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Yevamos, 31

YEVAMOS 31 - has been dedicated towards a Refu'ah Shelemah to Yakov ben Chana, by the Tavin family.


QUESTION: The Gemara explains why the Chachamim enacted that the date be written in a Get, while they did not enact that the date be written in a contract of Kidushin. One reason that the Gemara gives is because one might be married to his niece, and in a case where she committed adultery while married to him (and is thus Chayav Misah), he will want to save her from the punishment of Misah. In order to do so, he will give her a Get with which she will claim that she was divorced before her sin. By enacting that the date be written in every Get, the Chachamim ensured that we will know exactly when the Get was given, so that a woman who committed adultery as an Eshes Ish will receive her due punishment.

RASHI (DH l'Hatzalah) explains that even if she erases the Zman from the Get, it will not help her avoid punishment; on the contrary, she will just be incriminating herself. When Beis Din sees a Get missing a date, Beis Din will assume that she was divorced at a later date (after she sinned), for she has a Chazakah that she was an Eshes Ish until the moment that she sinned. With regard to a contract of Kidushin, on the other hand, the Chachamim saw that it would not help to require that the date be written in the contract, because she could simply erase the date and claim that she was married *after* her sin. In such a case, the Chazakah that she was not married until that point will *support* her claim, since Beis Din will have to assume that she was not married at the time of the sin.

RASHI (DH l'Hatzalah) asks that if we assume -- based on the Chezkas Eshes Ish -- that the woman who was divorced received her Get later (after her sin), then why do we need the Zman to be written in the Get? Even if there is no Rabbinic institution to write a Zman in the Get we will assume that a dateless Get was given after she sinned. If so, without a Zman we can execute her based on the Chazakah that she was married when she sinned! Why was it necessary to enact that the Zman be written in the Get in order to incriminate the woman?

Rashi answers that before the enactment that the Zman must be written in a Get, Beis Din would not kill a woman based on the Chazakah. We would be in doubt whether her sin occurred before the divorce or after the divorce, and the woman would be spared. However, once the Chachamim enacted that the Zman be written in a Get, Beis Din is able to rely on the Chazakah and kill her.

What does Rashi mean? If there is a Chazakah that she is an Eshes Ish, then even before the Takanah of writing the Zman in a Get, Beis Din should kill her based on the Chazakah (which resolves the doubt). If, on the other hand, the Chazakah is not strong enough to kill her, how could the Chazakah of Eshes Ish kill her after the Rabbinic enactment?


(a) RABEINU AVRAHAM MIN HA'HAR explains Rashi in more detail. He says that if the Chachamim made a Takanah to include the Zman in a Get and then we find that the Zman has been erased, that creates a situation of "Raglayim l'Davar," or circumstantial evidence, that the woman indeed sinned before receiving the Get and the date was erased (or omitted) in order to protect the woman. This circumstantial evidence is not strong enough by itself to have a person executed, while the Chazakah of Eshes Ish is also not strong enough by itself to have a person executed. When the two factors are combined, however, then Beis Din is able to kill the woman based on the Chazakah that she was an Eshes Ish, together with the circumstantial evidence of the missing Zman in the Get. In contrast, if we find that the contract of Kidushin is missing its Zman, then even though there is circumstantial evidence of foul play, there is no Chazakah that she had been married at the time of her sin, and we are unable to execute her based on circumstantial evidence alone.

Rashi's words, though, seem to imply a different line of reasoning. Rashi makes no mention of "Raglayim l'Davar." Rather, Rashi clearly implies that it is the Chazakah alone that gives Beis Din the power to kill the woman; the sole, determining factor is the Chazakah.

(b) We might therefore suggest as follows. Before the Takanah of writing the Zman in a Get, the Chazakah of Eshes Ish was not sufficient to have the woman killed, because she is holding a valid Get which counters the power of the Chezkas Eshes Ish, for the Get shows that her status of Eshes Ish has been changed. We cannot give her a status of an Eshes Ish if the item that takes away that status is in front of us (see RASHI Gitin 17b DH Gazyeh). However, after the Rabanan instituted that the Zman be written in a Get, if we have a Get with a missing Zman in front of us, then even though the Get is valid mid'Oraisa, there is a significant deficiency ("Rei'usa") in the Get itself regarding the time at which it took effect (since the Zman has been erased), and thus it is not powerful enough to counter-effect the Chazakah. Therefore, the Chazakah remains and she is executed on the basis of the Chazakah.

