Ketubot, Chapter 2, Lesson 44: She Married, and Afterwards Witnesses Came
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Table of Contents
- The Mishnah: “The mouth that forbade” and dependence on witnesses
- “But if after she married witnesses came, she need not leave” and the nature of the witnesses
- Two directions for understanding “she need not leave”: a leniency or the primary law
- “The mouth that forbade” versus migo: formality versus evidence
- The relation to the issue of “the mouth that forbade retroactively”
- An implication for monetary law: “This field belonged to your father”
- A captive woman versus a divorced woman: the basis of the leniency
- Rav Hamnuna: “A woman does not have the brazenness to confront her husband”
- The Rif’s ruling and how to understand it: a split between divorcee and captive woman
- Tosafot: why she should not marry ab initio, and what helps after the fact
Summary
General Overview
The point of departure is the Mishnah, which grants credibility to a woman who says about herself, “I was a married woman and I am divorced,” or “I was taken captive and I am pure,” by force of the rule “the mouth that forbade is the mouth that permitted.” But it denies her credibility when there are witnesses to part of the prohibitive side, because in matters of sexual prohibition, changing a presumption requires two witnesses. The Mishnah then adds the novelty: “But if after she married witnesses came, she need not leave,” and the discussion explains this through a distinction between “the mouth that forbade” in its full sense and its evidentiary dimension as migo, making the result depend on the question of what presumption now stands in the woman’s favor after the court’s permission or after the marriage. The discussion then presents various ways of understanding the permission either as a post facto leniency or as the core law, and examines the positions of Amoraim and medieval authorities (Rishonim) as to whether the rule of “she need not leave” applies also to a divorced woman or only to a captive woman, and whether one may extend it to monetary law such as the presumption of ownership of land.
The Mishnah: “The mouth that forbade” and dependence on witnesses
A woman who says, “I was a married woman and I am divorced,” is believed because “the mouth that forbade is the mouth that permitted.” But when there are witnesses that she was a married woman and she says, “I am divorced,” she is not believed, because she no longer has “the mouth that forbade.” The reason is that a matter of sexual prohibition stands under a presumption of prohibition, and in order to change a presumption in such a matter one needs two witnesses. A woman who says, “I was taken captive and I am pure,” is believed under the same structure, and if there are witnesses that she was taken captive and she says, “I am pure,” she is not believed. The discussion defines that in both cases, when our knowledge of the prohibition comes only from her own mouth, she is the one who created the problem, and therefore we also accept the permission from her mouth; but when the witnesses are the source of the prohibition, she is not the source of the prohibition and therefore does not have the power to permit.
“But if after she married witnesses came, she need not leave” and the nature of the witnesses
The witnesses who come after she has already married are not witnesses testifying that “she became defiled” or “she was not divorced,” because testimony of that kind would require removing her. Rather, these are witnesses who establish the prohibitive side in her place—for example, they testify that she had been a married woman without knowing whether she was divorced, or they testify that she had been taken captive without testifying that she was defiled. The discussion emphasizes that this is not “the mouth that forbade versus witnesses,” but rather a situation in which “there is no mouth that forbade,” because the witnesses undermine the ground beneath her formal credibility. In such a case, had the witnesses been present before the permission, the court would not have allowed her to marry; yet the Mishnah rules that if the permission and the marriage have already taken place and only then the witnesses arrive, “she need not leave.”
Two directions for understanding “she need not leave”: a leniency or the primary law
The first possibility presents “she need not leave” as a post facto leniency in a situation of doubt, motivated by family stability and the desire to avoid severe consequences such as illegitimacy. The second possibility presents “she need not leave” as the primary law, because the court’s permission or the marriage changes the presumption, such that she now stands under the presumption of being unmarried, and from then on, in doubtful cases, we follow the new presumption. The discussion notes that the Talmud says she need not actually marry; it is enough that “they permitted her to marry” in order to change the presumption. The comparison to the earlier issue of two against two places the reasoning in the capacity of the new presumption to decide the matter after the court has already removed her from her previous presumption.
“The mouth that forbade” versus migo: formality versus evidence
The discussion argues that although witnesses came, the “evidence” within “the mouth that forbade” still remains, because at the time she spoke she did not know about the witnesses, and yet she still complicated matters for herself; therefore, had she wanted to lie, she could simply have remained silent. It states that the arrival of witnesses mainly changes the formal status of “the mouth that forbade,” but not necessarily its evidentiary dimension identified with migo. From here a difficulty emerges: if the evidentiary dimension remains even when the witnesses came before the marriage, why do we not permit her ab initio? The proposed solution is that the difference between before the marriage and after it is not in the evidence but in the presumption on which the migo operates, because migo does not remove someone from a presumption of prohibition, but it can preserve an existing presumption. The discussion formulates that in both situations there remains a migo and no longer a full “mouth that forbade,” except that after the court’s permission she is already under the presumption of being unmarried, and therefore a mere claim is not enough to return her to the presumption of being a married woman without witnesses testifying that “she was not divorced.”
The relation to the issue of “the mouth that forbade retroactively”
The discussion raises the question of “the mouth that forbade retroactively” through the example of a woman who says one day, “I was a married woman,” and only the next day adds, “I was divorced,” and it emphasizes that medieval authorities (Rishonim) disagreed there as to whether “the mouth that forbade” helps when the permission does not come in the same statement. It argues that our issue here is not proof for “the mouth that forbade retroactively,” because “the mouth that forbade” operated at the time of the court’s ruling, when there were still no witnesses, and the change in presumption was created then, not retroactively. It emphasizes that once the witnesses arrive, we are no longer using “the mouth that forbade,” but at most its evidentiary dimension of migo; and at times there is no need even for migo, because the new presumption stands against a mere claim. The discussion adds that if there really were here a powerful “mouth that forbade” capable of operating even against witnesses, then one might have had reason to consider that even witnesses testifying that “she was defiled” would not help—but clearly in such a case she would have to leave, so one cannot infer such a power from here.
An implication for monetary law: “This field belonged to your father”
The discussion cites the Shitah Mekubbetzet on the Mishnah of “This field belonged to your father, and I bought it from him,” and presents a discussion of when the witnesses came, and what happens if they came after the court had already ruled in favor of the current holder by force of “the mouth that forbade.” One opinion in the Shitah Mekubbetzet claims that even if the court had already believed him, if witnesses later come “we remove the field from his possession,” and explains the difference by saying that in the case of the captive woman they were lenient. The discussion notes that this position fits a view that limits “she need not leave” to the captive woman alone, while in the case of the divorced woman or monetary matters one returns to the original state. Later, in the Shitah Mekubbetzet on our passage, the opposite possibility is brought—that “we do not take it from him,” because “once they believed him, they believed him”—along with the reservation that perhaps one does not learn from matters of prohibition to monetary law, and that there may be a special argument in the laws of inheritance. The discussion concludes that according to the sugya, three fundamental approaches emerge regarding the validity of a ruling given on the basis of “the mouth that forbade” when witnesses come later, especially depending on whether this turns on the dispute about captive woman versus divorced woman, and whether there is a distinction between prohibitions and monetary law.
A captive woman versus a divorced woman: the basis of the leniency
The discussion asks how it is possible to say that the permission of “she need not leave” is merely a leniency in a place involving a Torah-level prohibition, and proposes that in the case of a captive woman there is a presumption of purity, and the prohibition rests on concern rather than certainty that she was defiled. It sharpens the point that in the case of a divorced woman, the basic presumption is that of a married woman, and therefore if there is no full “mouth that forbade,” and migo is not enough to remove her from that presumption, then “if she married, she must leave” is the actual law and not merely a rabbinic stringency. It formulates that the difference between captive woman and divorced woman is not only compassion or policy, but the very structure of the presumptions: in the case of the captive woman the presumption helps toward leniency, while in the case of the divorced woman the presumption keeps her under prohibition until valid proof appears. The discussion connects this to the understanding in the Shitah Mekubbetzet that places “they were lenient with a captive woman” as the key to the idea that “she need not leave” is not a sweeping rule.
Rav Hamnuna: “A woman does not have the brazenness to confront her husband”
The discussion presents Rav Hamnuna’s rule that a woman who says to her husband, “You divorced me,” is believed on the basis of the presumption that “a woman does not have the brazenness to confront her husband,” and asks how such an evidentiary presumption can operate in a matter of sexual prohibition, where two witnesses are required to change a presumption. It points to Tosafot and to the approach of “this weakens that presumption,” in which an evidentiary presumption undermines the very presumption of prohibition and allows change without full testimony. The discussion sharpens that there is tension between the interpretation of “the mouth that forbade” and the presumption of lack of brazenness, and ties this too to the dispute between Rashi and Tosafot as to whether migo de’i ba’i shatik counts as “the mouth that forbade.” It brings the issue in tractate Gittin where it says “in his presence,” as opposed to “not in his presence she is brazen,” and uses that to explain why Rav Hamnuna’s credibility may be limited to a case where she says it in his presence.
The Rif’s ruling and how to understand it: a split between divorcee and captive woman
The discussion describes that the Rif brings the parts of the Mishnah separately, and brings the Talmudic discussion of “she did not actually marry, rather once they permitted her to marry” only in the context of “I was taken captive and I am pure.” The Ran and Nachmanides infer from this that the Rif rules like Rava bar Avin, that the rule “if after she married witnesses came, she need not leave” was said only regarding the captive woman and not regarding the divorced woman, and therefore there was no need to bring the dispute at the beginning of the Talmudic discussion. The discussion notes that one could have explained that the Rif divided things for literary reasons, because of the adjacency of sugyot, but the omission of the Amoraic dispute strengthens the reading that he was issuing a halakhic ruling. The resulting conclusion is that according to the accepted ruling, the permission of “she need not leave” does not apply equally to both cases in the Mishnah.
Tosafot: why she should not marry ab initio, and what helps after the fact
The discussion cites the question of the medieval authorities (Rishonim): if Rav Hamnuna believes her when she says “You divorced me,” why is she not permitted ab initio? And it brings from Tosafot that the Mishnah is dealing with a case “not in his presence,” and therefore the presumption of lack of brazenness does not have the same force. Tosafot present a distinction according to which the assessment that she lacks brazenness is weaker when not in his presence, and therefore it is not enough ab initio, though it can combine after the fact to support “if she married, she need not leave.” The discussion notes that some medieval authorities (Rishonim) hold that even according to Rav Hamnuna himself there is no ab initio permission, and only after the fact, “if she married, she need not leave,” and this reduces the need for the distinction between in his presence and not in his presence. Finally, it brings from Kovetz Shiurim that the permission of “the mouth that forbade” depends on a power of credibility beyond “why would I lie,” and that when witnesses come, that power of credibility disappears and only the evidentiary force of migo remains, which does not remove her from the presumption of being a married woman unless there is some additional factor that undermines the presumption.
