it is a matter that is destined to become known if he is alive, and she would not ruin herself, as will be explained; but in this case, where it will never become known, it is impossible to say at all that they believed her even to marry another. Rather, this is the matter: that by reason of this presumption she becomes forbidden to her first husband if she extended her hand and accepted kiddushin from another. And even though a woman is not believed to forbid herself to her husband, as written in siman 115 – that is in a matter where the husband does not know the truth to contradict her, such as when she says she committed adultery, where the Sages were concerned that perhaps she set her eyes on another and did not believe her, as has been written; but in this case, where she says to him in his presence a matter where he knows the truth, and there is a presumption that she would not embolden herself to such an extent – therefore she is believed to forbid herself to her husband. Nevertheless, we do not compel him to give a new get, for with what could we compel him? Behold, she says that he already divorced her, and it is only we who do not believe her, for if not so, every woman would remove herself from her husband with this claim and accept kiddushin from another and we would compel him to give a get; rather, she shall sit as an agunah all her days until he agrees to give her a get, and she is the one who caused her own loss, and certainly she does not collect her ketubah. However, when she has not yet accepted kiddushin from another – we compel her to be with him, unless he is a kohen, who is forbidden to a divorcee, and we are concerned for her words as a stringency.

But the Rambam, of blessed memory, in chapter 4 and in chapter 16 of Ishut, is of the opinion that this chazakah is powerful enough that she is permitted to the one to whom she was betrothed, and such is the opinion of several poskim. And the reason for the matter is that besides it being a great chazakah that a woman does not embolden herself in the presence of her husband regarding such a major matter where he knows the truth, furthermore, it is not similar to all matters where a woman claims in order to remove herself from her husband. For in every other thing, granted that she is lying in that claim, nevertheless she wishes to marry with permission, such as when she claims she committed adultery or "he is loathsome to me" and the like; behold, she is requesting that they compel him to give a get and she will marry with permission. But in this case where she claims "you divorced me" and "I am permitted to another," if she is lying, behold she is in a state of the prohibition of a married woman all her days and her children are mamzerim, and no woman is suspected of doing so [and this is the intent of the Rosh there]. And that which we were required to provide a reason for the credibility of a woman to say her husband died, this is because there we do not suspect her of lying completely, but rather that she speaks based on hearsay or by estimation, as will be explained, and her intention is not to marry under the prohibition of a married woman. But in this case, if she lies, she lies completely and will be under the prohibition of a married woman all her days and will make her children mamzerim, and no daughter of Israel is suspected of this. Furthermore, even though it is true that she is credible, nevertheless the beit din certainly must investigate and inquire of her when he divorced her, and in what place, and who are the witnesses; for it is no less than one who claims a maneh from his fellow, where the beit din says to him "clarify your words," as is written in Choshen Mishpat siman 75, and all the more so in a matter of a married woman. And automatically, in the majority of cases, they will recognize and know the truth, and if it is found that she is lying, there is nothing in her words. And if despite all this she is not found to be lying and it is impossible to clarify, such as if the witnesses died or went to the provinces of the sea, the rabbis have established that she does not embolden herself in the presence of her husband for the reasons that have been explained. And she even takes her ketubah, for we learn from the text of her ketubah where it is written in it, "when you marry another, you shall take what is written for you," and since she is permitted to marry, she takes her ketubah; and there are those who say that regarding monetary matters she is not credible.

The Rambam wrote in the twelfth chapter of Hilkhot Gerushin: If she and her husband come, and she says "you divorced me and my get was lost" and he says "I did not divorce you," even though she was established as his wife – she is believed, for there is a presumption that a woman does not brazenly lie in the presence of her husband. If the husband said "I divorced my wife" – he is not believed, but we are concerned for his words and she would be a doubtful divorcee; and even if she admitted to him that he divorced her – he is not believed, lest he intends to ruin her, or he divorced her with a void get and she does not know, or perhaps she would brazenly lie to him because he believes her and she does not know the gravity of her prohibition; therefore we say to him: if the matter is true, behold you are both present – divorce her now in our presence. Thus far his words. [And in the Tur, siman 152, the version is more precise, and according to his version we explained there in section 6].

We have learned from his words that her credibility is only when the husband contradicts her, based on the reasoning that she would not be so brazen in his presence; but whenever he admits to her words and the presumption of brazenness is removed—she is only believed for stringency. However, it is possible that this is specifically when he began by saying "I divorced you," but when she began by saying "you divorced me," even if he admits to her—she is believed, and there is one who is uncertain about this. And there is one who wrote that she is not believed, just as when he began, and there is one who wrote that she is certainly believed, and it is thus explicitly proven from his words in chapter 16 of Ishut, law 27; see there. And it appears to me to decide that certainly if both of them came from another city and said that he divorced her there—they are believed even when he began, and the reason he is not believed is because a get has a rumor, and this is only relevant when both of them were in the city and we did not hear a rumor of divorce; therefore they are not believed for leniency but only for stringency, and we concern ourselves with all the concerns that the Rambam wrote because it is a wondrous matter. But when they come from another city and both admit they were divorced, even though she was presumed until now to be a man and his wife, why should we not believe them? Only regarding a woman when she says "you divorced me" and he contradicts her is she believed because of the presumption that she is not brazen in his presence as I have written, and therefore she is believed even when they did not come from another city. And according to this, in such a case when he does not contradict her, even if she began, nevertheless since it is a wondrous matter that we did not hear a rumor of divorce, it is impossible to believe her for leniency. And regarding the Rambam in chapter 16 of Ishut, it can be said that he is dealing with when they came from another city.

And this law itself applies also if she received kiddushin from another; if before this the husband said, "I have divorced you," she is not believed. And there are those who say even if he said "I have divorced you" afterwards, she is also not believed except only when he contradicts her [Beit Shmuel]. And according to our words, in this too one must distinguish between whether they were both in the city and whether they came from another city, as I have written [it appears to me]. [And in siman 152 we explained that the Rambam does not hold of the reason of a rumor, see there].

Regarding this presumption that a woman does not embolden herself in the presence of her husband, there is no distinction between a betrothed woman and a married woman [Beit Yosef in siman 152], though there is one who is uncertain about this [Ezer MiTzion, and see Mishneh LaMelech chapter 4 of Ishut]. If she initially said not in the presence of the husband that she was divorced, and afterwards she said it also in his presence, there are those who are uncertain about this regarding whether we apply this presumption, for perhaps because she spoke previously she is prone to maintain her words [see Darchei Moshe], and some say there is no distinction in this and she is believed [Beit Shmuel], and thus the great Acharonim have decided. However, regarding what she spoke not in his presence or if she accepted kiddushin not in his presence and he denies it, and in his presence she does not say "you divorced me" – we are not concerned at all for her previous words. But when she says in the presence of her husband "you divorced me" or she accepted kiddushin in his presence and afterwards she retracts her words – she is not believed to retract, yet it appears that for stringency we are concerned for her retraction. And so too if she gave a good explanation for why she said so initially – she is believed to retract if the husband also says that he did not divorce her, for an explanation is effective in everything [it appears to me]. And if this second person to whom she was betrothed is a kohen – there is nothing in her words, for how can we believe her that she was divorced when she is prohibited to a kohen [Be'er Heitev], and nevertheless if the husband also says that she was divorced – it is obvious that she requires a get from the kohen, for kiddushin is effective for those prohibited by a negative commandment, and she is also prohibited from returning to her first husband and requires a get from him as well, for the matter was compromised by her being betrothed to a kohen [it appears to me]. And so too if it is possible to attribute what she said "I was divorced" to some error, such as if it became known that there was a doubtful defect in the get or similar to this where she accepted kiddushin from another and it is possible to attribute that she erred regarding the first kiddushin and thought they were not kiddushin – we nullify her words [Ezer MiTzion] and we investigate the previous get or the first kiddushin and decide the law [it appears to me].

If another man betrothed her not in the presence of her husband—the betrothal does not take effect until she brings proof that she was divorced before she received the betrothal, for as long as it is not in his presence, she is emboldened and we are not concerned even to be stringent; and there is one who is concerned to be stringent [the Ran in the name of the Ramban, chapter 2 of Ketubot], however, most of the poskim do not hold so. And it appears to be the deciding factor that they do not disagree at all, for certainly when her husband comes and she admitted that she was not divorced at all and he also says that she was not divorced at all—we inquire and investigate of her regarding the act she did to receive betrothal, and presumably they will find some pretext that she did so because of anger or the like; but if she stands by her words afterwards even in the presence of the husband—certainly we are concerned for the betrothal and she requires a get from both of them and is forbidden to her first husband. And even according to the opinion explained regarding one who says "you divorced me," that even if she said it previously not in his presence and afterwards said it in his presence she is completely believed, nevertheless, regarding the receiving of betrothal in such a case, certainly because of the shame she is likely to uphold her lie and she is not believed except to be stringent, and see in section 10.

The Rosh, of blessed memory, wrote that as long as the husband is in the city when she was betrothed to another, it is considered "in his presence," and there are those who disagree and hold that we require literally in his presence. And this is certain – even according to the Rosh, it is only regarding the acceptance of kiddushin where she performed a significant act, but when she says "I have been divorced," we require specifically literally in his presence. And there is one who says that they do not disagree at all, for certainly when the husband is in the city and she accepted kiddushin from another, and upon the husband's arrival she emboldened herself to say to him that she was divorced from him – this is like literally in his presence, for she knew that he would immediately come to his house and she would be forced to embolden herself in his presence, and it is not similar to if he were in another city, and in such a case even those who disagree might admit to the Rosh. And if upon the husband's arrival she retracts her words – even the Rosh admits.

The Tur wrote in siman 152 that when she accepted kiddushin not in the presence of her husband, and when the husband comes and says, "Behold, I did not divorce you," and she is brazen in his presence and says, "You divorced me" – she is not believed, for she says this in order to maintain her words. Thus far his words. Since she performed a significant act, and this is as was written at the end of section 8, that the acceptance of kiddushin is not similar in this regard to one who says, "My husband divorced me," see there. However, this is certainly when he was not in the city at the time of the acceptance of the kiddushin, for if he were in the city, it has already been explained that the opinion of the Rosh, of blessed memory, is that this is as if it were in his presence; and if the Tur disagreed with him on this, he would have cited his opinion according to his custom. Rather, it certainly deals with a case where he was not in the city.

The Rosh further wrote in a responsum: That which we say, a woman who said to her husband, "You divorced me," is believed—these words apply before she married another, but once she has already married, she is emboldened so that she does not make herself a harlot and be forced to leave this one and that one. Thus far his words. And the same applies if she committed adultery, she is no longer believed [Beit Shmuel], and it implies that even when her husband was in the city we say that her passion overcame her and now she intentionally maintains these words because of the greatness of her shame; for if his intention was specifically when the husband was not in the city, the law would be the same regarding kiddushin as well, as the Tur wrote whose words we brought in the previous section. However, from the wording of our teacher, the Beit Yosef, in section 2, it implies that he holds they have one law, and the Rosh answered the question that pertained to marriage, but the law is the same regarding kiddushin as well [and so it appears in Beit Shmuel, subsection 7].

But the Rashba, of blessed memory, in a responsum—and our teacher, the Beit Yosef, cited it in siman 152—wrote explicitly that even if she received the kiddushin not in the presence of her husband, if afterwards when her husband arrives she is emboldened in his presence and says that she was divorced, she is believed. And from the proofs that he brought, it is evident that he holds this even in a case where she married [and his proof is from Ketubot 22b, which asks: "and is she so bold etc.", and there it is a case where she married. And for the Rosh it appears to me that this is the explanation: that the law of "two say she was divorced" certainly deals with all manners, even when they are in the same city, and in this she is not bold, and examine this closely].

There are some among the great authorities who decided the law that if she married, we are concerned to be stringent, to say that she would brazenly lie, and she requires a get from this one and from that one, and we do not act to be lenient according to the reasoning of the Rashba, of blessed memory, to say that she shall not leave. And if she was only betrothed, we are concerned for the words of the Tur and she shall not marry the second; and if she married, it is possible that she shall not leave. And regarding words alone, when she previously said it not in his presence and afterwards she says it also in his presence, if she married, she certainly shall not leave; and if she has not married, it is possible that there is concern ab initio that she shall not marry without a get [the Maharam ibn Habib in the book Ezrat Nashim, subsection 18].

That which we say that a woman does not embolden herself in the presence of her husband—these words apply where there is no one who assists her, but where there is one who assists her, she certainly emboldens herself, such as where one witness speaks according to her words—she emboldens herself [Tur]. And there are those who hesitate, saying that based on one witness she does not embolden herself [Bach and Lechem Mishneh there, and proof from the trustee in siman 141, and it can be settled, and examine it closely]. And know that in every place where we say she certainly emboldens herself—the kiddushin of another do not take effect upon her [Tur there], and nevertheless she is disqualified from the priesthood and from a yavam [Beit Shmuel] for she has forbidden them to herself based on her word, and with one witness when he assists her—she requires a get from this one and from that one [Ein Zeh Ne'eman].

And so some say that this principle that she does not embolden herself in his presence—this is specifically when there was no quarrel between them and she is not claiming her ketubah, but when there was a quarrel between them—she does embolden herself and there is nothing in her words. And so when she says "you divorced me, give me my ketubah"—she is not believed even in his presence, and we say that the impulse for money overcame her to embolden herself in his presence. But from the words of the Rambam in chapter 16 of Ishut it is explained that even when claiming her ketubah she is believed, for he wrote there: A woman who said to her husband "you divorced me" is believed, for a woman does not embolden herself in the presence of her husband; therefore, a woman who produced a ketubah and does not have a get with her, and said to her husband "you divorced me and my get was lost, give me my ketubah," and he says "I did not divorce you"—he is obligated to give her the base ketubah but not the additional amount. Thus far his words. And the Tur in siman 152 wrote according to the first opinion, and since it is a dispute of the authorities—we follow the stringent view in this [and the Atzeret Nevonim forced the words of the Rambam, but it does not seem so to me, see there, and there is proof from the words of the Tur in siman 100, see there and examine carefully].

And what is called a dispute? Some say specifically when she was established once as a liar, such as if she said, "You divorced me in the presence of so-and-so and so-and-so," and the witnesses came and contradicted her, for then she is no longer believed, as we have seen that she is emboldened even in his presence. And behold, certainly in such a case there is no one who disagrees. However, from the language of the Tur and the Shulchan Aruch it implies that it deals with all matters of disputes. And the rest of the poskim did not mention the law of a dispute, and therefore for the law—we are concerned for the stringency, and when she received kiddushin from another, she requires a get from both of them [and so wrote the Ezer MiKodesh]. And know, that every place where we said she requires a get from both of them and it implies that she is forbidden also to the second—this is when the first does not want to give her a get, but when he gives her a get now—she is permitted to the second, only to the first is she forbidden, for since she requires a get from the second, it is like one who takes back his divorcee after she married another or was betrothed to him. However, even to the second she is not permitted except if she was only betrothed, but if she married—she is forbidden also to him, for since she requires a get from the first, it is as if she committed adultery while under him and is forbidden to this one and to that one.

Our teacher, the Rema, wrote that in this era, when insolence and licentiousness have increased, we do not rely on this presumption that she would not be so brazen in the presence of her husband, and we follow the stringency in all matters regarding this. According to this, there is no practical difference in all the laws that have been explained; however, it is not a universal rule, for in a case where the beit din understands according to the circumstances that she was truly divorced and only the husband is a man of evil deeds and wishes to deceive her and deprive her of her freedom—we do not pay heed to his words and she is believed even in this era. And so wrote several of the great authorities, that in a case where there is an explanation proving she was divorced, she is believed even in this era. And there is one who says that even in the law of the Gemara regarding "she would not be so brazen," it only applies when she said so before a beit din or in a session of elders—but it does not appear so from the poskim; rather, even when she said so before two witnesses it constitutes a presumption, for if it were not so, the poskim would not have refrained from mentioning this. However, nowadays there is no practical difference in this, as has been written.

Regarding testimony for a woman whose husband died, our teachers, the sages of the Mishnah and the Talmud, applied many leniencies and many stringencies, and our sages, of blessed memory, gave a principle in this: that they were lenient at the end of the testimony and not at the beginning of the testimony [Bekhorot 46b, and even though he provides another answer there, nevertheless this answer stands since the truth is so; and examine this closely].

And the explanation of the matters: that they were lenient regarding the end of the testimony, when his death has been clarified with absolute clarity without any trace of concern, they were lenient as to who is the one testifying about the death. And not only did they not require two valid witnesses, but even one witness is believed, and even those disqualified from testimony, such as a woman, a relative, a slave, a maidservant, and a Kuti speaking in innocence. And furthermore, she herself is believed to say "my husband died." And there is nothing similar to this in all the prohibitions, for we maintain that in a place where a prohibition is established, one witness is not believed to remove the matter from its established status, as written in Yoreh Deah siman 157. And all the more so here regarding the prohibition of a married woman, where there is the established status of the prohibition of a married woman and the established status of the husband's life; and nevertheless, they were lenient in this for reasons that will be explained before us with the help of Heaven.

And against this—at the beginning of the testimony, that is to say, regarding the core matter of his death, they applied many stringencies to be concerned for a minority of a minority and for an uncommon minority, which they were not concerned with in all other prohibitions of the Torah. For example, if he fell with his clothes into the sea or into a large river and his memory was lost, where according to the assessment he certainly drowned, nevertheless the Sages did not permit the agunah in this case, and similarly with other great stringencies that will be explained before us with the help of Heaven. And the reason for the matter is that regarding the severe prohibition of a married woman, the entire lineage of Israel depends on it; and if, Heaven forbid, she is a married woman and marries another and bears children, mamzerim will multiply in Israel. And if it should happen even once in thousands of thousands, and she marries someone and bears sons and daughters who are mamzerim and mamzerot, and they marry and give birth, the mamzerim will multiply over the years into the hundreds. And it is already known even in our days of such incidents where the husband was gone for many years and his memory was forgotten and according to the assessment he had already died, and afterwards the husband arrived. And an incident occurred in our days in the land of Ashkenaz in the vicinity of the city of Mainz, where the husband was gone for more than fifteen years and the wife sought to marry, and the profligates of the generation supported her because there had been no quarrel between them and they lived in love, and according to the assessment there was no doubt at all that he died; only the Rabbi of Mainz stood in the breach so that she should not marry, and afterwards the husband arrived. And so too with many of those who drowned, it occurred that they were saved and emerged from the water alive, and in the Gemara there are also such incidents. Therefore, the mouth of those who speak falsehood shall be stopped when they say that the Sages were not concerned for the welfare of agunot; for who is like our teachers, of blessed memory, who facilitated many great leniencies for the sake of the welfare of agunot? Therefore, in that which they were stringent, they knew why they were stringent, and one who questions them is like one who questions the Divine Presence.

And in this matter, our sages, of blessed memory, were lenient regarding the conclusion of testimony, as has been written, because of the ordinance for agunot, for in most cases it is a difficult matter that specifically two kosher witnesses should be present at his death. And regarding the reasons for the matter in which they were lenient in this, our sages, of blessed memory, said that because of the stringency they imposed upon her at her end, they were lenient for her at her beginning, and she is precise and then marries, and a matter that is destined to be revealed people do not lie about; for behold, if, Heaven forbid, she was not properly precise regarding his death and he is alive—our sages, of blessed memory, penalized her such that she must leave this one and that one and the offspring is a mamzer from this one and from that one, and as will be further explained the stringencies they cast upon her, and therefore they were lenient for her at her beginning. [At the beginning of the chapter "Ha'isha Rabbah" they said the reason is "because of the stringency etc.", and this is the reason that because of this she is precise. And on page 93b and at the beginning of the chapter "Ha'isha Shalom" and on page 116b they said the reason is "it is destined to be revealed," and this is what they said in the language of an inquiry, whether the reason is "she is precise" or the reason is "it is destined to be revealed," meaning to say which reason is primary, as the Tosafot wrote there, but in truth our sages, of blessed memory, relied on all the reasons because of the ordinance for agunot, see there and examine carefully].

This is the wording of the Rambam in the twelfth chapter of Hilkhot Gerushin regarding the reason that the woman herself is believed to say "my husband died": because of the presumption that she would not ruin herself and cause herself to be forbidden to her first husband and to this one, and lose her ketubah from this one and from that one, and leave, and have her children be mamzerim, in a matter that is destined to be revealed to all, and it is impossible to deny or to claim a defense, for if he is alive he will eventually come or it will become known that he is alive. And likewise, if one witness came and testified to her that her husband died, she may marry based on his word because the matter is destined to be revealed, even a slave, etc. Thus far his words. And at the end of the thirteenth chapter of Hilkhot Gerushin he wrote: Let it not be difficult in your eyes that the sages permitted a severe forbidden relationship based on the testimony of a woman, or a slave, or a maidservant, or a Kutite speaking in innocence, or a witness based on a witness, or based on writing, and without inquiry and investigation as we have explained; for the Torah was only particular regarding the testimony of two witnesses and the other laws of testimony in a matter that you cannot ascertain its truth except from the mouth of the witnesses and through their testimony, such as if they testified that this one killed that one or lent to that one. But a matter where it is possible to ascertain its truth not from the mouth of this witness, and the witness cannot escape if the matter is not true—such as this one who testified that so-and-so died—the Torah was not particular about it, for it is a remote thing that the witness would testify falsely. Therefore, the sages were lenient in this matter and believed one witness based on a maidservant and from writing and without inquiry and investigation, so that the daughters of Israel should not remain agunot. Thus far his words.

And the explanation of his words: that from the Torah, testimony is not required here since it is a matter that is destined to be revealed, and there is no uprooting of a Torah commandment here. And why did the sages be lenient in this and not make a fence to not believe a single witness? In order that the daughters of Israel should not remain agunot. Nevertheless, they did not rely on this reason of "destined to be revealed" alone, for they also relied on the reason that "she is precise," so that she should not ruin herself, because they were stringent upon her at its end. And that which he did not mention the reason of "she is precise" regarding the testimony of a witness, is because there he states the primary law of the Torah, that from the reason of "destined to be revealed" complete testimony is not required. And so several of the great poskim agreed that the opinion of the Rambam, of blessed memory, is that even from the Torah it is like complete testimony from the reason of "destined to be revealed." [And it appears to me that he explains the beginning of the chapter "Ha-Isha Rabba" that the reason of "from the stringency" includes everything, meaning that they were stringent upon her at its end because it is likely to be revealed what happened and she will not be able to excuse herself, and therefore she will be well precise; and in the inquiries regarding a yevama, war, and a quarrel, the Shas asks which of the two reasons is the primary one upon which the sages relied, and the difficulty of the Tosafot 93b, starting with the word "Ed," is answered, see there], and see what I wrote in section 231 that many of the poskim hold regarding the opinion of the Rambam that he holds the reason is only because it is destined to be revealed, see there.

And similarly, the great Rishonim also wrote, and this is their wording: For the Rabbis are certain that in a matter that is destined to be revealed, and where you have imposed such stringency upon her in its end—she is certainly testifying to the truth, and when she investigates and marries, she marries properly, and we are witnesses to the matter; and such publicity is considered in every place as complete testimony and even from the Torah, for the Scripture handed it over to the sages to know what is a public matter and where the words of truth are recognizable such that it should be considered as testimony. And that which we say, that because of an agunah the Rabbis were lenient regarding her, this is what it means: the sages, who are stringent in every place, were lenient in this to consider it publicity and to judge it as clear testimony [Nimukei Yosef ibid. in the name of the Ra'ah and the Ritva].

But there are some of our teachers who hold that according to the Torah this is not testimony at all, but rather it is an enactment of the sages that he should be believed, and this is not an uprooting of a Torah commandment since the matter appears proper to believe—it is not considered uprooting a Torah commandment [Tosafot, chapter 8]. Furthermore, we maintain that anyone who betroths does so based on the will of the rabbis, and the rabbis annulled the betrothal from him [Rashi, Shabbat 145b]; however, when did they annul it—when the matter is true and she deliberated well, and therefore even though according to the Torah this is not testimony and she has no permission to marry, nevertheless, for the reason that one betroths based on the will of the rabbis, they permitted her to marry. But if she did not deliberate well and he is alive and she is close to being intentional, why would they annul the betrothal? Shall we make an enactment for the licentious? [And all that they questioned regarding this is well-settled].

And let it not be difficult for you, according to what I have written regarding the opinion of the Rambam and several of the Rishonim that the testimony of one witness is from the Torah, why it will be explained in this siman that one who marries based on one witness is not permitted to marry except by permission of a beit din, and also the sages of the Shas called marriage by one witness "marrying with the permission of a beit din," for is it not that with one witness it is from the Torah just as with two witnesses? For it can be said that certainly it is so, that with two witnesses the matter is known to all that she is permitted, but with one witness it is not known to all and they must ask the beit din [Tosafot 87b, s.v. Miklal], and therefore it is called "with the permission of a beit din," meaning that the beit din instructed her that she is permitted, but the permission is from the Torah. Therefore, the Rambam, of blessed memory, also in the fifth chapter of Hilkhot Edut called this permission "from their words" because the permission is not so simple. And there are some of the poskim who wish to say that the opinion of the Rambam is that in truth this permission is only rabbinic, but it does not appear so [see Responsa of the Rivash siman 154 and 281, and in the Maharik at the end of shoresh 32, and see Lechem Mishneh; and there are those who wished to distinguish between a valid witness and a disqualified witness, see Noda BiYehudah siman 33, but we have not seen this distinction in the Rishonim, and also regarding the reason of "she is exacting" there is no distinction at all, and "she is exacting" is because the matter is likely to be revealed as I have written, therefore it appears as I have written, and the derashah of the Sifrei is an asmakhta like many derashot of the Sifrei, and there is no difficulty from this upon Rashi and Tosafot, and delve into this].

And let it not be difficult for you why regarding an agunah they were stringent in the essence of the testimony and lenient in the quality of the witnesses, while regarding monetary matters it is exactly the opposite? For we have already explained, with the help of Heaven, in Choshen Mishpat siman 284 section 4, that according to the fundamental law it is so, see there.

A woman whose husband went to a province overseas and they testified about him that he died, even one witness, even a relative, even a woman, even a slave or a maidservant—when they are presumed to be of upright character, she is permitted to marry. And even her son, her daughter, and the maidservant of the agunah, and even a witness based on a witness, and that witness heard from another even up to a hundred, or a woman from a woman even up to a hundred, and likewise from a slave from a maidservant from a relative, one from another, an unfit person from an unfit person and this unfit person from another unfit person up to a hundred; for since the sages validated them for testimony for the reasons that have been explained, they are all valid one from another and one from another. And all those unfit for testimony by rabbinic law, such as dice players and the like as explained in Choshen Mishpat siman 34, are valid for the testimony of a woman, and a witness based on a witness as I have written. And even if the first witness from whom this second one heard has already died at the time that this one testified in his name. And even if this witness who testifies from another forgot from whom he heard, it is also effective, and we do not fear deception. And just as a witness based on a witness is effective for leniency, so too it is effective for stringency when he testifies that he heard from so-and-so that he is alive; and there are those who disagree on this, that specifically for leniency did the sages believe a witness based on a witness and not for stringency, and it appears the primary view is like the first opinion. And this that we validated a witness based on a witness, even if the first one did not testify in beit din but rather he heard from him by way of casual conversation that so-and-so died—this one who heard from him can come to beit din and testify that he heard thus from the mouth of so-and-so that the husband of this woman died, and his testimony is effective.

But those disqualified by the Torah due to transgressions, as explained there in Choshen Mishpat—the sages did not validate them for the testimony of a woman, for they did not trust them. And even though a relative and a woman are also disqualified from testimony by the Torah and yet are valid for the testimony of a woman—this is because their disqualification is not due to their wickedness but due to a decree of the Torah; therefore, they validated them for this, as they are not suspected. Similarly, those disqualified for rabbinic transgressions, and even a rabbinic robber—the sages validated them, for they are the ones who said it and they are the ones who said it. But those disqualified by a Torah transgression—their testimony is nothing; it is not necessary to say those who are disqualified due to theft and robbery and other Torah prohibitions in monetary matters, who are suspected of testifying falsely for the sake of money just as they commit another transgression for the sake of money, but even one disqualified for other Torah transgressions that do not pertain to money—he is disqualified for the testimony of a woman. And there is one who says that specifically a "wicked person of violence," meaning that his wickedness is in a monetary matter, this one is disqualified because he is suspected of testifying falsely for the sake of money, but for other transgressions—he is valid [Nimukei Yosef, chapter Zeh Boreir], but from the wording of all the poskim it implies that there is no distinction, and so it is explained from the plain wording of the Tur and the Shulchan Aruch.

Our sages, of blessed memory, said [Sanhedrin 26b] that one who is suspected of forbidden sexual relations is disqualified from testifying for a woman, and it is not specifically when witnesses testified that he had relations with a forbidden woman, but even if he is suspected of secluding himself with women constantly and his dealings are with them [Nimukei Yosef] and he is accustomed to them and his reputation is bad [the Rosh] – this man is not trusted at all to testify for a woman that her husband died, for due to his animalistic desire he is suspected of testifying falsely, and even if it is possible that regarding his seclusion with them he only transgressed a rabbinic prohibition, nevertheless, since his desire is great in this evil matter, he is suspected of testifying falsely [so it implies there in the Gemara]. And it appears to me that even in the case of one speaking offhandedly such a man is not trusted, for since his inclination overcomes him in this, who can know that this is offhanded, perhaps he is acting with cunning; and therefore, even one who secludes himself with unmarried women constantly is disqualified from testifying for a woman [it appears to me].

All those disqualified by Torah law, even though they are disqualified for testimony regarding a woman, nevertheless, when speaking in passing they are valid, just as in the case of a Kutite who is valid when speaking in passing. And even an Israelite who is suspect regarding the entire Torah, and similarly an Israelite who worships stars, is valid when speaking in passing, and all the laws of speaking in passing that will be explained regarding a Kutite apply also to them. And similarly, one who says he will worship stars, or who says he does not believe in the words of the sages of blessed memory or in reward and punishment or in providence—all of them are disqualified for testimony regarding a woman except when speaking in passing, and it is possible that these heretics are disqualified even when speaking in passing as they are suspect of causing others to stumble, and the beit din must scrutinize their words very carefully.

Even though they were very lenient regarding the testimony of a witness, nevertheless, based on a mere rumor that so-and-so died, and even if the rumor grows stronger—nevertheless, as long as no one comes to testify to his death, this is nothing. For the reason we explained that they were lenient is because she will be exacting in the matter and because people do not lie about a matter that is likely to be revealed; and in this case, even if she is exacting, nevertheless the second reason is not present since there is no one who testifies [the Gra, subsection 23]. And that which will be explained, that when they heard the voice of a person saying so-and-so died and they went and did not find a person there, that they permit his wife to marry, this is because in any event there was one who spoke with certainty that so-and-so died, and the reason that a person does not lie about a matter that is likely to be revealed applies to him as well. And even though we did not find who the speaker was, this is no worse than a witness reporting from a witness; even if the first has already died, nevertheless at the time he spoke, the reason that he would not lie about a matter likely to be revealed applied to him, and so too it is here. But with a mere rumor where there is no one who testifies that he died, this is nothing [it appears to me].

And according to this, if one witness testified that he heard that so-and-so died, and he did not say that he heard it from so-and-so and so-and-so but rather that he heard a mere rumor—we do not permit his wife to marry. And even if he did not explicitly say that he heard a rumor but rather said "I heard" without elaboration, we assume that he heard a mere rumor, and it is not sufficient to permit her to marry based on such testimony. And that which our teacher, the Rema, wrote in section 5 regarding a witness testifying to what he heard from another witness, that even if he did not say from whom he heard but rather said without elaboration that he heard—it is valid and we do not fear that perhaps the first witness was disqualified, thus far his words; this is specifically when he said that he heard from someone but did not clarify from whom he heard. In such a case, there is no concern that perhaps he heard from a disqualified person. However, when he says "I heard" without elaboration—this is nothing, and we concern ourselves with the possibility of a mere rumor.

However, our teacher, the Beit Yosef, in his responsum regarding an incident where a gentile said that he knew with true knowledge from tellers of truth that a certain person was killed, and a certain great authority wished to be stringent because he said "I heard" without qualification and did not say from whom he heard, we fear perhaps he heard a mere rumor, and our teacher, the Beit Yosef, answered him that one should not fear this, for as long as the plain meaning of the testimony is sufficient to permit a woman based on it, we are not to fabricate from our hearts that perhaps it was such and such, but rather we permit the woman based on that testimony. Thus far his words. And it seems to me also that he only said this in a case where he says that he knew with true knowledge from tellers of truth, for there is no reason to doubt it as a mere rumor, but regarding "I heard" without qualification—even our teacher, the Beit Yosef, agrees [and in Kuntres Agunot siman 139 and 148 he made a dispute regarding this, and so wrote the Atzeret Nivcharim subsection 36 and 33 as I wrote, and also in the incident of the Beit Yosef there were other sides to permit, see there; and what he wrote in Kuntres Agunot siman 233 from a responsum of the Mabit is also no proof, for there they knew that the first speaker was a gentile only they did not know who he was, as written in Atzeret Nivcharim; and therefore the primary ruling is not to permit based on "I heard" without qualification unless there is good supporting evidence for the report that it is true, and see Pitchei Teshuvah subsection 33].

That which we have said, that a witness on the authority of a witness is believed and there is no need to inquire further—this is when he says, "I heard from the mouth of so-and-so that so-and-so died or was killed." However, when he says, "I heard from the mouth of so-and-so that he was as if dead or as if killed"—we do not permit based on this. For since he used the prefix of comparison, perhaps it appeared to him that he died or was killed, and we must investigate for the clarification of the death and the killing [it appears to me].

Even though all those who are disqualified are fit for this testimony as I have written, nevertheless, there are five women whom the sages disqualified for this testimony because it was established by the rabbis that these women hate her and want to cause her to stumble so that she will be forbidden to her husband; it is possible that he is alive, and because of their hatred they testify to her that he died in order to ruin her. And these are they: her mother-in-law—because she says that after her husband's death her son will inherit all her labor and she will be the one ruling over her property. And even if she is not currently her mother-in-law, such as if the husband of this agunah is not from her but from another woman, nevertheless she hates her because perhaps the husband of this agunah will die and she will be subject to yibbum with his brother, who is the son of this witness, and she will then be her mother-in-law, and when her husband dies they will inherit everything she brought to her husband. According to this, if the yevamah is an ervah to the yavim, this concern does not exist [Chelkat Mechokek]; and likewise now, when it is not the practice to perform yibbum but only chalitzah [ibid.]. And the daughter of her mother-in-law is disqualified because she says, "This woman will inherit all the labor of my father and mother." And her tzarah is also disqualified, and this is in a place where they marry two wives, who hate one another. And her yevamah is also disqualified because she fears perhaps this woman will fall to her yavim before her husband and they will be tzarot to one another. According to this, when the agunah has offspring from her husband, she should be permitted to testify since she is not subject to yibbum; nevertheless, she should be disqualified because she fears perhaps her offspring will die and she will be permitted for yibbum [Beit Shmuel]. And one should not say: how can we disqualify her from testifying that her husband died because of a concern of yibbum and that they will be tzarot to one another, for behold she testifies, and according to her testimony she will indeed be subject to yibbum to her husband when this one left no offspring? For it can be said that this is her intention: that she will be subject to yibbum to her husband, and afterwards when the husband comes she will be forbidden to him; and even though we hold that when she was subject to yibbum by mistake she is permitted to her husband as written in siman 156, nevertheless she says in her heart that she will be ashamed to return to him. Furthermore, perhaps her husband will perform chalitzah for her and she will marry another, and afterwards upon the arrival of the husband she will be forbidden to this one and to that one [ibid.]. And likewise the daughter of her husband, who is her stepdaughter, is disqualified from testifying, for she hates her because she stands in her mother's place; and even in a place where they marry two wives and the mother of this one is still alive, she is nevertheless disqualified, for since her mother hates her, she also hates her [it appears to me]. And regarding what we wrote concerning a mother-in-law when she is not currently her mother-in-law and she is an ervah to the yavim or in a place where they practice chalitzah that she is permitted to testify, there are those who disagree on this, for the rabbis did not differentiate [see Beit Shmuel subsection 15]. Our teacher, the Beit Yosef, decided leniently, and so wrote the later authorities.

It is a simple matter that all women who are forbidden to testify for her—she is likewise forbidden to testify for them regarding the death of their husbands; for since they hate her, she also hates them, as "as water reflects the face, so the heart of man to man" [Gemara 117]. And specifically regarding testimony they are disqualified, but in the case of speaking in innocence (maseiach lefi tumo), it can be said that they are believed, for they are no worse than a Cuthite, and there are those who are doubtful about this [Atzeret Nevi'im, subsection 38]. And it appears to me that in the case of speaking in innocence they are believed, for regarding the bringing of her get we have established in siman 142 that they are believed because we primarily rely upon the get and not upon her testimony, and similarly in the case of speaking in innocence, we are not relying upon her testimony, and the law requires further study. [The Beit Shmuel in subsection 13 ruled for prohibition, and his proof can be refuted; see Atzeret Nevi'im there and examine it closely].

