Ketubot, Chapter 2, Lesson 41
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
🔗 Link to the original lecture
🔗 Link to the transcript on Sofer.AI
Table of Contents
- Two against two in the case of a woman whose husband is overseas
- Rabbi Menachem bar Yosi’s qualification regarding when the witnesses arrived
- The Pnei Yehoshua’s explanation versus Rashbam and Tosafot in Bava Batra
- The first tanna’s answer: the presumption that a woman investigates carefully before remarrying
- The Talmud’s question: one who has relations with her is liable for a provisional guilt-offering, and Rav Sheshet’s answer
- The laws of a provisional guilt-offering in Keritot: one piece versus one piece out of two pieces
- A practical difference between the explanations: an olive-bulk and a half, and a gentile who ate the first one
- Tosafot in Ketubot: why two against two here is called a provisional guilt-offering case
- The Ran versus Tosafot: provisional guilt-offering or sin-offering when there is an existing presumption
- Rabbi Shimon Shkop: the difficulty of how a presumption that clarifies facts can function within a two-against-two case
Summary
General Overview
The lecture presents the laws of two-against-two testimony regarding the husband’s death or divorce in the case of a woman whose husband went overseas, and establishes that initially she may not remarry. The baraita brings a dispute whether, after the fact, if she did remarry she must leave, and Rabbi Menachem bar Yosi qualifies that removal depends on whether the contradicting witnesses came before the marriage or afterward. The lecture presents the explanations of the Pnei Yehoshua, Rashbam, and Tosafot regarding the basis of the dispute, and the discussion expands to the question of a provisional guilt-offering in a case of doubt, the definition of one piece versus one piece out of two pieces, the reasons given by the amoraim in Keritot, and the understanding of an established prohibition versus a case where the prohibition can be clarified. Finally, the lecture discusses the answers of Tosafot and the Ran to the question of the provisional guilt-offering in our passage, the role of the presumption that a woman investigates carefully before remarrying, and Rabbi Shimon Shkop’s difficulty as to how that presumption “undermines” the presumption that she is a married woman within a two-against-two case.
Two against two in the case of a woman whose husband is overseas
The woman’s status depends on whether the husband is dead or alive: if he died she may remarry, and if he is alive she may not. The baraita states that if two say he died and two say he did not die, and similarly two say she was divorced and two say she was not divorced, then initially she may not remarry, but if she did remarry she need not leave; Rabbi Menachem bar Yosi says she must leave. The Talmud connects the initial prohibition either to maintaining her prior presumption as a married woman or to the general laws of doubt, and raises the possibility that the dispute is connected to whether two against two is a rabbinic-level doubt in which one follows a presumption, or a Torah-level doubt in which there is no resolution through presumption.
Rabbi Menachem bar Yosi’s qualification regarding when the witnesses arrived
Rabbi Menachem bar Yosi rules that she must leave only when witnesses came and afterward she remarried; but if she remarried and only afterward witnesses came, she need not leave. The conclusion presented in the lecture places the dispute between the tanna’im only in a case where she remarried after the prohibiting witnesses arrived, whereas if she remarried beforehand even Rabbi Menachem bar Yosi agrees that she need not leave. Everyone agrees that initially she may not remarry even in those situations.
The Pnei Yehoshua’s explanation versus Rashbam and Tosafot in Bava Batra
The Pnei Yehoshua explains that according to Rabbi Menachem bar Yosi, when witnesses came and afterward she remarried, she must leave by Torah law, because we place her under the presumption that she is a married woman, and he cites support from the passage in Yevamot and the exposition of the verse “and you shall sanctify him.” The Pnei Yehoshua explains that when she remarried permissibly, she left her original presumption, and therefore when witnesses came afterward she need not leave; the lecture notes that the practical understanding is that she enters a new presumption as married to the second husband. The Pnei Yehoshua raises a difficulty from the passage in Bava Batra, where the reason seems to be disrespect to the religious court, and it is brought that Rashbam and Tosafot there explain that this is a rabbinic penalty so that there will not be contempt for the religious court if she remarried after being forbidden, whereas the Pnei Yehoshua rejects that and treats the law as a Torah-level law.
The first tanna’s answer: the presumption that a woman investigates carefully before remarrying
It is said that according to the first tanna it is still difficult why, if she remarried, she need not leave even though this is a Torah-level doubt, and Tosafot is cited as explaining the leniency after the fact through the presumption that a woman investigates carefully before remarrying. This presumption is based on the laws of agunot, where a woman who says “my husband died” is believed because she does not want to risk becoming forbidden to both men and being left with nothing on either side. According to Tosafot, the very fact that she remarried reveals that she checked carefully, and therefore after the fact she does not leave even in a case of doubt.
The Talmud’s question: one who has relations with her is liable for a provisional guilt-offering, and Rav Sheshet’s answer
The Talmud asks that since this is a two-against-two case, one who has relations with her stands liable for a provisional guilt-offering, and therefore it is not clear how one can say that she does not leave. Rav Sheshet answers that the case is one in which she married one of her own witnesses, and therefore the husband is not in doubt, since he knows the truth that the first husband died. The Talmud then asks that she herself still stands in doubt, and answers that the case is one where she says, “I am certain,” so from her perspective as well there is no doubt.
The laws of a provisional guilt-offering in Keritot: one piece versus one piece out of two pieces
The Mishnah in Keritot is brought: if one is in doubt whether he ate forbidden fat or did not eat it, he brings a provisional guilt-offering. A dispute is then brought between Rav Asi and Chiyya bar Rav whether this includes even a case of one piece or only one piece out of two pieces. According to Rav Asi, one is liable for a provisional guilt-offering even in a case of doubt involving one piece. According to Chiyya bar Rav, one is liable only when two pieces are lying there, one forbidden fat and one permitted fat, and he ate one and does not know which he ate; but in a case of one piece that may be forbidden fat or may be permitted fat, he is exempt. The lecture notes that Jewish law follows this latter view. The reasons given by the amoraim are presented: Rava ties the issue to exposition of the verse and to the dispute whether interpretation follows the reading or the written form; Rav Zeira ties it to the logic that in the case of two pieces the prohibition can be clarified, whereas in the case of one piece it cannot; and Rav Nachman adds the reason that only in the case of two pieces was the prohibition established, whereas in the case of one piece it was not established.
A practical difference between the explanations: an olive-bulk and a half, and a gentile who ate the first one
The Talmud formulates a practical difference between Rava’s reason and Rav Zeira’s reason in a case of an olive-bulk and a half: according to Rava the wording of “commandments” is lacking, whereas according to Rav Zeira the prohibition can still be clarified. The Talmud also formulates a practical difference between Rav Zeira and Rav Nachman in a case of two pieces where one was first eaten by a gentile and afterward a Jew ate the second one, because then it is impossible to clarify which one was forbidden fat, yet the prohibition had still been established at the beginning of the situation. The lecture explains that the example is formulated so that the gentile eats first, because if the Jew ate first the obligation would have taken effect at a time when clarification was still possible.
Tosafot in Ketubot: why two against two here is called a provisional guilt-offering case
Tosafot asks that in the passage in Ketubot it says that one who has relations with her stands liable for a provisional guilt-offering, even though according to Rav and Chiyya bar Rav a provisional guilt-offering requires one piece out of two pieces. Tosafot first suggests establishing the question according to the one who says that a provisional guilt-offering also comes in the case of one piece, but rejects that because the passage is referring to Rav. Tosafot answers that “provisional guilt-offering” is not meant literally; rather, it means that he stands in the status of a grave doubtful prohibition. Tosafot adds that one can also explain it according to the reason of “the prohibition can be clarified,” because here it can be clarified through disqualification of the witnesses by proving they were elsewhere, or according to the idea of an established prohibition, because she had the presumption of being a married woman.
The Ran versus Tosafot: provisional guilt-offering or sin-offering when there is an existing presumption
The Ran brings proof from the phrase “one who has relations with her stands liable for a provisional guilt-offering” for the view that two against two is a Torah-level doubt and that one does not maintain the prior presumption. He asks that according to the view that two against two is a rabbinic-level doubt and one does maintain the prior presumption, the liability should have been a sin-offering where the presumption is that she is a married woman, or merely a rabbinic prohibition if the issue were a presumption that she was unmarried. The Ran answers that the Talmud used the language of a provisional guilt-offering so as not to enter into the dispute in Yevamot, even though, based on the presumption that she is a married woman, there would have been room to say sin-offering. Tosafot in the name of Rabbeinu Tam disagree and answer that the presumption that a woman investigates carefully before remarrying weakens that presumption that she is a married woman, and therefore even according to the view that one does maintain a prior presumption, a doubtful two-against-two situation arises that leads to a provisional guilt-offering and not a sin-offering.
Rabbi Shimon Shkop: the difficulty of how a presumption that clarifies facts can function within a two-against-two case
Rabbi Shimon Shkop cites Rabbi Akiva Eiger and the Shev Shema’teta that within a two-against-two case there is no room for presumption on the basis of decisive evidentiary proof, and only an original status presumption can guide us. He asks that according to this there is no room to say that the presumption that a woman investigates carefully before remarrying weakens the presumption that she is a married woman, because an evidentiary presumption adds no force against a two-against-two case, since two are like a hundred, and therefore it also cannot dissolve the presumption that she is a married woman. The lecture proposes framing the problem through the question whether presumption is a clarifying tool or merely a legal directive, and raises the possibility of understanding Rabbeinu Tam only if one treats the original status presumption as a kind of evidence on the evidentiary plane; but even then, the question remains why specifically the presumption that she investigated carefully undermines the prior presumption, when two against two itself does not undermine it according to the view that this is only a rabbinic-level doubt. The lecture concludes by pointing to an unresolved discussion around whether two against two is treated as if the testimony is present or as if it is absent, and the relationship between the original presumption and clarifying presumptions.
Full Transcript
[Rabbi Michael Abraham] Okay, let’s begin. I’m sharing my screen. Okay, we’ve actually already encountered the topic of two against two in previous lectures, so I’m not planning to really get into it right now, even though it touches on what we’re going to discuss. This topic also accompanies the continuation of the passage a bit, so I’ll still see what to do with the continuation, whether to go into it at all or maybe just move on. Let’s start. We’re dealing with a woman whose husband went overseas. Right now she’s wondering whether she can remarry or not. If her husband died, she can; if her husband is alive, of course she cannot. The rabbis taught in a baraita—I’m reading the Talmud now: If two say, “He died,” and two say, “He did not die”; or two say, “She was divorced,” and two say, “She was not divorced”—then she may not remarry, but if she remarried, she need not leave. Rabbi Menachem bar Yosi says: She must leave. Meaning, we have a case here of two against two regarding the husband’s death or regarding the woman’s divorce. So she may not remarry, but if she remarried she need not leave; and Rabbi Menachem bar Yosi says that she must leave even if she already remarried. In other words, it doesn’t matter whether we’re talking initially or after the fact—she has to leave in any case. Now, when you have two against two here, right? So the Talmud basically says that in principle she may not remarry. Initially, obviously she may not remarry. The argument is about what happens if she did remarry—whether after the fact she is required to leave. Why may she not remarry in a case of two against two? Presumably because we keep her in her prior status, and she has the presumption of being a married woman. Right? Although it’s not one hundred percent clear, because one could say that there’s a two-against-two case here and so we’re in doubt. And because of doubt, even aside from the presumption that she is a married woman—even if we don’t follow presumption—it would depend on whether two against two is a rabbinic-level doubt, in which case we follow presumption, or a Torah-level doubt, in which case we don’t follow presumption. You remember the dispute between Ba’al HaMaor and Rashi in our passage, and the Talmud in Yevamot? So if we do follow presumption, then she has the presumption of being a married woman and of course it is forbidden for her to remarry.
[Speaker C] But wait—by Torah law, if we don’t go by presumption? What? I didn’t understand. By Torah law, if we don’t go by presumption, then would it be permitted for her to remarry?
[Rabbi Michael Abraham] No, so as I said: if we go by presumption—if two against two is a rabbinic-level doubt and we go by presumption—then she has the presumption of being a married woman and it is forbidden for her to remarry.
[Speaker C] Right, but now by Torah law.
