Halacha
הלכה א
הָאִשָּׁה שֶׁאָמְרָה לְבַעְלָהּ גִּרשְׁתַּנִי בִּפְנֵי פְּלוֹנִי וּפְלוֹנִי וּבָאוּ אוֹתָן הָעֵדִים וְהִכְחִישׁוּהָ וְאַחַר כָּךְ הָלְכָה הִיא וּבַעְלָהּ וְשָׁלוֹם בָּעוֹלָם וּבָאָה וְאָמְרָה מֵת בַּעְלִי אֵינָהּ נֶאֱמֶנֶת. שֶׁזּוֹ הֻחְזְקָה שַׁקְרָנִית וְרוֹצָה לְהִשָּׁמֵט מִתַּחַת בַּעְלָהּ. בָּא עֵד אֶחָד וְהֵעִיד לָהּ שֶׁמֵּת בַּעְלָהּ לֹא תִּנָּשֵׂא שֶׁמָּא הִיא שָׂכְרָה אוֹתוֹ. וְאִם נִשֵּׂאת לֹא תֵּצֵא שֶׁהֲרֵי יֵשׁ לָהּ עֵד:
כסף משנה
1.
[The following rules apply with regard to] a woman who told her husband:1Note the ruling of the Chelkat Mechokek 17:93, who explains that the Rambam's decision applies only in an instance where the woman has already made false statements in the presence of a court. The fact that a couple constantly quarrel is not considered serious enough to warrant the stringencies mentioned in this halachah. "You divorced me in the presence of so and so and so and so," and those witnesses came and denied her statements.2And so, the couple were forced to remain married. Chapter 12, Halachah 15 describes a situation when a man disappears "when their relationship is peaceful, and peace prevails in the world at large." All the laws that follow in that chapter deal with such situations. This chapter describes situations where these conditions do not prevail, and hence more stringent laws apply. If afterwards, she and her husband departed [for a far-removed country] while peace prevails in the world at large,3I.e., the stringencies apply even where peace prevails in the world at large, because of the strife that exists between the couple. and then she returns and says, "My husband died," her word is not accepted.[The rationale is] that she is considered to be a liar, who desires to free herself from her ties to her husband.4Yevamot 116a records a difference of opinion between the Sages regarding the rationale for this ruling. Rav Chananiah states that the reason is that we suspect that the woman is lying. Rav Simi bar Ashi states that we suspect that in an instance where her husband appears to be dying, the woman will not be careful and will conclude that he died, even though he remained alive.
The Rambam's citation of the first opinion in this halachah represents a reversal of his thinking. For in his Commentary on the Mishnah (Yevamot 15:1), he mentions the latter view.
According to the Rambam's opinion stated here, even if the woman says that she buried her husband, her word is not accepted (Hagahot Maimoniot; Ramah, Even HaEzer 17:48). If one witness comes and testifies on her behalf that her husband died, she should not [be granted permission to] marry; we fear that perhaps she hired him.5The Maggid Mishneh notes that this issue is left unresolved by Yevamot 116b, and therefore, the Rambam chooses the more stringent view. The Maggid Mishneh questions why the Rambam ignores the rationale given by the Talmud - that in most cases, a woman who is granted permission on the basis of the testimony of one witness is careful and thoroughly investigates the matter before she marries, but in this instance, because of her hatred of her husband, she will not make such an investigation - and offers another rationale that is not mentioned there.
Rav Eliyahu Mizrachi (in a responsum quoted by the Kessef Mishneh) offers a resolution to this matter, explaining that the Rambam accepts the testimony of a single witness in such instances without question, because we assume that a person will not lie in an instance where the truth will shortly be revealed. (See the notes at the conclusion of this chapter.) Nevertheless, since the question is left unresolved by our Sages, and a very severe matter is involved, the Rambam does not desire to offer a leniency that was not accepted by our Sages. Therefore, he offers a different rationale, even though it was not mentioned in the Talmud.
On the basis of this explanation, Rav Eliyahu Mizrachi explains that if a witness comes to the court on his own initiative, the woman is granted license to remarry even when differences existed between her and her husband previously. The Chelkat Mechokek 17:95, however, states that this leniency is not accepted by the latter authorities. If, however, she marries, nevertheless, she need not leave [her second husband], for there is a witness who supports her.
הלכה ב
וְכֵן אִם הָיְתָה מִלְחָמָה בָּעוֹלָם וּבָאָה וְאָמְרָה מֵת בַּעְלִי בַּמִּלְחָמָה אֵינָהּ נֶאֱמֶנֶת וְאַף עַל פִּי שֶׁהָיָה שָׁלוֹם בֵּינוֹ לְבֵינָהּ (שֶׁמָּא) תִּסְמֹךְ דַּעְתָּהּ עַל דְּבָרִים שֶׁרֻבָּן לְמִיתָה וְתֹאמַר מֵת כְּגוֹן שֶׁנֶּהֶרְגוּ הָרִאשׁוֹנִים וְהָאַחֲרוֹנִים שֶׁהָיָה בַּעְלָהּ בְּאֶמְצָעָן שֶׁהֲרֵי הִיא אוֹמֶרֶת מֵאַחַר שֶׁנֶּהֶרְגוּ אֵלּוּ וְאֵלּוּ נֶהֱרַג הוּא בִּכְלָלָן. לְפִיכָךְ אֵינָהּ נֶאֱמֶנֶת וַאֲפִלּוּ אָמְרָה מֵת בַּמִּלְחָמָה וּקְבַרְתִּיו. אֲבָל אִם אָמְרָה מֵת עַל מִטָּתוֹ נֶאֱמֶנֶת:
כסף משנה
2.
Similarly, when there is a state of war in the world at large, if [a woman] comes and says, "My husband died in the war,"6If, however, the woman says that her husband died near the battlefront, but not in battle, her word is accepted (Ramah, Even HaEzer 17:48). her word is not accepted, even where the couple's relationship is peaceful.[The rationale is that we fear that] she will rely on a situation in which the likelihood is that he will die - e.g., the people in the front and at the rear were killed, and her husband is in the center. She might think, "Since these were killed, and those were killed, he was killed surely together with them."
For this reason, her word is not accepted, even if she says, "He died in the war, and I buried him."7There is a slight difficulty with the Rambam's ruling, because the rationale that the Rambam mentioned previously - that she suspects that her husband died, and because of the high likelihood is willing to make such statements even though she has no definite knowledge - seemingly does not apply when the woman says: "I buried him." For if a person is buried, he is definitely dead.
[For this reason, the Rashba - and his opinion is quoted as a minority view by the Shulchan Aruch (Even HaEzer 17:48) - rules that if the woman says that she buried her husband, her word is accepted.]
