Ketubot, Chapter 2, Lesson 42

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[Rabbi Michael Abraham] No, it doesn’t matter, there is overwhelming circumstantial evidence. Overwhelming circumstantial evidence is… circumstantial evidence can be one hundred percent. It’s not about that—maybe not one hundred percent, ninety-eight percent. Fine, like two witnesses, no worse than two witnesses. Okay. But there I have no problem, because the Torah itself told me: do not execute if you don’t have two witnesses, and I have no reason to uproot the Torah’s law even though it is purely formal, because factually I know he is a murderer. But what’s the issue? This same Torah that told me to execute the murderer also tells me that this is conditional on having two witnesses about it. Fine, I have no reason to uproot the Torah’s law, because that’s what the Torah wanted—why shouldn’t I do that? Here the problem is the woman being chained to the marriage. So I can understand permitting her to remarry, but only where the leniency is just a leniency against a formal problem. But if the husband is actually alive, then it would be unthinkable for me to permit her to remarry. Sorry, I’ll turn this thing off. Fine, so that can’t be. So that is really the question, and it already brings us into the presumption that a woman investigates carefully before remarrying, which apparently also has to be involved here, otherwise it’s very hard to understand what the baraita is saying here. Okay? Otherwise it’s just empty formalism. Obviously the presumption… what?

[Speaker E] But the presumption that a woman investigates carefully before remarrying doesn’t mean she has clear proof.

[Rabbi Michael Abraham] correct, so what?

[Speaker E] It just means it’s almost, close to…

[Rabbi Michael Abraham] Fine, that’s okay. As long as—I’m saying again—if I am sufficiently convinced that the husband died, then I have no problem on the formal level. So I only have one witness and not two, fine, hearsay, a woman, an invalid witness, whatever it may be. But as long as the facts are clear, it’s like—by the way—one of the common mistakes regarding, for example, Ron Arad and all kinds of difficult cases like wartime agunot, which for some reason touch the public’s heart more, even though there are agunot no less miserable outside war as well. But in cases like that people always say, look, it’s completely obvious that the husband is dead, so why do your usual tricks, after all we all know that you rabbis can do tricks and do whatever you want. So what’s the problem? People don’t understand that in order to do tricks, you have to be convinced that factually the husband is dead. The tricks I do are to get around the formal laws. If it’s a formal issue, then I do a formal maneuver and solve it. But if I murder someone in an unusual manner, the fact that I did it in an unusual manner doesn’t solve the problem—I murdered someone. The issue isn’t formally that I committed the transgression of murder; the issue is that someone died. So what difference does it make whether I murdered him this way? Why should that matter? People don’t understand that permitting a woman to remarry is based first and foremost on factual clarification that her husband really died. The judges have to be convinced of that fact, and not just convinced at levels of proof like in a police investigation—not according to Torah evidentiary law—but they have to reach a clear conclusion that factually the husband is dead. Now they only have a formal barrier. As for a formal barrier, the Sages enacted that in this area it can be bypassed. But you cannot waive the certainty that the husband is dead. Therefore, in a case of endless waters, for example—which will appear later in the lesson—endless waters, a husband fell from the boat and drowned in the water. Now, I saw him drowning. But since this is a large sea, not some pool that I can see in front of me or a small lake, but a large sea where I cannot see the far edge, then it could be that the person somehow survived and came out on the other side without my seeing. Now true, that is a remote concern, but still there is some concern here; I cannot be sure he is dead. In that situation, they do not permit her to remarry. You have to understand: with all the leniencies of one witness and a woman and hearsay, everything is fine as long as factually it is clear that the husband is dead. But if I have concern on the factual level that the husband did not die, nobody will permit her to remarry—there is no such thing.

[Speaker G] In a case like endless waters, do they not use statistics? Say, for example, we know that in the Mediterranean, unfortunately, when people are swept into the water and they search for them for a day or two or three, in the end they find a body; they don’t find the person alive somewhere else. So in such a case, is there any consideration of statistics?

[Rabbi Michael Abraham] I don’t remember right now. In principle, no—strictly speaking, endless waters do not allow remarriage, and everyone understands that most likely he drowned if I didn’t see him come out, and still… It could be that I’m in the Atlantic Ocean, but when I saw him drowning I had visibility of two kilometers in every direction, let’s say. Now, you can’t swim two kilometers underwater and stay alive. So even though these waters are endless, I can be sure the person drowned. He did not come out alive. So in situations like that they do permit. There are various disputes about it, but there they do permit. But there has to be some certainty that the husband really died. What level of certainty? Which majority probability do we accept and which not? Big question. Oceans have been spilled over this. An Atlantic Ocean of ink. Yes. So therefore—up to what degree of certainty do I need? But again, on the level of certainty required, I can never get one hundred percent. Even two witnesses are not one hundred percent. Therefore, I cannot go below the required level of certainty. What I can do is use maneuvers regarding formal requirements. That I can do. Okay? Good. After that there is Rava. Rava said: actually, it is two against two, and Rabbi Yohanan accepted the words of Rabbi Menachem son of Rabbi Yosei regarding divorce, but did not accept them regarding death. What is the reason? Death cannot contradict her, divorce can contradict her. What does that mean?

[Speaker E] The moment she says

[Rabbi Michael Abraham] that the husband died, and then he suddenly shows up alive, she won’t be able to say he died. Yes, exactly. But if he shows up and says, I did not divorce you, she can say, what are you talking about? You’re lying, you did divorce me. So she is not entering into such a great embarrassment or such a great risk. Whether to believe her or not is another question. But she herself can at least entrench herself in her position, and there isn’t some terrible danger that she will be caught red-handed. Okay? Therefore, says Rava, I remain with two against two, and that is indeed a good explanation of Rabbi Yohanan. What Abaye translated as one witness—I said that was difficult.

[Speaker E] Why doesn’t he say that Rabbi Yohanan accepted the words of the first tanna and agreed in one thing and not in another?

[Rabbi Michael Abraham] If you propose such a reasoning, maybe he would say that—bring the reasoning. Here they found a rationale to distinguish. So Rava’s explanation, of course, does fit Rabbi Yohanan’s words, because here it really remains two against two, not one against one. What I said earlier about Abaye, that I suspect he is translating Rabbi Yohanan—that means he is willing to accept Rabbi Yohanan’s words in this case, but really he comes to disagree with Rabbi Yohanan. Rava really comes to explain, and therefore in his wording too we see that he says: Rabbi Yohanan accepted the words of Rabbi Menachem son of Rabbi Yosei regarding divorce, but did not accept them regarding death. In his wording we see that he comes to explain Rabbi Yohanan. Here too it is presented that way. Okay? The Talmud asks: and is she really so brazen? If the husband comes and says, I did not divorce you, would she say, yes, you did divorce me, when in truth she was not divorced? If the truth is that she was divorced, then there is no problem. But assuming the truth is that she was not divorced, then doesn’t she care? She can get out of this alive. But didn’t Rav Hamnuna say: a woman who says to her husband, you divorced me, is believed, because there is a presumption that a woman is not so brazen as to lie to her husband’s face. The Talmud says: that applies where there are no witnesses supporting her, but where there are witnesses supporting her, she is indeed brazen. In a case of two against two, she relies on two witnesses. True, there are also two against them. She says those are lying and these are not. She doesn’t emerge from the situation looking too bad, and therefore in such a case she is brazen. This is less relevant to us; in any case, this is Rava’s explanation. Third explanation.