[Rabbi Michael Abraham] Wait, wait, I’m explaining now. And if two against two is a Torah-level doubt and we don’t go by presumption, then we’re basically in the general laws of doubt. We have a doubt whether she is a married woman or not, and we haven’t resolved it by means of presumption. By Torah law, we rule stringently. And in the laws of doubt too, we go stringently, but stringently out of doubt, not out of certainty. And there’s a difference. For example, if there were an additional doubt, then it would already become a double doubt. By contrast, if we resolved it based on presumption, then even if there were another doubt, it wouldn’t matter, because it would still remain an ordinary Torah-level doubt, one doubt ruled stringently. Okay?
[Speaker D] In any case, she can’t remarry.
[Rabbi Michael Abraham] Correct. But after the fact, the first tanna says she need not leave, and that apparently means that we do not follow presumption. Because if we did go by presumption, then apparently even after the fact she should have to leave, because she is certainly a married woman. The presumption determined that she is certainly a married woman. And Rabbi Menachem bar Yosi says she must leave. So in principle there was room here to say that this itself is their dispute: whether two against two is a Torah-level doubt or a rabbinic-level doubt. According to the first tanna, two against two is a Torah-level doubt, and therefore initially she may not remarry because we are dealing with the laws of doubt.
[Speaker D] But if she remarried, then we don’t force her to leave. That too needs explanation—why? Even under the laws of doubt, apparently we still should have forced her to leave, so that already raises a question mark here. And according to Rabbi Menachem bar Yosi, he says she must leave even after the fact, apparently because he understands that two against two is a rabbinic-level doubt, and therefore we maintain her presumption as a married woman; and if she is certainly a married woman, then there’s no difference between initially and after the fact—she is a married woman and she must leave. Now, have any of you by chance seen the film The Return of Martin Guerre? Wow, I just remembered it right now in this context.
[Rabbi Michael Abraham] I haven’t seen it. What is it?
[Speaker D] It’s a movie where basically the woman’s husband went off to war, and then someone else comes back pretending to be him and says he’s the husband. He kind of reconstructs everything because he served with the husband. And of course everybody believes him, and he becomes her husband. Then after some years, the real husband comes back. She starts suspecting from different details, but keeps quiet because her husband had been a really…
[Speaker B] …really wicked person, and this man is very nice.
[Rabbi Michael Abraham] What’s this? But why do they execute them? I didn’t understand. Because they committed adultery? It’s some religious regime where if you commit adultery, they execute you?
[Speaker B] Yes, France, sixteenth century, something like that. Okay.
[Rabbi Michael Abraham] Okay, I need to see that.
[Speaker B] Yes, it’s an interesting movie. It even has two versions.
[Rabbi Michael Abraham] I’ve heard the name but I haven’t seen the movie itself.
[Speaker B] What’s it called? The Return of Martin Guerre.
[Rabbi Michael Abraham] In any case, the first version is in French. Right. So the Talmud brings here: Rabbi Menachem bar Yosi said: When do I say that she must leave? When witnesses came and afterward she married. But if she married and afterward witnesses came, she need not leave. Meaning, Rabbi Menachem bar Yosi further qualifies what he says. So in principle it seems that the basic law is that she actually can remain married, okay? That’s the basic law, except for a certain case. In the straightforward reading of the baraita, it sounds as though if she married she must leave in any case. But here he qualifies it and says: only when she married after the witnesses came. But if the witnesses came after she married, then even Rabbi Menachem bar Yosi agrees that she need not leave. So if we sum up, the dispute between the tanna’im is only in a case where she married after the witnesses arrived.
[Speaker C] The contradicting witnesses, right? What? The witnesses who say he’s alive.
[Rabbi Michael Abraham] Yes, yes, obviously. So only regarding a case where she married after the witnesses came—only there is there a dispute. If she married before that, then even Rabbi Menachem bar Yosi says she need not leave. And on the other hand, everyone agrees that initially she may not remarry. Okay? Now there’s a discussion among the commentators here about Rabbi Menachem bar Yosi. The Pnei Yehoshua brings the following: Rabbi Menachem bar Yosi said: When do I say she must leave? When witnesses came and afterward she married. But if she married and afterward witnesses came, she need not leave. The Pnei Yehoshua writes—I don’t know who the speaker is there, because he brings the Pnei Yehoshua in the third person—that Rabbi Menachem bar Yosi holds that if witnesses came and afterward she married, she must leave by Torah law. Meaning, her obligation to leave is by Torah law. Because we place her under the presumption of being a married woman, as is implied by the passage in Yevamot, that this is why the verse “and you shall sanctify him” came. Nevertheless, he holds that if she married and afterward witnesses came, she need not leave, because once she married permissibly, she left the first presumption. So he says that according to the Pnei Yehoshua, we’re dealing here with a Torah-level law. The distinction Rabbi Menachem bar Yosi makes is not rabbinic; it’s a Torah-level distinction. If she married before the witnesses came, then once she married permissibly she already left her original presumption. She is no longer under the presumption of being the first man’s wife. Now witnesses come and create a two-against-two situation, so since she is no longer in the first man’s presumption, she need not leave. Why need she not leave? There is still a Torah-level doubt here. Even without the first presumption, still. There is a Torah-level doubt here, and a Torah-level doubt is ruled stringently, no?
[Speaker E] But she married permissibly, so what…
[Speaker D] …is her presumption now?
[Rabbi Michael Abraham] I didn’t understand.
[Speaker D] She married permissibly.
[Rabbi Michael Abraham] So what? She married permissibly, but now it turns out there’s a doubt whether that was correct or not.
[Speaker E] Apparently the ruling of the religious court has the power to change that presumption.
[Rabbi Michael Abraham] To change the presumption—and then what?
[Speaker E] And she is no longer under the presumption of being a married woman.
[Rabbi Michael Abraham] Fine, so she’s not under the presumption of being a married woman, but now there’s two against two. What? But there’s two against two even if she’s not in a presumption. Two against two means there’s a doubt. Out of doubt she should have to leave, no? A Torah-level doubt. Even if we don’t maintain her prior presumption. So—
[Speaker E] That’s the question: if he says this is by Torah law, then why is he talking about presumption at all? From the start, it shouldn’t matter whether there is a presumption or not.
[Rabbi Michael Abraham] No, I’m saying—leave aside…
[Speaker B] …the ordinary two-against-two case. We had a situation here of doubt, of two against two. We had two who said he died, and she married permissibly. Now that permission is being challenged.
[Rabbi Michael Abraham] Right. So now it’s two against two.
[Speaker B] Is two against two something eternal? Meaning, does it not have to be simultaneous?
[Rabbi Michael Abraham] Of course. What difference does it make? There are two witnesses saying he died and two witnesses saying he didn’t die. What difference does it make when they testified? I now have a real doubt.
[Speaker C] And this connects to the topic we learned later on, about an established prohibition, or in what…
[Rabbi Michael Abraham] An established prohibition.
[Speaker C] There are three possibilities there. So I think this is one of them.
[Rabbi Michael Abraham] Why? What do you see there? I didn’t understand.
[Speaker C] I mean, I can’t say it exactly, but…
[Rabbi Michael Abraham] The point is simple. It’s pretty clear that—yes? Can’t hear?
[Speaker B] If we compare the woman to one piece or two pieces, is that the idea? If you compare her to one piece, then the doubt is just a doubt.
[Rabbi Michael Abraham] Let’s leave the established-prohibition point for later. I want, for the moment—look, we don’t need to get there here. She left—what he means to say is that after she married permissibly, she left the first presumption and entered a second presumption. There’s a Rashi here. She entered the second presumption. Now she has the presumption of being married to the second husband. Now when there is two against two, we leave her married to the second husband. He writes here only that she left the first presumption, but what he probably meant was not only that she left the presumption of being married to the first husband, but that she entered the presumption that she is married to the second.
[Speaker C] And in that, two against two does what? So does it create some kind of certain-and-uncertain situation?
[Rabbi Michael Abraham] No, it creates a case of two against two with a presumption in favor of the second husband. And since in a two-against-two case we follow presumption, she remains married to the second and need not leave. Or in other words, his assumption here is that two against two is a rabbinic-level doubt; we follow presumption.
[Speaker F] So why does he write “by Torah law”? What is by Torah law? “She must leave by Torah law.”
[Rabbi Michael Abraham] Yes, “she must leave by Torah law.” But two against two is a rabbinic-level doubt. The law here—that she must leave—is a Torah-level law. Why? Because two against two is a rabbinic-level doubt. What does “rabbinic-level doubt” mean? That if there is a presumption, we follow presumption. And then the point is this: if—now let’s see it like this—when it has now become clear to us that at least Rabbi Menachem bar Yosi assumes that two against two is a rabbinic-level doubt. Right? Now let’s learn through all the laws. If the woman has a case of two against two, and now she asks us whether to remarry, what do we answer her? No. Right? Why not?
[Speaker C] No, no.
[Speaker D] Why not?
[Rabbi Michael Abraham] Why not?
[Speaker C] Because…
[Speaker D] …it’s a doubt?
[Rabbi Michael Abraham] Not because it’s a doubt. Because she has the presumption of being married to the first husband.
[Speaker D] The presumption of a married woman.
[Rabbi Michael Abraham] After all, we’re talking about a two-against-two case that is a rabbinic-level doubt, right? Now I’m going back and recalculating the whole passage on the assumption that two against two is a rabbinic-level doubt. So if in two against two we follow presumption, then the first law is understood. Right? If there is two against two and she has the presumption of being a married woman, then when she asks us whether to remarry, we say no—you may not remarry, you have the presumption of being a married woman. Good. Now second case: two witnesses came and permitted her. She married. Okay? And now two other witnesses come and say she is forbidden. What now?
[Speaker B] She stays, she need not leave, she need not leave. Why not? Because she has the presumption of being married to the second.
[Rabbi Michael Abraham] Right, again: two against two is a rabbinic-level doubt, we follow presumption, except that her presumption now is that she is married to the second husband, so she need not leave. Third case: there is two against two, she comes and asks us whether to remarry, and we answered her no because she has the presumption of being a married woman. She went against our ruling and married anyway. Or you know what?
[Speaker B] This is where the dispute is.
[Rabbi Michael Abraham] Or she didn’t ask and married anyway. Okay? This is where the dispute lies. Rabbi Menachem bar Yosi says—what does he say? She must leave. Right? Why must she leave?
[Speaker C] Because she remained in the first presumption.
[Rabbi Michael Abraham] Exactly. She married without permission. If she married without permission, then the presumption did not change. She still has the presumption of being married to the first husband, and therefore it was forbidden for her, and she still has the presumption of being married to the first husband, so she must leave. Okay? That’s Rabbi Menachem bar Yosi. What does the first tanna hold? The first tanna holds that initially she may not remarry. Why? Either because it’s a doubt—I don’t know. After all, concerning Rabbi Menachem bar Yosi we learned that two against two is a rabbinic-level doubt. Right? According to the first tanna, let’s do the calculation and see. The first tanna says that at the beginning, if she asks us whether to remarry when there is two against two—if…
[Speaker B] …she asks…
[Rabbi Michael Abraham] …us whether to remarry, then we have a case of two against two and the first tanna says she may not remarry. Here we could hesitate. Is it that she may not remarry because two against two is a rabbinic-level doubt and there is a presumption that she is married to the first husband, or because two against two is a Torah-level doubt but from the general laws of doubt? So let’s see in light of the first tanna’s other rulings. The first tanna says that if she went and married anyway—and he does not distinguish whether it was after the witnesses or before the witnesses—if she married anyway, then she need not leave. Why need she not leave? If two against two were a rabbinic-level doubt like Rabbi Menachem bar Yosi says, then she has the presumption of being married to the first husband. She didn’t even marry permissibly in one case. So how can it be that she need not leave? She’s simply a married woman; she’s committing adultery. She must leave. So what do we have to say? That according to the first tanna, two against two is a Torah-level doubt. Right? And then the fact that initially, when she asked at the beginning, we said to her, “Do not remarry”—that is apparently only out of doubt. But if she already went and married, then we don’t tell her to leave. Why don’t we tell her to leave? I don’t know—perhaps doubt does not displace a certainty, or something of that sort, and therefore we don’t tell her to leave. Okay? It is still a comment—why don’t we tell her to leave? After all, there is a doubt involving a Torah prohibition here. But that is how it seems from the calculation. Now the Pnei Yehoshua says—
[Speaker C] But what does he say? He says that even so, she would still be liable for a provisional guilt-offering.
