Halacha
הלכה א
הָאִשָּׁה שֶׁבָּאָה וְאָמְרָה אֵשֶׁת אִישׁ הָיִיתִי וּגְרוּשָׁה אֲנִי נֶאֱמֶנֶת. שֶׁהַפֶּה שֶׁאָסַר הוּא הַפֶּה שֶׁהִתִּיר. הֻחְזְקָה אֵשֶׁת אִישׁ וּבָאָה וְאָמְרָה גֵּרְשַׁנִי בַּעְלִי אֵינָהּ נֶאֱמֶנֶת לְהַתִּיר עַצְמָהּ לַשּׁוּק. אֲבָל פָּסְלָה עַצְמָהּ לִכְהֻנָּה לְעוֹלָם. וְאִם מֵת בַּעְלָהּ חוֹשְׁשִׁין לִדְבָרֶיהָ וְחוֹלֶצֶת וְלֹא מִתְיַבֶּמֶת:
כסף משנה
1.
When a woman comes and says, "I was married, and now I am divorced," her word is accepted, because the source for the statements [on which basis the woman was] forbidden [states that she is] permitted.1She is not contradicting her original statements, but rather adding information, and that information serves as the basis for changing her status. This ruling applies even if she makes her second statement after a significant time has passed since she made her first statement (Maggid Mishneh). Rav Moshe HaCohen objects, maintaining that her second statement must be made directly after her first statement. Although the Shulchan Aruch (Even HaEzer 152:6) quotes both opinions, it appears that the Rambam's opinion is favored.If the prevailing assumption is that a woman was married,2I.e., we do not know for certain that she has been married, but she and her husband have lived together as man and wife. See Sefer HaKovetz, which notes that the Rambam's wording deviates from his source (Ketubot 2:5), which mentions that witnesses say that the woman was married. and she comes and says, "My husband divorced me," her word is not accepted [as a basis] for her to be allowed to be remarried.3Instead, she is considered to be married to her husband until she brings proof to the contrary. If she remarries, she is forced to leave her second husband (Maggid Mishneh; Shulchan Aruch, Even HaEzer 152:7). There is a difference of opinion among the authorities regarding whether her second husband is required to give her a formal divorce. (See Beit Shmuel 152:12.) She has, however, disqualified herself [from marrying into] the priesthood forever.4I.e., should her present husband die, she would not be allowed to marry a priest. (See Halachah 3.) If her husband dies [childless], we suspect that there might have been truth to her words, and she performs the rite of chalitzah, rather than the rite of yibbum.5I.e., we do not accept her statements entirely, and therefore require her to undergo chalitzah. Nevertheless, because there is a possibility that her statements are true, we do not allow her to undergo yibbum, for if she had in fact been divorced, relations with her late husband's brother would be forbidden.
הלכה ב
הָיוּ לָהּ שְׁנֵי עֵדִים שֶׁהִיא גְּרוּשָׁה אַף עַל פִּי שֶׁאֵין שָׁם גֵּט הֲרֵי זוֹ תִּנָּשֵׂא לְכַתְּחִלָּה. הוֹצִיאָה גֵּט מִתַּחַת יָדָהּ וְאָמְרָה גֵּרְשַׁנִי בַּעְלִי בָּזֶה הֲרֵי זוֹ נֶאֱמֶנֶת וְתִנָּשֵׂא בּוֹ אַף עַל פִּי שֶׁאֵינוֹ מְקֻיָּם כְּמוֹ שֶׁבֵּאַרְנוּ:
כסף משנה
2.
When a woman has two witnesses who state that she has been divorced, she is permitted to marry a priori, although she does not possess her get. If she produces a get that was in her possession and says: "My husband divorced me with this," her word is accepted, and she is permitted to marry, even though [the signatures of the witnesses to the get] have not been verified as we have explained.6Chapter 7, Halachah 24. As mentioned in the notes on that halachah, the Ra'avad differs with the Rambam concerning this issue. Both opinions are quoted by the Shulchan Aruch (Even HaEzer 142:13-14), but later (loc. cit. 152:9), the Shulchan Aruch mentions only the Rambam's view.הלכה ג
בָּא הַבַּעַל וְעִרְעֵר אִם אָמַר לֹא נְתַתִּיו לָהּ אֶלָּא נָפַל מִמֶּנִּי וּמָצְאָה אוֹתוֹ אֵינוֹ נֶאֱמָן. שֶׁהֲרֵי הוֹדָה שֶׁכְּתָבוֹ לָהּ וַהֲרֵי הוּא יוֹצֵא מִתַּחַת יָדָהּ. אֲבָל אִם אָמַר הַבַּעַל עַל תְּנַאי הָיָה. פִּקָּדוֹן הָיָה. מֵעוֹלָם לֹא כְּתַבְתִּיו. מְזֻיָּף הוּא. יִתְקַיֵּם בְּחוֹתְמָיו אוֹ בְּעֵדֵי מְסִירָה כְּמוֹ שֶׁבֵּאַרְנוּ. וְאִם לֹא נִתְקַיֵּם אֵינָהּ מְגֹרֶשֶׁת לִהְיוֹת מֻתֶּרֶת לַאֲחֵרִים אֲבָל פָּסְלָה נַפְשָׁהּ מִכְּהֻנָּה כְּמוֹ שֶׁבֵּאַרְנוּ. שֶׁהֲרֵי פָּסְלָה עַצְמָהּ בְּהוֹדָאַת פִּיהָ וְעָשְׂתָה עַצְמָהּ כַּחֲתִיכָה שֶׁל אִסּוּר:
כסף משנה
3.