Regarding these women who are disqualified from testifying about her due to hatred, even if we knew that they loved one another—nevertheless they are not trusted to testify, for hatred is hidden in the heart. However, if they have already separated from one another, such as her mother-in-law whose husband has already died and she married another, and similar cases, regarding all the women we enumerated, when they have separated they may testify and we do not fear old hatred. Likewise, this daughter-in-law, when her son has already died and she married another and she testifies about this husband—she is trusted. And some say that rival wives, even though they have already separated, nevertheless their hatred is harsh and she is not trusted, but this is not clear, for if so we should disqualify every hater from testifying for a woman that her husband died, and we would suspect that he intends to ruin her; rather, certainly Israel is not suspected of this, as we maintain in Choshen Mishpat siman 33 that a hater is fit for testimony. And one should not distinguish between a woman and a woman because their minds are light, for from where do we have the right to say such a thing about the daughters of Israel? Rather, you have only what the sages said, and we do not innovate suspicions from our own minds. And likewise the males who are similar to these women, such as her father-in-law and the son of her father-in-law and the son of her husband—they are trusted to testify since the sages did not enumerate them. However, the yavam is not trusted to testify that his brother died in order that he may perform yibbum with his wife, but if he has children and he testifies that she may marry another—he is trusted. But when he did not leave children—he is not trusted even in this time when we are accustomed to perform chalitzah, for in this there is no reason to distinguish. And all these women who are not trusted to permit—likewise they are not trusted to prohibit, and more will be explained regarding this in this siman with the help of Heaven.

If the witness does not want to testify until they give him payment – his testimony is void, as is written in Choshen Mishpat at the end of siman 34, that one who takes payment to testify, his testimony is void. And even though we have validated all those disqualified from testifying regarding the testimony of a woman, nevertheless, this disqualification is different, for it is like one who has an interest in the matter, who testifies for the sake of money. And even though one who has an interest is also valid in the testimony of a woman, for she herself is believed and you have no greater interested party than this, and similarly the son of her husband is valid to testify as has been written, and he is an interested party to take the inheritance of his father; however, this is certainly disqualified and his testimony is void of itself. Since he knew the testimony and did not want to testify except because of payment – this is not testimony, and one suspected of this, his testimonies are void until it becomes known to you that he did not take payment for this testimony. And in that case, his testimony is valid even though he did not perform repentance. And similarly, if he returned the money to the owners and returned and testified with that same testimony – we accept it from him, for this is not a disqualification neither in its beginning nor in its end, but rather as long as he takes payment, the sages penalized him to void his actions [the Ran in the name of the Ramban at the end of the second chapter of Kiddushin, see there] [and his intention is that he takes it even when his testimony will not be effective, for if not so, he is disqualified by Torah law].

However, if they send him to inquire regarding the death or killing of a certain person, whether it is true that he died or was killed or not, and he takes payment for this, and he comes and testifies that he died or was killed – they accept his testimony, for he did not testify for payment, but rather he took payment for his exertion and his travel. However, this is specifically when they fixed the payment for his exertion whether his testimony would be effective or whether it would not be effective; but if they fixed for him more payment if his testimony would be effective – his testimony is disqualified, for he is taking payment to testify. And what is his remedy if they hired him in such a manner? When he comes to beit din to testify, they shall say to him that you shall not take the surplus even if your testimony is effective for the woman, but rather you shall take as if your testimony was not effective, and then he returns to his fitness, as has been written. And all this is regarding one who takes payment for his exertion, but regarding one who takes payment for the delivery of his testimony, even if they give it to him explicitly whether his testimony is effective or whether it is not effective – nevertheless, his testimony is void, for in any case he is taking payment for testimony. And there is one who wishes to say that even if he takes payment for his exertion for his travel to investigate and inquire, if they give him more than what is necessary to give for this exertion, it is like one who takes payment to testify and his testimony is void, even if they give him this sum whether his testimony was effective or whether it was not effective – and there is no basis for these words, for what limit is there to this? And even if he takes payment for much exertion, what of it? For he takes it even if the testimony is not effective. And regarding a Cuthean speaking in innocence, it is obvious that if he takes payment for his testimony that his testimony is void.

If several witnesses testified regarding the death of the husband and one among them was found to be disqualified for the testimony of a woman, such as a robber by Torah law or the like—we do not say "testimony that is partially void is entirely void" as written in Choshen Mishpat siman 36, even if they saw the testimony together with the disqualified witness and also testified together. The reason is that these who are disqualified for the testimony of a woman are only disqualified because they are suspected of lying; however, if we knew that they were not lying, we would accept their testimony. Therefore, when there is a valid witness with him—behold, his testimony is true [Noda BiYehudah siman 45]. And although there are those who have doubts regarding this, nevertheless, the primary ruling is as I have written, and several of the great authorities have agreed likewise. Furthermore, this law applies only in a place where two witnesses are required, for there the Torah decreed that just as with two, if one of them is found to be a relative or disqualified their testimony is void, so too with three [Makkot 6a]; however, regarding the testimony of a woman, even with two their testimony is not void, for there remains one, which is sufficient [it appears to me].

Every instance where we have disqualified a witness from testifying regarding a woman's testimony, there is no distinction between testifying to her concerning the primary fact of death, where without his testimony she would be forbidden by the Torah, and testifying to her regarding a matter where by the Torah his testimony is not required but the sages were stringent in this, such as one who fell into water that has no end and they waited until his soul departed, and similar cases from the stringencies that will be explained—in all of them the law is equal, that those who are disqualified are disqualified for every matter of a woman's testimony.

It has already been explained that a witness who said, "I heard that so-and-so died," even if he heard from a woman who heard from a slave, he is fit for the testimony of a woman and we permit marriage based on his word. And even if he did not say from whom he heard, but rather said plainly that he heard—he is fit, and we do not fear that perhaps the first witness was disqualified. And some say that we ask him from whom he heard, and this is certainly so where it is possible to ask, we ask, for behold, wherever it is possible to clarify, we clarify. And if they asked him, "From whom did you hear?" and he said, "I do not remember if it was from one who is fit or from one who is disqualified"—some prohibit, similar to one who heard from a koti and does not remember if he was speaking in innocence or not, which will be explained, that she is prohibited from marrying. And some permit—and such is the primary ruling, and it is not similar to there; for there the doubt is equal, but here the vast majority are fit, and we do not fear for the minority of those disqualified by Torah law.

And even though with a witness [reporting] from a witness we do not investigate and examine regarding the manner of his death, for this witness who testifies does not know, as he was not present at his death and only heard from the first [witness], and we are not obligated to send for the first [witness], for so ruled our teacher, the Rema, in section 8, that the beit din does not need to send for him even if he is in the city, but rather they rely on a witness from a witness ab initio. Thus far his words. Nevertheless, the witness himself who testifies, or the woman, or the slave, "So-and-so died and I saw that he died"—they ask him: How did you see and by what did you know? If he testified to a clear matter—he is believed; and if he testified to matters that mostly lead to death—we do not permit his wife to marry, for we do not testify about a person that he died unless they saw him certainly dead without doubt. And even if he saw him moribund for two or three days, he does not testify about him. And there is one who says that we testify regarding a moribund person—but it is not so, for they were stringent regarding the essence of the testimony even with very remote concerns, and several of the great authorities have already challenged this opinion [see Be'er Sheva subsection 18 and Pitchei Teshuva subsection 36]. And there is no difference between whether he said plainly "So-and-so died" or whether he said "He died and I saw him that he died," for even when saying plainly "he died," the intention is that he was present at the time of death, as he is the first witness. Therefore, in all cases, it is necessary to ask him: How did you see the death, whether it was drowning or killing or he died on his bed? And by what did you know that this person who died is so-and-so, the husband of this woman? And likewise, from where did you know that he certainly died, perhaps you saw things close to death and not certain death? And if the beit din did not ask him, even though they acted improperly—nevertheless, we permit the agunah when he is not in the city; for if this were to hinder [the validity] ex post facto, why was our teacher, the Rema, lenient regarding a witness from a witness when the first is in the city? [So it appears to me, and so wrote the Atzeret Nevi'im].

And one should not wonder why regarding the first witness we question him, yet regarding a witness from the mouth of a witness we do not question the first even when he is in the city according to what our teacher, the Rema, ruled; for certainly it is so, as we established that we do not examine witnesses for women with drisha and chakira, as will be explained, because of the ordinance of agunot. Therefore, when this second witness testifies that he heard from so-and-so that he died—this is sufficient. And if we were to call the first and question him in detail, this would be similar to drisha and chakira. However, when the first testifies before us, this is not included in drisha and chakira, for we are asking him the essence of the matter; for even in monetary laws one does not require drisha and chakira, and nevertheless we ask the witnesses: "How do you know that this one is liable to this one?" And even though in monetary matters regarding a witness from the mouth of a witness it is necessary to send for the first—this is because in monetary matters a witness from the mouth of a witness is completely disqualified. But regarding the testimony of a woman, where the sages validated a witness from the mouth of a witness, one should be more lenient regarding a witness from the mouth of a witness in this specific detail than regarding the witness himself for the reason that has been explained [it appears to me, and see Maggid Mishneh and Lechem Mishneh chapter 13, halacha 15].

However, even regarding a witness from the mouth of a witness, there are those who disagree and hold that when the first witness is in the city, the beit din must send for him and hear from his mouth in detail, and this is more logical, for since he is in the city, why should we not clarify the matter? For this is not in the category of derishah and hakirah, as I have written. And there are some of the great authorities who strengthened the ruling of our teacher, the Rema; however, we find that our teacher, the Beit Yosef, wrote in a responsum with simplicity that if the witness is in a nearby place—one asks him, and if not—the woman is permitted. Thus far his words. However, this is certainly so when the second witness explains his testimony as to how he knows that he died—one does not need to send for the first witness, and such is the primary halakhah.

Some say that even the woman herself, when she comes before a beit din and says her husband died, they must ask her how he died just as they ask a witness, and some disagree regarding this, that regarding the woman herself there is no need to ask her, for behold, we have not seen that when a woman comes to beit din and says that her husband died that they ask her how he died, and logic dictates so; for it is granted that during a time of war she speaks based on imagination, and likewise a witness when he says "so-and-so died," it is possible that he did not actually see the death and left from there before the death, but the wife of a man, when he dies upon his bed, it is obvious that she would not leave him so and she would wait until he dies or recovers from his illness. And in truth, the woman herself is not in the category of testimony, for specifically a disqualified witness whom the sages validated is in the category of testimony that the sages validated for this testimony, but the woman is a litigant, except that the sages believed her for reasons that have been explained, and if so, she is not in the category of a witness such that we would need to ask of her how and what, unless the concern is evident, such as in a war where she speaks based on imagination and the like, as will be explained further with the help of Heaven.

Our teacher, the Rema, wrote in section 5: If one heard the voice of professional mourners who mentioned him among the dead and eulogized him – his wife may be married off. Thus far his words. And there is one who says that it is not specifically two professional mourners and not specifically that they eulogized him, but rather even one professional mourner, and she did not eulogize him but only mentioned him among the dead, his wife may be married off; for so it is in the Tosefta at the end of Yevamot, and this is its wording: Even if one heard the voice of a professional mourner who mentions him among the dead, there is no greater testimony than this. And it appears to me that this is true, that one professional mourner is sufficient, but specifically when she eulogized him with a weeping voice, for so it is stated in the Yerushalmi: If one heard the voice of a professional mourner wailing for him among the dead, there is no greater testimony than this. Thus far its words. And "wailing" is a term for "crying out," as it is written, "The mother of Sisera wailed" (Judges 5:28). And this is the meaning of the term "mentioning" in the Tosefta, just as we are accustomed to using the term "mentioning" regarding the dead, which is a prayer for the soul of the deceased. And this is specifically when there is a sage in the city who knows that she is mourning for him and did not protest against her, for if not so, there is no proof, as perhaps she is mourning for him based on an assessment of death.

From the law that has been explained, the poskim learned that one must protest against women so that they do not eulogize a person based on assessments proving that he died until the death becomes clearly known through the permission of a beit din. Similarly, his wife is forbidden to eulogize him or to wear black as long as there is no testimony that she is permitted to marry. Likewise, the sons shall not say Kaddish and the relatives are forbidden to practice mourning until his death becomes known through testimony that permits his wife to marry. The sons shall not sign regarding him in the manner that one signs regarding the deceased, such as "his memory is for a blessing" or "of blessed memory," so as not to come from this to a mishap. There is one who wishes to be stringent even regarding one who does not have a wife, not to mourn for him based on an assessment, lest they do so for a person who has a wife [ibid.], but it is not the primary view, for we are not to issue such decrees of our own accord [and so wrote Rabbi Y. Kuli in a responsum there]. Similarly, no beit din should give a document of testimony to a woman regarding what witnesses testified before them if there is not enough in that testimony to permit her, for perhaps a mistaken beit din will be found that will permit her based on such testimony. Therefore, when they give this to the woman, they shall write explicitly that they did not permit her based on this testimony, and they only give it to her because perhaps it will become more clarified, or perhaps the giants of the generation who are greater than them in wisdom will be found and will rule that according to the law she is permitted to marry based on these testimonies. Likewise, in all such matters, one must be careful in these affairs.

Our teachers, the authors of the Shulchan Aruch, wrote in section 6 that during times of decrees, women are permitted based on the testimony of penitents who testify to what they saw during the time of distress, even though they abandoned the religion due to coercion. And empty people who abandoned the religion and are reckless, who returned in repentance but not in complete repentance—one should not rely on their testimony except in the case of a masiach lefi tumo or if it is known that they testified without deceit or distortion, and everything is according to the matter of the witness and according to the perception of the eyes of the judge. Thus far their words. And even though in all testimony we require its beginning and its end to be in a state of fitness—this is regarding those disqualified in their person, and furthermore, regarding the testimony for a woman, the sages did not require the laws of testimony, and only if it is known that they will not lie is she permitted to marry; therefore, when they testify in their fitness, even though at the time they saw the evidence they were not fit, nevertheless even then they were coerced—and therefore we now accept their testimony. And so many of the great authorities agreed that regarding the testimony for a woman, we do not require its beginning and its end to be in a state of fitness. But if he has not yet returned in complete repentance—we do not accept his testimony except in the case of a masiach lefi tumo. And even though from the wording of the Shulchan Aruch who wrote "or if it is known that they testified without deceit etc." it implies that even without masiach lefi tumo they are fit, nevertheless we do not rule accordingly; and furthermore, the intention is when they testified without deceit and it is evident that they returned in complete repentance, and for this reason it concludes that everything is according to the perception of the eyes of the judge and the matter of the witness [see the Gra sub-section 35 and the Pitchei Teshuva sub-section 42]. However, if at the time of seeing the evidence they were not coerced and transgressed out of desire—they are disqualified even if they have now returned in repentance, though there are those who qualify them even in this [Taz] since at the time of the delivery of the testimony they returned in complete repentance, they surely will not lie [and the Beit Shmuel sub-section 19 appears to agree with the Taz].

That which has been explained, that a rasha regarding Torah prohibitions is disqualified from testimony for a woman—this is when it is known that he is a rasha. However, if through this testimony he makes himself a rasha, such as if he says, "I killed the husband of this woman," we accept his testimony and she may marry. The reason is that we hold "a person cannot make himself a rasha." And as for that which we hold "the admission of a litigant is like a hundred witnesses"—this is for monetary matters, but not for a fine, nor for punishment, nor for disqualification. Therefore, we split his words; we believe him that he was killed, and we do not believe him that he killed him. For behold, he testifies to two things: one, that so-and-so was killed, and one, that he is the killer; and regarding two things, we split his words. And even though we hold "testimony that is voided in part is voided in its entirety," here it is impossible to say so, for what he says—that he killed him—is not truly testimony but rather an admission. For it is only called testimony when the matter affects others, and this thing does not affect the agunah, whether he killed him or another killed him; the testimony is only that which he testifies that the husband of this woman is no longer alive.

And even regarding those disqualified from testimony, such as a male slave or a female slave, we also say "we split the statement," and when they said "I killed so-and-so," we permit her to marry based on the reasoning that "a person cannot make himself a rasha." And the same law applies to a Cuthean speaking offhandedly; when he says "I killed so-and-so," we permit his wife to marry. And even though regarding him the principle "he cannot make himself a rasha" is not applicable, nevertheless, we do not even need to say "we split the statement" regarding him, for we do not take his words as formal testimony but rather as an offhanded remark, and what does it matter to us if he makes himself a rasha or not? And even though it will be explained that regarding a Cuthean in such a case he is not believed for a different reason—for we say his intention is to cast fear so that they will be afraid of him and he is lying—this is when we can attribute such a motive to his words, such as when he says to an Israelite, "Do my will, and if not I will kill you just as I killed so-and-so" and the like, where it is apparent from his words that he speaks by way of boasting. But when he says plainly and offhandedly "I killed so-and-so," we do not fear this.

Just as one who says "I killed so-and-so," his wife may remarry for the reason that has been explained, so too when he says this regarding his relative—for example, Reuven who came to beit din and testified that his son killed the husband of this woman—his wife may remarry. And even though we do not accept his testimony regarding his son, nevertheless we split the statement, and even though testimony that is voided in part is voided in its entirety, and in this case the answer we provided in section 51 is not applicable, nevertheless regarding the testimony of a woman we do not say this, just as we did not require all the laws of testimony.

Just as one witness is believed regarding the testimony of a woman when he testifies in beit din, so too the agunah herself, when she heard from one who says "your husband died," comes to beit din and says "my husband died" and she no longer requires his testimony. And when they ask her, "From where do you know?" she says that she heard from so-and-so. For this requirement of ours for the witness who testifies to testify in beit din is because without a beit din there is no ability to permit her, and not because his words are ineffective without a beit din; therefore, when she comes to beit din, the beit din permits her. And even though this person who spoke to her can retract when he comes to beit din, for everything he says outside of beit din is nothing, nevertheless, as long as he does not retract, why should we say that he will retract? However, if he came afterwards to beit din and said that he did not die and he told her a lie—it is obvious that he is believed even if they already permitted her. For since they permitted her based on his words and now in beit din he retracts, and according to the law he can retract, the permission is automatically void [it appears to me].

And so too, if he came to beit din and said that she is lying, for he did not say to her at all that he died, it is not only if he said this before the beit din permitted her, for even with a witness and a witness the law is so, as will be explained, but even if they already permitted her to marry—they return and forbid her. For the general rule is that regarding any witness from the mouth of a witness, when the first witness comes and contradicts the second, saying that he did not say it to him at all—the first is believed [Ran in the name of the Ramban, chapter 7 of Ketubot]. And there are those who raised a difficulty: let her be believed through a migo, for if she wanted, she could say now "my husband died" and not in the name of the witness, and let her be believed through a migo that the witness indeed said so to her. And it appears to me that this is nothing, for the witness also has a migo, for if he wanted, he could say "I told her untruthfully," for in beit din one can retract what he said outside of beit din [see Chelkat Mechokek subsection 17 and Beit Shmuel subsection 23]. And it is not specifically regarding the woman herself, but rather regarding any witness from the mouth of a witness the law is so. However, as long as the first does not contradict her—she is believed in everything she says in the name of the witness. And even if she says that she heard from a witness that he drowned in the sea and the beit din permitted her—she is believed [Beit Shmuel subsection 22], and we say that presumably they permitted her according to the law, for there were witnesses who saw him after they brought him up from the water and the like.

There are those who are uncertain in a case where she said in beit din that she heard from a slave or a maidservant that her husband died and they permitted her, and afterwards the slave or the maidservant comes and contradicts her, saying they never told her at all, whether she is believed or not. And similarly, a kosher witness who testified in beit din what he heard from an invalid witness, and the invalid witness comes and contradicts him, whether the invalid witness is believed to contradict him or not [ibid.]. And it appears to me that he is believed to contradict him by means of a mijo, for if he wanted, he could have said: "I told him (or the woman) and I recant," for regarding anything one testifies outside of beit din, he can recant, as I have written [and with this, several things brought by the Pitchei Teshuva in sub-sections 44–45 are refuted]. And know that in Kuntres Agunot siman 305, he brought in the name of one great authority that regarding a kosher witness reporting from an invalid witness, even if the invalid witness contradicts the kosher witness saying he never told him at all, the invalid witness is not believed; and so wrote several other great authorities [ibid. in the name of Kehillat Yaakov and Chatam Sofer], but to me the primary view appears as I wrote, due to the reason of the mijo. And there is one who raised a difficulty regarding this, that if so, even when she marries another and the first witness comes and contradicts her, we would remove her from her husband, and if so, this is not "ways of pleasantness." And it appears to me that certainly once she has married, we do not believe him based on a mijo to remove a woman from her husband, and we do not say "a mijo to extract." After she has married, the matter is already concluded and we pay no attention at all to the words of the first witness unless two kosher witnesses testify that he is alive. However, as long as she has not married, the first one is believed—whether kosher or invalid—both to contradict the one testifying in his name and to recant from his testimony that he said outside of beit din. However, the opinion of our teacher, the Beit Yosef, in a responsum [brought in Kuntres Agunot siman 160] is that regarding testimony for a woman with a witness reporting from a witness, when the second testified from the first, the first cannot contradict him; but many of the great later authorities did not rule so. However, it is a simple matter that when two witnesses testified from one, he cannot contradict them [Chelkat Mechokek]. Nevertheless, when he says that he told them but now upon his arrival in beit din he recants his words, it appears to me that we nullify their testimony, since it is within his power to recant from what he said outside of beit din, as I have written [and see Kuntres Agunot siman 159; and in siman 160 itself he did not write so, see there and examine closely]. And when she testified from a gentile speaking offhandedly and the gentile came and contradicted her or recanted—the matter is simple that we pay no attention to his words; and see what I wrote in section 106, that when the gentile recants, it is a legal doubt.

Our teacher, the Beit Yosef, wrote in section 9: One witness says he died and one witness says he was killed, even though they contradict one another, since both agree that he is no longer alive—she may marry. Thus far his words. Many disagree with him, for this is a contradiction in the essential inquiries, as this is the very essence of the testimony. And granted that for the testimony of women we do not require inquiry and examination, nevertheless it is obvious that when they contradict one another in the essential inquiries their testimony is void, for it is no better than monetary laws which also do not require inquiry and examination, yet if they contradicted one another in the essential inquiries their testimony is void, as is written in Choshen Mishpat in siman 30. Furthermore, our teacher, the Beit Yosef, himself wrote in section 21 that if they contradicted one another in the secondary investigations they are valid, which implies explicitly that when the contradiction is in the essential inquiries, the testimony is void. And even though in the Mishnah [117b] we hold regarding two co-wives that when one says he died and one says he was killed they may marry, this is because a co-wife is not believed regarding her fellow and her contradiction is not considered a contradiction, and it will be explained in this siman; but regarding witnesses, it is a contradiction in the essential inquiries, and so it is explicitly stated there in the Yerushalmi to distinguish between co-wives and witnesses.

However, the opinion of our teacher, the Beit Yosef, is—either that he likens this to a contradiction in the bedikot, as this is not the essence of the matter, and it is like a contradiction regarding a loan between a black maneh and a white maneh [Beit Shmuel], for what does it matter to me if he died or was killed? Or, he holds that regarding the testimony of women, even a contradiction in the chakirot does not concern us, for in any matter of testimony that requires two witnesses, their testimony is automatically void, but in the testimony of women where one is sufficient, one of them must be testifying the truth, and this is similar to two sets of witnesses who contradict one another, where this set comes on its own and testifies and that set on its own, as written in Choshen Mishpat siman 31, and the same applies to the testimony of women regarding a witness against a witness. And that which he wrote in section 21, "a contradiction in the bedikot," is not precise, and the same applies to chakirot; and indeed, some say that the Shulchan Aruch there should be emended to read "a contradiction in the chakirot" [Bach]. Or, it is possible that the seven chakirot of time and place that we explained there in Choshen Mishpat siman 30, which we derive from verses, are also not effective in the testimony of women. And a proof for this reasoning—for if we were to say that regarding "died" and "was killed" with witnesses it constitutes a contradiction and their testimony is void, we should have said the same regarding rival wives, for the reason that with rival wives their contradiction is not a contradiction is because we say that he is alive and she intends to ruin her, as will be explained, and this is only in a contradiction where this one says "he died" and this one says "he did not die." But regarding "died" and "was killed," where each one testifies to permit her, if with witnesses it were considered a contradiction, it would also be a contradiction with rival wives [Ein Yitzchak in the name of Rav Chaim Shmuel]. Furthermore, there in the Mishnah it is taught: One witness says "he died" and one witness says "he did not die"—she shall not marry; and if we were to say not like our teacher, the Beit Yosef, let it teach an even greater novelty: that even when this one says "he died" and this one says "he was killed," where both admit to his death, she shall not marry. Rather, certainly in such a case she may marry [ibid.], and the Yerushalmi can be reconciled [see Noda BiYehudah]. Therefore, for the halachah, many of the great authorities agreed with the words of our teacher, the Beit Yosef, and even one who is stringent in this to be concerned ab initio for the words of those who disagree, nevertheless, if she married—it is simple that she shall not leave, and it is forbidden to cast aspersions on the marriage.

And we found that our teacher, the Beit Yosef, in a responsum, ruled regarding a contradiction where one says he died in such-and-such a place and the other says in another place, that it is not considered a contradiction. He follows his own reasoning, and from this it appears explicitly that he holds that even a contradiction in the seven inquiries does not ruin the testimony in the testimony of women. It is clear that this is for the reason we wrote, that in any case one is valid, and this is sufficient in the testimony of women, and all the more so in other types of contradictions. However, according to those who disagree with him, one must be precise regarding contradictions as to whether it is a contradiction in the examination or in the inquiry. It is a simple matter that in any place where it is possible to reconcile the words of the witnesses so that they do not contradict one another—for example, if one says he was killed and one says they drowned him in water—where it can be said that first they killed him and afterwards they cast him into the water, and this one saw the killing but not the drowning, and this one saw the drowning but not the killing. And so too in other matters, for we are obligated to reconcile their words so that they do not contradict one another, even in a remote manner. For even in capital laws, we trouble ourselves to reconcile their words so that they do not contradict one another, as written in Choshen Mishpat there, and all the more so in the testimony of women. [And what the Beit Shmuel wrote at the end of subsection 25 regarding "killed and drowned," that according to the Shiltei HaGibborim it is a contradiction, requires further study; for it can be said as we wrote, and so wrote the Ba'er Heitev in the name of the Knesset HaGedolah, and it is clear].

Our teacher, the Beit Yosef, wrote in section 10: If they heard a voice saying "So-and-so has died" and they went and found no person there—they may permit his wife to marry. But if they heard this voice in a field or in a ruin—they do not permit her to marry based on that voice, for we fear perhaps it is a shed, since the voice emanated from a place where shedim are commonly found. Thus far his words. For in a city shedim are not commonly found, only in fields, ruins, and pits [Yerushalmi]. And even though in the Gemara [122a] they said that where they saw a shadow of a shadow, which is a double shadow, we do not fear for a shed because they do not have a shadow of a shadow, nevertheless he omitted this because the Tur wrote in the name of the Gaon that nowadays we should not rely on this sign as we are not experts in this. And even though our teacher, the Beit Yosef, in siman 141 regarding a get brought this opinion, it seems to me because regarding a get there must necessarily be three people standing from afar to see, for one must write and two must sign, and with three we rely that they will recognize the double shadow; but here, where one is sufficient, we do not rely on this, and even if there are many people, for we do not distinguish. Furthermore, there he wrote that the body is cast before us and only it is impossible to recognize him, and regarding this body there is no fear perhaps it is a shed, rather there is reason to fear perhaps the one who cried out was a shed and this body is not the one who cried out, and it is a remote fear, therefore we rely on this sign; but here, where they found no person at all—we do not rely on this sign [Beit Shmuel].

And in section 23, our teacher, the Beit Yosef, wrote: If they saw someone standing from afar and he said that he is "so-and-so the son of so-and-so" or "so-and-so from such-and-such a place," and "a snake has bitten me and I am dying," and they went and found him changed and did not recognize him—they may permit his wife to marry. Thus far his words. And some have the version "so-and-so the son of so-and-so from such-and-such a place," for even though generally the sign of the father or the place is sufficient, nevertheless here, where they did not recognize the body because its form had changed, we are stringent in this to require the name of the father and the name of the place [ibid.]. And as for why we do not fear a shed in this case, the reason is simple: since we see a body before us, we have no reason to fear that the one who cried out was a shed and this body is not the one who cried out, and why should we fear such a remote concern? However, since our teacher, the Beit Yosef, in siman 141 feared a shed even in such a case, it must be said that this deals with an inhabited area where shedim are not common [see Beit Shmuel sub-section 26 and sub-section 66, and it requires further study, and delve into it], and in the Gemara there they also did not fear a shed in this law, and only in the previous law, when they did not find a person, did they fear a shed.

And know that in the Gemara there, they asked regarding the previous law: when no person is found there, let us be concerned that perhaps it is a rival wife who has come to ruin her, or the other five women who hate her? And they answered that in a time of danger, we write a get even though we do not recognize them, and similarly regarding an agunah, if we do not accept the testimony of these, she will remain an agunah; therefore, they were lenient in this. And therefore, there are some of the Rishonim who said that according to the conclusion that because of danger we are not concerned for a rival wife, so too we should not be concerned for shedim even in places where they are common, but many of the Rishonim hold that although we are not concerned for a rival wife, for shedim in a place where they are common we are more concerned, and this is also the opinion of the Tur and our teachers, the authors of the Shulchan Aruch.

The Rambam, of blessed memory, in chapter 13 of Laws of Divorce, did not write at all this law of section 60 regarding when no person was found there, and only the second law of section 61, where they brought him up and did not recognize him, did he rule as has been written, that they permit his wife to marry based on the voice they heard from him saying that a snake bit him and he is dying, and he did not mention the matter of shedim at all. And similarly there in chapter 2 regarding one who was cast into a pit and said, "Whoever hears his voice shall write a get for his wife," he also did not mention this concern of shedim, and only wrote that even though they brought him up and did not recognize him—it is valid, for this is like a time of danger when they give even though they do not recognize, see there. And some say that his opinion is like the previous opinion that we cited, that just as we do not concern ourselves according to the conclusion with a co-wife, so too we do not concern ourselves with shedim [Bach, and so it appears from our teacher the Beit Yosef in chapter 6 of Gittin], but it is impossible to say so, for if so, why did he omit this law where they did not find a person at all, which is a greater novelty than the law he wrote where they found a person and did not recognize him. And some say that his opinion is like the opinion of the Gaon that we wrote, and they questioned this, for if so, he should have forbidden it in all cases, and in truth the Maggid Mishneh [ibid.] wondered about him why he omitted this law where no person was found there [and the words of the Beit Shmuel in subsection 26 are not understood].

And it appears to me clear that the Rambam, of blessed memory, holds that in the conclusion where they said that in a time of danger we grant permission even though they do not recognize him, its explanation is: that they permitted this both regarding a get and regarding an agunah when they saw the dead body even though they did not recognize it, but nevertheless it is a requirement that they find some body, but where no body was found at all – we do not rely on merely hearing a voice, and consequently this law of section 60 is rejected from the halacha. And there is clear proof for this, for even regarding a get the Rambam required that there be a dead body, and in the Gemara [Gittin 66a] this was not mentioned at all, but rather he explains that according to the conclusion this is required, and in truth, since there is a dead body there is no longer a concern of demons. However, the Tur and the Shulchan Aruch in siman 141 hold that even when a dead body is found we are concerned for the suspicion of demons [and it requires further study according to this why in Yevamot it only challenges the first clause of the Mishnah and not that of Tzalmon, and in Gittin there according to the initial thought it deals with a case where they did not bring up any person from the pit, and so it appears from the commentary of Rashi that even according to the conclusion it is so, and so it appears from the Yerushalmi Yevamot there, see there, which compares that of Gittin to the first clause of the Mishnah, and examine this closely].

And behold, in these laws it appears that even if the listeners did not recognize the voice as being the voice of that specific person who was crying out, such as if his voice was not known to them—nevertheless, they permit his wife to marry. And it is not only necessary to state this when a corpse is found, where there is no concern for a remote suspicion that perhaps the one crying out was someone else and the body is not that of the one who cried out, but even in the first law where no person was found there at all, since we heard that he clarified his name and his father's name or also the name of his city—we do not concern ourselves with a demon in a place where demons are not common. And that which our teacher, the Beit Yosef, wrote, "So-and-so is dead," he spoke briefly, for "so-and-so" alone is not sufficient as was written in section 23, but rather he means so-and-so son of so-and-so or also from such-and-such a place. And in siman 141 regarding a get where he does not clarify his name but rather says "anyone who hears his voice should write a get for his wife," the Rambam indeed wrote there: "and that is provided they knew him," meaning that they recognize who the speaker is either by his face or by recognition of the voice [see there in the Hagahot Maimoniot, and it requires further study]. And if he does not mention his name but they recognize him by recognition of the voice, that this is the voice of so-and-so son of so-and-so—it appears that one may rely on this, and so several of the great authorities agreed, but some of the great authorities questioned this, and it requires further study for the halacha [and from the Rambam there is no absolute proof].

And know, that according to the words of our teachers who permit based on a voice even if they did not find a person there, one should not raise a difficulty: do we not maintain that based on the voice of a rumor we do not permit, as written in section 32? For in truth it is not comparable, as this voice is like testimony, either from the man himself or from another who is making the matter known. And also, one need not fear that perhaps a gentile is the one speaking, for this too is a complete permission, as this is like one speaking in innocence since he proclaims with a voice without any question, and therefore if he concludes "marry off his wife" – this is not like one speaking in innocence, for his intention is to have her married, as will be explained. And it would be possible to say that in truth it deals with a case where the listeners knew that the voice was the voice of an Israelite, but the poskim did not mention this, and if we required specifically the voice of an Israelite they should have mentioned it, just as regarding a writing that will be explained, they mentioned that it must be the writing of an Israelite. And even though one could say that this is not in the category of one speaking in innocence, for speaking in innocence applies when one tells another that so-and-so died without any intention for a specific matter but rather in his simplicity, whereas here where he stands by himself and cries out "so-and-so died," must he not perforce be crying out with some intention and it is not in his simplicity? For one can say that this too can be in his simplicity, such as if he was his friend and was lamenting to himself over him, and since one can attribute it to something like this – we no longer fear. However, all this is according to the opinion of the Tur and the Shulchan Aruch, but according to what I wrote regarding the opinion of the Rambam, they do not permit according to his opinion based on a mere voice.

The Rambam, of blessed memory, wrote: We have already said that a witness based on a witness is valid for the testimony of a woman—in what case does this apply? When he heard from a person of understanding, such as a slave or a maidservant, but if he heard from a shoteh or from a minor, he may not testify and one does not rely on their words. If he heard from children saying, "We have just now come from the funeral of so-and-so," "such and such eulogizers were there," and "so-and-so the sage and so-and-so followed after his bier," "such and such they did to his bier"—he may testify based on them according to these matters and the like, and one permits his wife to marry. Thus far his words. And it was transcribed in the Shulchan Aruch, section 13.

It is explained that the difference is that when a minor says plainly "so-and-so died" – there is nothing in his words, whether he is speaking as a masiach lefi tumo or whether he is testifying as formal testimony. However, when they say something like an event regarding this, in matters of a eulogy and a funeral and the like – it is a sign that their words are true. Furthermore, it is implied that even in such a case, one child is not believed, since he wrote "children," but there is one who says that this is not exact, for what is the difference between one and more? [Ein Yitzchak section 83]. Nevertheless, it appears to me that they are certainly not believed as formal testimony, but rather by reason of the conversation of children; however, without the context of the matter, we say that they killed a grasshopper and called it by that name, as is explained in the Gemara that such is the way of children. But when they say the matter of the eulogy and the funeral, it is evident that the matter is true, and since it is so – it is necessary that there be no fewer than two who are speaking between themselves. However, it is also possible that when the child relates what he saw before adults – it also avails, and this requires deliberation. And even if they said "so-and-so died and we are coming from his burial" – it also does not avail for the reason that has been explained, unless they elaborate with such words and the like.

And know, that the Tur wrote in this wording: Even if they heard from children who said so-and-so died, whether they intended to give testimony or whether they did not intend to give testimony – his wife may be married; and if they hear from them saying "we are coming from his burial," and we do not rely on them to marry his wife unless they say "such and such a number of eulogizers were there" and "such and such a number followed the bier," so that there is something that indicates the matter is true. Thus far his words. And it appears from his words that when he says "so-and-so died" – it is sufficient, but when he says "we are coming from his burial" – he must elaborate on this matter; for regarding death there is no concern that they called a grasshopper by a man's name, but regarding burial there is a concern, as is the way of a child who plays and buries a grasshopper and assigns it a man's name [Perishah]. However, our teacher, the Beit Yosef, wrote that it is impossible to say that he would distinguish in this, and therefore he explained that that which is written "and if they hear from them" is a scribal error and it should say "if they hear from them," and that which he concludes that he must elaborate in words refers to all of them [and so wrote the Bach], and so it is explicitly explained from the Kitzur Piskei HaRosh which the Tur authored [see there, chapter 2, siman 6] and one must emend instead of "and if" to "or," and his intention is that when they said "so-and-so died" or "we are coming from his burial" they must elaborate in words, and so it is in the Kitzur Piskei HaRosh, see there [and according to this the wording is corrected].

However, regarding that which he wrote, "whether they intended for the purpose of testimony or whether they did not intend for the purpose of testimony" – his intention is not that their testimony is effective, but rather this is the explanation: whether their intention was for the purpose of testimony or whether it was not for the purpose of testimony, we accept their words. For even though regarding a Kuti, when he intended for the purpose of testimony it is even worse, nevertheless, regarding children, whom we do not suspect of lying – we accept their words as if they spoke in passing, for the testimony of minors is nothing [Bach and see there]. However, for those who hear from them, there is no difference whether they intended in their hearing from the children that they should testify in beit din or not [ibid.].

Some say that specifically with a minor who has reached the age of toddlers, lengthy speech is effective, but with less than this measure, it is impossible to accept their words even in "conversing in innocence," just as with a deranged person whose speech is of no effect in any matter. And the same law applies if a minor who has reached the age of toddlers relates that he was present at the killing of a certain person, how and what was the cause of the killing, and relates with lengthy speech—we accept his words and permit the agunah to marry. And some say that with a minor it is only effective when "conversing in innocence," and not when he intends to testify, just as with a gentile. And such is the opinion of one of the great Rishonim. However, the opinion of the Tur is not so, as I have written, and so it is implied from the poskers.