[Rabbi Michael Abraham] Wait, wait, wait, we haven’t gotten to the provisional guilt-offering yet. Slowly. Now the Pnei Yehoshua continues and says this: “Although I had difficulty”—up to here, this is the Pnei Yehoshua’s explanation, that it basically seems that the dispute is over whether two against two is a rabbinic-level doubt or a Torah-level doubt. Right? Now he says: “Although I had difficulty with the passage in Bava Batra, where it seems there that Rabbi Menachem bar Yosi’s reason is because of disrespect to the religious court, and I struggled with this at length.” What does that mean? This is a different explanation. This explanation says that Rabbi Menachem bar Yosi’s distinction is rabbinic. It is not a Torah-level distinction like the first explanation. And this rabbinic distinction basically says that in truth she could have remained with the second husband. Even Rabbi Menachem bar Yosi agrees that if she remarried, she need not leave. In short: according to both him and the first tanna, two against two is a Torah-level doubt. So why, if she remarried after the witnesses had already come, do we require her to leave? So that she should not make a mockery of the religious court. If the court told her not to remarry and she nevertheless transgressed that, then they penalized her and made her leave because of contempt for the religious court, so that there should not be disrespect for the religious court’s rulings. But that is a rabbinic enactment. It’s not the essential law. So above he said this was Torah law, and here he says no—it’s a rabbinic enactment. And that is what he writes: “Indeed, Rashbam and Tosafot explain there that the reason is contempt for the religious court.” In fact, Rashbam and Tosafot there in Bava Batra explain differently from what the Pnei Yehoshua suggested here. They claim that it is only a rabbinic law, but on the Torah level there is no dispute between Rabbi Menachem bar Yosi and the first tanna. According to both of them, two against two is a Torah-level doubt. Okay? And he notes that Rashbam’s words are a bit difficult. Then the Pnei Yehoshua rejects that approach because of the conclusion of the passage in Bava Batra, without going into all the details there. Therefore, in conclusion, he argues that Rabbi Menachem bar Yosi’s law is a Torah-level law and not a rabbinic penalty. Okay? That’s his claim. Why exactly? So in the end, according to the Pnei Yehoshua, basically everything is understood. The dispute is on the Torah level. According to Rashbam and Tosafot in Bava Batra, the dispute is on the rabbinic level. According to the approach that the dispute is on the Torah level, the first tanna holds that two against two is a Torah-level doubt, and Rabbi Menachem bar Yosi holds that two against two is a rabbinic-level doubt. We understood everything there except for one point. Why according to the first tanna, if she remarried, need she not leave? There is still a Torah-level doubt here even if we don’t follow presumptions. There is a Torah-level doubt here, and apparently we should have required her to leave. So if you saw Tosafot, Tosafot explained that there is a presumption that a woman investigates carefully before remarrying. That is apparently what solves the problem. What does that mean? We know this from the laws of agunot—yes, exactly. That if a woman remarries, if a single woman comes and says, “My husband died,” she is believed. We allow her to remarry even though no matter of sexual prohibition is established by fewer than two witnesses. Why? One of the reasons—and there is a dispute among the medieval authorities (Rishonim) there, and a lot of complexity—but one of the reasons there is because of the presumption that she investigates carefully before remarrying. A woman does not want to find herself in a situation where she remarries after saying that her husband died, and then her husband shows up here—if he didn’t really die. And then what happens?
[Speaker C] And then what happens?
[Rabbi Michael Abraham] She becomes forbidden to both men—to the first husband and also to the second—and she finds herself bald on this side and on that side, left with nothing either way. Because a woman is afraid of getting herself into that kind of situation, she will check very, very carefully before saying that her husband died and deciding to remarry on that basis. And since she goes and takes action and remarries, the presumption is that she probably checked carefully, because she isn’t going to get herself entangled. And that presumption allows us to believe her. Therefore, if she remarried, Tosafot says, she need not leave. Because there is the presumption that she investigates carefully before remarrying. Meaning, in principle she should have had to leave, because two against two is a Torah-level doubt, and out of doubt we should have ruled stringently. But there is this presumption that she investigates carefully before remarrying, which basically decides the matter. And we’ll still get to how that can be, because after all, there is two against two here—how can evidence decide a two-against-two doubt? Okay? That’s Rabbi Shimon Shkop and everything we’ll get to later. The Talmud asks—so let’s return to the Talmud. Up to now I gave only two possibilities for explaining the dispute between the tanna’im. I’m now returning to the Talmud. The dispute between the tanna’im is about what happens if she remarried and did so after the prohibiting witnesses had already come. Okay? So the first tanna says she need not leave, and Rabbi Menachem bar Yosi says she must leave. Since this is a case of two against two, one who has relations with her stands liable for a provisional guilt-offering, asks the Talmud. After all, it is two against two. One who has relations with her is liable for a provisional guilt-offering. Fine, so what? And therefore what? So how can it be that she need not leave? After all, the husband to whom she is now married—every act of intercourse he has with her would essentially make him liable for a provisional guilt-offering. There is a doubtful situation here, so how can it be that she need not leave? Okay? Rav Sheshet said: For example, where she married one of her own witnesses. If we’re talking about a case where she married one of the witnesses who say that her husband died, then he has no doubt. The religious court is in doubt, because before the court appeared two sets of witnesses: one set says her husband died, the other set says her husband did not die, so the court doesn’t know what to do, it is in doubt. But the witnesses themselves, who saw the husband die, do not need to be in doubt—they know the truth. They know that the second set is lying. The religious court cannot know that, but the witnesses know. So if he married that woman, then fine—there’s no problem at all. The Talmud asks: She herself stands liable for a provisional guilt-offering! Very nice that he knows the husband died, but she herself doesn’t know. After all, before her there are two witnesses who say the husband died and two witnesses who say the husband did not die. So what about her? How can it be that she need not leave? I can’t hear.
[Speaker C] She also knows with certainty.
[Rabbi Michael Abraham] Yes—where she says, “I am certain.” What does it mean, “I am certain”? Either she believes the witnesses, or perhaps she herself also knows, whatever the case may be. And therefore there is no problem either from her side or from the husband’s side. The husband is one of the witnesses. Therefore there is no problem: there is two against two, and nevertheless she need not leave. Now, regarding the provisional guilt-offering, a brief introduction—I gave this to you. The law of a provisional guilt-offering basically applies to offenses such that, if I committed the offense definitely, a definite offense, I would be liable for a sin-offering.
[Speaker C] If it was inadvertent.
[Rabbi Michael Abraham] If I committed a definite offense, I’m liable for a sin-offering if it was inadvertent. The offense is definite, I acted inadvertently, I’m liable for a sin-offering. If I committed a doubtful offense inadvertently, then I’m liable for a provisional guilt-offering. Because for a sin-offering, it has to be “his sin becomes known to him”—he has to know that he sinned. Meaning, when he brings the sin-offering, he must know that the meat he ate by mistake—at the time of eating, he didn’t know. Fine? At the time of eating he thought it was kosher meat. Later it became clear to him that it was pork. Then he brings a sin-offering. He is not intentional, because at the time of eating he did not know, but now, when he brings the offering, he already knows that he sinned. But in a case where it is doubtful whether it was pork or kosher meat, then even after it became known to him that there is doubt, he still does not know that there was an inadvertent sin, because maybe it was kosher meat. He is in doubt. In such a case he brings a provisional guilt-offering. Later, when it becomes clear to him—if it becomes clear to him that it really was pork—he comes back and brings a sin-offering. Okay? That is the law of the provisional guilt-offering. The Talmud—the source of these matters—is in tractate Keritot, and there the Mishnah at the beginning, on page 17, says as follows: If one is uncertain whether he ate forbidden fat or uncertain whether he did not eat; and even if he ate, uncertain whether there was the required measure and uncertain whether there was not; and then many other cases are brought that I didn’t include here—he brings a provisional guilt-offering. He is obligated to bring a provisional guilt-offering. Meaning, we’re talking here about a situation where eating forbidden fat is something for which one is liable to bring a sin-offering if done inadvertently, and I ate something where I don’t know whether it was forbidden fat or not—uncertain whether I ate, uncertain whether I did not; uncertain whether it was forbidden fat, uncertain whether it wasn’t; uncertain whether it had the minimum measure, uncertain whether it didn’t. In all these cases there is doubt concerning a prohibition for which one is explicitly liable for a sin-offering. If I ate such a thing inadvertently, I am liable for a provisional guilt-offering. On that the Talmud asks as follows: It was stated: Rav Asi said, “We learned this regarding one piece”—a case where it is uncertain whether it is forbidden fat or permitted fat. Chiyya bar Rav said: “We learned it regarding one piece out of two pieces.” There is a dispute among the amoraim regarding liability for a provisional guilt-offering. According to Rav Asi, the obligation of a provisional guilt-offering exists in every kind of doubt, as long as the doubt concerns a prohibition for which one would ordinarily be liable for a sin-offering. So if I did it in doubt—if it is a doubtful prohibition—then I am liable for a provisional guilt-offering, and it doesn’t matter what type of doubt it is. That’s what he means by one piece or two pieces. Chiyya bar Rav says no, not every doubt. For example, if there is one piece before me and I don’t know whether it is forbidden fat or permitted fat—forbidden fat is prohibited to eat, permitted fat is allowed—so I have a doubt. If I ate it, and then it became known to me that there had been a piece that might have been forbidden fat and might have been permitted fat, I do not bring a provisional guilt-offering. Why? Because this is a doubt involving one piece. A piece that I don’t know whether it is forbidden fat or permitted fat. When do we bring a provisional guilt-offering? If there are two pieces lying before me and I thought both were permitted. Fine? I ate one of them. Afterward it became known to me that one was forbidden fat and one was permitted fat. Okay? Now I still don’t know which of them I ate. That I do not know.
[Speaker C] Since there definitely was a prohibition here.
[Rabbi Michael Abraham] So wait. So since there is one piece out of two pieces here—when the doubt is one piece out of two pieces, that is the case where one brings a provisional guilt-offering, not in a doubt involving one piece. Meaning, if there is one piece before me and I don’t know whether it is forbidden fat or permitted fat, and I ate it, I do not bring a provisional guilt-offering. If there are two pieces before me and I know for certain that one is forbidden fat and one is permitted fat, only I don’t know which is which, and I ate one of them—not knowing whether I ate the forbidden-fat one or the permitted-fat one—that is when I bring a provisional guilt-offering. Okay? That is what Chiyya bar Rav claims. By the way, in practical Jewish law we rule like him. A provisional guilt-offering is brought only for one piece out of two pieces.
[Speaker D] What’s the logic of that? I still haven’t managed to understand.
[Rabbi Michael Abraham] In a moment we’ll see.
[Speaker D] So—
[Rabbi Michael Abraham] At first the Talmud says: What is their dispute about? Rav Asi holds: interpretation follows the written form; it is written “commandments,” and the verse says, “or if he did one of all the commandments of the Lord… and is guilty.” Yes, and that is what one brings a provisional guilt-offering for. What does “commandments of the Lord” mean? Why plural? That apparently means two pieces. Fine? So Chiyya bar Rav says that interpretation follows the reading; we read it as “commandments,” and therefore one needs one piece out of two pieces in order to become liable for a provisional guilt-offering. Like a plural expression.
[Speaker D] So it’s basically a scriptural decree?
[Rabbi Michael Abraham] Yes, yes. Rav Asi holds that interpretation follows the written form, how it is written and not how it is read. What determines the law is how it is written, and it’s written with one vav. It’s written in the form “mitzvot.” Fine? And therefore it applies even to only one piece. So that’s the dispute.
[Speaker C] Meaning, it’s a scriptural decree? What? Is it a scriptural decree?