[The following laws apply] when the husband comes and protests. If he states, "I never gave it to her. It fell from me and she found it," his statements are not accepted, because he admits that he wrote it for her sake, and it is now in her possession. If, however, the husband says: "[The get] was given conditionally," "It was entrusted to her for safekeeping," or "I never wrote such [a document]; it is a forgery,"7I.e., these two phrases are part of a single claim. This translation is based on manuscripts of the Mishneh Torah that state ומזוייף, "And it is a forgery." The standard printed version omits the first vav leading to the conclusion that the Rambam is speaking about two claims. This conception is also reflected in the statement of the law in the Shulchan Aruch (Even HaEzer 152:10). [the woman] must have the signatures of the witnesses verified or have the witnesses to its transfer testify, as explained.8See Chapter 7, Halachah 2.If the signatures of the witnesses are not verified, she is not considered to be divorced with regard to the right to marry others. She has, however, disqualified herself [from marrying into] the priesthood, as stated.9See Halachah 1. For she has disqualified herself by virtue of her own statements and caused herself to be considered as a forbidden object.10I.e., although we do not accept her statements, we require her to abide by all the stringencies they imply.
הלכה ד
בָּאָה הִיא וּבַעְלָהּ. הִיא אוֹמֶרֶת גֵּרַשְׁתַּנִי וְאָבַד גִּטִּי. וְהוּא אוֹמֵר לֹא גֵּרַשְׁתִּיךְ. אַף עַל פִּי שֶׁהֻחְזְקָה אִשְׁתּוֹ הֲרֵי זוֹ נֶאֱמֶנֶת. חֲזָקָה אֵין אִשָּׁה מְעִזָּה פָּנֶיהָ בִּפְנֵי בַּעְלָהּ:
כסף משנה
4.
If she comes together with her husband and says, "My husband divorced me, but I lost my get," and the husband says, "I did not divorce her," her word is accepted, even though it has been assumed that she is his wife. [The rationale is:] it can be assumed that a woman would not make such brazen statements in the presence of her husband [if they were not true].11There are several qualifications to this principle: First, the woman must make this statement in the presence of her husband. If he is not present, we fear that she will speak brazenly (Hilchot Ishut 4:13). And, as implied by Halachot 6 and 14 of this chapter, if there is one witness who supports the woman's statements, her word is not accepted. We fear that the support the witness gives her will encourage her to lie. Similarly, as reflected in the following halachah, if her husband supports her, her word is not accepted.In Hilchot Ishut (loc. cit.), the Ra'avad states that the woman's word should be accepted only insofar as to require her to receive a get if she remarries. She is not given license to remarry, nor may she collect the money due her by virtue of her ketubah from her first husband unless she proves that she has been divorced. The Ramah (Even HaEzer 17:2) quotes both views. He states, however, that in the present age, since brazen behavior is more common, the presumption upon which the Rambam's ruling rests is no longer a viable support.
הלכה ה
אָמַר הַבַּעַל גֵּרַשְׁתִּי אֶת אִשְׁתִּי אֵינוֹ נֶאֱמָן וְחוֹשְׁשִׁים לִדְבָרָיו וְתִהְיֶה סָפֵק מְגֹרֶשֶׁת. וַאֲפִלּוּ הוֹדֵית לוֹ שֶׁגֵּרְשָׁהּ אֵינוֹ נֶאֱמָן שֶׁמָּא יִתְכַּוֵּן לְקַלְקְלָהּ אוֹ בְּגֵט בָּטֵל גֵּרְשָׁהּ וְהִיא אֵינָהּ יוֹדַעַת [אוֹ שֶׁמָּא תָּעֵז פָּנֶיהָ בּוֹ מִפְּנֵי שֶׁהוּא מַאֲמִינָהּ וְהִיא אֵינָהּ יוֹדַעַת] כֹּבֶד הָאִסּוּר שֶׁלָּהּ. לְפִיכָךְ אוֹמְרִים לוֹ אִם אֱמֶת הַדָּבָר הֲרֵי אַתֶּם קַיָּמִים גָּרֵשׁ אוֹתָהּ עַתָּה בְּפָנֵינוּ:
כסף משנה
5.
If a husband says: "I divorced my wife," his word is not accepted. Nevertheless, we suspect that it might be true, and therefore, the woman is considered to be one whose divorce is of doubtful status.12See Chapter 10, Halachah 3. Even when the woman also admits that she was divorced, his word is not accepted.We fear that he is seeking to create difficulties for her,13I.e., that she will remarry and then he will prove that her second marriage is adulterous, in which case she will be bound by all the stringencies stated in Chapter 10, Halachot 4 and 7. or that he divorced her with a get that was void, and she is not aware of the fact, or perhaps she will brazenly [state that she has been divorced, although that is not the case,] because he accepts her word, or because she is not aware of the seriousness of the prohibition. Therefore, we tell the husband: "If it is true [that you divorced her,] you are both here, divorce her again in our presence."
הלכה ו
שְׁנַיִם אוֹמְרִים נִתְגָּרְשָׁה וּשְׁנַיִם אוֹמְרִים לֹא נִתְגָּרְשָׁה אֲפִלּוּ הַבַּעַל עוֹמֵד וְהִיא אוֹמֶרֶת לוֹ גֵּרַשְׁתַּנִי הֲרֵי זוֹ בְּחֶזְקַת אֵשֶׁת אִישׁ גְּמוּרָה מִפְּנֵי שֶׁהָעֵדִים סוֹמְכִין אוֹתָהּ וְאֶפְשָׁר שֶׁתָּעֵז פָּנֶיהָ. לְפִיכָךְ אִם נִשֵּׂאת תֵּצֵא וְהַוָּלָד מַמְזֵר:
כסף משנה
6.