[Speaker D] Rabbi, wait, regarding Rava, this is hard for me—maybe I’m just getting hung up on something irrelevant—the fact that they penalize her. We don’t know for certain that she is lying. It’s uncertain, her against her husband, so why penalize her? Now let’s say there is doubt here, so it says they penalize her and therefore she will check carefully before her husband returns. Where do you see a penalty?

[Rabbi Michael Abraham] I didn’t understand—which penalty?

[Speaker D] The Talmud brought it later regarding the possibility that she will contradict her husband. Right? I’m talking only about this term, that they penalize her.

[Rabbi Michael Abraham] Where do you see that they penalize?

[Speaker D] Wait a second, I’ll check where I saw it, just a moment.

[Speaker E] No, that was in Yevamot.

[Speaker F] No, simply, that a woman investigates carefully before remarrying in Yevamot.

[Speaker E] Here in the Talmud I don’t see anything about penalizing.

[Rabbi Michael Abraham] Maybe it was in Yevamot.

[Speaker E] Here there isn’t, here it doesn’t

[Rabbi Michael Abraham] talk about a penalty. There’s no penalty here at all. Maybe in Yevamot. There is no penalty being discussed here whatsoever. Rava says this is strict law, not penalties. Rava claims there is two against two, and therefore in divorce, if she married, she must leave—and that’s all. In death, we believe her because she cannot contradict him. Meaning, obviously the presumption that a woman investigates carefully before remarrying is standing behind this. She will in fact investigate carefully—why? Because if she didn’t investigate carefully, she knows there is a chance her husband will return and then she will be caught. No, no, this is not about penalties. What?

[Speaker G] I have a problem with this idea that a woman investigates carefully before remarrying. Yehudit and I learned these laws last year with Rabbi Bast, and this I still don’t understand. Let’s say we’re talking right now about the world of the Sages, okay? What is a woman, after all, just a woman in the world of the Sages? Women didn’t have many powers and many tools. Why? Because that was the world. Never mind. So one second—what powers, beyond the fact that the religious court cannot manage to obtain two witnesses who will verify the situation one way or the other precisely? I assume the religious court did all the work of searching for all the evidence, finding all the details, and so on. So what can a woman do beyond being more exact than the court? What powers or abilities or options does a woman in that old world have to discover more?

[Speaker E] First of all, she has more of an interest than the religious court does.

[Rabbi Michael Abraham] That’s true, but beyond that, I

[Speaker E] mean, maybe social connections she can activate.

[Rabbi Michael Abraham] No, I mean beyond that—what is clear to her,

[Speaker D] if it is clear to her.

[Rabbi Michael Abraham] The point is this. First, it could be that it is clear to her, and once it is clear to her because she knows it directly, then she says: my husband died. But beyond that, I’m saying—even if this never happens, then the woman really will not remarry. I’m saying that if a woman actually went and married, she probably found some way to become convinced. How exactly? For example, maybe she knows the witness who says that her husband died, and although there is a witness who contradicts him, she happens to know those people and knows that this one is reliable and that one is not. The religious court does not know them, and it has one witness against one witness, so it cannot issue a ruling, but the woman believes him. Now we cannot issue a ruling based on that.

[Speaker G] If the religious court knew the witnesses, then would it be possible?

[Rabbi Michael Abraham] Maybe yes, maybe yes. But I’m just giving an example, because the assumption—this is exactly the point—it may be that a woman who remarries despite there being no evidence is a very rare case. A tenth of a percent of all agunot maybe do this. But in those cases where it happened, there is a presumption that if it happened, then she probably found some way to clarify it, because it is not reasonable that she would do such a thing and take such a risk if she had not checked it well. If you are right that this cannot happen, then fine—then such a woman will never go and remarry and the question will be hypothetical. We are talking about the case where it did happen. Then the assumption is that in this case she apparently found a way to check it, and even though we do not have that way and we do not know, she certainly would not take such a risk.

[Speaker G] What bothered me is that it feels like they’re throwing the ball into her court, as if all the responsibility is on her, and the religious court doesn’t take responsibility for such a thing.

[Rabbi Michael Abraham] No, again, they’re not throwing any responsibility,

[Speaker D] Maybe that’s exactly what you argued earlier. Imagine that the woman saw her husband enter a cave with someone; that person comes out with a bloody knife and so on. Exactly. In religious court that isn’t admissible, but the woman knows he was murdered and also knows by whom.

[Rabbi Michael Abraham] Exactly, there’s an excellent example.

[Speaker D] There is the formalistic track of the religious court—it cannot deviate. And there is an alternative Jewish law outside the court.

[Rabbi Michael Abraham] Excellent example.

[Speaker D] The woman has

[Rabbi Michael Abraham] non-formal ways of becoming convinced that her husband died. As long as she became convinced, fine—she took the risk, and we assume she probably knew what she was doing. It may turn out that she was mistaken, but the presumption is that she knows what she is doing.

[Speaker F] This idea that a woman investigates carefully before remarrying—it doesn’t permit her, right? It only causes her not to be removed.

[Rabbi Michael Abraham] That if she goes to remarry—but you understand, this also de facto permits her. Once a woman comes and says, my husband died, we permit her to remarry ab initio, not just that if she married she need not leave. Why? Because after she marries, that will retroactively indicate to us that she probably checked, so there is no point in saying to her beforehand not to marry. Do you understand?

[Speaker F] But here, in our case of one against one or two against two, this idea that a woman investigates carefully before remarrying only causes us not to remove her; it does not cause the rabbis to permit her.

[Rabbi Michael Abraham] Correct, because here there is one against one, so here we really do say to her beforehand: do not marry. And the Talmud asked why, and the Talmud said: only because “remove from yourself slanderous speech.” In principle, even ab initio it would have been permitted for her to marry

[Speaker F] because of the idea that she investigates carefully before remarrying.

[Rabbi Michael Abraham] Correct. It is only because there is one against one here, and the public, after all, does not know the details and the laws and presumptions and that one witness is treated like two and all that, so people will see there is witness against witness and the religious court is instructing her to marry—no, that we do not do, because it will create a social problem. But the fact is that if the woman did marry, the religious court does not remove her. That means the religious court does not really have a problem with this; it is only for the sake of educating the public that we say to her ab initio: do not marry.

[Speaker F] And what about in two against two, right?

[Rabbi Michael Abraham] What do you mean?

[Speaker F] Rav Ashi? Rav Ashi?

[Rabbi Michael Abraham] You were talking about Abaye. Abaye said one against one, because he does not accept it in two against two. Right? Why did he move to one against one? Why did Abaye reinterpret it as one against one? Because he could not make sense of two against two—the laws don’t work out. Now one can think which of the two laws it is, the law of death or the law of divorce. I assume it’s the law of death, right? The law of death that if she married she need not leave. He says, what do you mean? She should also have to leave; in two against two she should also have to leave.

[Speaker F] She should also have to leave, but we say she need not leave. Why? Seemingly, why should she have to leave? Because we treat her as a married woman. But we saw that the idea that she investigates carefully before remarrying, and what we said last week, undermines the…

[Rabbi Michael Abraham] Exactly. This is connected to the questions from last week, all the great disputes we saw in Rabbi Shimon and all that, because the presumption that a woman investigates carefully before remarrying is an evidentiary presumption. The question is whether it can decide a case of two against two, which is maximal evidentiary force in both directions. That is the question here.