[Rabbi Michael Abraham] “Scriptural decree” is a different question, but there is a source for it from this verse. The dispute is over whether interpretation follows the reading or the written form. “Scriptural decree” already carries the connotation that there’s no reason for it. That I don’t know. But this is the source. Fine, the dispute is in relation to this source. Rav Huna raised an objection to Rav Asi, and some say it was Rav Chiyya bar Rav to Rav Asi: “Forbidden fat and permitted fat were before him, and he ate one of them.” After all, later in the Mishnah it says: “Forbidden fat and permitted fat were before him, and he ate one of them.” And on that—yes, and on that the Mishnah later speaks. The Talmud asks: Doesn’t it follow that just as in the latter clause it is two pieces, so too in the earlier clause it is also two pieces? In the latter clause it says explicitly that we are talking about two pieces, one forbidden fat and one permitted fat, so maybe in the earlier clause too—“uncertain whether he ate forbidden fat, uncertain whether he did not eat forbidden fat”—maybe that too is talking about two pieces, like the continuation of the Mishnah. Then it follows that only in a case of two pieces is one liable for a provisional guilt-offering, and that is difficult for Rav Asi. Rav Asi answers—
[Speaker C] He said to them, Rav…
[Rabbi Michael Abraham] He said to them, Rav: Don’t reverse it, because he could answer you—that Rav Asi could answer you—that the latter clause is talking about two pieces, while the earlier clause is talking about one piece. Yes, but the question is: if one is liable in a case of one piece, then is it even necessary to say that one is liable in a case of two pieces? Obviously one is liable for one piece, so why do we need two parts in the Mishnah? So the Talmud says: this, and needless to say this. Fine? And according to Chiyya bar Rav, who says that just as the latter clause is talking about two pieces, so too the earlier clause is also talking about two pieces, why do I need the Mishnah to teach it twice? It is explanatory. “If one is uncertain whether he ate forbidden fat, uncertain whether he did not eat forbidden fat, he brings a provisional guilt-offering”—how so? For example, where forbidden fat and permitted fat were before him. Meaning, only in a case of two pieces. Okay? Now Rav Yehuda said in the name of Rav: If there were before him two pieces, one of permitted fat and one of forbidden fat, and he ate one of them and does not know which of them he ate, he is liable. If there was one piece that might have been permitted fat and might have been forbidden fat, and he ate it, he is exempt. Rava said: What is Rav’s reason? Apparently the son was named after the uncle. The Talmud in Sanhedrin says, “My cousin went down to Babylonia” when Rav went down to Babylonia, yes, so Chiyya—Rabbi Chiyya says to Rabbi: “My cousin went down to Babylonia.” So apparently he had a son who was named after his uncle. So Rava said: What is Rav’s reason? Because the verse says: “Or if he did one of all the commandments of the Lord inadvertently”—until he errs in two, because it is written in the plural and read in the plural. Like we saw above. Fine? So that is indeed the conclusion. Rav Chiyya said in the name of Rav—I’m now continuing to read the second section—Rav Chiyya said in the name of Rav: If there were before him two pieces, one of forbidden fat and one of permitted fat, and he ate one of them and does not know which of them he ate, he is liable. If there was one piece that might have been permitted fat and might have been forbidden fat, and he ate it, he is exempt. Rav Zeira said: What is Rav’s reason? Above it said Rava asked, “What is Rav’s reason?” and answered with a verse, right? Here he asks, “What is Rav’s reason?” and answers with logic. He holds that with two pieces one can clarify the prohibition, but with one piece one cannot clarify the prohibition. That’s logic. What does that mean? If there is one piece before me that might be forbidden fat and might be permitted fat, and I ate it—would there be any way afterward for me to clarify? Wait, there’s noise.
[Speaker C] Yes, I’ll try—I think maybe it’s our speaker?
[Rabbi Michael Abraham] Yes, I don’t know, I don’t think it’s that. I think it’s from Yael.
[Speaker C] Now you’re fine.
[Rabbi Michael Abraham] Okay, I think I tried to mute and that made it stop. It’s not clear to me, there’s some kind of noise there. I think—let’s try. In any case, either not, or Yael’s speaker was open and that’s what caused the feedback to me; maybe that’s why. Okay, in any case, one says “what is the reason?” and brings a verse, one says “what is the reason?” and brings a logical argument. What is the argument? The point is this: if there is one piece in front of me and I don’t know whether it is forbidden fat or permitted fat, and I ate it— is there any chance that afterward I’ll be able to find out the truth of what I ate?
[Speaker C] Today there’s a chance, but back then there wasn’t.
[Rabbi Michael Abraham] Okay, there’s no way to know. The piece is no longer in the world; there’s no way to know. By contrast, if there are two pieces in front of me, one forbidden fat and one permitted fat, and I ate one of them, witnesses might come regarding the second piece and show me that the second piece was forbidden fat, and it will follow that I ate permitted fat—or the reverse. So that’s a situation where, even after eating, I can clarify what exactly I ate. Okay? Therefore he says that in the case of one piece, where it cannot be clarified, there is no point in bringing a provisional guilt-offering. Because a provisional guilt-offering basically holds me over until I come to bring the sin-offering. After it becomes clear to me, I bring the sin-offering. Here it can never become clear. By contrast, with one piece out of two pieces, I bring a provisional guilt-offering to tide me over in the meantime, and when it becomes clear that I owe a sin-offering, then I’ll bring the sin-offering. So the provisional guilt-offering comes to bridge the time until the bringing of the sin-offering. Okay?
[Speaker B] And after a provisional guilt-offering, does a sin-offering always come?
[Rabbi Michael Abraham] If it becomes clear that I really sinned. It could turn out that I ate permitted fat, and then no.
[Speaker B] But my question is this: is a provisional guilt-offering always in a situation where I can clarify it, as Rav Zeira says?
[Rabbi Michael Abraham] That’s what Rav Zeira says—what do you mean? That’s exactly what Rav Zeira says. Why is there a liability for a provisional guilt-offering only in the case of one piece out of two pieces? Because only with one piece out of two pieces can you clarify it, and a provisional guilt-offering exists only in a case that can be clarified. What’s the idea behind that? That a provisional guilt-offering basically comes to bridge the gap in time between the stage of the sin and the stage at which I bring a sin-offering once it becomes clear to me that I actually sinned. Okay? Now in the interim I’m afraid, because who knows—the sin-offering doesn’t protect me. Again there’s noise here.
[Speaker D] Yes, I opened it, I just have a question.
[Rabbi Michael Abraham] Okay, what’s the question?
[Speaker D] Sure.
[Speaker B] Is it possible to bring only a sin-offering from the outset?
[Rabbi Michael Abraham] No, you can’t bring a sin-offering. You bring a provisional guilt-offering because I don’t know. I can’t bring a sin-offering; that would be an unconsecrated animal in the Temple courtyard. Maybe I ate permitted fat and not forbidden fat? I can bring a sin-offering only after it becomes clear that I ate forbidden fat. And precisely because of that, until it becomes clear that I ate forbidden fat and I bring the sin-offering, what protects me from the punishment, the transgression, the impurity that the transgression brings—whatever it is? The provisional guilt-offering protects me. In the meantime I bring a provisional guilt-offering, and when it becomes clear to me that I ate forbidden fat, I’ll bring the sin-offering. But if that’s so, then a provisional guilt-offering is brought only in situations that can later become clarified as requiring a sin-offering. But something that cannot become clarified—
[Speaker E] Clearly there are other opinions that discuss a provisional guilt-offering there; they bring examples of rabbis who would bring one.
[Rabbi Michael Abraham] Yes, so they apparently hold that even in an ordinary doubt one brings a provisional guilt-offering. But right now we’re talking about Chiyya bar Rav. Chiyya bar Rav has
[Speaker E] a unique opinion.
[Rabbi Michael Abraham] Yes. And by the way, the Jewish law follows him. Okay, so that is Rav Zeira’s reason. The Talmud asks: what practical difference is there between Rava’s reason and Rav Zeira’s reason? Now to me that’s a strange question. I don’t have a good answer, because I’ve already told you more than once that somehow, both in the Talmud and afterward among the medieval authorities (Rishonim), the later authorities (Acharonim), down to our own day, the feeling is that if someone brings a source from a verse, then apparently there is no reason for it—it’s a scriptural decree. I, for my part, wouldn’t think at all that there is a dispute between Rav Zeira and Rava. Rava brings the source, which is that we follow the written form; and Rav Zeira explains the reasoning—why does that source say that you need one piece out of two pieces? Because there has to be a possibility of clarification. That’s all.
[Speaker C] But according to Rabbi Zeira it’s clear that if there is one piece you won’t need it, and according to Rava?
[Rabbi Michael Abraham] No, according to Rava too. Everybody agrees. After all, Rava says: it says “commandments”; we follow the written form and not the tradition of pronunciation, and read it as “commandments,” therefore only in the case of one piece out of two pieces is there liability for a provisional guilt-offering. On the law itself they both agree.
[Speaker C] But it seems that Rabbi—or Rav—holds that in two pieces, according to Rabbi Zeira, it’s only because there you can clarify it.
[Rabbi Michael Abraham] So what?
[Speaker C] So therefore he says that with one piece it’s not because of the pronunciation but because it can’t be clarified.
[Rabbi Michael Abraham] I’m asking why you present this as a dispute. I’m claiming there is no dispute here at all. Because we follow the written form, I learned that two pieces are required. Now I ask myself: okay, but why does the Torah say that two pieces are required? Because with two pieces you can clarify it. That’s the explanation for the law that emerges from Rava’s verse. One suggests a source and one suggests an explanation. Why should a source necessarily mean a dispute with someone who suggests an explanation? The explanation merely explains what the source says. The Talmud here assumes that if someone brings a source, then apparently he doesn’t hold by the explanation; it’s a source, it’s a scriptural decree. Okay, so I’m just making that comment—I don’t know how to answer it.
[Speaker E] Or if there’s a practical difference between the two explanations—say, there’s another case.
[Rabbi Michael Abraham] But there can’t be a practical difference. There can’t be a practical difference.
[Speaker E] If there are pieces but for some reason it’s impossible to clarify.
[Rabbi Michael Abraham] Doesn’t matter. Then according to both opinions you wouldn’t have to bring a provisional guilt-offering.
[Speaker E] It could be that the one who relies on the written form would say there’s some other reason here.
[Rabbi Michael Abraham] Again—why could that be? Why could that be? Because you assume that if it comes from the written form then he presumably doesn’t go with Rav Zeira’s reason. But that itself is what I’m asking—where do you get that from? If Rav Zeira gives a reason and he gives a source, why not assume that the reason for that source is Rav Zeira’s reason? Then there would be no practical difference at all.
[Speaker E] Yes, but there could be another reason too.
[Rabbi Michael Abraham] Then bring the reason. If there is another reason, then bring it. He doesn’t bring the reason; he brings a verse. So if you bring a source and the Talmud brings only one reason—it doesn’t bring another reason—then why assume that this reason is not the reason for the source? I don’t know.
[Speaker B] But they assume that a source is indeed a scriptural decree without a reason.
[Rabbi Michael Abraham] Yes, that is apparently how the Talmud is assuming here.
[Speaker C] What would Rabbi Zeira say in a case where there are two pieces and it cannot be clarified?
[Rabbi Michael Abraham] He would say that one does not bring a provisional guilt-offering. So that’s the difference between—
[Speaker C] No,
[Rabbi Michael Abraham] That’s not a difference; Rava would say that too. If indeed Rava’s reason is Rav Zeira’s reason, then Rava would say that too. All right? Fine. In any case, the Talmud still assumes there is a dispute here. And then the Talmud says: what practical difference is there between Rava’s reason and Rav Zeira’s reason? I’m reading the end of the second paragraph. What practical difference is there between Rava’s reason and Rav Zeira’s reason? The difference between them is a piece and a half’s worth. According to Rava, there are no “commandments,” and he is exempt. There aren’t two prohibitions here; there’s a prohibition and a half. So you can’t speak of it in the plural, and therefore in such a case one does not bring a provisional guilt-offering. According to Rav Zeira, you can clarify the prohibition. Once you can clarify the prohibition, you do bring a provisional guilt-offering. So that is the practical difference. The Talmud assumes there is a practical difference here. Afterward I brought you another passage in the Talmud later on, on page 18; that’s on the next page. The Talmud says: Rav Nachman said that Rabbah bar Avuha said that Rav said—again in the name of Rav, notice—if there were two pieces before him, one of forbidden fat and one of permitted fat, and he ate one of them and does not know which one he ate, he is liable. If there was one piece that was in doubt whether it was forbidden fat or permitted fat, and he ate it, he is exempt. Rav Nachman said—a third opinion—what is Rav’s reason? Why do we really need specifically one piece out of two pieces? He holds that with two pieces the prohibition has been fixed in place; with one piece the prohibition has not been fixed in place. All right? That is to say, the reason is that the doubt in the case of one piece out of two pieces is a more severe doubt, because there is a fixed prohibition in the situation. With one piece there is no fixed prohibition in the situation, and therefore the doubt is lighter. That’s the claim. Now here too he understands the reasoning as logical argument. He certainly disputes Rav Zeira. About Rava I say I don’t know, because Rava brings a verse. But Rav Zeira and Rav Nachman clearly disagree with each other because they both bring logical arguments, and different ones. Rav Zeira claims it’s not a difference in the severity of the doubt. Two pieces does not mean that the doubt is more severe than one piece. Rather, here you can clarify and here you can’t. Rav Nachman claims no: the doubt of two pieces is simply a more severe doubt, and therefore they bring a provisional guilt-offering there. And in the case of one piece the doubt is less severe. Why is the doubt of two pieces more severe?