Full Transcript
[Rabbi Michael Abraham] Let’s begin. Okay, our point of departure is the Mishnah. A woman who says, “I was a married woman and I am divorced,” is believed, because the mouth that forbade is the mouth that permitted. And if there are witnesses that she had been a married woman, and she says, “I am divorced,” she is not believed. Right? If there aren’t witnesses, she is believed because she has the mouth that forbade. If there are witnesses, she doesn’t have the mouth that forbade, and therefore she isn’t believed. Why is she not believed without the mouth that forbade? Because this is a matter of sexual prohibition. Meaning, she has the presumption of being a married woman, and in order to change a presumption in a matter of sexual prohibition, you need two witnesses. If she says, “I was taken captive and I am pure,” she is believed, because the mouth that forbade is the mouth that permitted. And if there are witnesses that she was taken captive, and she says, “I am pure,” she is not believed. So that’s the second parallel case: both the case where she testifies that she was taken captive and is pure, and the case where she testifies that she was a married woman and got divorced. In both of those cases, our knowledge that she had been married, and that she had been taken captive—that is, the mouth that forbade is her own mouth. Meaning, she herself created the problem that now has to be dealt with, so we also give her credibility to permit it—right, the mouth that forbade is the mouth that permitted. If we have witnesses who prohibit, then she is not the mouth that forbade, and therefore she also cannot be the mouth that permitted. At the end of the Mishnah: “But if after she married witnesses came, she need not leave.” Meaning, we’re talking about those same witnesses who arrive after she has already received permission to marry. She came and married after saying, “I was a married woman and I am divorced,” or “I was taken captive and I am pure.” Parenthetically, in “I was taken captive and I am pure,” she marries a kohen. If she married someone who isn’t a kohen, there’s no issue. Meaning the whole problem is only because she is forbidden to a kohen, so we’re talking about a case where she married a kohen, or a case of “I was a married woman and I am divorced” and she married any other man, and now witnesses came. Now clearly we are not talking about witnesses who came saying that she was defiled, or witnesses who came saying that she was not divorced, because if such witnesses came, of course she would have to leave. Right? All the witnesses we’re talking about are witnesses who serve as the mouth that forbade in her place. Meaning, witnesses who say that she had been a married woman, but they don’t know whether she got divorced or not. Now she comes and wants to say, “I got divorced.” She is not contradicting the witnesses. In a case where she goes directly against two witnesses, she won’t be believed. Here we are talking about a situation where the witnesses do not go against her; the witnesses only pull the rug out from under her mouth-that-forbade, because they are the mouth that forbade, not her. So if the witnesses testify that she had been a married woman, and now she wants to say, “I got divorced,” there’s no problem—the witnesses don’t deny that. That may be true. But on the other hand, the fact that she had been a married woman is not based on the prohibition that came out of her mouth, but on the mouth of the witnesses. And since she is not the mouth that forbade, then to change status in a matter of sexual prohibition, what she says—“I got divorced”—isn’t enough; you need two witnesses. And the same with a captive woman who claims she is pure, that she was taken captive and is pure. Therefore, the existence of the witnesses is not a frontal contradiction. This is not a question of the mouth that forbade against witnesses, but rather that where there are witnesses, there simply is no mouth that forbade. The witnesses pull the ground out from under the mouth that forbade—that’s the point. We’ll see that later, because it’s an important point here. So we are dealing with witnesses who come and prohibit in her place—that is, she is not the one prohibiting, they are the ones prohibiting. In such a situation, in principle, if this had happened before the court, the court would not have given her permission to marry. But the Mishnah’s big novelty is that if nevertheless it happened—that is, the witnesses were not there, the court allowed her to marry, and now the witnesses arrived—the novelty of the Mishnah is that in such a case, despite the fact that ostensibly she has gone back to the status of a married woman, and in order to change that you need two witnesses to change her presumption—or, in the case of a captive woman, to change the presumption that she was defiled, you need two witnesses—in both of these cases, nevertheless, if she married, she need not leave. That’s an interesting question: why need she not leave? After all, that very same situation before the marriage, of course we would not have allowed her to marry. So why does this happen? In principle, there are two ways to understand it. One direction is that this is some kind of leniency. A leniency—we’re in doubt. I don’t know exactly, there are considerations this way and that way, and once she already got married—or certainly if she has children who would become illegitimate if we declare her to be the first husband’s married wife—we say, okay, we’re not going that far. We’re lenient with her if she already got married. That’s one way to read it. The second way to read it is that no, this is the actual law. Meaning, if she already married, say her presumption changed, for example, so that now she has the presumption of being unmarried, because the court permitted her to marry and she married. Later in the Talmud they say that she doesn’t actually have to marry; it’s enough that the court gives her permission to marry. Okay? So she has become presumed unmarried—that is, her presumption of being a married woman has been neutralized. And then, in such a case, if she married, she need not leave, because that’s her presumption. If she did not marry and she is still in her original presumption, then we do not allow her to marry. Meaning, basically, what the marriage does is not that it complicates things more and we just want to take her situation into account and therefore we’re lenient that if she married she need not leave. Rather, it changes the core law, because now she has a different presumption, and therefore in doubtful cases we follow the new presumption. In the previous sugya we said something even more far-reaching. We said that if witnesses come and say she was divorced after we already took her out of that presumption, then too she need not leave according to… right, she need not leave—which is more severe than this case. Why? I didn’t understand. Because in this case they are only testifying that she had been a married woman. So? I didn’t understand the claim. No, I’m saying this case is more—meaning, this case is much easier than the cases we saw, say, in the case of two and two. Where two witnesses came and said that she got divorced, took her out of the presumption of being a married woman, and now two other witnesses come and say she did not get divorced, and we still say she need not leave. Why is that more severe? Two against two—we have to discuss now what the doubt is in a case of two against two.
[Speaker B] It’s more severe, because she is now under the presumption of being unmarried after the court permitted her. Okay. Whereas in the previous sugya they testify that she was not divorced, while here they testify only that she had been a marri—
[Rabbi Michael Abraham] woman.
[Speaker B] I understand, but against them there are witnesses that she was divorced.
[Rabbi Michael Abraham] Against them too there is a stronger force in the previous sugya.
[Speaker B] I didn’t hear—what?
[Rabbi Michael Abraham] I’m saying that in the previous sugya too there is a stronger force against them.
[Speaker B] True, they testify that she was not divorced, but there are also two witnesses who say that she was divorced. Both sides here have a stronger force. But once the court has already taken her out of the presumption of being a married woman—so what? Then of course now if two witnesses come, she still need not leave.
[Rabbi Michael Abraham] If in the previous sugya, after they took her out of the status of a married woman, two witnesses came saying she was divorced, and there too she need not leave…
[Speaker B] But there, what took her out of the presumption of being a married woman was two witnesses. Here it was based only on her own claim.
[Rabbi Michael Abraham] I’m saying, there are considerations in both directions. After all, there it’s two against two; the two in each direction are two. Right, but the ones who already took her out mean she now has the presumption of being unmarried. But what took her out? She was taken out on the basis of two witnesses—that’s much
[Speaker B] stronger than here, where they said, okay, we just didn’t know at all—if we had known, we wouldn’t have taken you out. There there are two witnesses, so even if two witnesses come against them, we still remain in this sort of tie, this sort of limbo of two against two.
[Rabbi Michael Abraham] There are arguments in both directions, I’m saying. Because the two witnesses here are not even coming against what she says… Right, but there there are witnesses against what she says, but on the other hand there are also witnesses for what she says. Here she has no witnesses that she got divorced. There she has witnesses that she got divorced, not only witnesses that she didn’t get divorced. In both directions there are two witnesses, so I don’t know how… there is a reason for leniency and a reason for stringency. In any event, that’s what appears here in the Talmud. We’ll see later, it could be that this
[Speaker B] will depend on the dispute between Rav Hamnuna and Rava bar Avin,
[Rabbi Michael Abraham] whether this is only with a captive woman or also with a divorced woman. But I want to preface this with a discussion that will touch on the sugya later, but still, it’s important to me to do it already here. Look, in principle what we have here is a case of the mouth that forbade: the woman forbade herself, and therefore she is also believed to permit, and now something happens that pulls the rug out from under it, neutralizes it. At the moment, she no longer has the mouth that forbade. She had it at the moment of the court’s decision; the court relied on it. But now it turns out that it doesn’t exist. There’s room to ask what happens in such a case. After all, it’s obvious that the only reason we allowed her to marry was because she had the mouth that forbade. Otherwise, on the basis of her claim alone, she cannot take herself out of the presumption of being a married woman. And now suddenly it turns out that there is no mouth that forbade. Meaning, that presumption—that wasn’t the presumption, that reasoning of the court was mistaken. She doesn’t have the mouth that forbade. So maybe something here… when evidence comes, evidence comes. What do you mean there’s no end to this? So one time yes, one time no? No, it’s not one time yes and one time no. When there are witnesses, we act according to the witnesses. What do you mean? We said that once she has the mouth that forbade, she marries permissibly. Now you can’t just reverse it. Every time someone comes… Clearly. It’s not every time. Again—what do you mean every time?
[Speaker C] Here two witnesses actually came. It’s not just that someone is making a claim and we decide to believe him just like that.
[Rabbi Michael Abraham] Here two witnesses came who weren’t there before.
[Speaker C] There’s new information.
[Rabbi Michael Abraham] But she has the presumption of being a woman
[Speaker C] who is, yes, yes, divorced.
[Rabbi Michael Abraham] Fine, so we’ll reopen the case. What do you mean? So what?
[Speaker D] What happens with refutation by proving the witnesses were elsewhere? Two witnesses come and say Reuven murdered someone. Then two other witnesses come and refute them.
[Rabbi Michael Abraham] So what, should we say to them, no no, we already accepted the first witnesses? What can you do? Of course not. But if someone has already been executed on the basis of the witnesses, then no, you can’t reverse that. So what?
[Speaker D] If he was already executed, then we can’t—what can we do.
[Rabbi Michael Abraham] But I’m talking now about a case where they didn’t execute him. But theoretically, you would say that such refutation is still possible. Come on, let’s punish those witnesses. Fine, we really will refute them. After…
[Speaker E] After they executed a person? Yes, yes. So what remains of refutation then? What is refutation?
[Rabbi Michael Abraham] Refutation in the sense of turning them into liars. “As he plotted,” and not “as he did,” so we don’t…
[Speaker E] We don’t give them the punishment because it’s already “did” and not “plotted.”
[Rabbi Michael Abraham] But if they were refuted and became liars, then
[Speaker E] they became liars. A ruling was accepted here—one second—a ruling was accepted here
[Rabbi Michael Abraham] a court ruling
[Speaker E] on a basis that afterward turned out to be a basis
[Rabbi Michael Abraham] that was incorrect, or a partial basis. You have to understand: in another situation, if there was a ruling that later turned out to have been made without all the evidence being before the court, the ruling is void. Except for rabbinic concerns—I’m saying, the degradation of the court. There are situations where we are concerned with the dignity of the court and we do not cancel the ruling. But here we are talking about the prohibition of a married woman, a matter of sexual prohibition, and this entire permission was based on partial information. So maybe one could say that once the court decided to permit her, then since they permitted her, and on their authority he married her, they also uprooted the first marriage. But that is already very far-reaching. What you’re really saying is that there was some kind of
[Speaker C] special determination of the court to uproot the marriage. That also has all kinds of practical implications, of course—what happens if she committed adultery in the meantime, and all kinds of things like that.
[Rabbi Michael Abraham] I don’t see any hint here of such a mechanism. It seems that the discussion here is really about the core law; it’s not uprooting the marriage. Look, there’s an important point here, and it raises the question with which I want to begin. What does it mean that at the moment she doesn’t have the mouth that forbade? Let’s try to think for a second—let’s go back for a moment to the first classes this year where I spoke a bit about what the mouth that forbade is. After all, the evidence of the mouth that forbade is still there. Did she have a reason to lie? Yes. After all, when she said, “I was a married woman and I am divorced,” she didn’t know that two witnesses would come and say that she had been a married woman. She thought there were no witnesses, and all the same she volunteered
[Speaker D] and forbade herself.
[Rabbi Michael Abraham] Meaning, she herself testified or claimed that she had been a married woman. So if so, we can certainly say: if she had wanted to lie, she would never have said, “I was a married woman,” nor “I am divorced,” and would not have gotten herself into trouble. That argument is still valid even though witnesses have now come. What happened now that witnesses came? When witnesses came, all that happened is only a formal matter. All that happened is that right now, if we were sitting and judging the case, she would no longer have the power of the mouth that forbade. But the evidence of the mouth that forbade—why not? After all, the evidence of the mouth that forbade is not dependent on whether there are witnesses, but on whether she knows there are witnesses. Even if the witnesses had testified earlier, by the way. If the witnesses had testified before she came and said it, only she didn’t know there were witnesses, and now she comes and says, “I was a married woman and I am divorced,” then she has the mouth that forbade in terms of the evidence in it. Because after all, she thinks there are no witnesses, and she gets herself into trouble, so apparently she is not lying. If she had wanted to lie, she would not have gotten herself into trouble. Therefore, the fact that there are witnesses is mainly a formal matter. As far as the evidence involved in the fact that the woman got herself into trouble, and therefore apparently did not lie—that evidence remains intact. And therefore there is room here to say that if she married, she need not leave. Why? Because she has the mouth that forbade. So what if now there are witnesses? True, if we were now adjudicating the case, maybe now we would not permit her to marry. And that itself is a big question, by the way—why? Because what difference does it make? Think now of another situation. A woman comes and says, “I was a married woman and I am divorced,” okay? The court is deliberating. A day later, before they reached a decision, two witnesses arrive and say that she had been a married woman. Before they permitted her to marry, before she already married, but after she testified that she…
[Speaker D] made the claim she made.