[Speaker F] Oh, so it’s not Rav Ashi. Fine.

[Rabbi Michael Abraham] Rav Ashi said: for example, witnesses say, he died just now; he divorced her just now. Death cannot be clarified; divorce can be clarified. For we say to her: if that is so, show us your bill of divorce. Yes, show me your bill of divorce. If she cannot show her bill of divorce, that arouses doubt, and therefore even if she married, she must leave. Regarding death, we do not have any such indication that there is a problem, and therefore we say to her that even if she married, she need not leave.

[Speaker E] He explains

[Rabbi Michael Abraham] Rava’s view, no?

[Speaker E] What? He explains Rava’s view, no?

[Rabbi Michael Abraham] Why Rava’s view? No, he explains Rabbi Yohanan, a third explanation.

[Speaker E] Because it seems like it matches what Rava said, that it is talking about two against two.

[Rabbi Michael Abraham] He too explains Rabbi Yohanan with two against two, but the explanation is different. Fine, so those are the three explanations. For our purposes, what matters is one against one, so for me the Talmud here is just to see the context. Now the Talmud says: the rabbis taught, if two say she was betrothed and two say she was not betrothed, she should not marry, but if she married, she need not leave. In short, they added the case of betrothal. And betrothal resembles divorce… death, sorry, it resembles death, and… So regarding divorce there is no novelty; it is the same statement as Rabbi Yohanan above. Regarding betrothal it is like death. Okay? And again the Talmud returns: why is the first clause different and why is the second clause different? What? Here she is considered…

[Speaker E] Easier than death, because she is unmarried.

[Rabbi Michael Abraham] Wait, we’ll see in a moment. We’ll see in a moment. Then the Talmud says: why is the first clause different and why is the second clause different? What is the difference between betrothal and divorce? Abaye said: it was explained in the case of one witness. According to his approach above as well, it is one witness. Only what do we now need to understand? Regarding death, he relied on Ulla, that wherever by Torah law one witness is believed, he is like two. In betrothal we do not have that. So why in betrothal is it nevertheless so? So he says: one witness says she was betrothed and one witness says she was not betrothed—both testify that she was unmarried. They both agree that she had been unmarried. One says she was betrothed, but one witness is not enough for matters of sexual prohibition. Here the presumption is the presumption of being unmarried, therefore she does not… therefore if she married she need not leave. It is talking about prior betrothal, and now she went and married. But one witness comes and says that she had already been betrothed before; she was already betrothed, she cannot marry now. And since he is only one witness, he cannot change her status to the presumption of a married woman, and therefore if she married she need not leave. In the second clause, one witness says she was divorced and one witness says she was not divorced; both testify that she is a married woman. And this one who says she was divorced is only one witness, and the words of one have no standing against two. This is exactly the explanation we saw above, yes, it just repeats itself. There is a question why in the case of betrothal she should not marry ab initio—that is not explained here. I assume it means the same thing, yes, so people should not speak slanderously about the matter. Yes. Rav Ashi brings another explanation. Rav Ashi said: actually, it is two against two, but reverse it. Two say: we saw that she was betrothed, and two say: we did not see that she was betrothed… In short, he too says it in terms of two against two. Fine, the details are not important right now.

[Speaker E] He too is talking about two against two.

[Rabbi Michael Abraham] Correct—“we did not see that she was betrothed.” But that is really a specific matter. For our purposes, what matters is that Rav Ashi does not accept Abaye’s explanation that it was interpreted as one against one, but leaves it as two against two. Now this can be understood in two ways: either he does not accept Abaye’s law that in one against one it is really like that, and then perhaps one can explain that what Rav Ashi does not accept is precisely the point I raised above—that even if the Torah believes one witness, and in such a situation he is considered like two, that is only when there is no witness against him. But if there is a witness against him and reality is unclear, how can you say that the Torah believes one witness like two? And therefore Rav Ashi does not accept Abaye’s reinterpretation that sets it up as one against one. Another possibility is to say that somehow we can explain Abaye, and then perhaps Rav Ashi agrees too. So why does Rav Ashi not accept Abaye’s explanation? Because it simply does not fit Rabbi Yohanan. Or in this case, it’s the baraita. In the baraita it says “two say” and “two say,” and then Abaye suddenly interprets it as one witness. Fine? So Rav Ashi has no problem with Abaye’s halakhic explanation, but he says it does not fit the language of the baraita or the language of Rabbi Yohanan. Okay. Now Tosafot here, under the heading “If so,” discusses a bit the question there in Yevamot: one witness says he came, and one witness says he did not come. He says that really it is a case where they came one after the other. Fine? Therefore—that is to say—when one witness comes directly against another witness at the same time, you cannot treat the witness who says her husband died as though he were two. Exactly the difficulty I spoke about above. But what? I can’t hear.

[Speaker E] Only if it is rabbinic, but if it is Torah-level.

[Rabbi Michael Abraham] Wait, we’ll see in a moment. We’ll see, we’ll see. So if the two witnesses came together, Tosafot says, about that Abaye did not say that the witness who says her husband died is like two. Why? Apparently the reasoning is what I said above. The proofs from the Talmud are proofs from the Talmud, but what is the reasoning behind it? The reasoning behind it is that factually I was not convinced that the husband died. There is one against one here. You cannot treat it formally and say this one is like two and that’s it. In practice, there is a fifty percent chance the husband is alive. How can you permit her to remarry in such a case? But in a case where they permitted her to remarry and now one witness comes and says no—in such a case, if she married she need not leave. And that is an interesting question: why? Because if indeed the reason Tosafot departs from the plain meaning of the Talmud is that you cannot follow formalism here, then why should the fact that there was a ruling by the religious court before the second witness arrived change anything? In practical terms, if you ask me now whether the husband died or did not die—seemingly there is doubt, the same doubt. So what difference does it make? Why need she not leave?

[Speaker F] What we said earlier in the name of Rabbi Menachem, or whatever his name is—she left that presumption and moved to that other presumption.