When two [individuals] say [that a woman] was divorced, and two others say14As reflected by Halachah 8, in this instance the testimony of the witnesses must be to the effect that the divorce was not carried out in an adequate manner. [that] she was not divorced, she is still presumed to be married. [This ruling applies] even if her husband is present, and she tells him, "You divorced me." Since the witnesses support her, it is possible that she will speak brazenly [to her husband]. Therefore, if she remarries [in such a situation], she is compelled to leave [her second husband], and a child [born to them] is considered illegitimate.הלכה ז
בַּמֶּה דְּבָרִים אֲמוּרִים כְּשֶׁאָמְרוּ עַכְשָׁו נִתְגָּרְשָׁה שֶׁהֲרֵי אוֹמְרִין לָהּ אִם אֱמֶת הַדָּבָר הוֹצִיאִי גִּטֵּךְ. אֲבָל אִם אָמְרוּ הָעֵדִים מִכַּמָּה יָמִים נִתְגָּרְשָׁה יֵשׁ לוֹמַר אָבַד הַגֵּט וְהוֹאִיל וְהִיא אוֹמֶרֶת גְּרוּשָׁה אֲנִי בְּוַדַּאי וּשְׁנֵי עֵדִים מְעִידִין לָהּ אַף עַל פִּי שֶׁהַשְּׁנַיִם מַכְחִישִׁין אוֹתָן אִם נִשֵּׂאת לְאֶחָד מֵעֵדֶיהָ לֹא תֵּצֵא שֶׁהֲרֵי הִיא וּבַעְלָהּ יוֹדְעִין בְּוַדַּאי שֶׁהִיא מֻתֶּרֶת וַחֲזָקָה הִיא שֶׁאֵין מְקַלְקְלִין עַצְמָן. אֲבָל אִם נִשֵּׂאת לְאַחֵר הוֹאִיל וְהַדָּבָר אֶצְלוֹ סָפֵק. וְכֵן אִם אָמְרָה אֵינִי יוֹדַעַת אֲפִלּוּ נִשֵּׂאת לְאֶחָד מֵעֵדֶיהָ הֲרֵי זוֹ תֵּצֵא וְהַוָּלָד סְפֵק מַמְזֵר:
כסף משנה
7.
When does the above apply? When the witnesses say: "She was divorced in the immediate past." For in such a situation, we tell her, "If it is true that you were divorced, produce your get."If, however, the witnesses say: "She was divorced several days ago," there is the possibility that the get was lost. [Therefore, different laws apply.] Since she claims that she was definitely divorced, and two witnesses support her claim, although there are two witnesses who deny it, if she marries one of the witnesses, she is not compelled to leave [her second husband]. [The rationale is] that she and her husband, [the witness,] certainly know whether she is permitted [or not], and we assume that they would not create difficulties for themselves.15This assumption has sufficient legal power to counterbalance the prevailing assumption that the woman is still married. (See Beit Shmuel 152:5.)
Accordingly, [different rules apply] if she marries another person. Since he cannot be certain concerning the matter - and similarly, if she herself is uncertain about the matter, even if she marries one of her witnesses - she should be compelled to leave [her second husband]. The legitimacy of a child born to them is a matter of question.
הלכה ח
אָמְרוּ שְׁנַיִם רְאִינוּהָ שֶׁנִּתְגָּרְשָׁה וּשְׁנַיִם אוֹמְרִים לֹא רְאִינוּהָ. אִם הָיוּ כֻּלָּם שְׁרוּיִים בְּחָצֵר אַחַת הֲרֵי זוֹ לֹא תִּנָּשֵׂא. וְאִם נִשֵּׂאת לֹא תֵּצֵא וְהַוָּלָד כָּשֵׁר. שֶׁבְּנֵי אָדָם עֲשׂוּיִין לְגָרֵשׁ בְּצִנְעָה:
כסף משנה
8.
[The following rules apply when] two [individuals] say, "We saw that she was divorced," and two others say, "We did not see this." If they all lived in a single courtyard,16If they do not all live in such proximity, there is no question, and a priori, she is given permission to remarry (Beit Shmuel 152:6). she should not marry.17We assume that if in fact she had been divorced, the matter would have attracted the attention of all those dwelling in the courtyard. If, however, she marries, she need not leave [her second husband], and we do not doubt the legitimacy of a child born to them. [The rationale is that] people often divorce in privacy.הלכה ט
הָאִשָּׁה שֶׁלֹּא הֻחְזְקָה אֵשֶׁת אִישׁ וּבָא עֵד אֶחָד וְאָמַר אֵשֶׁת אִישׁ הָיְתָה וְנִתְגָּרְשָׁה. וּבָא עֵד אֶחָד וְאָמַר לֹא נִתְגָּרְשָׁה. הֲרֵי שְׁנֵיהֶן מְעִידִין שֶׁהִיא אֵשֶׁת אִישׁ וְאֶחָד מֵעִיד שֶׁהִיא גְּרוּשָׁה וְאֵין דְּבָרָיו שֶׁל אֶחָד בִּמְקוֹם שְׁנַיִם וּלְפִיכָךְ לֹא תִּנָּשֵׂא וְאִם נִשֵּׂאת תֵּצֵא:
כסף משנה
9.
[The following rule applies when] we there is no existing presumption that a woman was married, one witness comes and says, "She was married, but divorced," and another witness states, "She was not divorced." Since they both are testifying that she was married, and [only] one witness says she was divorced, she should not marry [a second man]. [The rationale is that] the statements of one [witness] are of no consequence [when they must counteract a definition of status established] on the basis of the testimony of two [witnesses].18I.e., both the witnesses say that she was married, and only one says that she was divorced. Note the contrast to the parallel situation with regard to kiddushin as mentioned in Hilchot Ishut 9:31. If she remarries, she should be compelled to leave [her second husband].הלכה י
אִשָּׁה וּשְׁנֵי אֲנָשִׁים שֶׁבָּאוּ מִמְּדִינָה אַחֶרֶת. זֶה אוֹמֵר זוֹ אִשְׁתִּי וְזֶה עַבְדִּי. וְזֶה אוֹמֵר זוֹ אִשְׁתִּי וְזֶה עַבְדִּי. וְהָאִשָּׁה אוֹמֶרֶת שְׁנֵיהֶן עֲבָדַי. הֲרֵי הִיא מֻתֶּרֶת לַכּל וְאַף עַל פִּי שֶּׁשְּׁנֵיהֶן הֶחֱזִיקוּהָ בְּאֵשֶׁת אִישׁ הוֹאִיל וְכָל אֶחָד מֵהֶן הֵעִיד לְעַצְמוֹ אֵינָן נֶאֱמָנִין:
כסף משנה
10.