[Rabbi Michael Abraham] The evidence of the mouth that forbade is still there for her. The big wonder here. It’s only formal—maybe it isn’t evidentiary, maybe it’s only formal? Exactly. And then I say: now we need to understand. After all, the sugya here—and we already know what comes later, so I’m allowing myself to use it already—if the witnesses arrived before she married or received permission to marry, then we do not give her permission to marry. Right? Even though she has the mouth that forbade, if they came after she made her claim. Right? But if they came after she married, then we say, if she married, she need not leave. There’s something a little problematic here.
[Speaker B] Meaning, on the one hand we say that she has the evidence of the mouth that forbade, but if she has it, then why shouldn’t she marry ab initio?
[Rabbi Michael Abraham] Maybe it’s not enough.
[Speaker B] Why? Because we said that the mouth that forbade is
[Rabbi Michael Abraham] stronger than a regular migo for moving someone out of a presumption
[Speaker B] and all that, because of other aspects to it, not only because of the evidence—meaning, the “why would I lie,” yes. Okay, and therefore?
[Rabbi Michael Abraham] What…
[Speaker B] I remember there were four aspects, but…
[Rabbi Michael Abraham] Right, but
[Speaker B] what do you
[Rabbi Michael Abraham] want to infer from that?
[Speaker B] Therefore? That maybe it still doesn’t
[Rabbi Michael Abraham] succeed in taking her out of her presumption
[Speaker B] if she married.
[Rabbi Michael Abraham] And if she didn’t marry? No, before that.
[Speaker B] If she didn’t marry. Okay. She didn’t marry. Yes. If she didn’t marry and witnesses come, the “why would I lie” is not enough.
[Rabbi Michael Abraham] You’re saying that basically… So why, if she married, need she not leave? I’m saying… If she married, she need not leave—then I would say, like Rav Hamnuna, that there’s some sort of post facto element there, and the presumption of… So here I would sharpen it a bit more. I think that here we really do need to say something like what Noa said. If you looked at the Kovetz Shiurim that I referred you to, he says something along these lines as well. Basically the claim is this: apparently, the evidentiary force that exists in the mouth that forbade is present here, but it’s present both when the witnesses came before the marriage and when the witnesses came after the marriage. As long as, when she spoke, she didn’t know there were witnesses, then what she said is evidence that she is apparently telling the truth, because if she had wanted to lie she wouldn’t have gotten herself into trouble and said she was a married woman at all. That is true in every case, whether the witnesses came before she received permission to marry or whether they came afterward. So what changes? Why, if they came beforehand, do we not let her marry, while if they came afterward, we do let her marry? What changes is the presumption. Something like this we saw in the Ri”d and in the Ba’al Ha-Maor, if you remember, in that sugya of two against two. So the claim basically is that when witnesses come after she had the mouth that forbade, her status at that point is of a woman who has—well, let’s call it a migo. Not the mouth that forbade—a migo. Because the dimension of the mouth that forbade is the dimension beyond the evidentiary dimension; the evidentiary dimension of the mouth that forbade is migo. But in the mouth that forbade there is something stronger, which basically turns her into someone in possession of a presumption—we spoke about this in various formulations. That additional dimension does not exist here. Why doesn’t it exist here? Because once there are witnesses who say she had been a married woman, you can’t say that she eliminated the presumption of being a married woman; the witnesses reestablished it. So you can’t say she is not presumed to be a married woman. She has the evidence, yes—the evidence of the migo—but she is still presumed to be a married woman, and we do not say migo in order to remove, obviously borrowing the monetary expression. Here it’s migo to remove from a presumption of prohibition, not from a presumption of ownership. But when she wants to use migo so that we remove her from the presumption of being a married woman, that won’t help. The mouth that forbade can do that, but migo cannot. What happens after she married? After she married, once again we’re in the same situation. She has a migo, but it’s not the mouth that forbade, because there are witnesses, right? So she has a migo. But now the presumption changed. Because now, after the court permitted her to marry—and we saw that this isn’t only actual marriage, but it’s enough that the court permitted her to marry—then basically the court established her under the presumption of being unmarried. Fine? Now there are witnesses who want to return her to the presumption of being a married woman, and she has a migo in favor of keeping her in her presumption. The migo can keep her in her new presumption. The debate is over the question of what her presumption is going to be, not what her status is, because the witnesses are not saying that she was not divorced. The whole question is just which presumption to relate to. So I have witnesses who say she had been a married woman, and we understand that she had been a married woman—that’s clear to us; the court knows that too. It’s just that the claim is that when the court permitted her to marry, the court changed that state, right? She had been a married woman, and now the court permitted her to marry, so now she is unmarried. So what difference does it make that the witnesses now come and say she had been a married woman? It’s irrelevant. It’s like saying, for example, that witnesses come and say the mikveh was valid. Fine? Now we have a discussion because we know that the mikveh is now lacking. But we have witnesses that the mikveh had been valid. That changes nothing, because we already know it was valid at the beginning, but we already have testimony that there was a stage that…
[Speaker D] The relevant original presumption that determines things is the last known state. Right? That’s the relevant original presumption.
[Rabbi Michael Abraham] If a certain piece of land belonged to Reuven—we have witnesses to that. Then afterward it belonged to Shimon—we have witnesses to that too. And afterward to Levi, and that too we have witnesses for. And now a dispute begins. Are the witnesses that it once belonged to Reuven or Shimon relevant? What difference does it make? We know for certain it already passed on after them to Levi. That’s it—Levi is the current baseline. That’s where the discussion starts. Right? We did not rule whether she is really married, only that she has permission to marry. Right? That’s exactly what the Talmud says: once she received permission to marry, the court canceled her presumption of being a married woman. Once the court canceled her presumption of being a married woman, you want to return her to the state of not being divorced? But you have no witnesses that she was not divorced. You have witnesses that she had been married, not that she was not divorced, right? So on what basis do you want to claim she was not divorced? On the basis of a mere claim. Let’s say the husband comes and says, absolutely not—the first husband—absolutely not, she was not divorced. She says, what do you mean? I have a migo in my favor that shows I was divorced, and after all, right now I have the presumption of being unmarried. So a migo to keep me in my presumption against your claim—there’s no problem at all. Therefore, if the witnesses came after she married, or after she received permission to marry, then even migo is enough. It’s no longer the mouth that forbade; it’s migo. But even migo is enough to do the job. Before that, migo is not enough. Before that, it was against a different presumption—not because that was the mouth that forbade. The difference in when the witnesses came is not a difference in whether she has the mouth that forbade or has a migo. In both cases she has a migo. The question is what the migo is coming up against: against the presumption of being a married woman, or in favor of the presumption of being unmarried. Okay? I think that’s the simple explanation here. And then indeed what is written here—that if she married, she need not leave—is not some special leniency for a woman, because we don’t want to complicate things for her and the children and illegitimacy and so on. No, no—that’s the law. She has a presumption, she has a migo in her favor, and there is a claim against her, a claim that she was not divorced. So what if there’s a claim that she was not divorced? Once she is presumed to be unmarried, a claim by itself cannot turn her back into a married woman. And she also has an additional migo in her favor. Okay? In a certain sense, she doesn’t even need the migo now. The migo only caused the court to place her under the presumption of being unmarried. From that point on, she no longer needs the migo; she has the presumption of being unmarried. What stands against her presumption of being unmarried? Not the witnesses, because the witnesses testify to an earlier phase. As we said, it’s like Reuven and Shimon and Levi over a parcel of land. The witnesses testify that she once was a married woman. Fine—we too know she once was a married woman. But we have already determined that her presumption changed. Right now she has the presumption of being unmarried. Now what comes to remove her from that presumption? Only a claim—only the claim that she was not divorced. By a mere claim, you cannot change a presumption in a matter of sexual prohibition. You cannot change a woman’s presumption on the basis of a mere claim. Meaning, here she doesn’t even need her migo. The migo was just the basis for why the court was willing to change her presumption. Fine? But once the presumption changed, the migo is no longer needed. In the earlier case, when the witnesses arrived before the court’s ruling, I also need the migo. Why do I need the migo? Because—not only do I need the migo, but the migo
[Speaker F] won’t help; you need the mouth that forbade. And I don’t have the mouth that forbade. Why? Because she is still presumed to be a married woman. And in order to remove her from the presumption of being a married woman, you need the mouth that forbade; migo is not enough.
[Rabbi Michael Abraham] Therefore, if the witnesses came before the court’s ruling, it won’t help. Okay? In both
[Speaker F] cases, basically, she has a migo and does not have the mouth that forbade.
[Rabbi Michael Abraham] It doesn’t change the evidentiary status
[Speaker F] depending on when the witnesses came.
[Rabbi Michael Abraham] As long as witnesses have come, what I’m left with is evidence, but apparently not the mouth that forbade. There is evidence; there is no mouth that forbade. So what is the difference between if they came before and if they came after?
[Speaker B] The difference is the question of what her presumption is. If her presumption is that of a marri—
[Rabbi Michael Abraham] woman, a migo cannot remove her from the presumption of being a married woman. If her presumption is that of being unmarried, then you don’t need migo at all to remain under the presumption of being unmarried. The migo was needed to bring her there—which at that point was the mouth that forbade, not migo—to bring her to the presumption of being unmarried. But now, after she is presumed unmarried, nothing is needed anymore. Okay? It seems to me that’s the simple explanation here. Wait, sorry—and what did you say can change the status? The force of a claim? The mouth that forbade—not the force, no, you mean a claim, not the force of a claim. A claim. The force of a claim is in migo. So whose claim? The husband’s? Yes, that she was not divorced. The first husband says, she was not divorced, why did you permit her? Okay. Fine? Or it doesn’t matter—someone else, not important—someone challenges the matter. Here, once she is already under the presumption of being unmarried, you can’t change a presumption with a mere claim. No. Because if witnesses came saying she was not divorced, then I have clear evidence that she is a married woman. With evidence, I can remove a woman from a presumption. Her presumption is still the presumption of being unmarried, but a presumption is not the final word. When there are witnesses against the presumption, the witnesses override the presumption. Here there are witnesses directly against it—there’s nothing to discuss. We’re talking about a case where there is no witness testimony against it; there is a claim against it, there is a migo in favor or against, and there the presumption prevails. Because in order to remove from a presumption, you need witnesses—but if there are witnesses, then they will remove from the presumption. So I’m basically concluding from here that apparently the conclusion that emerges is that “the mouth that forbade” is something that exists even if witnesses come afterward; therefore, if she married, she need not leave. And what I want to claim is that this is not correct. The mouth that forbade does not exist. What remains is only the dimension of migo within the mouth that forbade. For our purposes, that is enough—for the purpose that if she married, she need not leave.
