The Coming Week’s Daf Yomi by Rabbi Adin Steinsaltz
This essay is based upon the insights and chidushim (original ideas) of Talmudic scholar Rabbi Adin Steinsaltz, as published in the Hebrew version of the Steinsaltz Edition of the Talmud.
This month’s Steinsaltz Daf Yomi is sponsored by Dr. and Mrs. Alan Harris, The Lewy Family Foundation, and Marilyn and Edward Kaplan
How much credibility does a woman have to testify about the identity of her lover?
The Mishnah on our daf teaches that if an unmarried woman who is pregnant identifies the father as a specific person, who is a kohen, Rabban Gamliel and Rabbi Eliezer rule that we accept her word, while Rabbi Yehoshua says that we cannot trust her, and must assume that the father has a problematic family lineage, unless she brings proof of her claim.
It is clear from the rishonim that even according to Rabban Gamliel, we do not fully accept her testimony, and we are not convinced that the specific person who she points to is the father. Thus, even though she claims that the father was a kohen, we will not allow her child to eat terumah (which is permitted only to kohanim), nor will we allow the child to perform the sacrificial service in the Temple. The point of her statement as described in the Mishnah is that if we believe her, it is because she is able to point to a specific individual with whom she had sexual relations. If she merely said that she is certain that the person she slept with was “kosher” (i.e. he was Jewish and not a mamzer) we would not believe her, even according to Rabban Gamliel.
The Talmud Yerushalmi explains that the argument between Rabbi Yehoshua and Rabban Gamliel is based on the particular concern that Rabbi Yehoshua has with people who engage in sexual relations outside the framework of marriage. It is specifically in such a case that Rabbi Yehoshua is concerned that the father might have a problematic family history, because such people are more likely to be engaging in zenut – sexual relationships outside of marriage. Rabban Gamliel’s argument is that when dealing with issues of sexuality, we can never be sure what went on, and the suspicion is the same for everyone. Therefore, if we accept her word, it is good enough.
Yesterday’s daf discussed the case of an unmarried pregnant woman who claims that a specific man is the father of her unborn child. We saw that although Rabbi Yehoshua disagrees, Rabban Gamliel rules that we accept her testimony. Our Gemara discusses a case where a couple who had had kiddushin (betrothal) but not nisu’in (marriage) came before Rav Yosef. The woman – who was pregnant – stated that her betrothed was the father, a claim corroborated by the man. Rav Yosef ruled that they were to be believed – after all, the father admitted that he was the father, and in any case we accept the position of Rabban Gamliel that her testimony is accepted.
This discussion in our Gemara is connected with a parallel discussion in a Gemara in Yevamot where we find the possibility raised that a betrothed, pregnant woman may be suspected of having committed adultery. Two possibilities are offered by the Gemara there. According to one, this suspicion is raised only if there were rumors that the woman had been sleeping with other men; according to the second, this is a matter of concern even if such rumors did not exist. The Ramban and the Rashba argue that our Gemara accepts the first suggestion of the Gemara in Yevamot, and that as long as there were no rumors circulating about her behavior, it is not a matter of concern and we accept her claim – supported by her betrothed – with regard to the identity of the father.
Tosafot suggest that in our case we are not dealing with a situation where the couple admits to having relations just once, rather they have been living together as husband and wife. In such a situation we can assume that the pregnancy was the product of their relationship, and do not need to be concerned with the possibility that she committed adultery. Other rishonim – the Ritva, for example – suggest that our case is when the husband can say with certainty that it is his child, e.g. where they never left each other’s sight until she became pregnant.
- If the majority of the city’s population is non-Jews, the child is considered a non-Jew.
- If the majority is Jewish, the child is considered Jewish.
- If there are an equal number of Jews and non-Jews, the child is considered Jewish.