And this, that children are believed through a detailed narrative—this is specifically when they recount immediately after seeing the death and the eulogy or the killing and its cause, such as when they say "we have just now come from the eulogy of so-and-so" and "such and such occurred," as has been written, and they recount before a beit din or before other people, and those people can testify even after some time [Beit Shmuel]; and so indicates the wording of the Rambam who wrote "we have just now come." But if they do not recount immediately—their testimony is of no use at all, for it is impossible to establish their words when they recount an event that happened long ago. And even if they grew up afterwards, they cannot testify to what they saw in their childhood; and even though there are matters regarding which a child is believed in his adulthood to testify about what he saw in his childhood as has been written in Choshen Mishpat siman 35, and regarding the testimony of a woman they were lenient, nevertheless here this is not due to stringency but because it is impossible to establish a foundation upon their words, for perhaps it was some game and what they imagined appeared to them as it did. And the measure of "immediately" has not been specified, and it depends on the assessment of the beit din. And similarly, when they say "we are going to bury and eulogize so-and-so"—they are not believed even with a detailed narrative, for perhaps they will not go [Gemara], and only when they say "we have come from his eulogy" as has been written. And the general rule of the matter—that regarding a shoteh, there is never any substance to his words when he is a complete shoteh as explained in Yoreh Deah siman 1, or the extremely foolish as explained in Choshen Mishpat there; and similarly an epileptic—at the time of his seizure his law is like a shoteh as has been written there. And the law of a deaf-mute will be further explained in section 73. And regarding a child, it depends on the assessment when there is substance to his words, and that is through a detailed narrative of the matter. And even according to the one who holds that it requires masiach lefi tumo—it is not literally "according to his innocence" as with a Cuthite, but rather meaning that even if it is by way of a question, provided only that he does not intend to testify. And the opinion of the Tur and most of the poskim is that it is effective even when intending to testify. And there are some among the early authorities who hold that even after some time his testimony is effective, even if not immediately; and according to this, if a child who testifies after some time contradicts the testimony of a child who testifies immediately—one should be stringent [Chelkat Mechokek]. However, it does not seem so, and it is a minority opinion, and our teacher, the Rema, omitted this opinion, and it is possible that one need not be stringent in this [see Beit Shmuel subsection 35 and Atzei Arazim subsection 87].

Regarding the law of a deaf-mute, the Rambam, of blessed memory, wrote that one who became mute and was examined in the manner that they examine for gittin, and his mind was found to be sound, and he wrote that "so-and-so, the son of so-and-so, died" – we rely on his writing and his wife may marry; and it was transcribed in the Shulchan Aruch, section 12. The examination for gittin was explained in siman 121, that they examine him three times: once "yes" and twice "no," and once "no" and twice "yes," see there. However, this examination is through the nodding of the head, but regarding writing, our teacher, the Beit Yosef, wrote in siman 120 that according to the opinion of the Rambam, an examination of three times is not required, see there. According to this, here too, if they examine through the nodding of the head, it requires three times as it does there, and regarding writing, once is sufficient. However, from the wording of the Rambam, it implies that even in writing it requires three times, since he wrote "in the manner that they examine for gittin," and there no other examination was explained, and it is possible that even regarding gittin, in writing it also requires three times. We have not found that the Rambam was lenient with one time except regarding monetary matters in the twenty-ninth chapter of Hilkhot Mekhirah, but not regarding the prohibition of a married woman. And know that even though regarding a git, our teacher, the Beit Yosef, was stringent in siman 120 concerning one who became mute to rely on his writing, as he brought various opinions on this, nevertheless, regarding an agunah he was lenient, just as they were lenient regarding the testimony for an agunah with every type of witness. And since we rely on his writing, all the more so we rely on his nodding, for regarding a git, nodding is superior to writing, as was written there.

It appears that regarding the fact that when one becomes mute, examination is effective—this is when he was silenced from his speech, whether it was due to illness or whether he was silenced suddenly while in his health, but nevertheless he hears and is not like the cheresh mentioned everywhere who does not hear and does not speak, for his law is like a shoteh in all laws of the Torah, and also in Gittin there it is so, see there, and so wrote the great Acharonim. And even though it is possible to say that even for a complete cheresh examination is effective and he is not similar to a shoteh, and the sages explicitly said that a cheresh has some measure of intellect and is similar to a minor, nevertheless it is difficult to be lenient in this since in the Gemara this leniency was not found regarding an agunah except for one who was silenced, and "silenced" normally implies he hears; it is impossible to be lenient regarding a complete cheresh, and even though there is no complete proof from there, nevertheless for the halacha it requires further study. And one who speaks but does not hear is like a completely healthy person. And even though in this too there are some opinions regarding other matters as written in Choshen Mishpat siman 235, nevertheless regarding an agunah it is obvious that he is like a completely healthy person. And one who was born mute but hears—his law is like one who was silenced. And a drunkard who has reached the drunkenness of Lot—his law is like a shoteh. And a goses—it appears that if he is sound in his intellect, we accept his testimony regarding an agunah whether by speech or by nodding. And one who is at times healthy and at times a shoteh—when he is healthy, he is like a healthy person as written there regarding a get.

Our teacher, the Beit Yosef, wrote in section 11: If they found written in a document "the man so-and-so died" or "was killed"—his wife may marry, even if it is not authenticated. According to the Rambam, they must know that a Israelite wrote it. Thus far his words. And even if it was written in the script of Cutheans, if it is known that a Israelite wrote it. But a Cuthean is not believed through his writing, for he is only believed when speaking according to his innocence, and in writing this is not according to his innocence, for presumably he wrote with intent. Our teacher, the Beit Yosef, in his great work wondered why the Cuthean should be diminished if he wrote according to his innocence. In truth, if he wrote to a Israelite that so-and-so died, this is not according to his innocence; however, if he wrote to his fellow Cuthean other matters and within those matters he also wrote that so-and-so died, this is according to his innocence. And so one of the great early authorities permitted based on a Cuthean who wrote to his fellow: "Know that Yitzchak, who owes you the money, died; come to collect your money," and he permitted based on this writing. And one great authority disagreed with him. And the words of the one who permits appear correct, for he did not write of his death as a specific notification but incidentally so that his fellow might collect his money. And it appears that even when he wrote to a Israelite it is according to his innocence, and such a case is better than according to his innocence, for he would not lie since this person would travel a great distance based on his writing, and if he lies, he would certainly have a grievance against him. And so it appears to me that if they found in the ledger of a Cuthean merchant that so-and-so the Israelite died, it is according to his innocence, for he wrote it for the sake of his accounts pertaining to his trade.

And the matter of the document – it is not specifically when it is written in the language of a legal document that he sends to the beit din this writing as testimony that so-and-so died, but even a mere writing that he wrote for a memorandum is also effective. Most of the poskim agreed to this, and it is also proven from the wording "they found written in a document," for if they had sent it as testimony, this would not be the language of "finding," but rather written testimony according to the law of a newly written document that has been explained. However, there is one who says that there is a distinction in this – that if he wrote it as testimony, it is effective even with a witness from the mouth of a witness, such as if he testifies in his writing that he heard from so-and-so that so-and-so died; whereas a writing that is a mere memorandum is not effective unless he writes that he saw it himself. But from all the poskim we have not heard this distinction. On the contrary, from the source of the law in the language of the Yerushalmi, that we permit marriage based on one witness and based on a witness from the mouth of a witness, and similarly based on their writing, it is explicitly proven that in writing as well, a witness from the mouth of a witness is effective. And one cannot say that this is specifically in a writing of testimony and not in a writing of a memorandum, for from the Yerushalmi there it is proven that there is no distinction in this. Thus far his words.

And specifically when a person is signed on the writing, but writing without a signature is nothing [Beit Yosef in the name of Rabbeinu Yerucham], and even if this writing is authenticated as to who the writer is, since he did not sign himself, this is not a clarification unless this is written among his account books, for then it is not the way to sign oneself; but in a writing on a separate paper, even if he wrote it only as a mere memorandum, nevertheless it is known that a matter which is not signed has no substance. However, if he wrote this in the language of testimony, "I testify that so-and-so died," it is possible that it is effective even without a signature when the writing is authenticated, but nevertheless one should not rely on this, for since he did not sign himself, it is like a flaw before us [it appears to me]. And if they found in writing that was written about this man a sign of death, such as "of blessed memory" or "may his resting place be honorable" or "may his soul rest in Eden"—this is nothing [Chavat Yair].

And regarding this, that our teacher, the Beit Yosef, ruled that it does not require verification, there are those who disagree on this and hold that it requires verification. Nevertheless, many of the poskim agreed that in a place where it is impossible to verify, because there is no one here who recognizes the signature, we permit her even without verification. For from the Torah it does not require verification, as the verification of documents is rabbinic, as is written in Choshen Mishpat siman 46, and regarding an agunah they were lenient. And even though regarding kiddushin our teacher, the Rema, ruled in siman 42 that as long as the document has not been verified we are not concerned at all, that is when they deny the act of the document, for then certainly it requires verification from the Torah [see Shach there subsection 9 and Beit Shmuel there subsection 15], but here, where there is no one to deny it, it does not require verification. And even though this, that verification of documents is only rabbinic, refers to a complete document that two witnesses are signed on and not regarding one witness, and certainly if it was only written as a mere memorandum, nevertheless, since regarding an agunah the Sages, of blessed memory, were lenient in matters of testimony for the reasons that have been explained, this testimony is like complete testimony; and since this is like complete testimony, it follows that it does not require verification from the Torah [so it appears to me, and see Beit Shmuel subsection 28]. And certainly, ab initio one should endeavor to verify the writing, and even by one witness it is sufficient, for the reason that the verification of one witness is not effective is because it is like a witness from the mouth of a witness, and regarding an agunah they validated a witness from the mouth of a witness [Chelkat Mechokek and Beit Shmuel]; however, when it is impossible to verify, we permit even without verification.

There are some of the great authorities who said that what was explained—that post facto one does not require validation—refers to a writing found here, or when an Israelite brought a writing signed by one witness testifying that so-and-so died, for if perhaps there is a forgery in this, it will be clarified who the forger is; in such a case we are lenient even without validation, which is the recognition of the writer's script. However, regarding a letter that comes via the post office, where the postmaster receives signed letters and does not know who the sender is, and even if there were a forgery in the letter it would be impossible to clarify at all who the forger is—in this case we do not permit without validation. But this does not seem correct, for if so, it would only be possible to permit with a writing that a person brought and not with a writing that was found, for even with a writing that was found, if someone committed a forgery, it would never be clarified who the forger is. And this matter is explicitly stated in all the poskim, that we rely on this, and so it is in the Yerushalmi: "They found written in a document: so-and-so died," as I wrote in section 76. Therefore, it appears to me that there is no basis for these words. However, this is certainly true: since it was explained that ab initio one requires validation, and regarding a letter coming via the post office it is easy to validate, for every letter coming via the post has a government seal from the place the letter departed; if so, it is possible to write there to the rabbi or to whomever, that they should make known the matters as they are, and it is easy to find validation. But when it is impossible to validate, we rely on this even without validation, for a woman is precise and marries in a matter that is likely to be revealed [it appears to me].

Regarding Jews serving in the king's army, when one of them dies and a document arrives sealed with the royal seal and signed by the general stating that so-and-so, son of so-and-so, and his surname, has died—there were several cases in the generation before us, and the great figures of the generation permitted their wives based on such documents, provided they follow the laws of the state. That is, it must be according to a number, sealed with the government seal, and the handwriting or signature of the general and his subordinates signed upon it; for if they lie, they would forfeit their heads to the king—one relies on this regarding an agunah. And specifically when it is explicitly written that he died, but if it is written therein that so-and-so is missing, it is impossible to permit based on this, for perhaps he fled or the like. However, if it is written therein that he died, one investigates and inquires into the matter to the best of one's ability and relies on the writing of the general with the royal seal according to the law [and investigation and inquiry are necessary; see Chatam Sofer siman 94, and in Yeshuot Yaakov, and in Pitchei Teshuva subsection 53, and delve into this].

Regarding what the Rambam wrote, that it is necessary to know that it is the writing of an Israelite, our teacher, the Rema, wrote that it is proper to be stringent in this. And even if they know it is the writing of an Israelite—if it can be said that he wrote this because a rumor spread that he died, such as if he drowned in waters that have no end or the like—we do not permit based on the writing, for we fear that he wrote this because of the rumor that spread. Thus far his words. And the explanation of the matters: when a rumor spread about a certain person that he drowned or similar to this, where it is the way of the world to say that he died, yet according to the law she is not permitted, and for this we fear that the one who writes that he died writes based on this estimation because of the drowning or similar to this. But regarding a mere rumor that spread that he died, and afterwards another wrote that he died—there is no concern here at all, for in this it appears that the rumor is true, and we do not fear that he wrote this because of the rumor he heard. And so wrote our teacher, the Beit Yosef, in a responsum, and several great authorities agreed to this. However, there are some of the great authorities who feared even in this case that he wrote because of the rumor that spread. And it appears that the primary view is like the first opinion, for even in oral testimony the law is so, and if so, one who testifies that a certain person died when a rumor had previously spread that he died, we would not accept his testimony; and it is impossible to say this at all as is proven from all the poskim. However, when he testified before a beit din, it can be said that we do not fear this, for the beit din asks him how he knows that he died, and if he says "based on the rumor," we will not accept his testimony; but in a mere statement, it is possible that he says this based on the rumor. Yet according to this, in the case of a witness from the mouth of a witness who testifies before a beit din that he heard from a certain person that a certain person died, and a rumor had previously spread that he died—we would not accept his testimony, and it does not imply so from all the poskim. Furthermore, since our teacher, the Beit Yosef, ruled so, and it is explicitly implied so from the words of our teacher, the Rema, and several of the Acharonim agreed to this—one who is lenient in this has not lost. However, in such a case it appears that one needs in any event verification of the writing to know who wrote it, and the matter is close that through this it will become known if he wrote based on the rumor or not.

And there are some of the great authorities who divided this law into three disputes: The first—when a rumor emerged that a certain person drowned and afterwards another stated plainly that he died, or even if a rumor did not emerge but the witness himself said that he drowned and afterwards said that he died—we are concerned according to everyone, for perhaps that which he said, "he died," was by means of drowning, and we do not permit her until he says explicitly that the waters cast him out and he saw him dead in the manner that will be explained in this siman, or that he says that he emerged from the water alive and afterwards died on his bed, and so too in similar cases regarding other matters close to death when a rumor emerged, we judge thus.

And the second – when it was already known that this person whom this man testified about that he died, entered a place of danger where one who enters there is close to death, and this matter was publicized and also a rumor went out that he died in that danger, and this witness stated plainly that he died – according to all opinions there is a concern that perhaps he did not see that he died and is testifying based on the public consensus, and we judge in this case also according to the previous law.

And the third – when a rumor spread regarding a certain man who was traveling from place to place and did not return to his home, and a rumor spread that he died, and afterward one witness testified about him that he died – regarding this the great authorities disagreed, as I wrote in section 81. And even according to the opinion of those who permit, this is only when he testifies solely regarding his death; but when the primary testimony is regarding another matter, but within the matter he also mentions his death – in this case, certainly according to everyone, we are concerned that he says so based on the rumor, and these are words of reason [from the Mareh HaTzedek in the name of Seder Eliyahu]. And know that all this is regarding one witness, but when two valid witnesses testify that he died – we accept their testimony in every case, even if a rumor spread and even if they did not clarify the matters, for with two witnesses there is no concern [it appears to me], and we have already written what appears to us in section 81.

It is a simple matter that just as we have said that when one drowned or a rumor spread we no longer rely on a found document stating that so-and-so died or on his statement, as we have explained all the opinions, so too in such a case with a Kuti speaking out of innocence that so-and-so died, if it is known that he drowned—we do not permit based on his speech, for he certainly says so based on his drowning, and so too anything similar to this. And there is room to doubt whether even if he afterwards clarifies his words by our asking him "How did you know he died?" and he says things by which she is permitted according to the law, nevertheless, since the primary permission comes through our questioning, and speaking out of innocence is not through questioning as will be explained, it is not similar to every instance of speaking out of innocence that will be explained where even though he afterwards clarifies his words through our questioning we permit her—this is because the primary permission was based on his prior speech which was not through questioning, but in this case where his prior speech does not permit her—perhaps it is not effective for the primary permission to be through questioning.

When there is a contradiction between witnesses, such as when two kosher witnesses came and testified that the husband of this woman died, and two other kosher witnesses contradicted them and testified that he did not die—the Sages, of blessed memory, said [Yevamot 88b] that she shall not marry, and if she married, she must leave. And even if the witnesses of contradiction came after she married—behold, she must leave, and one who has relations with her stands in the status of an asham talui, according to the law of "uncertain chelev, uncertain fat," and if she married one of her witnesses who testify that her husband died and she also says "it is clear to me that my husband died"—if she married, she shall not leave.

And the explanation of the matters: For behold, we maintain that regarding two sets of witnesses who contradict one another – from the Torah, one must establish the matter upon its chazakah as is the law of every doubt, and by rabbinic decree, even when there is a chazakah for permission – it is forbidden, but when the chazakah is for prohibition – it is forbidden from the Torah. And behold, regarding this woman who has a chazakah of a married woman, she is forbidden from the Torah and one who cohabits with her is liable for a chatat like one who eats certain chelev. However, when she married permissibly based on the first two witnesses, there is no chatat here but rather an asham talui, for behold, the first ones removed her from her chazakah of prohibition based on their testimony, and granted that when others came afterward and contradicted them and the matter remained in doubt, it is like any doubt of prohibition [Tosafot Ketubot 22b in the name of Rivav, and Rabbeinu Tam who disagrees admits in a case where she married, and see Pnei Yehoshua], and therefore there is only an asham talui here. And some say that in any case there is only an asham talui here, and the chazakah that a woman is precise and then marries weakens the chazakah of a married woman [Tosafot ibid. 22b]. And even though the reasoning of "she is precise" is only regarding one witness who testifies that her husband died, but with two witnesses we do not need her precision [Maharsha], nevertheless, when there are two who contradict them, she must necessarily be precise, for if not, we will be stringent upon her in the end [Shita Mekubetzet], and according to this, even when the two sets came at the same time – there is no chatat here, only an asham talui. And even though regarding asham talui we maintain that one is not liable until a prohibition was established, meaning when there is a certain prohibition before us, such as when there are two pieces here, one of chelev and one of fat, and he ate one of them and does not know which he ate, but when there is one piece that is a doubt of chelev or a doubt of fat and he ate it, he is not liable for an asham talui as the Rambam wrote in the eighth chapter of Shegagot, nevertheless here he is liable for an asham talui for it is as if a prohibition was established, for she was until now in the chazakah of a married woman [Tosafot ibid.], and even though regarding chatat we remove her from her chazakah as I wrote – that is because it is impossible to consider it as certain chelev, but regarding the matter of this being called an established prohibition – certainly there is no greater established prohibition than this, and he is liable for an asham talui even if she married and afterward witnesses came [see there in Tosafot, and it appears to me that even if they only said this according to the established premise that it is possible to clarify its prohibition].

However, if she married one of the witnesses who permitted her and she also says "certainly," although if she had not married we would not allow them to marry, nevertheless if she married she shall not go out. And the reason for the matter is that in every case of a doubt regarding a prohibition, even though we establish it upon its chazaqah and prohibit her, nevertheless this is only for one who does not know if the matter is prohibited due to the doubt, and especially when there is a chazaqah of prohibition. But for one who says "for me there is no doubt in this and I know with clarity that this is permitted," perforce he removes the matter from its chazaqah because of his clear knowledge. For the Torah never made a doubt like a certainty when there is a chazaqah of prohibition—and beit din punishes and stones based on this chazaqah as I wrote in siman 19—except for one who is in doubt regarding the matter. But if one says "it is certain to me that this is permitted," behold perforce we remove it from its chazaqah. And although regarding another he is not believed to remove it from a chazaqah of prohibition since there are those who contradict him, nevertheless regarding himself he is certainly believed, for the Torah believed every person regarding his own in matters of prohibitions. And even though regarding monetary matters we do not say "certainly and perhaps, certainly is better"—this is because it affects others, but in prohibitions and regarding themselves, he is believed [Pnei Yehoshua in the name of the Rashba]. Therefore, if she does not say "it is certain to me that he died," she shall go out, for regarding her the witness is not believed to remove her from her chazaqah of prohibition. But when she also claims "certainly," she shall not go out. To what is this comparable? To two pieces, one of chelev and one of fat; if Reuven comes and eats one of them, he would be liable for an asham talui. But if Shimon comes and says "I placed the pieces" or "I saw when they placed them, and to the right they placed the chelev and to the left they placed the fat," and someone is found who contradicts him, and he ate what was on the left side, would we obligate him in an asham talui? Behold, there is no doubt in his hand. [What the Chelqat Mechokeq wrote in subsection 158, that even if they permitted her based on the witnesses she shall go out, his intention is even if she already married, as is explained in the Gemara and as the Chelqat Mechokeq wrote in subsection 80].

It is a simple matter that when two valid witnesses came first to permit her, two who contradict them are not believed unless they are also valid; but if they are relatives or disqualified for testimony in the entire Torah—their words are nothing against the two valid ones. However, this is when two valid witnesses testified first, but if also at first only one witness or two relatives or disqualified ones testified, and afterwards one witness or disqualified ones came and contradicted them—there are other laws in this matter, as will be explained before us with the help of Heaven.

And some ask a great question regarding this: Granted that we permit the witness who testifies that he died to live with her when she also claims certainty, nevertheless, what shall we do regarding the children born from them? For regarding them, it is a case of "two and two," and they are, Heaven forbid, questionable mamzerim. It is impossible to say so, for the Torah's ways are ways of pleasantness, and if the children were questionable mamzerim, our Sages, of blessed memory, would not have permitted him to be with her. Furthermore, if after the death of this one a kohen wishes to marry her, we would not allow him, for it is a case of "two and two" that she is a questionable zonah [see Beit Meir].

However, in truth, the sons are also fit, and even a kohen would be permitted to her after the death of this one. It is a great principle regarding anything we judge, whether for permission or for prohibition, that if the matter emerged as permitted due to a chazakah or due to a claim of certainty—subsequently, all matters that follow after them are completely permitted because the matter already emerged as permitted previously. This is the primary reason explained in siman 4, section 31, that her chazakah is effective even for the daughter, even though a daughter does not have a chazakah. This is a great principle in all matters of chazakot and doubts, except for a matter where there is no practical difference in the thing we are judging, such as a mikveh that was measured and found lacking, for there is no practical difference for the mikveh—subsequently, we also judge the person immersing in it [and see what I wrote in the book Or Liyesharim, siman 39; and from Tosafot in several places a contradiction to this appears, but it can be said that their words follow the one who holds in Ketubot (page 13b) that according to the one who declares her fit, he declares her daughter unfit; and delve into this].

However, it is certainly the case that the witnesses who contradict them are forbidden from marrying a daughter born to them, for since according to their words she is a married woman, the daughter is a mamzeret, and surely every person is believed to render a matter forbidden upon himself, and all the more so in such a case where by law she is forbidden to every person except for the witnesses who permit her. And so too, if this man who married her died—she is forbidden from marrying another as long as it has not been clarified that the first husband died. However, when it is clarified afterward—she is permitted even to a kohen, as I have written.

One witness says he died and one witness says he did not die, if the beit din already permitted her before the second one came – she shall not leave her permitted status and is permitted to marry whomever she wishes. And the reason for the matter is that we establish that regarding one witness of a sotah when he testifies after warning and seclusion, and regarding one witness of an eglah arufah when he says who the murderer is, in which the Torah believed one witness like two as explained in the Rambam chapter 1 of Sotah and chapter 9 of Rotzeach, that one witness is not believed to contradict him when he comes after the first, for in any place where the Torah believed one witness, he is like two, and the words of one are nothing in the place of two. And even though there, immediately when the witness gave his testimony the second is not believed to contradict him when he comes afterward, why do we require here specifically that they permitted her to marry? Because it is not comparable, for there the Torah believed the one, and immediately when he testified he is considered like two, but regarding the testimony of a woman – even according to the opinions that were explained that from the Torah one witness is believed, nevertheless this is not exactly like sotah and eglah arufah, for there the Torah explicitly wrote that one is believed, but regarding the testimony of a woman its essence is rabbinic, and therefore as long as they have not permitted her to marry it is considered as if they both came at the same time [Beit Shmuel]. However, there are some of our teachers who hold that even in sotah and eglah arufah it is specifically when they ruled based on his testimony, and prior to this it is like at the same time [Tosafot Sotah 31b], but the Rambam there and the Tur in siman 178 did not rule so, see there. And even according to this, one can distinguish simply, for in sotah and eglah arufah where it is upon the beit din to make her drink and to bring an eglah arufah, immediately when the first testified it is as if their ruling was completed that she is not to drink and they are not to bring an eglah arufah, but here where she needs to marry, as long as the beit din has not permitted her, this is not like the completion of a ruling [it appears to me], and see what I wrote in Choshen Mishpat siman 425 section 75.

And if the second witness came before they permitted her—behold, she shall not marry, and if she married—she shall go out, because she is a doubtful married woman. And if she married the witness who testified for her and she also says, "it is clear to me that he died"—the Rambam wrote that she shall not go out, and he compared this to two and two, and so it is implied in the Yerushalmi. But there are some of our teachers who hold that one witness in the face of contradiction is nothing and it is a certain prohibition, and one who cohabits with her is liable for a sin offering and not a suspenseful guilt offering, and her "clear" claim and that of the witness do not avail, for this only avails in a doubtful prohibition as I wrote in section 88; but the Rambam holds that since one witness is valid in the testimony of a woman, granted that we do not permit her based on him because of the witness who contradicts him, nevertheless, his status is like two and two in the entire Torah. However, if two witnesses came and testified that he is alive—it is obvious that she shall go out even if she married, and the children are mamzerim according to everyone, for in the presence of two, one witness is nothing even in the testimony of a woman, even when they permitted her and she married, and even in the case of one witness against one witness according to the Rambam. And regarding the witness who permits and she says "clear," specifically if she married she shall not go out, and even though there is a suspicion that he testified in order to marry her, for with one there is this concern as I wrote in siman 12, nevertheless, because of this suspicion she shall not go out, but ab initio we protest his marrying her. And there are those who wish to infer from the wording of the Rambam who wrote that if both came at the same time she shall go out, but if one after the other even before they permitted her—she shall not go out; but it does not seem so, for since he wrote previously that specifically if they permitted her to marry she shall not go out, automatically what he wrote afterwards "both came at the same time" his intention is that the second came before they permitted her, and even though there is one who wrote so as the law, nevertheless, it is not implied so from all the Rishonim.

In a case where they permitted her to marry based on a witness, and afterward one witness came and contradicted him, where it has been explained that she does not leave her initial permission and is permitted to marry, our teacher, the Rema, wrote in section 37 that nevertheless, due to malicious talk, she should not marry ab initio. And some say that this is not according to the law but rather good advice, and according to the Rambam there is not even good advice in this. And there are some of our teachers who hold that ab initio it is a complete prohibition due to malicious talk, and so it implies somewhat from the language of the Tur, but when two say he died and one says he did not die, even when he came before the two—she is permitted to marry ab initio, and there is not even malicious talk here.

All that has been explained regarding two against two and one against one, this is all regarding valid witnesses; however, regarding the testimony of women, relatives, and those disqualified who are only valid for the testimony of a woman – there are other laws in this, for there are those that are equal to valid witnesses and there are those that are not equal. How so? A woman or a relative or a disqualified person says he died, and another like them says he did not die – their law is like valid witnesses, in that there is a distinction between whether they permitted her before the second arrived or whether they did not permit her, and if she married based on the permitting witness and she says "it is clear to me that he died" – according to the Rambam if she married she shall not leave, and according to those who disagree with him she shall leave. And if two disqualified persons came and contradicted the first disqualified person, even if she married – she shall leave. And so too the reverse, when one disqualified person says he did not die and two disqualified persons say he died, even if they did not permit her – they shall permit her initially and she may marry. And if two disqualified persons say he died and two disqualified persons say he did not die – their law is also like one witness against one witness, for regarding disqualified persons there is no distinction in this.

And also in this, the disqualified are not similar to the fit, for regarding the fit there is no distinction except between one witness and two, but between two and more than two there is no distinction at all, whether for permission or for prohibition, for two are as a hundred. And if a hundred fit witnesses came and testified that he died, and two fit witnesses came and testified that he did not die—if she married, she must leave. And so too the reverse: two say he died and a hundred say he did not die, and she married one of those who permit and she claims certainty, if she married she shall not leave. But regarding the disqualified it is not so, for whoever has the greater number decides the other side. For regarding the fit, since according to the Torah "by the mouth of two witnesses shall a matter be established," what is the difference to me if there are two or if there are a hundred? But regarding the disqualified, whose testimony is nothing and only regarding the testimony of a woman did they validate them, consequently the majority of opinions decide against the minority, whether to be lenient or to be stringent. How so? If ten women or ten relatives and disqualified individuals said he died, and eleven like them contradict them—even if she married she must leave, and even if she married one of her witnesses she must leave [Beit Shmuel, subsection 126]. And so too the reverse: if ten women and relatives and disqualified individuals say he did not die, and eleven like them say he died, even if they had not permitted her—they shall permit her and she may marry, and so too anything similar to this. And this is regarding the disqualified and the disqualified, but regarding the fit and the disqualified who contradict them, or the reverse, the disqualified and the fit who contradict them—there are other laws regarding this.

How so? A valid witness says he died, and many women or many relatives and disqualified witnesses say he did not die: if they permitted her based on the valid witness before the disqualified witnesses came, she does not leave her permitted status and may marry, for many disqualified witnesses only have the status of one valid witness. And if they came before they permitted her, their status is like half and half and she shall not marry, and if she married she must leave. And if she married the witness and she says "it is clear to me that he died," our teacher, the Beit Yosef, wrote in section 37 that she does not leave. And it appears to me that those who disagree with the Rambam regarding a witness against a witness disagree also in this, for the reason that has been explained, that one witness in the face of contradiction is nothing. And there are those who say that according to the Rambam, even if they permitted her based on the valid witness, if two disqualified witnesses came and contradicted him, their status is like half and half, such that even if she married she must leave, except when she married him and she says "it is clear."

A relative or an unfit witness or a woman says he died, or the agunah herself says my husband died, and afterwards a fit witness comes and says he did not die—even if they permitted her before the fit witness came, she shall not marry, and if she married, she must leave. This is the opinion of the Rambam, who holds that an unfit witness is inferior to a fit witness, even though from the Torah even a fit witness's testimony is nothing for the entire Torah, except to obligate an oath. And there are some of our teachers who hold that in this case it is similar to a fit witness and a fit witness or an unfit witness and an unfit witness, that if they permitted her based on the unfit witness or based on the agunah herself and afterwards a fit witness came and said he did not die—she does not leave her permitted status. However, even according to the opinion of the Rambam, this is only with one unfit witness, for in that case the power of the fit witness is greater than his, but if two unfit witnesses or two women came and they permitted her based on them and afterwards a fit witness came and said he did not die—she does not leave her permitted status according to everyone, for in that case certainly the power of the fit witness is not greater than theirs.

And know that the agunah herself joins with a disqualified witness when she knows that her husband died, and there is a great practical difference in this. For example, where one woman says he died and two women say he did not die, where we explained that she must leave—this is when the agunah herself knows nothing. However, if she also says that she knows clearly that he died, even if she says so after she has married [Beit Shmuel, subsection 116], she joins with the former and it is like two against two disqualified witnesses, such that when she has married she shall not leave. And similarly, if they permitted her to marry—she shall not leave her permitted status, as I wrote in section 96, for their law is like one witness against one witness [the first gloss in section 37, this is its explanation]. And a Cuthean speaking in innocence, his law is like other disqualified witnesses; and if one Cuthean speaks in innocence saying he is alive and another speaks in innocence saying he is dead—she shall not marry, and if she married she shall leave [Chelkat Mechokek, subsection 74]. And it is not similar to a captive woman in siman 7, section 6, where we were lenient in this, see there, for regarding a married woman one must be more stringent. Furthermore, there are those who are stringent there as well, and there are those who are lenient here as well, and this will be further explained with the help of Heaven.

And regarding that which we wrote, that the agunah herself joins with the previous witness even after she has married, nevertheless, the husband she married does not join if he wishes to testify that her first husband died, for he is an interested party and there is no testimony regarding oneself; and she herself is believed because of the reason that "she is precise," but regarding him this reason is not applicable, and this is the intention of our teacher, the Rema, in section 37 at the end of the first gloss. However, there are those who disagree with him and hold that she too is not believed to join after she has married, and only prior to this does she join with the disqualified witness [Chelkat Mechokek subsection 70, and see Beit Shmuel subsection 116, and from Rashi 88b there is no proof, for he holds that every person is believed regarding themselves more than witnesses, but all the Rishonim do not hold so as the Beit Shmuel wrote, and the proof that he brought from the sugya there is also no proof, for there it is to contradict him when he says that he is her husband, for behold the testimony regarding this begins now and the previous witness also needs to testify now that this one who speaks is not her husband, and examine this closely].

Just as with those disqualified from testifying we follow the majority of opinions, so too with valid witnesses who testify based on hearsay even if they heard it from valid witnesses—we follow the majority of opinions and their law in every respect is like those who are disqualified. The reason is simple: just as those disqualified from testifying, since they are disqualified for the entire Torah and only regarding the testimony of a woman did the sages show leniency, their law is not like those who are valid; so too with a hearsay witness, he is not valid for the entire Torah, and only in the case of an agunah did the sages show leniency. Therefore, their law is like those disqualified from testifying, as will be explained.

Therefore, if two testify that each heard from one person, such as Reuven testifying that he heard from Levi and Shimon testifying that he heard from Yehuda that a certain person died, and two others testify from their own knowledge that he did not die – their status is not like two against two, such that if she married one of the witnesses and claims certainty she would not leave, but rather their status is like one against two and she must leave. And if one witness testifies from his own knowledge that he did not die – their status is like two disqualified witnesses and one valid witness who contradicts them. And if one witness testifies from the mouth of a witness that he did not die – their status is like two and one disqualified witnesses, such that she is permitted to marry ab initio. And if two testify witness from the mouth of a witness that he did not die – their status is like two and two disqualified witnesses. And if three testify witness from the mouth of a witness that he did not die – one follows the majority of opinions and the previous ones are nullified according to the law of disqualified witnesses, and so too the reverse, that first two testified witness from the mouth of a witness that he did not die and three testify witness from the mouth of a witness that he died – she may marry ab initio, and so too anything similar to this.

That which has been explained, that two who heard from a witness who heard from a witness are considered as two disqualified witnesses—this is when each one heard from a person individually. However, if these two testify from the mouth of one, even if that one is fit to testify, they are not considered as two disqualified witnesses but as one disqualified witness; and even a hundred who heard from one are considered as one. A single witness who testifies from the mouth of an individual and a single witness who testifies from the mouth of many are equal, and it is like a witness and a disqualified witness. And there are those who say that one who heard from many is superior to one who heard from an individual, and it remains a legal doubt as many of the great authorities disagreed on this. And if two testify that they heard from the mouths of two, and one testifies that he heard from the mouths of two—it is like two and one disqualified witnesses.

Our teacher, the Rema, wrote in section 42: We do not remove a woman from her husband if a rumor emerged that her first husband is alive. Thus far his words. It is implied from this that before she was married we are concerned for a rumor, and it must be said that this deals with a rumor that was established in beit din, for without being established in beit din it is not a rumor, as was written in siman 46. Nevertheless, after she was married we do not remove her from her husband, for we are not concerned for a rumor that follows marriage, as was written there [it appears to me].

It has already been explained in section 54 that there is no testimony except for what one testifies in beit din, and regarding everything he spoke outside of beit din, he may retract it upon coming to beit din. And it happened that one was challenging a certain woman, saying that she was bound to a yavam, and afterward he himself testified before beit din that he heard that the yavam died a long time ago and his challenge was for naught; and they ruled that we rely on his testimony since the first words were outside of beit din. And how the law is regarding a witness from the mouth of a witness when the first witness retracts was explained in section 55 and section 56, see there. And a Cuthean speaking inadvertently that so-and-so died, whether he can retract and say that he spoke a lie or not—it is a legal doubt. For it is well understood that regarding any witness whose testimony is only accepted in beit din, one can say that as long as his testimony was not examined in beit din, he may retract; but regarding one speaking inadvertently, where if he were to testify in beit din it would not be effective and only his speaking inadvertently is effective, one could say that since he spoke inadvertently once, his testimony is finalized and he cannot retract, or perhaps there is no distinction [see Kuntres Agunot siman 156 and 158].

It has already been explained in section 36 that five women are disqualified from testifying for her that her husband died, because due to their hatred for her, they are suspected of intentionally ruining her so that she will marry another, and when her husband arrives, she will be forced to leave this one and that one. One of them is her tzara in places where they marry two women. Therefore, one who went to a province across the sea with his wife and also left a wife here, and the distant one came and testified before beit din that her husband died—and a woman is believed regarding herself as has been explained, and they permit her to marry—but regarding her tzara she is not believed, for a tzara is not believed to testify for her fellow wife lest she intend to ruin her, as I have written. And even if she married first, we do not say that if he had not died she would not have prohibited herself to him, for we fear that perhaps out of the greatness of her hatred for her tzara, her desire is that they both be prohibited to him, as Samson said, "Let my soul die with the Philistines." And one should not ask that if so, she should not be believed even for herself due to this concern; however, since she knows that they will not believe her regarding her tzara, this concern is removed, for she is testifying only for herself. And if it is difficult, for if so she should be believed even for her tzara, it can be said that if so, the concern would return to its place [Yerushalmi].

