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prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem

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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.



(a) According to the Tana of the Beraisa, if two pairs of witnesses clash over whether a woman is betrothed or not, or as to whether she is divorced or not, she is forbidden to marry a second man. In the former case, however - once she has married, she may remain with her husband; whereas in the latter case, she may not.

(b) Abaye establishes the Beraisa when it is a clash of one witness against one, and not two against two. Consequently - in the former case, both witnesses are testifying that she was a P'nuyah (unmarried), and the witness who testifies that she is betrothed, is not believed because he is one witness against two (see Tosfos DH 'Mai') (Consequently, once she has married, she may remain with her husband). In the latter case however, where both witnesses testify that she was married, it is the witness who testified that she is now divorced who is the single witness testifying against two.

(c) In a case of two against two - she would be obligated to leave either way (despite the Chezkas P'nuyah in the Reisha - see Tosfos DH 'Mai').

(a) Rav Ashi retains the original version of the Beraisa ('T'rei u'T'rei), but he switches the Halachos of the Reisha and the Seifa. The Tana now holds ...
1. ... in the Reisha by Kidushin - Teitzei.
2. ... in the Seifa by Gerushin - Lo Teitzei.
(b) Rav Ashi explains T'rei u'T'rei both in the Reisha and in the Seifa - when the first two witnesses say that they saw the Kidushin or the Gerushin (respectively), and the second two say that they did not.

(c) The Tana needs to inform us that, if two witnesses say that they saw ...

1. ... the Kidushin, and two say that they did not, the woman is considered betrothed (and Teitzei) - because the Tana speaks when the witnesses reside in the same Chatzer as the man and the woman, and we might have thought that, had the woman been betrothed, the witnesses would certainly have known about it, and seeing as they did not, it is clear that she is not betrothed.
2. ... the Gerushin, and two say that they did not, that she is permitted to remain with her husband - because of the same logic as we just gave by Kidushin. Only we would have thought that, even if we can explain the Chidush in the Reisha on the basis that some people tend to betroth discreetly, this will not be the case by divorce. Consequently, seeing as the second pair of witnesses did not know about the divorce, it clearly did not take place.
(d) The outcome of the Sugya is that both as regards Kidushin and as regards Gerushin, there are people who do it discreetly and not everyone knows about it. Consequently, we apply the principle 'Lo Ra'inuhah, Einah R'ayah'.
(a) The Tana of our Mishnah concludes that if witnesses came after she was already married, she may remain with her husband. According to Rebbi Oshaya, this refers to the Reisha, when the woman said that she had been married, but was now divorced. According to Rabah bar Avin - it refers to the Seifa ('Amrah Nishbeisi u'Tehorah Ani. ... ').

(b) According to Rabah bar Avin, the statement does not pertain to the Reisha - because the Tana is only lenient by a captive, because of the principle 'bi'Sh'vuyah Heikilu' (seeing as it no more than an unsubstantiated suspicion that her captors abused her).

(c) We reject the suggestion that Rav Oshaya and Rabah bar Avin argue over Rav Hamnuna, who says that a woman who says to her husband that he divorced her is believed (and that Rabah bar Avin disagrees with Rav Hamnuna) on the grounds that, he too, agrees with Rav Hamnuna, but that, in his opinion, Rav Hamnuna restricts his principle to when the woman is speaking to her husband, but not to when she is said it not in his presence.

4) Still with regard to the end of our Mishnah, Shmuel's father interprets the words ...
1. ... 've'Im mi'she'Niseis Ba'u Eidim' - to mean not from the time that she actually married, but from the time that Beis-Din permitted her to marry'.
2. ... 'Lo Seitzei' - to mean that she does not leave her Heter (i.e. it remains in force).
(a) If a woman claims that she was captured, but that she had not been violated, and that she had witnesses to prove it - we allow her to marry a Kohen immediately, without making her wait until the witnesses arrive.

(b) In order to be effective - those witnesses would have had to testify that they were with her all the time, and that there was no time that she was alone with her captors.

(c) If, after Beis-Din have permitted a woman who had a 'Peh she'Asar' to marry, witnesses arrive who testify that she was captured ...

1. ... but who do not know whether she was violated or not - she remains permitted.
2. ... and that she was violated - then she must leave her husband.
(a) When Shmuel father appointed chaperones to keep guard over some women captives who had arrived in Neherda'a to be sold - Shmuel asked him who had kept watch over them until then.

(b) His father replied whether he would not have done the same thing had it been his own daughters who were captured (not to permit them to marry, but to prevent further violation). The result of his fateful question was ("ki'Sh'gagah ha'Yotzei mi' Pi ha'Shalit" - Koheles) - that Shmuel's daughters were indeed captured.

(c) When the captors took them to Eretz Yisrael to be sold - Shmuel's daughters entered Beis-Din whilst their captors waited outside, and testified that they had been captured but had not been violated.

(d) Rebbi Chanina commented that they must be the daughters of a great Talmid-Chacham - on account of their having entered the Beis-Din without their captors, demonstrating that they knew the Halachah of 'ha'Peh she'Asar Hu ha'Peh she'Hitir'.

(a) Rebbi Chanina told Rebbi Sh'man bar Aba - to look after his relatives, meaning that he should marry one of them, even though he was a Kohen (and, had Shmuel's daughters been abused, they would have been forbidden to him).

(b) Rebbi Sh'man bar Aba objected to Rebbi Chanina's ruling - on the grounds that there were witnesses in the north who (we initially think) could testify that they had been captured.

(c) Rebbi Chanina replied that since the witnesses were not present, the Heter to get married remains.

(d) Rebbi Chanina implied that, if the witnesses had been present, Rebbi Sh'man bar Aba would have been forbidden to marry Shmuel's daughters. This is despite Shmuel's father ruling that if the witnesses arrive after Beis-Din have permitted the woman to marry, the concession to get married remains - because according to the rumor, it was not just that Shmuel's daughters had been captured that these witnesses were coming to testify, but that they were also ready to testify that they had been violated.




(a) The Tana of our Mishnah states that if each of two women, who have witnesses who testify that they were captured, claims that she is Tahor, they are not believed. They *are* however, believed - if each one testifies that the other one is Tahor.

(b) Since, as we saw earlier, the assumption that a captive has been violated, is no more than a Chumra de'Rabbanan, the Chachamim believed even one witness to permit her to marry a Kohen, and, wherever one witness is believed, a woman is believed too (as we learned in Yevamos).

(c) If a woman testifies that she is Tamei and her friend, Tahor, she is believed, but vice-versa (that she is Tahor and her friend Tamei), she is not, says the Beraisa. The latter case must speak when there are witnesses that she was captured - because, if there were not, why would she not be believed regarding herself (due to a 'Peh she'Asar').

(a) The Tana continues that if she claims that she and her friend are both Tamei, she is believed regarding herself but not regarding her friend, whereas if she says that they are both Tahor, she is believed regarding her friend but not regarding herself. The *former case* must be speaking when there are *no witnesses* that they were captured - because, if there were, why would she not be believed regarding her friend.

(b) We know that 'Einah Ne'emenes al Chavertah' means that her friend is Tahor (even though the same words in the Reisha do not imply that) - because otherwise, what is the significance of the statement? It is not like the Reisha, where 'Einah Ne'emenes covers her testimony regarding herself too (and does not need to be significant as regards her friend).

(c) The *latter case* however (when she says that they are both Tahor), must be speaking when there *are* witnesses - because otherwise, why would she not be believed regarding herself.

(d) Abaye is quite happy to accept the current contention that the Reisha and the Seifa speak when there are witnesses, and the middle case, when there are not.

(a) Rav Papa reestablishes the Beraisa to speak when there are two witnesses, but when, in each of the four cases, one witness inverts what she claims. The two principles (besides 'Shavisah le'Nafshah Chatichah de'Isura') that now govern all four cases are - that a woman is not believed to exonerate herself, and that she is believed to exonerate her friend, even against another witness.

(b) In the case where she says ...

1. ... 'Ani Temei'ah va'Chaverti Tehorah' - she is believed to incriminate herself because of 'Shavisah le'Nafshah Chatichah de'Isura', and to exonerate her friend, because she is believed even against another witness?
2. ... 'Ani Tehorah va'Chaverti Temei'ah' - she is not believed to exonerate herself, because there are two witnesses who testify that she was captured; nor is she believed to incriminate her friend, because there is a witness who exonerates her.
(c) Despite the fact that we already know 'Shavisah le'Nafshah Chatichah de'Isura' from the first case, and that she is believed regarding her friend from the second one, the Tana needs to add the third case ('Ani va'Chaverti Temei'ah') - because we might otherwise have thought that there where she incriminates her friend as well, she merely incriminates herself due to 'Tamos Nafshi im P'lishtim' (Let me die with the Philistines!).

(d) And he needs to add the fourth case ('Ani ve'Chaverti Tehorah'), despite the fact that we already know that she is believed to exonerate her friend even against another witness from the first case (and the fact that she is not believed to exonerate herself when there are witnesses that she was captured, we have many sources) - because we would otherwise have thought that, there where she exonerates herself too, she will not even be believed regarding her friend.

(a) Similarly, says the Mishnah, when two men arrive in town, one says 'I am a Kohen', and so does the other, they are not believed. According to the Tana Kama, they are believed however - if each one testifies about his friend.

(b) They are believed regarding eating Terumah.

(c) Rebbi Yehudah says - that one witness is not believed regarding Kehunah (and certainly not when there are two testifying on behalf of each other (known as 'Gomlin'), which will be explained later in the Sugya).

(d) According to Rebbi Elazar, as long as no-one protests, one witness is believed (like the Tana Kama). He argues with the Tana Kama however - when there are two people testifying for each other, because of 'Gomlin'.

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