[Speaker F] But in a place where we will need
[Rabbi Michael Abraham] really the force of “the mouth that prohibited,” not of migo, so that’s not correct; it doesn’t work here. Okay? Why am I saying this? If you remember the first classes of the year, when I talked about “the mouth that prohibited” and migo, we also discussed a bit the question whether “the mouth that prohibited” works retroactively. Migo does not work retroactively. “The mouth that prohibited” — the question is whether it does or does not work retroactively. What does that mean? A woman comes and says: I was a married woman. Okay? The next morning she comes to the religious court: “I forgot to tell you, I also got divorced.” She said that afterward. At the stage when she said “I got divorced,” she could no longer deny that she had been a married woman, because she testified to that yesterday. Testified or admitted, because this is self-imposed prohibition (“shavya anafshei chatikha de-isura”), not testimony. But if it comes in two parts then it’s not… So here the question is how — do we say that there is “the mouth that prohibited” retroactively? Because right now she doesn’t have “the mouth that prohibited.” She can’t tell a person, “I wasn’t a married woman at all.” After all, if she had said it simultaneously — “I was a married woman and I got divorced” — why do we believe her? Because she could have denied the whole thing and not said that she was a married woman. That’s “the mouth that prohibited,” right? But if yesterday she said she was a married woman and now she comes and says that she got divorced, now she no longer has the option of saying she wasn’t a married woman, because she admitted it yesterday. Right? On the other hand, the evidence in her favor is there, because the evidence was yesterday, when she still could have denied it. Again, there was room to say that here too this is very similar to the situation I was just talking about, because there is basically the evidentiary dimension of “the mouth that prohibited” here, but not “the mouth that prohibited” in the full sense, because right now she doesn’t have “the mouth that prohibited”; she cannot now deny that she was a married woman the next day. Okay? So ostensibly this is a situation similar to what is happening here. And why am I saying this? Because we saw there that the medieval authorities (Rishonim) disagree on the question whether we say “the mouth that prohibited” retroactively or not. I brought Machaneh Ephraim there, and they discuss whether “the mouth that prohibited” works by the law of migo or whether it is an independent mechanism. But there we discussed that issue. I only want to say that our conclusion here is not necessarily dictated by what happened there. Why? First, because it’s not certain that even the evidentiary dimension of “the mouth that prohibited” exists there. Because yesterday, when she came and said, “I was a married woman,” I believe her that she was a married woman, but she simply wasn’t thinking at all that afterward she would want to lie and say she was divorced. Maybe she decided to lie only a day later. And once she decided to lie, she no longer had the option of denying that she was a married woman. So she cannot claim “why would I lie,” because if I had wanted to lie, I wouldn’t have revealed at all that I was a married woman. Because who says so? Yesterday, when you said “I was a married woman,” you said it innocently. Today suddenly you decided to obtain permission to marry, so now you’re lying and saying “I got divorced.” But today you can no longer deny that you were a married woman. It may be that even the evidentiary dimension is gone here. You could say maybe she has an explanatory claim, and then she has… maybe, yes. You can certainly start getting into the topics of an explanatory claim. Or if she says that already yesterday she planned to say “I got divorced,” but the court closed the session and she didn’t have time, so that’s why it happened only today. Just as an example. Okay? If she brings witnesses for that, then maybe she will at least have the evidentiary dimension of migo, even if she won’t have “the mouth that prohibited,” because right now she doesn’t have the power to claim, “that never happened,” but the evidentiary dimension within migo would still remain. After witnesses come, then it’s already not “the mouth that prohibited.” It is not correct to learn from here that if witnesses came afterward it still remains “the mouth that prohibited” — it doesn’t. It drops to the level of migo. It’s just that migo also has the power to do various things sometimes and sometimes not, depending on what. Okay? The fact that if she married she need not leave is not because it is still “the mouth that prohibited.” For example, “the mouth that prohibited” worked then; it doesn’t happen retroactively. “The mouth that prohibited” worked there when the religious court relied on it and changed her status. Now she has the presumption of being unmarried; she is permitted to marry. Okay? And when the religious court ruled, at that point there was “the mouth that prohibited.” That is not “the mouth that prohibited” retroactively. At that time there really was “the mouth that prohibited,” and we relied on it then. What is happening today in the new discussion — I do not need her “mouth that prohibited,” because once she is in the status of an unmarried woman, what exists against her is only a claim. A claim cannot change her status, her presumption. So therefore you cannot say that here we see “the mouth that prohibited” retroactively. No, it’s not “the mouth that prohibited” retroactively. “The mouth that prohibited,” when it existed at the moment the religious court ruled, existed at that very moment, not retroactively. And when the religious court ruled, it used “the mouth that prohibited” in a completely legitimate way. What is happening now is not a use of “the mouth that prohibited.” So therefore there is no retroactive “mouth that prohibited” here from any angle, because right now I’m not using it at all; I’m not even using migo, as I said earlier — I don’t need it. I simply know that once the presumption changed and now she is a married woman — the religious court ruled, so that’s it, I already used it — so there is nothing retroactive here. There is no reason to connect this topic to the topic of retroactive migo or retroactive “the mouth that prohibited”; it is not happening retroactively at all. That is what I want to claim. Even with retroactive “the mouth that prohibited” there were those dimensions of “don’t use my own words against me,” and “if you believe me the second time, believe me the first time as well,” and now if there are witnesses, then it’s not. Right, but that is exactly — obviously — the side explaining why there is no “the mouth that prohibited” here. It’s not just also; it’s the explanation. It’s the explanation for why when witnesses come, there is no “the mouth that prohibited,” and what remains is only migo — the migo that I could have lied better. But you don’t have the argument, “don’t use my own words against me”; that is the power of “the mouth that prohibited” beyond migo, because here that is not true. It is no longer “don’t use my own words against me.” Retroactively it does work. What works? The “don’t use my own words against me.” No, of course, obviously, but here I’m saying this is not retroactive at all. Right, right, I’m saying that’s why it’s not so connected, because here none of it works. Right. Therefore I’m saying: the claim, the topic here, does not deal with retroactive “the mouth that prohibited” at all; that’s not the point. Because the whole idea — especially in light of the conclusion of the topic, that everything depends on the permission to marry, not on the actual marriage — so permission to marry means that the religious court changed her status. When the religious court did that, she genuinely had “the mouth that prohibited,” not just migo, because then there were not yet any witnesses at all, right? Now witnesses came and reduced her “mouth that prohibited” to migo at the present moment. Now what do I want to do with that “mouth that prohibited” now? Nothing, I don’t need it. Once she has the presumption of being unmarried, then you cannot change the presumption with a mere claim. Therefore here I don’t even need the migo, certainly not “the mouth that prohibited.” Therefore you cannot learn from here that “the mouth that prohibited” works retroactively, because this is not retroactive at all. Okay, that is basically what I want to claim. According to this approach it is not connected at all. Understand, I’ll say more than that: if this really were “the mouth that prohibited” retroactively, then there would be room to say that even if witnesses came that she had become defiled, perhaps they would not be believed, because we already saw — at least in a dispute among medieval authorities (Rishonim) — that there are opinions that “the mouth that prohibited” helps even against witnesses. Because “the mouth that prohibited” means, basically: you are living off my mouth; I determine everything. Whatever I say, you have to accept. And according to some of the medieval authorities (Rishonim), that can help in certain cases even against witnesses. Now here in the topic it is fairly clear that if witnesses come that she became defiled — not that she was taken captive or that she was not divorced — it will not help, even if they come after she married. What does “it will not help” mean? It means the witnesses will be believed; she will not be able to use her “mouth that prohibited” against them. That itself shows that she does not have “the mouth that prohibited” here; it is not correct to infer from the topic here that she has “the mouth that prohibited” in this situation. Because if she had “the mouth that prohibited,” it could perhaps have helped even against the witnesses. Okay. In any event, I remind you that in the classes there at the beginning of the chapter I brought Shitah Mekubetzet both there in the topic on the first Mishnah on page 16 and also a Shitah Mekubetzet from our topic, and in both there is a dispute that touches exactly the point I’m speaking about. What is this about? The Mishnah there at the beginning of the chapter says: “This field belonged to your father, and I bought it from him.” Now witnesses came that it belonged to his father. The Mishnah there says that — it has the same structure as our Mishnah — that if witnesses come, then he is not believed. The medieval authorities (Rishonim) ask: when did the witnesses come? There, unlike in our topic, there is no discussion of exactly when the witnesses came. There it just says that if witnesses came, then he is not believed. Fine? But the question is when. Did the witnesses come before the religious court ruled that the land passes into the hands of the current holder — meaning it leaves the original possessor and passes to the holder? And only then did the witnesses come? Sorry — even then, if witnesses came, does the law still revert to the original possessor or not? All that is said there is that if witnesses came before the religious court ruled, then now you no longer have “the mouth that prohibited,” and you cannot give the land to the holder, since he has no “mouth that prohibited” and there is the presumption of the original possessor in favor of the claimant. And about that the Mishnah says that if witnesses came, then he is not believed. But if the witnesses come after the religious court ruled in favor of the holder, maybe he would indeed be believed. That is the discussion there. So look here in Shitah Mekubetzet: “And it is still difficult for me,” we’ll read only the part relevant to us because I don’t want to get into the details of that topic there. “And here it comes to teach us that even though we had already believed him because of ‘the mouth that prohibited is the mouth that permitted,’ if later witnesses come that it belonged to his father, we do not believe him. What had originally been — ‘I bought it from him’ — now he is not believed, and we remove the field from his possession until he brings proof for his words.” What is he claiming? That if the witnesses come after they ruled that the field belongs to the holder, the field is taken out of his possession. Contrary to what is written here by us, right? There, what the Shitah Mekubetzet claims is that if witnesses come after we ruled that the field belongs to him because he had “the mouth that prohibited,” we ruled that the field belongs to him. Now witnesses came. These witnesses are not saying that the field is not his. They are only witnesses saying that this field belonged to the father of the challenger. In other words, they undercut “the mouth that prohibited.” There is no “mouth that prohibited” — we are no longer living off your mouth. Okay? Now the question is what to do. Ostensibly, according to our topic, it should remain with the holder, right? Because the religious court ruled and we do not change that ruling. But there the Shitah Mekubetzet says yes: we take the land from the holder and return it to the challenger. One second, we’ll hear if you want to comment; I just want to read here. So he says: “We do not believe him. And even though later we learned: ‘She said, I was taken captive and I am pure,’ she is believed because ‘the mouth that prohibited’ and so on” — yes, our topic — “and if there are witnesses that she was taken captive and she says ‘I am pure,’ she is not believed; but if after she married witnesses came, she need not leave. And we say in the Gemara: not literally that she married, but once they permitted her to marry,” etc. So ostensibly, says the Shitah Mekubetzet, that is difficult on what I am saying here. The Shitah Mekubetzet says: “A captive woman is different, because with a captive woman they were lenient,” as stated there. What is that? A special leniency for a captive woman. But that’s a doubt; it’s not like the field definitely belonged to his ancestors. What? Again? A captive woman is in doubt; you cannot know whether she was actually defiled or not. Right, right. In a moment we’ll explain why they were lenient with a captive woman; it’s connected to our topic, our topic says they were lenient with a captive woman. But what is the Shitah Mekubetzet really saying? That this leniency is a special leniency for a captive woman, but in principle she really should have to leave. And then it turns out that in such a case, the presumption really was not changed. It’s just a special leniency in the case of a captive woman. It’s like the Rif earlier. Earlier we were talking about a divorced woman and not about a captive woman. What? Again? Earlier we were talking about a divorced woman and not about a captive woman. What difference does that make? But the law here deals with a captive woman. If she still has “the mouth that prohibited,” then that itself is proof. But the law here deals only with a captive woman. We rule like Rav Hamnuna because of Rabbah bar Avin. So he is talking about the practical law. He says: in practice the case is a captive woman; a captive woman is a special leniency, and truly with a divorced woman not. So on the contrary, from here is your proof. After all, the fact is that with a divorced woman, even if she married, she leaves — I’m now speaking according to Rav Hamnuna. Rav Abba bar Avin, right? That is what Rav Abba bar Avin says — that with a divorced woman, even if she married, she leaves. That is exactly what the Shitah Mekubetzet there says. On the contrary, and only with a captive woman were they lenient, that’s all. But notice, this is a very interesting point, because if we go with Rav… with Rav Huna, who establishes this for both a captive woman and a divorced woman. Rav Oshaya, no? No, Rav Huna. Rav Huna. Here, it says Rav Oshaya… here, Rabbi Oshaya teaches it on the first clause. Yes, Rav Oshaya. Okay, I don’t know why Rav Huna got stuck in my head, I don’t know why. Rav Oshaya, okay. No, because on whom does Rav Oshaya rely? It doesn’t say. On Rav Hamnuna. What? Rav Hamnuna is from the last clause… but not on Rav Huna. Wait, one moment, forget the names now, let’s just try to talk. Rav Oshaya, okay? So Rav Oshaya says that this speaks not only about the first clause. Meaning that in the first clause as well, even if witnesses come after they permitted her, she need not leave there too, right? And according to… wait, with a captive woman. Meaning, yes, but I’m saying, then according to… oy, I mixed up the names. According to Rav Abba bar Avin. According to Rav Abba bar Avin, who says this is only about a captive woman, then Rav Abba bar Avin says that this is a special leniency in the case of a captive woman, but with a divorced woman the law is that if she married she leaves, right? If she married she leaves. And that is exactly what the Shitah Mekubetzet there says. Meaning, the case there is similar to the case of a divorced woman here, and a captive woman is an exception because with a captive woman they were lenient. Right? What happens according to Rav Oshaya? According to Rav Oshaya this is not a special leniency for a captive woman; you don’t need that leniency, because by strict law if she married she need not leave even with a divorced woman. What would come out according to Rav Oshaya regarding the first Mishnah? Here in the Shitah Mekubetzet? With the holder? Ostensibly, the land should remain with the holder, right? That is what seems to come out. Unless we distinguish between monetary