[The following ruling is rendered when] a woman and two men come from another country. One [of the men] says: "This is my wife, and this is my servant," the other says: "This is my wife, and this is my servant," and the woman says: "They are both my servants." The woman is free to marry anyone. For although two witnesses testified to her being married, since each one of them gave testimony that concerns himself, their statements are not accepted.הלכה יא
שְׁלִיחַ קַבָּלָה שֶׁהוֹצִיא גֵּט מִתַּחַת יָדוֹ וְהַבַּעַל אוֹמֵר מְזֻיָּף הוּא יִתְקַיֵּם בְּחוֹתְמָיו אוֹ בְּעֵדֵי מְסִירָה כְּמוֹ שֶׁבֵּאַרְנוּ. אָמַר הַבַּעַל לְפִקָּדוֹן נְתַתִּיו לוֹ וְהַשָּׁלִיחַ אוֹמֵר לְגֵרוּשִׁין נְתָנוֹ לִי הַשָּׁלִיחַ נֶאֱמָן. וְכֵן אִם הָיָה הַגֵּט יוֹצֵא מִתַּחַת יְדֵי הָאִשָּׁה וְהִיא אוֹמֶרֶת שָׁלִיחַ זֶה נְתָנוֹ לִי, וְהַשָּׁלִיחַ אוֹמֵר כֵּן נְתַתִּיו לָהּ וּלְגֵרוּשִׁין נְתָנוֹ לִי, וְהַבַּעַל אוֹמֵר לֹא נְתַתִּיו לוֹ אֶלָּא לְפִקָּדוֹן, הַשָּׁלִיחַ נֶאֱמָן וְהִיא מְגֹרֶשֶׁת:
כסף משנה
11.
When an agent charged by the woman with receiving her get takes out a get that was in his possession, and the husband states that the get is a forgery, the authenticity of the get should be verified via the signatures of the witnesses, or via the witnesses who observed the transfer, as we have explained.19See Halachah 3. In this respect, there is no difference between the woman's agent and herself.If the husband says: "I gave him [the get] for safekeeping," and the agent says, "He gave it to me for the sake of divorce," the agent's word is accepted.20The Rambam's ruling applies even when the husband, the wife and the agent are all in the same city. Even though one might think that in such an instance, if the husband's intent was to divorce his wife, he would have given the get to her directly and not to an agent, the agent's word is accepted.
There is another opinion in Gittin 64a, which maintains that in the same city, the agent's word is not accepted, and several Rishonim follow this view. Both opinions are mentioned by the Shulchan Aruch (Even HaEzer 141:55), but the Rambam's opinion appears to be favored. The Ramah states that the agent's word is accepted only while he is in possession of the get. A similar rule applies if the woman is in possession of the get21When quoting this law, the Shulchan Aruch (loc. cit.) appears to favor an opinion that accepts the woman's corroboration of the agent's statement, even when she is not in possession of the get. and she says, "This agent gave it to me," the agent corroborates her statements and says that it was given to him by the husband for the purpose of divorce. The agent's word is accepted,22I.e., even though the agent is no longer in possession of the get, his word is accepted. Since the woman has the potential to return it to him, it is considered as if it is still in his possession (Beit Shmuel 141:83). even if the husband protests that he gave it to him for safekeeping, and the woman is considered to be divorced.
הלכה יב
אָבַד הַגֵּט אַף עַל פִּי שֶׁהַבַּעַל אוֹמֵר לְגֵרוּשִׁין נְתַתִּיו לַשָּׁלִיחַ וְהַשָּׁלִיחַ אוֹמֵר נְתַתִּיו לָהּ הֲרֵי זוֹ סְפֵק מְגֹרֶשֶׁת שֶׁהֲרֵי הֻחְזְקָה אֵשֶׁת אִישׁ וְאֵין כָּאן אֶלָּא עֵד אֶחָד וּבַעַל. וַאֲפִלּוּ אָמְרָה הָאִשָּׁה בְּפָנַי נְתָנוֹ לוֹ לְגֵרוּשִׁין וּנְתָנוֹ הַשָּׁלִיחַ לִי הוֹאִיל וְהַבַּעַל וְהַשָּׁלִיחַ סוֹעֲדִין אוֹתָהּ אֶפְשָׁר שֶׁתָּעֵז פָּנֶיהָ וְשֶׁמָּא לֹא נִתְגָּרְשָׁה:
כסף משנה
12.
When the get is lost,23When quoting this law, the Shulchan Aruch (Even HaEzer 141:56) states that it applies when there are no witnesses who saw the get in the woman's possession. [more stringent rules apply]. Even if the husband says that he gave it to an agent24This halachah is speaking about an agent who acts on behalf of the husband, giving the get to his wife. for the sake of divorce, and the agent says that he gave it to the woman, the status of the divorce is a matter of question.25On one hand, there is a legal principle: "One can assume that an agent has carried out his mission," and yet our Sages maintain that this construct should be accepted only with regard to the stringencies it implies (Gittin 64b). As such, with regard to marrying into the priesthood and the like, the woman is considered as if she has been divorced. Nevertheless, she is not given permission to remarry unless she has the signatures of the witnesses to the get verified, or if the witnesses to its transfer testify to that effect. For our prevailing assumption is that the woman is married, and it is only [the statements of] one witness26See Chapter 9, Halachah 32 and the gloss of the Maggid Mishneh on that halachah. and her husband [who are contradicting that].Even if the woman herself says, "In my presence, [my husband] gave the get to the agent for the purpose of divorce, and he divorced me," [the ruling remains unchanged]. Since her husband and the agent support her, it is possible that she will speak brazenly27See Halachot 4 and 6. and in fact, she was not divorced.
הלכה יג
שְׁלִיחַ קַבָּלָה שֶׁקִּבֵּל גֵּט לְאִשָּׁה וּשְׁלָחוֹ לָהּ בִּפְנֵי שְׁנֵי עֵדִים וְהִגִּיעַ הַגֵּט לְיָדָהּ וּנְטָלַתּוּ וַהֲרֵי הַגֵּט יוֹצֵא מִתַּחַת יָדָהּ. וְהִיא אֵינָהּ יוֹדַעַת אִם בַּעְלָהּ שְׁלָחוֹ לָהּ אוֹ שְׁלִיחַ קַבָּלָה שֶׁלָּהּ אוֹ שְׁלוּחוֹ שֶׁל בַּעְלָהּ. הֲרֵי זוֹ מְגֹרֶשֶׁת כְּמוֹ שֶׁבֵּאַרְנוּ:
כסף משנה
13.
