Dos Mujeres; Un Camino

Ishac Henriques Faro

Peri Eẓ Ḥaim, Vol. 3, simán 259 (pg813)

3 Tishri 5506/29 September 1745

Question:

There is a woman who is agunah [chained] to her husband, no one knows where he is. Then after a time, a witness appeared, declaring that he had met a yebamah [sister-in-law destined to marry her deceased husband’s brother] in a certain place weeping and mourning with the brothers of a certain yebam [brother-in-law] who was murdered. However, it was not known whether he desired to release his yebamah through ḥaliẓah [release from levirate marriage] or not. What is the law of the agunah, according to this testimony regarding the death of this yabam? Should we suspect that perhaps she had her eyes on the witness, desiring to marry him, or should we accept his testimony in order to free her?

Response:

This question supposes that a certain man had two wives, one whom he abandoned and another whom had brothers mourning his death. 

Gemara #1: Ishac Henriques Faro begins his exposition with an analysis of the relevant Gemara, from the chapter ha-Isha bathra (b.Yebamoth 122b): Rabbi Aqiba said: When I descended to Neharde’a, in Babylonia, to intercalate the year, I found the Sage Neḥemyah of Beth Deli. He said to me: I heard that the Sages in Ereẓ Israel do not allow a woman to remarry based on the testimony of a single witness, except for Yehuda ben Baba. And I told him: That is so. He said to me: Tell the Sages in my name: You know that the country is confounded by army troops, and I cannot come myself. I declare that I received this tradition from Rabban Gamliel the Elder, that the court may allow a woman to remarry based on the testimony of a single witness. Rabbi Aqiba continues: And when I came and presented the matter before Rabban Gamliel of Yabne, the grandson of Rabban Gamliel the Elder, he rejoiced at my words and said: We have found a companion who agrees with Rabbi Yehudah ben Baba, and since his lenient opinion is no longer the opinion of a lone Sage, it may now be relied upon. As a result of this event, Rabban Gamliel remembered that people were murdered in Tel Arza, and Rabban Gamliel then allowed their wives to remarry based on only one witness. And from then onward they established as protocol to allow a woman to remarry based on hearsay testimony, a slave’s testimony, a woman’s testimony, or a maidservant’s testimony. Rabbi Eliezer and Rabbi Yehoshua say: The court may not allow a woman to remarry based on only one witness. Rabbi Aqiba says: The court may not allow a woman to marry based on the testimony of a woman, nor based on the testimony of a slave, nor based on the testimony of a maidservant, nor based on the testimony of close relatives.

Rif: The author cites the Rif, who relies on the Ha’i Ga’on, permitting a woman to be remarry, based on one witness, whether a manservant, maidservant, or a close family member. This decision follows the ruling of Rabban Gamliel and Rabbi Yehudah ben Baba.

Rambam #1: The next authority that he cites is the Rambam (Laws of Divorce 12:15). The prevailing presumption is that a woman is married, and she and her husband travel overseas at a time when their relationship is peaceful, and peace abides in the world at large. If she comes and says, "My husband died," her word is accepted and she is granted permission to marry or to perform the rite of yibbum on this basis.[The rationale is that] we assume that a woman will not bring difficulties upon herself, causing herself to be forbidden to both her first and her second husbands, causing herself to lose the right to collect the money due her by virtue of her ketubah from both husbands and causing her children to be deemed illegitimate when the matter is likely to become openly revealed, and when she will not be able to deny the matter or offer any argument in her defense. For if her husband is alive, he will ultimately return, or [at least,] it will become known that he is alive. Similarly, if one witness comes and testifies that the woman's husband died, she is granted permission to marry by virtue of his testimony, because [the truth of] the matter will ultimately be revealed. Similarly, the testimony of a servant, a woman, a maid-servant or a witness testifying on the basis of statements he heard from others is accepted regarding a person's death.On the basis of such testimony, the man's wife is granted permission to remarry or perform the rite of yibbum.

Yose Karo: The next source that Henriques Faro cites is Yosef Karo (Eben ha-Ezer 17:3):

A woman whose husband went overseas, and has been testified to be dead, even by one witness, even the witness being a slave or a maidservant or a woman or a relative, is free. and even a witness from the words of a witness, or a woman from the words of a woman, or a slave or a maidservant or a relative, are worthy of this testimony. And invalid witnesses according to rabbinic decree are fit for this testimony. However, invalid witnesses according to the Torah are invalid for this testimony. But if [they are] innocently speaking, [they are] fit. Thus, a Cuthean [Samaritan] or an Israelite converted who practices strange worship and cancels the whole torah, if he speaks in truth, [he is] trustworthy.

This is the same law regarding the release of a yebamah from marriage to her brother-in-law.