In the responsum of Rav Eliyahu Mizrachi quoted by the Kessef Mishneh, it is explained that the woman will be afraid to tarry on a battlefield and bury her husband. Nevertheless, since she is certain that he died, she will exaggerate and say that she buried him, although she did not. Alternatively, the Levush states that we suspect that the fear and confusion of wartime is so great that she may have in fact buried a man, but she might have mistaken another man for her husband. If, however, she says that he died in bed, her word is accepted.8I.e., although war was raging nearby, her husband was not involved in the war and died at home. Her word is accepted, because we do not suspect that she will intentionally lie. And at home, away from the battlefront, she will know for certain whether or not her husband died.
הלכה ג
לֹא הֻחְזְקָה מִלְחָמָה בָּעוֹלָם וּבָאָה וְאָמְרָה מִלְחָמָה הָיְתָה בְּמָקוֹם פְּלוֹנִי וּמֵת בַּמִּלְחָמָה לֹא תִּנָּשֵׂא לְכַתְּחִלָּה. וְאִם נִשֵּׂאת לֹא תֵּצֵא:
כסף משנה
3.
If we are not aware of a war raging in the world, and a woman comes and says: "There was a war in a particular county and [my husband] died in that war," a priori, she should not marry. If, however, she marries, she need not leave [her second husband].9On the one hand, if the woman desired to lie, she could have offered a better lie and not mentioned the war at all (miggo). Nevertheless, when a woman says that her husband died in a war, our suspicion is that she erred and thought her husband died, even when he did not. Therefore, at the outset, she should not be granted permission to marry. If, however, she does marry, since there are grounds to believe her statement, we do not force her to leave her second husband.The Rambam's ruling is quoted by the Shulchan Aruch (Even HaEzer 17:49). The Ramah, however, follows the ruling of Rabbenu Asher, who maintains that if the woman marries, she should be forced to leave her second husband.
הלכה ד
וְכֵן הָאִשָּׁה שֶׁאָמְרָה מֵת בַּעְלִי תַּחַת הַמַּפּלֶת אֵינָהּ נֶאֱמֶנֶת. וְכֵן אִם הָיָה שִׁלּוּחַ נְחָשִׁים וְעַקְרַבִּים וְאָמְרָה נְשָׁכוֹ נָחָשׁ אוֹ עַקְרָב וָמֵת אֵינָהּ נֶאֱמֶנֶת. שֶׁמָּא תִּסְמֹךְ דַּעְתָּהּ עַל רֹב אֲנָשִׁים שֶׁמֵּתוּ כָּךְ בִּנְשִׁיכָה:
כסף משנה
4.
Similarly, if a woman says, "My husband died in a landslide," her word is not accepted. In the same vein, if an area was overrun by swarms of snakes and scorpions, and she says, "He was bitten by a snake - or a scorpion - and died," her word is not accepted.10If, however, the woman says that her husband died in bed at those times, her word is accepted. If she says that he died in a landslide or was bitten by a swarming mass of snakes, and she buried him, according to the Rambam her word is not accepted. According to the Rashba, her word is accepted if she says that she buried him [Maggid Mishneh; Ramah (Even HaEzer 17:51)]. [The rationale is] that she might rely on the fact that most men die because they were bitten in this manner, [and make a statement without knowing for certain whether or not her husband died].הלכה ה
אָמְרָה עִשְּׁנוּ עָלֵינוּ בַּיִת אוֹ מְעָרָה הוּא מֵת וַאֲנִי נִצַּלְתִּי אֵינָהּ נֶאֱמֶנֶת. כְּשֵׁם שֶׁנַּעֲשָׂה לָהּ נֵס כָּךְ נַעֲשָׂה לוֹ. הָיְתָה שְׁנַת רְעָבוֹן וְאָמְרָה מֵת בַּעְלִי אֵינָהּ נֶאֱמֶנֶת. מֵת וּקְבַרְתִּיו נֶאֱמֶנֶת:
כסף משנה
5.
If [a woman] says, "They filled the house - or the cave - [in which we were hiding] with smoke; he died, but I was saved," her word is not accepted. [It is possible that] just as she [was saved] by a miracle, he could have been [saved by a miracle].If it is a year of famine, and she says: "My husband died," her word is not accepted.11This law applies even if she says that he died on his bed (Ramah, Even HaEzer 17:53). We fear that she left her husband sick, without any source of nurture, and assumed that he died without knowing for certain (Yevamot 114b). [If she says,] "He died and I buried him," her word is accepted.12In the previous instance, we do not fear that she is lying, but rather merely exaggerating and relying on the likelihood that he died. We do not, however, fear that she would exaggerate and say that she buried him if it were not true.
The woman's word is accepted with regard to a famine, while it is not with regard to war, because of the obvious difference between the two instances. In wartime, there is an immediate danger and everyone is worried about saving his own life (Ibid.).
הלכה ו
אָמְרָה נָפְלוּ עָלֵינוּ עַכּוּ״ם אוֹ לִסְטִים הוּא נֶהֱרַג וַאֲנִי נִצַּלְתִּי נֶאֱמֶנֶת. שֶׁאֵין דַּרְכָּן לַהֲרֹג אֶת הַנָּשִׁים כְּדֵי שֶׁנֹּאמַר כְּשֵׁם שֶׁנִּצְּלָה הִיא כָּךְ נִצַּל הוּא:
כסף משנה
6.
If [a woman] says, "Gentiles - or thieves - attacked us. He was slain, and I was saved," her word is accepted, because it is not common for attackers to kill women.13Rashi (Yevamot 115a, Avodah Zarah 25b) states that the attackers will keep the woman alive in order to rape her. Tosafot (Avodah Zarah 25b) explains that a woman is not considered likely to fight back, and her physical weakness arouses mercy. Therefore, she is left alive. Thus, [it is not fitting] to say: Just as she was saved, he was saved.הלכה ז
הָיָה דֶּבֶר בָּעוֹלָם וְאָמְרָה מֵת בַּעְלִי נֶאֱמֶנֶת שֶׁדָּבָר פָּשׁוּט בְּפִי כָּל אָדָם שֶׁבִּשְׁנַת הַדֶּבֶר זֶה חַי וְזֶה מֵת. וְאֶפְשָׁר שֶׁיָּמוּתוּ בַּדֶּבֶר נְעָרִים חֲזָקִים וְיִנָּצְלוּ הַזְּקֵנִים הַחוֹלִים. וּלְפִי זֶה אֵין חוֹשְׁשִׁין לָהּ שֶׁמָּא סָמְכָה דַּעְתָּהּ עַל רֹב הַמֵּתִים:
כסף משנה
7.
If an epidemic was raging throughout the world, and [a woman] says, "My husband died," her word is accepted.14Rabbenu Asher rules that the woman's word is not accepted. Rabbenu Nissim, moreover, maintains that that is the proper reading in the Mishneh Torah. Our translation follows the standard printed texts of the Mishneh Torah and the authoritative manuscripts most widely available.The Shulchan Aruch (Even HaEzer 17:55) states that the woman's word is accepted, while the Ramah quotes Rabbenu Asher's view. For [there is no widely accepted likelihood] with regard to a plague; everyone knows that in a time of plague some die and some live. And it is possible that strong young men will die from the plague, and elderly infirm people will be saved. And therefore, we do not suspect that she relied on the likelihood that most people died.