And not only is she not believed to permit her, but even to forbid her she is not believed. Therefore, two wives of one man, where this one says "my husband died" and her rival-wife contradicts her and says "he did not die," this one who says "he died" may marry; for just as she does not testify to permit her, so too she cannot testify to forbid her, and the law is the same for all the five women. And even though she is under the presumption of being a married woman, nevertheless their words are not considered as anything. And so too if the rival-wives contradict one another and both admit that he is not alive, only this one says that he died and this one says that he was killed – both are permitted, and we do not consider it as contradicted testimony such that we would nullify their testimony entirely and both would be forbidden; for since they do not testify about one another, so too their contradiction of one another is not considered a contradiction, and each one of them testifies for herself and is permitted. Furthermore, even regarding witnesses in such a case, our teacher, the Beit Yosef, ruled in section 9 that both are permitted, and even according to those who disagree with him – nevertheless, regarding rival-wives they agree that it is not considered a contradiction for the reason we explained, as written in section 57, see there.

There is room for doubt, for while it is true that our Sages, of blessed memory, said that a co-wife is not believed either for prohibition or for permission, nevertheless, when this co-wife who testified that her husband died performed an act herself and married another, granted that she is not believed for leniency regarding her co-wife to allow her to marry another, nevertheless, perhaps for stringency she is believed. For example, if they are the wives of a kohen, her co-wife would be forbidden from eating terumah; and if she committed adultery, the offspring would not be a certain mamzer such that he would be permitted to marry a mamzeret; and if she received kiddushin from another, she would require a get and we would not consider her a certain married woman. Logic dictates this, for since she performed an act herself, how can we not consider the co-wife at least as a doubtful married woman and not as a certainty? Some say that since we rule in the Gemara [118a] that the co-wife is permitted to eat terumah, and so wrote the Rambam in the ninth chapter of Hilkhot Terumot, we see that we maintain her status as a certain married woman and not as a doubt, and if another betrothed her, she does not require a get from him [Beit Shmuel, subsection 134], and if she committed adultery, the offspring is a certain mamzer [Mishneh LaMelekh, chapter 12 of Hilkhot Gerushin]. And it appears to me that there is no proof from this, for it could be said that this is all until her co-wife performed an act and married, but once she married, why should we not be concerned for stringency? However, regarding the essence of the matter, there are some of our teachers who disagree with the Rambam and hold that she is forbidden to eat terumah, for we are concerned for her words for stringency [Ra'avad ibid., and so it appears from Tosafot ibid. s.v. Bat Yisrael, and their words incline toward what I have written; and examine this carefully].

A woman who says her husband died is believed both to marry another and to be taken in yibbum by her husband's brother, for the reason that she is precise and the matter is prone to be revealed applies even if she is taken in yibbum. Moreover, she even takes her ketubah from her husband's property; for although regarding money she is not believed by her word without witnesses, nevertheless, she collects the Torah-mandated ketubah, since every husband obligates himself to his wife at the time of marriage that when she marries another, she shall take her ketubah. Since she is believed to marry another, she consequently takes her ketubah because of his prior obligation. Therefore, this is specifically when it is known that this is her husband's property, but if it is not known, she is not believed to say "this is my husband's property," for regarding this she has no credibility. And granted that she is believed to say "this person who died before you is my husband," nevertheless, to take from the property of this man for her ketubah she is not believed, for we do not know if this man obligated himself to her. And granted that for marriage the Torah believed her, but not for money, and likewise she is only believed for the Torah-mandated ketubah and not for the additional ketubah, nor for niksei tzon barzel, nor for other matters; for the obligation that the husband obligates himself to his wife—that when she marries another she shall take—is only regarding the Torah-mandated ketubah. But for other money, she specifically requires two witnesses who shall testify before beit din that the husband of this woman died. And just as she takes her ketubah, so too if she is taken in yibbum, the yavam enters the inheritance of his brother based on her word, for so the Torah decreed, that he shall succeed in the name of his brother for his inheritance when he performs yibbum with his wife. And when she collects her ketubah, she first swears according to the law of every widow as written in siman 100, and some say that by means of an incidental oath she also swears that he died.

In what case is it said that she receives a ketubah? When she did not mention the ketubah, such as when she said, "My husband died, so permit me to marry." But if she came and said, "My husband died, give me my ketubah," not only does she not receive the ketubah, but we do not even permit her to marry, because we fear that perhaps her entire intention was to receive the ketubah and not to marry, for she knows that he is alive but her desire is to take money from his property. And there are those who inferred from the wording of the Rambam, who wrote at the end of chapter 16 of Ishut, that she has no desire to marry at all as has been written, that if she married afterwards she would receive her ketubah. In my eyes the matter is astonishing, since she married without the permission of the beit din; for behold, there are some of the Rishonim who hold that even when she brought a single witness alone to testify that her husband died, we do not pay heed to him because they suspect him as well due to her mentioning the ketubah, and our teacher, the Rema, brought this opinion. And how is it possible that when she married on her own she would also receive the ketubah? This requires further study for the halakhah. [See Chelkat Mechokek subsection 82, and it is possible that the opinion of the Rema is also thus, and this is the wording "she has a witness" — meaning that she brought him].

If she mentioned both things, such that she said, "My husband died, so permit me [to remarry] and give me my ketubah," since she prioritized the permission before the ketubah, presumably her primary intent is for the permission, and that which she mentioned the ketubah is because it is the way of people to relate all their matters in beit din. But if she mentioned the ketubah first, it remains in the Shas as a teiku, and all our teachers ruled stringently that we do not permit her to remarry, and certainly she does not take a ketubah. However, the Rambam, of blessed memory, wrote that we do permit her but do not give her a ketubah, and he holds that the primary doubt in the Gemara is regarding the ketubah, but regarding marriage she is not suspected of marrying while her husband is alive; therefore, if she married, we do not protest against her [Beit Shmuel, subsection 131]. And it does not appear so, for if it were so, the Rambam should have written in this language; and how could he write that we permit her, and how can we permit her ab initio since we have a doubt. And some say that it is a printing error in the Rambam and it should say "we do not permit her" [the Gra, subsection 140]. And some say that even if she prioritized the permission, we do not permit her ab initio [the Rosh]. However, if she married—it is obvious that she shall not leave, for even one who married without the permission of beit din, we hold that she shall not leave, as will be explained.

The Rambam further wrote that even in a case where the ketubah preceded [the debt] where we do not give it to her, nevertheless, if she seized her ketubah – we do not remove it from her. He follows his consistent reasoning that in any legal doubt regarding monetary laws, seizure is effective, as he wrote in Choshen Mishpat in several places. We have already explained there that there are those of our teachers who disagree with him and hold that in a legal doubt, seizure is not effective.

Our teacher, the Rema, wrote in section 43 that even a woman who is a shota is believed to say her husband died, provided that she understands the nature of marriage and widowhood. Thus far his words. The explanation of his words: even a foolish woman who does not have the intellect to understand and comprehend the severity that will befall her in the end if she lies—and I would have said that regarding her, "she is exacting" does not apply and we should not permit her—he comes to teach us that there is no distinction. And the reason can be said that, on the contrary, a woman such as this is even further from lying and from scheming, and it is not dealing with a literal shota but rather meaning a fool. [And it appears to me that he learned from page 116b: They said to Rabbi Yehuda, according to your words, a clever woman shall be married etc., meaning a clever woman will perform a stratagem and automatically be married, and a shota, a fool who does not scheme, shall not be married? And the opposite stands to reason; and examine this closely].

We establish that in capital laws, one requires examination and inquiry of the witnesses, but in monetary matters, one does not require examination and inquiry, as is written in Choshen Mishpat siman 30; see there. And regarding the testimony of women, such as testifying that he died, and likewise regarding kiddushin and gittin, there are capital laws involved, for one who cohabits with a married woman, his death is by strangulation; and there are also monetary matters involved, for she must receive her ketubah and other monetary laws such as sustenance and other things. They disagree regarding this in the Talmud at the end of Yevamot (122b) as to which we compare it, and all the poskim decided to rule like the one who holds that it does not require examination and inquiry, just as in monetary matters. However, the reason is not sufficient, as one of our teachers asked: granted that there are also monetary laws involved, but behold there are also capital laws involved, and is it because there are also monetary laws involved that it should be diminished [Rashba in the name of the Ramban there]? For behold, by Torah law, even they require examination and inquiry, and only so as not to lock the door before borrowers did they abolish it, as is written in Choshen Mishpat there, and how can we be lenient in this? And all the more so since the reason of locking the door is not applicable here. However, the Rambam, of blessed memory, at the end of chapter 13 of Gerushin, explained the reason that because of an agunah, the rabbis were lenient regarding it to make it like monetary laws, just as they were lenient regarding an agunah with all types of witnesses. Furthermore, the essence of the permission regarding an agunah was established because she herself will be precise, and it is a matter that is destined to be revealed; if so, there is no need for examination and inquiry of the witnesses [Yam Shel Shlomo at the end of Yevamot]. And in siman 42 it will be explained regarding kiddushin with the help of Heaven.

Therefore, even if the witnesses contradicted one another in the bedikot—we accept their testimony. And if they contradicted one another in the hakirot—some say their testimony is void, for even in monetary laws this is the law, as I wrote in section 57. And some say that even with a contradiction in the hakirot their testimony is not void, as I wrote in section 58, and such is the opinion of our teacher, the Beit Yosef, in a responsum as I wrote in section 59, and several of the Acharonim hold accordingly, and there we explained a correct reason for this. Nevertheless, when the witness is before us, we examine and ask of him how he knew that he died, as I wrote in section 44. However, anyone who is stringent and examines and inquires extensively, from which it could result that the testimony will not be accepted—the spirit of the sages is not pleased with him, and so wrote the Rambam in a responsum. However, in a place where there is concern of deception—it is obvious that we inquire and examine extensively in order to bring the matter to its truth. And some say that in such a case of a "deceptive case" its law is exactly like capital laws, that if one said "I do not know" their testimony is void; but the Rivash wrote that this is not a hindrance, for one only needs derishah and hakirah to bring the matter to its truth, but not that it should be exactly like capital laws such that their testimony would be void when one says "I do not know," and it appears that the great Acharonim agreed with this opinion. The Beit Yosef in subsection 63 wrote that in this time there are no capital laws, and this is not sufficient, and the clarity of the reason is as I wrote; and also what he wrote that the Rambam does not hold of the reason of "she is precise," we have already explained in section 22 that it is not so, see there and reflect upon it.

It has already been explained that one who marries based on the testimony of one witness, or based on a Kuthi speaking in innocence, or based on her own testimony, the permission is not explicit in the Torah; rather, the sages, of blessed memory, enacted this for the sake of the welfare of agunot. Therefore, she is referred to in the Gemara as "married by permission of the beit din." And even according to the opinion of the Rambam that we explained there, that she is permitted by Torah law—and several of our masters agreed, as I wrote in section 24—nevertheless, she is called "married by permission of the beit din" because the permission is not so simple and they must ask a beit din [Tosafot at the beginning of the chapter Ha-Isha Rabbah]. Therefore, our masters, the authors of the Shulchan Aruch, wrote in section 39 that she should not marry except by permission of the beit din. Yet, if she married without permission of the beit din—meaning, not according to their ruling—nevertheless, she shall not leave. Just as when the beit din ruled to marry based on one witness and afterwards one witness came and testified that he did not die, she does not leave her permitted status, for the first is trusted like two as I wrote in section 93; so too, if she married without permission of the beit din, we do not pay heed to the witness who comes afterwards and says he did not die. For having married is no worse than the permission of the beit din; for granted that she committed a prohibition by not waiting for the permission of the beit din, nevertheless, ultimately she is permitted by the law, and the sages did not see fit to penalize her for this. And although there is one who says that the marriage is not considered like the permission of the beit din [Rashdam], nevertheless, since our masters, the authors of the Shulchan Aruch, established this as the halacha, we hold accordingly. Also from the Rambam it is proven that he holds so, since he ruled regarding witness against witness that if she married the permitting witness before the beit din permitted her and she claims "certainty," she shall not leave. We learn from this that the permission of the beit din is not a prerequisite [And regarding what the Beit Shmuel wrote in subsection 123, that this is because of the "certainty," I am astonished—since this is a penalty, what benefit is the "certainty"? And regarding what he wrote, that if so, why do we not establish in the chapter Ha-Isha Shalom that she married without permission of the beit din, one can say that it stands upon the Mishnah of Ha-Isha Rabbah, and there it is by permission of the beit din as the Gemara establishes at the beginning of the chapter, and here too it is similar. And the proof of the Beit Meir from the Yerushalmi requires further study; see there and look closely].

And what is the authority of a beit din? Our teacher, the Rema, wrote there that the beit din must be three and fit, and not related to one another nor to the witnesses. Thus far his words. It is clear from his words that the authority of a beit din means that a fit beit din must sit and permit her, and so it is in several responsa from the great Acharonim. And some say that there is no requirement for a fit and complete beit din for this, as this is a ruling like all rulings, and one is sufficient even if he is a relative, like all rulings of issur v'heter; and only for the receiving of testimony from the witness is a complete beit din required, as is the law for all receiving of testimony, and the practical difference is so that the witness cannot retract later, but to permit her to the world, one sage is sufficient as in all rulings. And furthermore, even for the receiving of the testimony, a beit din is not required as in all receiving of testimony, for in all receiving of testimony, if there is not a complete beit din, it is like a witness from the mouth of a witness, and regarding an agunah, a witness from the mouth of a witness is fit as has been written; and only so that he cannot retract is a complete beit din required as has been written, but not regarding the permitting of the agunah. And some have strengthened the words of our teacher, the Rema, for the fact that a witness from the mouth of a witness is fit regarding an agunah is because if we required fit witnesses, it is possible she would remain an agunah, but regarding the receiving of the witnesses before a beit din, why should we not require a fit beit din as in all receiving of testimony? And furthermore, behold there are also matters of monetary law involved, the receiving of the ketubah, and it is simple that a fit beit din is required; and in any case, according to this, it does not affect the permitting of the agunah.

And it appears to me that also regarding the matter of permitting an agunah, a specifically fit beit din is required, according to the opinion explained in section 25 that according to Torah law she is not permitted based on one witness, but only based on two fit witnesses; thus it turns out that she marries based on an enactment of a beit din. And the beit din in each and every generation are like the agents of the first batei din who established this enactment, and it is as if the beit din of this generation permitted her, for through them the statutes enacted for the community from then on are practiced [Rashi Bava Metzia 96b]. Therefore, it is necessary that a fit beit din sit to permit her. Therefore, a woman who comes before us to marry and maintains herself to be a widow, if she is not established here as a married woman—she is believed with a migo of being single, just as she is believed to say "I am a divorcee," as written in siman 152. But if she is indeed established as a married woman—we do not allow her to marry until she brings a document or evidence that she is a widow. And if she has neither a document nor evidence and only says "my husband died" and she is believed, in truth, one must initially convene a beit din and permit it, according to the law of one who marries based on one witness. However, in most instances, this is an uncommon matter, for when she is established here as a married woman, it follows that when her husband dies she has many clarifications, unless he was killed or drowned, for then in truth they do not permit her quickly, and when they do permit—they permit based on a beit din [according to the Pitchei Teshuvah subsection 152 in the name of the Brit Avraham, and I have written what appears correct to me].

It has already been explained that a Kuti speaking mesiach lefi tumo is believed. And what is mesiach lefi tumo? That he does not intend for the sake of testimony in order to permit her, nor does he intend for the sake of another matter such as for the sake of boasting or to instill fear or any other pretext, lest he intended for some matter or perhaps they taught him to say so; and one must be very careful in this, for the matter is close to error. And how do we know this? The Rambam wrote in chapter 13: How so? He was mesiach lefi tumo and said, "Woe to so-and-so who died, how handsome he was and how much good he did for me," or he was speaking and saying, "When I was coming on the road, so-and-so who was walking with us fell and died, and we wondered at this matter, how he died suddenly," and similar to these things which show that his intention is not to testify—behold, he is believed. Thus far his words, and it was transcribed in the Shulchan Aruch, section 14. And specifically that it was not by means of a question, for if they only asked him "What became of so-and-so?" or "Do you not know of so-and-so?" and similar to this—his words are no longer effective. And it is a great principle that anything by means of a question is not lefi tumo; rather, the Kuti must speak his words of his own accord, and then afterwards, even if they asked him and examined him until he explains the entire event, behold, he is believed and we permit marriage based on his word, since the beginning of his words was not by means of a question, even though the end of his words are necessary [Chelkat Mechokek]. And likewise, specifically if he tells it in the marketplace or before ordinary men or women in the house of a homeowner, and then the listeners who heard these things from him that he spoke mesiach lefi tumo come before beit din and testify that they heard these things from a Kuti; if the beit din sees that he spoke lefi tumo—they permit her. But if the Kuti himself comes before beit din and tells such things—his testimony is void, for since he came to beit din, it is evident that he intends to testify and this is not lefi tumo [Beit Shmuel, subsection 36]. And if it happened that the Kuti spoke such things before ordinary people, and they are not experts in the halacha and said to the Kuti, "Go to the Rav and the beit din and tell before them that which you told before us"—this does not harm at all, for his words that he spoke before beit din we do not need, and the listeners come and testify before beit din what they heard from him before he told it before beit din [it appears to me]. And that which the Rambam wrote that the Kuti said "so-and-so," it is not specifically his name alone—for this is not effective—but rather "so-and-so son of so-and-so" or "from such-and-such a city" and similar to these signs so that it will be clear to whom he intends, as will be explained with the help of Heaven [see Beit Shmuel, subsection 37].

On the surface, it is implied from the words of the Rambam, of blessed memory, that specifically when the Cuthean speaks some additional words beyond what he says, "so-and-so died," such as if he praises him or wonders at his death and the like; but if he says only "so-and-so died," even though it is clearly apparent that he is relating this according to his innocence—nevertheless, this is not "according to his innocence." And such is the opinion of one of the great Rishonim, that as long as he did not say some connection of words but only "so-and-so died"—this is not according to his innocence and we do not permit her [Beit Yosef in the name of the Ran]. Many of the poskim disagree with this and hold that the connection of words is not a requirement at all, and it appears that this is the opinion of our teacher, the Rema, who wrote there: And so if he said "so-and-so died" as one speaking according to his innocence, even though he did not say other words, it is properly called speaking according to his innocence, and there are those who are stringent. Thus far his words. This implies that his opinion leans toward the opinion of those who are lenient. And so wrote our teacher, the Beit Yosef, in his great work, that all the beit dins in his city were accustomed to permit in such a case and did not concern themselves with the opinion of those who are stringent; see there. And regarding the Rambam, it must be said that he did not speak precisely, but rather such is the way of the matter, for if not so, why would he relate that so-and-so died. And from the Rambam himself in law 25 there, it is also explained that a connection of words is not necessary.

Regarding the essence of the matter, it appears to me that they do not disagree at all regarding the law, for certainly if the gentile tells his friend who was an acquaintance of the deceased, or to an Israelite acquaintance of the deceased, "So-and-so died" – there is no need for a connection of matters, for this is speaking in his innocence in the manner that people tell one another about their acquaintance when he dies. Similarly, if this person speaking in his innocence was a friend of the deceased and goes even by himself and sighs and says "So-and-so died" – it is considered speaking in his innocence. But if a gentile comes to an Israelite and says "So-and-so died," and this Israelite had no acquaintance with the deceased, certainly without a connection of matters he intended to testify, for if not so, why did he tell him? But when there is a connection of matters, he related his death incidentally from the narration of the event. Similarly, that which we said that when the gentile comes before the Rav or the beit din and relates the death of so-and-so, this is not speaking in his innocence but rather his intention is to testify and it is not effective even with a connection of matters – this is when the gentile had no other business with the Rav or the beit din and certainly came only to testify, but when he had some business there – his words are effective just as with others, and why should it be diminished? Similarly, when the gentile knows that the deceased was close to the Rav or the beit din and comes and says to them "So-and-so died," it is also considered speaking in his innocence [and with this are settled several contradictions and several matters from the responsa and from the pamphlet of agunot, and examine it closely].

In the Gemara at the end of Yevamot (122a) it is stated: A case occurred involving a group that was traveling on the road, and one of them fell ill, and they left him with a Cuthite innkeeper and went on their way; and upon their return, as soon as the innkeeper saw them, she began to weep, and they said to her, "Where is our companion?" she said to them, "He died and I buried him," and they permitted his wife, for this is mesiach lefi tumo. It is clarified from this that regarding that which we stated in the general rule of mesiach lefi tumo, that the Cuthite must be the one who begins without the questioning of an Israelite, even if the Cuthite did not begin with speech but rather with weeping and the like, it is considered a beginning, for the weeping is according to his innocence; and then afterwards, even when they ask him and he answers—she is permitted, since he began according to his innocence, as I wrote in section 120. And such is the law in the reverse: if the Israelite began to weep, this is like the beginning of speech from an Israelite, and the statement of the Cuthite no longer avails, for this is not according to his innocence [Kuntres Agunot siman 20, and see there in siman 186 and see there in Tosafot; and their proof from the Yerushalmi requires further study, for the Yerushalmi does not establish the case such that she wept, see there].

If the gentile was the one who began the conversation, even if his beginning was not regarding the matter of the death of a certain person but regarding another matter, and the death of that certain person came about through a question—for example, the gentile told about a group of robbers and the Jew asked him what became of the Jews, and the gentile said to him that they killed them—there are those who say this is considered masiach lefi tumo, and according to this, also the opposite: when the Jew asked him about another matter and the gentile answered him, and in his answer he mentioned to him that certain Jews were killed, it is not considered masiach lefi tumo since the Jew was the one speaking first. However, there are some of the great authorities who permitted in such a case, like an incident where a Jew asked a gentile what became of a certain ship, and he answered that it broke and there were three Jews there, so-and-so, so-and-so, and so-and-so, and three of the great men of Israel permitted their wives when they said that the water cast them out and they buried them. And similarly, a Jew who asked a gentile, "From where have you come?" and he answered regarding the matter of the death of the Jew, since the question was not regarding the matter of permitting the woman, it is called masiach lefi tumo. And according to this, the opposite: when the gentile spoke first regarding another matter and his answer regarding the death of the Israelite was through a question, it is not called masiach lefi tumo. And there is a proof for this view from the Yerushalmi, for Resh Lakish said, "Anyone who is asked and he answers," and Rabbi Yochanan said, "Anyone where they mention a woman to him," and the Mordechai explained that Rabbi Yochanan is for stringency like our Talmud; it follows that even according to the one who is stringent, without mentioning a woman it is considered masiach lefi tumo. See there and examine it closely.

And so it is clear from the words of our teacher, the Rema, in section 15, who wrote that if they asked him first, "Where is our friend?" and he said to them that he died, this is not called mesiach lefi tumo. Thus far his words. This implies that specifically when the question was about the lost person himself; but if the question was about another matter and he answered regarding the matter of the lost person—it is mesiach lefi tumo, for if not so, he should have explained an even greater novelty. And since this is so, it follows that also the opposite is true: even if the koti was the first one speaking, but he spoke about a matter other than this, and the Israelite asked him about this matter—it is not mesiach lefi tumo. And so reason dictates, for since we require mesiach lefi tumo so that the koti does not sense that they are asking intentionally about the matter of the deceased or his wife, if so, other things that are not truly of the matter are as if they are nothing. And we need not fear that perhaps through the side question of the Israelite, the koti sensed that their will was to find out about the lost person or his wife, for we should not fear excessive fears of our own accord [and this is the wording of Ri in the Yerushalmi there: "Whenever they mention a wife to him," meaning even after the koti began, and so wrote the Gra in subsection 60 and agreed so in the law, see there].

And regarding that which was explained in section 120, that when the Kuti began to speak offhandedly that a certain person died, then even if he subsequently related the details of the matter through questioning, she is permitted—some say that this is specifically when he related the details of the matter through questioning in that same session. Since he told the essence of the matter offhandedly, we need not concern ourselves that perhaps through the Israelite's questioning he said some addition or omission regarding the details of the matter, for behold, he had no time for this. But if after some time he related the details of the matters through questioning, we fear perhaps he fabricated from his heart or they asked him to lie [Rashdam siman 43]. The practical difference is if the previous offhanded statement is not sufficient to permit her, such as if he related offhandedly that he drowned in water that has no end and the like, and afterwards through questioning he said that the water cast him out and he buried him and similar to this—we do not permit her. And some say there is no distinction in this, for from where do we have reason to be concerned about this? Since the essence of his words was offhanded, we subsequently believe him in everything he answers through questioning, whether immediately or after some time [Masat Binyamin and Re'em and Binyamin Ze'ev, and see Beit Shmuel subsection 41]. And one who is lenient has not lost, for many are those who permit [and in the Rashdam there it is explained that even in his generation they disagreed with him on this, see there].

And so too the reverse—when the Kuti told his words via questioning or in testimony and his words were not accepted, and over the course of time he recounted this in his innocence, some say that since at a prior time his words were not accepted, we never accept him and his speaking in his innocence is nullified, even if he speaks in his innocence before other people [the precision of the Chelkat Mechokek subsection 30 from the wording of our teacher, the Rema]—and it is a great stringency, for is it because they asked him last year that he should not be believed now when speaking in his innocence [ibid.], and therefore it appears that if over the course of time he recounted in his innocence before other people—one may rely upon him [and that which he infers from the wording of our teacher, the Rema, can be answered simply, see there and examine it]. However, if the Kuti came to testify before a beit din—certainly it is difficult to rely upon him another time even if he recounted in his innocence before people over the course of time [Keneset HaGedolah siman 82], for since he came once to testify, it appears that his intention is to permit her, and how can we rely further on his words [and from this itself it is implied that in the first ruling there is no concern]. And so too one must be in doubt if at first he spoke in his innocence and afterwards came to beit din to testify, whether we say his end proves his beginning that it was not in his innocence [ibid.], and there are those who wish to distinguish between coming to beit din to testify—in which we do not say his end proves his beginning, and coming to beit din to permit—in which we say his end proves his beginning. And it appears to me that they are equal, for coming to testify is like coming to permit, [as we establish like Rabbi Yehuda in Yevamot 121b, and even though regarding this matter there is room to distinguish, nevertheless from where do we have the authority to say so, and therefore even though in the Kuntres Agunot there he only wrote regarding intending to permit, nevertheless I wrote regarding intending to testify, and from the Chelkat Mechokek there it is necessitated so, and examine it].

There is no distinction regarding a masiah lefi tumo between one who is knowledgeable in the religion of Israel and one who is not knowledgeable. We do not fear to say that since he is knowledgeable in the religion of Israel, perhaps he is practicing deception in order to permit the woman, for the sages did not make a distinction in this and relied on the fact that she will be exacting and the matter is destined to be revealed [Teshuvot Maimoni, Ishut siman 9]. And even if it appears that according to his statement we should fear that perhaps there is a monetary intent in it, such as if the gentile came and said to the Jews, "Why do you not bring the killed Jew who is lying in such-and-such a place? I would have brought him on my wagon if you would give me such-and-such a coin," on the contrary, since he is prepared to bring the killed person, the matter will be revealed immediately and how could he lie [ibid.]. However, in a matter that is not destined to be revealed and we see a concern of monetary gain in his words—it is obvious that we must be concerned and not permit her based on his words. And so too if it is possible to attribute his conversation to another pretext, that perhaps he intended something else, like the incident that occurred with a gentile who said to a Jew, "Do such-and-such for me so that I do not kill you just as I killed so-and-so," where his intent was to cast fear upon this person [Gemara], and similarly with other types of pretexts that we can attribute according to the sight of the eyes of the beit din. But if he said, "It is proper to pay me well for this merchandise because I had the responsibility of the road, for on this road so-and-so was killed"—it is a masiah lefi tumo, and we do not say he intends to enhance his sale [Beit Shmuel subsection 9], for for this alone it would have been enough for him to say that the road is dangerous. And so too if a gentile innkeeper said to a Jew, "Do not go out at night so that you are not killed just as so-and-so was killed"—it is a masiah lefi tumo [ibid.]. And there is one who hesitates regarding this, for perhaps his intent is to remove himself from suspicion, so that they do not suspect him of the killing of that person, as he is warning this person [ibid.]. And it appears that everything is according to the matter, and in these matters we do not say this one is similar to that one, and it depends on the sight of the eyes of the beit din [it appears to me].

Our teacher, the Rema, wrote in section 14: And so too in a place where there is reason to fear a lie, that they instructed him to say so – we do not rely on him. Thus far his words. And his intention is not that with an ordinary case of mesiach lefi tumo we should fear this, for if so, we would never accept any mesiach lefi tumo by searching for such fears; rather, his intention is that if there is a basis for the matter, such as if we knew that the woman once produced false witnesses and their lie was revealed, or that the story of the Kuti is a wonderous matter in the eyes of people, that according to his story he should have told this a long time prior, or if we knew that the woman's relatives are promising money to witnesses and similar matters where according to the perception of the beit din there are fears regarding his testimony. And so too if the Kuti retracts his words that he stated mesiach lefi tumo, even though according to the law his retraction is nothing after his testimony was accepted, nevertheless, if the Kuti gives a good justification for why he said so previously and there is a basis for his words – we do not permit based on his previous words, and so too anything similar to this.

The Rambam, of blessed memory, wrote: Similarly, if one heard from the courts of gentiles who said, "We killed so-and-so," they are not believed, for they support themselves with falsehood in order to instill fear. Thus far his words. And there are some of our teachers who explained the reason as being that they say this for the sake of glorification, that they kill according to law and justice. And there is a practical legal difference between the two reasons: for if they say that he was killed not by their hand but in other courts—according to the reason of the Rambam, we permit his wife to marry, for instilling fear is only relevant when one makes himself out to be the master of fear. But according to the reason of glorification, there is no difference, for they glorify themselves in the generality of their statutes, that they proceed on the side of justice. And this is the intent of the Tur, who wrote that from the Rambam it is implied that if it was not by their hand they are believed, and from the Rosh it is not so implied, see there; because the Rosh holds like the other reason that we wrote. [And the difficulty of the Beit Yosef is answered, as to from where he knew to infer thus from the Rosh, for the Tur inferred that the Rambam wrote "We killed" and the Rosh wrote "He was killed," and examine this closely].

And so there is a practical legal difference when they said, "We killed him unlawfully," for the reason of fear is relevant in this case, but there is no boasting here; on the contrary, there is a degradation in this, that they killed him unlawfully. And so there is a practical legal difference when the Archi told this to a gentile and the gentile told it to an Israelite, for the reason of fear is not relevant since the Archi would not cast fear upon the gentile, but boasting is relevant in this case. And it is possible that casting fear is also relevant with a gentile, and similarly it is possible that boasting is also not relevant with a gentile, and it requires further study for the law. And so there is a doubt whether specifically regarding the head of the judges boasting and fear are relevant, but regarding the minor judges beneath him and his servants they are not relevant and their law is like other gentiles, or perhaps even regarding them this is relevant; and I found in the responsa of our teacher, the Beit Yosef, that the servant of the Archi is trusted, but the one appointed to kill is not trusted.

And specifically the beit din of the gentiles themselves, but other gentiles who said as masiach lefi tumo that a certain person was judged in the beit din of the gentiles and the beit din of the gentiles executed him—it is like other cases of masiach lefi tumo and we permit his wife to marry, for regarding ordinary gentiles, neither the imposition of fear nor boasting is relevant. And one should not say perhaps they heard it from the beit din of the gentiles and there is boasting in this according to what I wrote in the previous section, for we do not need to be concerned for such apprehensions and diminish the strength of the permission as long as there is no basis for the matter. And it is not similar to what I wrote in section 81 regarding one who drowned and someone said that he died, where we do not permit based on this testimony because we fear he spoke based on the drowning, for there, there is a basis for the matter; but when there is no basis for the matter, we are not to attribute his statement to something that would spoil his testimony [see Beit Shmuel, sub-section 40]. However, when there is a basis for the matter, such as when a Jew heard from the beit din of the gentiles and the gentile related that he was killed in the beit din of the gentiles—we attribute his words also to hearing from the beit din of the gentiles [it appears to me]. And some say that even if a rumor went out that he was judged in the beit din of the gentiles and the gentile said he died, we say that his telling is because of the rumor [Beit Shmuel, ibid.], and according to what I wrote there, there is no concern regarding a rumor, [and the Beit Shmuel follows his reasoning in sub-section 31].

And that which has been explained, that by means of an inquiry it is not called masiah lefi tumo, there is no difference whether the respondent was that same koti whom the Israelite asked or another koti who was present at that same standing at the time the Israelite asked, but if an Israelite asked a koti and there was no other koti present at that standing, but this koti who was asked told another koti about the matter that the Israelite asked him regarding so-and-so, and this other koti came before the Israelite and related according to his innocence that so-and-so died—it is certainly masiah lefi tumo, for the inquiry that the koti asked him or what he told him of the Israelite's inquiry does not diminish the innocence. And similarly, an Israelite who asked an Israelite regarding so-and-so, and a koti was present at the time of the inquiry and responded according to his innocence that so-and-so died—it is masiah lefi tumo since the inquiry was of an Israelite and not of a koti. But if Israelites are speaking together of so-and-so, and a koti came and asked them "what are you speaking about," and they said to him "of so-and-so the Jew, whether he is alive or dead," and he told them that he is dead—it is not called masiah lefi tumo since his response was by means of the Israelite's inquiry to him, and even though he began by saying "what are you speaking about," nevertheless he did not mention at all the matter of so-and-so having died, and if so, behold his telling is based on an inquiry, which is not the case regarding what a koti asked a koti not in our presence, for we are not concerned about it since in our presence he told according to his innocence, and similarly in the inquiry of an Israelite of an Israelite, even though the koti was there, nevertheless since he responded without an inquiry of him or of another koti, this is not like one intending to testify but rather it is according to his innocence. And there are those who hesitate regarding this and hold that there is no difference between asking an Israelite and asking a koti, and one who is lenient has not lost, for behold there are those who are lenient even regarding a koti since he did not ask him, and so it is implied from the wording of our teacher, the Rema, in section 15, and granted that regarding a koti we are not lenient, nevertheless regarding an Israelite there is reason to be lenient. And from the wording of the Yerushalmi that we brought in section 124, it is explicitly implied that specifically when they ask of the koti who responds it is not masiah lefi tumo, but from another koti it is masiah lefi tumo, and like the simple meaning of the wording of our teacher, the Rema.

If a Jew was lost and they put out a rumor in the city and in the nearby villages and announced that anyone who knows about this Jew should come and tell, and a Kuti came and was masiach lefi tumo that the Jew was killed or died—it is called masiach lefi tumo, for even though his telling was by means of the rumor and the announcement, nevertheless, since they did not ask him specifically, this does not depart from the category of masiach lefi tumo. And even according to what has been explained, that there is no difference between whether they asked him or whether they asked another, that is because he was present at the time of the question, but with a mere rumor and announcements, we have no concern [and proof from Bava Kamma 114b]. But if Jews are speaking together and a Kuti came and said to them, "What are you speaking about?" and they said to him, "About such-and-such Jew, whether he is alive or dead," and he told them that he died, this is not called masiach lefi tumo since they asked him; and even though this is not a literal question, nevertheless, since they told him that they are speaking concerning the Jew, it is like a question, as I wrote in section 125, see there. But if the Kuti said, "Are you not speaking concerning such-and-such?" and they said to him that it is so, and he said to them, "I knew that he died"—it appears that it is masiach lefi tumo. And all the more so if the Kuti came and said, "Why do the relatives of such-and-such not investigate concerning him to bring him to burial, for I knew that he died," and likewise if he says, "What are you speaking about, perhaps you speak concerning such-and-such?", and so too anything similar to this—it is masiach lefi tumo [it appears to me].

Regarding that which has been explained, that through an inquiry it is not considered masiah lefi tumo, some say that this is specifically when an Israelite inquired, but if a gentile inquired of a gentile, "How is so-and-so the Jew?" or if he asked him, "Perhaps you know of so-and-so the Jew whether he is alive or dead?" and he said to him that he died—we permit his wife even though this is not lefi tumo. The reason that through an inquiry he is not believed is because perhaps his intention is to permit his wife or to testify regarding his death, and this is not applicable when the gentile is the inquirer. And that we should suspect perhaps the gentile is lying from the outset—we do not suspect him of this, for if we suspect this, what benefit is his integrity? It is only that we suspect him that when his intention is to testify he will add or subtract and it is not within the category of testimony, but when the inquirer is not an Israelite, these concerns are removed. And these words apply when an Israelite was not in their presence at the time they inquired, for if not so, we fear that his intention is for the sake of testimony since an Israelite hears the inquiry of the gentile. And all the more so if the gentile inquired of him in the name of the Israelite, even though the Israelite was not present at the time of the inquiry—nevertheless we do not permit her, for since he knew that it concerns an Israelite, we cannot rely upon him. And if he did not tell the gentile who is inquiring of him that he inquires in the name of an Israelite, even though the Israelite requested him to inquire of him, nevertheless since the gentile who replied did not know of this, it is possible that it is like masiah lefi tumo. And even if the law is so, nevertheless you do not find it except when an Israelite heard from behind the wall the reply of the replying gentile and the gentile did not see him, for if not so, from where did his reply come to us? For if the first gentile told us the reply of the respondent—it is of no benefit, for with him it was through an inquiry; and if the second gentile told us afterwards according to his innocence, it is of benefit in any case even if initially it was through the inquiry of an Israelite, as I wrote in section 127.

