Gerushin - Chapter Thirteen

Note the ruling of the Chelkat Mechokek 17:93, who explains that the Rambam's decision applies only in an instance where the woman has already made false statements in the presence of a court. The fact that a couple constantly quarrel is not considered serious enough to warrant the stringencies mentioned in this halachah.

And so, the couple were forced to remain married. Chapter 12, Halachah 15 describes a situation when a man disappears "when their relationship is peaceful, and peace prevails in the world at large." All the laws that follow in that chapter deal with such situations. This chapter describes situations where these conditions do not prevail, and hence more stringent laws apply.

I.e., the stringencies apply even where peace prevails in the world at large, because of the strife that exists between the couple.

Yevamot 116a records a difference of opinion between the Sages regarding the rationale for this ruling. Rav Chananiah states that the reason is that we suspect that the woman is lying. Rav Simi bar Ashi states that we suspect that in an instance where her husband appears to be dying, the woman will not be careful and will conclude that he died, even though he remained alive.

The Rambam's citation of the first opinion in this halachah represents a reversal of his thinking. For in his Commentary on the Mishnah (Yevamot 15:1), he mentions the latter view.

According to the Rambam's opinion stated here, even if the woman says that she buried her husband, her word is not accepted (Hagahot Maimoniot; Ramah, Even HaEzer 17:48).

The Maggid Mishneh notes that this issue is left unresolved by Yevamot 116b, and therefore, the Rambam chooses the more stringent view. The Maggid Mishneh questions why the Rambam ignores the rationale given by the Talmud - that in most cases, a woman who is granted permission on the basis of the testimony of one witness is careful and thoroughly investigates the matter before she marries, but in this instance, because of her hatred of her husband, she will not make such an investigation - and offers another rationale that is not mentioned there.

Rav Eliyahu Mizrachi (in a responsum quoted by the Kessef Mishneh) offers a resolution to this matter, explaining that the Rambam accepts the testimony of a single witness in such instances without question, because we assume that a person will not lie in an instance where the truth will shortly be revealed. (See the notes at the conclusion of this chapter.) Nevertheless, since the question is left unresolved by our Sages, and a very severe matter is involved, the Rambam does not desire to offer a leniency that was not accepted by our Sages. Therefore, he offers a different rationale, even though it was not mentioned in the Talmud.

On the basis of this explanation, Rav Eliyahu Mizrachi explains that if a witness comes to the court on his own initiative, the woman is granted license to remarry even when differences existed between her and her husband previously. The Chelkat Mechokek 17:95, however, states that this leniency is not accepted by the latter authorities.

If, however, the woman says that her husband died near the battlefront, but not in battle, her word is accepted (Ramah, Even HaEzer 17:48).

There is a slight difficulty with the Rambam's ruling, because the rationale that the Rambam mentioned previously - that she suspects that her husband died, and because of the high likelihood is willing to make such statements even though she has no definite knowledge - seemingly does not apply when the woman says: "I buried him." For if a person is buried, he is definitely dead.

[For this reason, the Rashba - and his opinion is quoted as a minority view by the Shulchan Aruch (Even HaEzer 17:48) - rules that if the woman says that she buried her husband, her word is accepted.]

In the responsum of Rav Eliyahu Mizrachi quoted by the Kessef Mishneh, it is explained that the woman will be afraid to tarry on a battlefield and bury her husband. Nevertheless, since she is certain that he died, she will exaggerate and say that she buried him, although she did not. Alternatively, the Levush states that we suspect that the fear and confusion of wartime is so great that she may have in fact buried a man, but she might have mistaken another man for her husband.

I.e., although war was raging nearby, her husband was not involved in the war and died at home. Her word is accepted, because we do not suspect that she will intentionally lie. And at home, away from the battlefront, she will know for certain whether or not her husband died.

On the one hand, if the woman desired to lie, she could have offered a better lie and not mentioned the war at all (miggo). Nevertheless, when a woman says that her husband died in a war, our suspicion is that she erred and thought her husband died, even when he did not. Therefore, at the outset, she should not be granted permission to marry. If, however, she does marry, since there are grounds to believe her statement, we do not force her to leave her second husband.

The Rambam's ruling is quoted by the Shulchan Aruch (Even HaEzer 17:49). The Ramah, however, follows the ruling of Rabbenu Asher, who maintains that if the woman marries, she should be forced to leave her second husband.

If, however, the woman says that her husband died in bed at those times, her word is accepted. If she says that he died in a landslide or was bitten by a swarming mass of snakes, and she buried him, according to the Rambam her word is not accepted. According to the Rashba, her word is accepted if she says that she buried him [Maggid Mishneh; Ramah (Even HaEzer 17:51)].

This law applies even if she says that he died on his bed (Ramah, Even HaEzer 17:53). We fear that she left her husband sick, without any source of nurture, and assumed that he died without knowing for certain (Yevamot 114b).

In the previous instance, we do not fear that she is lying, but rather merely exaggerating and relying on the likelihood that he died. We do not, however, fear that she would exaggerate and say that she buried him if it were not true.

The woman's word is accepted with regard to a famine, while it is not with regard to war, because of the obvious difference between the two instances. In wartime, there is an immediate danger and everyone is worried about saving his own life (Ibid.).

Rashi (Yevamot 115a, Avodah Zarah 25b) states that the attackers will keep the woman alive in order to rape her. Tosafot (Avodah Zarah 25b) explains that a woman is not considered likely to fight back, and her physical weakness arouses mercy. Therefore, she is left alive.

Rabbenu Asher rules that the woman's word is not accepted. Rabbenu Nissim, moreover, maintains that that is the proper reading in the Mishneh Torah. Our translation follows the standard printed texts of the Mishneh Torah and the authoritative manuscripts most widely available.

The Shulchan Aruch (Even HaEzer 17:55) states that the woman's word is accepted, while the Ramah quotes Rabbenu Asher's view.

Chapter 12, Halachah 15.

On the basis of Hilchot Yibbum 4:31, the Beit Yosef (Even HaEzer 17) and others explain that here the Rambam is talking about a minor who is not intellectually mature. The testimony of a minor who is intellectually mature is accepted (see the following halachah). In the Shulchan Aruch (Even HaEzer 17:13), Rav Yosef Karo quotes the Rambam's wording exactly. The Turei Zahav 17:9 and the Beit Shmuel 17:33, however, make the above distinction.

Yevamot 121b explains that all these details are necessary, because it is possible that the children are play-acting and buried an insect that they called by the person's name. If, however, their statements reflect sufficient details to indicate that the funeral actually took place, they may serve as the basis for license to be granted a woman to remarry.

This is one of the classic examples of the principle palginin diburo, "we divide his statement." I.e., we accept his word with regard to the fact that so and so died. We discard the portion of his statement in which he said that he himself killed him.

If we accepted that aspect of the statement as well, he would no longer be acceptable as a witness. For his deed would cause him to be disqualified on the basis of Scriptural law. (See also Hilchot Edut 12:2.)

Chapter 12, Halachah 16.

If the gentile is making these statements with the intent that attention be paid to them, there is reason to suspect that perhaps he intends to create legal problems for a Jewish person. If, however, he makes statements casually, in the course of conversation, we do not suspect that a gentile will desire to cause problems for a Jew (Beit Shmuel 17:38).

As reflected in the halachot that follow, we do fear that a gentile may lie, if doing so will enhance his position, and we fear that he will rush to the conclusion that a man died when he is in fact alive.

If, however, a gentile says: "I killed so and so," without any apparent intent to cast fear upon his listeners, the deceased's wife is allowed to remarry (Shulchan Aruch, Even HaEzer 17:7).

If, however, other gentiles relate in the course of conversation that a Jew was killed by gentile legal authorities, their word is accepted (Ramah, Even HaEzer 17:14). As indicated by the Ramah, there is a difference of opinion whether it is acceptable if gentile legal authorities report that a person was executed, but do not say that they performed the execution.

If gentile government authorities report that a person has died or been killed (but not executed by a court of law), their statements are accepted by many halachic authorities. A distinction should be made between the government authorities in democratic countries where freedom of speech prevails, and totalitarian governments that act arbitrarily without consideration of the populace.

The Chelkat Mechokek 17:29 states that this law applies even in instances where the gentile's original statements were not sufficient to serve as a basis for remarriage.

If, however, the gentile was asked direct questions first, and then in the course of conversation said that a man died, his word is not accepted (Ramah, Even HaEzer 17:15).

Chapter 12, Halachah 15.

I.e., as reflected by the second half of the halachah, this applies if the witness does not know any details of the person's death at all. Since we do not know any details of the situation, we assume that his statements are true. When, however, the situation can be investigated, the court is obligated to do so.

This is the subject of the remainder of the chapter and also the concern of many of the responsa issued by our Sages concerning this issue throughout the generations. For quite often, the evidence of a man's death and the identification of his corpse were only partial, and the Rabbis had to clarify whether the testimony was sufficient to serve as grounds for his wife to remarry.

As stated in Halachah 28, the formal process with which witnesses are questioned is not employed with regard to testimony of this nature. Nevertheless, enquiry should be made lest the witness had erred and made his statements on the basis of likelihood and not actual fact.

The commentaries explain that according to Scriptural law, the man is considered to be dead. Nevertheless, our Sages enforced stringencies and forbade a woman from remarrying in such an instance. (See Halachah 20.)

The Pitchei Teshuvah 17:134 quotes many classical commentaries that maintain (based on Yevamot 121a) that this duration of time is considered to be three hours. Nevertheless, the later commentaries are more lenient and consider a far shorter period to be sufficient.

The Maggid Mishneh quotes the Rashba as stating that this applies only when the man was tied to a rope or chain when cast into the water, and then a limb was lifted out, or if the limb was lifted up in a net afterwards, and it could definitely be identified as the man's. When quoting this law, the Shulchan Aruch (Even HaEzer 17:32) incorporates these concepts.

In this instance as well, the Maggid Mishneh quotes the Rashba as stating that even when our Sages stated that a person could not live without a particular limb, they did not intend that he would necessarily die immediately, and it is possible that the person could live for twelve months. Therefore, even when such a limb is discovered, the woman is required to wait twelve months before remarrying. The Shulchan Aruch (ibid.) incorporates these concepts into its restatement of the law.

In this instance, however, the Rambam states that the likelihood that the man died is so great that his heirs may take possession of his inheritance (Hilchot Nachalot 7:3).

Based on Yevamot 121a, the Kessef Mishneh explains the difference between a lion's lair and a pit of snakes as follows: A lion's lair is usually wide, and so the person will not necessarily provoke the lions. A pit of snakes is small, and the man will step on the snakes, and this will provoke them. Tosafot adds that we do not say that perhaps a miracle occurred to him as occurred to Daniel.

The Maggid Mishneh quotes the Rashba as stating that this applies only when the furnace is so deep that he cannot emerge from it. This qualification is quoted by the later authorities (Chelkat Mechokek 17:57; Beit Shmuel 17:92).

The Maggid Mishneh quotes the Rashba as stating that the same laws apply with regard to a caldron of water. When quoting this law, the Shulchan Aruch (Even HaEzer 17:30) incorporates these concepts.

For once the majority of these organs are slit, we can be certain that the person will die.

The Hebrew word צלוב is translated both as crucified (the method of execution often used by the Romans in the Talmudic period) and as hung. We have chosen the latter term to emphasize the rulings of the later halachic authorities. The Bayit Chadash (Even HaEzer 17) rules that if a person is seen hanging, testimony concerning his death may be offered. The Chelkat Mechokek 17:58 and the Beit Shmuel 17:94 dispute this and cite instances in which a person who had been hanged was subsequently rescued.

If, however, he was stabbed or shot in a place that would kill him, testimony that he died may be offered (Beit Yosef, Even HaEzer 17; Beit Shmuel 17:94).

The Maggid Mishneh explains that this refers to an instance where the person remained there and watched for an amount of time sufficient for a person to die without seeing the person emerge from the water. This is substantiated by the later authorities (Chelkat Mechokek 17:61). If the witness does not observe the sea, watching for the person to emerge for that length of time, more stringent rules apply.

By saying he buried the deceased, the witness erases any questions of doubt that might exist regarding whether or not the person actually died. Alternatively, because he buried him, he will have seen his features closely and will not mistakenly identify him.

As stated in Halachah 3, the testimony of a woman who says that her husband died at war is not accepted, even if she says that she buried him. The commentaries, however, differentiate between the two instances, explaining that since the woman's husband is involved, she will be more emotionally upset and less objective. Hence, it is more likely that she would mistake the deceased's identity.

Alternatively, she desires to remarry, and thus she will stretch the truth slightly to be granted that license, while an outsider will not take such liberties.

With regard to the concept of burial in relation to a person who drowned, there are three opinions mentioned by the Rabbis:

a) The Kessef Mishneh states that if the witness sees that the person did not emerge after waiting the length of time in which one would ordinarily drown, he did not have to bury the deceased in order to testify. (Kin'at Eliyahu notes that this interpretation makes the following halachah appear slightly redundant.)

b) The Chelkat Mechokek 17:62 states that the intent was that we saw the corpse after it was taken out from the water.

c) The Noda BiY'hudah (Volume I, Even HaEzer, Responsum 28) states that the intent is that the drowned man was actually buried. For there are times when a person is taken out of the sea and presumed dead, and then is revived afterwards.

Yevamot 115a states that the question in this instance is whether the testimony of one witness is accepted, because the matter will surely be revealed in the near future - in which case the woman would be permitted to remarry - or because we rely on the fact that the woman will carefully investigate the matter before she remarries, and in this instance, since it is highly likely that her husband died, she will rely on the likelihood and not make a thorough investigation. Therefore, she should not be granted permission to remarry. Since the question is left unresolved, the ruling given by the Rambam applies.

In the responsum quoted by the Kessef Mishneh, Rabbi Eliyahu Mizrachi explains that - as reflected by the concluding halachah of this chapter - the Rambam maintains that the testimony of one witness is accepted, because the matter will surely be revealed in the near future. Nevertheless, he still maintains that, at the outset, the woman should not be granted permission to remarry, because in these situations it is possible for a person to think that a man has died, even though he is actually alive.

The Maggid Mishneh emphasizes that the same ruling is given even if two or more witnesses offer the same testimony. As long as a body of water does not have a defined periphery, these laws apply.

This also reinforces the presumption that he died, for if he had remained alive, most likely he would have returned home or divulged his identity in another manner.

Halachah 16. Note also the Rambam's comments in Hilchot Nachalot 7:3:

When a man drowned in water that does not have a defined periphery, witnesses [testify] that they saw him drown, and all traces of him have disappeared, his heirs may take possession of his estate, despite the fact that a priori, his wife is not granted permission to remarry.

The reason stringency was taken in these matters is [the severity of] a prohibition punishable by karet. But with regard to financial matters, if witnesses testify concerning an instance in which we can assume that the man died..., all traces of him have disappeared, and we have heard that he died, the heirs may take possession of his estate.

The Ramah (Even HaEzer 17:34) states that this applies only when the woman remarried after receiving license from a Rabbinic authority. If she remarried on her own initiative without consulting an authority, she should be forced to leave her second husband.

This applies only when the sage issued this ruling knowingly. If, however, he issued the ruling in error, he is not censured in this manner (Chelkat Mechokek 17:64, based on Yevamot 121a).

Yevamot 120a quotes Isaiah 3:9: "The recognition of their countenance testifies against them," as support for this concept.

The Maggid Mishneh and the Kessef Mishneh differentiate among three types of signs: a) simanim g'ru'im, signs that are not definitive, b) simanim muvhakim, signs that are definitive, c) simanim muvhakim b'yoter, signs that are extremely definitive.

Signs that are not definitive are never effective means of identification. Signs that are definitive are effective with regard to the identification of lost objects and other questions of monetary law, as stated in Hilchot Gezelah Va'Avedah 13:3-5. They are not, as stated in this halachah, effective with regard to the laws of marriage and divorce. (See also Hilchot Nachalot 7:3.) Signs that are extremely definitive - e.g., a get has a hole next to a particular letter, as stated in Chapter 3, Halachah 11 - may be relied upon with regard to the laws of marriage and divorce.

Similarly, if there is an extremely definitive sign on a corpse, it may be used as evidence to identify the body. These distinctions are also reflected in the statement of the law in the Shulchan Aruch (Even HaEzer 17:24).

With regard to personal artifacts, there is a further problem. Even if there are very distinctive signs on these articles, they cannot serve as a means of identification, because it is possible that they were lost or stolen and taken by another man. See Shulchan Aruch (op. cit.).

There are opinions that maintain that if the person can pinpoint exactly the place of the mole, it may be used as a sign of identification (Beit Shmuel 17:71).

I.e., even if the witnesses think that they can identify the corpse, their testimony cannot be relied on, because the person's facial features may have been distorted.

Yevamot 121a explains that lying in water generally causes the flesh of a corpse to shrink, and the person's features remain distinct.

Yevamot, ibid., mentions a corpse being identified after being in the Jordan River for 17 days.

Once a corpse that has been lying in the water is brought to dry land, its features will begin to lose their distinctive qualities rapidly.

There are several different versions of this halachah. We have chosen to follow the standard printed text in our translation. The Kessef Mishneh states that the proper version should be "if the corpse lies on dry land for hours" - i.e., it need not be identified immediately, but it cannot wait any significant period. The Shulchan Aruch (Even HaEzer 17:26) states that the body must be identified immediately after it emerges onto dry land. The Beit Shmuel 17:80, however, mentions that an interval of an hour is granted.

The Maggid Mishneh notes that the Rambam's statement of this law is conditional, "If the... corpse became bloated," implying that if we see that the corpse has not become bloated, we may identify it. The Rashba, by contrast, states we suspect that the facial features of a corpse will become distorted after a brief amount of time, and does not allow room for leniency.

Even according to this conception, leniency has been granted by the later authorities when a corpse was removed frozen from a river, and it took several hours to thaw.

In restating this law, there are several points mentioned by the Shulchan Aruch (ibid.): a) the corpse may not have a wound. If the body was wounded, we fear that its features will be distorted; b) even if it is less than three days after the deceased's passing, if his corpse lay in water for a significant period, it must be identified directly after its discovery.

The Ramah adds that extremely distinctive signs may be used as a means of identification even though the body has lain on dry land for a long period.

Although these sources of light are not overly bright, our Sages felt that they were sufficient to enable a person to identify a corpse. There is no need to wait until daylight.

The Tur (Even HaEzer 17) states that the person must mention both these factors: his father's name and his city. The Beit Shmuel 17:66 states that, although in general one of these means of identification would have been sufficient, both are necessary because the person's facial features have changed. The Chelkat Mechokek 17:40, however, states that when it is obvious that the person knows the place from which the person came, the ruling of the Rambam and the Shulchan Aruch (Even HaEzer 17:23) may be followed, and only one factor need be mentioned. This is also borne out by the following halachah and its source in Yevamot 115b.

I.e., we do not assume that the person was lying, but instead suppose that the poison caused his features to change (Meiri).

Yevamot 122a, the source for this halachah, mentions that perhaps the statements were made by a demon. The Rambam, however, does not mention this possibility, in keeping with his conception (see The Guide for the Perplexed, Vol. III, Chapter 46), that demons are not a relevant halachic phenomenon.

I.e., he was informing the Rabbinical court of that city that one of the Jewish inhabitants had died (Kessef Mishneh).

The Ra'avad and the Maggid Mishneh mention that this principle applies only when we do not know of another person in the city with that name, or we know that this other person is still alive. The Shulchan Aruch (Even HaEzer 17:18) incorporates these additions into its statement of this law.

The Maggid Mishneh explains that the Rambam's ruling is that when a gentile knows the name of a Jew, it is unnecessary for him to say that he buried him, when relating that he died. If, however, the gentile did not know the identity of the Jew, it is necessary for him to say that he buried him.

The Tur (Even HaEzer 17) and other authorities do not agree with the Rambam with regard to this point and maintain that the gentile's statements are accepted even when he does not say that he buried the Jew. The Shulchan Aruch (Even HaEzer 17:17) mentions both opinions, but appears to favor the latter view.

Our translation is based on the gloss of Rav Kapach, who cites a similar interpretation mentioned by the Razeh.

From the Rambam's words, it appears that the men must be tied together. Otherwise, we suspect that one of them left and was replaced by another. In his commentary on the source for this law (Yevamot 122a), Rashi does not share this conception and maintains that the number of men itself is sufficient to serve as identification.

The Noda BiY'hudah (Even HaEzer, Volume I, Responsum 36) notes that the Rambam requires that a) a specific number of men were mentioned, b) that their starting point and destination were mentioned, and c) that they were chained together.

The Noda BiY'hudah questions these requirements, because the standard text of Yevamot 122a (the Rambam's source) mentions two stories: one of men traveling in chains and one of sixty men traveling to Betar. The Rambam appears to have fused the two stories together, adopting the requirements mentioned by both and thus being more stringent than his source.

The Noda BiY'hudah reconciles this difficulty by referring to the statement of these incidents in Rabbenu Yitzchak Alfasi's Halachot, which follows a different version from our text of Yevamot. Rabbenu Yitzchak Alfasi mentions "two men traveling in chains to Antioch." Since the Rambam was a student of one of the disciples of Rabbenu Yitzchak Alfasi, it is likely that the Rambam also had the same version of this passage.

Here too, the Rambam is referring to an instance in which the gentile did not know the identity of the people who died. (See the notes on the previous halachah.)

This applies even if the person is missing, and there are no traces of him left.

According to the Rambam and the Shulchan Aruch, alternatively, a person's name and his father's name.

Our wording is based on the gloss of the Ramah (Even HaEzer 17:19), who states that this law applies even if the report is given by a gentile in the course of conversation.

In this instance as well, the name of the deceased is not mentioned.

The Maggid Mishneh states that the note must also be signed, and we must see that the signature was written by a Jew. The signature need not, however, be verified. (See Shulchan Aruch, Even HaEzer 17:11 and commentaries.)

Regardless of the language in which the note was written, if it was written by a Jew, it is acceptable. If, however, it was written by a gentile, it is not acceptable even if it is written in Hebrew. For a gentile's statements are acceptable only when made in the course of conversation (Maggid Mishneh).

In his Bedek HaBayit (Even HaEzer 17), Rav Yosef Karo asks why a statement written by a gentile in the course of conversation is not effective. And in his Shulchan Aruch (loc. cit.), he rules that it is.

This is a leniency accepted in order to allow a woman to remarry. Generally, testimony must be given verbally and not in writing. (See Hilchot Edut 3:4.)

See Chapter 2, Halachah 16.

See Hilchot Edut 9:11, which explains that such testimony is ordinarily not accepted by a Rabbinic court. An exception is made in this instance in order to allow a woman to remarry.

Which includes questions defining the exact time and place of the event. (See Hilchot Edut 1:4.)

Moreover, even if slight contradictions arise regarding minor points of the testimony of two witnesses, the testimony is nevertheless accepted (Shulchan Aruch, Even HaEzer 17:21).

In one of his responsa (quoted by the Ramah, op. cit.), the Rambam writes: "Whoever is stringent and interrogates witnesses exactingly is not conducting himself properly, and his approach does not find favor in the eyes of our Sages." The Ramah, however, continues that if testimony appears contrived to the court, they must thoroughly investigate the matter.

I.e., these are leniencies that our Sages instituted. The acceptance of the testimony of one witness, by contrast, is a leniency implied by Scriptural law.

This follows the interpretation of the Rambam's statements here by the Noda BiY'hudah (Even HaEzer, Volume I, Responsa 27 and 33). There is, however, an apparent contradiction based on the Rambam's statements in Hilchot Edut 5:2.

I.e., if the man presumed dead returns, it will be obvious that the witness lied.

See similar statements in Hilchot Kiddush HaChodesh 3:14 and Hilchot Yibbum VaChalitzah 4:31.

The Ra'avad and others note that our Sages (Yevamot 93b, 115a) mention two rationales why a woman should be permitted to remarry, the one cited by the Rambam and also because of the severe consequences that she will bring upon herself if her husband is found alive (see Chapter 10, Halachah 7), a woman will investigate the matter thoroughly and will not remarry unless she is certain that he has actually died. The Talmud appears to imply that these rationales are contradictory and cites cases in which one would apply, but not the other.

The Noda BiY'hudah (loc. cit.) explains that the Rambam sees the two rationales as complementary. Ordinarily, when a matter can easily be verified - e.g., a question of whether or not chalitzah was performed - the statement of one witness is acceptable without question. In this instance, however, it is not always easy to verify whether in fact the man died, and therefore the rationale that the woman must investigate the matter is necessary. For this reason, in all the instances where the Talmud implies that one rationale would conflict with another, the Rambam reaches a conclusion that takes both rationales into consideration.