It Was Me

Kidushin (3:7) | Yisrael Bankier | 4 months ago

The Mishnah (3:7) discusses a case where a man said he was mekadesh his daughter but was unsure to whom. The Mishnah teaches that if a person claims that he is the one, he is believed. The Bartenura explains that he is believed to be married to her. We shall try to understand why.

The Bartenura explains that the reason he is believed is because no one would be bold enough to lie in front of the father out of fear the father would deny it was him.

A few questions remain. Normally we say for issues regarding erva -- forbidden relationships -- a single witness is not sufficient. Granted that we learnt that a single witness is believed in the case where he testifies that the husband died overseas, that case was an exception. The Tosfot Yom Tov cites that Ran who notes these two points yet explains that this case is different. He explains that two witnesses are only required to change a chazaka -- the status of the individual. For example, in the case of marriage or divorce. In this case however, her chazaka as being considered married is unchanged because of his claim. Consequently, he is believed.

The Yerushalmi (Yevamot 2:11) explains that this ruling would not apply in the parallel case in monetary law. For example, if one said I sold one of fields, but I do not know to who, if someone then comes forward and says it was him, we would not grant him the ownership of that land. What is the difference between the two cases?

The Pnei Moshe explains that the fear of lying in our case is much greater. In our case, if he lied and the true husband later presented himself, then he will be exposed as having violated the prohibition of taking another's wife. In the case of the field, he does not have much to lose. If the true owner later comes with witnesses, the individual will simply return the field and any produce that grew on that land. Consequently, in that case we do not believe him out of concern that he will neglect that field and it will deteriorate whilst in his possession.

The Korban HaEidah (Kidushin 3:7) however explains that the Chachamim were lenient in this case, otherwise she would be an aguna. In other words, the alternative would be that she is considered married (to someone) and trapped with no way of being freed from that state. According to the Korban HaEidah this would be another instance where the Chachamim were lenient to relieve her from being an aguna. The Korban HaEidah (Shayarei HaKorban) explains that fear of being denied (by the father) applies equally in the case of the seller. We find therefore that that logic alone would not be enough were it not combined with the leniency afforded in the case of agunot.

The Pnei Moshe (Yevamot) however notes that the Rama (CM 222:4) rules that in the case of the field, the person who said he purchased it would be believed. The Shach however notes that that ruling contradicts this Yerushalim and the Rav HaMagid cites the Rashba who also rules like the Yerushalmi.

The Korban HaEidah (Shayarei HaKoran, Yevamot) also cites the Haghot Maimoniot who notes that the Riva maintain that this person would be believed. Since the owner admits it is no longer his, he is out of the picture. This other person can then take the land and say if witnesses later contradict me, I will simply return the land. The Korban HaEidah however also notes that this contradicts the Yerushalmi. He therefore suggests that they understand that when the Yerushalmi explains that the two cases could not be compared, it is according to Shmuel. Shmuel understands that in our Mishnah that when we say that the man is believed, he is believed only to hand her a get but not marry her.¹ Consequently, the two case are different since our case, we only believe him to an extent, whereas in the other case, he is even allowed to enter the field. Nevertheless, he notes that the language of the Yerushalmi "lav kol kiminei" implies that the supposed purchaser is not believed at all.

Yisrael Bankier

¹ The Korban HaEdah explains that he is not believed to marry her since we are concerned that he was driven by his yetzer to lie. If however, he was only allowed to give a her get, then we believe him since ein adam choteh ve'lo lo.

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