הלכה ח
כְּבָר אָמַרְנוּ שֶׁעֵד מִפִּי עֵד כָּשֵׁר לְעֵדוּת אִשָּׁה. בַּמֶּה דְּבָרִים אֲמוּרִים שֶׁשָּׁמַע מִפִּי בֶּן דַּעַת שֶׁמֵּת פְּלוֹנִי כְּגוֹן עֶבֶד אוֹ שִׁפְחָה. אֲבָל אִם שָׁמַע מִפִּי שׁוֹטֶה אוֹ מִפִּי קָטָן אֵינוֹ מֵעִיד וְאֵין סוֹמְכִין עַל דִּבְרֵיהֶם:
כסף משנה
8.
It has already been stated15Chapter 12, Halachah 15. that a witness who [did not see evidence of the person's death himself, but who] testifies after hearing the statements of another person is acceptable with regard to [the verification of the death of] a woman's [husband].When does this apply? When the person heard a mentally competent adult - even a servant or a maid -servant - say that so and so died. If, however, a person heard from a mentally incompetent person or from a minor16On the basis of Hilchot Yibbum 4:31, the Beit Yosef (Even HaEzer 17) and others explain that here the Rambam is talking about a minor who is not intellectually mature. The testimony of a minor who is intellectually mature is accepted (see the following halachah). In the Shulchan Aruch (Even HaEzer 17:13), Rav Yosef Karo quotes the Rambam's wording exactly. The Turei Zahav 17:9 and the Beit Shmuel 17:33, however, make the above distinction. that an individual died, he may not testify [to that effect], nor do we rely on their statements.
הלכה ט
שָׁמַע מִן הַתִּינוֹקוֹת שֶׁהֵן אוֹמְרִין עַכְשָׁו בָּאנוּ מֵהֶסְפֵּד פְּלוֹנִי כָּךְ וְכָךְ סַפְדָּנִין הָיוּ שָׁם וּפְלוֹנִי הֶחָכָם וּפְלוֹנִי עָלָה אַחַר מִטָּתוֹ כָּךְ וְכָךְ עָשׂוּ בְּמִטָּתוֹ הֲרֵי זֶה מֵעִיד מִפִּיהֶן עַל פִּי הַדְּבָרִים הָאֵלּוּ וְכַיּוֹצֵא בָּהֶן וּמַשִּׂיאִין אֶת אִשְׁתּוֹ:
כסף משנה
9.
[There is an exception to the above principle.] If a person heard children saying: "We just came from so and so's funeral. These and these many people recited eulogies. The sage so and so and these and these others followed the bier. And this and this is what happened to the bier,"17Yevamot 121b explains that all these details are necessary, because it is possible that the children are play-acting and buried an insect that they called by the person's name. If, however, their statements reflect sufficient details to indicate that the funeral actually took place, they may serve as the basis for license to be granted a woman to remarry. the person may offer this as testimony [regarding a man's death], and on this basis permission is granted for [the deceased's] wife to remarry.הלכה י
יִשְׂרָאֵל שֶׁאָמַר הָרַגְתִּי אֶת פְּלוֹנִי הֲרֵי זוֹ תִּנָּשֵׂא עַל פִּיו שֶׁאֵין אָדָם מֵשִׂים עַצְמוֹ רָשָׁע וַהֲרֵי הֵעִיד שֶׁמֵּת:
כסף משנה
10.
When a Jew says, "I killed so and so," [the man's wife] is allowed to remarry on the basis of his testimony. [The rationale is] a person's own testimony cannot be used to incriminate him. [Therefore, he is not disqualified, and] he did testify that [the husband] died.18This is one of the classic examples of the principle palginin diburo, "we divide his statement." I.e., we accept his word with regard to the fact that so and so died. We discard the portion of his statement in which he said that he himself killed him.If we accepted that aspect of the statement as well, he would no longer be acceptable as a witness. For his deed would cause him to be disqualified on the basis of Scriptural law. (See also Hilchot Edut 12:2.)
הלכה יא
כְּבָר אָמַרְנוּ שֶׁהָעַכּוּ״ם שֶׁהֵסִיחַ לְפִי תֻּמּוֹ מַשִּׂיאִין עַל פִּיו. כֵּיצַד. הָיָה עַכּוּ״ם מֵסִיחַ וְאָמַר אוֹי לִפְלוֹנִי שֶׁמֵּת כַּמָּה הָיָה נָאֶה וְכַמָּה טוֹבָה עָשָׂה עִמִּי. אוֹ שֶׁהָיָה מֵסִיחַ וְאוֹמֵר כְּשֶׁהָיִיתִי בָּא בַּדֶּרֶךְ נָפַל פְּלוֹנִי שֶׁהָיָה מְהַלֵּךְ עִמָּנוּ וָמֵת וּתְמֵהַנִי לְדָבָר זֶה כֵּיצַד מֵת פִּתְאֹם וְכַיּוֹצֵא בִּדְבָרִים הָאֵלּוּ שֶׁהֵן מַרְאִין שֶׁאֵין כַּוָּנָתוֹ לְהָעִיד הֲרֵי זֶה נֶאֱמָן:
כסף משנה
11.
It has already been stated19Chapter 12, Halachah 16. that statements made by a gentile in the course of conversation can be used as a basis to grant [a woman] permission to remarry.What is implied? If a gentile exclaimed: "How terrible is it that so and so died! He was so nice! He did so much for me!" Or if the gentile was talking and said, "We were traveling on our way, and to our amazement, so and so who was traveling with us fell down and died. We all were amazed that he died so suddenly." If he makes statements of this nature that indicate that he has no intention of giving testimony,20If the gentile is making these statements with the intent that attention be paid to them, there is reason to suspect that perhaps he intends to create legal problems for a Jewish person. If, however, he makes statements casually, in the course of conversation, we do not suspect that a gentile will desire to cause problems for a Jew (Beit Shmuel 17:38).
As reflected in the halachot that follow, we do fear that a gentile may lie, if doing so will enhance his position, and we fear that he will rush to the conclusion that a man died when he is in fact alive. his word is accepted.
הלכה יב
יִשְׂרָאֵל שֶׁשָּׁמַע מֵעַכּוּ״ם הַמֵּסִיחַ לְפִי תֻּמּוֹ מֵעִיד שֶׁשָּׁמַע מִמֶּנּוּ וְתִנָּשֵׂא עַל פִּיו. בַּמֶּה דְּבָרִים אֲמוּרִים שֶׁלֹּא הָיְתָה שָׁם אֲמַתְלָא. אֲבָל אִם הָיְתָה שָׁם אֲמַתְלָא בְּשִׂיחַת הָעַכּוּ״ם שֶׁמָּא לֹא יִתְכַּוִּן אֶלָּא לְדָבָר אַחֵר. כְּמוֹ שֶׁאָמַר לְאֶחָד עֲשֵׂה לִי כָּךְ וְכָךְ שֶׁלֹּא אֶהֱרֹג אוֹתְךָ כְּדֶרֶךְ שֶׁהָרַגְתִּי פְּלוֹנִי. אֵין זֶה מֵסִיחַ לְפִי תֻּמּוֹ שֶׁכַּוָּנָתוֹ לְהַטִּיל אֵימָה עַל זֶה:
כסף משנה
12.