[Rabbi Michael Abraham] What are we really saying? We are really saying this: once there was a judgment, the judgment was justified, right? For its time. Truth for the moment, as they call it today in the courts. Okay? So the judgment was correct for its time, because then there was only one witness testifying that her husband died, and that is accepted. Now she married. Now another witness comes and says, no, no, her husband did not die. Now he creates doubt, but after he creates doubt, at this point there is already a presumption that she is married to the second man. Once she is married to the second man, she does not leave on the basis of doubt. So true, on the fundamental level, if you ask me what the husband’s status is, I’ll say I don’t know. If the woman wants to remain married—if her careful investigation before marrying wants her to remain married—we will not force her to leave. She stands under the presumption of being the second man’s wife. Now some doubt has arisen for us. We say: look, we have a doubt. Are you calm? Do you think you can stay and live with him? Fine, just know that if your husband returns, your condition will be very grim—if the first husband returns. Okay? That’s all. If you investigate carefully before remarrying, then fine. In the case where the two witnesses came from the start, we do not permit her to marry ab initio. Okay? That is what Tosafot says. And he adds that this is all when it is a witness who is valid only rabbinically. And this is Tosafot’s view, that one witness in testimony for a woman was validated only by the rabbis; it is not by Torah law. But in the case of one witness about a sota, for example, where we learn from the Torah itself that this witness is valid, there that witness really is like two even if there is a witness who directly contradicts him face to face. And that really is an interesting question—why? Because the dilemma I mentioned before remains: Scripture decrees that if there is one witness he is considered like two, but if there is one witness against him, then I don’t even have one witness, so Scripture did not speak about that. After all, I don’t even have one witness in such a state; I have one witness under contradiction. The question I asked earlier applies to the witness of the sota too, even if he is Torah-level—so what if he is Torah-level? Okay? Rather what? There the question is really: for what purpose are we saying this? Regarding the witness of the sota, what we say is that she should drink the water. At most, the water will clarify that everything is fine. But here we are permitting her to remarry; that is something else. Do you understand? Therefore I think one can still understand Tosafot. Tosafot really disagrees—he takes the Talmud away from its plain sense because he is not willing to accept that one witness, who is directly contradicted by another witness, should be treated with this formalism as though that witness counts like two, because I don’t have one witness—I have one witness under contradiction. One witness is like two when I have one witness. But when that witness is contradicted, then I don’t have one witness, and so it is not two. In the case of the sota, concerning the bitter waters, fine, there we will let her drink and the waters will do their work. That is not the problem. Okay?

[Speaker E] Why is that not the problem? It’s… what’s the problem? Publicly humiliating her is like killing her!

[Rabbi Michael Abraham] Fine, okay, but still, the Torah said that we treat that witness as two. When the waters cause her to emerge innocent, her honor will come back too. Then they will see that there was nothing there and everything is fine. Okay? Even though there was warning and seclusion, don’t forget. Even if in the end she did not commit the act, there was warning and seclusion here. A great righteous woman she was not. Okay? Therefore in any case it has to lead to this. True, she did not reach the actual transgression. Fine. Anyway, the sota is not our topic here.

[Speaker G] And the peace in that home probably won’t continue afterward either.

[Rabbi Michael Abraham] Fine, then they’ll separate. In any case, I’m not at all sure.

[Speaker G] You’re talking—you’re writing chronicles.

[Rabbi Michael Abraham] There is something to that too, yes. Fine. In any case, for our purposes—why is there really a difference between whether the witness came after the judgment or before the judgment? So I referred you to Rav David, yes, Rav David Povidarsky. Rav David Povidarsky—how does he explain it? He says: “The definition of the matter is that where he is believed by Torah law, he is like two merely by virtue of his statement itself. Therefore even if another comes and contradicts him simultaneously, nevertheless, since for this one the Torah treats him as two and not the other one, therefore he is believed. But where he is believed only rabbinically, such as where he says ‘he died,’ for by Torah law he is not believed, since it is a matter of sexual prohibition—yes? It is only a rabbinic enactment. If so, all that he becomes like two rabbinically applies only one after the other, because after we accepted his words and permitted the woman, then he is considered like two, and another one witness can no longer contradict him effectively. But before they permitted based on him, he is still only one witness, and therefore if another witness comes simultaneously and contradicts him, it is one witness under contradiction, since he is not yet like two. But where he is believed by Torah law, as in the case of the sota, then he is inherently like two, and there is no distinction between simultaneously and one after the other.”

[Speaker F] What did he add beyond Tosafot? He’s just saying what they say.

[Rabbi Michael Abraham] No, I think more than that. He really wants to say what I said earlier. What the Talmud says is formalism: one witness is believed, so we make him into two. He says: that is all very nice, but this witness is one witness under contradiction. So you don’t even have one witness. So how can you make him into two? He says you have to propose an explanation of where the formalism broke down. The formalism broke down because this witness is not one witness; he is one witness under contradiction. One witness under contradiction does not become like two. First I check whether I have one witness, and only afterward do I turn him into two—not that I first turn him into two and then confront him with the witness who contradicts him. Now this is all with a witness who rabbinically is believed like two. But with a witness who by Torah law is believed like two, he is believed like two by virtue of his speech itself. By virtue of his speech itself he is like two, and even if there is one witness against him, it is two against one. What happens in the rabbinic case when there has already been a judgment? When there has already been a judgment, it seems to me we now need to formulate it this way: really it is not true at all that this witness is considered like two. He is considered like one. But the religious court ruled based on him, and that is fine, because in testimony for a woman one witness is enough to rule on. Once the court ruled, that is considered like two. Not that the witness is considered like two. The witness is not considered like two at all, neither by Torah law nor rabbinically. Rather, the judgment of the religious court, even though it was given based on one witness, is an absolute judgment like one given based on two. Now when one witness comes, we are not prepared to accept him. The problem is not witness against witness; the problem is witness against judgment. That is what he wants to say. I think that is what he means.

[Speaker E] Yes. Wait—and if, in contradiction, two come after the court permitted her? Then would it count as two against two?

[Rabbi Michael Abraham] Again—in contradiction?

[Speaker E] If not just one witness comes to contradict the first witness, but

[Rabbi Michael Abraham] two come after the court permitted her?

[Speaker E] Then would it count as two against two?

[Rabbi Michael Abraham] Obviously. Because even if the court permitted her, that has the force of two, but now two are coming against it.

[Speaker G] But if one witness comes by Torah law, one who counts like two, and then two come to say that she is not…

[Rabbi Michael Abraham] Then that would be a problem, no? Then it would revert; it would be two against two.

[Speaker F] So

[Speaker G] it would be two against two—and then what?

[Rabbi Michael Abraham] Two against two—we go back to the laws of two against two, everything we said until now.

[Speaker F] But you could read Tosafot to mean that I really have one witness, and then, as Rabbi Menachem son of Rabbi Yosei says, I have one witness, now the religious court transferred her. They transferred her to the presumption of a married woman or to the presumption of an unmarried woman permitted to marry, and now when another witness comes I have doubt, so I follow the presumption. If so, then when two witnesses arrive it won’t help—it won’t help me.

[Rabbi Michael Abraham] I’m saying that in any case it won’t help when two witnesses come. What do you mean? Your explanation is a possible explanation. That is the explanation we saw there in the rulings of the Ri”d, I think, right? That he says the presumption changed. Once the presumption changed, therefore the two later witnesses are really contending against a presumption. But here I’m saying we don’t need to get there. I’m saying that regardless of the changed presumption, once the religious court ruled, the ruling is like a ruling based on two, because a ruling is a ruling. And to overturn a ruling of the religious court, one witness cannot do it—but two witnesses can overturn a ruling of the religious court.

[Speaker F] Even without saying that when I have one witness I have a state of doubt and then I follow the presumption—but when later two witnesses come, I’m not in a state of doubt at all; I have two witnesses against one witness, so I don’t follow the presumption at all. Right, but that witness, in every

[Rabbi Michael Abraham] place where the Torah believed one witness, he is like two, and the religious court ruled on his basis, so now you have two and two.

[Speaker F] That’s if I understand it that way. But if I go according to Tosafot, where I really have one witness, and now the religious court removed her from the presumption, as Rabbi Menachem son of Rabbi Yosei said, he removes her from the presumption of a married woman and she stands under the presumption of an unmarried woman permitted to marry, and now when another witness comes I am in a state of doubt, so I return to the last presumption she had.