law and prohibitions. But from the words of the Shitah Mekubetzet too, you can see that he hangs it on the fact that there is a leniency regarding a captive woman. So from his words it indeed appears that he himself understood that Rav Oshaya truly would not agree with what he is saying. Right. Or in other words, this is a dispute between Rav Oshaya and Rav Abba bar Avin in our topic. The question is whether this is a special leniency with a captive woman or whether it is the basic law, and if so it would be true also for land, for the presumption regarding land, and for a divorced woman and for anything else whatsoever. But an important point needs to be understood. And here this is a very important point. Why were they lenient with a captive woman? First of all, she is unmarried. Wait, wait, one second. Ostensibly, with a captive woman, what they were lenient about means that by strict law even with a captive woman it should have been that if she married she leaves, except that they made a leniency for the captive woman, right? That is what it should have been. Now how can it be that they make a leniency in a Torah-level prohibition because we want to be lenient toward a captive woman? That sounds strange. After all, if by strict law there is a Torah-level prohibition here when she marries a priest, she is forbidden to him, then how can they be lenient with a captive woman and tell her, stay with the second husband? That is a bit strange. True, this prohibition is lighter than the prohibition of a married woman — that should be remembered. A married woman is a prohibition of sexual immorality. A woman disqualified for a priest is only a prohibition. Still, it is a Torah-level prohibition. It is not likely that the Sages come and cancel a Torah-level prohibition, especially since this is by positive action, not by passive omission — they tell her to continue living with the second husband, yes? So something here seems strange. Therefore it seems more plausible that with a captive woman this is not a second husband… again. With a captive woman this is not a second husband; it is the first husband, it is just a question of prohibition and permission. No, no, it can also be a second husband, that doesn’t matter, like with King Yannai that we saw. The captive woman has the presumption of purity, and we want to remove her from that presumption of purity. Okay. In contrast, a married woman has the presumption of being married; we want to remove… right, so indeed here the case of a captive woman… “a non-Jew had relations with her”… but for a priest she is forbidden. But understand, there is… I want to sharpen this. Look, if Edi is really right, that with a captive woman there is a reason to be lenient beyond the severity of the prohibition, because here too it is a Torah-level prohibition and there too. It is a lighter Torah-level prohibition, but certainly still a Torah-level prohibition, and it is not reasonable that they were simply lenient with a Torah-level prohibition. Okay? So what is it? There really is a presumption of purity here. Meaning, the fact that she was taken captive does not yet mean that she became defiled. We have a concern that she became defiled. So here I say: here I no longer worry about that. I am not going to worry that she became defiled at the expense of the second husband and the children and whatever else you want. That, I can understand. But then what would be the law with a divorced woman? The opposite. A divorced woman had the presumption of being married, that same married woman. With a divorced woman… so indeed if she married she leaves by strict law, right? No, not because here we were stringent, but by strict law. Because there, her underlying presumption is that of a married woman who is forbidden, right? And then this really fits the topic on page 16 about the first Mishnah of presumptions of land ownership. Because look, I want to explain what I’m driving at. Ostensibly, if we compare a divorced woman to a captive woman and say that with a captive woman they were lenient, the obvious solution would be that both with a captive woman and with a divorced woman, in principle by strict law she should have had to leave. But she should have had to leave only by rabbinic law. Because if she had to leave by Torah law, how could it be that with a captive woman they do not require her to leave, despite a Torah-level prohibition? That is what one might have said. Then it would come out that with a divorced woman as well, what obligates her to leave is only a rabbinic law. And if so, then I say there is no necessary proof from the topic on page 16 for what the Shitah Mekubetzet says. Because perhaps there we would indeed leave it in the possession of the holder, and that’s it, yes? In contrast, if I go with the Shitah Mekubetzet — and that is what his wording implies — then it is not like that. With a captive woman they were lenient, and with a divorced woman it really would be like there. Why? Because a captive woman and a divorced woman are not the same, not only in the sense that with a captive woman we have an interest in being lenient and with a divorced woman not. Rather, the situations are different. With a captive woman she has a presumption of purity. With a divorced woman she has the presumption of being a married woman. Therefore with a divorced woman, by strict law, if she married she leaves; that is not a leniency or a stringency. It is the basic law. If she married, she must leave. Okay? In contrast, with a captive woman, since she has a presumption of purity and the whole matter is only a concern, so true, on the basis of that concern alone I do not permit her unless she has “the mouth that prohibited.” Migo alone perhaps would not suffice to permit her, or something like that. But if I already permitted her because there was “the mouth that prohibited,” and now witnesses come and remove “the mouth that prohibited” but leave migo, then that I treat leniently. Okay? Then it really turns out that the case of a divorced woman, as opposed to a captive woman, is not just that with a captive woman we feel sorry for her or there is some reason to be lenient that does not exist with a divorced woman. Because then it should have been that with a divorced woman too, the fact that if she married she leaves is only a rabbinic rule — just that there they are not lenient with her. And with a captive woman we waived it for her because it is only a rabbinic rule, so we waived it. Now I’m saying no, it’s not like that. Rather, with a divorced woman, by strict law she has to leave. With a captive woman, even the strict law is different from a divorced woman, and therefore we are also not overly hysterical about the matter, and so we allow her to remain. Okay? And that is apparently how the Shitah Mekubetzet understood it. But the Shitah Mekubetzet — and also regarding a divorced woman — does that mean that the witnesses now basically restore the presumption, meaning they cancel “the mouth that prohibited” and its force entirely? Right. That is basically what he claims. That is why I say that this whole discussion is very important for us, because everything I said earlier assumed otherwise. Right? What I said earlier assumed that the law of “if she married she need not leave” was said both about a divorced woman and about a captive woman. Right? Up to now we had not distinguished; we read the Mishnah simply. There are two laws there, and about both it says that if she married she need not leave. That is in fact the plain meaning according to Rabbi Yoshaya. Rabbi Yoshaya, who says that the law at the end of the Mishnah speaks about both cases, probably understood it that way. But then according to him we would really have to leave it there too with the holder, right? The Shitah Mekubetzet says nicely: but that is Rabbi Yoshaya. What about Rabbah bar Avin? We rule in practice like Rabbah bar Avin. And the practical law according to Rabbah bar Avin is that this was said only about a captive woman. Why? Because with a captive woman they were lenient. Why were they lenient with a captive woman and not with a divorced woman? Because with a divorced woman it is the strict law, and if so it does not help — if she married, she leaves. And if so, then with land too, even if the witnesses came afterward, the land goes back. Then everything I said until now is not the practical law at all. It was said only according to Rabbi Yoshaya. But the practical law, where we rule like Rabbah bar Avin, means that everything said here applies only to a captive woman, because there the situation of presumptions is indeed different. But if the presumption is really as it originally was, then the court ruling does not change the presumption. Why? What I said at the beginning as the difficulty. Because the court ruling was given on the basis of partial information. Had the religious court known that there were witnesses, it would not have changed the presumption. Consequently, the court ruling is void and there is no change in the presumption — only with a captive woman were they lenient. Are you with me? But that slightly contradicts what we said in previous classes about the presumption of… “she checks carefully and then marries,” meaning we know that if the woman married afterward, and even if she has no other option and nothing else, they do not remove her because she has the presumption that she checks carefully before marrying. So why now all of a sudden does she have “the mouth that prohibited”? So you’re now bringing us back to the question of whether he is present or absent, whether a woman dares or does not dare, and that basically enters here. Because the question is: why, when a woman comes and says “I got divorced,” do we not generally give her the presumption that she checks carefully and then marries? Because there is a presumption that she does not dare in front of her husband. What about “she checks carefully and then marries”? So we said that once she is speaking about “I got divorced,” there is no “she checks carefully and then marries.” Because in a claim of “I got divorced,” if the husband comes she can still say “I got divorced”; she won’t be caught in total embarrassment. If she said “my husband died” and witnesses came that he is alive, or he himself returns, then she is caught red-handed. But if she said — the medieval authorities (Rishonim) say this, we saw it — but if she says “I got divorced” and her husband returns, maybe we won’t accept her claim, but she is not caught in an outright lie. She can say: look, you don’t believe me, but I’m telling you I got divorced; that husband there is lying that he did not divorce me. Therefore here there is no “she checks carefully and then marries.” The whole question is only whether she dares in front of her husband or not, and that is the question we will deal with later. Okay? So now this is an important point, because this more or less concludes the issue I just mentioned. Now we understand the Mishnah according to Rabbi Yoshaya, and we understand the Mishnah according to Rava bar Rav Huna, even though we have not yet even read them in the Gemara, but this preliminary calculation already gives us all the tools to decode everything. That is basically the main point of the class. And therefore it is important to me that its problematic aspect… So according to Rava bar Rav Huna, does it mean that “the mouth that prohibited” that she had before — no matter in what situation the witnesses came — is totally nullified? Right. She has nothing. No, she may have migo, but the migo won’t help because she still has the presumption of being a married woman. It may be that there is migo here in the evidentiary sense, but migo alone is not enough to remove her from the presumption of being a married woman, and since the religious court removed her from the presumption of being a married woman on the basis of partial information, the court’s decision is void, and therefore she is still considered under the presumption of being a married woman; and to get out of that, migo is not enough. She may have migo, but migo is not enough. You need “the mouth that prohibited,” and “the mouth that prohibited” she does not have. And in monetary law it is fully agreed that if they bring witnesses that it belonged to the — no no no no. That is a dispute. Here, look at the last line of the Shitah Mekubetzet. See? Look. “However, the wording ‘and he says I bought it from him’ is not precise enough.” He says: no matter exactly what he claims, the wording does not seem to support me, says the Shitah Mekubetzet. Meaning, it seems they would leave it with the holder even if witnesses came afterward. And in fact, here in our Shitah Mekubetzet, I brought this then too. Our Shitah Mekubetzet in the name of Rabbi Meir HaMe’ili — I think he was a student of the author of Hashlamah — he says here, it is written in Hashlamah: “That which we learned, ‘I was taken captive and I am pure,’ she is believed because ‘the mouth that prohibited,’ etc. — we should investigate whether if she said ‘I was taken captive,’ and only after some time said ‘I am pure’” — which is exactly the case we discussed there regarding retroactive “the mouth that prohibited.” Right? She comes the next day and says the “mouth that permitted.” There is a question from Iris in the chat. What? There is a question from Iris in the chat. Yes, I understand, I just don’t see it. So Iris asks: what happens if a woman knows there are witnesses who are supposed to arrive at the religious court? So she asks what is preferable for her. It’s not a question of what is preferable for her, but whether, when we know that she knows there are witnesses, or we suspect that she knows there are witnesses — “one who admits a fine and afterward witnesses come is exempt,” the Gemara says, because we know that he ran — meaning, one who admits a fine and afterward witnesses come, yes, there the Gemara discusses that one who admits a fine and afterward witnesses come is exempt. But if he knows that witnesses are on their way, then the Gemara says he will not be exempt, because he hurried only in order to get ahead of the witnesses and obtain the privilege of someone who admitted on his own. The same law would apply here as well. Meaning, if we knew that witnesses were coming, and therefore it is clear to us that she is really running only in order to gain “the mouth that prohibited,” then in such a case she probably will not have “the mouth that prohibited.” Okay. So I go back to the Shitah Mekubetzet here. He discusses the question — what you mentioned in the… what you told us to read until the end of the page, until the end of the side, with the captive women, with the daughters of Shmuel. Of Shmuel. Yes, so they knew that… meaning, they told the captors, wait outside and we will come and testify about ourselves. Right, but there it is with a captive woman. With a captive woman they were lenient. But right, they pulled a little trick there, and I wanted — I see I’m not getting to it now — I wanted to comment on that trick; maybe next time. I still don’t know what we’ll do next time; we’ll see. In any event, but with a divorced woman it doesn’t matter; with a divorced woman it doesn’t matter at all, because whenever the witnesses come they will put her back, and “the mouth that prohibited” is irrelevant. As practical law. What? As practical law, according to Rava bar Ravin. But according to Rabbi Oshaya not. Right, right. So according to Rabbi Oshaya one could still ask what happens if she knows. So here it says as follows, yes, here it is talking about retroactive “the mouth that prohibited,” “and regarding a field as well,” I continue reading in the second line, “and regarding a field as well, if he said, ‘It belonged to your father,’ and only after some time said, ‘I bought it from him,’ do we say ‘the mouth that prohibited,’ etc., or not?” We do not know whether there is retroactive “the mouth that prohibited” here. Now he himself senses the connection I made above between the question of retroactive “the mouth that prohibited” and the question of “the mouth that prohibited” followed by witnesses, because ostensibly it is the same thing: “the mouth that prohibited” falls away and the evidentiary dimension remains. So he says: “However, with witnesses it is obvious to us, that if they said, ‘This is our signature,’ and only after the time needed for a brief utterance they said, ‘we were coerced,’ they are not believed, because once he has testified he cannot go back and testify again.” That is not important for us. Bottom line, he says: “In any case we learn from this” — the conclusion — “that we do say ‘the mouth that prohibited is the mouth that permitted’ even after some time, and it would seem that the same applies in the case of being taken captive.” What does that mean? A woman who says “I was a married woman,” and the next day she says — sorry — says “I was taken captive,” and the next day says “I am pure,” he says this will help her. “And that which we say” — now this is the passage I meant when I said he ties it to witnesses — “and that which we say regarding ‘I was taken captive,’ that if witnesses came after she married, she need not leave, and we say about it: not that she literally married, but rather once they permitted her to marry, even though she did not yet marry.” This is our Gemara. So he says, “this requires investigation, whether we say the same regarding a field.” Would the same law apply also to a field? Exactly the question we saw in the Shitah Mekubetzet above.