When a Jew hears a gentile [say] in the course of conversation [that a man died], he may testify that he heard these statements, and the man's wife may be granted permission to remarry on this basis.When does the above apply? When there is no rationale to explain [why the gentile would make these statements if they were not true]. If, however, there could be a reason for the gentile's statements, and he is making them with another intent in mind [his word is not accepted].
For example, [a gentile] told a Jew, "Do such and such for me, or else I will kill you, as I killed so and so,"21If, however, a gentile says: "I killed so and so," without any apparent intent to cast fear upon his listeners, the deceased's wife is allowed to remarry (Shulchan Aruch, Even HaEzer 17:7). he is not making these statements in the course of conversation, for his intent is to cast fear upon his listener.
הלכה יג
וְכֵן אִם שָׁמַע מֵעֶרְכָּאוֹת שֶׁל עַכּוּ״ם שֶׁאָמְרוּ הָרַגְנוּ פְּלוֹנִי אֵינָם נֶאֱמָנִין. שֶׁהֵן מַחֲזִיקִין יְדֵי עַצְמָן בְּכָזָב כְּדֵי לְהַטִּיל אֵימָה. וְכֵן כָּל כַּיּוֹצֵא בִּדְבָרִים אֵלּוּ:
כסף משנה
13.
Similarly, if a person heard the gentile legal authorities say, "We executed so and so," their word is not accepted.22If, however, other gentiles relate in the course of conversation that a Jew was killed by gentile legal authorities, their word is accepted (Ramah, Even HaEzer 17:14). As indicated by the Ramah, there is a difference of opinion whether it is acceptable if gentile legal authorities report that a person was executed, but do not say that they performed the execution.If gentile government authorities report that a person has died or been killed (but not executed by a court of law), their statements are accepted by many halachic authorities. A distinction should be made between the government authorities in democratic countries where freedom of speech prevails, and totalitarian governments that act arbitrarily without consideration of the populace. For they will use falsehood to reinforce their position and to cast fear [among the populace]. The same applies in all similar instances.
הלכה יד
עַכּוּ״ם שֶׁהֵסִיחַ לְפִי תֻּמּוֹ תְּחִלָּה אַף עַל פִּי שֶׁשָּׁאֲלוּ אוֹתוֹ אַחַר כָּךְ וּבְדָקוּהוּ עַד שֶׁיְּפָרֵשׁ כָּל הַמְאֹרָע הֲרֵי זֶה נֶאֱמָן וּמַשִּׂיאִין עַל פִּיו:
כסף משנה
14.
When, at first, a gentile made statements in the course of conversation,23The Chelkat Mechokek 17:29 states that this law applies even in instances where the gentile's original statements were not sufficient to serve as a basis for remarriage. and afterwards was asked questions [by Jews] until all the details [of the person's death] were disclosed,24If, however, the gentile was asked direct questions first, and then in the course of conversation said that a man died, his word is not accepted (Ramah, Even HaEzer 17:15). his statements are accepted, and the woman is granted permission to remarry on this basis.הלכה טו
כְּבָר הוֹדַעְנוּ שֶׁהָעֵד שֶׁאָמַר שָׁמַעְתִּי שֶׁמֵּת פְּלוֹנִי אֲפִלּוּ שָׁמַע מֵאִשָּׁה שֶׁשָּׁמְעָה מֵעֶבֶד הֲרֵי זֶה כָּשֵׁר לְעֵדוּת אִשָּׁה וּמַשִּׂיאִין עַל פִּיו. אֲבָל אִם אָמַר הָעֵד אוֹ הָאִשָּׁה אוֹ הָעֶבֶד מֵת פְּלוֹנִי וַאֲנִי רְאִיתִיו שֶׁמֵּת. שׁוֹאֲלִין אוֹתוֹ הֵיאַךְ רָאִיתָ וּבְמַה יָּדַעְתָּ שֶׁמֵּת. אִם הֵעִיד בְּדָבָר בָּרוּר נֶאֱמָן וְאִם הֵעִיד בִּדְבָרִים שֶׁרֻבָּן לְמִיתָה אֵין מַשִּׂיאִין אֶת אִשְׁתּוֹ שֶׁאֵין מְעִידִין עַל הָאָדָם שֶׁמֵּת אֶלָּא כְּשֶׁרָאוּהוּ שֶׁמֵּת וַדַּאי וְאֵין בּוֹ סָפֵק:
כסף משנה
15.
It has already been stated25Chapter 12, Halachah 15. that a witness who testifies: "I heard that so and so died,"26I.e., as reflected by the second half of the halachah, this applies if the witness does not know any details of the person's death at all. Since we do not know any details of the situation, we assume that his statements are true. When, however, the situation can be investigated, the court is obligated to do so.This is the subject of the remainder of the chapter and also the concern of many of the responsa issued by our Sages concerning this issue throughout the generations. For quite often, the evidence of a man's death and the identification of his corpse were only partial, and the Rabbis had to clarify whether the testimony was sufficient to serve as grounds for his wife to remarry. is acceptable with regard to testimony [concerning] a woman's [husband], and the woman may remarry on this basis. [This applies even when] he heard the statements from a woman or from a servant.
If, however, a witness, a woman or a servant says: "So and so died; I saw that he died," the witness should be asked:27As stated in Halachah 28, the formal process with which witnesses are questioned is not employed with regard to testimony of this nature. Nevertheless, enquiry should be made lest the witness had erred and made his statements on the basis of likelihood and not actual fact. "What did you see? How do you know that he died? " If the witness responds with clear [testimony], his word is accepted. If the witness replies, describing a situation in which it is highly likely that the person would have died, we do not grant his wife license to remarry. For testimony concerning a man's death [can be accepted] only when [the witness can say] with certainty that he saw the man die, and there is no doubt concerning the matter.
הלכה טז
כֵּיצַד. רָאוּהוּ שֶׁנָּפַל לַיָּם אֲפִלּוּ טָבַע בַּיָּם הַגָּדוֹל אֵין מְעִידִין עָלָיו שֶׁמֵּת שֶׁמָּא יָצָא בְּמָקוֹם אַחֵר. וְאִם נָפַל לְמַיִם מְקֻבָּצִים כְּגוֹן בּוֹר אוֹ מְעָרָה שֶׁעוֹמֵד וְרוֹאֶה כָּל סְבִיבָיו וְשָׁהָה כְּדֵי שֶׁתֵּצֵא נַפְשׁוֹ וְלֹא עָלָה מְעִידִין עָלָיו שֶׁמֵּת וּמַשִּׂיאִין אֶת אִשְׁתּוֹ. וְכֵן אִם הִשְׁלִיכוּהוּ בַּיָּם וְהִשְׁלִיכוּ מְצוּדָה אַחֲרָיו וְהֶעֱלוּ מִמֶּנּוּ אֵיבָר שֶׁאִי אֶפְשָׁר שֶׁיִּנָּטֵל מִן הַחַי וְיִחְיֶה הֲרֵי זֶה מְעִידִין עָלָיו שֶׁמֵּת וּמַשִּׂיאִין אֶת אִשְׁתּוֹ:
כסף משנה
16.