[Rabbi Michael Abraham] I understand, I understand, but the problem is that you do not fit what Abaye himself says. Abaye himself makes it depend on the fact that one witness is like two. We are speaking within Abaye’s approach. Abaye bases it on the principle that every place where the Torah believed one witness, he is like two. So one cannot speak of a state of doubt where the religious court merely shifts a presumption. First of all, we have to understand that this witness is considered like two. I only want to argue that according to Tosafot, in Rav David Povidarsky’s explanation, what it means that the Torah believed one witness like two is the judgment given based on one witness. A judgment given based on one witness is a judgment. There is legal logic in that. Once the court ruled, what difference does it make whether it ruled based on one or on two? At the moment, the ruling is what established the legal status. Therefore, every place where the Torah believed one witness, he is considered like two—he is considered like two in the sense that in the end the court ruled, and the ruling is an absolute ruling. In order to overturn an absolute ruling, it is not enough to bring one witness; you need to bring two. Okay? One could have said what Noa is saying, but I don’t think it fits Abaye’s words.

[Speaker F] It won’t fit.

[Rabbi Michael Abraham] But

[Speaker F] still, Rav David Povidarsky says nothing except to say that he simply defines the one witness of rabbinic law and the one witness of Torah law. There is no reasoning here at all.

[Rabbi Michael Abraham] Correct. That is why I added this reasoning—that I think what really stands behind it is that the judgment has the status of two, not the testimony of the one witness. But with one witness who is believed by Torah law, then the one witness himself is considered like two, regardless of the fact that they ruled on his basis. Therefore, even if it happens simultaneously and he is contradicted by another witness, we will still treat him like two. And the explanation for that—also a big question why—the explanation, I think, is that in the case of a sota we have not done something irreversible. In the end the water will test it and the truth will come out.

[Speaker I] I wanted to note—I don’t know if I understood correctly—but there is a bit of a difference from the wording of the baraitot, because they refer to the situation where she already married, and they refer to the situation after the ruling, whereas it could be that she still has not married but is already in that state.

[Speaker E] Right, once they permitted her, even though she has not married, the judgment is: she is permitted to marry. That would be

[Rabbi Michael Abraham] a practical difference between Noa’s explanation and mine. Because according to Noa, seemingly she has to—although one could discuss it—it may be that the presumption changes after the ruling, and she need not actually marry. If I want to say that she stands under the presumption of being married to the second man, that of course is only after she actually marries. According to my approach, clearly the ruling itself is enough. Fine? Okay. Now there is the Mishnah in Yevamot—I still want to get to this point today—there is the Mishnah in Yevamot with all the catastrophes. A woman whose husband went overseas, and they came and told her that her husband died—the Talmud explains that it is talking about one witness—they came and told her that her husband died, and she married, and afterward her husband came—he came alive on his own two feet. She must leave this one and that one, and she needs a bill of divorce from this one and that one, and she has no marriage contract payment, no produce, no support, no maintenance, and no worn goods, neither from this one nor from that one; and if she took from this one or from that one, she must return it; and the child is a mamzer from this one and from that one; and neither this one nor that one may become impure for her; and neither this one nor that one has rights to her found objects, nor to the work of her hands, nor to annul her vows. If she was the daughter of an Israelite, she is disqualified from marrying a priest; if the daughter of a Levite, from the tithe; if the daughter of a priest, from terumah. And the heirs of this one and the heirs of that one do not inherit her marriage contract. In short, a perfect catastrophe. Okay.

[Speaker E] And that’s what’s surprising, that’s exactly what’s surprising,

[Rabbi Michael Abraham] that some of these things are required by the strict law, and some others come from the principle that by being stringent with her at the end, you are lenient with her at the beginning—or the reverse. In the end, it could be that at least some of these things are only rabbinic stringencies, so that a woman will understand what she is doing when she decides to marry, and then that will actually enable us to permit her to marry. This whole purpose is really aimed at creating a situation in which a woman will be able to marry—precisely to marry. It is like what we discussed about “so as not to lock the door,” where we make life easier for the lender. Why? Seemingly that hurts the borrower. The answer is no, because if we make life easier for the lender, then he will be more inclined to lend. If you make it harder for him to collect the loan, he will lend less, so what has the borrower gained? He won’t find lenders who will lend to him. Okay? So here too it is the same thing. We are indeed very stringent with her at the end, but in the end that creates leniency at the beginning. She knows that if she checked and it really is true that the husband died, then there is no problem, she need not fear anything—the husband is dead and none of this will happen. But we cause her to check very, very carefully that this really is the case, and not to marry and create all these catastrophic problems here. So the Talmud establishes that we are dealing here with one witness. I’m not going into all the stages here. In the end the Talmud asks: from where do we know this itself? At the beginning—sorry—maybe still one thing for general background that can’t be skipped. The Talmud says: yes, apparently one witness is believed, etc. Rather, it is logical. From where? Why is she believed? Why can she marry? It is analogous to a piece about which there is doubt whether it is forbidden fat or permitted fat, and one witness comes and says, “I am certain it is permitted fat,” and he is believed. Okay? Basically, this is about the rule that one witness is believed regarding prohibitions. I have a doubt; one witness comes; one witness is believed regarding prohibitions. So the Talmud says: one witness in testimony about a woman—this is the fundamental sugya of testimony about a woman, and you have to understand that this is a very foundational sugya. The fundamental sugya of testimony about a woman is Yevamot 88. And there the Talmud asks: from where, from where do we learn that this witness is valid? The Talmud says: what is the problem? After all, one witness is believed regarding prohibitions. So this is like any other prohibition. The Talmud says: are they comparable? There, no prohibition was previously established; here, the prohibition of a married woman was previously established, and in matters of forbidden sexual relations there are never fewer than two witnesses. Here there are two different reasons, and the medieval authorities (Rishonim) and later authorities (Acharonim) struggle a great deal over how to understand this. I’m saying this because, for general background, it is very important to know this. For our purposes it is less critical, but it is important, because the Talmud raises two reasons here. One reason is: how can you compare a matter of forbidden sexual relations to a prohibition? A prohibition—whether pork is permitted or forbidden to eat—there one witness is enough, or forbidden and permitted fat. But in a matter of forbidden sexual relations, you need two witnesses; they learn “matter” “matter” from monetary law, that in a matter of forbidden sexual relations you need two witnesses. What is the “previously established prohibition” doing here? Why is that important? They are raising another reason here: with a woman, after all, we are coming to permit a woman who had the presumption of being a married woman. Now, when you come to act against a presumption, you need two witnesses; one witness is not enough. If you have a doubt—maybe forbidden fat, maybe permitted fat—and there is no presumption, one witness is enough; he decides the matter. But regarding a woman, there is a presumption that she was a married woman; there you need two witnesses. That reason assumes that there is no difference between a matter of forbidden sexual relations and prohibitions. The only question is whether there is a presumption or not. If there were a presumption in a prohibition—say, a piece that had been presumed permitted, and now someone comes and says, “What are you talking about? This piece became non-kosher”—okay? There too, two witnesses would be required. “One witness is believed regarding prohibitions” was said only where there is no prior presumption. Where there is a prior presumption, you need two witnesses. According to that approach, there is no difference between a matter of forbidden sexual relations and prohibitions. The only question is whether we are trying to overturn a presumption, in which case you need two witnesses, or whether there is no presumption, in which case one witness is enough, both in a matter of forbidden sexual relations and in prohibitions. According to the second reason, of a matter of forbidden sexual relations, there is an essential difference. In a matter of forbidden sexual relations you need two witnesses; in prohibitions one witness is enough; and now you have to discuss when. In a matter of forbidden sexual relations, do you need two witnesses when there is a presumption, or do you need two witnesses in a matter of forbidden sexual relations always? It is not clear. On all these matters there are disputes among the medieval authorities (Rishonim) and later authorities (Acharonim).