[The following rule applies when] an agent appointed by the woman to receive her get receives it from [her husband] and sends it to her, [giving it to an agent to give to her] in the presence of two witnesses. Although the woman does not know whether [the get] was sent to her by her husband, her agent or her husband's agent, she is divorced, as has been explained.28The reference is to Halachah 11. There is a slight difference in this instance, because the original agent is not necessarily making these statements to the court himself. Nevertheless, as long as witnesses saw the get in the possession of the original agent, the statements of the agent who gave the get to the woman are accepted.הלכה יד
בָּא בַּעַל וְעִרְעֵר שֶׁלֹּא כְּתָבוֹ אוֹ שֶׁהוּא גֵּט בָּטֵל יִתְקַיֵּם בְּחוֹתְמָיו שֶׁהֲרֵי עֵדִים מְעִידִים שֶׁהַגֵּט שֶׁנָּתְנוּ לָהּ יָצָא מִתַּחַת יַד שְׁלוּחָהּ שֶׁיָּדוֹ כְּיָדָהּ. וְאַף עַל פִּי שֶׁהִיא אֵינָהּ יוֹדַעַת הֲרֵי הָעֵדִים יָדְעוּ. וְאִם לֹא נִתְקַיֵּם אֵינָהּ מְגֹרֶשֶׁת:
כסף משנה
14.
[In the above situation,] if the husband comes and protests that he did not write [the get], or that the get is void, the signatures [of the witnesses] should be verified. [This is sufficient to counter the husband's protest, the rationale being that] there are witnesses that [the get] was in the possession of the agent of the woman, and his aegis is considered to be equivalent to her own.29As mentioned in the notes on Halachah 11, there are opinions that maintain that this applies only when the husband, the agent and the woman are located in different cities. If all three are located in the same city, these opinions maintain that the husband's word should be accepted if he states that he gave the agent the get for safekeeping. In this instance, as well, although both views are mentioned by the Shulchan Aruch (Even HaEzer 141:57), the Rambam's view is favored.Moreover, as mentioned in those notes, the Ramah maintains that if the get is no longer in possession of the agent, his word is not accepted. Although she did not know [the purpose for which the get was given to the original agent], the witnesses knew.
If, however, the signatures [of the witnesses] cannot be verified, the divorce is not effective.
הלכה טו
מִי שֶׁהֻחְזְקָה אֵשֶׁת אִישׁ וְהָלְכָה הִיא וּבַעְלָהּ לִמְדִינַת הַיָּם וְשָׁלוֹם בֵּינוֹ לְבֵינָהּ וְשָׁלוֹם בָּעוֹלָם וּבָאָה וְאָמְרָה מֵת בַּעְלִי נֶאֱמֶנֶת וְתִנָּשֵׂא אוֹ תִּתְיַבֵּם. חֲזָקָה שֶׁאֵינָהּ מְקַלְקֶלֶת עַצְמָהּ וְתֶאֱסֹר עַצְמָהּ עַל בַּעְלָהּ הָרִאשׁוֹן וְעַל זֶה וְתַפְסִיד כְּתֻבָּתָהּ מִזֶּה וּמִזֶּה וְלִהְיוֹת בָּנֶיהָ מַמְזֵרִין בְּדָבָר הֶעָשׂוּי לְהִגָּלוֹת לַכּל. וְאִי אֶפְשָׁר לְהַכְחִישׁ וְלֹא לִטְעֹן טַעֲנָה שֶׁאִם הוּא חַי סוֹפוֹ לָבֹא אוֹ יִוָּדַע שֶׁהוּא חַי. וְכֵן אִם בָּא עֵד אֶחָד וְהֵעִיד לָהּ שֶׁמֵּת בַּעְלָהּ תִּנָּשֵׂא עַל פִּיו שֶׁהַדָּבָר עָשׂוּי לְהִגָּלוֹת. אֲפִלּוּ עֶבֶד אוֹ אִשָּׁה אוֹ שִׁפְחָה וְעֵד מִפִּי עֵד מִפִּי עֶבֶד מִפִּי שִׁפְחָה מִפִּי קְרוֹבָיו נֶאֱמָנִים לוֹמַר מֵת פְּלוֹנִי וְתִנָּשֵׂא אִשְׁתּוֹ אוֹ תִּתְיַבֵּם עַל פִּיהֶם:
כסף משנה
15.
[The following rules apply when] 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.30As will be explained, different rules apply if the couple is known to quarrel (Chapter 13, Halachah 1), or war prevails throughout the world (Chapter 13, Halachah 2). 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.31As reflected by the Rambam's statements at the conclusion of Chapter 13, it appears that according to Scriptural law, the testimony of one witness is accepted in instances of this nature. 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.32The testimony of such individuals is never accepted according to Scriptural law. The acceptance of such testimony in this instance is a leniency adopted by the Sages so that Jewish women will be able to remarry. (See the conclusion of Chapter 13.)
This halachah begins the discussion of the subject of agunot, women whose husbands are missing and presumed to have died. In previous generations, this was a recurrent difficulty, for business journeys were replete with danger, and moreover, pogroms and persecution were constant threats. Often, men disappeared and were presumed to have died or to have been killed, and yet there was no conclusive proof to that effect. Indeed, a significant amount of the Rabbinic literature of previous generations was devoted to questions of this nature.
In the present age, with the communications revolution and the advent of more highly developed means of identification, these problems have been minimized. But they still arise. After each of Israel's wars, lengthy investigations were necessary before permission to remarry was granted to the wives of the casualties. And when, heaven forbid, there are Jews killed in plane crashes and the like, Rabbis must make careful inquiries based on the principles reflected in the halachot that follow. On the basis of such testimony, the man's wife is granted permission to remarry or perform the rite of yibbum.