What is implied? If a man was seen falling into the sea, even if he fell into the ocean, testimony should not be offered that the man died, because it is possible that he was cast away or escaped [from the sea] from an [unseen] place.28The commentaries explain that according to Scriptural law, the man is considered to be dead. Nevertheless, our Sages enforced stringencies and forbade a woman from remarrying in such an instance. (See Halachah 20.)If he fell into a body of water with definite boundaries - e.g., a cistern or a cavern in which a person standing [at the edge] could see the entire periphery - testimony that the man died may be offered, and license may be granted for his wife to remarry, provided [the witnesses] remained there for a period of time beyond which it was impossible for the man to live,29The Pitchei Teshuvah 17:134 quotes many classical commentaries that maintain (based on Yevamot 121a) that this duration of time is considered to be three hours. Nevertheless, the later commentaries are more lenient and consider a far shorter period to be sufficient. and saw that he did not ascend [from the body of water].
Similarly, if he was cast into the sea and a net was cast in after him, and a limb that a person would not be able to live without was raised up,30The Maggid Mishneh quotes the Rashba as stating that this applies only when the man was tied to a rope or chain when cast into the water, and then a limb was lifted out, or if the limb was lifted up in a net afterwards, and it could definitely be identified as the man's. When quoting this law, the Shulchan Aruch (Even HaEzer 17:32) incorporates these concepts. testimony may be offered that he died, and his wife may [be granted license] to remarry.31In this instance as well, the Maggid Mishneh quotes the Rashba as stating that even when our Sages stated that a person could not live without a particular limb, they did not intend that he would necessarily die immediately, and it is possible that the person could live for twelve months. Therefore, even when such a limb is discovered, the woman is required to wait twelve months before remarrying. The Shulchan Aruch (ibid.) incorporates these concepts into its restatement of the law.
הלכה יז
רָאוּהוּ שֶׁנָּפַל לְגֹב אֲרָיוֹת וּנְמֵרִים וְכַיּוֹצֵא בָּהֶן אֵין מְעִידִין עָלָיו. אֶפְשָׁר שֶׁלֹּא יֹאכְלוּהוּ. נָפַל לַחֲפִירַת נְחָשִׁים וְעַקְרַבִּים אוֹ לְתוֹךְ כִּבְשַׁן הָאֵשׁ אוֹ לְתוֹךְ יוֹרָה רוֹתַחַת מְלֵאָה יַיִן אוֹ שֶׁמֶן אוֹ שֶׁשָּׁחֲטוּ בּוֹ שְׁנֵי סִימָנִין אוֹ רֻבָּן אֲפִלּוּ עָמַד וּבָרַח מְעִידִין עָלָיו שֶׁמֵּת. שֶׁוַּדַּאי סוֹפוֹ לָמוּת. וְכֵן כָּל כַּיּוֹצֵא בָּזֶה מִדְּבָרִים שֶׁאִי אֶפְשָׁר שֶׁיִּחְיֶה אֶלָּא יָמוּת מִיָּד בִּזְמַן קָרוֹב הֲרֵי אֵלּוּ מְעִידִין עָלָיו:
כסף משנה
17.
If [a man] fell into a lair of lions, leopards or the like, testimony that he died may not be offered,32In this instance, however, the Rambam states that the likelihood that the man died is so great that his heirs may take possession of his inheritance (Hilchot Nachalot 7:3). for it is possible that they will not eat him. If he fell into a pit of snakes and scorpions,33Based on Yevamot 121a, the Kessef Mishneh explains the difference between a lion's lair and a pit of snakes as follows: A lion's lair is usually wide, and so the person will not necessarily provoke the lions. A pit of snakes is small, and the man will step on the snakes, and this will provoke them. Tosafot adds that we do not say that perhaps a miracle occurred to him as occurred to Daniel. into a furnace,34The Maggid Mishneh quotes the Rashba as stating that this applies only when the furnace is so deep that he cannot emerge from it. This qualification is quoted by the later authorities (Chelkat Mechokek 17:57; Beit Shmuel 17:92). or into a boiling caldron filled with wine or oil,35The Maggid Mishneh quotes the Rashba as stating that the same laws apply with regard to a caldron of water. When quoting this law, the Shulchan Aruch (Even HaEzer 17:30) incorporates these concepts. or his esophagus and windpipe were slit - either in their majority36For once the majority of these organs are slit, we can be certain that the person will die. or in their entirety - testimony may be offered that he died, even if he arose and fled. For [in these situations], he ultimately will die.Similar laws apply in all situations in which it is impossible that the person will live, but rather will die shortly afterwards. Testimony may be offered that he [died].
הלכה יח
רָאוּהוּ צָלוּב וְהָעוֹף אוֹכֵל בּוֹ אַף עַל פִּי שֶׁדְּקָרוּהוּ אוֹ יָרוּ בּוֹ חִצִּים אֵינוֹ מֵעִיד עָלָיו שֶׁמֵּת. וְאִם רָאוּ הָעוֹף אוֹכֵל בְּמָקוֹם שֶׁהַנֶּפֶשׁ יוֹצְאָה בִּנְטִילָתוֹ כְּגוֹן מֹחוֹ אוֹ לִבּוֹ אוֹ בְּנֵי מֵעָיו הֲרֵי זֶה מֵעִיד עָלָיו שֶׁמֵּת:
כסף משנה
18.
If we see a man hanging37The Hebrew word צלוב is translated both as crucified (the method of execution often used by the Romans in the Talmudic period) and as hung. We have chosen the latter term to emphasize the rulings of the later halachic authorities. The Bayit Chadash (Even HaEzer 17) rules that if a person is seen hanging, testimony concerning his death may be offered. The Chelkat Mechokek 17:58 and the Beit Shmuel 17:94 dispute this and cite instances in which a person who had been hanged was subsequently rescued. and a vulture eating from his body, testimony may not be offered that he died. [This applies] even if he was stabbed with a lance, or arrows were shot at him.38If, however, he was stabbed or shot in a place that would kill him, testimony that he died may be offered (Beit Yosef, Even HaEzer 17; Beit Shmuel 17:94).If, however, we see the vulture eating from a place that would cause him to die - e.g., his brain, his heart or his intestines, one may offer testimony that he died.