One who was seized for murder and confessed before the governor that he killed a certain Jew—if he confessed by means of torture, it is obvious that this is nothing, for a confession by means of torture is not a confession. And if he confessed without torture, his confession is effective. And even though it was through the questioning of the governor, nevertheless, regarding a kutei it is effective even through questioning, as has been written. However, it is possible to say that the questioning of the governor is different and his answer is like a form of testimony, and in testimony it is not effective. And it is obvious that when the governor sought out a certain kutei to testify that this kutei killed a certain Israelite and he testified—that it is not effective, for anything in the category of testimony is not masiah lefi tumo. And if a murderer was seized not because of the suspicion of killing this Israelite, and during his confession before the courts he also related that he killed a certain Jew—this is masiah lefi tumo, and there was an incident involving a certain murderer whom they sentenced to death and he said at the time they sentenced him, "I never sinned except one time I killed a Jew who was carrying such and such money," and they permitted his wife on the grounds of masiah lefi tumo. And so too there was an incident involving one suspected of murder who was judged before the judge, and the judge said to him, "Confess and I will exempt you and set you free," and he confessed that he killed a certain Jew, and they ruled that his wife may be married, for even though it is possible that he confessed because the judge promised to set him free when he confessed, nevertheless, if it were not true that he killed him, why would he draw upon himself a sin, and he should have known that it is the way of the judge to smooth things over with words so that he will confess. However, it is a simple matter that if the judge said to him, "If you do not confess I will torture you"— his confession is nothing, for he confessed in order to be exempt from the torture, and it is known even of Israelites who confessed at the time of the decrees because of torture regarding things they did not do at all.

Our teacher, the Beit Yosef, ruled in a responsum that specifically when they torture him to confess to the killing of a certain Jew, his confession is not a confession, for his intention is to exempt himself from torture. However, if they torture him generally to confess what he has done, and he confesses that he killed a certain Jew—his confession is a confession, for it is not the way of a person to fabricate from his heart what he did not do and to stand by his word, as through this he will not be exempted from torture; on the contrary, this confession is a reason for them to torture him further to confess further things. And if he had not confessed, it was likely that he would be saved from the torture, as they did not torture him to confess to the killing of this Jew. But when they tortured him to confess to the killing of this Jew—it certainly is not effective even if he stood by his word even after the torture, for we fear that he will be tortured further if he retracts his confession. And it is a simple matter regarding a murderer who was not caught by the government, that when he relates that he killed a certain Jew he is not believed, for his intention is to cast dread and fear so that they will give him what he requests.

Our teacher, the Rema, wrote (section 15): If an Israelite asked and the Cuthean told that he died and told proving assessments, even though it is not called "speaking in his innocence" and she is forbidden to marry, nevertheless if she transgressed and married based on a sage who permitted her, she shall not leave if there are proofs and assessments that he died. Thus far his words. And he treated this like "water that has no end," which will be explained, that if she married based on a sage she shall not leave; but if so, there is no limit to these matters, for either way—if there are proving assessments even without the statement of the Cuthean, then why is his statement needed here? Furthermore, do we permit based on assessments? Behold, we are stringent regarding the essence of testimony to be concerned even for remote concerns. And in truth, there are some of the poskim who rejected this law from the halacha. And it appears to me that the intention of our teacher, the Rema, is not regarding an ordinary Cuthean, but rather like the laws we explained previously, such as a murderer who was caught and confessed to the killing of a certain Jew, and even though the confession was through the questioning of an Israelite, nevertheless since the murderer gave signs and assessments regarding in which place he killed him and for what he killed him, for such and such money that was with him, and this matter is true and he confessed at the time he was caught by the government, in this, even though we do not permit her ab initio, nevertheless if based on the permission of a sage she married—she shall not leave, since the murderer confessed and brought a harsh judgment upon his soul, we learn from this that he is speaking the truth [and it appears to me that the Chelkat Mechokek in subsection 49 also understood so]. And some say that even without a statement at all and even without testimony, if there are assessments that he died and a sage permitted her—she shall not leave, and there is no foundation for these matters and Heaven forbid to rely on this [see Chelkat Mechokek subsection 33 and in Pitchei Teshuva subsection 77 what he wrote in the name of the Radbaz and the Marot HaTzovot].

Our teacher, the Rema, wrote: If there was a doubt whether he was speaking in innocence or not – we do not marry off his wife, for a doubt regarding a Torah prohibition is resolved stringently; and so too in any place where there is a dispute regarding these laws – we follow the stringent view. Thus far his words. And certainly it is so, for in every place a doubt regarding a Torah prohibition is resolved stringently, and even regarding a double doubt where we are lenient in the entire Torah, nevertheless, regarding an agunah one must be stringent regarding the essence of the testimony. For the primary reason for a double doubt is because the first doubt makes it like half and half, and with the second doubt it becomes a majority toward permission, and behold, regarding the testimony for a woman we are stringent even with a remote concern [see Be'er Heitev subsection 51 in the name of Knesset HaGedolah]. Nevertheless, some say that in a dispute of the poskim we follow the lenient view [Taz and Be'er Sheva in the name of Mas'at Binyamin]. And it appears to me that this is specifically when it appears to the sage that the opinion of those who permit is the primary law based on proofs that he has, and therefore he can follow the opinion of those who are lenient; or that it appears to him according to the matter that one should follow the lenient view, such as when it appears to him that he was speaking in innocence, and even though he has no clear proof for this, nevertheless in his heart it is clear that it is so. And the general rule of the matter – it is impossible to state fixed rules in these matters; however, it is a clear thing that a sage should not rely on his own opinion alone except in conjunction with sages who fear Hashem, and if it appears in their eyes that the matter inclines toward permission, they shall permit; and if the sage relies only on his own opinion – he is rebuked from Heaven. And regarding a double doubt for an agunah, it will be further explained in this siman.

And one of the early Geonim gave a general rule regarding this: whenever the doubt concerns the essence of his death, Heaven forbid that one should be lenient. However, if his death is nearly certain and the doubt is only regarding the testimony—whether it is superior testimony or not, such as whether he spoke in innocence or not, or if there is a contradiction in the testimony or not, or if he is fit for testimony or not—we follow the lenient path. For when the doubt concerns the essence of his death, we establish him upon his presumption of being alive; but once the presumption of his life has been weakened, we are then lenient regarding the matter of the testimony. Similarly, when the witness is before us, we investigate him very thoroughly, and if his testimony is found to be improper, we forbid her. But in the case of a witness reporting from a witness, such as when he says, "I heard from the mouth of such-and-such a Jew or non-Jew who saw such-and-such a Jew killed or dead," and it is impossible to obtain the first witness to state how he recognized him—whether by signs or by recognition of features, or perhaps he did not recognize him well, or perhaps it was after three days, and similar concerns—we incline toward leniency [this is seen in the name of the Radbaz], and these are words of reason.

A Kuti speaking out of innocence from the mouth of a Kuti speaking out of innocence – one permits marriage based on his word. And even if he did not say explicitly that the first one spoke out of innocence, we follow the doubt to be lenient and say that certainly he spoke out of innocence; for since this one before us is speaking out of innocence, why should we be concerned regarding the first one who told it in his name that his telling was not like this one before us. And there are those who disagree on this and hold that he must say explicitly that the first one spoke out of innocence, for an ordinary speaker does not speak out of innocence but rather with intent; therefore, one must know that he spoke out of innocence. And there are those who wish to say that a Kuti from the mouth of a Kuti is never effective, because a Kuti is not expert enough to recognize if he spoke out of innocence or not – and this is an excessive stringency. And many of the poskim agree with the first opinion if it is impossible to clarify how the account of the first Kuti was, and so it is evident from what was explained in the previous section [see Chelkat Mechokek subsection 35 who wrote that those who disagree do not disagree unless it appears clearly that the first one did not speak out of innocence, and so wrote the Mareh HaPanim, and so it appears from Ketzot HaChoshen siman 258, see there and examine carefully].

If an Israelite testified that he heard from the mouth of a gentile that a certain person died, he must say explicitly that the gentile was speaking offhandedly, for if not so, even according to the opinion explained that regarding a gentile from the mouth of a gentile it is permitted without specification, nevertheless, regarding an Israelite from the mouth of a gentile it is prohibited without specification because it is the way of an Israelite to ask about his fellow Israelite, and presumably the gentile answered him via a question. And some say that even regarding an Israelite from the mouth of a gentile it is effective without specification, and on the contrary, even according to the stringent opinion regarding a gentile from the mouth of a gentile, one should be lenient regarding an Israelite from the mouth of a gentile, for if the gentile were not speaking offhandedly, the Israelite would not have said it without specification and would have said explicitly that he heard from him not offhandedly; however, if we knew that this Israelite is an ignoramus and does not know the law that the gentile must specifically tell it offhandedly, it is difficult to be lenient. And if a gentile speaks offhandedly and says that he heard that a certain Israelite testified how a certain person died, the matter requires deliberation, for perhaps since he says a matter of testimony within his offhanded speaking—this is not offhanded; and some are lenient in this, and it requires further study for the law.

It is a simple matter and understood by reason that what has been explained regarding the types of witnesses who are believed to testify that the husband of this woman died or was killed—this is when the witness knows that the man about whom he testifies was the husband of this woman, having known him and his wife during his lifetime, and now when he testifies that he died and the sages believed him, she is automatically permitted based on his word. However, if the witness does not know at all that the one about whom he testifies is the husband of this woman—it is of no effect unless he testifies before a beit din that "Ploni son of Ploni from your city, whose trade was such and such," and other clear signs such that the beit din has no doubt about whom he testifies and they know that this man is the husband of this woman, they permit her as well. For since the witness knows whom he is testifying about because he recognized him, then what does it matter to us if he does not know that this is his wife? But if the witness did not recognize him either, but rather testifies "a man named Ploni died in such and such a place"—certainly his testimony is nothing, for there are hundreds of people whose names are identical, and what kind of testimony is this? And there are many detailed laws in this matter, as will be explained with the help of Heaven.

The Tur wrote: If one came and said, "They told me, 'When you go to such-and-such a place, tell them that Yosef ben Shimon died,'" and he came and said so, and we recognize a certain individual known by this name—his wife is permitted even though he did not state a sign by which we would recognize him, and we are not concerned that perhaps it was another whose name was thus. And some say specifically when another was not established in that place with this name, and also caravans that pass through there are not common; but if one of these exists—we do not permit marriage. And the Rif wrote that even if two with this name are common or caravans are common—we permit marriage until both exist as a deficiency, and such is the conclusion of my father, the Rosh, of blessed memory. Thus far his words. And even though regarding a lost get the Rif is stringent with one of these as a deficiency, as written in siman 132, nevertheless, regarding testimony for a woman that her husband died, they were lenient, just as they applied many leniencies regarding an agunah, for due to the stringency that we applied to her at the end, she will certainly be precise and then marry; but regarding a get, it is possible to write another get [Rosh, chapter 3 of Gittin, siman 3]. And regarding a get, even if an incident like this occurred where it is impossible to obtain another get—nevertheless we are not lenient in this, for regarding a get there is no reasoning that she will be precise, as she could say "you divorced me," which is not the case with death, where if he comes back alive her disgrace will be revealed; and they did not see fit to enact a remedy for a get for the sake of the ordinance of agunot since most times there is no state of being an agunah here, as they can write another get, and they did not enact a remedy because of a pressured case when it will not be possible to write another get. [This is the intention of the Rosh, and the difficulty of the Mareh HaTzedek is answered; see there and examine carefully].

And regarding that which the Tur wrote in the name of the Rif, that even when two Yosef ben Shimons are established, if caravans are not frequent it is permitted, there are those who disagree with this, for what benefit is there that caravans are not frequent? Since, in any event, there is another one, how do we know that this woman's husband died? Perhaps it was the second one who died, and the Rif only ruled leniently when caravans are frequent and two Yosef ben Shimons are not established, but not the reverse. And one cannot say that we know the second one is alive, for if so, it is obvious, and who would disagree with this? However, if regarding the one about whom they testify, we knew with certainty that he went on this path, and regarding the second, we did not know at all that he went on this path—it is certainly appropriate to attribute this deceased person to him, that it is he who went on this path, and we do not attribute it to the other, for we attribute it to that which is common. But if the other also went here, even if it was a long time ago that he went, and this woman's husband went on this path recently, nevertheless, we should not attribute it to him more than to the other, and the words of the Tur can also be interpreted this way. And some say that even in such a case we attribute it to this woman's husband, for presumably this deceased person is the man who went recently, for regarding the other who already went, we need not concern ourselves that he also went on this path just now recently, and it is difficult to be so lenient. And there is one who says that when another Yosef ben Shimon is established in this city, we are not lenient in any manner, and the Tur is dealing with a case where another Yosef ben Shimon was established in the world but not in this city, but it does not imply this. And the main point is like the first excuse, and many great authorities agreed accordingly.

And according to this, it is a simple matter that this which we rely upon to permit the woman based on the statement of this witness is when we knew clearly that the husband of this woman went on this path; but if we did not know at all if he went on this path, it is not necessary to state that when another Yosef ben Shimon was established and both were lost that it is impossible to be lenient at all, for behold, both entered into the doubt. Rather, even without two Yosef ben Shimons being established—the matter requires deliberation if one may be lenient [see Marot HaTzovot end of section 19, letter 4]. And according to this, one may simply distinguish between a get in siman 132 and here, for certainly also regarding a get, if we knew that in this place such a get was written and the messenger brought it on this path, we would also be lenient; however, regarding a get, it deals with a case where we did not know at all if such a get was written in this place [and indeed, the Ramban wrote so in the Milchamot in Yevamot there to settle the words of the Rif, and so wrote the Rashba, and see the Beit Shmuel].

Our teacher, the Beit Yosef, wrote in section 18: If one came and said to us, "The beit din or people said: 'When you go to such-and-such a place, tell them that Yitzchak son of Michael died,'" and the messenger came and told us, and the messenger does not know who he is, since we know a certain person known by this name—behold, his wife is permitted, and we do not say perhaps it was another Yitzchak son of Michael who died, provided that two people named Yitzchak son of Michael were not established there, or when two were established and one is alive. Thus far his words. And it implies explicitly that he holds that where they were established, even if caravans are not common, we do not permit her, and like the opinion of those who disagree in section 145, and so implies the opinion of the Rambam and the Ra'avad in chapter 13, halacha 24 [and so it implies from Rashi there in Yevamot]. And that which he wrote, that when one is alive we are no longer concerned, so agreed most of the poskim, for what does it matter to us that his name is like his name since he is alive; and even though there is one who says that since another was established whose name is like his name we are concerned for yet more people, perhaps there are others whose name is like the name of this one [Rashba Gittin 27a], nevertheless, most of the poskim do not hold so.

Our teacher, the Rema, wrote regarding this that some say all this is specifically when the witness mentioned the name of his city, but if he did not mention the name of his city, even though they know that one was lost—it is not effective even though he mentioned his name, and some are lenient. And some say that in a case where he mentions his name alone we require that he mention his city, but if he mentions his name and his father's name we do not require that he mention the name of his city. And in a place where there are estimations and proofs that this is he—one should be lenient and rely on the one who says that we do not require that he mention the name of his city. Thus far his words. Many wondered about him, for this stands upon the words of our teacher, the Beit Yosef, that this person came and said that they told him: "When you go to such-and-such a place, tell them that Yitzchak son of Michael died," behold he mentions the name of his city as well, for behold they are informing such-and-such a city that so-and-so from their city died, for if he is not from their city—why should they inform this city? And it is not reasonable to say that even in such a case he must say explicitly "so-and-so from your city," for what reasoning is that? Furthermore, from his words it implies that there are opinions who hold that it is not necessary at all to mention the name of his city. And some say that even with his name alone it is sufficient, and this is something that is impossible to say at all, for if she hears that Yosef died or Yosef son of Shimon died, shall this woman go and marry? Behold, in the world there are certainly many Yosef son of Shimon.

Therefore, there are those who correct his words, stating that it should be said as follows: Some say that all this is specifically when the witness mentioned the name of his city, but if he did not mention the name of his city etc. – it is not effective; and there are those who are lenient, that in a place where he mentions his name alone we require that he mention his city etc., and he does not disagree with our teacher, the Beit Yosef, but rather explains his words. And this is the explanation: Some say that we specifically require the name of his city, like that of our teacher, the Beit Yosef, where the name of his city was as if explicit, or when one came and said, "Ploni son of Ploni from such-and-such city died"; and there are those who are lenient, that when he mentioned his name and his father's name, the name of his city is not necessary. And so it is implied from the version in the Tosefta at the end of Yevamot (14:11), as it was taught: We do not testify about him until they mention his name and his father's name, his name and his city's name. And there is a version in this Tosefta: his name and his city's name and his father's name. And they decided the law according to the first opinion, that we require the name of his city, for there is no logic at all to permit without the name of his city, for how many Yosef ben Shimon's are there in the world? And they truly wondered at whoever holds such an opinion.

And it seems to me that there is certainly no opinion to permit in general based on his name and his father's name, to say that when one says that Yosef ben Shimon died in a distant place, to permit with this the wife of the Yosef ben Shimon of this city, for how many Yosef ben Shimons are there in the world? And the opinions that our teacher, the Rema, brings only disagreed if there are somewhat proving signs as to who is the Yosef ben Shimon about whom this person testifies that he died, and nevertheless it is not clear proof that the testimony is about the Yosef ben Shimon of this city who was lost. For example, if the Yosef ben Shimon of our city was lost, and one came and said that in the surroundings of the city one died or was killed whose name was Yosef ben Shimon, for those who permit hold that we attribute him to the Yosef ben Shimon of our city; or that he says that in such-and-such city Yosef ben Shimon died, and we knew that the lost Yosef ben Shimon was recently in such-and-such place and no other Yosef ben Shimon was established by name, and likewise from our city no other Yosef ben Shimon was lost, and similarly in such a case. And those who forbid hold that this is nothing and he must mention the name of his city since there is no clear indication that his intention is regarding this Yosef ben Shimon. And if so, it is not a wonder who permits even based on his name alone since it is more likely that the testimony is about him, and this is like "here it is found and here it was." However, if there is an assessment and proof that his intention is regarding this person, such as if he says that his trade was such-and-such and he was found in the surroundings of the place of his trade, or if he says about him signs of garments or signs of the body that are intermediate signs—all agree that we do not require the name of his city. [And according to this, that which the Rosh permitted regarding Machluf ben Malul who was found near Fez is well-settled, as the Beit Yosef wrote that he was from Fez, and the difficulty of the Taz and the Chelkat Mechokek is well-settled].

The nickname of his family is like the name of his city and is superior to it, for in one city there are a hundred family nicknames; and his craft is possible that it is also like the name of his city, and likewise his trade; and it is possible that even inferior signs like tall and short, white and black, are also like the name of his city; and likewise around a city, when they mention "city" without specification, the intent is to that city, for such is the way of the world, that those who dwell around a city, when they say "city" without specification, the intent is for the city near to them. And likewise if Reuven asks Shimon, "Are you from such-and-such city?", and he answered him "Yes," and Reuven said to him, "Know that Levi died or was killed" – it is as if he says, "Levi from your city was killed or died," and everything similar to this; and there is no difference in all this between a witness who testifies and a Gentile speaking offhandedly. And from the Rambam, chapter 13, halacha 27, it is clarified that his name and the name of his city are sufficient, see there.

An Israelite or a Cuthean speaking in innocence who comes and says, "A Jewish man died in such-and-such a place, such-and-such is his appearance and such-and-such are his signs," and the signs are not definitive but rather poor signs or intermediate signs as will be explained in the details of the laws of signs in this siman, and his name is not known – we do not say by way of estimation that it is certainly so-and-so from our city who was lost, until he says his name and his father's name and the name of his city, or his name and his father's name or his name and the name of his city according to the opinions that have been explained, or another definitive sign. And if we knew that this lost person from our city was in that same place where the witness says he died – it is possible that we permit by way of intermediate signs if another person with similar signs was not established [it appears to me].

If one came and said, "This person who went out with me from such-and-such a city on such-and-such a day died in such-and-such a place," if it is clarified by witnesses who the man was who went out with him from here—we permit his wife. And if it was not clarified, if it is possible to clarify who the man was who went out on such-and-such a day from here, such as if the city gates were locked and everyone who goes out from the city is known to the people of the city, and it was clarified that all the men who went out from here on such-and-such a day are all alive except for this one—we permit his wife even if he does not mention his name at all [Beit Shmuel subsection 62, and one must look into the words of our teacher, the Rema, who wrote in section 19 that the same applies to a gentile speaking in innocence, for according to the Rambam one must say "I buried him," as will be explained].

The Rambam, of blessed memory, wrote in chapter 13, halacha 25: If a Kuti and an Israelite from among us went out to another place, and the Kuti came and spoke in passing and said, "The man who went out with me from here died" – we permit his wife to marry, even though the Kuti does not know that man, provided that he says, "I buried him." And similarly, if ten men went out as one from place to place, and they were bound in chains or carrying camels or similar things, and the Kuti spoke in passing and said that ten men who went from such-and-such a place to such-and-such a place and were carrying such-and-such all died and we buried them – we permit their wives to marry. Thus far his words. And according to these words of his, these two incidents were brought in the Gemara [122a], and in this language, that the Kuti said "I buried him" and "I buried them" and they permitted their wives to marry, see there.

It is explained from the words of the Rambam, of blessed memory, that even though if it were an Israelite witness it would be sufficient if he said only "he died" or "they died," nevertheless regarding a Cuthean, the sages, of blessed memory, were more stringent to require that he specifically state the death and the burial. And there is one who wished to say that the opinion of the Rambam regarding any Cuthean speaking in innocence is that we require him to say "he died and I buried him," but his words were rejected, for the Rambam wrote several laws regarding speaking in innocence and did not mention burial at all; we learn from this that only in this case does he require burial. And the reason for the matter is that since he does not mention his name but only a general signifier—"the man who went out with me" or "the men who went from such-and-such a place" without mentioning their name and the name of their city—we require that he also say burial [the Maggid Mishneh]. And his reasoning is that since he does not mention his name, it is evident that the Cuthean does not know him, but when he mentions his name, it is evident that he knew him, and a person is more precise regarding one he knows than one he does not know. Therefore, regarding one he knows, when he says "he died"—it is sufficient, for it is certainly true; but regarding one he does not know—we concern ourselves that perhaps he erred in his imagination and said that he died. However, when he says "he died and I buried him," it appears clearly that he is not speaking out of imagination and it is true that he died [Kesef Mishneh]. And all this is regarding a Cuthean speaking in innocence, but regarding an Israelite who testifies even in such a case—it is sufficient with "he died" alone and we do not concern ourselves that he might speak out of imagination [ibid.], even though in war or at sea we concern ourselves with imagination even regarding an Israelite, as will be explained with the help of Heaven.

And some say that the opinion of the Rambam is to distinguish in masiach lefi tumo between one matter and another, for wherever it appears that the gentile's intent is to inform the household of the deceased or his relatives that so-and-so, their master or relative, died—as in the incident in the Gemara there where a gentile came and said, "Who is in the house of Chivai? Who is in the house of Chivai? Chivai is dead!"—we do not require that he say "I buried him," for since he involves himself to inform them of such a notification, we do not fear that he speaks based on a mistaken impression; or, for example, if he mourns for him and says, "Woe for so-and-so my beloved," or "so-and-so the sage," or "so-and-so the diligent," and the like, and says that he died, he is very precise and will not speak based on a mistaken impression [it appears to me]. But if he only says "so-and-so died" alone—we fear that he speaks based on a mistaken impression and we require that he say "I buried him" [ibid. in the name of the Ritva]. And it appears according to this opinion that the difference is between when he says a connection of matters along with the death, for then it appears that he was very precise, and when he does not say a connection of matters but only "died," for we fear a mistaken impression.

And some say that the Rambam holds that in every case it is not necessary to say "I buried him," and only in these stories when he recounts that he went with him on the road or that the Jews went on the road—in this it is necessary that he say "I buried him" or "I buried them." And the reason is because it is the way of people when they go on the road and one of them is lost or all of them are lost and it is not known where they escaped to, they estimate that he presumably died or they died. Therefore, if he does not say that he buried him or buried them, he speaks out of imagination because he disappeared from him or they all disappeared. But when he also says the burial, there is no longer such a concern, for behold, he says that he buried him or buried them, and what is there to fear further [ibid. in the name of the Re'em]. And according to this, it is possible that also regarding an Israelite who testifies, the law is so, since we depend on the mindset of people [and so it appears from his words there, see there carefully]. And some say that where he saw the death we fear for imagination, but not where he did not see.

From the words of our teacher, the Rema, in section 17, it is explained that he took as primary the distinction between whether he mentioned the name of the deceased or did not mention it, as he wrote in siman 155. And he further wrote that it is not specifically "I buried him," but rather anything he says whose meaning is that he certainly died and he did not speak based on a presumption, it is effective. Thus far his words. For example, that they moved him from place to place or hid him in refuse or in a pit and the like.

And all the reasons that have been explained according to the opinion of the Rambam do not contain matters that are settled upon the heart regarding why they required that the burial also be mentioned, and in truth the Tur ruled that even in these acts death alone is sufficient, and that which they mentioned burial in the Gemara was because the incident that occurred was thus, for so the Cutheans recounted, and not that the law is such that the burial should delay the permission, and such is the opinion of several of the poskim and so it appears from the opinion of our teachers the authors of the Shulchan Aruch who seized as the primary law the opinion of the Tur, and nevertheless they were concerned for the opinion of the Rambam which is the opinion of the Rif as well and several of our teachers the Rishonim who were concerned for their opinions, of blessed memory [see Beit Yosef].

Were it not for the words of our teachers, I would have said that even the Rif and the Rambam, who required saying "I buried him" here, do not do so because of the concern of "imagining" as in the cases of war and water that will be explained. For indeed, the Rif there explained the reason they required saying "I buried him" was due to the concern of "imagining" [in the fifteenth chapter of Yevamot (42a)], but here he did not explain the reason. Therefore, it would have been possible to say that the explanation is as follows: Certainly, if the Kuti had said "this Jew who went out with me died in such-and-such a city," it would be sufficient, for since he died in a city, the people of the city presumably buried him. However, in these incidents, it appears he is saying that he died on the road, and if so, if he did not say "I buried him," he is still lying on the road and they must bury him. If so, those who bury him will recognize him by signs or by recognition of the eye, whether this is the Jew the Kuti is speaking of or not. And why should we rely on his words in a place where it is possible to clarify? For even regarding all prohibitions, we hold that wherever it is possible to clarify, we clarify, as written in Yoreh Deah siman 1, and all the more so regarding the prohibition of a married woman. Therefore, when he says that he already buried him, it is necessary to rely on his words, for it is no longer possible to clarify. And one should not ask that even when he did not say "I buried him," we should say that he buried him, for it is impossible to say so; for if he had buried him, he would have related this, as an ordinary Kuti cries out and relates the whole matter, especially if he had performed a kindness with the deceased to bury him. Furthermore, why should we say that he buried him? Behold, he is not obligated in this. And certainly regarding an Israelite who testifies in such a case, even without his saying so, we would know that he buried him so as not to leave him without burial; but a Kuti, if he had buried him, would have explicitly said that he buried him [and see in Eruvin 75b].

And in this, that the Rambam wrote two laws regarding this, he teaches us a greater novelty—that it is not specifically regarding one man that he is believed, but even regarding many men, for I might have said that if it were as the words of the Kutite that they all died, a rumor would have emerged regarding this—nevertheless, he is believed [Responsa of the Rosh, Klal 21]. And he teaches us a further novelty—that it is not only if this Kutite himself went out with the Israelite that he is believed to say that he died, but even if the Israelite went on his way by himself and the Kutite by himself, like the incident of the men who went out in a collar, nevertheless, he is believed [it appears to me].

There is one who says that specifically when the Akum says explicitly that this man who left with him from here died, but if he says a man who went with me died – we are concerned that perhaps this one who left with him from here separated from him on the way and another man joined him and died, and there are those who disagree on this. And in truth there is no dispute here, for certainly we require that it be evident from his words that he intended that specific man, and this matter is understood according to the context and the arrangement of the Akum's words even if he did not say explicitly "the man who left with me from here," and as long as it is implied from his language that his intention was that specific man – we permit his wife, and without this we do not permit, and we do not strain the language of the Akum to say that his intention was for another man since from the plain meaning of his language it is implied that his intention was for that Israelite. And it is obvious that when it is possible to clarify explicitly that his intention was for this man – we are obligated to clarify; however, when it is not possible to clarify, such as if the Akum passed on and went his way – we permit based on the plain meaning of his language when it is clear that his intention was for that man, and there is no difference in this between an Israelite testifying and an Akum speaking in innocence.

And know, that regarding what the Rambam wrote in the second law concerning ten men who went out bound in a collar that he is believed, some say also that specifically in such a case they are believed, but when they are not bound in a collar, we do not permit based on his statement that they all died, for we fear perhaps all of those went elsewhere and these are others, or that one of them separated and another joined them [Chelkat Mechokek and Taz], for specifically when there was a sign on these men, such as that they went out bound or with camels or with other merchandise where they all went in one manner – in this we do not fear lest others were with that same manner, for this is like a clear sign from the number of men and the nature of their matter, but if he said plainly "ten men went on such-and-hers road and they were all killed," we fear perhaps they are others or one of them is a different man [ibid.], and there are those who disagree on this as well [see Beit Shmuel subsection 55]. And it seems to me that in this too there is no dispute, for certainly we require that according to the plain meaning of his language and the order of his statement it must be proven that he is speaking about that group which went out from here, and likewise when it is possible to clarify, we clarify, and it is a simple matter that based on a sign of a number of people alone we do not permit an agunah, for even though regarding a lost object we wrote in Choshen Mishpat siman 262 that a number is a sign, nevertheless it is obvious that this is only as an intermediate sign which regarding monetary matters we call a clear sign, but not regarding an agunah, as I wrote in Choshen Mishpat siman 267 section 5, see there. However, if he specifies the exact place – it is like a clear sign [Beit Shmuel]. And likewise if the gentile recognizes one of the members of the group and says that this man whom he recognizes was killed with all his group – we permit the entire group on his account [ibid.], and this requires further study.

When a person is found killed or dead outside of his home, one observes his face and his bodily signs in order to testify about him, and one examines him and views him even at night by the light of a candle or by the light of the moon. And even though the light of a candle is better for examination than the light of the moon, as written in Orach Chaim siman 433—that is regarding chametz because one must examine in holes and cracks, but regarding this corpse, when one examines it by the light of the moon and it is lying outside, the examination is certainly good. However, if it is lying in a house, it seems to me that one should not examine it by the light of the moon shining through a window into the house, but rather they should light a candle, for the light of the moon that comes into a house through a window is a small light and is not good for examination. And there is one who is uncertain regarding a gentile speaking in innocence whether one relies on his words when he said that he saw the corpse or the killed person at night and recognized him by the light of a candle or by the light of the moon. And I do not know the basis for doubt in this, for if it would enter your mind that the examination by day is better, the poskim would not have omitted mentioning that initially one should see to examine by day; and from the language of the poskim it is clear that even initially one may examine. Furthermore, if it would enter your mind that a gentile is not believed regarding a nighttime sighting because he speaks through imagination, we should have been stringent even with one witness because of this concern, just as we are stringent in war and in water, as will be explained.

In two ways one may identify the deceased or the slain: by a distinct siman and by means of tevi'at ayin. And tevi'at ayin is superior to simanim [Chullin 96a], and logic dictates this—for a siman, even the most distinct, such as an extra limb, nevertheless there could be several people in the world with such a siman, whereas tevi'at ayin, which is the recognition of the face whereby one recognizes that he is so-and-so, not even one person in the world will be found like him, for the Holy One, Blessed be He, created all faces different from one another and no one is similar to his fellow [Sanhedrin 37a]. And in the time of the Temple when they adjudicated capital cases, they adjudicated only based on tevi'at ayin and not based on simanim; for example, if two witnesses testified against Reuven that he killed a person and Reuven denies them and says, "It was not I who killed him but another, and it appeared to you that I killed him," certainly the beit din asks the witnesses, "From where did you know that this one killed him?" The matter is simple: if they answer, "We know him well by tevi'at ayin and we saw that he killed him," we do not pay heed to his denial. But if they say, "We do not know him by tevi'at ayin, but rather we knew that in the killer there was found such a distinct siman as the siman found in this man," and he stands and screams, "It was not I who killed him, but presumably there was another man, the killer, in whom was also found a siman like mine"—it is obvious that we do not execute him [Chullin 96a, and see there in Tosafot s.v. "v'lo," however the Ri is dealing with absolute tevi'at ayin, and examine it closely]. And so too regarding a lost object, we hold in Choshen Mishpat siman 267 that witnesses are superior to simanim because the witnesses testify by tevi'at ayin; therefore, even if they did not testify explicitly that it fell from this person, but rather they recognize by tevi'at ayin that the object belongs to this person, and the other even gives distinct simanim—it is nothing, as is written there in section 8, see there.

And in any case, there is reason to doubt when one witness says that this corpse is Reuven because it has a siman muvhak, and another witness says that this corpse is Shimon and "I recognize him with a complete tevi'at ayin that he is Shimon," whether we judge them as contradicting one another and we permit neither the wife of Reuven nor the wife of Shimon, or whether we say that there is no contradiction here and we permit the wife of Shimon since the second witness recognizes him with a complete tevi'at ayin and tevi'at ayin is superior to simanim, and presumably there was also a siman muvhak in Shimon just as in Reuven and there is no contradiction at all. And it appears more likely that it is a contradiction, for since this one who recognizes him with tevi'at ayin does not know of the siman, reason tends toward the view that if there were also a siman muvhak in Shimon just as in Reuven, the witness who recognizes him with a complete tevi'at ayin would have known of it; nevertheless, if the siman is in a hidden part of the body, it is possible that he recognized him well and did not know of the siman, and the law requires further study.

Nevertheless, there are advantages to signs over visual recognition, for visual recognition is not applicable to the entire body but only to the features of the face along with the nose, as will be explained, whereas signs can be on the entire body. Furthermore, visual recognition is only possible if he knew him well and was close with him; however, if he saw him once or even several times, this is not complete visual recognition, and as long as the eye has not been satisfied by it, there is no complete visual recognition here, and even regarding a lost object the law is so, as written in Choshen Mishpat there. But a distinct sign is sufficient even with one seeing, as is understood. Furthermore, visual recognition changes over a long period after death, and therefore after three days one may not testify about him, as will be explained, whereas with signs there are those that are incapable of changing, such as an extra limb and the like.

And let it not be difficult for you regarding what we have said, that recognition by sight is superior to signs, and we believe every person regarding recognition by sight in the case of an agunah and even a gentile speaking in innocence, whereas even regarding light monetary matters the sages, of blessed memory, said that we do not return a lost object based on recognition by sight except to a Torah scholar [Bava Metzia 23b]. For there it is not because not every person is expert in recognition by sight, but rather because he is not believed and perhaps he is lying in order to obtain the object [Tosafot Gittin 27b]. Therefore, regarding prohibitions where every person is believed concerning himself—every person is believed regarding recognition by sight, as is written in Yoreh Deah siman 63. And even though regarding a lost get we maintain later in siman 132 that we do not return it based on recognition by sight unless he has a migo, and according to the Rambam even with a migo we do not return it unless he also has a distinct sign on the vessel, see there; however, in truth the reason there is that there is no complete recognition by sight regarding a get, for the eye has not been sated by it since a person does not keep a get in his hand [Tosafot Bava Metzia 24a, and the Beit Shmuel in subsection 68 pressured himself for naught]. Therefore, only regarding a Torah scholar is there a reasoning in the Gemara [Gittin ibid.] that we return it, because if it were not clearly established to him, a Torah scholar would not say so due to the fear of God that is within him. And in truth, recognition by sight of a person is not similar to recognition by sight of other things, for when they recognize a person, the knowledge is clear, as he sees him constantly and recognizes him as he recognizes himself. [See Beit Shmuel ibid., and see the Ran in the chapter Gid HaNasheh regarding meat that was hidden from the eye what he wrote in the name of Rabbeinu Chananel, and according to what I wrote it is well-settled, and delve into it].

There is one who wished to say that recognition by sight is only effective with an Israelite who testifies and not with a gentile speaking in innocence, and the reason for the matter is that recognition by sight requires great scrutiny; therefore, when he intends to testify, he looks closely and recognizes him well, but in the case of speaking in innocence where he did not intend to testify, he only saw him in passing, and it is impossible to recognize by sight through a mere passing glance. However, many disagree with this, and there are responsa from the early authorities who permitted a gentile speaking in innocence by means of recognition by sight, and such is the primary ruling. And the reason is logical, for anyone who speaks in innocence that so-and-so died or was killed relates this as a novelty, and if he had not looked well and recognized him, he would not have related this. And there is a proof, for according to Shmuel and Reish Lakish on 121b, where if he intended to testify his testimony is valid testimony, certainly there is no distinction, and if so, according to Rabbi Yochanan as well, for they did not disagree on this.

It has already been explained in Choshen Mishpat siman 267, section 5, that there are three types of signs: poor, intermediate, and distinct. Poor signs are nothing even regarding a lost object. Intermediate signs are called distinct regarding a lost object, but regarding the prohibition of a married woman they are nothing, for in the Gemara they were uncertain regarding such signs by which a lost object is returned whether it is from the Torah, in which case it would also be effective regarding the prohibition of a married woman, or whether it is a rabbinic enactment for a lost object and is not effective for a married woman; and the conclusion of the Gemara is that it is rabbinic [Yevamot 120a according to the "some say"]. But a truly distinct sign is effective from the Torah, for you have no clearer testimony than this [Rashi Gittin 27b], and a verse is not required for this as it is clear according to logic [Shach ibid. subsection 7]. And there are those who wish to say that if intermediate signs are not from the Torah, even an extremely distinct sign is not from the Torah, but rather it is from a rabbinic enactment for the sake of agunot [Shita Mekubetzet Bava Metzia 28a]; however, most of our teachers do not hold so, and so it is explicitly implied in the Gemara [ibid. regarding a mole], and on the contrary, there are some of our teachers who hold that even intermediate signs are from the Torah [from what Rava said there "if you say," according to the rule of the Geonim], and even though we do not rule accordingly, in any event it is at least a legal doubt [since Rabbi Elazar in Gittin 27b was uncertain about it]. But an extremely distinct sign is certainly from the Torah. And in the Rambam it was not explicitly explained that one may permit a woman to marry based on an extremely distinct sign; and more than this, from his words in chapter 7 of Nachalot, law 3, it appears on the surface that even by means of a distinct sign one does not release an aguna, see there; but nevertheless it is impossible to say so as I have written, and so the commentators of his words agreed, see there. And that which he calls there a "distinct sign" and wrote that one does not release an aguna by means of it—this is an intermediate sign, which regarding monetary matters is considered distinct [and see what the Maggid Mishneh wrote in chapter 13 of Gerushin, halacha 21]. And it appears more likely that the opinion of the Rambam, of blessed memory, is that signs are from the Torah even regarding intermediate signs, but regarding a married woman they were stringent in this, and therefore regarding a distinct sign it is obvious that it is not necessary to explain that she is permitted. [And so wrote the Marot HaTzovot at the end of subsection 85, and so wrote the Noda BiYehuda siman 32].

Some say that regarding a medium siman, they permit in a case where the prohibition is not from the Torah, such as with water that has no end and they waited until his soul departed, and likewise in everything that will be explained in this siman where the majority lead to death, only regarding the prohibition of a married woman did they act stringently; and since her prohibition is not from the Torah, it appears that they rely on a medium siman. Furthermore, it is not clear that simanim are not from the Torah, and in any case, it is at least a legal doubt as I have written, and therefore in a rabbinic matter one should rely on this. And some say that even regarding a rabbinic prohibition for a married woman, they do not rely on a medium siman lest one come to rely on it in a matter where the prohibition is from the Torah, and it appears more that the primary view is like the first opinion. Thus far his words.

And so some say that even though a middle-tier siman is nothing regarding an agunah, nevertheless, several middle-tier simanim are like a distinct siman; for the reason for a distinct siman is because such a siman is not common, and similarly, several middle-tier simanim together are not common and are like a distinct siman. And that which our teacher, the Rema, wrote, that even one hundred simanim that are not distinct are nothing, and even to join with other proving estimations they are nothing, thus far his words—this refers to poor simanim, for behold, he did not mention middle-tier simanim at all. And this is the opinion of many of the great authorities, and it is also implied by the words of Maharshal, who wrote that simanim from his garments and from his body join together like a distinct siman; and behold, simanim of garments are nothing as will be explained, and even so, in combination they join. And so wrote several great authorities, that two middle-tier simanim are like a distinct siman. And even though from the source of the law of our teacher, the Rema, it is proven that middle-tier simanim also do not join, nevertheless, he for himself, it can be said that he did not hold so, and therefore he did not include middle-tier simanim, and so is found in his words in several places. And the conclusion of the great later authorities is that this depends on the vision of the sages of the generation: for if according to these simanim not even one in a thousand would be found—it is properly like a distinct siman, and if not—it is nothing, and so appears the primary ruling. And so there is one who says that many poor simanim join together to make them like a middle-tier siman, and it appears to me also that it depends on the vision of the sages of the generation as I wrote, and such is the law regarding the joining of other proving estimations. What is a poor siman—such as tall and short, thin and thick, white and red; since such people are commonly found, it is not a siman at all even in other matters, even if he was somewhat unusual, such as being taller than typical tall people or shorter than typical short people. However, if it is extreme—his tallness or shortness is considered a middle-tier siman, and if it is very extreme to the point that one in a thousand is not found like him—it is possible that it is even a distinct siman, and like this one should judge regarding all poor simanim.

Large teeth in the middle of the upper jaw, even if they are somewhat different from other people with long teeth—it is a weak siman, since in this location large teeth are common in many people. However, in other locations, large teeth that are different, such as in the lower jaw or in the inner teeth, if the number and location correspond precisely and they are very different from the teeth of other people—it is possible that it is like a siman muvhak, and in any case it is certainly a medium siman. And there is one who wrote that a perforated hole in a tooth is a siman muvhak—but it does not seem correct to rule so in our time when tooth pain has increased and many teeth are perforated in people. Similarly, the hair of his head and his beard, long or short, black or green and the like—this is not a siman at all. Similarly, his hair gathered in curls—this is not a siman at all, for it is very common. Similarly, his head is bald or not purified—it appears that this is not a siman at all, and it is possible that if the baldness is unusual and likewise the leprosy on his head is unusual, it is no less than a medium siman, and everything is according to the sight of the eyes of the sages. Similarly, one with a specific form or who limps on his thigh, if one like him is not very common—it is a medium siman. And the illness of a fracture—it is a weak siman, for it is very common. And so too with any change in any limb that is common in many people—this change is a weak siman.

What is a medium siman? Anything that is not found in many people, yet is not such a strange thing that it would not be found in one in a thousand—this is a medium siman. And a mole on the body or on the head, which is called a "brodavka," and it is like a small permanent lesion, the Sages, of blessed memory, said that even if simanim are from the Torah, a mole is not a definitive siman [Yevamot 120a]. And the reason: because a mole is common in one's contemporary who was born at the same time and under the same constellation [Rashi], and it turns out that it must necessarily be so in all people born at his time. Furthermore, a mole is prone to change after death [ibid.], and if so, this is not a siman at all. And from this we have learned regarding all types of simanim that are prone to change after death or those that depend on the constellation of birth, that they are nothing. And some say that a mole is a definitive siman, but because it is prone to change after death it is only like a medium siman [Beit Shmuel subsection 70 and the Gra subsection 84], and it must be said that most times it is not prone to change, for if not so, it would not even be like a medium siman. But it appears to me from the sugya of the Shas that a mole is not even a medium siman [for according to the first resolution it is certainly so, and from where do we have the authority to divide according to the second resolution, see there and examine carefully], and several of the great Acharonim did not agree to this [see Marot HaTzovot and Pitchei Teshuvah].

What is a siman muvhak? Anything that is a strange and extraordinary thing and would not be found in more than one in a thousand. Therefore, a missing limb or an extra limb is a siman muvhak, and likewise a strange alteration in one of his limbs, and likewise a large protrusion on his nose is a siman muvhak. And when it is not large, it is a siman emtza'i. If his nose is very deep or similar to this, it is a siman muvhak, and slightly deep is a siman emtza'i. A mark that is on his body or on a hand or foot or on his face is a siman emtza'i, but if he specifies the exact location, such as saying that next to his right eye, close to it, is the mark—it is a siman muvhak; so the great Acharonim agreed. Therefore, also regarding a mole, if he specified the exact location, it is a siman muvhak, and there are those who hesitate on this, but it seems primary that it is a siman muvhak. And likewise regarding a scar and the like with specification of the location, it is a siman muvhak, for this is exactly like "there is a hole in it on the side of such-and-such a letter" regarding a get in siman 132.

A crookedness in a finger and a mark beside it or upon it—it is a siman muvhak [Beit Yosef], and there is no need to say on which finger [Taz], for by saying on which finger the mark is and narrowing down the location, even without crookedness it would be a siman muvhak as has been written, and crookedness alone is a siman beinoni, but if he says on which finger it seems to me that it is a siman muvhak, and similarly a crooked neck is a siman muvhak [Ba'er Heitiv]. And similarly if he says that in the right eye or the left there is something like a lentil, it is a siman muvhak. And his mouth is crooked due to illness, it is a siman muvhak [ibid.]. And similarly if his upper lip is cut until his teeth are visible, it is a siman muvhak [ibid.]. And similarly if his fingernails are ruined, it is a siman muvhak [ibid.], and specifically a complete ruin, but a slight ruin is somewhat common and is only a siman beinoni [it seems to me].

One eye tearing – it is not a siman muvhak, and similarly one who limps on his thigh, and similarly if his legs are crooked and inverted, some say it is not a siman muvhak [ibid.], and I do not know why – for is it not found even in one in a thousand? If a mole was uprooted from its place and an impression remained there in its place – it is not a siman muvhak [ibid.]; however, if he pinpointed the location – it is a siman muvhak, as I wrote regarding the mole itself [it appears to me]. And it appears to me that all the blemishes that disqualify Kohanim in the seventh chapter of Bechorot, which the Rambam, of blessed memory, enumerated in the eighth chapter of Biat Mikdash, all of them are no less than a siman emtza'i, and there are many there that are a siman muvhak, such as when the middle of his skull sinks downward or rises upward like an egg, or the side of his head protrudes toward his face or from behind toward his nape, or his head is wide and protrudes from here and from there, and similarly if his neck sinks greatly until his head is found as if resting on his shoulders or is very long until it appears detached from between his shoulders, and all such as these. And it is impossible to explain everything in writing, and the sages will see according to the matter and according to the principles that have been explained, and Hashem is with them that they should bring forth the judgment to the truth of the Torah.

There are those who wrote that if she married based on intermediate signs—she shall not leave [Beit Shmuel, subsection 70]. And these matters are astonishing, for the sages, of blessed memory, only said this regarding water that has no end, as will be explained, and similarly several of the great authorities wondered at this [see Marot HaTzov'ot, subsection 193]. And it appears to me that with two signs she certainly shall not leave, for the combination makes them like a definitive sign, as I wrote in section 171; and although initially one must look into this as I wrote there, nevertheless, post facto she shall not leave. But one who married based on one intermediate sign without the joining of assessments and other proofs—it appears that she shall leave. And we have already explained in section 169 that regarding recognition there is no difference between an Israelite who testifies and a Cuthean speaking peripherally, see there, and the same applies to signs.

When there are not found on the corpse or on the slain person signs of the body or recognition by sight, such as when he became swollen to the point that it is impossible to recognize him, or if animals and birds ate the facial features and the like, and they found his clothes that he was wearing or that were placed near him, even though we recognize the clothes as belonging to a certain person, such as when there are distinct signs on the clothes, nevertheless our teacher, the Beit Yosef, ruled in section 24 that it is nothing. For thus the sages taught in the Mishnah at the end of Yevamot (120a): One may only testify based on the facial features with the nose, even if there are signs on his body and on his vessels, and "his vessels" means his clothes. And even though on his body distinct signs are effective as has been written, nevertheless on his clothes even the most distinct signs are not effective. And the reason is explained in the Gemara because we are concerned about borrowing; that is to say, that this corpse that was found is another man, and the one to whom the clothes belong lent his clothes to this found corpse, and he wore other clothes and went away into the world. And even though this is a great stringency, nevertheless the sages of blessed memory were stringent in this, for because of the great leniencies that the sages of blessed memory applied to an agunah, they saw fit to be stringent in this—that as long as it has not been clarified through signs of the body that this is he, we do not permit based on signs of clothes. And even though in the Gemara there is another interpretation that it deals with white and red which are poor signs, but with distinct signs one may permit based on signs of clothes, nevertheless it is a doubt regarding a Torah law and we follow the stringency. Furthermore, from another passage [Bava Metzia 27b] it appears explicitly that we are concerned about borrowing [see there, that after it establishes it as white and red, it asks from "if they found it tied in a purse," and if you should think that we are concerned about borrowing etc., learn from this that the first answer is the primary one].

And even though there is a chazakah that everything found in a person's possession belongs to him, and it is a powerful chazakah that is effective even against a migo as written in Choshen Mishpat siman 99, see there; nevertheless, against this there is the chazakah of a married woman, and it is a chazakah against a chazakah [Noda BiYehudah, siman 37]. Furthermore, here this chazakah is not applicable, for certainly if we recognized the man lying before us and we came to adjudicate regarding his garments—we would rightly say so; but here, where the body before us is not recognized as to who it is and we only need to adjudicate from the garments regarding the body—this is not a complete chazakah. Furthermore, since we concern ourselves with the possibility of borrowing, we must automatically also concern ourselves with the possibility of sale or loss [Chelkat Mechokek, subsection 42]. However, regarding sale and loss, one could say that we establish the garments in the chazakah of the owners, but regarding borrowing, even if he borrowed them, they still stand in the chazakah of the owners, which is the chazakah of the lender; for even if he lent them to this body lying before us, nevertheless they are not acquired by him and still stand in the chazakah of the lender. Furthermore, even if there is a chazakah in this, nevertheless regarding an agunah this is not effective, for a majority is superior to a chazakah, and they were stringent even regarding a majority that indicates death, such as with water that has no end and several matters that will be explained in this siman. Furthermore, even if it were a complete chazakah, nevertheless we are witnesses that there is a tiny minority in the world who lend their vessels and garments, and in any case we require a siman muvhak, and a siman muvhak is something that is found in only one in a thousand; and since there is a tiny minority who lend their vessels and garments, and according to reason they are fewer than one in a thousand—it follows that there is no siman muvhak here [It appears to me, and see Maharsha, Gittin 27b, s.v. simanim].

All this we have explained according to the approach of our teacher, the Beit Yosef, who ruled simply that we are concerned for borrowing, and in his great work he wrote that this is the opinion of the Rif, the Rambam, and the Rosh. And even though it is not explicitly explained in the Rif and the Rambam, as they only transcribed the language of the Mishnah that simanim on his body and on his vessels are not effective, and ostensibly it implies that his vessels are similar to his body, and he should have understood from their words that simanim muvhakim are effective even on his vessels, and so understood the Maggid Mishneh regarding the words of the Rambam in chapter 13, halacha 21, and so understood the Nimukei Yosef regarding the words of the Rif at the end of Yevamot, nevertheless, our teacher, the Beit Yosef, holds that since they did not explicitly explain that simanim muvhakim are effective for garments, it implies that they are not effective. Therefore, he also redirected the words of the Tur who wrote: "even if they have simanim on his vessels and on his body, we do not rely on them if they are not muvhakin," thus far his words, for the plain meaning of the language implies that with muvhakin it is effective even on his vessels, yet he interpreted that it refers only to his body. And there is proof for his words, for the Rosh at the end of the first chapter of Metzia wrote explicitly that regarding a married woman we are concerned for borrowing, and if the Tur did not agree to this, he would have cited the opinion of his father, of blessed memory. And so the Tur himself ruled regarding a get in siman 132, that we are concerned for borrowing, see there. And so it appears from the words of the Rambam in chapter 3 of Gerushin, halacha 9, regarding a lost get, see there. And even though according to what I wrote in section 179 one could distinguish regarding a get, as there is no chazakah on the get that it is his since it was lost and found outside of his possession, whereas regarding the garments of the deceased there is this chazakah since they were found with him, nevertheless, it does not seem to me to distinguish in this way; and furthermore, even regarding a get found in a vessel, and the vessel is his, it is not effective, see there.

However, in truth, there is a great dispute regarding this matter among our teachers, the Rishonim and Achronim, for the Rosh, and our teacher Yerucham in the book Mesharim, and the Rashba, and the Maharam of Rothenburg in the Responsa siman 371, and the Terumat HaDeshen, and the Mahariw, and the Bach hold that we are concerned for borrowing [and so it appears from Tosafot Gittin 28a and Bava Metzia 27b]. But the Mordechai at the end of Yevamot, and the Ritva, and the Nimukei Yosef, and the Ran in the Chiddushim to Bava Metzia there, and Tosafot Yevamot [120b], and the Shach in Choshen Mishpat [siman 65, subsection 26], and the Maharal of Prague, and the Pnei Yehoshua in the Responsa Geonei Batrai, and the Mahari HaLevi [ibid.], and the Gra [subsection 83], and several other great authorities ruled that we are not concerned for borrowing, and that also the Rif and the Rambam hold thus [since they wrote the final resolution that simanim are Rabbinic, and according to this resolution there is no need for the concern of borrowing; and furthermore, even if they are of Torah origin, it says "and if you wish, his vessels in white and red," and it is from the system of the Geonim to rule according to the "there are those who say" and the "if you wish" – and here both are present, see there].

And nevertheless, even those who are lenient—even though it is clear to them that this is the halacha, nevertheless in practice they did not rely on signs of garments alone, but only in combination with other matters. And in this, it is possible even those who are stringent agree, for this is certainly even according to the opinion of those who are stringent not from the Torah, and therefore in combination with other matters we combine them. Therefore, if there is found on the body even a mediocre sign—they permit in combination with the signs of the garments [Yam Shel Shlomo siman 6 and the Maharit ibn Lev, and see Beit Shmuel subsection 69]. And besides that the sugya of the Shas proves this, it is also clarified from the perspective of logic, for if you were to concern yourself with borrowing in such a case, you would have to say that he lent his garments to this deceased person lying before us and this deceased person also has the same sign as the lender, and this is better than a distinctive sign. And to this several great ones agreed in practice, and it is a correct reasoning. And so too if the prohibition is not from the Torah, such as with water that has no end and the like where the majority are for death, many of the poskim agreed that one may rely on signs of garments [and regarding the borrowing of an individual there are those who disagree from that which they found tied in a purse, but from the sugya it is proven so].

There are some among the great authorities who wrote that even according to those who are stringent regarding the concern of borrowing, this only applies to the signs of the garments and not if he recognizes them by visual recognition [Pnei Yehoshua, Bava Metzia 27b]. His reasoning is that with signs we can say, even aside from the concern of borrowing, perhaps such a sign also happened to be on the garment of another; but with visual recognition, where this cannot be said, we do not concern ourselves with borrowing alone, for there is a presumption that whatever is found in a person's possession is his. However, we have already written in section 179 regarding this reasoning and this reasoning was rejected, see there. Furthermore, for we are dealing with a distinct sign, and if so, it is very remote that a sign like it would be found, and visual recognition is no better in this matter than a distinct sign. Therefore, we have not seen any of the poskim who made such a distinction. [And see Machatzit HaShekel at the end of subsection 87 who inclined toward this reasoning, however he cited from the Ramban who explicitly did not hold so, see there].

Some say that even those who are stringent regarding the matter of borrowing—this is in the case of one garment or two garments, but if it was found in all of his garments, we are not concerned with borrowing, for it is among the impossibilities that a person would strip himself of all his garments and lend them to another. And there are those who disagree on this, for they said plainly that regarding vessels we are concerned with borrowing. The great Acharonim agreed to be lenient according to the first opinion, for it is a thing of wonder that he would lend all of his garments to others, and it is simple that in combination with some other factor it certainly avails.

Our sages, of blessed memory, said that there are vessels that people do not lend, for it is not the way to lend them and we do not concern ourselves with the possibility of lending regarding them, such as a pouch, a wallet, and a ring [Bava Metzia ibid.], for people are particular about lending these. A pouch and a wallet—because they are omens, as people say that one sells his luck [Rashi], and even though it is forbidden to practice divination, nevertheless people are not accustomed to lending them; and this is a case of "sit and do not act" and he does not state the reason, as written in Yoreh Deah siman 179 [see Tosafot there and it requires further study]. And a ring they do not lend because one might forge his signature, for in their days it was their way that his seal was on the ring. From this the great poskim learned that regarding any object that it is not the way to lend—we permit by means of this object and we do not concern ourselves with the possibility of lending. Therefore, regarding a tallit that has tzitzit, whether large or small—we do not concern ourselves with the possibility of lending, for a commandment of his own body he will not lend to another [Maharit], and all the more so tefillin. Similarly, if he wore an amulet and it was found with him—we do not concern ourselves with the possibility of lending, for since he wore it for a segulah he will not lend it to another [ibid.]. Similarly, if he wore some object for his health and it was found with him—we do not concern ourselves with the possibility of lending. And all the more so if there were a deposit in his hand of money or objects or papers of others—we do not concern ourselves with the possibility of lending, for he would not commit a prohibition to give them into the hand of another without the knowledge of the depositor [Beit Yosef]. And there is one who says that people also do not lend a shirt, and similarly any type of garment that is attached to the body—and this matter is not clear. Similarly, if there were found with him writings and papers belonging to him, whether his certificates or his accounts—we do not concern ourselves with the possibility of lending, for why would he lend them to another. Similarly, if he carried money in his pocket and it is known that he brought the money for the purchase of merchandise and that money was found—we do not concern ourselves with the possibility of lending [it appears to me], for we are witnesses that he would not lend what he needs for his business. And as for the concern that it was stolen from him, and this body lying before us stole them—we do not establish a presumption that people are thieves, as written in Choshen Mishpat siman 133, and we have no reason to presume this body lying before us was a thief. And know that even though there are some of the poskim who hold that regarding every object we concern ourselves with the possibility of lending—we do not concern ourselves with this, for the vast majority of the poskim ruled that regarding an object that it is not the way to lend we do not concern ourselves with the possibility of lending—and such is the primary view from the sugya of the Shas, and so ruled the great Acharonim.

Some say that regarding vessels where we do not concern ourselves with the possibility of borrowing, as has been explained, this is only when they were found on the deceased who was wearing them or they were found in his pocket. However, if they were found on the ground near him—this is not a sign that they are his, for we hang the matter on the possibility that this fell from another and not from this deceased. And even though regarding a lost object we hang the fruits near the vessel on the vessel, as has been explained in Choshen Mishpat siman 262, nevertheless, regarding the prohibition of a married woman we do not hang the matter, just as a medium sign is considered a definitive sign regarding a lost object but not regarding the prohibition of a married woman. However, many of the great authorities disagree on this and hold that if it was merely found near him, we hang it on the deceased. And one should not compare this to a medium sign because not all matters are equal, and specifically because most often the deceased or the one killed, due to the cause of his death or his killing, casts off from himself garments and objects. And the measure of proximity depends on the assessment. Furthermore, proximity is from the Torah, as it is written: "And it shall be that the city which is nearest unto the slain man." And even though regarding "majority and proximity" one follows the majority even in a case of proven proximity, this is only if there were two deceased or killed persons found further from this place, in which case we would hang it on the distant ones because of the majority. But that we should simply follow the majority of the world is not applicable in such a case. And a proof for this is from the words of the Rambam, chapter 9 of Laws of a Murderer, law 6; see there. And know that all this is when a body was found near the garments and objects, but to permit based on garments and objects that are not typically borrowed—Heaven forbid to say so, unless they were found on the riverbank and afterwards the drowned person was found in the river, as will be explained with the help of Heaven.

It has already been explained that recognition by sight is superior to signs, and recognition by sight is not regarding the entire body but rather in his face. And thus the sages taught in Yevamot [120a]: Testimony is not given except regarding the visage of the face with the nose, for in this the recognition of one person from another is discernible, as it is written (Isaiah 3:9), "The recognition of their faces witnessed against them." And included in the face are the forehead, the nose, and the cheeks themselves, and we do not pay attention to the eyes nor to the mouth [Beit Yosef]. And even though in the plain meaning of "visage of the face" the forehead is not included, nevertheless, the recognition of the face is in the forehead [Tosafot]. And in the Gemara it brings an incident regarding one who stuck wax on his forehead and they did not recognize him; and similarly, if a person sticks something on the nose they will not recognize him, as it is stated in the Yerushalmi. Consequently, that which is written "the recognition of their faces" depends on the forehead and the nose, besides the cheeks themselves. And even though regarding the recognition of a firstborn the forehead alone is sufficient, as written in Choshen Mishpat siman 277, that is the recognition of a human being—that with the emergence of the majority of his head from the womb, which is the forehead, it is recognized that he is a human being, and regarding this the expression "he shall recognize" is written concerning a firstborn. However, the recognition of one person from another—that is, to distinguish the form of this one from that one—the forehead alone is not sufficient, but rather with the cheeks and the nose [Bechorot 47]. And from the Torah it is so. And even though according to one resolution in the Gemara [ibid.] it implies that from the Torah it is sufficient even for an agunah with the forehead alone, but it is a stringency of the sages to require also the face and the nose—and according to this there would be a practical difference for several matters where there is a distinction for an agunah between the law of the Torah and the rabbinic law—nevertheless, from the silence of all the poskim it is clear that the primary view is like this resolution: that even from the Torah there is no recognition without the face and the nose. And the senses testify thus, that with the forehead alone it is impossible to distinguish between person and person; and behold, the Yerushalmi brings regarding many people who concealed only their nose alone and they did not recognize them, and all the more so without the face. [And furthermore, it is a general rule from the Geonim to rule like the latter resolution; and even though the first resolution is also a decided halacha and perhaps because of this they resolve it, but in this the primary view is like the "if you wish, I will say," and Reish Lakish explicitly holds so and they argue, for Reish Lakish holds that complete recognition is required for a firstborn, and Rabbi Yochanan holds that the recognition of a human being is sufficient; but according to the first resolution they would argue over sensory realities. And the Marot HaTzovot elaborated on this, and it seems to me the primary view is as I have written, and look closely.]

One may only testify regarding him when it is known that this dead body did not die more than three days prior to the time they recognized him, but after more than three days, the dead body changes in its facial features, and it is possible that even though they recognize him as Reuven, it is not Reuven, and it merely appears to them that he is Reuven. And even though [one might ask] if it is someone else and he changed, why did he change specifically to the likeness of Reuven? For it can be said to the contrary—that if you were to think it is Reuven, would he not have changed, since it is established for us that after three days he changes? Therefore, it is possible that in truth it is someone else, and only because they are searching for Reuven because he was lost, it appears to them that he is Reuven. And there are some among the poskim who hold that according to the Torah this is the law, and in a case of doubt regarding the three days, we follow the stringent view according to the law of a doubt regarding a Torah matter. And there are those who hold that this is a stringency of our sages, of blessed memory, and according to the Torah, since they recognize him as Reuven, he is certainly Reuven, only the sages were stringent in this; therefore, in a case of doubt regarding the three days—we attribute it to the lenient view according to the law of a doubt regarding a rabbinic matter, as this law will be explained before us with the help of Heaven. [It appears to me that the three days are periods of twenty-four hours, and in the new Sha'agat Aryeh, siman 13, he brings from the three days of mourning that it is not twenty-four hour periods, and in his opinion there it is because of change, see there; and I wonder, for even if it were so, is "part of the day like the whole of it" not applied? And see what I wrote in Yoreh De'ah, siman 69].

In what case are these matters stated? On dry land. But one who drowned in water, or even one who was killed on dry land and they threw him into the water, even if he remained in the water for many days, if they recognized him as being Reuven, they permit his wife, because in water he does not change except after a long time. And in the Yerushalmi it brings an incident where they brought him up from the water after seventeen days and recognized him because the cold preserves him so that he does not change; and in our Shas ibid. it also brings an incident where they brought him up after five days and recognized him and they married off his wife. And the Rif who wrote five days did not mean specifically, but only because it is so in the Gemara; and examine this carefully. And the reason is also explicit: because the water contracts the face so that it does not change. And one should not ask, behold it is explained in the Gemara that there is no difference between one time and another, and it implies that even if he is lying in the cold he nevertheless changes on dry land, so in what way is the cold of the water different? For it can be said that the water, aside from the cold, has the nature to contract and preserve the form as it is. Furthermore, even according to the Yerushalmi which hangs the reason only on the cold, the senses testify that the coolness of dry land is not similar to the cold of the water which is very strong, and the current of the water has an unusual coldness.

And from this the great poskim learned that in northern countries during the winter time it does not change even over many days, for behold our eyes see that the cold of the rainy season in our countries, the northern countries, at the time when snow lies upon the earth and the cold is intense, that the cold freezes and contracts for a long time and the body becomes like a stone and it is impossible for it to change at all. And that which the sages, of blessed memory, said, that there is no difference between one time and another—this is certainly in the Land of Israel and in Babylonia and in all the East, where the countries are hot and even in the rainy days the cold is minor compared to the cold of the water, and so it is in most of the inhabited world; but in the north, we are witnesses that the cold of winter is harsher than the cold of the water, and upon this the giants of the world relied in several responsa and permitted it in practice. [See Beit Shmuel subsection 178, and what he wrote as Ramban should be Raban, and see Mareh HaPanim subsection 102 who elaborated on this, and I did not descend to the depth of his opinion and there is no dispute here, and the Yerushalmi is well understood according to its plain meaning and does not refer to Rabbi Yochanan ben Beroka, and so the Pnei Moshe ruled and gave the reason because of the cold, see there and examine it carefully]:

And all this is when we did not see that he changed, but if we saw that he changed, such as if his form became swollen—one may not testify about him, for what benefit is there that he was in the water since, ultimately, his facial features changed, and so it is proven from the sugya of the Shas. And although there are those who say that we are not concerned for this, since they recognize him what does it matter to us that he became swollen, there is no substance to these words. However, if the facial features did not swell, even though his body swelled—it appears to me that one may testify about him when they recognize him, and it is not similar to a wound which will be explained, and see in section 195.

And so too, regarding one who is in the water, we may testify about him even after a long time, as long as we have not seen that he has changed when there is no wound on the entire body, such as if he drowned in water or died and they threw him into the water. But if they killed him by means of blows and wounds, and certainly if they slaughtered him – we do not testify about him, for thus our sages, of blessed memory, said: water softens a wound, meaning that they intensify the pain and it swells [Rashi], and even if the wound is not on the face but on other places of the body, we are concerned that the face changed by means of the wound on the body [Chelkat Mechokek subsection 50], for since the water descends into the cavity of the wound, it washes and passes through the entire body as a whole and changes its form.

And know, that the Rambam, of blessed memory, and the Smag and our teacher Yerucham omitted the law of a wound, and our teacher, the Beit Yosef, wrote in a responsum that their reasoning is that specifically if the wound is in the area of the face, but if the wound is in other places it does not distort the face, and this they did not find necessary to write, for behold they wrote that when the face has changed one may not testify regarding him, and since there is a wound, the place of the wound is automatically changed. And some say that they do not hold of this at all, for according to the halacha we maintain that water causes a wound to swell [for it is only according to Abaye there], but it is impossible to say so, for it is explicitly proven that we maintain this reasoning as halacha [Yevamot 47b], rather the main point is as was written [Mar'ot HaTzov'ot], and as for the halacha we maintain like the opinion of the majority of the poskim. Nevertheless, one may join the opinion of the Rambam and the Smag and Rabbeinu Yerucham to other permits [ibid.]. And if there is a doubt whether this is a wound or not—we hang it on the lenient side [Ba'er Heitev in the name of the Rosh], and it is a logical reason since we did not see in the features of his face that it changed.

And know that I have explained this according to the opinion of the great later authorities, but in truth, it is not explicitly explained in any of the poskim that if the wound is in other places of the body, the face will change because of this. On the contrary, in the Gemara in two places it implies explicitly that the water only ruins the site of the wound, and so Rashi explained explicitly, and so wrote the Mordechai in the name of Ri, the author of the Tosafot. And logic dictates this, for it is understandable that at the site of the wound, because of the pain and the opening of the site, the water ruins it, but what connection is there to another part of the body? And if it is because the water enters the cavity of the wound and washes through the whole body and ruins the face—if so, even without a wound, how many orifices are there in a person? For the water certainly enters his mouth and likewise his nostrils, and according to this, would the face not always change? Rather, it is certain that these matters are unrelated. And also the Tur, who wrote "where there is no wound," it can be interpreted that he is referring to the face. According to this, there would be no dispute at all in this matter, except that the Rambam did not need to bring this for the reason that was explained, and the Tur brought this to teach that even though according to sight his form has not changed, nevertheless, since there is a wound on his face—certainly his form has changed. And according to the system of Rabbeinu Tam that will be explained, one must perforce say so.

There is one who says that this matter of "water softens the wound" refers to a wound that existed during his lifetime and was not healed; however, if it was healed during his lifetime or the wound occurred after death, such as if fish ate parts of his body, it is not relevant to say "water softens the wound." And it is a logical reason, for the reason that water softens the wound is because of the pain, and regarding a wound after death or when it has healed, pain is not relevant. Our teacher, the Beit Yosef, in a responsum, added further to say that we do not say "water softens the wound" except when they cast him into the water while he was still alive with the wound; but if he was already killed on dry land before they cast him into the water, "water softens the wound" is not relevant for the reason that has been explained. And know, that regarding a wound, even within three days of his killing or his death, one may not testify concerning him; for since the face was ruined by the wound, what does it matter to me if it is within three days or after three days? And even if there is one who is uncertain regarding this, nevertheless the primary ruling is as I have written, and so it is implied from the poskim.

That which has been explained, that in water he does not change even after several days, this is when they saw him immediately when he was brought up from the water and recognized him. However, if he was lying for some time on dry land after his removal from the water before they saw him again—one may not testify about him. And thus the Sages, of blessed memory, said (121a): But if he delayed, he would swell, for after they bring him up to dry land his appearance changes [Rashi]. And even if it is within three days of his death or his being killed or his drowning—it is of no use at all. And it is implied from the silence of the language of the poskim that even if he was brought up to a very cold place it is of no use, for such is the nature of the body, that as long as it is lying in water it remains in its appearance, and when they bring it up from the water and it sees the air, its face changes. And it appears that if they keep his head and his face in the water, even though the entire body is out of the water, nevertheless, since the face is in the water—one may testify about him, and so it is implied from the words of several responsa. But in the reverse case, where the body was inside the water and his head and his face were out of the water—certainly it is of no use, for go after the reasoning. and although there are those who are in doubt regarding this, nevertheless, this appears to be the primary view [see Pitchei Teshuvah subsection 117]. And see what I wrote in section 218 that according to the Rambam, of blessed memory, regarding a single witness, recognition alone is not sufficient.

And how much is the measure that he is left on dry land such that his form changes? For in the Gemara they said generally that if he delayed, he becomes bloated, but we do not know how much this delay is. The version before us in the Rambam, chapter 13, law 22, is: twelve hours, and it implies explicitly that before twelve hours he does not change. However, many of the poskim wrote that this is a scribal error and it should say two hours, and some say one hour—and to this several of our teachers agreed [Rivash siman 377 in the name of the Ramban and Rashba, and so wrote the Maggid Mishneh and the Ran in a responsum]. And some say that since we find in the Gemara [115b] the expression "immediately," it requires literally immediately; but this is no proof at all, for we find the expression "immediately" in the Gemara [Gittin 27b] where it is not literally immediately. And since we find in the Gemara [Yevamot 121a] that we require that they see him "in his hour," there is support for the opinion that holds the time is one hour, though even this is not a clear proof. And from the wording of the Rambam who wrote that if he delayed after he was brought up from the water and became bloated, they do not testify concerning him, thus far his words, it implies that specifically if we saw that he became bloated, we do not testify concerning him. However, all the Rishonim agreed that since he delayed, he has presumably become bloated even if the change is not recognizable in him, and if the change is recognizable, then even if he did not delay, they do not testify concerning him. And that which the Rambam wrote "and became bloated," his intention was "or became bloated" [Marot HaTzovot subsection 103], and specifically when the face has changed, but regarding the rest of the body, we have no concern with it. And know, that regarding the matter of the change, it requires great understanding as to what is called a change, for it is necessary that every dead or murdered or drowned person will have his face change a little; however, it is called a change whenever the change alters the image of his face significantly, such as if he became so bloated until there is no recognition of the image of his face as it was in life [see Pitchei Teshuvah subsection 117]. And there is one who says that when they placed him at the time he was brought up from the water in a cold place, like in the winter days of our lands, even if he delayed a bit, they testify concerning him, and it requires further study if one may rely on this. However, according to the system of Rabbeinu Tam that will be explained, regardless, one should be lenient in this as will be explained with the help of Heaven.

Our teacher, the Beit Yosef, wrote in section 27: If they found him killed and they recognize him by visual recognition, but they do not know when he was killed, some say that we assume he was killed within three days and we may testify about him, and some forbid it. However, if a rumor went out that "so-and-so died or was killed" and after three days they found him dead and recognized him—his wife is permitted according to everyone. Thus far his words. Behold, the reason for the dispute we have already explained in section 189, for if within three days is from the Torah, then a doubt is to be ruled stringently, and if it is rabbinic, then a doubt is to be ruled leniently. And there are some of the poskim who wrote that it stands to reason to be lenient in this, since no change of the face is visible to us, and perhaps the concern that he swelled is a rabbinic concern. And the explanation of his words—that even if until three days is from the Torah, this only applies when they see a change in him that he swelled, but when they do not see a change in him, certainly from the Torah there is no concern in this, and some are concerned to be stringent even in this. However, that which our teacher, the Beit Yosef, wrote that where a rumor went out she is permitted according to everyone, the commentators wrote that it is a scribal error, for she is only permitted according to the first opinion by a "one way or the other" argument—for if the rumor is true, there is no further need for testimony, and if the rumor is false and this one who was found is not dependent on the rumor that three days have already passed—behold it is a doubt whether it is within three days or after three days and she is permitted according to this opinion, and it comes to teach us that the rumor does not detract. And some say she is permitted according to all opinions, for even though regarding a doubt of three days some forbid, nevertheless, we join to this the rumor that it is true that he died since they recognized him, and our teacher, the Beit Yosef, decided thus based on reasoning.

One should not raise a difficulty against the approach of those who prohibit in a case of doubt regarding three days—due to the concern that perhaps this deceased person died long ago, prior to three days—asking why we do not establish him upon his presumption of being alive and say that he was alive until three days ago, as is written in Yoreh Deah siman 397 regarding such a matter. For it can be said: on the contrary, we establish the husband of this woman even now upon his presumption of being alive, and this body is not her husband's but rather that of another who died long ago and changed to the facial appearance of her husband [Beit Shmuel]. And regarding this, it is not relevant to grant him a presumption of being alive, since we do not know who he is, and how many deceased there are in the world at every hour. Furthermore, against this she has a presumption of being a married woman. Furthermore, even there, there are those who disagree with this law, for it is a presumption that has been weakened [see there in the Taz and in the Nekudat HaKesef].

Our teacher, the Rema, wrote in section 26: If there is a doubt whether he remained or not – we follow the stringent view, and even if she married, she must leave; and all this is to testify about him through recognition of features, but by means of distinct signs, even if he remained, we permit his wife. Thus far his words. Provided that they are not signs that are prone to change after death, such as a mole and the like. And in a doubt of whether he remained, we follow the stringent view even according to the lenient opinion regarding a doubt of three days, for since there is only one hour here, it is more common that he remained more than one hour. Nevertheless, regarding a witness reporting from a witness who heard from the first who saw him dead after they brought him up from the water and did not clarify his words whether he saw him immediately or after an hour – we attribute it to the lenient view that he saw him within the first hour, for since the first is not before us and we do not know if it was also a doubt of remaining for him, we do not have to be stringent in this. And so too when she is permitted by Torah law, such as when they stood over him for the duration it takes for his soul to depart as will be explained and she is only forbidden by rabbinic law – one should be lenient in a doubt of whether he remained. And also that which we were lenient regarding a witness reporting from a witness, some say that this too is only when she is permitted by Torah law, and so too one should be lenient in combination with an intermediate sign, and when his entire body is whole one should be lenient in combination with the opinion of Rabbeinu Tam which will be explained before us with the help of Heaven, and even when he certainly remained, many of the great authorities were lenient based on the combination of the opinion of Rabbeinu Tam, of blessed memory.

Everything we have written regarding the matter that one may only testify concerning the features of the face with the nose, and that one may only testify up to three days—this is according to the system of the Rambam, of blessed memory, and most of the poskim. However, there is another system in these matters from one unique individual among the great ones of our early teachers, and this is the wording of our teacher, the Beit Yosef, in section 25: Rabbeinu Tam wrote that this which we say, that one may only testify about him if his forehead, his nose, and the features of his face are extant—this is specifically when only the head is there, but if his entire body is whole, even if the features, forehead, and nose are not there, they can recognize him by recognition of the eye; and the later authorities disagreed with him. Thus far his words. And in section 28 he wrote: And there are those who say in the name of Rabbeinu Tam that this which we say, that one may only testify about him up to three days—these words apply when he is bruised in his face, but if he is not bruised in his face, one may testify about him even after several days by means of recognition of the eye of his body and his form; and it is not clear in the eyes of the later authorities. Thus far his words. And regarding the explanation of the words of Rabbeinu Tam, of blessed memory, the poskim disagreed, as will be explained with the help of Heaven.

Some say that his intention is that when his entire body is whole, even if there is no face, forehead, and nose, one testifies by way of teviat ayin alone; and some say that his intention is that it also requires intermediate signs [see Beit Shmuel, subsection 77]. And many things have been said regarding this; however, according to what is explained to us from the words of Rabbeinu Tam himself in Sefer HaYashar, siman 791, the explanation of the matters is as follows: Just as there are, regarding signs, those that are definitive and those that are not definitive, so too regarding teviat ayin, there is complete teviat ayin, which is superior to a definitive sign, and there is teviat ayin that is not complete, and this is like a definitive sign. It is called complete teviat ayin when the entire body is whole, and even if his face is bruised, Rabbeinu Tam holds that this is complete teviat ayin which is superior to a definitive sign. And when his entire body is not whole, meaning that the head was severed from the body, there is in this teviat ayin that is not complete, and regarding this we learned: "One only testifies concerning the forehead and the face with the nose," even though there are signs on his body, and "one only testifies until three days," for even though even without the nose he can be recognized through teviat ayin to say "this is the form of so-and-so" by way of signs that he has in the form—and the signs are signs of teviat ayin, meaning that it is recognizable that this is the form of so-and-so—nevertheless, without a nose and forehead, this is only like an intermediate sign. But with a nose and forehead, it is like a definitive sign, and therefore after three days one does not testify about him, for since the head is severed from the body, it changes after three days. But when his entire body is whole, even if his face was bruised and there is no forehead and nose here, they can recognize him through teviat ayin that this is a certain man through the signs of the entire body [Tosafot 121a], meaning through the signs of teviat ayin that are in the entire body, and not literal signs; for since his entire body is whole, anyone who sees him and recognized him in his lifetime, when he looks at his whole body, it will be visible to the eye through teviat ayin, by way of recognizing his signs, his image, and the shape of his limbs throughout the entire body, that this is so-and-so, and even after a long time one testifies about him. And similarly, when they brought him up from the water, where we require that they saw him immediately, this is also when the head is severed from the body; but when his entire body is whole, even if his face was ruined—one testifies about him even after a long time. And let it not be difficult for you that since the head is severed there is a wound, and it should not be effective even when he is in the water, for water softens a wound; for it can be said that since the wound is not in the place of the face itself, we are not concerned with it, as I wrote in section 195. And similarly, according to what our teacher, the Beit Yosef, wrote in the Responsum that we brought in section 196, it is also well-settled. And this is the system of Rabbeinu Tam [and in the book Or Liyesharim there, we elaborated with the help of Heaven].

And know, that even though many disagree with his approach, nevertheless, many of our teachers only disagree regarding that which Rabbeinu Tam holds: that when his entire body is intact, even if he was bruised in his face, they may testify by means of recognition of the body even after several days—in this they did not concede to him. However, when his entire body is intact and he was not bruised in his face—they also concede that they may testify even after a long time, and such is the law regarding one who was delayed, and this is the opinion of our teachers the authors of the Tosafot, the Rosh, and the Tur.

For the Tur, after writing the entire approach of Rabbeinu Tam that when his entire body is intact, even if the face, forehead, and nose are not present, one may testify concerning him, wrote, and this is his wording: And even if he was on land, if he is not bruised in his face, one may testify concerning him after several days by means of the recognition of his body and his form. And even if he was bruised in his face, such that one may only testify concerning him until three days, if they found him slain and recognize him through recognition and do not know when he was killed – we suspend that he was killed within three days and testify concerning him. Thus far his words. And the explanation of his words is – that even if we do not concede to all the words of Rabbeinu Tam, nevertheless this is a simple matter, that when his entire body is intact and he is not bruised in his face, one may testify even after several days; and that which the sages, of blessed memory, said, "one only testifies until three days" – this is when he was bruised in his face even when his entire body is intact, and not like the words of Rabbeinu Tam, of blessed memory, that when his entire body is intact, even when bruised in his face, one may testify even after three days. And so wrote the Rosh [in HaIsha Batra siman 3] that where he is not bruised in his face, it appears a simple matter that they can recognize him through the recognition of his body and his form, for his form does not change so much and it is visible to the eyes, that one recognizes a dead person through recognition after several days. Thus far his words. And such is the wording of the Tosafot, and the explanation of their words is that even if we do not concede to the words of Rabbeinu Tam, nevertheless, in a case where he is not bruised in his face, it is simple that one may testify even after several days.

According to this, when his entire body is intact and he is not bruised in his face, the opinion of Rabbeinu Tam is not a solitary opinion, for the Tosafot, the Rosh, and the Tur hold like him. Aside from this, the commentators have inferred from the wording of our teacher, the Beit Yosef, who wrote regarding the law of Rabbeinu Tam "and the later authorities disagreed with him," that his words were not rejected entirely, and one may join the opinion of Rabbeinu Tam to other assessments and proofs. And know that according to this, that which our teacher, the Beit Yosef, wrote in section 28: And there are those who say in the name of Rabbeinu Tam that this matter, that one only testifies concerning him up to three days, these words apply when he is bruised in his face, but if he is not bruised in his face, one may testify even after several days, thus far his words—according to what we have explained, this is not the opinion of Rabbeinu Tam. For according to Rabbeinu Tam, even if he is bruised in his face, one may testify even after several days, for so he explained explicitly in Sefer HaYashar, and this is the opinion of the Tosafot, the Rosh, and the Tur as I have written. [And because Sefer HaYashar was not printed in their days, they therefore understood it so; and many things were said regarding Tosafot 120a s.v. "Ein," and according to what I have written it is simply settled; and the bodily signs they wrote of, this is the recognition of the body which is like signs; and I found support for my words from the Maharik at the end of Shoresh 121, and examine it well].

Our teacher, the Rema, wrote in section 28 regarding the position of Rabbeinu Tam that if his entire body is whole and his face is not bruised, one may testify about him after several days, that there are those who say and distinguish that anyone who was with him when he drowned in water, even if he was whole, one may not testify about him; however, one who did not see his drowning and says that he recognizes him by visual recognition and he is whole – he may testify about him. Thus far his words. And this is not related to the position of Rabbeinu Tam, and it will be explained later with the help of Heaven in section 221.

One does not testify regarding a person that he died except in a case of certain death, but one does not testify regarding matters where the majority lead to death. For it has already been explained that just as they were lenient regarding the testimony, conversely they were stringent regarding the essence of the testimony and were concerned even for a minority of a minority, and even for a matter that is not common but occurs only once in a thousand, for reasons we explained in section 20; see there. Therefore, one does not testify regarding a gosses that he died, for even though the vast majority of those in a state of gosses proceed to death, nevertheless, since one in a thousand can live—one does not testify about him. This is not like the one who says that one testifies regarding a gosses after three days, and Heaven forbid to say so; and so agreed the great later authorities. And there are those who say that in everything regarding which the Sages of blessed memory said she may not marry, if she did marry—she must leave, even in matters where the majority lead to death, except for water that has no end. And there are those among the early authorities who disagreed on this. However, this is not a rule for all matters, for certainly there are cases where she must leave if she married, and the matters depend on the understanding of the sages of the place with fear of God.

If he fell into a lions' den that is very wide, and when he falls into it he does not fall upon the lions – one may not testify regarding him, for perhaps the lions were not hungry then, and since he stands beside them, perhaps they did not harm him. And in the Yerushalmi the reason is explained that perhaps a miracle was performed for him like Daniel, but we maintain that we do not mention miraculous events, and the Yerushalmi holds that there is a Tanna who holds we do mention miraculous events, and it follows that Tanna, and it is possible that even the Yerushalmi does not hold so as the halacha. According to this, if he fell upon the lions – one may testify regarding him, for they certainly killed him. And so too if he fell into a pit full of snakes and scorpions – one may testify regarding him, for since he fell upon them they certainly killed him, and we do not say perhaps he knows how to charm the snakes, for since he stepped upon them they certainly cause harm. And in a lions' den in a place where they do not permit his wife, even if he was not found in the pit we concern ourselves that perhaps he exited from the pit and went on his way; however, if human bones were found in the pit itself – one may permit his wife, and there are those who hesitate regarding this, and it is not certain, and since this is not a common matter at all, there is no need to elaborate on this.

If he fell into a deep furnace of fire or into a boiling vat full of wine or oil or water and remained for a short time—they may testify about him. And so too in a furnace that is not deep, he must remain for a short time, for if not, perhaps he jumped out of the fire immediately. And so too if they slaughtered in him the two simanim or the majority of them, even if he stood and fled—they may testify about him that he died because his end is certainly to die, and so too anything similar to this from things that it is impossible for him to live and he must certainly die immediately in a short time—these they may testify about him. But if one saw him crucified and a bird was eating from him, even though they stabbed him or shot arrows at him—they do not testify about him. And some say that this was specifically in ancient times when they would hang by the hand and he could live for a long time, but in our times when they hang by the neck, they testify about him for he is strangled immediately—and so it stands to reason; and even though there are those who disagree with him and bring proof from the Yerushalmi which said perhaps a noblewoman passed by him and ransomed him, and so too there is a concern perhaps the rope snapped, nevertheless, this is only if the rope snapped at that very moment, but if he remained for a small amount of time it is obvious that he was strangled, and the concern of the Yerushalmi also does not apply except when hanging by the hand, for if not, behold the senses testify that in a small amount of time he is strangled, and since he stood over him for a small amount of time, behold he is strangled. And so too if they saw the bird eating from him from a place where the soul departs upon its removal, such as his brain or his heart or his entrails—behold this one testifies about him in any case for he certainly died. And so too if he saw that they hung him and after a day or two he saw that a man is still hanging there—he testifies about him and we do not say perhaps he was released from the rope and this one hanging is another man, for we say he is the one who was hung and he is the one who is hanging now; and even according to the one who holds regarding the impurity of a grave in a field in which a grave was lost and afterwards a grave was found in it that we do not say it is the grave that was lost and it is the grave that was found, nevertheless in this he admits, for this is a simple matter that this concern is only rabbinic and a mere stringency that they were stringent regarding the prohibition of an eshet ish, and in this certainly everyone admits that we say it is that which was lost and it is that which was found; and furthermore, there the place is not confined for behold the doubt is over the entire field, but here where he left him hanging in a confined place and found him in that very same place, certainly we say it is that which was lost and it is that which was found.

It is stated in the Shas [120a] that even if they saw him mangled, meaning his flesh was cut and full of wounds and sword gashes—they may not testify about him. And it is explained there in the Gemara that even if he is cut in a place that makes him a terefah, such as his leg from the knee and above—the Tannaim disagreed about this, as there is one who permits and there is one who forbids because it is possible that if they cut the limb with a knife heated in fire he could live, since it heals from the cauterization, and our Mishnah follows the one who forbids, see there. And the Gemara does not establish the Mishnah that forbids testimony for one who is mangled as referring to a place that does not make him a terefah, such as a cut hand or leg from the knee and below, for if so, this is no novelty at all; and it is explained there that if we knew they cut him with a heated knife—she is forbidden according to everyone. The Rambam, of blessed memory, did not write the law of one who is mangled at all, and many things have been said regarding this. It seems to me the main point is that his reason is because the Rambam holds that if he is cut in a place that makes him a terefah, he cannot live even with a heated knife; for if not so, many laws would be innovated regarding terefot of animals, for if there was a cut in a place that makes it a terefah, we hold that it is a terefah, and according to this approach, if they cut it with a heated knife it would be kosher. However, in the Gemara there, the one who holds this, that with a heated knife he can live, also holds that a terefah can live [for Rava, who establishes it as a heated knife, holds in Temurah 11b that a terefah can live], but we hold that a terefah does not live more than twelve months. Therefore, the Rambam, of blessed memory, omitted it, for if he is cut in a place that does not make him a terefah, he does not need to inform us that she is forbidden [for therefore he does not establish our Mishnah in such a case, as I wrote], and in a place that makes him a terefah, she is certainly permitted after twelve months. Therefore, the Rif, of blessed memory, also omitted the entire deliberation of the Gemara [and regarding Rabbi Shimon ben Elazar, who holds that one can cauterize and live, it is slightly implied at the beginning of the chapter "Elu Terefot" that he also holds a terefah can live, for he follows the approach of the Tanna of the school of Rabbi Yishmael who holds so, see there; however, from the language of the Tosefta where Rabbi Shimon ben Elazar said "it is kosher because it can be cauterized and live," it implies that he holds a terefah cannot live, and so it appears there on 57b, and examine it closely].

If he fell into water that has an end—his wife is permitted if one stood there for a period of time on the bank of the river sufficient for the soul of the drowned man to depart and he did not emerge from the water; and if he fell into water that has no end—his wife is forbidden. And what is called water that has an end? Any case where one standing on its bank sees all the edges of the water from the four directions, such as a pit or a cave, or a small river where he sees all the banks of the river, and if the drowned man were to emerge, he would see him. And water that has no end refers to all the seas and all the rivers, for since they extend to a great distance, we are concerned that perhaps the current of the water cast him to a distance and he emerged there, or he entered a cavern of fish. And even though this is a great stringency, nevertheless the sages, of blessed memory, were stringent in this for reasons that we explained in section 20. And there is no difference in this whether he drowned naked or in his clothes, whether he is able to swim upon the water or whether he is unable to swim, and whether he fell into the water or whether the water came upon him, such as if he sat in a ship in the lower room and the ship descended into the depths; for even though it is very close to a certainty that he drowned, nevertheless, since one in a thousand is saved by quickly jumping into the sea and swimming or sitting on a plank or a mast and being saved—it is impossible to permit a married woman in this case, and a teacher who rules to permit in this case is excommunicated, as will be explained. And if one did not stand there for the duration of time for his soul to depart—she is forbidden even by Torah law.

It happened that a person was tied by his leg and lowered into the sea, and when they pulled him from the sea they brought up only his leg, and it was evident that the rope snapped with the leg and the entire body was drowned, and the sages said if the leg is from the knee and above – his wife may marry, for from the knee and above when it is severed, even if the waves of the sea cast him onto dry land, he will not live. Our teacher, the Beit Yosef, ruled in section 32 that she may marry specifically after twelve months, for a treifah does not live twelve months. Thus far his words, and so it is in the Yerushalmi. However, the Rambam and the Tur wrote plainly that his wife may marry, and it implies immediately, and they were not concerned for the Yerushalmi since this was not mentioned in the Gemara and it is an excessive stringency; for since water that has no end is itself a rabbinic stringency, and all the more so in a case such as this where he cannot live and the water festers the wound – it is obvious that he would die immediately [and see Marot HaTzovaot]. And in several matters the Yerushalmi is more stringent in these things than the Talmud Bavli, as I wrote in section 209, see there. Nevertheless, for the law, one should instruct according to the words of our teacher, the Beit Yosef, as we have not found explicitly among the Rishonim who disagree on this.

But if one fell into the sea and afterwards they cast a net and brought up a human leg from the water, and there is no distinct siman on the leg to recognize it as belonging to that person who fell into the water, even if it is from the knee and above—one may not permit his wife to marry, for I say it is the leg of another. And it is not relevant to say in this case "it is that which was lost and it is that which was found" as in the case of one who was hanged in section 210, for there, everything that was lost is what was found, but here, a leg was not lost but rather a whole person, and now a leg is found—it is not relevant to say so; and furthermore, there are many who drown in the sea. And it is possible that if they stood over him until his soul departed, such that the prohibition is only rabbinic—one might permit in such a case, and this requires further study. And so too, it is possible that even by means of an intermediate siman on the leg, one might permit in such a case. [And regarding what was written in the Shulchan Aruch "an extremely distinct siman," it is possible that he calls an intermediate one "distinct" as in monetary matters, for regarding a distinct one, what is he coming to teach us? And in the source of the law in the Maggid Mishneh, "distinct" is not written; see there in chapter 13, halacha 16].

Regarding the previous law, our teacher, the Rema, wrote that there are those who say that even a distinct siman on his clothes is effective here, since they saw him drown in these clothes. Thus far his words. The explanation of his words is that if we saw someone who fell into the sea, and afterwards they pulled out a leg with a garment or a shoe upon it, and it is recognized by a distinct siman or by recognition of the eye that this belongs to the one who drowned—it is obvious that she is permitted. And even though we are concerned with clothes for borrowing, nevertheless in this case it is not applicable, for how could he have stripped off his clothes in the water and lent them to another person under the water? And even if one drowned in clothes and after several days they recognized a corpse that the water cast up, and he is dressed in these clothes, but the corpse itself cannot be recognized—nevertheless, his wife should be permitted. For even though it could be said that the one who drowned previously went out to the dry land and lent his clothes to another, and it is the other whom the water has now cast up before us, nevertheless it is a remote concern that two people would drown in these clothes, and it would happen that he would lend them to another person who also drowned in these clothes. And although there are those who hesitate regarding this, nevertheless regarding the concern of borrowing, where many disagree with the fundamental law of borrowing, and especially regarding the borrowing of all his clothes—certainly one should permit in such a case.

The Rambam, of blessed memory, wrote in chapter 13, law 9: A single witness says, "I saw that he died in war" or "in a collapse," or "he drowned in the Great Sea and died," and similar matters where the majority lead to death—if he said, "I buried him," he is believed and she may marry based on his word. But if he did not say, "I buried him," she may not marry, and if she married, she shall not leave. And so too a woman for whom a single witness testified that her husband drowned in water that has no end and did not emerge, and his memory was lost and his name forgotten—behold, she may not marry based on this testimony as we have explained, and if she married, she shall not leave; and even if it were a Cuthean speaking inadvertently and he said, "So-and-so drowned in the sea," and she married based on his word—behold, she shall not leave. Thus far his words. Our teacher, the Beit Yosef, transcribed it in section 33 and section 34.

The explanation of his words: Behold, we hold that the fact that a woman is believed to say "my husband died" is when she says he died upon his bed. However, if she says he died in war, she is not believed, as will be explained. And the reason is that we say that in this case she did not investigate properly and imagines that he died because she says it is impossible that he escaped, since everyone who was with him was killed, and certainly he was also killed. And it is not specifically war, for the same applies to any place where the danger is great and the majority are for death; if she says he died, she is not believed, for we say she speaks through imagination. And we inquire in the Gemara [beginning of chapter HaIsha Shalom] regarding a single witness who testified that he died in war, what is the law? And the root of the doubt is that it has already been explained in section 21 that they believed a single witness for two reasons—due to the reason that a matter that is likely to be revealed people do not lie about, and we explained there in section 23 that the Rambam holds that this reason is from the Torah, see there. And another reason—that therefore the sages were not stringent in this to not believe a single witness, because they rely on the fact that the woman herself will be precise and well-clarify his death, see there. Therefore, regarding a single witness in war, the doubt is whether the primary permit is because of a matter that is likely to be revealed—he is believed, for the witness will not speak through imagination, for she speaks through imagination because of her desire to be married and not the witness; or the primary permit is because she will be precise, and in war she will not be precise [the second explanation of the Maggid Mishneh and the third explanation of the Lechem Mishneh]. And it is further stated there in the Gemara that water is like war; it is not only if he did not emerge from the water, for in water that has no end it does not avail even two witnesses, for we fear perhaps he emerged from another place, but even if she says "my husband drowned in the sea and immediately the sea cast him out to the dry land and I saw him dead"—she is not believed, for we fear perhaps in truth he did not die and the water confused her [Rivash siman 378], as we see many who drown, when they are removed from the water they appear as dead, and they roll them and perform medical treatments for them and they live, and she speaks through imagination. And the Rambam holds that when the witness did not say "I buried him," the inquiry was not resolved; but when he says "I buried him"—she is permitted to marry [the Gra, subsection 107], for in "I buried him" we certainly do not need her precision. And even though she herself, when saying he died in war, is not believed even when saying "I buried him" according to the opinion of the Rambam as will be explained, which implies that even in "I buried him" we fear for imagination, and here since without "I buried him" the witness is not believed because she will not be precise, if so, what does "I buried him" avail? For one could say that in truth in "I buried him" imagination is not relevant since he buried him and looked at him, but rather that the fact she is not believed according to the Rambam in war even in "I buried him" is because we suspect her of lying [Beit Shmuel subsection 146, see there], and regarding a witness we do not say that he would lie. And know that this matter of water also being subject to imagination—this is in water that has no end, but in water that has an end imagination is not relevant [the Gra], for in that which has no end the confusion is very great, but in that which has an end they stand until his soul departs if he did not come up, and afterwards they testify about him [Rashba]. And some say that the Rambam holds that even regarding a single witness there is a concern of imagination [and so wrote Rashi, of blessed memory]; however, for the law there is no practical difference in this, for ultimately in "I buried him" he is believed and without "I buried him" he is not believed, and see what I wrote in section 231.

The Rambam, of blessed memory, holds that specifically with one witness there is a concern, and therefore without "I buried him" we do not permit her; however, with two witnesses there is no concern at all, and when they said "he died in war" or "in water," we permit her, for with two witnesses we do not require her precision, and with two witnesses there is no concern that they will speak based on imagination. However, the Rif, of blessed memory, holds that even with two witnesses there is a concern of imagination, and it is not effective until they say "we buried him." Nevertheless, it is implied from his wording that the concern of imagination which necessitates "I buried him" is only in war, but in water it is sufficient that they recognize him immediately when the water cast him out or when they removed him from the water [Hagahot Maimoniyot]. And this is what the Sages, of blessed memory, said, that water is like war—meaning a slight similarity—and it is in water when they brought him up and saw him immediately like "I buried him" in war [Lechem Mishneh]. And some say that even in water the Rif requires "I buried him." And there are some of our teachers who hold that with a witness the concept of imagination does not apply at all even in war and there is no need to say "I buried him," and many of the Rishonim hold so [for they hold that the inquiry was resolved elsewhere], for the reasoning of the Rif and the Rambam is a great stringency, and the laws and the essential traditions in the Talmud indicate not according to their words; but who would not be concerned for their great opinion [Rivash siman 377]. And according to the Rambam, it must be said that this which we permitted when they brought him up from the water and there was no delay in the recognition of the face, and we do not require "I buried him" at all—this is with two kosher witnesses; but with one witness, besides the recognition, we require "I buried him." However, not specifically "I buried him," for the same law applies if they moved him from place to place and there was no breath of life in him, it is like "I buried him." And likewise, it is possible that the Rambam, of blessed memory, does not require saying "I buried him" except when the water cast him out before the time it takes for his soul to depart; but if he was in the water for a long time such that it is impossible for him to live, we only require recognition alone, for why do we need "I buried him" when it is obvious that it is impossible for him to live [see Marot HaTzov'ot subsection 104]. Therefore, in halacha 22 regarding the law of delay, the Rambam did not mention at all that with one witness one must also say "I buried him," for there it deals with one who had already drowned as is written there, and imagination is not applicable [it appears to me].

And so it appears to me to be the primary view, for with this that which the Rambam wrote is well-settled: And similarly a woman for whom one witness testified that he drowned etc. and did not come up, and his memory was lost and his name forgotten, behold she shall not marry, but if she married she shall not leave. Thus far his words. And it is difficult: what is he teaching us? This is the same as the previous case; on the contrary, in the previous law there is a greater novelty, for even where he saw him dead she shall not marry, and perforce the sea must have cast him out, for if not so, from where does he know that he died? And all the more so when he did not see that the sea cast him out. And there are those who wish to say that he teaches us that even in such a case if she married she shall not leave [Lechem Mishneh], but this is a forced explanation, for if so, he should have only said that if she married she shall not leave, as he wrote regarding one who speaks in innocence. And according to what I wrote, his words are well-settled, for in the first clause he teaches us that if immediately upon his drowning the sea cast him out and he saw him dead, she shall not marry because of the concern of an erroneous assumption that perhaps he did not die and will surely live, as I wrote. And in the latter clause he teaches us that even if he saw that he did not come up—meaning that he waited long enough for his soul to depart [Kesef Mishneh]—such that he certainly died, for it is a remote concern that the waves carried him far away and he emerged from there, since his memory was lost and his name forgotten—nevertheless she shall not marry [and the words of the Chelkat Mechokek in subsection 62 are puzzling].

And there are some of the Rishonim who distinguish in this matter between one who saw the drowning and one who did not see the drowning, for one who saw the drowning may speak through "imagination" because the power of his imagination misleads him that he certainly died, and therefore it is of no avail that he saw him upon his being brought up from the water and recognized him by recognition of the eye unless he says "I buried him" or something similar to burial, or when he states a middle-level siman in addition to the recognition of the eye, it is of avail. And it is not specifically one who saw the drowning, for the same applies to one who knew of the drowning. But one who did not see and did not know of the drowning and saw him immediately upon his being brought up from the water and recognized him by recognition of the eye—nothing more is required [the Maor]. And it appears that according to this explanation, the meaning of "imagination" regarding drowning is not as we explained, that perhaps he is still alive and was confused by the water, for if so, what would a siman avail for this? Rather, the explanation of "imagination" is that perhaps it is another man and it seemed to him that it was this person because he saw or knew of the drowning, and since he states a middle-level siman, it is certainly he; and likewise if he was occupied with his burial or something similar to burial, such as if they moved him from place to place, he certainly looked at him well. And some distinguish even according to this explanation between knowledge and seeing, that specifically when he saw the drowning is there a concern of "imagination" and not when he knew, but the primary view appears as we wrote, that one should not distinguish between knowledge and seeing. [See Be'er Sheva subsection 87 and Marot HaTzov'ot subsection 114, for it is thus explained in the responsa of the Ramban and the Rivash that there is no distinction].

The Tur has a different approach regarding all of this, and he holds that for one who did not see the drowning, "he stayed" is not applicable to him; and even if he did not see him immediately upon his being brought up from the water but rather after a long time and recognized him by recognition of the eye – we rely upon him and permit her. However, for one who saw the drowning, it is not enough that he must see him immediately upon his being brought up from the water, but even in such a case, recognition of the eye does not avail without intermediate signs. This is the wording of the Tur after he wrote the law of water that has no end, that when one falls there, we do not permit his wife: For if one witness testifies, "I saw him immediately after he was brought up and I recognized him by means of signs that he had on his body" – he is believed; but by means of recognition of the eye – he is not believed. In what case does this apply? When the witness saw him fall there, etc., but another who did not see him drown is believed even if he did not see him immediately after he was brought up, and even by recognition of the eye without signs, provided that he sees him whole in his entire body. But if he is not whole, but only the features of the face with the nose – we do not rely on recognition of the eye alone without signs. Thus far his words. And these are the words of our teacher, the Rema, in section 28 that we brought in section 207. However, our teacher, the Rema, did not write that one who did not see the drowning does not need to see him immediately, for he was concerned in this for the words of the other poskim that regarding the matter where one must see him immediately when he is brought up from the water, there is no difference in any case except by means of a distinct sign as I wrote above. And so it appears from the opinion of the Tur that with two witnesses, even if they saw the drowning, one does not need to see him immediately, for the Tur holds that with two, "it seems to him" is not applicable, as he wrote regarding the matter of "it seems to him" concerning war, see there [and see Beit Shmuel subsection 87 and subsection 90], and from the language of the Rosh it does not imply so.

The foundation of the words of the Tur is according to what he wrote in section 205, for he holds that even according to those who disagree with the approach of Rabbeinu Tam, nevertheless, when his entire body is intact without injury, everyone agrees with Rabbeinu Tam that even after three days one may testify about him; and similarly when he was brought up from the water and lingered. And because it is found in the Gemara that we require that they see him immediately when he is brought up from the water, and it was not amenable to him to explain that we are dealing there with a case where his entire body is not intact, as there are some of the poskim who wish to explain so—for if so, it would be an injury, and even in water one could not testify about him because water softens an injury—and also in this it was not amenable to him to distinguish that specifically when the injury is in the facial features the water softens the injury and not in other places of the body as I wrote in section 195. And although we wrote there that the opinion of the Tur may also be explained so, nevertheless, from his wording where he wrote there "that has no injury in it," it implies that he is dealing with the entire body, that there should be no injury in it. Therefore, he distinguishes between one who saw the drowning and one who did not see it. And those incidents in the Shas where we require that they see him immediately—that is regarding those who saw the drowning. And this is the approach of his father, the Rosh, in the chapter "Ha'isha Shalom" siman 3, see there. And although there are those who incline the words of the Rosh toward another intention, nevertheless, to the one who examines there, it will appear that his approach is the approach of the Tur. Therefore, our teacher, the Rema, who followed the approach of our teacher, the Beit Yosef, who holds that even when his entire body is intact it is only the approach of Rabbeinu Tam, as I wrote in section 206, see there; therefore, he omitted the words of the Tur where he wrote that one who did not see the drowning does not need to see him immediately. [What he wrote "simanim," and because he was concerned for the opinion of Rabbeinu Chananel in Tosafot 115a, beginning with "ve-ka'amrei," even though it did not appear so to the Rosh himself, only the Tur was concerned because his words are words of tradition].

A sage who ruled to permit intentionally in the case of water that has no end—we excommunicate him. And if it was unintentionally, such as if he imagined that this was the law of water that has an end or the like—that which he did is done, and if she married she shall not leave, for water that has no end where he waited until his soul departed is only a rabbinic prohibition. And how much is the duration—some say three hours, and some say two hours, and the primary ruling is that there is no fixed measure for the matter and it is according to what is observed, and so agreed several of the great authorities. And if she has not yet married—his permission is nothing. And similarly, if she married in error, thinking she was permitted—she shall not leave. But if she married in transgression, such as if they warned her not to marry, or if one sage permitted her and a sage greater than him forbade her—behold, she shall leave, and such is the law in all matters where the majority lead to death and the sages forbade her [Beit Shmuel, subsection 102], and we have already explained this in section 208, see there. [Regarding what the Beit Shmuel wrote in subsection 103, specifically if he is a famous sage, it requires great scrutiny regardless—if she has not married, she certainly shall not marry, and if she married, behold she shall not leave because she married in error, for it is not upon her to know the standing of the sage].

Our teacher, the Rema, wrote in section 34 that all this applies to one regarding whom they testified specifically that he drowned in water that has no end, but one regarding whom they testified that he was on a ship that broke in the sea or similar to this, or even that he drowned but they did not testify that he remained in the water long enough for his soul to depart—she shall leave, even if he testified generally that he drowned, we fear that perhaps he called such things "drowning," for it is the way of the world to call these things "drowning," and she shall leave unless he testified explicitly that he drowned specifically and remained long enough for his soul to depart. Thus far his words. And in this, a witness from the mouth of a witness is not effective when he did not say explicitly how he drowned, and even though we are lenient in several matters regarding a witness from the mouth of a witness—this is specifically in matters where according to the implication of the witness's language it indicates more closeness to death than life, but in "drowned" there is more reason to say he drowned in water that has no end, and if so, she shall not marry [Taz], and perhaps he also did not stay until his soul departed, and if so, even if she married—she shall leave. And if he says explicitly that he drowned in water that has an end, only that he does not say explicitly that he remained until his soul departed, we follow the leniency in this regarding a witness from the mouth of a witness [ibid.]. And if he testified that he saw that he drowned and remained until his soul departed, only that there is a doubt whether it is water that has an end or does not have an end—it appears that we also follow the leniency, for behold, even in water that has no end she shall not leave if she married, and if so, it is only a rabbinic doubt and we follow the leniency [ibid.].

However, regarding the primary matter that was explained, that if he did not remain until his soul departed it is a Torah prohibition and if she married she must leave, there are many who disagree on this and hold that even without remaining until his soul departed, it is considered a majority destined for death and she is permitted by the Torah, and if she married she shall not leave. For behold, in the Gemara [121b] a case was brought where a Cuthean said that a certain person drowned, and based on a legal error his wife went and married, and the sages said if she married she shall not leave, even though he said plainly that he drowned and did not say that he remained until his soul departed. And although it is possible to say there another reason, that because he was a famous man, if he had come up from the water the matter would have been famous, and so it is stated there in the Gemara according to one version, and for the law there is no difference between a great man and a simple man, nevertheless, the senses also testify so, that anyone who falls into the water and drowns, the majority of them die, and it is an explicit verse (Lamentations 3:54) "Waters flowed over my head; I said, I am cut off" [see Marot HaTzov'ot subsection 137 who brought several poskim who hold so].

However, it is certainly so that whenever it is recognizable from the circumstances that the one saying he drowned intends to make known his death, he surely knows that he certainly died, and presumably they stayed by him long enough for his soul to depart; and according to this, the incident in the Gemara that we cited [ibid. subsection 134 in the name of the Maharit] works well. In any event, regarding a famous person, one should lean toward leniency post facto in a case of complete drowning even if they did not stay by him for the duration it takes for the soul to depart [ibid.], and everything is according to the perception of the eyes of the sages of the place with the fear of G-d, for certainly one who falls into the water in his clothes suddenly into the water, it is very remote that he would be saved, which is not the case for one who falls in naked, as it is within his power to swim and go out to the riverbank, and it is impossible to explain everything that could occur in such matters.

Our teachers, the authors of the Shulchan Aruch, wrote in section 35: There is one who says that if he fell into water that has no end, she collects her ketubah even though she is forbidden to marry. Thus far his words. And this is when two witnesses testified to his drowning, and even though they do not permit her—this is a stringency regarding a married woman, but regarding the matter of the ketubah, even though in monetary matters we do not follow the majority, nevertheless, in a majority such as this—we do follow it, for the minority is a minority of a minority [the Gra]. However, with one witness it is the opposite, for even though regarding the prohibition of a married woman the sages believed him, nevertheless, regarding the matter of money one does not extract based on one witness, and the heirs do not descend to the estate based on his word even in a case where they permit her to marry; only her ketubah she collects from the conditions of the ketubah as was written in section 110, see there. And there are those who disagree with this law and hold that in any case where they do not permit her to marry, she does not collect her ketubah in any manner [Beit Shmuel, subsection 107].

The sages taught in the Mishnah [Gittin 28a] that a city surrounded by a siege, a ship tossed at sea, and one who goes out to be judged—these are in the presumption of being alive. And it is obvious that one may not testify regarding any of these that he died to permit his wife, for we judge them as completely alive, such that even if they sent a get, we deliver the get to their wives as written at the end of siman 141; and if she married, she must leave, and her kiddushin from the second man is nothing. But a ship that was lost at sea, meaning it sank and it is not known which of the people were saved and which were drowned [Shiltei HaGibborim], and a city conquered by a siege in ancient times when they would hand over to slaughter everyone found in the city fortress, and one who goes out to be executed—we apply to them the stringencies of the living and the stringencies of the dead regarding a get as written there. And likewise, if she received kiddushin from another, she requires a get from him due to doubt, but if she married, she must leave [ibid.]. For certainly if he testified that the husband of this woman was lost at sea and was not saved, this is the law of water that has no end, where if she married she does not leave; but since he testified generally about the loss of the ship and does not know who was saved and who was not saved—if she married she must leave [ibid.], for it is a complete doubt and she stands in the presumption of a married woman [Rivash siman 379]. And even if he was forgotten and his memory lost, it does not avail [Knesset HaGedolah]. And there are those who distinguish between a beit din of Israel and a beit din of gentiles, and for the law there is no practical difference here, for many of the poskim do not distinguish, and so it is clear from the plain wording of the Rif there, and one must follow the stringent view [Rashba, and see Beit Shmuel subsection 108]. And the Rambam did not mention these laws at all regarding an agunah, and it is possible that he relied on what he wrote regarding this for the matter of a get in the sixth chapter of Gerushin. And the Rambam, of blessed memory, added there based on the Yerushalmi that the same law applies to one who was dragged away by a wild beast or swept away by a river or a ruin fell upon him, that we apply to him the stringencies of the living and the stringencies of the dead, see there. And it must be said that "swept away by a river" is not similar to "fell into water that has no end," for "swept away by a river" is, for example, where he was sitting on the bank of the river and the current of the water swept him away, where it is easier to escape than one who fell into the water, and therefore this is a complete doubt [it appears to me, and see there in Shiltei HaGibborim letter 6 and examine it closely], and see what I wrote in section 132 [and see Beit Yosef siman 141 what he wrote on the words of the Rosh, and it requires further study from there, and see Marot HaTzovot subsection 140].

It has already been explained that a woman who said "my husband died" is believed. However, the Sages, of blessed memory, said this is specifically when there is peace between him and her and peace in the world; but if there is war in the world, even if there is peace between him and her, or if there is a quarrel between him and her, even if there is peace in the world—she is not believed. And the explanation of the matter: when there is war in the world and she says he died in the war, we fear that she speaks out of imagination and relies in her mind on things that mostly lead to death and says he died, such as if the first ones and the last ones were killed and her husband was in the middle of them, for she says since these and those were killed, he was killed among them; therefore, she is not believed. And since the reason is because of imagination and not because she would lie intentionally, if she said "I buried him"—she is believed according to most poskim, for since she buried him, she saw that he died. And not specifically "I buried him," for the same law applies if she moved him from place to place and saw clearly that he died, and there is no longer a concern of imagination.

However, the Rambam, of blessed memory, wrote that even if she said "I buried him," she is not believed. And some say his reason is that when she says "I buried him," it appears that she is lying, for it is not the way to wait during a war and bury him. And some say his reason is that, behold, in a war she is certainly panicked to escape for her life, but out of her great love for her husband she desires to bury him so that he is not cast like dung upon the face of the earth, and it is possible that from the great panic she buried another man and thought it was her husband. And some say his reason is that since the imagination is strong within her that he died, she lies and says "I buried him" so that they will believe her more. And it appears to me there is proof for the Rambam from the Yerushalmi which says that even if she said "he died on his bed," she is not believed when it was a time of war, because we say that he died in the war and she is lying to say that he died on his bed so that they will believe her more; see there. And although in this we do not rule like it, as will be explained, because in our Gemara it is explained that when she says "he died on his bed" she is believed, nevertheless, we do not posit a distant dispute, for in any event in a war she is not believed in any manner. However, most Rishonim do not hold so, and the Tur ruled accordingly, that regarding "I buried him" she is believed, see there; and see what I wrote in section 234.

And if one witness testified that he died in war, the Rambam, of blessed memory, ruled that if he said "I buried him," he is believed; and if he did not say "I buried him," she shall not marry, but if she married, she shall not leave. And some say that his reasoning is that without "I buried him," we fear that he too speaks based on imagination, but when he says "I buried him," the concern of imagination is not relevant, and we do not suspect him of lying as we suspect her. And even according to what we explained in section 217 regarding the Rambam, that regarding a witness the concept of imagination is not relevant at all, it also works well, for this law is an inquiry in the Gemara, and the doubt is whether the primary basis for the permission in the reliability of one witness is because it is a matter that is likely to be revealed or because she will be exacting, and in war she will not be exacting as she will rely on the fact that he was certainly killed like many who were killed. And behold, in truth, the primary reason is because it is likely to be revealed, and many of the poskim held that the Rambam maintains that in the final law this reason is primary. And even according to what we explained in section 23 that the Rambam maintains that both reasons are necessary, see there, and our reasoning in this is that since in the Gemara they were in doubt about it, it is impossible to say that he would decide, nevertheless, from the Torah he is certainly believed due to the reason of being likely to be revealed as I wrote there, and the reason of being exacting is only a stringency of the sages, and therefore when he also says "and I buried him," you have no greater exactness than this, and we do not know his exactness from her exactness, even though her exactness is because of the stringency we placed upon her at her end as I wrote there, nevertheless in such a case where the witness was very exacting, the sages did not see fit to be stringent in this, and therefore even without "I buried him," if she married she shall not leave, because the inquiry in the Gemara is a rabbinic doubt, for from the Torah he is believed in every case because it is likely to be revealed, and in a rabbinic doubt we follow the lenient view. And so it is explicitly explained in the Yerushalmi, that a case came before Rabbi regarding one witness in war and he ruled thus, that she shall not marry but if she married she shall not leave, see there; and a collapse is like a war.

And there are some of our teachers who hold that regarding one witness in war—even without "I buried him," she may marry ab initio, for they compare it to water that has an end where we do not require "I buried him" according to their opinion, as was written in section 218. However, the Rosh and the Tur agreed with the opinion of the Rambam, because regarding water it is not relevant to say "he imagined it," for he stands and sees all around him, but in war it is relevant to say "he imagined it." And some say that "I buried him" is not literal, but rather even if he said "he died" or "he was killed" and "I saw him afterward and recognized him well by visual recognition and saw that he died"—he is believed, for it is as if he said "I buried him," and our teacher, the Rema, brought this opinion in section 50. And some say that this opinion does not permit in such a case except for one who did not see the killing, and they compare it to what was written in section 220 to distinguish between one who saw the drowning and one who did not see, see there, and it is not conclusive. And all this is regarding one witness, but with two witnesses everyone admits that we do not require "we buried him," for with two it is not relevant to say "they imagined it." And even though the opinion of the Rif, of blessed memory, is that even with two it is relevant to say "they imagined it," nevertheless those who disagree with him are many, and so our teacher, the Rema, ruled without qualification there. And regarding a Cuthean speaking offhandedly who said "he died in war"—certainly he must say "I buried him," for if not so, perhaps he says it out of imagination. However, even in this there are those who are lenient, who hold that "imagining it" is only relevant to one who sets his heart to testify and to permit, which is not the case with one speaking offhandedly who did not set his intention toward anything. However, even in this there is one who says that those who are lenient only were lenient when he saw the killing, and it is difficult to rely on the opinion of those who are lenient without "I buried him," unless in combination with other permits.

And if she said, "He died on his bed"—she is believed even if he was in a war. And one should not say that if so, she should be believed when she says, "He died in the war," via a migo that if she wanted she could have said, "He died on his bed." For it can be said that a migo is only relevant when we suspect her of lying, then the migo serves as a sign that she is not lying; but in a war, we say that she is not lying but rather speaking out of imagination and is mistaken in this, so what benefit is a migo? [Tosafot, beginning of the chapter Ha-Isha Shalom]. And even according to the opinion of the Rambam that even regarding "and I buried him" she is not believed because we suspect her of lying, as I wrote in section 230, nevertheless this is not a good migo to be inclined to say "he died on his bed," for since it is known to the world that there was a war, she would be afraid lest they contradict her, saying that he died in the war and not on his bed [ibid.].

And even if she said that he went down to war and was struck and returned to his house and died on his bed – she is also believed. However, according to the Rambam, that even regarding "and I buried him" she is not believed, it appears that even in such a case she is not believed. However, this is only according to the third reason that we explained in section 230, that due to the power of imagination she lies, and it is possible that in this too her power of imagination misleads her. But according to the first reason that she lies, and similarly according to the second reason that it is possible she buried another in place of her husband due to the panic, it is obvious that in this case it is not relevant to say so. And even according to the third reason, this is not exactly similar to that.

Our teacher, the Rema, wrote that the same law applies whenever she says he died or was killed far from the war—she is believed, for we do not say she speaks through imagination except when she says he died or was killed in the war itself. However, not in the war, even if he went there near the battle lines to buy spoils—she is believed. Thus far his words. For the men who do not stand in the battle lines are not killed; therefore, in the wars of savages who act in the wickedness of their hearts to also kill those who are attached and the men who come near the war, as occurred in our great sins during the decrees of 5408—there is no distinction regarding them, for anyone who was there is considered part of the war [Taz]. And there is one who is uncertain regarding the ruling of our teacher, the Rema, for perhaps according to the Rambam, for whom "and I buried him" is also not effective, it would also not be effective when she says he died or was killed far from the war; but in truth they are not comparable, for in a war she is agitated, but far from the war she is not agitated and she waits and does not lie [Beit Shmuel].

And know, that from the words of our teacher, the Rema, we learned that even if she says he died on his own during a war – she is not believed [ibid.]. But there are those who disagree regarding this, for since she says that he died not because of the war – she is believed [Yam Shel Shlomo], and so it stands to reason, for she has a migo if she wanted to say he died in his bed, since there too he died on his own. However, there is no proof, for nevertheless she is in a panic to flee from the place of war and there is a concern that she speaks through imagination as she did not wait until he died; however, if she says "and I buried him," it is possible that it is effective in such a case even according to the Rambam [and see Beit Shmuel siman 148].

If war was not established in the world, such that we did not know at all that there was a war, and she came and said, "There was a war in such-and-such a place and my husband died in the war" – she shall not marry ab initio, but if she married, she shall not leave. And some say that if she married, she shall leave, but the Rambam ruled according to the first opinion. And even though in the Gemara this was an unresolved inquiry, nevertheless, it is certain that according to the Torah she is believed even regarding war, for the concern of "imagining" is only a rabbinic concern, and since in the Gemara it remained in doubt – it is a rabbinic doubt and we rule leniently. And in a case where she says, "I buried him" – some say that in such a case, even according to the Rambam who forbids when she says "I buried him," she may marry ab initio, and there are those who disagree on this. And if she says he died without elaboration – if it is known that it was a time of war, we say that presumably he died in the war and she is not permitted until she specifies that he died in his bed. And if it is not known to be a time of war, we say that presumably she meant he died in his bed.

And just as during a time of war she is not believed even though there is peace between her and her husband, so too when there is a quarrel between her and her husband even though there is peace in the world—our Sages, of blessed memory, said that she is not believed to say "my husband died," even when she says "he died on his bed." And two reasons were said regarding this: The first—because we suspect her of lying, for out of great hatred she intends to forbid herself to him, and consequently it is impossible to permit her, for the entire primary reason that she is believed to say her husband died is because she is precise in this matter so as not to forbid herself, and here, on the contrary, she intends to forbid herself to him. And even though she will also be forbidden to the second, nevertheless it is worth it to her to be forbidden to the second in order that she be forbidden to the first, similar to the matter of "let my soul die with the Philistines." And the second—because she speaks out of imagination, and in any place of danger that she saw, she does not set her mind to say "perhaps he did not die and I shall not marry," for since she hates him she is not so precise. And even if she says that he died on his bed like the death of any man and she saw that he died—we do not believe her in this, and it is possible that he was in some danger and escaped from it. And we establish the law according to both versions to be stringent, since the Gemara did not decide the halacha according to whom. And so appears the opinion of the Rambam, of blessed memory, who did not write any reason for this, and also from the fact that he did not write a distinction between whether he began the quarrel or she began it. And in the Gemara there is a distinction in this, for according to the version of lying outright, it is only when she began the quarrel, for then her hatred has overcome her, but if he began the quarrel and she loved him, she would not lie outright; but regarding imagination, we are concerned in all cases, for with a small matter she speaks out of imagination as in war. And the Tur wrote likewise that there is no distinction in this, see there. And the Rambam did not mention this at all; hear from this that he was concerned for stringency according to both versions.

And what is called a dispute? For it is impossible to say that ordinary disputes and quarrels are the dispute for which she is not believed, for in most cases it is so, that a man and his wife quarrel at times and nevertheless their love is strong. And more than this, our Sages, of blessed memory, said ibid. that even if she says to her husband, "Divorce me," this is nothing, for they all say this when they are angry. Rather, what is the case of a dispute? For example, where she said to her husband in his presence, "You divorced me in the presence of so-and-so and so-and-so," and we asked the witnesses and they said, "The matter never occurred," and since she is found to be contradicted by the testimony of witnesses, she no longer has the ability to be believed regarding anything. It is explained from the Shas that specifically in such a case she is not believed to say that her husband died. But when she said not in his presence, "My husband divorced me," for which she is not believed according to the law, she is believed to say, "My husband died." And the same applies in our times, that even in his presence she is also not believed because insolence has increased in our times, as I wrote in section 17; when she says, "My husband died," she is believed since she was not contradicted by witnesses.

And one must ask a great question regarding this: how is it possible to say that when she is not contradicted, she is believed to say "my husband died," for behold, we do not believe her regarding a divorce, and she is suspected by us of not being concerned about marrying under the prohibition of a married woman and making her children from the second husband mamzerim; if so, how can we believe her when she says her husband died? Rather, it must be said that here she is afraid to lie, for granted that regarding divorce she can always cover her shame by contradicting him and saying "you divorced me," but when she says "my husband died" and afterwards he comes back alive, will her shame not be revealed [and this is the intent of the Tosafot 116b s.v. "ika"]? If so, even when she is contradicted by witnesses regarding the divorce, we should believe her regarding the death for this reason. However, nevertheless it is not comparable, for since she was contradicted by witnesses, her baseness was revealed before the eyes of all and it is no longer possible to believe her at all; for when she is not contradicted, granted that we do not believe her, nevertheless we also have not seen her falsehood explicitly, which is not the case with the contradiction of witnesses [and the Tosafot wrote according to the one who says she speaks through imagination, and in this they disagreed, see there, and see Marot HaTzov'ot, and delve into this]. Furthermore, since her hatred for him has been clarified to the point that she was contradicted by witnesses, and we estimate her intent that she intends to forbid herself to him in the manner of "let my soul die with the Philistines" as I wrote in section 238, if so, she is not concerned that her baseness will be revealed; on the contrary, this is her desire, to forbid herself to him, and it is not possible in any other way [and this is the primary reason as mentioned above, and this is the intent of Rashi there s.v. "she-meshakra," and delve into this].

And it is a simple matter that in a quarrel such as this, she is not believed even when she says "I buried him." And even according to the poskim who hold that in a war she is believed when she says "I buried him" – that is regarding the concern of "imagining" (bedidmi), for with "I buried him" there is no concern; however, in a quarrel where she lies intentionally as has been written, what benefit is there in "I buried him," for just as she lies explicitly regarding the death, she will likewise lie regarding the burial. And it appears to me from the sugya of the Gemara there that even according to the one who holds there that it is due to the concern of "imagining," it is not similar to the concern of "imagining" in a war where she is believed according to most poskim, for the "imagining" that stems from hatred is different [for if it were not so, let the Gemara state this distinction; and this is the intention of Rashi in the heading "For she says bedidmi": any place of danger etc. she does not be precise, meaning even a slight danger, not like a war].

The Rambam, of blessed memory, wrote that even if one witness came and testified to her that her husband died, she may not marry, lest she hired him; but if she married, she shall not leave, for she has a witness. Thus far his words. And they wondered about him: from where did he have cause to state this reason and to suspect the witness of testifying falsely? For if she is suspect, are all of Israel suspect? The Rambam's reason is that since she has already been established as a liar, and the matter has been clarified that she hates him and intends to release herself from him with several types of lies and schemes—for the witnesses contradicted her regarding the divorce—therefore, now that one comes and testifies to her that her husband died, which assists her in releasing herself from him according to the schemes she performed, there is a concern that she hired him and enticed him and gave him money so that he would testify even in a matter that is likely to be revealed [Responsa of the Re'em in the Kesef Mishneh at the beginning of chapter 13]. And behold, in the Gemara we also find a concern lest she hire witnesses [Gittin 67a], and even though we say there that they only say words but do not perform an action, and in this case where the permission is finalized through him it is like an action [Tosafot ibid.]—this is regarding two witnesses, but regarding one, there is a concern in such a case [and this aligns with that of Ketubot 36b and Makkot 5b, see there].

However, they further questioned him: from where does he have the authority to provide a reason not found in the Gemara? For the masters of the Shas ibid. were in doubt regarding a single witness in a quarrel, as to who is believed; for if the reason a single witness is believed is because the matter is destined to be revealed—he is also believed in this case; but if the reason is because she is precise—here she is not precise. And this same phrasing is also used regarding a single witness in war. And it appears to me that he was forced into this because he found the phrasing of the Shas difficult, "here she is not precise"—how is "not precise" relevant? On the contrary, it has been clarified that she seeks to remove herself from him with lies. It is understandable that in war the phrase "not precise" is relevant because she might speak based on an illusion [and so too in Yevamot 93b because she hates him], but here, where she is suspected of everything, how is this phrasing relevant? Therefore, he explains that the definition of the inquiry is according to the one who holds the reason is based on an illusion, but according to the one who holds it is because she lies, the doubt is because perhaps she will hire him [and the Gra in subsection 147 wrote that this should not be the version at all, see there; but according to what I have written, there is no need for this forced interpretation, and examine this closely].

And this which he ruled, that if she married she shall not leave, is because he holds that this concern is not from the Torah, for from the Torah every person stands in a presumption of fitness, and this has already been explained, that from the Torah the primary permit of one witness is because the matter is destined to be revealed, and according to this the doubt is rabbinic, and a rabbinic doubt is ruled leniently, and so most of the poskim agreed in the law that if she married she shall not leave. [And according to what I have written, all that the Rishonim questioned him on is settled].

Our teacher, the Rema, wrote in section 48 that if her husband converted to become an Ishmaelite and left her an agunah, the law is like a case of strife, and she is not believed to say "my husband died." There are those who disagree regarding this, for in the Shas they only said she is not believed in a case of strife where she desired to remove herself from him through a prohibition and was contradicted by witnesses; however, in this case where her husband is a wicked person, she is nevertheless not suspected of marrying under the prohibition of a married woman. However, it is certainly so that even if we say this is not comparable to one who says "you divorced me" and was contradicted regarding the concern that she would lie explicitly to marry under a prohibition, nevertheless the concern of "it appeared to her" certainly exists here, for she hates him. Several of the great authorities agreed to this, and it is no worse than a war where she says "it appeared to her." Therefore, in a case of "I buried him," it will depend on the dispute between the Rambam and the poskim regarding a war, whether if she said "I buried him" she is believed or not. Also, regarding a single witness when he testifies for her in strife such as this that her husband died, the law will be like a single witness in a war; and there is one who says that with a single witness, she may marry ab initio. (And in the Beit Shmuel, subsection 141, what he wrote in the name of the Taz contains a scribal error, for even in the case of strife in the Shas, if she married she does not leave).

And one cannot say that in this case the reasoning of "she is precise" does not apply at all, for the primary precision is so that she does not forbid herself to him and to the second, and here even without this she is forbidden to him since it has been overturned, and even if she is not forbidden to him, nevertheless she certainly would not be concerned about forbidding herself to him; for it can be said that nevertheless she is precise so as not to forbid herself to the second. For it does not seem correct to say that the reasoning of "she is precise" only exists if she forbids herself through this to the first and to the second, for what reasoning is this? And so several great authorities agreed that "she is precise" applies even if the precision applies only regarding the second [see Pitchei Teshuva subsection 168]. However, regarding the law, there is no great practical difference in this, for based on her own word she is certainly not believed, and only regarding "I buried him" is there cause for doubt, and one should not be lenient if there is no other side for permit [Marot HaTzov'ot]. And regarding other types of quarrels, even the greatest of the great, it seems there is no doubt, for we have only what the sages, of blessed memory, said, and it requires further study.

A woman who said, "My husband died under a collapse" – she is not believed, for a collapse is like a war and she speaks through conjecture. And all the laws that were explained regarding war, whether in a case where she says "I buried him" or where she says "he died on his bed" during a collapse, or when one witness testifies for her that he died – everything is as it is regarding war. And some say that even according to the one who is lenient when she says "he died on his bed" during a war, as I wrote in section 236, and consequently is also lenient in a collapse in such a case, nevertheless, if she said "he was killed" or "he fell from the roof and died" – she is not believed; for granted that we do not fear that she is lying, nevertheless, since she does not wait there due to the fear of the collapse and leaves him and goes away, she speaks through conjecture, and perhaps he did not die from this killing or fall. And it appears to me that the collapse of which the sages, of blessed memory, spoke is when a collapse is prevalent then in the entire city, as is common in the Eastern lands and everyone flees from the city, and therefore it is like a war and she speaks through conjecture; but in the collapse of a single house, what does this have to do with war? Behold, after its fall they dig after all the people beneath it. And even though from logic it appears so – nevertheless, in practice, the matter requires further study. [See Rashi at the beginning of chapter 15 who wrote: collapse = that the house fell upon him or a storm wind came and was collapsing all the houses of the city, thus far his words; and in Taanit 19a Rashi explained: collapse = that its walls and the houses fall in the wind, thus far his words; and an unspecified "collapse" refers to a city as is proven there].

And so too, if there was in that place a plague of snakes and scorpions, and she said, "A snake or scorpion bit him and he died"—she is not believed, for this too is like a war; because she is frantic to flee, she speaks out of imagination, and we fear perhaps she relies in her mind on the majority of people who died because of this, that presumably he also died, and all the laws that apply in a war apply in this as well. And it is called a plague of snakes when they were set loose upon the majority of people, but if one of them bit him and his wife came and said, "He died from a snake bite"—she is believed [Beit Yosef], for she is not frantic to flee when the blow is not spreading. And there is one who wishes to distinguish regarding "I buried him" between war and a collapse or a plague of snakes according to the Rambam; that he who holds in a war "I buried him" is not effective would admit in these cases according to the first reason we explained in siman 230, for in these cases that reason is not applicable—but it is not so, for in these cases as well the panic is great just as in a war, and there is no way to wait to bury according to the opinion of the Rambam there [see Chelkat Mechokek subsection 156 and Marot HaTzovaot and Beit Meir, and examine carefully].

In a plague – there are two versions in the Gemara whether it is like a war or not, and the Rambam, of blessed memory, ruled leniently that it is not like a war and she is believed, and the Tur ruled that she is not believed. Some have a version in the Rambam that is also like this, but in the text before us it is explained that she is believed, and the matter is based on reason. This is his wording: For it is a simple matter in the mouth of every person that during a pestilence this one lives and this one dies, and it is possible that strong youths will die in the pestilence and the sick elders will be saved; according to this, we do not fear that perhaps she relied in her mind on the majority of those who die. Thus far his words. And according to this, when she said "I buried him," it appears that according to everyone she is permitted, for according to the Rambam even without "I buried him" she is believed, and according to the Tur, he holds that with "I buried him" she is believed even in a war. And if she married, and similarly regarding one witness in a pestilence, it is a legal doubt [see Beit Shmuel subsection 160], and it appears that if she married she shall not leave ex post facto, for we have already explained that the concern of "imagining" is only a rabbinic concern, and since in the Gemara there are two versions and the poskim are divided on this – it is a doubt regarding a rabbinic matter and we rule leniently. And similarly regarding one witness, it is possible to say that she may marry ab initio by the reasoning of a double doubt – a doubt if pestilence is like a war, and if you say it is like a war – even in a war itself it is a legal doubt regarding one witness [and so it appears from Mar'eh HaPanim subsection 189]. However, there are some of the great authorities who say that regarding an agunah one should not permit based on a double doubt [Pnei Yehoshua in the Kuntres Acharon to Ketubot] for the reason that several of the poskim hold that one should not permit a double doubt in the face of a presumption of prohibition, as is written in Yoreh Deah siman 110; and furthermore, even if we say that a double doubt is like a majority because the first doubt makes it half-and-half and the second doubt makes it a majority, regarding an agunah they did not follow a single majority and were very stringent, such as with water that has no end and the like. However, we have seen several of the giants of Israel who permit based on a double doubt regarding an agunah, and it appears that the reason is that there is no presumption of the prohibition of a married woman here nor a presumption of the husband's life, for the presumption that a woman is precise before she marries weakens these presumptions. And that which the sages were stringent even in a case of a majority – that is in a case where the sages said that in this matter they saw fit to be stringent because it is a common occurrence or for another reason that was known to them, but in that which they did not say explicitly, we should not be more stringent than in the rest of the entire Torah; and furthermore, in a place where the prohibition is only rabbinic, such as the concern of "imagining," it appears simple that one may rely on a double doubt, and for the final ruling one must deliberate on this.

However, regarding the fundamental law of a plague, it would seem from the perspective of logic to make a distinction: for in an ordinary plague, even though many die, nevertheless they bury them properly and do not flee from them, and it is not similar to war. But there is a type of plague, may Hashem save us, which is a contagious disease such as existed in ancient times and is called the "black disease," and whoever had the symptoms of this disease, they would flee from him and were afraid to touch him or to bury him by hand, but rather by dragging—in this case, it is certainly like war; yet we have not found that the poskim made a distinction in this.

A woman who came and said, "My husband died in a famine" — she is also not believed because she speaks based on a presumption, for since she knew that he had nothing with which to sustain his life, it became rooted in her heart that he certainly died. On the contrary, famine is worse than war, for in war when she said, "He died on his bed," she is believed as has been written, but in a famine she is not believed even in such a case, for what relevance is there to distinguish in this between "died on his bed" and "not on his bed," as typically one who dies in a famine is on his bed [the Gra]. However, over against this, it is more lenient than war, for in war even if she said, "I buried him," it is of no avail according to the opinion of the Rambam as has been written, but in a famine it is effective since she is not lying, and also the panic regarding burial is not comparable to war. And thirst, its law is like famine, that if she said, "He died of thirst," she is also not believed for the reason that has been explained. And regarding one witness in a famine when he testifies that he died in a famine, his law is not explicitly clarified, and it appears that his law is also like war, for granted that the witness would stay until his death as he is not so panicked since perhaps the famine did not afflict him so much, nevertheless, the permissibility of one witness is because the matter is likely to be revealed and because of her careful investigation, and she, behold, will not investigate and will say based on an estimation that he certainly died; therefore, initially she shall not marry, but if she married she shall not leave, just as in war. And if she said that he did not die from famine as he had what to eat, but rather he had another illness and died or that he was killed — she is believed [Yam Shel Shlomo].

If she said, "They smoked the house upon us," or "They smoked the cave upon us," – meaning that wicked people set the house or the cave on fire and it filled with smoke and I fled while he remained there and died – she is not believed, and we say to her: just as a miracle was performed for you, so too perhaps a miracle was performed for him and he escaped from there. And the meaning is not a complete miracle, for we have already explained in section 209 that we do not mention the occurrence of miracles, but rather something like a miracle, in that he found a place to escape. And even if we did not know of the event except through her word, nevertheless we do not permit her; and it is not similar to where war broke out in the world, which is a legal doubt, for there she says that he died, but here she explicitly speaks based on estimation. And if there was a fire and we see a person who was burned and the woman cries out, "See my husband who was burned" – she is believed even if he was burned to ash in a manner where no form is recognizable, and this is when they did not find a limb from a body where it is known that this limb is not from her husband's body and therefore we attribute it to her husband; but if they found a limb known to be from another body – we do not permit her, and we say that this one whom we saw burned is also the other body and her husband has passed on and gone. And if there was a place of a great fire and many charred bodies were found such that it is impossible to recognize their form, and we only knew that the number of these bodies were in this place and now they are missing – it requires further study whether their wives should be permitted based on what is said, "here they were found and here they were," or not; and in a time of pressing need, one may permit.

If she said, "Cutheans or bandits fell upon us, he was killed and I was saved" – she is believed, even if it is known to us that they fell upon them, for there is no concern here of "imagining," as it is specifically in a great war where they throw spears and arrows at all who stand there that she fears for her life to stand there and flees, and due to the panic she speaks by imagination. However, in a war of bandits, which is a small war and they kill only those whom they wish to kill, she is not afraid to stand there, for she does not fear that they will kill her, as a woman's weaponry is upon her and the bandits do not kill her, whether because they imagine to satisfy their lust with her or because she is of a broken spirit and does not stand against them and they have mercy upon her not to kill her; and she stands until they have killed him and she will not speak by imagination, and all the more so she will not lie.

And behold, it seems to be a simple matter that she does not need to say "I buried him," and all the more so a witness who testifies regarding a small skirmish is believed without saying "I buried him." For even in a great war, where she is not believed even if she says "I buried him" according to the opinion of the Rambam, nevertheless regarding a witness it remains a doubt; and all the more so in a small skirmish where she too is believed—all the more so is one witness believed. However, I have seen that there are those who hesitate regarding this, and their reasoning is that while it is true that a woman's weapons are upon her, the witness surely fears to stand there lest they kill him as well, and if so, why should we not suspect that he speaks out of imagination? And even regarding the woman herself, why should we not suspect imagination, that she imagines he died when he has not yet died, just as with water where we suspect perhaps it was imagined he died, even though the witness does not fear to stand there when they pulled him from the water, and nevertheless we state this suspicion as I wrote in section 217, and all the more so here. However, from the silence of the poskim it seems to me that it is not comparable; for with water it is the way of the matter that when one falls into water it is imagined he died, but in truth the water only confused him. But with killing, it is well-recognized by every person whether he is alive or dead, for as long as his soul is within him he twitches, and to suspect that he makes himself appear so in order that the murderers imagine he certainly died—this matter is only relevant as it was during the times of the decrees, may the Merciful One protect us, when there was a great war, but not in a small skirmish [as mentioned above, and see Mar'ot HaTzova'ot subsection 187].

There is a great principle regarding the release of agunot: that in any case where the matter is not so simple as to permit and requires the inquiry of a sage, even the greatest in Torah should not permit by himself until two other greats of Israel agree with him. This has been the custom of all the greats of the world throughout time, as is explained in all the responsa. Furthermore, one who marries based on the testimony of a single witness, they convene a beit din of three and permit her, as was written in section 117, see there; and one must not deviate.

A woman whose husband went to another province and they came and told her, "Your husband died," and she married, and afterwards her husband came—the sages penalized her in several matters as will be explained, for the primary reason the sages believed a single witness is because they established it upon the presumption that she would investigate well until she knows with clarity that he died, and since she did not investigate, the sages penalized her. Nevertheless, even one who married based on two witnesses and her husband came, they also penalized her with all the penalties that will be explained. And even though [one might ask] what was there for her to do, for it is understandable regarding one witness that she should have investigated after the words of the witness as I wrote, but regarding two witnesses where "by the mouth of two witnesses a matter shall be established" throughout the entire Torah, why should we penalize her? Nevertheless, because of the greatness of the ruin that occurred by marrying under the prohibition of a married woman and increasing mamzerim in Israel, it is proper that she be penalized so that all women shall hear and fear, for behold, she is nevertheless somewhat negligent, for behold we saw that they are false witnesses, and every woman bound to her husband must investigate very thoroughly whether the matter is true that he died or not [it appears to me]. And even if she was not yet intimate with the second, since she entered the chuppah with him they penalized her, and the same applies if she secluded herself with him after the kiddushin [Chelkat Mechokek subsection 10], but if she was betrothed and had not yet secluded herself with him—they did not penalize her, as will be explained with the reasoning of the matter with the help of Heaven.

And in what way did they penalize her – that she must leave this one and that one, for to the second she is forbidden by the Torah, and to the first she is permitted by the Torah since she is like one who was coerced, and nevertheless they penalized her that she must leave him and requires a get from both of them; from the first she requires a get by the Torah, and from the second due to a penalty, and furthermore because we fear lest they say that the first divorced her and she married the second permissibly and now she leaves him without a get, and for this reason they rightly forbade her to the first so that they should not say he took back his divorcee after she married another, and therefore if she did not marry the second but only became betrothed and the first came – she does not require a get from the second and is permitted to return to the first, for since she has not yet committed a transgression they did not penalize her, and the concern lest they say the first divorced and the second married also does not exist, and on the contrary they will say that it was a mistaken betrothal, but marriage they will not attribute to a mistake [see Beit Shmuel subsection 170]. However, if the second who betrothed her gave her a get – she is forbidden to the first because they will say the get was according to the law and she married the first after she was divorced from him and was betrothed to another [ibid.]. And there are those who disagree on this [ibid.] and so it implies in the Mishnah [Yevamot 92a, and see there 94a]. And likewise if she secluded herself with the second after the betrothal it is like she married as I have written, and likewise if she was betrothed to the second as a concubine she is forbidden to the first, for she does not lack delivery to the canopy since there is no canopy for a concubine [ibid.], and see what I wrote in siman 26 regarding whether it is permitted to marry a concubine. And likewise if she was betrothed to the second and did not marry and did not seclude herself with him – she is permitted to him if the first died or divorced her, and she is like other divorcees and widows since she has not yet committed a transgression.

And they furthermore penalized her such that she has no ketubah from either of them—from the second she certainly has none, and from the first it is a penalty. And even if the first took her back in violation of the prohibition, she has no ketubah; and likewise, if the second took her back in violation of the prohibition after she was divorced from the first, she has no ketubah. And they likewise penalized her such that the produce that both of them consumed from her nikhsei melug they need not pay for, even though by the letter of the law they are obligated, for they enacted that the husband receives the produce in exchange for her ransom, and these are not obligated to ransom her since she is prohibited to them; nevertheless, they penalized her in this. And specifically what the second consumed before the first arrived, he is exempt from paying since he thought she was his wife; but what he consumed after the first arrived, he is obligated to pay, for he is like any other man. But the first continues to consume until he divorces her, for she is his wife, and even though he is not obligated in her ransom, nevertheless they penalized her in this as well. And likewise, they need not pay for what wore out from her nikhsei tzon barzel, even though a husband in general is obligated to pay; nevertheless, they penalized her in this, and her law is like one who committed adultery under her husband, as was written in siman 115. And specifically what wore out completely; but what still remains of them in substance, she takes them. And there are those who say that she does not even have her existing worn items, but most of the poskim hold like the first opinion. And regarding everything she lost due to the penalty, seizing does not avail her, even if she seized without witnesses where she would have a migo that she did not seize; nevertheless, when she admits it, they remove it from her since the reason is due to a penalty. And everything that belongs to her, even if she seized with witnesses, they do not remove it from her. Therefore, if she took from this one or that one a ketubah or produce—she must return it, even if she took it without witnesses; and specifically what she took from the second after the first arrived, but what she took before the first arrived, she need not return, for she took it permissibly since she did not yet know that the first was alive. And that which we wrote that they remove produce from her—the intention is regarding the sustenance she consumed from the second. And if they are kohanim and she died, neither of them is permitted to contract tumah for her, and neither of them is entitled to her finds or the work of her hands, and they cannot annul her vows. And if she is the daughter of a kohen—she is disqualified from terumah; and if she is the daughter of a Levi—she is disqualified from ma'aser; and even though ma'aser rishon is permitted to non-Levites and a woman who committed adultery is permitted to eat ma'aser, nevertheless they penalized her. And likewise, she is disqualified from marrying a kohen forever. And when she dies— her first husband inherits her, for she is his complete wife. And if they died—the brother of this one and the brother of that one perform chalitzah for her if they died without children, and they are prohibited from performing yibbum with her; for the brother of the first performs chalitzah for her by Torah law and does not perform yibbum due to the penalty, and the brother of the second is prohibited from performing yibbum by Torah law, and by the letter of the law she does not even require chalitzah from him, but rather because of appearances, just as she requires a get from him.

The offspring from the second man, by whom she became pregnant before the first man divorced her, is a mamzer from the Torah. However, that which she conceived from him after the first man divorced her or died is a mamzer rabbinically due to a penalty. And regarding the first man, if he had relations with her before the second man divorced her or died, the offspring she bears is a mamzer rabbinically as well due to a penalty. And some say that it is always a mamzer rabbinically from the first man, even if he had relations with her after the divorce of the second man or after he died. The primary view is like the first opinion, for so our teacher, the Beit Yosef, stated without qualification in section 56 [see Chelkat Mechokek subsection 119].

If her husband was in the overseas provinces and they came and told her, "Your husband died," and she married, and afterward they told her that he was alive at the time she married and has now died—the child she bore from him or conceived before he died is a mamzer from the Torah, but what she bears afterward is not a mamzer even according to the rabbis. And even though it was previously explained that it is a mamzer according to the rabbis—that is when the first husband comes here, for since the sages penalized her such that what she bears from him is a mamzer, therefore also what she bears from the second is a mamzer. However, where the first died in the overseas provinces, such that mamzerut is not relevant regarding him, they did not penalize regarding the second either. But some say that even in such a case the child from the second is a mamzer according to the rabbis. And it appears that regarding the other penalties that were explained, all agree that we penalize her just as if her husband came here, and the second must divorce her and may never take her back.

Specifically regarding a woman whose husband went to a province overseas and she went and married in error, they penalized her because she did not investigate carefully to know if he was alive or dead. However, a married woman who married another intentionally or committed adultery and gave birth, or became pregnant from him after the first husband divorced her, even though she committed a prohibition, nevertheless the child is not a mamzer even according to rabbinic law, for they are completely wicked and how did the child sin? But where she did not intend to commit a prohibition and stumbled, they correctly penalized her so that she would be careful to investigate well whether the first husband died or not [ibid. in the name of the Ralnach and the Re'ah Sasson].

Our teacher, the Rema, wrote in section 58: A woman who was betrothed and erred, thinking she was not betrothed, and married another—she must leave this one and that one, and all these ways apply to her; but if they coerced her to marry, or if a beit din ruled for her in error and she married based on them—she is like one who was coerced and is permitted to her first husband. Thus far his words. And even though when she marries based on two witnesses she is also considered coerced and nevertheless they penalized her—it is not comparable, for there they did not coerce her to marry, but here they coerced her to marry, and what difference is there to me between coercion of intercourse or coercion of marriage; and furthermore, regarding two witnesses they penalized her also so that she would investigate, for she is somewhat negligent as was written in section 256; and likewise if a beit din ruled for her in error she is like one truly coerced, for was she supposed to investigate the ruling of a beit din? Rather, in the time of the Temple she would have been liable for a sacrifice according to the one who holds that an individual who acted based on the ruling of a beit din is liable for a sacrifice, but she is not forbidden to him for she is completely coerced. And even though one who marries based on one witness is also like one who marries based on a beit din, and why is she forbidden to this one and that one? It is different there, for the permission of the beit din based on one witness is because they established her under the presumption that she would investigate, and since she did not investigate well, there is reason to penalize her; this is not the case with other rulings of a beit din where they erred in the ruling, where there is no guilt upon her. And there is proof for these matters from the Yerushalmi at the beginning of the chapter "Ha'isha Rabbah," see there. Nevertheless, there are those who disagree with this law, and it will be explained in siman 31 with the help of Heaven. [And with what I have written, all that was written by the Taz and the Beit Shmuel in subsection 172 is answered; and the Rashba ruled the law from logic as he wrote in Responsa siman 10, see there; and also the Gra and the Beit Meir agreed to this, see there].