[Speaker C] Because it’s clear there is a prohibition.
[Rabbi Michael Abraham] Right, because there is a fixed prohibition in the mixture. If two pieces are lying in front of me, one forbidden fat and one permitted fat, then first of all it is clear that there is forbidden fat here. It’s not certain that that’s what I ate, but it is certainly present in this situation. Therefore there are really grounds for the doubt. The doubt is not just some doubt pulled out of thin air. It is a doubt with a solid basis. I really must doubt, and if I transgressed here, that is a serious transgression. By contrast, if I have one piece and I don’t know what it is, it may be forbidden fat and it may be permitted fat. I have no positive side of the doubt that gives me reason to suspect that it is a piece of forbidden fat; rather, since I don’t know, it may be forbidden fat and it may be permitted fat. So here I say, fine, then I don’t particularly suspect it. Here the obligation to doubt is lighter, because you have no positive reason why to doubt. Once—in the summary you’ll see—I referred to two columns I wrote on my site that deal with statistical evidence in law. There is a well-known puzzle in the law of evidence in the legal world. Many philosophers, mathematicians, and jurists have dealt with it. I’ll give you an example. Suppose there was a riot; there are a hundred prisoners in a prison. And there was a guard supervising them there in the yard during the break. Now ninety-nine out of the hundred prisoners attacked him. They beat him up, okay? Now they put the prisoners on trial for what they did. There is one prisoner out of the hundred who did not participate, and we do not know who he is. Okay? Now each prisoner claims: I was that one who did not participate. Okay? Now what is the chance that he did not participate? One percent. Ninety-nine percent that it wasn’t him—that he did participate. Okay? In such a situation it is accepted in all legal systems, as far as I have read at least, that no one is punished. Wow. Every one of them has the right to say: go prove that I wasn’t the one prisoner who didn’t participate.
[Speaker D] What about the story of Lot? Lot? There? Sodom. There? Why? That’s what he says to him—if there is only one, if there is only this… fifty people.
[Rabbi Michael Abraham] There’s some similarity, okay. Fine. Now let me give you another situation. The prisoners attacked, and they put them on trial. Now two witnesses come and say: this prisoner took part in the riot. Now the chance that two witnesses are mistaken is one percent. After all, there is a chance witnesses make mistakes, right? They’re all dressed in prison uniforms, so who knows, maybe they got confused—but that’s what they say. What is the chance that two witnesses are mistaken? Let’s say for the sake of discussion, one percent, okay? Ninety-nine percent that they are right. In such a situation, it is accepted in all legal systems that he is convicted. Now the probability of conviction is ninety-nine percent in both situations. The difference is not statistical. So why here is he convicted and there he is not? Likewise, for example, there is a bus in a city—these are examples discussed in philosophical articles. There is a bus that caused an accident in the city. It hit a person or a car, whatever. Now there are two bus companies in that city. A red company that has ninety percent of the buses, and a blue company that has ten percent of the buses. Okay? Now we don’t know which bus hit that car. Now the person comes and says: look, ninety percent of the buses belong to the red company, so I’m suing the red company to pay me. Presumably it was their bus. Will he win the case? The answer is no. He will not win the case. Because they can say: not at all. True, ninety percent of the buses are ours, but our drivers are careful. Go to the blue company; maybe it was them. The burden of proof is on the claimant. Now two witnesses come and say that the bus was red. But there is a ten percent chance they are mistaken. They saw it from far away—who knows, maybe they didn’t see well whether it was red or blue. Let’s say for the sake of discussion that their reliability is ninety percent. It was night. Here they convict; here they do convict. What’s the difference? In both cases it’s ninety percent likelihood of being right, ten percent that maybe you’re mistaken. Why here do they convict and there they don’t?
[Speaker G] It’s a little like two against two about the case or about the witnesses, no? Why?
[Rabbi Michael Abraham] It’s like—
[Speaker G] two against two about the case or about the witnesses. Meaning, if the statistics are about the testimony or about the case itself. If it’s about the case itself then apparently it’s stronger, and if it’s about the witnesses—
[Rabbi Michael Abraham] Yes, but there that’s not the difference; there that’s not the difference, whether the statistics are about the witnesses or the case. The claim is that about the witnesses there are no statistics.
[Speaker C] In the first case there is uncertainty—the doubt is because of our own uncertainty. But in the second case, where there are witnesses, there is an element of certainty here.
[Rabbi Michael Abraham] Fine. There are several formulations for this, and I also suggested several formulations there on my site.
[Speaker E] Without accepting testimony in such a case, we wouldn’t be able to accept testimony at all.
[Rabbi Michael Abraham] Fine. In the prisoners’ case—if I go by the statistical evidence, meaning that ninety-nine out of a hundred prisoners participated in the riot, and now a prisoner stands before me for trial, and I say: there’s a ninety-nine percent chance you’re guilty, therefore I convict you—then first of all I will necessarily convict one innocent person, right? According to that logic? Because every one who comes before me will have exactly the same consideration applied to him, and in the end one innocent person will definitely go to prison, right? There are people who claim that this is something we do not do. By contrast, with witnesses—when the witnesses testify about a particular person and there is a ninety-nine percent chance they are right and a one percent chance they are wrong—it is not necessary that an innocent person will go to prison. There is a one percent chance they are mistaken, but there is no certainty here that an innocent person will go to prison. The chance that they are right is the same chance. The difference is not statistical. It is some other difference. But this can be formulated a bit differently, look. If I speak in terms of the statistics, after all there is one prisoner here who did not participate. The prohibition has been fixed in place. And the possibility that a certain prisoner did not participate exists in the situation, because there is one prisoner who did not participate. That is different from looking at one prisoner and not knowing whether he participated or not. I don’t know at all whether there are prisoners who did not participate. But there is a chance that he did not participate. That is exactly the state of a prohibition not fixed in place, of one piece. Do you understand? It is exactly the same distinction, in my opinion. And therefore here suddenly we see—and this is interesting, because I talked about this there in those columns—that in Jewish law we are somewhat used to distinctions of this kind, but it is surprising to see distinctions of this kind in the legal world. Because in the legal world, apparently what matters to you is the truth; you don’t have metaphysical and other constructions. After all, the truth is what matters, and from the standpoint of truth the statistics are ninety-nine percent in both cases, so why should I care how that ninety-nine percent was produced? What difference does it make? Yet you see that people have some intuition that is not a statistical intuition; it is a legal intuition, that on the legal level, even though there is ninety-nine percent here, if the possibility that I am mistaken stands before me in the situation—that is prohibition fixed in place—I cannot help but take it into account. I cannot help but take it into account. By contrast, if it is only a hypothetical possibility—it could be that he did not participate in the riot; I have no datum that there was a prisoner who did not participate, but it could be that the witnesses are mistaken and maybe this prisoner did not participate—I have no positive reason to doubt the testimony, and therefore I do not doubt the testimony, even though I know statistically that one percent out of a hundred witnesses make mistakes in general—not in this particular case, but in general. But I don’t have a prohibition in the situation; I don’t have a reason to doubt that is found within the situation, and that is considered a weaker doubt even in the legal world. So I think that is also the meaning of the Talmud here.
[Speaker E] So in that style, earlier when Rav explained, I also wanted to ask: isn’t there any situation where there is some statistical weight here at all? For example, I could say that the chance that a single piece could be forbidden fat is higher?
[Rabbi Michael Abraham] No, then there would be a majority. Then there would be a majority and we follow the majority; no problem, like a piece of meat.
[Speaker E] Here we were talking about two pieces, one against one.
[Rabbi Michael Abraham] No, I’m saying that with one piece too we are talking about a case where the doubt is evenly balanced. Say there are fifty percent non-kosher shops and fifty percent kosher shops in the city.
[Speaker E] Yes, but with forbidden fat we’re assuming that we don’t know what the likelihood is that it’s—
[Rabbi Michael Abraham] No, we do know. When we talk about doubt, it is always where the two sides are balanced. If I have data showing that one side is stronger than the other, that is not called a state of doubt.
[Speaker E] So with one piece we’re talking about an evenly balanced doubt.
[Rabbi Michael Abraham] An evenly balanced doubt, right. Because if it isn’t an evenly balanced doubt, then you follow the majority. The rest is like a dinosaur.
[Speaker E] The chance I’ll meet a dinosaur if I leave the house? Exactly.
[Rabbi Michael Abraham] Yes. Our assumption here is that the doubt is evenly balanced. There are of course sometimes situations where we know nothing at all, and when we know nothing we always assume equal probability for every possibility, out of lack of knowledge, not because of knowledge. And there too it is an evenly balanced doubt of fifty percent. Fine. But when we have information favoring one side, that is called a majority, not a doubt. Okay, let’s continue for a moment. The Talmud asks here: what practical difference is there between prohibition fixed in place and inability to clarify the prohibition? Yes—between Rav Zeira and Rav Nachman. The difference between them is, for example, where there were two pieces before him, one of forbidden fat and one of permitted fat, and then a gentile came and ate the first one, and then a Jew came and ate the second one. What happens here? There were two pieces here, but it is impossible to clarify. It is impossible to clarify because both were eaten.
[Speaker C] But from the beginning of the situation, the prohibition had already been fixed in place.
[Rabbi Michael Abraham] No, it hadn’t. When I ate, it hadn’t.
[Speaker C] But from the beginning of the situation, even before the gentile ate, when the two pieces were lying there? So then the prohibition was already fixed in place.
[Rabbi Michael Abraham] Obviously the prohibition had been fixed in place, but it can’t be clarified. It can’t be clarified. Why did they say that the gentile ate first?
[Speaker E] What practical difference does that make?
[Rabbi Michael Abraham] It does make a practical difference. Why did they say that the gentile ate first and not the Jew? What happens if the Jew ate first?
[Speaker C] If the Jew is first then what difference does it make? It’s the same as if he ate alone. I didn’t understand. If the Jew is first then there’s no problem, because it’s like the previous situation where there were two pieces and he didn’t know what he ate.
[Rabbi Michael Abraham] Why? But then the gentile ate the second one and it can’t be clarified.
[Speaker C] So according to Rav Zeira?
[Rabbi Michael Abraham] So I’m asking—would that also be a practical difference? If that too would be a practical difference, then why do they say that the gentile ate the first and the Jew the second? The Talmud also says later: according to Rava there are no “commandments” at the time when the Jew ate; according to Rav Zeira, it is impossible to clarify the prohibition; according to Rav Nachman… wait… but according to Rav Nachman the prohibition had been fixed in place. According to Rava there are no “commandments” at the time when the Jew ate; according to Rav Zeira—
[Speaker C] It is impossible to clarify the prohibition; according to Rav Nachman the prohibition had been fixed in place.
[Rabbi Michael Abraham] Correct. Still. Meaning, he makes it depend on the order. According to Rav Nachman he would be liable, and according to the other two—when the gentile ate first. But if the Jew ate first, then according to everyone he would be liable. Why? Because clarification was possible too. It was possible to clarify from the second piece. Two minutes later the gentile ate it—fine, but I already incurred liability for a provisional guilt-offering in the first second. In the first second it could have been clarified. So I had already become liable for a provisional guilt-offering. After that the gentile came and ate it. Fine, but my liability had already taken effect. Therefore the gentile has to eat first. Tosafot there on the spot writes this in Keritot: Rav Yehuda said that Rav said, in the case of one piece he is exempt. And if you say—that we say in the second chapter of Ketubot, yes, we return to our topic—regarding “two say he died and two say he did not die,” and on that it asks: one who has relations with her would stand liable for a provisional guilt-offering? And why does it ask that? We require “commandments,” meaning two pieces. Our case is one piece, not two pieces. So according to Rav and Chiyya bar Rav and all the Amoraim according to Rav, who require one piece out of two pieces in order to be liable for a provisional guilt-offering, how can our Talmud call such a situation one in which a provisional guilt-offering is incurred? That’s not right. It’s one piece. This woman is simply in doubt whether she is married or not married to the first husband, that’s all. So this is one piece and not two pieces. Why call it a provisional guilt-offering?