הלכה יט
עֵד אֶחָד אוֹמֵר רְאִיתִיו שֶׁמֵּת בַּמִּלְחָמָה אוֹ בְּמַפּלֶת אוֹ שֶׁטָּבַע בַּיָּם הַגָּדוֹל וָמֵת וְכַיּוֹצֵא בִּדְבָרִים אֵלּוּ שֶׁרֻבָּן לְמִיתָה אִם אָמַר קְבַרְתִּיו נֶאֱמָן וְתִנָּשֵׂא עַל פִּיו. וְאִם לֹא אָמַר קְבַרְתִּיו לֹא תִּנָּשֵׂא. וְאִם נִשֵּׂאת לֹא תֵּצֵא:
כסף משנה
19.
[The following laws apply when] one witness testifies, "I saw that he died in a war or in a landslide, or that he drowned in the ocean39The Maggid Mishneh explains that this refers to an instance where the person remained there and watched for an amount of time sufficient for a person to die without seeing the person emerge from the water. This is substantiated by the later authorities (Chelkat Mechokek 17:61). If the witness does not observe the sea, watching for the person to emerge for that length of time, more stringent rules apply. and died," or mentioned other causes that would probably lead to death. If he says, "I buried him," his statements are accepted,40By saying he buried the deceased, the witness erases any questions of doubt that might exist regarding whether or not the person actually died. Alternatively, because he buried him, he will have seen his features closely and will not mistakenly identify him.As stated in Halachah 3, the testimony of a woman who says that her husband died at war is not accepted, even if she says that she buried him. The commentaries, however, differentiate between the two instances, explaining that since the woman's husband is involved, she will be more emotionally upset and less objective. Hence, it is more likely that she would mistake the deceased's identity.
Alternatively, she desires to remarry, and thus she will stretch the truth slightly to be granted that license, while an outsider will not take such liberties.
With regard to the concept of burial in relation to a person who drowned, there are three opinions mentioned by the Rabbis:
a) The Kessef Mishneh states that if the witness sees that the person did not emerge after waiting the length of time in which one would ordinarily drown, he did not have to bury the deceased in order to testify. (Kin'at Eliyahu notes that this interpretation makes the following halachah appear slightly redundant.)
b) The Chelkat Mechokek 17:62 states that the intent was that we saw the corpse after it was taken out from the water.
c) The Noda BiY'hudah (Volume I, Even HaEzer, Responsum 28) states that the intent is that the drowned man was actually buried. For there are times when a person is taken out of the sea and presumed dead, and then is revived afterwards. and she may be granted permission to remarry. If he did not say, "I buried him," she should not be granted permission to remarry. If, however, she remarries, she need not leave [her second husband].41Yevamot 115a states that the question in this instance is whether the testimony of one witness is accepted, because the matter will surely be revealed in the near future - in which case the woman would be permitted to remarry - or because we rely on the fact that the woman will carefully investigate the matter before she remarries, and in this instance, since it is highly likely that her husband died, she will rely on the likelihood and not make a thorough investigation. Therefore, she should not be granted permission to remarry. Since the question is left unresolved, the ruling given by the Rambam applies.
In the responsum quoted by the Kessef Mishneh, Rabbi Eliyahu Mizrachi explains that - as reflected by the concluding halachah of this chapter - the Rambam maintains that the testimony of one witness is accepted, because the matter will surely be revealed in the near future. Nevertheless, he still maintains that, at the outset, the woman should not be granted permission to remarry, because in these situations it is possible for a person to think that a man has died, even though he is actually alive.
הלכה כ
וְכֵן הָאִשָּׁה שֶׁהֵעִיד לָהּ עֵד אֶחָד שֶׁטָּבַע בַּעְלָהּ בַּיָּם אוֹ בְּמַיִם שֶׁאֵין לָהֶם סוֹף וְלֹא עָלָה וְאָבַד זִכְרוֹ וְנִשְׁתַּכַּח שְׁמוֹ הֲרֵי זוֹ לֹא תִּנָּשֵׂא עַל עֵדוּת זוֹ כְּמוֹ שֶׁבֵּאַרְנוּ. וְאִם נִשֵּׂאת לֹא תֵּצֵא. וַאֲפִלּוּ הָיָה הָעַכּוּ״ם שֶׁהֵסִיחַ לְפִי תֻּמּוֹ וְאָמַר טָבַע פְּלוֹנִי בַּיָּם וְנִשֵּׂאת עַל פִּיו הֲרֵי זוֹ לֹא תֵּצֵא. וְחָכָם שֶׁהוֹרָה לְהַשִּׂיאָהּ לְכַתְּחִלָּה מְנַדִּין אוֹתוֹ:
כסף משנה
20.
Similarly, if one witness42The Maggid Mishneh emphasizes that the same ruling is given even if two or more witnesses offer the same testimony. As long as a body of water does not have a defined periphery, these laws apply. testifies that a woman's husband drowned in the sea or in a body of water that does not have a defined periphery, he did not emerge [from the water], all traces of him have disappeared,43This also reinforces the presumption that he died, for if he had remained alive, most likely he would have returned home or divulged his identity in another manner. and his existence has been forgotten, the woman should not [be granted license to] remarry on this basis, as we have explained.44Halachah 16. Note also the Rambam's comments in Hilchot Nachalot 7:3:When a man drowned in water that does not have a defined periphery, witnesses [testify] that they saw him drown, and all traces of him have disappeared, his heirs may take possession of his estate, despite the fact that a priori, his wife is not granted permission to remarry.
The reason stringency was taken in these matters is [the severity of] a prohibition punishable by karet. But with regard to financial matters, if witnesses testify concerning an instance in which we can assume that the man died..., all traces of him have disappeared, and we have heard that he died, the heirs may take possession of his estate.
If, however, she remarries,45The Ramah (Even HaEzer 17:34) states that this applies only when the woman remarried after receiving license from a Rabbinic authority. If she remarried on her own initiative without consulting an authority, she should be forced to leave her second husband. she need not be forced to leave her second husband. Even if a gentile said in the course of conversation, "So and so drowned at sea," and on this basis [the man's wife] remarried, she need not be forced to leave her second husband. Nevertheless, [in the above instances,] the sage who gave permission for her to remarry should be placed under a ban of ostracism.46This applies only when the sage issued this ruling knowingly. If, however, he issued the ruling in error, he is not censured in this manner (Chelkat Mechokek 17:64, based on Yevamot 121a).
הלכה כא
מְצָאוּהוּ הָרוּג אוֹ מֵת. אִם פַּדַּחְתּוֹ וְחָטְמוֹ וּפַרְצוּף פָּנָיו קַיָּמִין וְהִכִּירוּהוּ בָּהֶן שֶׁהוּא פְּלוֹנִי מְעִידִין עָלָיו. וְאִם נִטַּל אֶחָד מֵאֵלּוּ אַף עַל פִּי שֶׁיֵּשׁ לָהֶם סִימָנִין בְּגוּפוֹ וּבְכֵלָיו וַאֲפִלּוּ שׁוּמָא אֵין מְעִידִין עָלָיו שֶׁמָּא אַחֵר הוּא. בַּמֶּה דְּבָרִים אֲמוּרִים בְּשֶׁרָאוּהוּ בְּתוֹךְ שְׁלֹשָׁה יָמִים אַחַר הֲרִיגָתוֹ אוֹ אַחַר מִיתָתוֹ. אֲבָל אַחַר שְׁלֹשָׁה אֵין מְעִידִין עָלָיו מִפְּנֵי שֶׁפַּרְצוּף פָּנָיו מִשְׁתַּנֶּה:
כסף משנה
21.