If this is Rashi's intention, we can perhaps answer the primary question that the Rishonim ask on what Rashi writes here. TOSFOS (DH l'Hatzalah) and the other Rishonim point out that in Gitin (17b), the Gemara clearly says that even if the man cuts the Zman out of the Get before handing it to the woman, the Get *will* serve to vindicate her in court from charges of adultery. Even though we do not know when the Get was given -- *and* there are signs of foul play -- we still acquit the woman because of the Get. (Similarly, the Gemara there says that if the husband finds a scribe, and witnesses, that are willing to write a Get without a Zman, such a Get *will* serve to acquit the woman if presented in court.) Why does such a Get acquit the suspected adulteress, even *after* the Rabbinic enactment to write a Zman in a Get?

Based on what we have explained, it may suggested that a Get is only considered to have a "Rei'usa" if it is missing a part that originally *was in the Get*. (That is to say, the Zman of the Get has been altered *after* it was given to the woman to effect a divorce, thereby becoming a "Get.") Since the Get has been changed after it was given to the woman, the Get has a Rei'usa -- and the Rei'usa is in the very part of the Get that affects the case in question, the time at which it was delivered. That is why the woman may be killed if she erases the Zman that was written on the Get when she received it. If, however, the husband erases (or omits) the Zman *before* giving it over to the woman, she can simply have the witnesses sign that the Get was lacking a Zman at the time of its delivery, and there will no longer be a Rei'usa in the Get at all. That is why the Get can serve to vindicate her if it lacked a Zman at the time of its delivery. (M. Kornfeld)

(c) All of the other Rishonim disagree with Rashi. They explain that the Chazakah of Eshes Ish plays no role in killing the woman, and that is why, before the Takanah of writing the Zman in a Get, Beis Din could not kill her. When the Gemara says that the woman will not tamper with the Get but she will tamper with her Kidushin, the reason for the difference is not because the Chazakah of Eshes Ish will incriminate her. Rather, she is *afraid* that the Chachamim will invalidate the Get that was tampered with. (That is, in truth, they will not invalidate it, but she thinks that they will.) In the case of Kidushin, though, she does not care if they invalidate the Kidushin, because even if they do, she will be saved and will not be killed (since, by invalidating the Kidushin, she will have sinned when she was *not* an Eshes Ish).

Why, according to these Rishonim, does the Chezkas Eshes Ish in fact play no role in the case? Why does the Chazakah not tell us that she was an Eshes Ish when she sinned and that she is Chayav Misah?

1. The Rishonim (RASHBA and RITVA) in our Sugya write simply that this situation is one of a Safek, and we cannot kill a person based on a Safek. It seems that they hold that a "Chazakah d'Me'ikara" (a "status-quo" Chazakah, which tells us to resolve the doubt by treating the person or the object the way it was until this point) is not strong enough to serve as a basis for killing a person. (See at length SHEVILI D'CHAZAKAH 19:1, by HaRav Daniel Rabin of Yerushalayim.)

2. TOSFOS in Gitin (17a, DH Mishum), though, gives a different reason why the Chazakah is not taken into account in this case. He says that a Chazakah *could* be used to kill a person, but in this case there are two factors working against the Chazakah ("Tarti l'Rei'usa;" see Nidah 2b, PNEI YEHOSHUA and HAGAHOS RAV SHLOMO EIGER in Gitin there). First of all, it is evident that she presently is no longer an Eshes Ish because she has a Get. Second, she has another Chazakah that counters her Chezkas Eshes Ish; she had, until the time that she sinned, a Chazakah d'Me'ikara that she was a good Jew who did not sin, and so we delay the time that she sinned until the latest possible moment (which was after the Get was given).

(The other Rishonim apparently do not consider the Chezkas Kesheirah, the Chazakah that she was not a sinner, to be a valid Chazakah, since it is not a Chazakah that says something about her *status* per se, but something about her deeds and her free choice, and that itself is the question for which she is being judged.)


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