Gerushin - Chapter Thirteen

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

And so, the couple were forced to remain married.

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

Yevamot 116a records a difference of opinion between the Sages regarding the rationalefor this ruling. Rav Chananiah states that the reason is that we suspect that the woman islying. 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, eventhough he remained alive.
The Rambam’s citation of the first opinion in this halachah represents a reversal of histhinking. For in his Commentary to the Mishnah (Yevamot 15:1), he mentions the latterview. According to the Rambam’s opinion stated here, even if the woman says that sheburied her husband, her word is not accepted (Hagahot Maimoniot; Rama, Even HaEzer17:48).

The Maggid Mishneh notes that this issue is left unresolved by Yevamot 116b, andtherefore, the Rambam chooses the more stringent view. The Maggid Mishneh questionswhy the Rambam ignores the rationale given by the Talmud— that in most cases, a womanwho is granted permission on the basis of the testimony of one witness is careful andthoroughly investigates the matter before she marries, but in this instance, because of herhatred of her husband, she will not make such an investigation— and offers anotherrationale that is not mentioned there.
Rav Eliyahu Mizrachi (in a responsum quoted by the Kessef Mishneh) offers a resolutionto this matter, explaining that the Rambam accepts the testimony of a single witness in suchinstances without question, because we assume that a person will not lie in an instance wherethe truth will shortly be revealed. (See the notes at the conclusion of this chapter.) Never-theless, since the question is left unresolved by our Sages, and a very severe matter is involv-ed, 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 comesto the court on his own initiative, the woman is granted license to remarry even when dif-ferences 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 (Rama, 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. 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 athome. Her word is accepted, because we do not suspect that she will intentionally lie. And athome, 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 notmentioned the war at all (miggo). Nevertheless, when a woman says that her husband diedin a war, our suspicion is that she erred and thought her husband died, even when he didnot. 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 toleave her second husband.
The Rambam’s ruling is quoted by the Shulchan Aruch (Even HaEzer 17:49). The Rama,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 isaccepted. If she says that he died in a landslide or was bitten by a swarming mass ofsnakes, and she buried him, according to the Rambam her word is not accepted. Accord-ing to the Rashba, her word is accepted if she says that she buried him [Maggid Mishneh;Rama (Even HaEzer 17:51)].

This law applies even if she says that he died on his bed (Rama, Even HaEzer 17:53).We fear that she left her husband sick, without any source of nurture, and assumed that hedied 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.

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 con-sidered likely to fight back, and her physical weakness arouses mercy. Therefore, she is leftalive.

Rabbenu Asher rules that the woman’s word is not accepted. Rabbenu Nissim, more-over, maintains that that is the proper reading in the Mishneh Torah. Our translationfollows the standard printed texts of the Mishneh Torah and the authoritative manu-scripts most widely available. The Shulchan Aruch (Even HaEzer 17:55) states that thewoman’s word is accepted, while the Rama 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 explainthat here the Rambam is talking about a minor who is not intellectually mature. Thetestimony of a minor who is intellectually mature is accepted (see the following hala-chah). In the Shulchan Aruch (Even HaEzer 17:13), Rav Yosef Caro quotes the Ram-bam’s wording exactly. The Turei Zahav 17:9 and the Beit Shmuel 17:33, however, makethe above distinction.

Yevamot 121b explains that all these details are necessary, because it is possible that thechildren 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 tookplace, 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 palginon 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 Jewishperson. If, however, he makes statements casually, in the course of conversation, we do notsuspect 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 fearupon his listeners, the deceased’s wife is allowed to remarry (Shulchan Aruch, Even HaEzer17:7).

If, however, other gentiles relate in the course of conversation that a Jew was killed bygentile legal authorities, their word is accepted (Rama, Even HaEzer 17:14). As indicated bythe Rama, there is a difference of opinion whether it is acceptable if gentile legal authoritiesreport 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 notexecuted by a court of law), their statements are accepted by many halachic authorities. Adistinction should be made between the government authorities in democratic countrieswhere freedom of speech prevails, and totalitarian governments that act arbitrarily withoutconsideration of the populace.

The Chelkat Mechokek 17:29 states that this law applies even in instances where thegentile’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 con-versation said that a man died, his word is not accepted (Rama, 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 notemployed with regard to testimony of this nature. Nevertheless, enquiry should be made lestthe 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 tobe dead. Nevertheless, our Sages enforced stringencies and forbade a woman from remar-rying in such an instance. (See Halachah 20.)

The Pitchei Teshuvah 17:134 quotes many classical commentaries that maintain (basedon 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 manwas tied to a rope or chain when cast into the water, and then a limb was lifted out, or if thelimb was lifted up in a net afterwards, and it could definitely be identified as the man’s. Whenquoting 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 whenour Sages stated that a person could not live without a particular limb, they did not intendthat he would necessarily die immediately, and it is possible that the person could live fortwelve months. Therefore, even when such a limb is discovered, the woman is required towait twelve months before remarrying. The Shulchan Aruch (ibid.) incorporates these con-cepts into its restatement of the law.

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

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 (Kessef Mishneh).

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

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

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

The Hebrew word tzaluv is translated both as crucified (the method of execution oftenused by the Romans in the Talmudic period) and as hung. We have chosen the latter termto emphasize the rulings of the later halachic authorities. The Bayit Chadash (Even HaEzer17) 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 inwhich 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 hedied 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 remainedthere and watched for an amount of time sufficient for a person to die without seeing theperson emerge from the water. This is substantiated by the later authorities (Chelkat Mecho-kek 17:61). If the witness does not observe the sea, watching for the person to emerge for thatlength 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.

Yevamot 115a states that the question in this instance is whether the testimony of onewitness 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 thewoman will carefully investigate the matter before she remarries, and in this instance, sinceit is highly likely that her husband died, she will rely on the likelihood and not make athorough investigation. Therefore, she should not be granted permission to remarry. Sincethe 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 thetestimony of one witness is accepted, because the matter will surely be revealed in the nearfuture. Nevertheless, he still maintains that, at the outset, the woman should not be grantedpermission to remarry, because in these situations it is possible for a person to think that aman has died, even though he is actually alive.

The Maggid Mishneh emphasizes that the same ruling is given even if two or more witnes-ses 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, mostlikely 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 heirsmay take possession of his estate, despite the fact that a priori, his wife is notgranted permission to remarry.
The reason stringency was taken in these matters is [the severity of] a prohibitionpunishable by karet. But with regard to financial matters, if witnesses testify con-cerning an instance in which we can assume that the man died..., all traces of himhave disappeared, and we have heard that he died, the heirs may take possession ofhis estate.

The Rama (Even HaEzer 17:34) states that this applies only when the woman remarriedafter receiving license from a Rabbinic authority. If she remarried on her own initiativewithout consulting an authority, she should be forced to leave her second husband.sssss

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

Yevamot 120a quotes Isaiah 3:9: ‘‘The recognition of their countenance testifies againstthem,’’ 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 aredefinitive, c) simanim muvhakim b’yoter, signs that are extremely definitive.
Signs that are not definitive are never effective means of identification. Signs that aredefinitive are effective with regard to the identification of lost objects and other questions ofmonetary law, as stated in Hilchot Gezelah Va’Avedah 13:3-5. They are not, as stated in thishalachah, effective with regard to the laws of marriage and divorce. (See also HilchotNachalot 7:3.) Signs that are extremely definitive— e.g., a get has a hole next to aparticular letter, as stated in Chapter 3, Halachah 11— may be relied upon with regard tothe laws of marriage and divorce.
Similarly, if there is an extremely definitive sign on a corpse, it may be used as evidenceto 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 dis-tinctive signs on these articles, they cannot serve as a means of identification, because it ispossible 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 themole, 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 cannotbe 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 toshrink and the person’s features remain distinct.

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

Once a corpse that has been lying in the water is brought to dry land, its features willbegin to lose their distinctive qualities rapidly.
There are several different versions of this halachah. We have chosen to follow the stan-dard printed text in our translation. The Kessef Mishneh states that the proper versionshould be ‘‘if the corpse lies on dry land for hours’’— i.e., it need not be identifiedimmediately, but it cannot wait any significant period. The Shulchan Aruch (EvenHaEzer 17:26) states that the body must be identified immediately after it emerges ontodry 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, ‘‘Ifthe... corpse became bloated,’’ implying that if we see that the corpse has not becomebloated, we may identify it. The Rashba, by contrast, states we suspect that the facialfeatures of a corpse will become distorted after a brief amount of time, and does not allowroom for leniency. Even according to this conception, leniency has been granted by thelater authorities when a corpse was removed frozen from a river, and it took several hoursto 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 featureswill be distorted; b) even if it is less than three days after the deceased’s passing, if hiscorpse lay in water for a significant period, it must be identified directly after its discovery.The Rama adds that extremely distinctive signs may be used as a means of identificationeven 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 weresufficient 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: hisfather’s name and his city. The Beit Shmuel 17:66 states that, although in general one ofthese means of identification would have been sufficient, both are necessary because theperson’s facial features have changed. The Chelkat Mechokek 17:40, however, states thatwhen 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 onlyone factor need be mentioned. This is also borne out by the following halachah and itssource in Yevamot 115b.

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

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 wedo not know of another person in the city with that name, or we know that this otherperson is still alive. The Shulchan Aruch (Even HaEzer 17:18) incorporates these additionsinto its statement of this law.

The Maggid Mishneh explains that the Rambam’s ruling is that when a gentile knowsthe name of a Jew, it is unnecessary for him to say that he buried him, when relating thathe died. If, however, the gentile did not know the identity of the Jew, it is necessary for himto say that he buried him.
The Tur (Even HaEzer 17) and other authorities do not agree with the Rambam withregard 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) mentionsboth opinions, but appears to favor the latter view.

Our translation is based on the gloss of Rav Kapach, who cites a similar interpretationmentioned 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 thesource for this law (Yevamot 122a), Rashi does not share this conception and maintainsthat the number of men itself is sufficient to serve as identification.

The Noda B’Yhudah (Even HaEzer, Volume I, Responsum 36) notes that the Rambamrequires that a) a specific number of men were mentioned, b) that their starting point anddestination were mentioned, and c) that they were chained together.
The Noda B’Yhudah questions these requirements, because the standard text of Yevamot122a (the Rambam’s source) mentions two stories: one of men traveling in chains and one ofsixty 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 B’Yhudah reconciles this difficulty by referring to the statement of these inci-dents in Rabbenu Yitzchak Alfasi’s Halachot, which follows a different version of the 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 islikely 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 theidentity 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 andhis father’s name.

Our wording is based on the gloss of the Rama (Even HaEzer 17:19), who states that thislaw 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 thesignature was written by a Jew. The signature need not, however, be verified. (See ShulchanAruch, Even HaEzer 17:11 and commentaries.)

Regardless of the language in which the note was written, if it was written by a Jew, it isacceptable. If, however, it was written by a gentile, it is not acceptable even if it is writtenin Hebrew. For a gentile’s statements are acceptable only when made in the course ofconversation (Maggid Mishneh).
In his Bedek HaBayit (Even HaEzer 17), Rav Yosef Caro asks why a statement writtenby 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, testimonymust 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 aRabbinic 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 HilchotEdut 1:4.)

Moreover, even if slight contradictions arise regarding minor points of the testimony oftwo witnesses, the testimony is nevertheless accepted (Shulchan Aruch, Even HaEzer 17:21).
In one of his responsa (quoted by the Rama, op. cit.), the Rambam writes: ‘‘Whoever isstringent and interrogates witnesses exactingly is not conducting himself properly, and hisapproach does not find favor in the eyes of our Sages.’’ The Rama, however, continues that iftestimony 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.

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 VaCha-litzah 4:31.
The Ra’avad and others note that our Sages (Yevamot 93b, 115a) mention two rationaleswhy a woman should be permitted to remarry, the one cited by the Rambam and alsobecause of the severe consequences that she will bring upon herself if her husband isfound 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 toimply that these rationales are contradictory and cites cases in which one would apply, butnot the other.
The Noda B’Yhudah (loc. cit.) explains that the Rambam sees the two rationales as com-plementary. 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, andtherefore the rationale that the woman must investigate the matter is necessary. For thisreason, in all the instances where the Talmud implies that one rationale would conflict withanother, the Rambam reaches a conclusion that takes both rationales into consideration.