[Speaker C] But the original presumption that she was a married woman? I didn’t understand.
[Rabbi Michael Abraham] The original presumption that she had?
[Speaker C] No, before presumptions. I’m asking why this is a provisional guilt-offering. Why is it a provisional guilt-offering? There aren’t two pieces here; there’s one piece. One piece of prohibition. Right. So?
[Rabbi Michael Abraham] So why is there a provisional guilt-offering here?
[Speaker C] Because according to Rav Nachman, even if there is only one piece, if the prohibition was fixed in place then one is liable.
[Rabbi Michael Abraham] No, what do you mean? What does “liable” mean?
[Speaker B] But here we have two witnesses saying it is permitted and two witnesses saying it is prohibited.
[Rabbi Michael Abraham] And therefore what? So it’s a doubt. But it’s a doubt about one piece.
[Speaker B] It’s like two pieces. Why? Because each witness is a piece, as if a piece.
[Rabbi Michael Abraham] Why? I didn’t understand. Then every doubt is like that. If I have one witness saying it’s forbidden fat and one witness saying it’s permitted fat, then would that also be one piece out of two pieces? After all, that’s just one of the sides giving rise to the doubt. I have a doubt, it has two sides, but the doubt is still about one piece.
[Speaker C] But both sets of witnesses agree that she originally had the presumption of being a married woman. So what? And then she is forbidden. And on that everyone agreed.
[Rabbi Michael Abraham] What does that have to do with it? So what? Why does that turn it into two pieces? In what sense? You can say that we leave her—
[Speaker C] that originally she was a married woman.
[Rabbi Michael Abraham] That’s mixing things up, that’s mixing things up. Ruti, you’re talking about—you’re mixing two things. If both groups agree that she was a married woman, you can say: then doubt does not remove certainty. After all, she certainly was a married woman, and it’s not clear whether now she was released or not released. I’m not talking on that plane. That is a different question on the Talmud. The Talmud itself later says that all four witnesses testify that she was a married woman. I brought that in the previous class. But I’m not talking about that. I’m talking about a different situation; leave that aside for the moment. The Talmud calls this a provisional guilt-offering. Why is this a provisional guilt-offering? It’s one piece.
[Speaker B] According to Rami bar Chama it works, because Rami bar Chama does not speak of two pieces as something essential, but as something that enables clarification. And this woman too can be clarified through the disqualification of the witnesses by proving they were elsewhere.
[Rabbi Michael Abraham] Okay, so hold on. You’re already bringing Tosafot’s answers. One second. First of all, is the question clear? Fine. Tosafot says… one can say that there the question is according to the one who says “one piece,” who does not require one piece out of two pieces. The Talmud in Ketubot goes according to the view of Rav Asi, who obligates a provisional guilt-offering even for one piece. That is the first answer. But that is difficult, because Rav would contradict Rav. For here it says, Rav Yehuda said that Rav said, and in the chapter “The Woman Rabba” it says, Rabbah said that Rav said, “They only taught this where she married on the basis of one witness,” and so on, and the Talmud asks: one who has relations with her would stand liable for a provisional guilt-offering? And why does it ask that? Our Talmud, like the Talmud in Yevamot, is basically going according to Rav. And Rav is the father of the view that one needs one piece out of two pieces. So how will it help to establish our passage according to Rav Asi? What will Rav himself say? Therefore the first answer doesn’t work. So he answers that this is what it means: one who has relations with her stands under the prohibition of the kind for which a provisional guilt-offering applies. Not that one is actually liable for a provisional guilt-offering, but rather that this is the type of prohibition that, if there were two pieces here, one would be liable for a provisional guilt-offering. What it means to say is: there is doubt about a prohibition here, and that is true even without an actual provisional guilt-offering. There is doubt about a prohibition here, a Torah-level doubt. Therefore they ask: what do you mean, how can it be that she would not have to leave, after all every act of intercourse is a doubtful prohibition? True, they are not actually liable for a provisional guilt-offering for it; they did not mean to say that one is actually liable for a provisional guilt-offering here. They meant only that this is the kind of prohibition for which one would bring a provisional guilt-offering if it were one piece out of two pieces, and this is a serious prohibition, a Torah-level doubtful prohibition of something punishable by karet. How can it be that she would not have to leave?
[Speaker C] So Tosafot—
[Rabbi Michael Abraham] says “provisional guilt-offering”
[Speaker C] not literally; he means a Torah prohibition, a doubtful prohibition—
[Rabbi Michael Abraham] a Torah prohibition. Fine? So doesn’t that lessen the severity? What? So doesn’t that lessen the severity? Who said it doesn’t lessen the severity? It depends whether you go by the view of prohibition fixed in place or the possibility of clarification. Prohibition fixed in place does indeed lessen the severity, but it doesn’t matter; it is still a Torah prohibition, a Torah-level doubtful prohibition. And Tosafot adds another answer: there, the question is according to Rav Nachman, who here explains Rav there because of prohibition fixed in place. And in a case where a gentile ate the first one, the Jew is liable because of the second, because the prohibition had been fixed in place. And there it works well that the question is proper, because the prohibition had already been fixed in place, since she had been a married woman. What is he saying? After all, she was a married woman, right? Now there are two against two on whether she became permitted—she got divorced, her husband died, something like that. Okay? Tosafot says: true, this is one piece, but the doubt has a reason—it’s not a negative doubt; it’s a positive doubt. After all, the fact that she was a married woman until now is clear; the question is whether she left that status or didn’t leave it. Tosafot says that such a thing is called prohibition fixed in place. Even though this is not one piece out of two?
[Speaker C] Even though it’s one piece… it’s not a piece.
[Rabbi Michael Abraham] It is one piece, but it is still called prohibition fixed in place even though it is one piece.
[Speaker C] Because there is—
[Rabbi Michael Abraham] a difference between a case where there was—
[Speaker C] known status, and the doubt was whether she was betrothed, then it’s not fixed in place.
[Rabbi Michael Abraham] Right, exactly. Meaning, Tosafot is basically saying that since there is a positive element supporting the doubt that she is a married woman, you cannot say that the prohibition was not fixed in place. After all, I explained above the logic of prohibition fixed in place. Why is prohibition fixed in place more severe? Because there is a positive basis for doubt. You can’t ignore an element that is present before us. This is not a doubt that maybe something happened. I know that it existed; the question is whether it remained. But I know it existed. This is not a doubt pulled out of thin air. So if that is so, then here too, Tosafot says, this is called prohibition fixed in place. And by the way, in the language of the medieval authorities (Rishonim), the concept of prohibition fixed in place is used both for a situation of one piece out of two pieces and for a situation where there was a presumption of prohibition, as here.
[Speaker B] What’s the difference between this and an original presumption?
[Rabbi Michael Abraham] The same thing. They claim that when there is an original presumption, that is called prohibition fixed in place. Even though the concept in its original source is not exactly that. We saw this in the Talmud in Keritot. The original concept of prohibition fixed in place is when there is one prohibited item out of two pieces. And the prohibition is fixed here in the… situation. They claim—but look, some of the medieval authorities don’t even bother to explain it—they call prohibition fixed in place a case where there was a presumption of prohibition. That is called prohibition fixed in place. “Prohibition fixed in place” and “prohibition had been established” are the same thing. Okay? So that is basically what Tosafot here is saying. Tosafot in our passage in Ketubot also discusses this, and he writes as follows: even according to the one who requires one piece out of two pieces, here we do not require two pieces. Meaning, he explains that here it also goes according to the opinion that requires one piece out of two pieces for a provisional guilt-offering, and nevertheless the Talmud in Ketubot fits with it. Why? Because the one who explains in the chapter “Doubtfully Ate” that the reason one needs one piece out of two pieces is because it is possible to clarify the prohibition—meaning, it can be clarified by an expert who will identify the remaining piece, whether it is forbidden fat or permitted fat—here too it can be clarified through disqualification of the witnesses by proving they were elsewhere. What Adi said earlier. After all, witnesses might come and it would be possible to disqualify them.
[Speaker C] What? That wasn’t me, that was Adi.
[Rabbi Michael Abraham] Adi, sorry. So I’m saying: since it can be clarified through disqualification, here is a practical difference between Rav Zeira and prohibition fixed in place. It really is not prohibition fixed in place, but according to the one who says that the difference is whether it can be clarified, the possibility of clarification exists here too. So according to Rav Zeira it can work; according to Rav Nachman, not. All right? And according to the one who explains it because with two pieces, one of forbidden fat and one of permitted fat, the prohibition is fixed in place—that is Rav Nachman—what do we do with him? After all, that explanation works only according to Rav Zeira. Here too the prohibition is fixed in place, because she had the presumption of being a married woman—that is the answer we already saw in Tosafot there. Or alternatively, “provisional guilt-offering” is not meant literally, but rather “a prohibition of the kind for which a provisional guilt-offering applies”—another answer we saw there. Meaning, all of Tosafot’s answers there are basically answers according to Rav Nachman; Tosafot here adds an answer according to Rav Zeira that does not appear there. Okay? I’ll just add one more answer: in a case of two against two, it could be—and I think this is what was meant, again I no longer remember who said it earlier—it could be that a doubt of two against two is a different kind of doubt from any other doubt. Why? Because in a doubt of two against two, we talked about this when we discussed the topic of two against two, why is there an opinion that in two against two we do not follow the presumption? Two against two is a Torah-level doubt. What difference does it make what kind of doubt? In cases of doubt we follow the presumption. The claim is that when there is two against two, this is a state of two certainties in opposite directions. Doubt is a state where I have no certainty. If you have no certainty, go after the presumption. Two against two basically means that since two witnesses are maximal evidence—there is no better evidence than two witnesses—then when I have two witnesses in each direction, factually one is right and the other is mistaken, but legally this is considered as though I basically have a conclusive claim for each direction. So that means both sides are true simultaneously. In such a situation you cannot go after the presumption. A presumption tells you what to do when you do not know what the truth is. If you do not know what the truth is, assume it did not change. Assume we continue the state that existed until now. But in two against two, since you know the truth—you sort of know that the truth is both this and that, that she both got divorced and did not get divorced, or that her husband both died and did not die—then you cannot go after the presumption, because this is not a doubt that you need to resolve. What?
[Speaker D] What does it mean that there are two truths?
[Rabbi Michael Abraham] Fine, so I said: legal truths, not truths in reality. In reality itself, obviously only one of them is correct. But legally, since I have two witnesses on behalf of each side, and two witnesses are maximal evidence, then on the legal level for me it is as though both this and that were proven in the religious court. Proven—because two witnesses are maximal evidence. Now if you prove both sides to me, it’s like a paradox. If you prove both sides to me, you can’t say that I’m in a state of doubt. I’m in a state of double certainty—legally, of course. Factually, obviously only one is right. But legally I am in a state of double certainty; both are right. Therefore we do not follow the presumption. If that is really so, then perhaps that is exactly the definition of two pieces, of prohibition fixed in place in the accepted sense. Because what does prohibition fixed in place mean? It basically tells me: look, you have a positive basis for doubt in one direction, and you have a positive basis for doubt in the other direction. This is not a doubt pulled out of thin air; rather, you have a positive factor telling you that maybe it is this way, and a positive factor telling you that maybe it is that way. Well, in two against two it is the same way. Even though we are talking about one piece, one woman, since I have two witnesses saying this and two witnesses saying that, this is really a case of prohibition fixed in place. Because I have a positive consideration that gives rise to doubt in me—maybe this woman is married and maybe she is not married. So that is prohibition fixed in place. But there has to be a prohibition here.