הלכה טז
וְהַכּל נֶאֱמָנִים לְהָעִיד לָהּ עֵדוּת זוֹ חוּץ מֵחָמֵשׁ נָשִׁים שֶׁחֶזְקָתָם שׂוֹנְאוֹת זוֹ אֶת זוֹ שֶׁאֵין מְעִידוֹת זוֹ לָזוֹ בְּמִיתַת בַּעְלָהּ שֶׁמָּא יִתְכַּוְּנוּ לְאָסְרָהּ עָלָיו וַעֲדַיִן הוּא קַיָּם. וְאֵלּוּ הֵן. חֲמוֹתָהּ. וּבַת חֲמוֹתָהּ. וְצָרָתָהּ. וִיבִמְתָּהּ. וּבַת בַּעְלָהּ. אֲפִלּוּ עַכּוּ״ם הַמֵּסִיחַ לְפִי תֻּמּוֹ נֶאֱמָן וּמַשִּׂיאִין עַל פִּיו כְּמוֹ שֶׁיִּתְבָּאֵר. וְאִם נִתְכַּוֵּן לְהָעִיד אֵינוֹ נֶאֱמָן:
כסף משנה
16.
Any person who offers testimony is believed with regard to matters of this nature, with the exception of five women, who are presumed to hate each other. Their testimony is not [accepted] with regard to the death of the other's husband,33See Halachah 24, which states that the testimony of these women is not considered at all, regardless of whether they say that the woman's husband is alive or that he has died. lest they intend to cause her to be forbidden to him, although he is still alive.34I.e., we fear that out of hatred, these women will testify that a woman's husband has died so that she will marry another person, and when her first husband returns she will be forced to leave both relationships.The Kessef Mishneh states that the phrase "although he is still alive" is meant to exclude an instance in which a woman's husband died and she remarried. The five women who share these close family ties with her first husband are not disqualified from giving testimony with regard to the death of her second husband. The implication is that these women's hatred has a specific objective: to cause the woman to be divorced from her husband. Once she is no longer married to him, they no longer harbor such feelings.
The Beit Shmuel 17:13 and Rabbi Akiva Eiger question this ruling on the basis of the Rambam's wording in Chapter 7, Halachah 3, which states: "These are the women who we presume hate each other . . . another woman married to the same man - this applies even if this woman has since remarried." Nevertheless, this halachah can be interpreted to mean that although the other woman has remarried, she wants the woman who was married to her first husband also to be forbidden to him.They are the woman's mother-in-law, the daughter of her mother-in-law,35Who we assume would identify with her mother. Moreover, the daughter of the mother-in-law may have a personal grudge, because the other woman will enjoy the inheritance of her parents' estate.[her husband's] other wife, her yevamah,36I.e., the woman married to her husband's brother, whom her husband would have to marry if his brother died without children. Since it is possible that they will share the same husband, there may be enmity between them. her husband's daughter [from another marriage].37I.e., she is jealous of the woman who took her mother's place.
Because of the bad feelings that characterize the relationship between these pairs, testimony is also disqualified in the reverse of the above situations. For example, if the husband of the daughter of a woman's husband is missing, the woman may not testify about the matter, although she has no natural reason to hate the other woman.
[Indeed, with regard to such testimony,] a gentile's statements delivered in the course of conversation are accepted and can serve as the basis for a woman to remarry, as will be explained.38See Chapter 13, Halachah 11, which explains that when the gentile makes statements casually, relating events that took place, his word is accepted. If the gentile makes his statements with the intent that they serve as testimony, his word is not accepted.
הלכה יז
וְכֵן הַפָּסוּל בַּעֲבֵרָה מִן הַתּוֹרָה אִם בָּא לְהָעִיד בְּאִשָּׁה שֶׁמֵּת בַּעְלָהּ אֵינוֹ נֶאֱמָן. וְאִם הָיָה מֵסִיחַ לְפִי תֻּמּוֹ נֶאֱמָן אֵין זֶה פָּחוּת מִן הָעַכּוּ״ם. אֲבָל פָּסוּל מִדִּבְרֵיהֶם נֶאֱמָן לְעֵדוּת אִשָּׁה:
כסף משנה
17.
Similar laws apply to a person who is disqualified [from serving as a witness] by Scriptural law, because of the commission of a sin.39This refers to two categories of individuals: a) one who transgresses a prohibition punishable by lashes, and b) one who violates a prohibition of the Torah that involves taking money unjustly. (See Hilchot Edut, Chapter 10.) If he comes to give testimony on behalf of a woman, [saying] that her husband died, his word is not accepted.40We fear that he is able to be bribed to give false testimony. If he makes these statements in the course of conversation, his word is accepted, for he is not regarded as less than a gentile.A person who is disqualified [from serving as a witness] by Rabbinic law,41E.g., a person who takes interest forbidden by Rabbinic law, or a gambler (Hilchot Edut 10:3). (See also Hilchot Edut 11:1-5, which mentions other base individuals whose testimony was disqualified.) by contrast, may give testimony regarding [the death of] a woman's [husband].42Although our Sages disqualified the testimony of such individuals in other instances, they relaxed this restriction in this regard, so that the woman would be granted the opportunity to remarry.
הלכה יח
בָּא עֵד אֶחָד וְהֵעִיד שֶׁמֵּת בַּעְלָהּ וְהִתִּירוּהָ לְהִנָּשֵׂא עַל פִּיו וְאַחַר כָּךְ בָּא אַחֵר וְהִכְחִישׁ אֶת הָרִאשׁוֹן וְאָמַר לֹא מֵת הֲרֵי זוֹ לֹא תֵּצֵא מֵהֶתֵּרָהּ וְתִנָּשֵׂא. שֶׁעֵד אֶחָד נֶאֱמָן בְּעֵדוּת אִשָּׁה כִּשְׁנֵי עֵדִים בִּשְׁאָר עֵדֻיּוֹת וְאֵין דְּבָרָיו שֶׁל אֶחָד בִּמְקוֹם שְׁנַיִם:
כסף משנה
18.
[The following rules apply if] one witness came and testified that a woman's husband has died, and she was granted permission to remarry on the basis of his testimony, and afterwards another witness came and contradicted the testimony of the first, saying that he did not die. The woman's status is not changed, and she is still permitted to remarry.43The Ramah (Even HaEzer 17:37) follows the ruling of Rabbenu Asher, who maintains that the woman should not remarry because of the gossip that might ensue.[The rationale is that] the testimony of one witness is accepted with regard to [the death of] a woman's [husband] in the same way as is the testimony of two witnesses with regard to other matters. [This testimony is being challenged by the testimony of one witness,] and the words of one witness are not considered when there is [testimony from] two [witnesses].44Or, as in the case at hand, the testimony of one witness that is considered to be equivalent to that of two.