[Speaker D] Because he said initially, “It belonged to your father, and I bought it from you,” and they believed him because of “the mouth…”
[Rabbi Michael Abraham] …that prohibited,” and afterward witnesses came that it belonged to his ancestors, the ancestors of the first one. “Do we remove it from the holder or not?” He is uncertain. The same law that was clear to the Shitah Mekubetzet above — only at the end he qualified it because he says the language of the Gemara does not imply that — here the Shitah Mekubetzet is uncertain in this law. He says, “And it would seem that we do not remove it from him.” Against the Shitah Mekubetzet above, right? He holds that we do not remove it from him; the land remains with the holder. “Once we believed him, we believed him,” that’s it. “And although there is no proof for the matter, there is at least a hint for the matter,” Rabbi Menachem son of Rabbi Yose says: “When do I say that she leaves? When witnesses came and afterward she married. But if she married and afterward witnesses came, she need not leave.” “And the honor of our master goes this far.” “And the honor of our master remains in its place,” so says the Shitah Mekubetzet — that is the Meiri, yes, Rabbi Meiri. “And the honor of our master remains in its place,” thus says the Shitah Mekubetzet, “for one can say that it is not similar — from monetary law we do not derive to prohibition. And what shall this person do, who did not know at first that he had witnesses, and afterward it became known to him and he brought them? Should he lose his ancestral inheritance because of that?” Yes, how can that be? What can he do? He doesn’t know that he has witnesses, so should he lose his ancestral inheritance? Fine, there is room to consider exactly what he means and why this is special, but he has some kind of logical argument, and that is not our subject so I don’t want to get into it too much. But he has some sort of argument that in monetary law there is a special logic that this doesn’t work. Notice, he does not go back to the second side of the Shitah Mekubetzet we saw; this is a third position. Because what did the Shitah Mekubetzet we saw on page 16 say? He said this: with a captive woman they were lenient. Exactly. He said with a captive woman they were lenient, but with a divorced woman it would be like a field, right? That was clear to him. Only the question was what the law is with a divorced woman. According to Rabbi Oshaya, with a divorced woman too if she married she need not leave; according to Rava bar Ravin, with a divorced woman if she married she leaves; and that same dispute would apply to a field. As practical law we rule like Rava bar Ravin — wait — according to Rava bar Ravin we rule that this is only for a captive woman and not for a divorced woman, therefore with a field too he says no, right?
[Speaker B] That’s what it was.
[Rabbi Michael Abraham] Here he wants to claim even on…
[Speaker B] …the side that in a field this…
[Rabbi Michael Abraham] …will not be so.
[Speaker B] He does not…
[Rabbi Michael Abraham] …hang it on Rabbi Yoshaya and Rava bar Ravin, even according to both of them. Even according to Rabbi Yoshaya, who says that this law was stated regarding a divorced woman, it may be that with a field it would not be so. Because with a field there is a special rule of monetary law whereby we allow a person to preserve ancestral land and things of that sort. So it is not the same thing as the Shitah Mekubetzet we saw above. This is a third approach. In short, in other words, what I want to say is that there are three approaches to the question of what “the mouth that prohibited” does after witnesses have come. After the ruling, witnesses came — what is the law? According to one approach, the approach of Rava bar Ravin, with a captive woman they were lenient, and therefore it is clear that with both a divorced woman and a field the land returns — we reverse the ruling. And I explained why we reverse the ruling: because apparently the presumption itself is not considered to have changed. The fact that the ruling changed the presumption — this was a ruling based on error, so it is void. Thus the presumption remains in place, and migo does not help to remove from a presumption, even if there is migo here. It is not “the mouth that prohibited,” so it cannot remove from a presumption. A second approach is the approach of Rabbi Yoshaya according to the Shitah Mekubetzet there on page 16. What does he say? That since with a divorced woman, if she married she leaves, so too with land it returns to the original owner. Fine? A third approach is the Shitah Mekubetzet here, who wants to say that even according to Rabbi Yoshaya, who says that with a divorced woman if she married she leaves — sorry — even according to Rava bar Ravin, where with a captive woman if she married she need not leave, with land he would agree that if she married she leaves. Because with land this is monetary law; with a divorced woman he obviously does not agree, but with land yes. Meaning, he makes a distinction between land and a divorced woman. Okay? So these are essentially three approaches, and that goes back and illuminates everything I spoke about earlier; I won’t go back…
[Speaker C] …to that again.
[Rabbi Michael Abraham] Because everything I said earlier — what I said that Noga…
[Speaker C] …actually said, that “the mouth…”
[Rabbi Michael Abraham] …that prohibited” dropped down to migo, and now the migo cannot remove from a presumption but can preserve a presumption — that whole explanation is according to Rabbi Yoshaya. But according to the practical law, which follows Rava bar Ravin, then the straightforward explanation is what the Shitah Mekubetzet says there: with a captive woman they were lenient. And basically by strict law, with both a divorced woman and land, if witnesses come afterward we reverse the ruling. Reversing the ruling means that I actually do not know whether there was “the mouth that prohibited” here or perhaps it was not “the mouth that prohibited” but only migo, but the presumption that was changed — that change is canceled. Meaning, the presumption reverts to what it originally was, since everything by which we changed it was based on a court ruling, and the court ruling was based on partial information, so the ruling is canceled. So that is basically the dispute between Rabbi Yoshaya and Rava bar Ravin in our topic. Regarding what we do with land, there is also a third approach within Rabbi Yoshaya — what Rabbi…
[Speaker C] …Yoshaya holds…
[Speaker D] …about land.
[Speaker C] Does he hold that land…
[Rabbi Michael Abraham] …is…
[Speaker C] …like…
[Rabbi Michael Abraham] …a divorced woman, or…
[Speaker C] …that land is worse than a divorced woman?
[Rabbi Michael Abraham] Okay?
[Speaker C] So…
[Rabbi Michael Abraham] …that is the approach within the view of Rava bar Ravin.
[Speaker C] So basically…
[Speaker D] …according to this approach one can say that “the mouth that prohibited”…
[Rabbi Michael Abraham] …does not help against…
[Speaker D] …two witnesses. What do you mean? Earlier we said that “the mouth that prohibited” is…
[Rabbi Michael Abraham] …even strong against witnesses, but here it seems that two witnesses cancel “the mouth that prohibited” according to the approach of Rava bar Ravin. No, no, they do not cancel “the mouth that prohibited”; it simply does not override the witnesses. “The mouth that prohibited” against witnesses means when two witnesses come and say that she was not divorced.
[Speaker C] Then there is…
[Rabbi Michael Abraham] …the “mouth that prohibited” saying that she was divorced, and two witnesses saying she was not. We are talking about a situation where the witnesses say that she was a married woman. So once there are witnesses, there is simply no “mouth that prohibited”; it’s not that it overcomes the witnesses. There is no “mouth that prohibited” because they are not living off her mouth. Right. Okay? So we saw the leniency of the captive woman. Again, I’m not going to read the whole Gemara here. So just a note about Rav…
[Speaker C] …Hamnuna, who really is the background to the topic.
[Rabbi Michael Abraham] It’s a very strange topic, by the way. “This is in accordance with Rav Hamnuna.” Which Rav Hamnuna? Who mentioned Rav Hamnuna? He does not appear here in the topic at all, “in accordance with Rav Hamnuna.” And afterward they say, “for Rav Hamnuna said” — they don’t even introduce him. Rav Hamnuna — this was apparently well known. There was apparently some law known to be associated with Rav Hamnuna and everybody knew it; this is the law of Rav Hamnuna. Yes? So its source is in Gittin or Yevamot: a woman who said to her husband, “You divorced me,” is believed, because there is a presumption that a woman does not have the audacity to lie to her husband’s face. And in our case it is not that at all. What? Wait, wait, wait. You’re already bringing in Tosafot, the Nachmanides — hold on. First of all, this is Rav Hamnuna. Rav Hamnuna is: a woman says to her husband, “You divorced me.” Fine? So she is believed. Why?
[Speaker F] Because there is a presumption that a woman does not have the audacity to lie to her husband’s face.
[Speaker D] Now,
[Rabbi Michael Abraham] if she says “You divorced me,” that means she was originally under the presumption of being a married woman.
[Speaker D] Right? And since she was under the presumption of being a married woman, then how…
[Rabbi Michael Abraham] …can it be that she herself says “You divorced me” and can remove herself from the presumption of being a married woman? After all, in matters of sexual status you need two witnesses. So the Gemara says: there is a presumption that a woman does not have the audacity to lie to her husband’s face. But this is strange, because what does that mean — does this presumption have the power of two witnesses? After all, this is a matter of sexual status. The woman wants to change her original presumption. To do that, according to the law…
[Speaker D] …you need two witnesses.
[Rabbi Michael Abraham] Now, the fact that she has a presumption, a presumption based on assessment, yes? This is not the original presumption. It is like the presumption that a person does not repay a debt before its due date, yes? It is that sort of clarifying presumption. And it is a logical assumption that a woman does not have the audacity to lie to her husband’s face. That too is called a presumption, but it is not the presumption we are talking about here. This is not an original presumption; it is an evidentiary presumption. It functions as evidence. And the fact that “she checks carefully and then marries” is a presumption that is not original — is it also evidence against an original presumption? Right, same question. Right. The question is how can it be that in matters of sexual status — where we saw that in order to remove a woman from a presumption, from her original presumption, in matters of sexual status you need two witnesses — how can a presumption also help? You need two witnesses. So here I referred you to Tosafot, the Tosafists there, to Tosafot that we already saw in one of the previous classes, and that is basically what Ruti just said. After all, the same question exists regarding the presumption that a woman checks carefully before marrying. A woman comes and says, “My husband died.” Not a divorced woman, because with a divorced woman there is no “she checks carefully and then marries,” as I said earlier to Noga. Okay? But when she says “my husband died,” then there is “she checks carefully and then marries.” Right? Now what happens there? After all, there too she is basically coming to remove herself from the presumption of being a married woman, okay? And the presumption that she checks carefully before marrying is enough for us. How can that be? So Tosafot says — Rabbeinu Tam — “the presumption that a woman checks carefully and then marries weakens that presumption.” Remember? We saw Rav Shimon Shkop and Rav David Povidarsky there, that the presumption undermines the presumption. Meaning, the presumption that a woman checks carefully before marrying undermines the original presumption; it does not confront the presumption. It claims that there is no presumption. Meaning, if there were a presumption, then in matters of sexual status you would need two witnesses.
[Speaker B] But there can be arguments that undermine the very basis of the presumption itself, and then perhaps they can work. That is basically what Tosafot explained there. I’m not going to go back over it again because we discussed it there at length, but the same explanation will probably be…
[Rabbi Michael Abraham] Here too. Because here too, when the woman does not have the nerve to confront her husband, once again this is a clarifying presumption; there is no “she checks carefully before marrying,” but there is this idea that she does or does not have the nerve to confront her husband. This clarifying presumption apparently weakens her presumption of being a married woman. Now here we need to notice one more point. When she said to her husband, “You divorced me,” what exactly is the case there? Is it known that she is his wife? Is it known only from her own statement? So does she have “the mouth that prohibited is the mouth that permitted”? No, that doesn’t always weaken the presumption, does it? Hm? So what then? But she does have “the mouth that prohibited.” If she had not admitted it—if he said, “You are my wife,” and she said, “I am not your wife,” he would not be believed. A person cannot just declare that a woman is his wife; you need two witnesses for that. But she said, “You divorced me,” so in effect she has—“You divorced me” means that she admits that she had been his wife. Right? Therefore she has “the mouth that prohibited.” She has “the mouth that prohibited,” because she is the one who admitted that she had been a married woman, so believe her when she says she was divorced. So here, why cancel the husband’s side entirely in this case? Because without her it would never get off the ground, the husband’s side. If she had not admitted to the husband’s claim, the husband could not make her into a married woman. So why should I care what he says? So he says it. So what? So the question is: what exactly is the case there? Nachmanides comments on this, by the way. The question is: what exactly is the case there? Because if
[Speaker B] the case there is one where she has “the mouth that prohibited,” then why do we need to get to the presumption that a woman does not have the nerve to confront her husband? She has “the mouth that prohibited.” “The mouth that prohibited” removes a woman from a presumption—that’s obvious. Like we saw regarding presumptive ownership of land: “This field belonged to your father, and I bought it from him”—I am believed. Only if witnesses come do discussions begin as to whether it reverts back, but without witnesses coming, I am believed, right? Why? There is, after all, the prior presumption of ownership, and I myself admitted to it.
[Rabbi Michael Abraham] Right, but I admitted to it and I also said that I bought it. “The mouth that prohibited is the mouth that permitted.” So here too, same thing. I don’t understand. But she said it before a religious court. I’m saying that in a divorce process a religious court is involved, so it’s not just that she knew. But they don’t know where that religious court is; it doesn’t exist before us. What we have before us is a woman who said she was divorced. But Rav Hamnuna cannot say that the reality there is “the mouth that prohibited.” From his standpoint this is not about presumption at all; really it is simply “the mouth that prohibited.” There is no need to invoke a presumption—not that it isn’t a presumption; there is simply no need to invoke it. Because that woman, obviously there were witnesses there that she was divorced; it is not from her own mouth, and still she has
[Speaker B] that presumption.
[Rabbi Michael Abraham] But
[Speaker B] then it’s very strange, because in our case it is talking about there being no witnesses.
[Rabbi Michael Abraham] In our case—why compare Rav Hamnuna to our topic? In our topic it’s talking about there being no witnesses, right? The whole Mishnah deals with a situation of “the mouth that prohibited.” The woman comes and says, “I was a married woman, and now I am divorced,” or “I was taken captive, and now I am pure,” so there it is clear that we do not know it without her. So why bring Rav Hamnuna into this? But Rav Hamnuna speaks even in a case where witnesses came. What? Because in our case it is said not in his presence, and then there is the gap between the witnesses plus the case where witnesses came. The witnesses testified afterward. Yes. So? And in our case too that is the situation. The story with Rav Hamnuna is in dispute with Rava and Ravin. There is this principle that a woman does not have the nerve to confront her husband. Yes, but he is asking why. After all, Rav Hamnuna is speaking about a case where they did not know she was his wife, so she has “the mouth that prohibited.” This presumption of Rav Hamnuna—that a woman does not have the nerve to confront her husband—also helps when there are witnesses and when it is not in his presence. I didn’t understand. This presumption of Rav Hamnuna, that a woman does not have the nerve to confront her husband, would also help in a case here where there are witnesses and nevertheless she… Who says so? I read it in the commentators. You read it, very nice. I’m asking: how do they know? Wherever you read that, I’ll ask about him too: how does he know?
[Speaker D] I also read various things; I want to work it out together with you. So now let’s work it out.
[Rabbi Michael Abraham] Let’s look at the Talmud and see how the commentators derived it.
[Speaker D] After all, if Rav Hamnuna is talking about a situation where the woman has “the mouth that prohibited,” that means
[Rabbi Michael Abraham] she is not known
[Speaker D] as the wife of
[Rabbi Michael Abraham] her husband, then in the background she has “the mouth that prohibited,” so why do we need to invoke the presumption that a woman does not have the nerve to confront her husband? And if Rav Hamnuna is talking about a situation where it is known that she is his wife, and what helps us believe her is the presumption, then what does that have to do with our topic? In our case she has “the mouth that prohibited.”
[Speaker B] No, but maybe he needs to invoke the presumption because he holds like Rava and Ravin.
[Rabbi Michael Abraham] If he holds like Rava and Ravin, then in the case of a divorced woman “the mouth that prohibited” won’t help him. Because witnesses came afterward. Because once witnesses came afterward, we are back to Rav Hamnuna. Meaning that in effect she no longer has “the mouth that prohibited.” Right, that is definitely a possibility. But I want to go further than that. Notice, if you remember—and this is actually an interesting question here—if you remember, we saw there is a dispute between Rashi and Tosafot about what exactly “the mouth that prohibited” means, at the beginning of the year. Rashi says that “the mouth that prohibited” applies only where he cannot make a claim without me. He had no idea at all that it belonged to his father; he himself didn’t know it, he knew it from me. Otherwise it is a migo of “he could have remained silent”; it is not “the mouth that prohibited.” According to Tosafot, even if he would have known without me, that is still called “the mouth that prohibited”; “he could have remained silent” is “the mouth that prohibited.” Fine? Now what happens here? If the woman says to her husband, “You divorced me,” according to Rashi that would not be “the mouth that prohibited.” Because the husband knows that he did not divorce her and that she is a married woman, right? Here this would not be “the mouth that prohibited” according to Rashi. According to Tosafot maybe yes, but according to Rashi no.
[Speaker D] Wait, but there we said that because of that they set the whole thing up in the context of
[Rabbi Michael Abraham] land, because we found nothing else that could sustain this kind of case. Okay, you’re just continuing what I’m saying. So now I’m saying: that means that here, where it is not talking about land, according to Rashi this is not “the mouth that prohibited,” right? According to Tosafot maybe it is. And therefore what happens in our topic? In our topic it’s something entirely different, because the husband is not here. It is not even talking about a specific husband at all. Who says it’s talking about a specific husband? The woman said, “I was a married woman and I got divorced,” not to some specific person. Fine? So there is no other person here standing against her. So here there is “the mouth that prohibited.” But there, according to Rashi at least, it is not “the mouth that prohibited” at all. Right. So maybe that is why there you need an additional proof. Right? So maybe that is why there you need another proof. And I’ll say perhaps even more than that: it could be that only because of the presumption that a woman does not have the nerve to confront her husband is she considered someone who has “the mouth that prohibited.” Because what is “the mouth that prohibited”? It basically means: look, I could have brushed you off
[Speaker B] completely; I am the one who contributed the prohibition. Right? If indeed, if indeed she
[Rabbi Michael Abraham] contributed the prohibition only because—only because she doesn’t have the nerve to lie—then she does not have “the mouth that prohibited.” In other words, it may be that this fact—that a woman does not have the nerve to confront her husband—is what gives this migo the force of “the mouth that prohibited.”
[Speaker C] It’s not an additional rationale; rather, it explains why there is “the mouth that prohibited” here.
[Rabbi Michael Abraham] Isn’t this like a migo involving brazenness?
[Speaker C] There? No, the opposite.
[Rabbi Michael Abraham] That if he doesn’t dare, that weakens the force of the “why should I lie” aspect of the migo, no? No, the opposite. I said that a migo involving brazenness has two sides. If the alternative claim would have been a brazen claim, that undercuts the migo. But if the claim I actually make is a brazen claim, then
[Speaker C] it only strengthens the migo.
[Rabbi Michael Abraham] Because it means: if I chose this claim even though it is brazen, I would have chosen the claim that was easier for me. And here the brazen claim is that she says to her husband, “You divorced me,” with a migo that she could have said, “I don’t know you at all.” Okay? So therefore I’m saying that maybe the reason they didn’t bring here the rationale of “the mouth that prohibited” is not that they didn’t bring it—they did bring it—but just that in order to say there is “the mouth that prohibited” here, you need the presumption that a woman does not have the nerve to confront her husband. That she does not have the nerve to confront him. Only because of that is this considered “the mouth that prohibited” here. And therefore maybe that is why they brought this point. Good, that’s one remark. Now then, in short: they disputed Rav Hamnuna; at first they thought they disputed Rav Hamnuna; afterward everyone agrees with Rav Hamnuna; and here the question is whether Rav Hamnuna is talking only in his presence, but if it is not
[Speaker C] in his presence then she does have the nerve,
[Rabbi Michael Abraham] and in our case the Talmud is speaking—simply, the Talmud
[Speaker C] is speaking about not in his presence.
[Rabbi Michael Abraham] Not in his presence. Right? So therefore in our case
[Speaker C] it may be that even Rav Hamnuna would agree that she is not believed.
[Rabbi Michael Abraham] Okay? That is basically what the Talmud says. And in tractate Gittin, on page 89, by the way,
[Speaker B] you can see
[Speaker C] explicitly
[Rabbi Michael Abraham] another such dispute. Ah, there it is—Rav Huna; maybe that’s why Rav Huna was stuck in my head. “And this disagrees with Rav Huna, for Rav Huna said: A married woman who stretched out her hand and accepted betrothal from another man is betrothed.” She does this in front of her husband, because basically
[Speaker C] stretching out her hand is like saying to her husband, “You divorced me, so I can get married.”
[Rabbi Michael Abraham] From Rav Hamnuna, who said—Rav
[Speaker C] Hamnuna said: A woman who says to her husband, “You divorced me,” is believed, because there is a presumption that a woman does not have the nerve to confront her husband.
[Rabbi Michael Abraham] “And the other one?” When was Rav Hamnuna’s statement said? In his presence. Not in his presence, she does have the nerve, and she does have the nerve. Here, after all, the woman stretched out her hand and accepted betrothal not in front of
[Speaker B] the husband,
[Rabbi Michael Abraham] so if
[Speaker B] it had been in front of the husband, then there would be the presumption that she does not have the nerve
[Rabbi Michael Abraham] to confront him, but since
[Speaker B] here
[Speaker E] it was not in his presence, then she
[Rabbi Michael Abraham] does have the nerve, and does have the nerve.
[Speaker C] Exactly the same dispute that we find in our topic in the final analysis. I saw that in this situation Rav Hamnuna
[Speaker E] requires that she have a bill of divorce, that she show a bill of divorce.
[Speaker B] Again, I didn’t
[Speaker E] understand?
[Rabbi Michael Abraham] I saw that in this situation,
[Speaker E] where she stretches out
[Rabbi Michael Abraham] her hand to another and accepts
[Speaker B] betrothal, then according to Rav Hamnuna the requirement is that she show the bill of divorce. Of course—if she is not believed, then she has to
[Rabbi Michael Abraham] show the
[Speaker C] bill of divorce. It’s not
[Rabbi Michael Abraham] an extra requirement; it is simply to say that she is not believed. To say that she is not believed means that until you show me a bill of divorce, you are not divorced. Right, that is not credibility. Now let’s get to the Rif. The Rif splits the topic into two Mishnahs. Right? He brings the first clause, and here again, without getting into the details at all, he brings the first clause and then brings the whole Talmudic discussion we already saw—an excuse and all those complications. And now he
[Speaker B] brings the second Mishnah: “I was taken captive, and I am pure”—she is believed because “the mouth that prohibited,” etc.; “and if there are witnesses, she is not believed; and if after she married witnesses came, she does not leave.”
[Rabbi Michael Abraham] Fine? That is the entire second part of the Mishnah. And then he omits the first half of our topic with Rabbi Yoshiya and Rav Abba bar Avin, right, and brings the continuation: “It is not only if she actually married, but even if they permitted her to marry.”
[Speaker C] Okay? That is the structure.
[Rabbi Michael Abraham] He divided it between divorce and captivity. This
[Speaker B] splits the topics of divorce? So the Ran and Nachmanides write that from the Rif it is clear that he ruled like Rav Abba bar Avin; that is why
[Rabbi Michael Abraham] he divided the Mishnahs. Right?
[Speaker E] And then basically
[Rabbi Michael Abraham] that makes a lot of sense, because he is basically saying that the first Mishnah refers to “I was a married woman and I was divorced,” and there indeed the rule does not appear that if witnesses came afterward, then if she married she does not leave,
[Speaker E] because there the rule is that she does leave. Okay?
[Rabbi Michael Abraham] And the rule that if she married she does not leave appears only in the context of the captive woman. Therefore he omitted it—or maybe we should phrase it differently. One might have argued about this, about this inference in the Rif. Why? Because one could say that since the Talmudic discussions are long discussions, he divided the Mishnah, and each time he brought the sugya on the section of the Mishnah with which it deals—not because he meant to say that “if she married and then witnesses came” refers only to a captive woman.
[Speaker B] Rather, he simply divided it
[Rabbi Michael Abraham] because he divides the Talmudic discussions too. So he wanted to bring each Talmudic discussion on the section of the Mishnah it addresses, and that is why he divided the Mishnahs. But then it becomes difficult: I am missing the first half of our Talmudic discussion. Why didn’t he bring it? The dispute of Rabbi Yoshiya and Rav Abba bar Avin—why didn’t he bring it? That is the proof for the Ran and Maimonides. Because in this split of the Mishnah he did in fact bring the first part of the Talmudic discussion. Where did he bring it? In the fact that he split the Mishnahs. By splitting the Mishnahs he essentially showed that he rules like Rav Abba bar Avin—that the rule that if witnesses came afterward applies only to a captive woman and not to a divorced woman. And therefore he does not need to bring the first part. Fine? So that is why it seems to me they are indeed right in the end. Okay. Now, the question that comes up among the medieval authorities (Rishonim) here—and we don’t have much time, so we’ll do it briefly—the question that comes up among the medieval authorities (Rishonim) here is: why should she not marry even ab initio? After all, if she is believed to say that he divorced her, then why should she not marry ab initio? Let her marry ab initio as well. After all, Rav Hamnuna says she is believed, right? To say, “You divorced me.” So what is the problem? If she is believed, then why does our Talmudic discussion say—our Mishnah say—that ab initio she should not marry? So Tosafot says: “He accepts Rav Hamnuna, even though Rav Hamnuna is speaking in his presence; nevertheless, regarding a case where she married and afterward witnesses came, what difference does it make if it was not in his presence?” What is he saying? That in his presence is the same situation as not in his presence when witnesses come. Right. In other words, he is really claiming that from the outset she was afraid that witnesses might come, and nevertheless she dared to say that she was divorced. In other words, he is really saying two things. He says Rav Hamnuna is speaking where she said it
[Speaker C] in his presence, and the presumption that she does not have the nerve
[Rabbi Michael Abraham] to confront him
[Speaker C] in saying “You divorced me” applies only in his presence.
[Rabbi Michael Abraham] And that is Rav Hamnuna’s rule. Our Talmudic discussion is speaking of not in his presence, so on the face of it that has nothing to do with Rav Hamnuna. But there is still credibility from Rav Hamnuna for the factum, after the fact. That is the claim. In other words, this qualifies the Talmud, because I brought earlier the passage in Gittin, where you also see that Rav Hamnuna distinguishes between in his presence, where she does not have the nerve, and not in his presence, where she does have the nerve. Tosafot says: not in his presence she does have the nerve, but that helps only after the fact. Wait, but not in his presence she has the nerve only if there won’t be witnesses.
[Speaker C] No,
[Rabbi Michael Abraham] if there will be witnesses, that is a different matter.
[Speaker C] I am speaking now independently of witnesses for the moment.
[Rabbi Michael Abraham] About the fact that our Talmud says it is speaking of not in his presence. So on the face of it, not in his presence has nothing to do with Rav Hamnuna. Because Rav Hamnuna speaks only in his presence, because in his presence there is the presumption that she does not have the nerve to confront him, but in our case, where it is not in his presence, there is no such presumption. So then what? What should the law have been? That she should not marry, and even if she did marry she must leave. But in our case the rule is that ab initio she should not marry, and only if she did marry she does not leave. Why? What is the difference? So Tosafot says that we have to say that even not in his presence there is some degree of the presumption that she does not have the nerve to confront him, even not in his presence. That is enough for me after the fact, but not enough ab initio. And what you said—“some degree of a presumption”—I don’t know if you can divide a presumption into levels like that. Yes, apparently Tosafot does; that is what comes out here from Tosafot. Tosafot says that in general a woman does not have the nerve to lie, but if her husband is not here, then say out of a hundred women, if the husband is here then ninety-five won’t lie; if the husband isn’t here then sixty won’t lie. Fine? So there is still a presumption here, still some sort of majority. And the presumption would work even not in his presence because she is afraid that witnesses may come later? Is that possible? If she knows there are witnesses, but again, that is the “she checks carefully before marrying” factor here. No, but she can also be afraid even if she doesn’t know. But then that is always true, both in his presence and not in his presence, so if there is such a concern then the whole sugya never gets started; then she is simply not believed, period. The point… The point here, I think, is that this should bring
[Speaker C] us back to what we discussed at the beginning.
[Rabbi Michael Abraham] Because what we discussed at the beginning was that it may be—after all, I said that the presumption that a woman does not have the nerve to confront her husband may be what turns her migo into “the mouth that prohibited.” Right, that is what I suggested in Rav Hamnuna’s view. It may be that this weaker presumption leaves it only as a migo and not “the mouth that prohibited,” and therefore it does not work. Do you understand what I’m saying? After all, earlier I said that Rav Hamnuna needs the presumption that a woman does not have the nerve to confront her husband.
[Speaker C] I asked: if it is talking about a case where they have no
[Rabbi Michael Abraham] witnesses that they were married, then she has “the mouth that prohibited”—so why do we need this presumption? So I said that this presumption is—possibly, one possibility—this presumption is the basis for seeing this as “the mouth that prohibited.” Because of this presumption we see this as “the mouth,” because everything depends on her. She prohibited, she permitted. But if she does not have the nerve? Then you cannot say that she did us a favor by prohibiting. She doesn’t have the nerve to lie—what do you mean? But if she does have the nerve to lie, then everything depends on her, right? So the question whether there is “the mouth that prohibited” here or not depends on that. It may be that the difference between a strong presumption and a weak presumption—
[Speaker D] between whether it is in front of
[Rabbi Michael Abraham] her husband or not in front of
[Speaker C] her husband—is in the question whether the migo becomes “the mouth that prohibited” or remains merely a migo.
[Rabbi Michael Abraham] Because “the mouth that prohibited” can work against a prior presumption that she is
[Speaker C] a married woman; a migo cannot.
[Rabbi Michael Abraham] Maybe that is the difference between a strong presumption and a weak presumption. But then why does Tosafot nevertheless connect the coming of witnesses to the idea that she doesn’t have the nerve even not in his presence? Why? Where do you see witnesses here? Here: from “if she married and afterward witnesses came,” how do you infer that it is not in his presence? Well? I’m asking why that is so. You’re putting the comma in exactly the right place. Precisely. I think that… Why? Because what he means to say is that for the factum it helps. “Afterward witnesses came”—how do you infer from there that it is not in his presence? He means that for the factum, the not-in-his-presence case helps. Now, the situation in which witnesses came later—what do we say about it? No, if you think that in front of her husband it is at its strongest that she does not have the nerve, but also in front of others… No, that has nothing to do with being in front of the witnesses. No, no, no—that’s not the point. The point is this: when she does not have the nerve to confront her husband, that is very strong.
[Speaker C] When she does have the nerve not
[Rabbi Michael Abraham] in front of her husband, that is a weak presumption.
[Speaker C] For what does it nevertheless help? Only for the rule of the factum.
[Rabbi Michael Abraham] What is the factum?
[Speaker D] That if she married and then witnesses came afterward.
[Speaker C] The weak presumption helps only for the after-the-fact case of when she married and afterward witnesses came. It’s not that she is in front of the witnesses or not in front of the witnesses. Fine, just one more sentence—
[Rabbi Michael Abraham] I want to finish this. There is here… But all this gives us additional confidence in her, to the point that we can let it stand even if witnesses came later.
[Speaker E] Yes. The claim is that in Kovetz Shiurim here, meaning the Ran and Nachmanides, are basically going in the same direction as Tosafot.
[Rabbi Michael Abraham] Yes? That in our case it is talking about not in his presence, and therefore there is some difference here between ab initio and after the fact. They bring some dispute there. After all, I asked there—I think I asked you—what happens according to Rav Hamnuna when it is in his presence? Where the woman does testify in his presence. Is it also the case that ab initio she should not marry? Or there is the permission even ab initio? What does Tosafot assume? That there is permission
[Speaker F] ab initio, right?
[Rabbi Michael Abraham] Exactly. That is precisely what Tosafot asks: so why in our case is there no permission ab initio? So he says: because in our case it is not in his presence. Which implies that in his presence it is permitted even ab initio. Both Nachmanides and the Ran bring an opinion that even according to Rav Hamnuna, ab initio she should not marry; only if she did marry she does not leave. And then you do not need all these distinctions between in his presence and not in his presence; the same rule that appears in our case also fits Rav Hamnuna’s rule. That is, briefly, what appears there in the Ran and in Nachmanides. Look in Kovetz Shiurim—only hinted at there is what I said about “the mouth that prohibited” and the proof. He says like this: “And this requires explanation: since even without that the presumption says she must leave, and the presumption by itself also is not relied upon, what is achieved by combining the two reasons together to permit her? After all, the presumption alone is not relied upon, because she may not marry ab initio; so why, if after she married, does she not leave? Why does the combination of the two reasons help?” He says: “Now if we say that the permissive force of ‘the mouth that prohibited’—that likewise the permission of ‘the mouth that prohibited’ is because of ‘why should she lie,’ since she could have remained silent”—that is basically a kind of migo—“if so, what difference does it make that witnesses came afterward? In any case, the proof of ‘why should she lie’ has not been retroactively nullified and still stands in its place. So we are forced to say that because of ‘why should she lie’ alone we do not permit her to remove herself from the presumption of being a married woman, because a migo does not remove someone from a presumption. If it were ‘the mouth that prohibited,’ it would help; not a mere migo. Rather, she must have the credibility-force of ‘the mouth that prohibited,’ and after witnesses came that credibility-force was nullified, and all that remained was the proof of ‘why should she lie,’ which is not effective to remove her from the presumption of being a married woman. But the presumption that a woman does not have the nerve to confront her husband is effective when the presumption of her being a married woman has been weakened,” as Tosafot wrote above—the Tosafot we brought earlier—“that there is a presumption where she does and does not have the nerve.” In short, what I just wanted to say is that this distinction between “the mouth that prohibited” and migo is already brought in Kovetz Shiurim, which is what accompanied us here throughout the lesson. Okay, I’ll let you know what will be in the next class. I’m still debating whether to return to this sugya or move on already, because I said the main points. So fine, we’ll stop here. Thank you very much, and goodbye.