Gemara #2: Then Henriques Faro brings another Talmudic discussion regarding yebamoth: They raised a dilemma before Rab Sheshet: In a case of one witness who testifies that a woman’s husband is dead, with regard to a yebamah, what is the halakha? Can the court rely on this witness? The Gemara explains the sides of the dilemma: Is the reason that the testimony of one witness in the case of a missing husband is accepted because one does not lie about something that will be discovered, and here, too, he will not lie, in case the husband later arrives? Or, perhaps the reason for the eligibility of one witness is because the woman herself is exacting in her investigation before she marries again. But here, since she sometimes loves the yabam, as she already knew him beforehand, she is not exacting in her investigation before she marries again. Rab Sheshet said to him: You learned the answer to this question in the Mishnah: If they said to her: Your child died and afterward your husband died, and she entered into levirate marriage, and afterward they said to her that the matters were reversed, she must leave her husband, and the first child and the last one are each a mamzer. Rab Sheshet analyzes this case: What are the circumstances? If we say they are two and two, i.e., two witnesses came first and said one account, followed by two other witnesses who claimed the reverse, what did you see to make you rely on these second witnesses when you can equally rely on the first pair? The first witnesses do not lose their credibility merely due to the testimony of the second pair, so why should she have to leave the yabam? (b.Yebamoth 93b).

Next, Henriques Faro continues the discussion of the Gemara with Raba: Raba said: One witness is deemed credible in the case of a yebamah by means of an a fortiori inference [qal wa-ḥomer]: If for a prohibition involving kareth, i.e., adultery of a married woman, you permitted the testimony of one witness, then for a regular prohibition, that of a yebamah to another man, is it not all the more so? One of the Sages said to Raba: She herself, a woman who testifies with regard to herself, can prove otherwise: For a prohibition involving kareth you permitted her, i.e., if she testifies that her husband is dead she may marry another man and there is no concern that she might still be a married woman, and yet for a regular prohibition you did not permit her, as she is not deemed credible when she claims that her yabam is dead.

Rambam #2: The Rambam is cited again, but this time concerning one witness who came forward to testify about the death of the yebamah whose husband died. The witness can be a slave, a woman, or even a non-Jew. This law is the same concerning the aforementioned case on divorces (Laws of Levirate Marriage 3:5).

Ha-Rab ha-Maggid: Henriques Faro cities ha-Rab ha-Maggid to support what the Geonim, the Rif, and the Rambam state regarding the acceptance of one witness in this case. 

Rashba: The Rashba is cited here to lend support to what the Rif states in this case (simán 1:252). He adds that all of the poseqim agree with the Rif. 

Yosef karo #2: The author then cities Yosef Karo’s explanation on the yibbum-witness case: A single witness witness is trusted to testify that a yebamah's husband died, and she can enter levirate marriage based on his testimony. Or, [to testify] that her husband died, [permitting her] to marry [anyone from] the marketplace. Or to say "Your husband died, and afterward, your son died." And even a male slave, female slave, woman, Samaritan speaking off-the-cuff, or a witness [testifying to] what another witness said is trusted to testify that the yabam died, just as he is trusted regarding the death of the husband. And the rule for this testimony is the same as the rule for that testimony regarding witnesses who contradict each other about the death of the yabam, for all matters.  (Eben ha-Ezer 158:3).

In bringing all of the sources together, Henriques Faro concludes that the law for releasing a woman from yibbum is the same as releasing a agunah from her estranged husband. 

However, we have to determine whether the witness in our case is trustworthy, since he may desire to release the agunah in order to marry her. 

Henriques Faro cites the sugya from the chapter named ha-Isha Shalom (b. Yebamoth 114b): With regard to a woman who went, she and her husband, overseas, if there was peace between him and her, i.e., the couple were not fighting at the time, and there was also peace in the world, i.e., there was no war at that time, and the woman came back by herself and said: My husband died, she may marry on the basis of her own testimony. Likewise, if she said: My husband died, and they did not have children, but her husband had a brother, she may enter into levirate marriage.

The author states that he did not find any commentary by Rashi, Rif, Rosh, nor the Tur to explain the logic behind this Mishnah. Only the Rambam gives a reason in the laws of levirate marriage and release: A woman's testimony is accepted with regard to the death of her husband, and she may marry [another man] or perform yibbum [on this basis]. Nevertheless, the testimony of a yebamah is not accepted with regard to the death of her yabam, and it is not considered to be sufficient basis for her to marry another man. The rationale is that the prohibition [against marrying another man when under obligation to a yabam] involves merely a negative commandment.²⁴ And therefore the woman may regard it casually. Similarly, the testimony of a yabam is not accepted with regard to the death of his brother, and it is not considered to be sufficient basis for him to marry his brother's wife. [We fear that] perhaps he desired her (laws of levirate marriage and release 3:11).

The author concludes stating that even though our Hakhamim are lenient when it comes to freeing agunoth, the agunah in question is prohibited from marrying anyone, because we suspect that the witness who appeared is not kasher because he may have his eyes on the agunah, on the basis that he is treated like the yabam who testifies on behalf of his dead brother. 

Some of my observations on this case are: (1) yibbum and ḥaliẓah were still practiced by this community (2) the problem with the agunah was still relevant (3) polygamous marriages were still practiced and relevant to such a “westernized” community as the Nação, (4) Ishac Henriques Faro looks at Ashkenazi sources for the reasoning of certain laws [Rashi and the Rosh], (5) the author follows a classical Sepharadi approach to the halakhah [Rif and the Geonim, the Rambam, Beth Yosef], (6) the author knows the names of the chapters of the sugyoth and where to find the relevant legal discussions for the case at hand.