[Speaker G] What? A contradiction that there should be a prohibition. Therefore I said earlier—no, but in a case of two against two—
[Rabbi Michael Abraham] there is no prohibition, so what is prohibition fixed in place? No, that’s why I said beforehand that… two against two means that I have two witnesses saying there is a prohibition here and two witnesses saying there is no prohibition here. Therefore both prohibition and no prohibition are here. It’s like two pieces. It’s not like—for example, if there were one witness against one witness, I would say: look, one witness is not maximal evidence. So it remains a doubt; I don’t know whether this is correct or that is correct. Here we follow the presumption, and this is not called prohibition fixed in place; it is an ordinary doubt, and one does not bring a provisional guilt-offering. But when I have two against two, that is a crushing tie. I have a positive argument in favor of there being a married woman here, and a positive argument in favor of her being permitted. Okay? The moment there are two positive arguments, it is like the two pieces. After all, why do you need two pieces? Because two pieces create two positive arguments, one in favor of what I ate being forbidden fat, and the other in favor of what I ate being permitted fat. I have two positive arguments pulling me in opposite directions. That exists in two against two as well. So why should I care that it is one piece? It seems to me that this is the simple and correct explanation, and it fits better with the view that two against two is a Torah-level doubt. Because saying that two against two is a Torah-level doubt really means that we do not follow the presumption. Why? Because two against two is two truths and not just an ordinary doubt. But according to the one who says that in two against two we do follow the presumption, according to that opinion, it is less comfortable there, because the assumption there is that two against two is also an ordinary doubt. Okay? Now the first Tanna holds that if she married, she need not leave in any case. Right? I asked: after all, there is two against two here, so why don’t we require her to leave because of doubt? A Torah-level doubt should be treated stringently. A provisional guilt-offering, as Tosafot says, as the Talmud says. So the Ran on the Rif writes as follows. Since we say “one who has relations with her would stand liable for a provisional guilt-offering,” there are those who wish to prove from here that the Jewish law follows that version in Yevamot which says that two against two is a Torah-level doubt. And we do not say: establish the matter on its presumption. And therefore one who has relations with her would stand liable for a provisional guilt-offering, whether she initially had the presumption of being unmarried or the presumption of being a married woman. But according to that version which says there that we establish the matter on its presumption—what is called two against two as a rabbinic-level doubt—you cannot find a case where one who has relations with her would stand liable for a provisional guilt-offering. Because if she stands with the presumption of being a married woman, as is evident from the plain sense of the baraita, then one who has relations with her stands liable for a sin-offering. If she has the presumption of being a married woman, then one who has relations with her is not in the realm of a provisional guilt-offering, but of a sin-offering. Because she is basically certainly a married woman; we follow the presumption. And if we are speaking of a presumption of being unmarried, then since there are two against two, there is only a rabbinic prohibition. And although the conclusion of the discussion in Yevamot is that two against two is a rabbinic-level doubt because we say “establish the woman on her presumption,” our discussion is not difficult, because the Tanna is certainly speaking where she had the presumption of being a married woman. In our case, after all, we are speaking about a woman who had the presumption of being a married woman. Strictly speaking, it should have said that one who has relations with her stands liable for a sin-offering. Really it should have said that one who has relations with her stands liable for a sin-offering. But the Talmud did not want to get itself entangled in that dispute—whether two against two is a Torah-level doubt or a rabbinic-level doubt—so it said: one who has relations with her stands liable for a provisional guilt-offering. That is the only reason. But really a provisional guilt-offering is relevant here only according to the one who says that two against two is a Torah-level doubt. Okay?
[Speaker B] That’s a bit of a strange explanation, no?
[Rabbi Michael Abraham] What?
[Speaker E] In the sense that I got confused—
[Speaker B] the Talmud doesn’t want to get into the argument here, so it decides on one formulation, but that’s actually the opposite of the conclusion elsewhere.
[Rabbi Michael Abraham] Because it says that according to both sides of the argument it is difficult. So let me formulate the objection in a way that will be difficult according to both sides. Right, I could have objected only according to the side that is the conclusion, but I want to tell you that it’s much more difficult. Don’t tell me you hold like the side that is not the conclusion, because even according to the side that is not the conclusion it doesn’t work for you. So the objection is simply stronger this way.
[Speaker B] Even if I want to say that it’s Torah-level, then what is his problem? I didn’t understand. If I say that two against two is Torah-level, and I don’t leave her on her presumption, then she wouldn’t require a sin-offering.
[Rabbi Michael Abraham] On the contrary, then she would require a provisional guilt-offering. Yes. So that’s fine—our passage fits with that. “One who has relations with her stands liable for a provisional guilt-offering,” because two against two is a Torah-level doubt. He is asking the opposite question. He asks: according to the one who says two against two is a rabbinic-level doubt, and I go after the presumption, then why do they say “one who has relations with her stands liable for a provisional guilt-offering”? One who has relations with her stands liable for a sin-offering, not a provisional guilt-offering. So he says yes, they meant that too, but they wanted to tell you that it is difficult even according to the one who says two against two is a rabbinic-level doubt.
[Speaker E] But it still isn’t clear to me—if it’s rabbinic-level and this is a determination of her status by the religious court, that still doesn’t make her definitely an adulteress.
[Rabbi Michael Abraham] Obviously yes. The moment we follow the presumption, she is a married woman in every respect, and she is liable to death if she commits adultery.
[Speaker E] And in the meantime I’m a married woman, while I know that I’m not a married woman?
[Rabbi Michael Abraham] They’ll execute you in a religious court.
[Speaker E] Oh, well, thank God I’m—
[Rabbi Michael Abraham] No, the religious court goes by the evidence. If you… according to the evidence she is an adulteress, and a presumption is one of the pieces of evidence, so she is an adulteress. Period. If she hides and does it in a way the religious court doesn’t see, we talked about that in the context of self-imposed prohibition, then there it could be that it would be permitted for her, but the religious court goes by the evidence. Okay? That’s what the Ran says. But Tosafot here says—and this is what I brought earlier—“One who had relations with her is liable for a provisional guilt-offering.” This is difficult, because he should be liable for a sin-offering, since we conclude in the fourth chapter of tractate Brothers that in a case of two against two it is a rabbinic-level doubt, and on the Torah level we establish her based on the presumption. And what is different when she married one of her witnesses? The witness too should be liable to strangulation, since we establish her based on the presumption. The fact that she married one of her witnesses doesn’t help at all. There’s certainty here, not doubt, because we place her in her prior status. Okay? So Rabbenu Tam answers; he says as follows: “The presumption that a woman checks carefully before marrying weakens that presumption.” There really is a presumption that a woman checks carefully before she marries, and that weakens the presumption of her being a married woman. For that same reason we permit her when there are no witnesses at all, even though she has the presumption of being a married woman. Rabbenu Tam says like this: if a woman comes and tells us, “My husband died,” and there are no witnesses, just she herself, then I mentioned this earlier, we accept it. And if she goes and gets married, we recognize that. Why? Because there is a presumption that a woman checks carefully before marrying. If she marries, then she checks thoroughly so she won’t find herself in a disastrous situation. Okay? Therefore the presumption that she checks carefully before marrying basically allows her to marry. Rabbenu Tam says: in our case now there are two witnesses this way and two witnesses that way. Now the woman comes and says, “I know my husband died,” and she goes and marries. So of course here too there is the presumption that she checks carefully before marrying, right? This is no worse than a situation where there aren’t two against two and only the woman says that her husband died. Here there are two against two and she still says it—there is a presumption that she checks carefully before marrying. Rabbenu Tam says: the presumption that a woman checks carefully before marrying is what actually allows me—yes—it weakens the presumption. What does that mean? Notice what he says; you have to be precise in his wording. He does not say that because of the presumption that she checks carefully before marrying, therefore she is permitted to marry, because she is in fact forbidden to marry. Everybody agrees that initially she should not marry. Why not? Because this is a doubt of two against two, and in a doubt of two against two, what help is the presumption that she checks carefully before marrying? After all, that presumption is no stronger than two witnesses, right? If another two witnesses were added to one of the two groups, that still wouldn’t decide it, because two are like a hundred. So now there has been added to one of the two groups the additional presumption that a woman checks carefully before marrying. What difference does that make? Two against two is maximal evidence against maximal evidence. Adding more evidence doesn’t help against maximal evidence.
[Speaker D] But it undermines the presumption that she’s a married woman.
[Rabbi Michael Abraham] No, no, hold on, I’m getting there. First I want to explain why Rabbenu Tam is precise in his wording. He says that the presumption that she checks carefully before marrying does not decide the doubt of the two against two. That it does not do. Rather, it weakens the presumption that she is a married woman, makes it shaky, crumbles it. Why does he say that? Because the presumption that a woman checks carefully before marrying cannot decide the doubt of the two against two. Because what does it help to add one more piece of evidence in favor of two witnesses when there are also two witnesses against them? Even if I added another two witnesses, it would be two against four, right? That doesn’t help. Two are like a hundred. So a presumption is certainly not stronger than two witnesses. Therefore the presumption cannot decide the doubt of two against two; that’s obvious. Rabbenu Tam says yes, but the presumption that she checks carefully before marrying does weaken the presumption that she is a married woman. The presumption that she is a married woman now falls away because there is evidence against that presumption. Then what happens? I’m left with two against two, right? Without the presumption that she is a married woman. And what is the law in such a case? One is liable for a provisional guilt-offering and not a sin-offering. If there were still a presumption that she is a married woman, then with that presumption, one who had relations with her would be liable for a sin-offering, not a provisional guilt-offering—she would definitely be a married woman. But the presumption that she checks carefully before marrying weakens the presumption that she is a married woman. What remains is only the two against two, so I’m left with the doubt of two against two, and we saw above that a doubt of two against two entails a provisional guilt-offering according to most of Tosafot’s answers. Therefore what is written here is that one who had relations with her is liable for a provisional guilt-offering and not for a sin-offering. This is unlike the Ran. The Ran said above: no, no—for the one who holds that two against two is a rabbinic-level doubt, so that we follow the presumption, there would in fact be liability for a sin-offering here; there would not be a provisional guilt-offering. Right? They only framed the difficulty in a way that would be difficult for both opinions; that’s what the Ran said. Tosafot says, what are you talking about? Even according to the one who says that two against two is a rabbinic-level doubt, where apparently we follow the presumption, here we will not follow the presumption. Here it remains a doubt of two against two, and one brings a provisional guilt-offering, not a sin-offering. Why? Because the presumption that is here and supports her cancels the presumption that she was a married woman. Okay? Therefore Tosafot is indeed precise in its wording and says that this cancels the presumption that she is a married woman; it does not decide the doubt of two against two. Now, Rabbi Shimon Shkop.
[Speaker C] Rabbi, sorry, when he says that it weakens it, does he mean it deliberately cancels the presumption or just weakens it?
[Rabbi Michael Abraham] No, it cancels it. It’s no longer a presumption.
[Speaker B] Rabbi Shimon Shkop talked about how it weakens the two-against-two.
[Rabbi Michael Abraham] Exactly. Rabbi Shimon Shkop explained what I just said—why the presumption doesn’t also decide the doubt of the two against two. So he says as follows. The first paragraph is a quotation from Tosafot: “Now according to what was written in the responsum of Rabbi Akiva Eiger and in the book Shev Shma’teta”—we saw this incidentally—“that in two against two a presumption does not help to decide, except for an original presumption, like the presumption that she is a married woman and the like. But a presumption that functions as proof, such as ‘a person does not pay before the due date,’ or ‘witnesses do not sign a document unless the person was already an adult,’ does not help to decide in a case of two against two, because it is no better than another two witnesses, and two are like a hundred.” Okay? So what are they saying? In which kind of two-against-two is it a Torah-level doubt and we do not follow a presumption? And in which is it a rabbinic-level doubt and we do follow a presumption, right? But what kind of presumption? Only an original presumption, a prior presumption, not a clarifying presumption, not an evidentiary inference. A presumption that is based on proof, what he calls here a presumption by way of proof—that doesn’t work. Why? Because a presumption based on proof merely gets added as yet another proof to the two witnesses. And opposite that stand two other witnesses. So you have two witnesses against two witnesses plus a presumption—what difference does that make? It’s the same thing. Therefore it cannot decide the doubt of two against two. Why, according to the one who says that two against two is a rabbinic-level doubt, do we follow a prior presumption? Because a prior presumption is not evidence. A prior presumption merely tells me what to do when I don’t know what to do, when I’m in doubt. If I’m in doubt, continue the status that existed until now. That applies in two against two as well; there too I’m in doubt and don’t know what to do. And a prior presumption says to me: fine, if that’s the kind of doubt you’re in, continue behaving this way. So here there is no problem of it being added to two witnesses and deciding the doubt. It doesn’t decide the doubt; it only tells me what to do when I’m in a state of doubt. Therefore these later authorities say that in a case of two against two there is a difference between a prior presumption, regarding which the opinions in Yevamot disagreed whether two against two is a rabbinic-level or Torah-level doubt—and in practice we rule that two against two is a rabbinic-level doubt and that we do follow a presumption—but even according to that view, we follow a prior presumption, not a presumption based on proof. A presumption based on proof, according to all views, does not help in two against two. And therefore this is what he explains in Tosafot: that the presumption that is here and supports her does not decide the doubt of the two against two. And he brings this just as Tosafot wrote in Bava Kamma that a miggo does not help decide a case of two against two, because it is no better than witnesses—we saw that too. Yes, if you add a miggo to witnesses it doesn’t help, because it’s no better than adding another two witnesses. And Shev Shma’teta wrote this too, and Shitah Mekubetzet brought it, and so on. And according to this, says Rabbi Shimon, according to this it is apparently difficult what Tosafot wrote—that the presumption that a woman checks carefully weakens the presumption that she is a married woman—since such a presumption does not help decide in a case of two against two. He says as follows: look, the presumption that a woman checks carefully before marrying—what kind of presumption is that? That’s a clarifying presumption, right? It’s a presumption by way of evidence. So now look at what I have in the picture. In my picture I basically have this: I have two against two—two say she is permitted, two say she is forbidden. I have the presumption that she was a married woman, and I have the presumption that a woman checks carefully before marrying. Right? Now, the two against two are evidence in each direction. The presumption that she was a married woman is a prior presumption; it is not a clarifying presumption. Right? And the presumption that a woman checks carefully before marrying is a clarifying presumption. So if that’s the case, then I don’t understand Rabbenu Tam’s pilpul, says Rabbi Shimon Shkop. Rabbenu Tam tells me: look, it can’t decide the two against two, because it is a clarifying presumption. But it can weaken the prior presumption, the presumption that she is a married woman. How does it weaken it? Explain that to me. How does it weaken it? Because there is evidence against the presumption? What is the evidence against the presumption? That a woman checks carefully before marrying. But there is other evidence against the presumption too—two witnesses say she is unmarried. Why doesn’t that help? Because opposite them there are two witnesses saying she is not unmarried. So the evidence of ‘a woman checks carefully before marrying’ is neutralized within the two against two. So it also cannot weaken the presumption that she is a married woman. That too it cannot do.
[Speaker G] I didn’t understand. It can undermine the evidence, because in fact it does undermine it when there isn’t two against two.
[Rabbi Michael Abraham] Of course, because when there isn’t two against two, then once I have evidence, the presumption that she is a married woman falls, because there is evidence against it. But when there is two against two, what does the evidence add? After all, in any case there are already two pieces of evidence of maximal strength against the presumption and for the presumption. Now an additional weak piece of evidence is added against the presumption—so what? How does that change my relation to the presumption? Not at all. All we did was say words. We said that this presumption cannot decide the two against two, therefore Rabbenu Tam says it crumbles the prior presumption. But Rabbi Shimon Shkop says: look at what is really happening here—those are just words. This presumption is an evidentiary presumption, and an evidentiary presumption adds nothing in a case of two against two. So if until now the prior presumption had not crumbled—and according to the one who says that two against two is a rabbinic-level doubt, we follow the prior presumption—it does not crumble because of the two against two. So now that one more weak piece of evidence has been added against it, that is what crumbles it? How?
[Speaker G] But how does it crumble when there are no witnesses? I don’t understand that.
[Rabbi Michael Abraham] Because there is evidence against it. What’s the problem?
[Speaker G] In the end, in two against two we erase the two against two and follow the prior presumption.
[Rabbi Michael Abraham] No, no, we do not erase it. The two against two remains as it is.
[Speaker G] And because it’s a rabbinic-level doubt, therefore we follow—
[Rabbi Michael Abraham] We follow it, but we do not erase the two against two, absolutely not. On the contrary, the two against two remains, because we are in doubt. What do we do in doubt?
[Speaker G] And the doubt is because of the two against two.
[Rabbi Michael Abraham] What do we do in doubt? The Torah tells me: if you are in doubt, go after the prior presumption. Now I ask: does the presumption that a woman checks carefully before marrying take me out of the state of doubt? Absolutely not, because it merely adds another piece of evidence in addition to the two witnesses, but opposite them stand two other witnesses, so it does not take me out of the state of doubt. Therefore the Torah’s instruction to follow the prior presumption remains in place. I am still in doubt. Why? But it changes the status of the prior presumption. How does it change it? The same way it changes it when there are no witnesses. No, again, that’s not correct. If there are no witnesses, then that is the only evidence in the field. So when I have evidence against the prior presumption, clearly I do not need to follow the prior presumption. And why? Because once I have evidence, then I am not in doubt. Why should I go after the presumption? Going after the presumption is an instruction for someone who is in doubt. If I have a presumption that resolves my doubt, there is no instruction to follow the presumption. So if a woman comes and I have the presumption that a woman checks carefully before marrying, now I ask myself: should I follow the presumption that she was a married woman? Of course not. I’m not in doubt. I know that she checked carefully, and therefore it is clear that her husband died. There is no problem. There is no need to follow the presumption because I am not in doubt. But in every case where I am in doubt, I do need to follow the presumption. So when there is two against two, am I in doubt? Certainly yes. So I have to follow the presumption. Now comes also the presumption that a woman checks carefully before marrying. Do I now stop being in doubt? Of course not. I am still in doubt, because I have a presumption and two witnesses… But if I had two against two and no prior presumption—same thing. So no, without the prior presumption you couldn’t go by the presumption. No, of course not, then it would just be a doubt. And then when there is a prior presumption, that’s why I follow the presumption. Right. Now when the presumption that she checks carefully before marrying comes, does it weaken the presumption? No, it doesn’t weaken the presumption—that’s what I’m saying again. No, I understand, I just don’t understand the logic. No, the logic is simple. No, you’re mistaken. The prior presumption doesn’t play on the evidentiary field. It does not clarify anything, the prior presumption. The prior presumption is an instruction about what to do when I’m in doubt. In order to use the prior presumption, I have to decide whether I am in doubt or not. Once I have decided that I am in doubt, the instruction is: go after the prior presumption. If I’m not in doubt, no problem, I don’t need to activate the prior presumption. Now in a case of two against two, the woman comes and says, “My husband died,” she is still presumed to be a married woman, right? But she says, “My husband died,” and gets married; there is the presumption that a woman checks carefully before marrying. Now I ask myself: after the presumption that a woman checks carefully before marrying, am I still in doubt? No, I have evidence in favor of her being unmarried, right? So in any case I don’t need to follow the prior presumption because I’m not in doubt. It’s not that it weakens the prior presumption. Rather, once I have no doubt, I don’t need to follow the prior presumption. The prior presumption remains fully in place. But that is a different view from Rabbenu Tam. But then—how does this work? Because it’s not true that it weakens the presumption. After all, the presumption doesn’t play on the evidentiary field. So why does it weaken the presumption? It constitutes additional evidence. Now all I can do with that is decide whether I am in doubt or not in doubt. If I am in doubt, I need to follow the presumption. If I am not in doubt, then no problem. So as we said earlier, Rabbenu Tam does notice this, and that’s why he really does not say that it resolves my doubt; rather he says it weakens it. But Rabbi Shimon Shkop asks about this: very nice that you said that, but what is the logic? In the end you added one more piece of evidence here. What that evidence can do, at most, is take you out of doubt. But it does not take you out of doubt. So if you are still in a state of doubt, why don’t you follow—excellent question. And it is forced to say”—I continue reading—“that it helps only to diminish the force of the presumption that she is a married woman.” That is what Noa just wanted to say. It is forced, because it doesn’t diminish any force of the presumption. They are on entirely different planes. The presumption that she checks carefully before marrying is evidence. That is on the plane of the laws of evidence. The presumption that she is a married woman is not evidence at all. It is an instruction about what to do in situations of doubt: continue the prior presumption. What does one have to do with the other? They do not speak to each other. Yes. “However, apparently it is also proven from here that the supporting presumption does not help decide in two against two. For if not, why should she not be completely permitted by force of the supporting presumption, just as we permit her where there are no witnesses even though there is a presumption that she is a married woman?” But that is clear—we already explained that. Once there is two against two, the presumption that she checks carefully before marrying is neutralized, because it won’t help. It isn’t that it gets added to another two witnesses—it adds nothing to them.
[Rabbi Michael Abraham] I’ll say it briefly, because we’re really at the very end of the time. I’ll formulate it a little differently from Rabbi Shimon Shkop, because I think my formulation is better. We discussed in one of the previous classes—maybe even in the last one, I don’t remember—we discussed the question whether a presumption is clarifying or a mode of conduct. A prior presumption. Do you remember that? In connection with Rabbi Yannai—whether the mother’s presumption helps the daughter or doesn’t help the daughter. So we discussed that if we resolved the doubt regarding Rabbi Yannai’s mother, then automatically there is no question regarding Rabbi Yannai. Why? Because the presumption clarified what happened with his mother. In contrast, there are medieval authorities (Rishonim) who say that even if we resolved it regarding the mother, that has no bearing on the son. Why? Because they understand that a presumption is a rule of conduct and not a clarifying rule. So regarding the mother there is a directive to continue her prior status; Rabbi Yannai has no presumption. Therefore with him we do not continue it. Okay? Now what I explained there is that in any case a presumption is not really a clarifying rule. The presumption clarifies nothing. The fact that she was a married woman—does that mean she was not taken captive? What does that have to do with anything? Rather, it is a formal instruction of Jewish law. So what is the dispute among the medieval authorities (Rishonim) about whether a presumption is a clarifying rule or a rule of conduct? The dispute is about how the Torah commands us to follow a prior presumption. What is the meaning of that command? Does the Torah tell me to relate to the presumption as though it clarifies, or does the Torah tell me no, the presumption does not clarify; it is simply a rule of conduct, what to do in situations of doubt? In other words, the dispute is about the nature of the Torah’s innovation that we follow a prior presumption. How should it be understood? Is it an innovation that says: even though a prior presumption does not clarify, treat it as though it were evidentiary and did clarify? Or does the innovation say: no, this is not evidentiary at all; it is merely an instruction, a mode of conduct, what to do when you do not know what to do, when you are in doubt. It could be that this is what Rabbenu Tam means here. Rabbenu Tam understood a prior presumption as being treated like evidentiary proof. You need to relate to it as though there is evidence here. Okay? Now if the prior presumption too plays on the evidentiary field, then maybe I can understand what he is saying. Because then he says: the presumption that a woman checks carefully before marrying weakens the presumption that she is a married woman, because it dissipates the evidentiary force in it, so to speak—the evidentiary force in it. On the evidentiary plane you have no decisive evidence; you are left with two against two, and that leads to a provisional guilt-offering. Still, it’s not perfect. It’s not perfect because the question remains: why specifically does the presumption that a woman checks carefully before marrying weaken the presumption, whereas the two against two does not? After all, according to the one who says that two against two is a rabbinic-level doubt, the two against two does not weaken the presumption; there we do follow the presumption. So why not here? Here maybe we need to get to the issue we didn’t reach when we discussed two against two—what Noa hinted at earlier. There is a discussion in the Shakh and other later authorities (Acharonim) whether two against two is treated as though it is there or as though it is not there. Some understand that once you have two against two, they cancel each other out and it is as though there is nothing here. If so, then maybe one can understand Rabbenu Tam. Even though that is not the straightforward reading of the passage. But maybe one can understand Rabbenu Tam that way. I think that is perhaps what Rabbi Shimon Shkop’s wording is aiming at in the final paragraph of his that I didn’t read. Okay, we’ll stop here. That’s it. But wait—what is the meaning of the distinction between a prior presumption and a clarifying presumption if we don’t relate to it? There’s no difference. According to that approach a prior presumption is the same thing, and then they can cancel each other out. What? I didn’t understand. So it’s the same thing, and they can cancel each other out. Next Thursday is the last day? No, no. We still have the end of the month, two more weeks. And I think one more Tuesday too, right? Four classes. I think. Five classes, I think. Wait—Tuesday, Thursday, Tuesday, Thursday, and Tuesday. We still have two full weeks and one more Tuesday. Yes, okay. So that’s actually six more classes. Five. Why today? Today is Thursday. Right, so five more classes. Yes. Okay, in any case, we’ve finished this passage. This—that’s what I had set aside one session for. Sabbath peace. Okay, Sabbath peace, goodbye. Thank you very much, Sabbath peace.