What is unclear is to what areas of halacha this applies. Both Rav and Shmuel agree that these rules do not apply to the questions of yichus – of family pedigree – but to other halakhot. Rav, for example, says that the rules apply to the question of le-hahayoto. Although this term could be understood to mean whether the community is obligated to save the child from a dangerous situation, the rishonim understand it to mean that the question is whether the Jewish community is obligated to raise and support this child. According to this approach, Rav is teaching that even situations that are not life-or-death must be taken seriously by the Jewish courts with regard to this child.
One issue raised by the rishonim is why we do not simply convert the child, which would solve all of these problems; in any case he will be raised in the Jewish community and be supported by them? Several explanations are given in response. First of all, we have already learned (on daf 11) that according to most opinions, a Jewish court will only agree to convert a child if he is brought by his parents or requests the conversion on his own; the bet din will not take such an initiative on its own. Furthermore, we have learned that upon reaching maturity a child who converts is given the opportunity to reject the conversion that was done, which will effectively remove any advantage that the conversion would have given us.
A ketubah is effectively a contract – an agreement between husband and wife. What happens if this document is lost or misplaced? Our Gemara takes for granted that the obligation remains. In the event that death or divorce causes the ketubah to be enforced, then the only question is how much money was guaranteed at the time of the wedding. If the wife brings evidence that she was a betulah – a virgin – she will receive the 200 dinar that is appropriate in such a case. Otherwise she will have to settle for 100 dinar, which a widow receives.
Rabbi Abahu concludes from this that a receipt is written when the ketubah is paid. Otherwise we need to be concerned lest the woman receive payment in one court based on the testimony of witnesses and in another bet din when she presents the ketubah and demands to be paid.
The Sages disagree about whether a person who acknowledges a debt will have to pay it if the lender cannot return the promissory note to him. One approach is that he should pay and accept a receipt for the payment that was made. Others argue that it is unreasonable to force him to have to guard his receipt forever, lest the lender appear in court at a later date and demand payment based on the note. According to the first approach, this is not a great concern, because the passage in Mishlei (22:7) teaches eved loveh le-ish malveh – that a borrower becomes a servant to the lender – therefore we can make demands on the borrower in order to encourage lending. The rishonim point out that this disagreement about the appropriateness of writing a receipt applies not only in situations of loans, but in all similar documents where one party obligates itself to another, including a ketubah.
One of the popular songs that is played at weddings is ketzad merakdin lifnei ha-kallah? Kallah na’ah va-chasudah – “how does one dance before the bride? An attractive and pleasant bride.” This, in fact, is Beit Hillel’s response to the question of what should be said (or sung) to a bride at her wedding. Beit Shammai disagrees, arguing that doing so would be lying – forbidden by the Torah (Shemot 23:7) with the statement mi-devar sheker tirchak (stay far away from falsehood), for not every kallah is na’ah va-hasudah. What should be said is kallah kemot she-he – as she is.
With regard to Beit Hillel’s suggestion, Rashi and other commentaries explain that chasudah does not appear here to mean that she is being complimented for her spiritual qualities, rather that hut shel chesed masukh aleha she finds favor in people’s eyes, i.e. people find her attractive.
Beit Shammai’s suggestion is understood by most of the commentaries as a recommendation that the guests at a wedding choose their words carefully, emphasizing the positive qualities of the bride when singing before her. Tosafot point out that every person has their strengths that can be mentioned, like wealth, family background, etc. Some rishonim, however, interpret Beit Shammai as recommending that the very words kallah kemot she-he are what should be sung. That is to say, we are to compliment the bride on being who she is – as God created her. A statement like that rings true for every person.
Beit Hillel’s response to Beit Shammai is that there are times when sensitivity calls for a “white lie.” The Ritva explains that our concern with falsehood is limited in situations where telling such a “white lie” will bring peace between people. He argues that even Beit Shammai agrees to this in most cases. To establish a false public statement as normative at weddings, however, goes beyond a “white lie” and cannot be permitted.
The Mishnah on our daf teaches that when a signed document that needs to be authenticated, under certain circumstances the original witnesses who are brought in can say “yes, they are our signatures, but –
- anusim hayinu – we were coerced” (and it was untrue)
- ketanim hayinu – at the time we were minors” (who cannot testify) or
- pesulim hayinu – we were unsuitable as witnesses.”
In these cases, they are believed only if there is no other corroboration of their signatures. If, however, there are other witnesses who can attest to the veracity of their signatures, or if there are other documents that included their signatures to which this can be compared, then we do not believe them.
The reason the witnesses can renounce their original testimony is explained by the Gemara to be based on the rule ha-peh she-asar hu ha-peh she-hitir – literally “the mouth that forbade is the mouth that permitted.” This means that since we can only uphold the document based on their say-so, they are granted a higher level of believability with regard to their own statement. If the document can be authenticated in another way, then they do not gain that trust, and we accept the testimony as it appears in the document.
It is clear that for us to believe them, the original witnesses’ arguments explaining why their earlier testimony should not be accepted must be convincing. If they explained that they were underage at that time or that their lives were threatened, we can well understand why their original testimony should be voided. With regard to the claim pesulim hayinu we find a number of explanations.
Rashi offers two approaches – either that they were close relatives who cannot testify or they were mesachek be-kubiya, they were dice players, and gamblers cannot testify.
The Ri”d points to the rule that en adam meisim atzmo rasha – a person cannot declare himself to be evil – and therefore concludes that only Rashi’s first explanation can be accepted.
The Ramban argues that Rashi was well aware of that limitation, which is why he chooses specifically the case of mesachek be-kubiya. Unlike real cases of evil-doing where the rule of en adam meisim atzmo rasha applies, according to the Gemara in Sanhedrin a mesachek be-kubiya cannot testify because he is eno osek be-yishuvo shel olam – he is not engaged in productive activities in the world, which is a severe criticism, but it is not an admission of evil-doing.
As we learned in the Mishnah (18b), when a signed document needs to be authenticated, under certain circumstances the original witnesses who are brought in are believed if they say: “anusim hayinu – we were coerced,” “ketanim hayinu – at the time we were minors” or “pesulim hayinu – we were unsuitable as witnesses.” Our Gemara presents a baraita in which Rabbi Meir disagrees with this ruling, and argues that even with these explanations, we can never allow witnesses to deny their original testimony.
Rav Hisda explains that Rabbi Meir disagrees about the pesulim hayinu argument because he holds that a person is not allowed to testify falsely, even if his life is being threatened. This explanation appears difficult to understand, since the general approach of all the Sages throughout the Talmud is that only three sins are so severe that they cannot be transgressed when someone’s life is at stake – Avodah Zara (idol worship), Gilui Arayot (forbidden sexual relations) and Shefikhut Damim (murder) – see Pesachim 25.
The Ramban suggests that although a person is not obligated to risk his life for any mitzvah aside from these three, it would be considered a middat chasidut – a righteous deed – to do so. Thus, a person who admits that he hadn’t done this righteous act is, on some level, admitting that he did not do all that he could have.
This question is the focus of a basic disagreement between the Rambam and Tosafot. According to the Rambam, it is forbidden for a person to give up their life for any mitzvah aside from the three specific ones mentioned above. According to Tosafot, the Ramban and others, although no one is obligated to give up their lives rather than transgress other mitzvot, should they choose to do so it would be considered a righteous act
In addition to his monumental translation and commentary on the Talmud, Rabbi Steinsaltz has authored dozens of books and hundreds of articles on a variety of topics, both Jewish and secular. For more information about Rabbi Steinsaltz’s groundbreaking work in Jewish education, visit www.steinsaltz.org or contact the Aleph Society at 212-840-1166.
The words of this author reflect his/her own opinions and do not necessarily represent the official position of the Orthodox Union.