[Speaker I] And if there is—and if it is not a matter of forbidden sexual relations but there is a presumption?

[Rabbi Michael Abraham] If it’s the same thing, that too is disputed. If it is not a matter of forbidden sexual relations and there is a presumption, there are views among the medieval authorities (Rishonim) and among the later authorities (Acharonim) that you need two witnesses. Only when you are not overturning a presumption, when you are merely resolving a doubt, can you say that this is no worse than a person who says, “I am certain.” So one witness comes and says, “I am certain.” It is a doubt. But if there is a presumption against him, you cannot say certainty against a presumption. You cannot change a presumption by the force of a claim of certainty. You need two witnesses to change presumptions. So in short, there is a big dispute. The dispute is the question, even in prohibitions: when there is a presumption, is one witness still enough, or do you need two? And in a matter of forbidden sexual relations it is clear that when there is a presumption, you need two. The dispute is about a case where there is no presumption, but it is a matter of forbidden sexual relations: do you still need two there too, or there is it like prohibitions and one witness is enough? Okay, so all these views exist; I’m not getting into them now. For our purposes, bottom line, the Talmud says therefore this cannot be—it is not similar to a matter of forbidden sexual relations, or it is not similar to prohibitions, sorry—either because there is a presumption here, or because it is a matter of forbidden sexual relations. And then the Talmud says: by being stringent with her at the end, you were lenient with her at the beginning. Why be stringent and why be lenient, asks the Talmud? Then don’t be stringent and don’t be lenient. Because of aginut, the rabbis were lenient with her. We want to be lenient because of aginut, not to leave her an agunah, but the only way for us to ensure that we really can be lenient with her is to be very stringent with her at the end. Now regarding this matter, we see that this is the presumption that she checks carefully and then marries. This is what is called the presumption that she checks carefully and then marries: that because of the stringency you impose on her at the end, she will be very precise before she goes to marry, and therefore if she did marry, then apparently one may believe her.

[Speaker E] But why not say: by being stringent with her at the beginning, you were lenient with her at the end?

[Rabbi Michael Abraham] Because I want to be lenient with her so that she can marry. Right, but this way she’ll never marry.

[Speaker E] She

[Rabbi Michael Abraham] She’ll never marry. Right.

[Speaker D] Is there anything to say about not marrying that goes together with “she checks carefully and then marries”?

[Rabbi Michael Abraham] That’s on page 93. I mentioned, I think, on the sheet that Meiri claims the sugyot disagree. On page 93 they connect it to something liable to be discovered. What does that mean? When she says that her husband died, after years it will eventually become clear whether he died or did not die. Either he will come himself, or witnesses will come that he is alive in Australia, or I don’t know what—but at some point it could become clear. A reasonable chance. It could, it could become clear. In such a situation, the woman will not lie; the woman will check it thoroughly. The question is—Meiri, for example, claims that this is a different presumption; it disagrees with “she checks carefully and then marries.” Maimonides brings only that presumption and not this one, and the later authorities (Acharonim) discuss why, why he brings only that one. There is certainly room to say what Idit hinted at here: maybe it is the same presumption in different wording. After all, what is basically written here? What is written here is that this is something liable to be discovered, and if it is liable to be discovered, then look what a mess is going to be created here—the stringency you imposed on her at the end—and precisely because of that she checks carefully and then marries. Okay? All these possibilities exist. Again, I’m not getting into all these views because it doesn’t concern us. I just want us to gain some general background, because we will encounter this sugya of testimony about a woman later as well, so this is already a chance to get a bit acquainted with it. In any case, for our purposes, Tosafot there in Yevamot says that this is a rabbinic rule. You saw it, right? It seems to Ri that we should not say “we are witnesses” that she checks carefully and then marries, and therefore one witness should be believed in this by Torah law; rather, it is by rabbinic enactment that he is believed. And this is not considered uprooting something from the Torah, since it is reasonable to believe the matter, as I will explain later, that in a matter where there is some rationale and support, it is not considered uprooting something from the Torah. By the simple meaning of his language, by the way—and I’m saying this parenthetically—it sounds as though it is permitted to uproot something from the Torah whenever the matter seems proper to us, which is very strange. After all, the rabbis, whenever they come—just a second, just a second—when the rabbis come to uproot something from the Torah, obviously it seems proper to them to do it. That is clear; they do not do it for no reason. So what does he mean to say here? So then one could always uproot something from the Torah? It seems to me that what he means is what I said earlier: since it seems proper to us to believe, meaning that factually it is certainly true, the only problem remaining is merely a formal one—that in a matter of forbidden sexual relations you need two witnesses—so in such a case it is not considered so much an uprooting of something from the Torah. That is what he means to say. Not that since it seems proper to us, therefore it is permitted to uproot something from the Torah—no. Since it seems proper to us factually to believe, then the formal uprooting of something from the Torah is not so terrible, because factually I am not permitting a married woman to the public market. It seems to me that is what he means to say. Rashi on the Mishnah on page b there, on 87b, the previous page, also implies that this is a rabbinic rule. You see? Like any other married woman who committed adultery, that she is forbidden, she is under compulsion here; and even though the rabbis believed one witness regarding a woman because of aginut. You see? Meaning basically this is a rabbinic rule. Both Rashi and Tosafot. Rashi in Shabbat 145 also says the same thing regarding testimony about a woman; there it is a witness reporting another witness. A witness reporting another witness is believed in testimony about a woman, and so Rashi says: to tell a woman “your husband died,” for the rabbis were lenient with her because of aginut. Again, a rabbinic leniency. And whoever betroths does so subject to the rabbis, and the rabbis annulled his betrothal from him. What does that mean? The standard explanation, although in my view it is not exact, is that basically every betrothal is conditional. It is on condition that the rabbis agree. “Behold, you are betrothed to me according to the law of Moses and Israel.” Meaning on condition that Moses and Israel—Israel’s representatives, the sages—agree. So if the sages do not agree, then the betrothal is uprooted, because after all it was conditional on the sages agreeing. Therefore the sages can actually uproot betrothal retroactively. Sages, of course, usually means the great court of the generation or something like that; I’m not getting now into the question of which sages are meant. But that is the mechanism of “the rabbis annulled his betrothal from him,” or “whoever betroths does so subject to the rabbis.” Okay?

[Speaker E] But if the rabbis annulled that betrothal, then why do we need to penalize her with all the things written there in Yevamot?

[Rabbi Michael Abraham] Wait, wait, just a second—before the questions, first let me explain. So what Rashi is basically saying is this. We are basically believing this one witness rabbinically. We uprooted the Torah rule. Okay? But you ask: how can that be? By Torah law she is a married woman. Can we permit a married woman to marry by rabbinic law? How can that be? Rashi says no: since the sages have authority regarding betrothal to annul it, the enactment they made actually annulled the betrothal. Consequently, even though it is only a rabbinic enactment, it is effective on the Torah level. Now she is no longer a married woman even by Torah law, because once the betrothal was annulled, she is no longer a married woman. It is only that making this annulment is a rabbinic enactment. We want to believe this one witness, and as a result we are basically annulling the betrothal. Then would she be permitted to a priest? One second. The question Ruti just asked: if so, then why do we need the rationale that by being stringent with her at the end, you were lenient with her at the beginning? Very simple. The sages annulled the betrothal only because they truly believe this witness that her husband died. So first they must believe him, and only afterward do they make the whole enactment. How can they believe him? Because of the presumption that she checks carefully and then marries, the stringency you imposed on her at the end. Okay? All these things remain in place. All Rashi is saying is that this rabbinic enactment ultimately works on the Torah level. Even though it is a rabbinic enactment, it is effective also on the Torah level.

[Speaker E] So according to this, now it is Torah law and not rabbinic law?

[Rabbi Michael Abraham] It works on the Torah level. It is a rabbinic enactment. By Torah law one witness is not believed, but the sages can annul the betrothal, so the sages enacted that one witness would be believed. How can they do such a thing? They simply annul the betrothal.

[Speaker I] But say they really did annul the betrothal, and then her husband returned—with all the stringencies—then her children would be mamzerim. Exactly. According to this point, it would be a problem if they could marry another mamzer.

[Rabbi Michael Abraham] That is the big question, and many later authorities (Acharonim) ask it. How can it be that Rashi brings in here “the rabbis annulled his betrothal from him”? After all, if the rabbis annulled it, then basically if in the end it turns out that her husband is alive, then the whole stringency you imposed on her at the end is wrong. She was never betrothed to the first one; she can continue living with the second one, and everything is fine. To that the later authorities (Acharonim) say—several later authorities (Acharonim); I’m not getting into all the sources now—that no. The sages annulled the betrothal on condition that she checked properly. But here, after all, it turned out that she did not check properly, so for that the sages do not annul the betrothal. And if it turns out—if the husband returns and it turns out that she really was negligent and did not investigate properly—there the sages do not annul the betrothal. And understand that there is no choice but to do it this way, because if we did not do it this way, then there would be no stringency at the end, and therefore it would be impossible to be lenient with her at the beginning, and therefore the whole annulment would never get off the ground in the first place. The whole annulment is conditional on there being a stringency at the end. So it is conditional on this: that if the husband really returns, there we did not annul it. We annulled it only if the husband does not return. You may ask—other later authorities (Acharonim) ask—then why is there any need to annul? After all, if the husband really died, then there is no problem; no need to annul the betrothal, he really died. So here indeed, here indeed, there are various formulations, and the formulation I like better says this. That is true, but by Torah law you need two witnesses to establish it. The sages enacted that one witness would be believed, and since they have the power to annul, then certainly they also have the power to believe one witness—not that they actually annulled. Rather, it is like Maharit ben Lev, if you remember. Since I have the power to give a gift, I am also believed to acknowledge. It is not that there is actually annulment here. Rather, the point is that we could have annulled the betrothal as well. So what is the problem? So we can believe one witness that her husband died when we know with certainty that factually her husband really died. Okay? So it is only a mechanism that explains why we allow ourselves to believe one witness, not that there is actually an annulment here. Okay. Rashba in Ketubot on page 3 also points to this Rashi and explains it on the basis of annulment, but asks: why did they not annul in the case of waters with no end? What is the problem? We have a trick, so let’s annul. What do you answer?

[Speaker D] There there is no certainty that he died.

[Rabbi Michael Abraham] Exactly. What I said at the beginning. There is a huge difference, and the later authorities (Acharonim) struggle with this Rashba. They do not know how to explain it and so on. I say something simple: when one witness comes together with the presumption that she checks carefully and then marries, it is clear to us that factually the woman really is unmarried; the whole problem is only formal, that we have one witness and not two. In waters with no end, we have a small doubt, but there is still some possibility that the husband is alive. In such a situation we will not annul the betrothal. We annul the betrothal only where it is clear to us that factually she really is unmarried. Certainly if what I said earlier is correct—that we do not really annul at all, but only the ability to annul explains why we may enact belief in one witness—then all the more so that this is obviously the case. Even if they do annul, one can explain it this way. That is Rashba. There is another view in Ritva that disagrees with him. Ritva basically says: yes, why didn’t they bring from here that a court may stipulate in order to uproot something from the Torah? Why didn’t they bring this case as an example? And there are commentators who explain: because the rabbis annulled his betrothal from him. Yes, he writes that here. Wait, here. And that is not our teacher’s intent—our teacher means Ra’ah. Ra’ah was Ritva’s teacher. For if so, they should have mentioned it here. They should have mentioned here that the rabbis annulled it. Why did they not mention the mechanism of annulment? According to what I said earlier, it is very understandable why they did not mention it, because they did not actually annul here. Rather, the ability to annul is what gives the sages the power to believe one witness. Not that they actually annulled. They did not actually annul. And then it works out. But according to his own view he reaches a different conclusion in the end. One may say that the sages accepted that in a matter liable to be discovered, where you were so stringent with her at the end—you see what he is doing here now? He connects the two presumptions: something liable to be discovered, the Talmud on page 93; and the stringency you imposed on her at the end, the Talmud on page 88. He apparently holds that these two presumptions complement one another, what I said earlier. It is certainly true testimony that he is testifying. And when she checks carefully and marries, she marries lawfully. And we are witnesses in the matter. And such publicity is considered everywhere to be complete testimony, even by Torah law. And Scripture entrusted to the sages the determination of what counts as a public and evident matter of truth such that it should be considered testimony. And this is a beautiful teaching from our teacher the Ra’ah. Okay? Now what is he basically saying?

[Speaker E] So for him it’s not rabbinic but Torah law?

[Rabbi Michael Abraham] What? Correct—for him it is Torah law and not rabbinic law.

[Speaker E] And then from his words themselves it will be true like Torah law, or not? I didn’t understand. We said that one witness by Torah law—so from the speech itself it already turns it into…

[Rabbi Michael Abraham] According to Tosafot—according to Tosafot. But Tosafot holds that the whole business here is rabbinic.

[Speaker E] Here he is basically mentioning that because she checked and investigated,

[Rabbi Michael Abraham] Yes, he says once—but Tosafot’s whole approach in any case does not go with Ritva. Because Tosafot speaks about a rabbinic enactment. According to Ritva, this too is Torah law. Right? So we’ll see—we’ll get to the last question on the sheet I sent you. Wait, wait, we’ll get there. It is the last question on the sheet I sent you. We’ll get to it in another moment. I just want to finish because our time is running out. I just want to say—look—so basically what Ritva says is this is a mechanism of “Scripture entrusted it to the sages.” What does that mean? Ritva says this proof is proof on the level of two witnesses. On the evidentiary level of two witnesses. Ritva says proof at such a level has Torah status, like two witnesses. No enactments are needed. The only thing is that the sages are the ones who need to determine when a proof is really strong enough to count as that. That is what is called “Scripture entrusted it to the sages.” Meaning the Torah gives the sages the authority to determine whether a certain proof is strong or not. This has enormous practical consequences in Jewish law. When today we speak, for example, about a polygraph, or photographs, or DNA, or scientific genetic evidence of one kind or another—everywhere there is a matter of forbidden sexual relations and you need two witnesses, or even in monetary law—can one rely on this or not? There are many halakhic decisors who say no. Only two witnesses. It is not a question of evidentiary level; it is a formal question: you need two witnesses. The best proof imaginable will not help. According to this Ritva, that is not true. If there is good proof at the level of two witnesses, the sages can determine that this too is effective, and it will be effective by Torah law. Because the Torah itself accepts such an evidentiary level. It only wants the sages to confirm that this evidence is indeed strong enough. Once the sages confirm it, it is effective by Torah law. This Ritva is very far-reaching. It has many halakhic implications. That is why it is important to know these things.

[Speaker I] But if I have DNA proof that this child is not from this father, can you execute the woman because she committed adultery? Yes, yes. Wow, that’s far-reaching.

[Rabbi Michael Abraham] Yes. No—again, there were no witnesses and no warning, but in principle yes.

[Speaker I] Witnesses and warning…

[Rabbi Michael Abraham] In any case, no, there was no warning; the witnesses were there. The genetics are the witnesses. Assuming, again, that the reliability of the genetics is strong enough, because there are issues there too. But I mean assuming that the sages of science reach the conclusion that there is sufficiently strong reliability here, it has the status of two witnesses. What does

[Speaker H] it mean that it has status, and that it has proof by Torah law?

[Rabbi Michael Abraham] Ritva claims that this is the Torah law of two witnesses. That when the Torah said, “By the mouth of two witnesses a matter shall be established,” the Torah meant to say: by proof with the force of two witnesses. Two witnesses are only an example. Any proof with that force—that is what is required. Now let the sages decide what that proof is, like “if a man’s ox gores his neighbor’s ox.” It does not have to be specifically an ox. They gave an example: if an ox gores, he must pay; if a dog bites, he must also pay. It is the same thing. Ritva claims that the witnesses appearing in the Torah are an example, not an exclusive rule. An interesting question here would be what happens in betrothal, for example—the witnesses for the existence of the matter in betrothal. If I have a video camera filming the betrothal, and now everyone who looks at the video sees that there was indeed betrothal—would that be okay? Is the betrothal valid? Is that like two witnesses? A big question.

[Speaker I] But witnesses have another role; they establish the…

[Rabbi Michael Abraham] So what? But it is like two witnesses.

[Speaker I] But it isn’t obvious that clarifying facts has the same role as testimony in the case…

[Rabbi Michael Abraham] I understand, but if all that is written in the Torah is “by the mouth of two witnesses a matter shall be established,” from where do we know there are betrothal witnesses? They learn it from a matter of forbidden sexual relations. “Matter” “matter” from monetary law. “By the mouth of two witnesses a matter shall be established” in monetary law; there is “matter” in forbidden sexual relations; a verbal analogy from monetary law, so in forbidden sexual relations too you need two witnesses. From here they derive the witnesses for the existence of the matter; there is no additional source. So if for establishing a matter in monetary law, proof with the force of two witnesses is enough for me, why should that not also do the work of establishing the matter in betrothal? Fine. So there is room to deliberate about this; it probably depends on the dispute between Ketzot and Rashba. Ketzot and Rashba disagree. What?

[Speaker E] According to Ritva, it’s not enough that it is one witness for it to be Torah law, but rather one witness plus the woman’s checking and investigation.

[Rabbi Michael Abraham] Correct. When we reach sufficiently good certainty.

[Speaker D] But according to Ritva we have “two are like a hundred”; it doesn’t fit so well for me with Ritva. If I have a hundred witnesses here, that is stronger than two.

[Rabbi Michael Abraham] No. According to Ritva, proof with the force of two witnesses is my one hundred percent. But any other proof that has the same force is also my one hundred percent. There is nothing above one hundred percent. He would accept “two are like a hundred.” Okay? Now here I’m just finishing; I simply want to finish with one more point. I’ll already skip all the places—the Maimonides and all those issues; you can see them in the summary. For us, if the credibility is by Torah law—Ritva, Rashba, maybe Rashi—then Tosafot’s question returns: what is the difference between testimony about a woman and one witness in the case of the sotah? Why here is it one after the other, and there it can even be at the same time? The answer is, I think—according to Ritva it will be harder. But say according to Rashba, I think one can understand it. In the end, by Torah law this witness is not considered like two; only rabbinically. True, the rabbis have authority to annul, and therefore this thing is effective on the Torah level. But to view this witness as two—that is not so; that is only rabbinic. Therefore Tosafot’s distinction remains. According to Ritva it is harder. Because according to Ritva, the rabbis determine that this witness really is like two.

[Speaker E] No, but that is also because of the woman’s investigation.

[Rabbi Michael Abraham] Right, but there is also the woman’s investigation. There is the woman’s investigation. After all, one witness without the investigation would not have been enough.

[Speaker E] Fine, but there is

[Rabbi Michael Abraham] Here the woman’s investigation. It is with the investigation. Well, this is not one witness alone. So what? So the one witness plus the investigation is like two. Now one witness comes against that, so one witness against two. So according to Ritva that indeed remains difficult, and we need to see how to reconcile the sugyot according to Ritva, but that concerns, again, one witness in the case of the sotah; it is less relevant to us. According to Rashba and Rashi, I think yes.

[Speaker D] Wait, wait—again about Rashba then.

[Rabbi Michael Abraham] And according to Rashba, Rashba and Rashi explain that this is “the rabbis annulled his betrothal from him.” Basically, this one witness is not really considered like two. It is a rabbinic enactment to treat him as credible in testimony about a woman. But since the sages have authority to annul betrothal, they can also believe one witness. But practically speaking, if you ask me what the evidentiary level of this witness is—the level of one witness, not of two. Therefore according to Rashi and Rashba one can explain like Tosafot. According to Ritva it is harder. Okay, I’ll stop here.

[Speaker D] Rabbi, can I ask something not directly related to the class? Yes. Just some pilpul that came to me during the learning, that I saw regarding agunot in Yevamot, with all the stringencies at the end. So I just thought while they were learning that one witness is believed

[Rabbi Michael Abraham] regarding prohibitions—from…

[Speaker D] That is part

[Rabbi Michael Abraham] of the same dispute I mentioned earlier, because in the case of niddah, she is counting for herself; basically she comes to remove herself from the presumption of impurity. Exactly. But if she comes to remove herself from the presumption of impurity, that really is like a matter of forbidden sexual relations. So if

[Speaker D] so, then how can they learn from that that one witness is believed regarding prohibitions—is it not learned from niddah?

[Rabbi Michael Abraham] Therefore it is clear that they would not learn it from niddah. I mean, even without the issue of a matter of forbidden sexual relations—even according to the view that niddah is not a matter of forbidden sexual relations—after all, the very fact that she comes to overturn a presumption, how can one learn from there that one witness is believed? So therefore, in any case, there are different sources here, and the Talmud itself there discusses from where this is learned and brings several sources, so there are disputes among the medieval authorities (Rishonim). Right, right. Okay, all right, thank you, thank you very much, goodbye, shalom.