[The following rules apply when the body of a man who was] slain or died of natural causes is discovered. If his forehead, his nose and his facial features are intact, and his identity can be established based on them,47Yevamot 120a quotes Isaiah 3:9: "The recognition of their countenance testifies against them," as support for this concept. testimony concerning his death may be offered.If, however, any of these identifying factors is missing, even if there are signs [through which he can be identified]48The Maggid Mishneh and the Kessef Mishneh differentiate among three types of signs: a) simanim g'ru'im, signs that are not definitive, b) simanim muvhakim, signs that are definitive, c) simanim muvhakim b'yoter, signs that are extremely definitive.
Signs that are not definitive are never effective means of identification. Signs that are definitive are effective with regard to the identification of lost objects and other questions of monetary law, as stated in Hilchot Gezelah Va'Avedah 13:3-5. They are not, as stated in this halachah, effective with regard to the laws of marriage and divorce. (See also Hilchot Nachalot 7:3.) Signs that are extremely definitive - e.g., a get has a hole next to a particular letter, as stated in Chapter 3, Halachah 11 - may be relied upon with regard to the laws of marriage and divorce.
Similarly, if there is an extremely definitive sign on a corpse, it may be used as evidence to identify the body. These distinctions are also reflected in the statement of the law in the Shulchan Aruch (Even HaEzer 17:24). on his body and on his personal artifacts,49With regard to personal artifacts, there is a further problem. Even if there are very distinctive signs on these articles, they cannot serve as a means of identification, because it is possible that they were lost or stolen and taken by another man. See Shulchan Aruch (op. cit.). even if one of those signs is a mole,50There are opinions that maintain that if the person can pinpoint exactly the place of the mole, it may be used as a sign of identification (Beit Shmuel 17:71). testimony concerning his death should not be offered.
When does [the leniency mentioned in the first clause] apply? When the corpse was seen within three days of his murder or death. After three days have passed, testimony concerning his death should not be offered, because his facial features [may have] become distorted.51I.e., even if the witnesses think that they can identify the corpse, their testimony cannot be relied on, because the person's facial features may have been distorted.
הלכה כב
טָבַע בַּיָּם וְהִשְׁלִיכוֹ הַיָּם לַיַּבָּשָׁה אֲפִלּוּ אַחַר כַּמָּה יָמִים. אִם הִכִּירוּ פָּנָיו וְחָטְמוֹ מְעִידִין עָלָיו, שֶׁאֵינוֹ מִשְׁתַּנֶּה בַּמַּיִם אֶלָּא לְאַחַר זְמַן מְרֻבֶּה. וְאִם שָׁהָה בַּיַּבָּשָׁה אַחַר שֶׁהֻשְׁלַךְ מִן הַיָּם י״ב שָׁעוֹת וְנִתְפַּח אֵין מְעִידִין עָלָיו שֶׁהֲרֵי נִשְׁתַּנָּה. כְּשֶׁמִּסְתַּכְּלִין בְּצוּרָתוֹ כְּדֵי לְהַכִּירוֹ לְהָעִיד עָלָיו בּוֹדְקִין אוֹתוֹ וְרוֹאִין אוֹתוֹ אֲפִלּוּ בַּלַּיְלָה לְאוֹר הַנֵּר אוֹ לְאוֹר הַלְּבָנָה:
כסף משנה
22.
[The following rules apply when a man] drowned at sea and was cast out onto dry land. Although several days have passed, if his facial features and his nose can be identified,52Yevamot 121a explains that lying in water generally causes the flesh of a corpse to shrink, and the person's features remain distinct. testimony may be offered with regard to his [death], for in water the features of a corpse do not become distorted until an extremely long period of time has passed.53Yevamot, ibid., mentions a corpse being identified after being in the Jordan River for 17 days.If the corpse lay on dry land for twelve hours54Once a corpse that has been lying in the water is brought to dry land, its features will begin to lose their distinctive qualities rapidly.
There are several different versions of this halachah. We have chosen to follow the standard printed text in our translation. The Kessef Mishneh states that the proper version should be "if the corpse lies on dry land for hours" - i.e., it need not be identified immediately, but it cannot wait any significant period. The Shulchan Aruch (Even HaEzer 17:26) states that the body must be identified immediately after it emerges onto dry land. The Beit Shmuel 17:80, however, mentions that an interval of an hour is granted. after being cast out of the sea and the corpse became bloated,55The Maggid Mishneh notes that the Rambam's statement of this law is conditional, "If the... corpse became bloated," implying that if we see that the corpse has not become bloated, we may identify it. The Rashba, by contrast, states we suspect that the facial features of a corpse will become distorted after a brief amount of time, and does not allow room for leniency.
Even according to this conception, leniency has been granted by the later authorities when a corpse was removed frozen from a river, and it took several hours to thaw. testimony may not be offered because [his features] have been distorted.56In restating this law, there are several points mentioned by the Shulchan Aruch (ibid.): a) the corpse may not have a wound. If the body was wounded, we fear that its features will be distorted; b) even if it is less than three days after the deceased's passing, if his corpse lay in water for a significant period, it must be identified directly after its discovery.
The Ramah adds that extremely distinctive signs may be used as a means of identification even though the body has lain on dry land for a long period. When we look at the form [of a corpse] in order to identify [a man] to offer testimony with regard to his [death], [it is acceptable if] we look at [the corpse] even by candlelight or by moonlight.57Although these sources of light are not overly bright, our Sages felt that they were sufficient to enable a person to identify a corpse. There is no need to wait until daylight.
הלכה כג
רָאוּ אֶחָד עוֹמֵד מֵרָחוֹק וְאוֹמֵר שֶׁהוּא פְּלוֹנִי בֶּן פְּלוֹנִי אוֹ פְּלוֹנִי מִמָּקוֹם פְּלוֹנִי וַהֲרֵי נְשָׁכוֹ נָחָשׁ וַהֲרֵי הוּא מֵת וְהָלְכוּ וּמְצָאוּהוּ שֶׁנִּשְׁתַּנָּה וְלֹא הִכִּירוּהוּ הֲרֵי אֵלּוּ מַשִּׂיאִין אֶת אִשְׁתּוֹ:
כסף משנה
23.