הלכה יט
בָּאוּ שְׁנֵיהֶם כְּאֶחָד זֶה אוֹמֵר מֵת וְזֶה אוֹמֵר לֹא מֵת. אִשָּׁה אוֹמֶרֶת מֵת וְאִשָּׁה אוֹמֶרֶת לֹא מֵת. הֲרֵי זוֹ לֹא תִּנָּשֵׂא. וְאִם נִשֵּׂאת תֵּצֵא מִפְּנֵי שֶׁהִיא סָפֵק. וְאִם נִשֵּׂאת לָעֵד שֶׁהֵעִיד לָהּ וְהִיא אוֹמֶרֶת בָּרִי לִי שֶׁמֵּת הֲרֵי זוֹ לֹא תֵּצֵא. בָּאוּ שְׁנַיִם וְאָמְרוּ לֹא מֵת אַף עַל פִּי שֶׁנִּשֵּׂאת תֵּצֵא:
כסף משנה
19.
If two [witnesses] come at the same time,45When the Shulchan Aruch (Even HaEzer 17:37) quotes this law, it states that the witness who says that the husband did not die came before the woman was granted license to remarry. See Beit Shmuel 17:110. one saying "he died," and the other saying, "he did not die," or a woman says, "he died," and another woman says, "he did not die," she should not marry. And if she marries, she should leave her second husband,46In the previous instance, a ruling was already delivered, and the testimony of one witness is not sufficient to detract from that ruling. In this halachah, by contrast, a ruling has not been issued, and one witness has no more halachic power than the other. for the matter is one of doubt.47See Hilchot Shegagot 8:3, where the Rambam states that the woman and her second husband are obligated to bring the guilt offering sacrificed to bring atonement when one is in doubt of whether or not one committed a transgression.If, however, she marries the witness who testified on her behalf, and she herself says, "I am certain that he died,"48This is interpreted by most commentaries to mean: "I know that he died." Rashi (Ketubot 22b) states that it means: "I know that if he were alive, he would have returned by now," but this interpretation is not accepted by the later authorities. she need not leave her second husband.49The rationale for this decision is stated above in Halachah 7. At the outset, however, she should not remarry, not even to this witness (Beit Shmuel 17:113). There are, moreover, significant halachic authorities who rule that she must leave her second husband. Their opinion is also mentioned in the Shulchan Aruch (loc. cit.), but the Rambam's opinion appears to be favored. If two witnesses come and say that her first husband did not die, [a more stringent ruling is delivered]. Even though she married, she must leave her second husband.
הלכה כ
בַּמֶּה דְּבָרִים אֲמוּרִים בְּשֶׁהָיָה הָעֵד אֶחָד שֶׁנִּשֵּׂאת עַל פִּיו כְּמוֹ הַשְּׁנַיִם שֶׁבָּאוּ וְהִכְחִישׁוּ אוֹתוֹ. כְּגוֹן שֶׁנִּשֵּׂאת עַל פִּי אִישׁ וּבָאוּ שְׁנַיִם וְאָמְרוּ לֹא מֵת. אוֹ שֶׁנִּשֵּׂאת עַל פִּי אִשָּׁה אוֹ עַל פִּי עַצְמָהּ וּבָאוּ שְׁתֵּי נָשִׁים אוֹ שְׁנֵי פְּסוּלִין שֶׁל דִּבְרֵיהֶן וְאָמְרוּ לֹא מֵת. אֲבָל עֵד כָּשֵׁר אוֹמֵר מֵת וְנָשִׁים רַבּוֹת אוֹמְרוֹת לֹא מֵת אוֹ פְּסוּלִין אוֹמְרִים לֹא מֵת הֲרֵי זֶה כְּמֶחֱצָה עַל מֶחֱצָה. וְאִם נִשֵּׂאת לְאֶחָד מֵעֵדֶיהָ וְהִיא אוֹמֶרֶת וַדַּאי מֵת הֲרֵי זוֹ לֹא תֵּצֵא:
כסף משנה
20.
When does the above50I.e., the stringency mentioned at the conclusion of the previous halachah. apply? When the one witness upon whose testimony [the woman was granted permission to] marry was equivalent to the two witnesses who contradicted his testimony. For example, she married based on the testimony of one man, and two men came and said that her husband did not die. Or she married based on the testimony of one woman or on the basis of her own testimony, and two women or two men who were disqualified from serving as witnesses by Rabbinic law testified that her husband did not die.If, however, one acceptable witness says that her husband died, and many51I.e., the number is not significant. The same law applies whether two or 200 come. women or men who were disqualified from serving as witnesses by Rabbinic law testify that her husband did not die, the situation is considered to be equally balanced.52Thus, she may not marry at all (and if she marries, may not remain married to her second husband unless she marries the witness, as the Rambam continues in Halachah 19). The Maggid Mishneh and the Ramah (Even HaEzer 17:37) emphasize that this applies only when the women or the witnesses who are usually disqualified come before the woman is granted permission to marry. If, however, she is granted permission to marry on the basis of the testimony of an acceptable witness, the testimony of these individuals does not cause that license to be rescinded. Thus, if she marries one of the witnesses53The wording used by the Rambam is slightly confusing, for we are speaking about an instance when only one acceptable witness testifies on her behalf. (See Beit Shmuel 17:118.) who testified on her behalf, and she herself says, "I am certain that he died," she need not leave her second husband.
הלכה כא
אִשָּׁה אוֹמֶרֶת מֵת אוֹ הִיא שֶׁאָמְרָה מֵת בַּעְלִי וְאַחַר כָּךְ בָּא עֵד כָּשֵׁר וְאָמַר לֹא מֵת הֲרֵי זוֹ לֹא תִּנָּשֵׂא. וְאִם נִשֵּׂאת תֵּצֵא:
כסף משנה
21.
When one woman testifies that [her husband] died, or she herself says that [her husband] died, and afterwards,54According to the Maggid Mishneh, this applies even if the woman was granted license to remarry before the other witness came. This opinion is reflected in the ruling of the Shulchan Aruch (Even HaEzer 17:38). If, however, two women testify that a woman's husband has died, and permission is granted for the woman to remarry, the testimony of a single acceptable witness is not sufficient for that license to be revoked (Maggid Mishneh; Ramah, Even HaEzer 17:38). one acceptable witness comes and says that he did not die, [the woman] should not remarry; and if she remarried, she should leave her second husband.הלכה כב
אִשָּׁה אוֹמֶרֶת לֹא מֵת וּשְׁתֵּי נָשִׁים אוֹמְרוֹת מֵת הֲרֵי זוֹ תִּנָּשֵׂא. וְכֵן אִם אָמְרוּ עֶשֶׂר נָשִׁים לֹא מֵת וְאַחַת עֶשְׂרֵה אוֹמְרוֹת מֵת הֲרֵי זוֹ תִּנָּשֵׂא. שֶׁאֵין אוֹמְרִים שְׁנַיִם כְּמֵאָה אֶלָּא בְּעֵדִים כְּשֵׁרִים אֲבָל בִּפְסוּלִין הַלֵּךְ אַחַר הָרֹב בֵּין לְהָקֵל בֵּין לְהַחֲמִיר:
כסף משנה
22.
When one woman says that [a man] did not die, and two women say that he did die, [his wife] may remarry. Similarly, if ten women say that [a man] did not die, and eleven women say that he did die, [his wife] may remarry. For we say, "two [witnesses] are considered as 100," only with regard to acceptable witnesses.55I.e., if the same situation occurred with regard to acceptable witnesses, the laws stated in the following halachah would apply. With regard to acceptable witnesses, as long as two witnesses dissent, it makes no difference how many witnesses support the other opinion. With regard to witnesses whose testimony would ordinarily be disqualified, by contrast, [the law is that we] follow the majority, whether this leads to a more lenient ruling or a more stringent ruling.הלכה כג
שְׁנֵי עֵדִים אוֹמְרִים מֵת וּשְׁנַיִם אוֹמְרִים לֹא מֵת הֲרֵי זוֹ לֹא תִּנָּשֵׂא. וְאִם נִשֵּׂאת תֵּצֵא מִפְּנֵי שֶׁהִיא סָפֵק. וְאִם נִשֵּׂאת לְאֶחָד מֵעֵדֶיהָ וְהִיא אוֹמֶרֶת בָּרִי לִי שֶׁמֵּת הֲרֵי זוֹ לֹא תֵּצֵא:
כסף משנה
23.
When two [witnesses] say that [a man] died, and two other witnesses say that he did not die, [his wife] may not remarry. If she has remarried, she should leave [her second husband],56This applies even when the woman married after receiving license from a Rabbinic court. If two witnesses come afterwards and testify that her first husband is still alive, we give credence to their statements (Beit Shmuel 17:128). because the matter is one of doubt.If she marries one of the witnesses who testified on her behalf, and she herself says, "I am certain that he died," she need not leave her second husband.
הלכה כד
מִי שֶׁיֵּשׁ לוֹ שְׁתֵּי נָשִׁים וּבָאָה אַחַת מֵהֶן וְאָמְרָה מֵת בַּעְלִי הֲרֵי זוֹ תִּנָּשֵׂא עַל פִּי עַצְמָהּ כְּמוֹ שֶׁבֵּאַרְנוּ. וְצָרָתָהּ אֲסוּרָה שֶׁאֵין צָרָה מְעִידָה לַחֲבֵרְתָהּ. וַאֲפִלּוּ נִשֵּׂאת זוֹ תְּחִלָּה אֵין אוֹמְרִין אִלּוּ לֹא מֵת בַּעְלָהּ לֹא הָיְתָה אוֹסֶרֶת עַצְמָהּ עָלָיו. שֶׁמָּא מִשִּׂנְאָתָהּ בְּצָרָתָהּ רוֹצָה הִיא שֶׁיֵּאָסְרוּ שְׁתֵּיהֶן עָלָיו. זֹאת אוֹמֶרֶת מֵת בַּעְלִי וְצָרָתָהּ מַכְחֶשֶׁת אוֹתָהּ וְאוֹמֶרֶת לֹא מֵת הֲרֵי זוֹ תִּנָּשֵׂא. כְּשֵׁם שֶׁאֵינָהּ מְעִידָה לָהּ לְהַתִּירָהּ כָּךְ אֵינָהּ יְכוֹלָה לְהָעִיד לָהּ לְאָסְרָהּ. זֹאת אוֹמֶרֶת מֵת וְצָרָתָהּ אוֹמֶרֶת נֶהֱרַג הוֹאִיל וּשְׁתֵּיהֶן אוֹמְרוֹת שֶׁאֵינוֹ קַיָּם הֲרֵי אֵלּוּ יִנָּשְׂאוּ:
כסף משנה
24.
[The following laws apply when] a person has two wives and one of them comes and says, "My husband died." She may marry on the basis of her own testimony, as we have explained.57See Halachah 15. Her husband's other wife is forbidden to marry, for one of a man's wives may not testify on behalf of the other.Even if the woman [who said that her husband died] married first, [the other wife is still forbidden to marry]. We do not say that if her husband had not actually died, she would not cause herself to be forbidden to him. [Instead, we suspect that] perhaps her hatred for the other wife is so great that she desires for them both to become forbidden to him.58I.e., she is marrying with the intent that the other wife will follow suit and also marry. Then her first husband will return, and they will both become forbidden to him. In describing this sequence, Yevamot 120a recalls Samson's prayer (Judges 16:30 : "May I die together with the Philistines" - i.e., she will harm herself in order to harm her rival.
If one says, "My husband died," and her husband's other wife denies this, saying that he did not die, [the wife who testifies that he has died] may remarry. Just as the other wife's testimony does not cause her to be permitted, it does not cause her to be forbidden.
If one says, "[My husband] died," and the other says, "He was killed," they both are granted permission to remarry, for they both are testifying that he is no longer alive.59The fact that their testimonies contradict each other is not significant.