One Witness and Edut Isha

Yevamot (10:2) | Yisrael Bankier | a year ago

The tenth perek discusses a case where a woman received news that her husband who had travelled overseas had passed away. Even though normally two witnesses are required to have legal significance, we learn that in this case, the woman would be able to marry based on this single witness testimony.¹

The Mishnah (10:2) also discusses the consequences if the husband returned, alive and well. The Mishnah also differentiates between whether the woman had (re)married based on a single witness or whether it was based on two witnesses. The Mishnah describes the first case as being "by way of Beit Din" whereas the second case "not by way of Beit Din". In other words, when there are two witnesses, it does need a permit from Beit Din, since there are two valid witnesses that provide the basis for her to remarry. It is only when there is one witness, that her ability to marry was by way of Beit Din.

From this simple understanding, one would assume that for the woman to remarry when there is only one witness, that testimony would need to be presented in front of a Beit Din. This is further supported by the fact that the expression in the previous Mishnah is that she marries with the "permission of Beit Din". This is indeed how the Shulchan Aruch (17:39) rules. The Rama agrees adding that the Beit Din must a valid Beit Din with none of the dayanim related to the family or witness. The Shulchan Aruch however includes another opinion (the Ran) that if she nevertheless married based on a single witness without the ruling Beit Din, she would not have divorce her second husband.

The Chelkat Mechoket (78) argues at length against the Rama's requirement that there be a proper Beit Din for her to remarry. Instead, he understands that the process is like another other halachic issue that requires a Chacham to clarify the ruling.² Confirming with a Chacham is even more important considering that the leniency assumes that she would investigate the matter and would not flippantly rush to remarry. He explains that there are indeed advantages to hearing the witness in front of Beit Din. Firstly, it ensures that her remarrying is based on direct witness testimony and it is not considered "ed mi'pi ed" if it were to be investigated later. Furthermore, it ensures that the single witness will not later deny what he said or claim he was not serious at the time. Nevertheless, for the permit itself a Beit Din is not required.

The Beit Shmuel (124) however defends the Rama's position citing the Gemara (Yevamot) that discusses whether edut isha requires derisha and chakira -- the thorough interrogation of the witness/es. The position that requires derisha and chakira recognises that there are financial ramifications -- the collection of the ketubah. It would seem then that in this case, it is more than a regular pesak (halachic decision) but rather a din (a ruling by Beit Din).

The Chazon Ish (Even HaEzer 12) cites R' Akiva Eiger who understands, like the Rama, that the heter requires Beit Din. R' Akiva Eiger understands that when the Chachamim instituted this leniency, it was provided that the testimony had to be received in front of Beit Din.

The Chazon Ish however disagrees. He points to other leniencies such as allowing her to marry based on a bat kol (an unidentified voice) or a nochri that is masiach le'fi tuma (discussing the matter not in the context of a formal testimony) as proofs that a formal testimony in front of a Beit Din is not required.

¹ Previously (Volume 3, Issue 6) we probed the basis of this leniency.

² Regarding the language of the Mishnah he notes that Mishnah states it is reshut beit din and not hora'at beit din. Furthermore, we find that the language of reshut beit din, much like tenai beit din, does not refer to a specific beit din but rather ruling instituted by the Chachamim in general.

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