[The following rule applies when] we see a person at a distance and he says that he is so and so, the son of so and so, or so and so from a particular place,58The Tur (Even HaEzer 17) states that the person must mention both these factors: his father's name and his city. The Beit Shmuel 17:66 states that, although in general one of these means of identification would have been sufficient, both are necessary because the person's facial features have changed. The Chelkat Mechokek 17:40, however, states that when it is obvious that the person knows the place from which the person came, the ruling of the Rambam and the Shulchan Aruch (Even HaEzer 17:23) may be followed, and only one factor need be mentioned. This is also borne out by the following halachah and its source in Yevamot 115b. and that he has been bitten by a snake and is dying. Even if we go [to the place where he was standing], find [the corpse and discover] that its features have changed to the extent that it is no longer distinguishable, we may, nevertheless, [grant license for] his wife [to] remarry.59I.e., we do not assume that the person was lying, but instead suppose that the poison caused his features to change (Meiri).Yevamot 122a, the source for this halachah, mentions that perhaps the statements were made by a demon. The Rambam, however, does not mention this possibility, in keeping with his conception (see The Guide for the Perplexed, Vol. III, Chapter 46), that demons are not a relevant halachic phenomenon.
הלכה כד
בָּא אֶחָד וְאָמַר אָמְרוּ לִי בֵּית דִּין אוֹ אֲנָשִׁים כְּשֶׁתֵּלֵךְ לְמָקוֹם פְּלוֹנִי אֱמֹר לָהֶם שֶׁמֵּת יִצְחָק בֶּן מִיכָאֵל. וּבָא הַשָּׁלִיחַ וְאָמַר לָנוּ. וְהַשָּׁלִיחַ אֵינוֹ יוֹדֵעַ מִי הוּא זֶה. הוֹאִיל וְאָנוּ יוֹדְעִים פְּלוֹנִי הַיָּדוּעַ בְּשֵׁם זֶה הֲרֵי אִשְׁתּוֹ מֻתֶּרֶת וְאֵין אוֹמְרִין שֶׁמָּא יִצְחָק בֶּן מִיכָאֵל אַחֵר הוּא שֶׁמֵּת:
כסף משנה
24.
[A person's testimony is effective in the following instance.] A person came and said: "A court - or people - told me, when you arrive at this and this place,60I.e., he was informing the Rabbinical court of that city that one of the Jewish inhabitants had died (Kessef Mishneh). tell them that Yitzchak, the son of Michael, died." When this person came to that place and delivered the message - although he is not aware of the identity [of the deceased] - since [the people at that place] do know his identity, [the deceased's] wife [may be granted] permission [to remarry]. We do not presume that perhaps it was another person named Yitzchak, the son of Michael, who died.61The Ra'avad and the Maggid Mishneh mention that this principle applies only when we do not know of another person in the city with that name, or we know that this other person is still alive. The Shulchan Aruch (Even HaEzer 17:18) incorporates these additions into its statement of this law.הלכה כה
יָצָא עַכּוּ״ם וְיִשְׂרָאֵל מֵעִמָּנוּ לְמָקוֹם אַחֵר. וּבָא הָעַכּוּ״ם וְהֵסִיחַ לְפִי תֻּמּוֹ וְאָמַר אִישׁ שֶׁיָּצָא עִמִּי מִכָּאן מֵת. מַשִּׂיאִין אֶת אִשְׁתּוֹ וְאַף עַל פִּי שֶׁאֵין הָעַכּוּ״ם יוֹדֵעַ אוֹתוֹ הָאִישׁ. וְהוּא שֶׁיֹּאמַר קְבַרְתִּיו:
כסף משנה
25.
When a Jew and a gentile left from our [location] for a different destination, and the gentile came and said in the course of conversation: "The man who left [this city] with me died," [the deceased's] wife [may be granted license to] remarry. [This applies] even when the gentile does not know the identity of the man, provided he says: "I buried him."62The Maggid Mishneh explains that the Rambam's ruling is that when a gentile knows the name of a Jew, it is unnecessary for him to say that he buried him, when relating that he died. If, however, the gentile did not know the identity of the Jew, it is necessary for him to say that he buried him.The Tur (Even HaEzer 17) and other authorities do not agree with the Rambam with regard to this point and maintain that the gentile's statements are accepted even when he does not say that he buried the Jew. The Shulchan Aruch (Even HaEzer 17:17) mentions both opinions, but appears to favor the latter view.
הלכה כו
וְכֵן אִם יָצְאוּ עֲשָׂרָה בְּנֵי אָדָם כְּאֶחָד מִמָּקוֹם לְמָקוֹם וְהֵן אֲסוּרִין בְּקוֹלָר אוֹ נוֹשְׂאִים גְּמַלִּים וְכַיּוֹצֵא בִּדְבָרִים אֵלּוּ. וְהֵסִיחַ הָעַכּוּ״ם לְפִי תֻּמּוֹ וְאָמַר שֶׁעֲשָׂרָה אֲנָשִׁים שֶׁהָלְכוּ מִמָּקוֹם פְּלוֹנִי לְמָקוֹם פְּלוֹנִי וְהֵם נוֹשְׂאִים כָּךְ וְכָךְ מֵתוּ כֻּלָּם וּקְבַרְנוּם מַשִּׂיאִין אֶת נְשׁוֹתֵיהֶן:
כסף משנה
26.
Similarly, when ten men were taken together while shackled in chains or tied by heavy ropes used to lead camels63Our translation is based on the gloss of Rav Kapach, who cites a similar interpretation mentioned by the Razeh. or the like,64From the Rambam's words, it appears that the men must be tied together. Otherwise, we suspect that one of them left and was replaced by another. In his commentary on the source for this law (Yevamot 122a), Rashi does not share this conception and maintains that the number of men itself is sufficient to serve as identification. from one place to another,65The Noda BiY'hudah (Even HaEzer, Volume I, Responsum 36) notes that the Rambam requires that a) a specific number of men were mentioned, b) that their starting point and destination were mentioned, and c) that they were chained together.The Noda BiY'hudah questions these requirements, because the standard text of Yevamot 122a (the Rambam's source) mentions two stories: one of men traveling in chains and one of sixty men traveling to Betar. The Rambam appears to have fused the two stories together, adopting the requirements mentioned by both and thus being more stringent than his source.
The Noda BiY'hudah reconciles this difficulty by referring to the statement of these incidents in Rabbenu Yitzchak Alfasi's Halachot, which follows a different version from our text of Yevamot. Rabbenu Yitzchak Alfasi mentions "two men traveling in chains to Antioch." Since the Rambam was a student of one of the disciples of Rabbenu Yitzchak Alfasi, it is likely that the Rambam also had the same version of this passage. and a gentile came and said in the course of conversation that all ten men who went out while tied died, and he buried them,66Here too, the Rambam is referring to an instance in which the gentile did not know the identity of the people who died. (See the notes on the previous halachah.) their wives [may be granted license to] remarry.
הלכה כז
יִשְׂרָאֵל שֶׁאָמַר מֵת אִישׁ יְהוּדִי עִמָּנוּ בְּמָקוֹם פְּלוֹנִי כָּךְ וְכָךְ צוּרָתוֹ וְכָךְ הָיוּ סִימָנָיו. אֵין אוֹמְרִים בְּאֹמֶד הַדַּעַת פְּלוֹנִי הוּא עַד שֶׁיָּעִיד הָעֵד שֶׁהוּא פְּלוֹנִי וְיַזְכִּיר שְׁמוֹ וְשֵׁם עִירוֹ. אