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Kesuvos, 23

KESUVOS 21-23 (Seder night, and Chol ha'Moed Pesach) - have been anonymously dedicated by a unique Ohev Torah and Marbitz Torah living in Ramat Beit Shemesh, Israel.


QUESTION: The Mishnah states that two women who were captured (Shevuyos) may testify that the other was not defiled and is permitted to marry a Kohen. RASHI writes that the Chachamim were lenient in the case of a Shevuyah to accept the testimony of one witness, even a woman.

Why does Rashi say that the Chachamim were lenient in the case of a Shevuyah? There is a general rule that "one witness is believed in matters of prohibitions" ("Ed Echad Ne'eman b'Isurim"), even if the witness is not valid for testimony in court (such as a woman or relative). The case of Shevuyah involves an Isur (whether or not the woman is permitted to marry a Kohen), and thus the normal rule of "Ed Echad Ne'aman b'Isurim" should permit us to accept the testimony of a single witness! Why does Rashi say that there is a special leniency in the case of Shevuyah?


(a) The TOSFOS RID in Kidushin (66a, cited by the SHEV SHEMAITSA 6:15) proves from the Gemara there (see Shev Shemaitsa) that judging whether or not a woman is a Shevuyah, or whether she is prohibited to marry Kohanim for another reason (such as Gerushah or Chalutzah), is considered a "Davar sheb'Ervah" and therefore two witnesses are required. Accordingly, it is clear why we need a special leniency in the case of Shevuyah in order to accept the testimony of a single witness.

The source for the requirement of two witnesses to prove a "Davar sheb'Ervah" is from a verse discussing a woman who becomes prohibited to her husband becuase she committed adultery (Devarim 24:1). According to the Tosfos Rid, the verse apparently refers not only to an adulteress (who transgressed an Isur Kares), but to any testimony that causes a woman to become prohibited (or permitted) to certain men. According to this logic, it would seem that two witnesses are required even in order to prove that a person is, or is not, a Mamzer or Mamzeres. (One might, however, distinguish between Isurim that can only take effect upon a woman -- such as Pesulei Kehunah and Zenus, which require two witnesses -- and those that can apply to men as well -- such as Mamzer, which is not a Davar sheb'Ervah and requires but a single witness.)

(b) The REBBI AKIVA EIGER and the NESIVOS HA'MISHPAT (both cited in TESHUVOS REBBI AKIVA EIGER #124, 125) posit, based on a MORDECHAI in Yevamos, that a court case is considered to be a Davar sheb'Ervah only if it creates (or removes) an Isur on the woman which prevents the enactment of Kidushin with that woman (similar to the Isur of Eshes Ish).

This explanation of the Mordechai needs clarification, though, since the Isur of an adulteress to her husband does not preclude Tefisas Kidushin; it is simply an Isur Lav. Similarly, the Isur of Shevuyah to a Kohen is only a Lo Ta'aseh (a normal negative commandment) which does not prevent Kidushin from taking effect, yet it is clear from the Gemara in Kidushin (ibid.) and from our Gemara that two witnesses are required to prohibit a Shevuyah.

The Nesivos ha'Mishpat explains that according to this Mordechai there are two acts which are considered Davar sheb'Ervah: (1) An act which *creates* an Isur which precludes the enactment of Kidushin, and (2) an act in which a woman becomes prohibited to others because she *had relations with* a person with whom she could not enact Kidushin. A Shevuyah (who is suspected of being raped by her non-Jewish captors) and an adulteress fit into the second category.

However, Rebbi Akiva Eiger asserts that this is not the Mordechai's intention. Instead, he suggests that prohibiting an adulteress to her husband is considered a "Davar 'b'Ervah" even though it does not prevent Kidushin from being enacted with her because the Torah refers to that particular Isur as "Tum'ah," (see Yevamos 11a) just like the Arayos. Shevuyah is considered a "Davar sheb'Ervah" for the same reason, since the Gemara in Yevamos (56b) tells us that the wife of a Kohen who was raped is prohibited to her husband because of an Isur of "Tum'ah." This is only true of a married woman who was raped, though (seeTeshuvos Rebbi Akiva Eiger #125, and TESHUVOS V'CHIDUSHEI REBBI AKIVA EIGER, 20:3). If a single woman is captured and raped, it would not be considered a Davar sheb'Ervah at all according to this logic. According to Rebbi Akiva Eiger, we will have to find another reason why any Shevuyah, even a single woman, should require two witnesses if not for a special leniency.

This also appears to be the opinion of the RAMBAM (Hilchos Sanhedrin 16:6, see Shev Shemaitsa ibid.), who writes that only one witness is necessary to determine whether or not a woman is a Zonah or Gerushah and prohibited to a Kohen. Similarly, TOSFOS in Gitin (2b, DH Midi) writes that the law that a "Davar sheb'Ervah" requires two witnesses applies only to testimony concerning marriage, divorce, and Zenus that prohibits a woman to her husband.

(c) Tosfos (Gitin 2b DH Ed Echad) writes that one witness is not believed even for a regular Isur in order to *remove* an Isur that has already been established ("Ischazek Isura," or a "Chezkas Isur"). If so, since the Chachamim assume that a Shevuyah was definitely defiled until proven otherwise (see Kesuvos 13b), she is considered to have a "Chezkas Isur," and therefore a single witness would not be believed to remove that Isur if not for the special leniency the Chachamim instituted in the case of a Shevuyah.

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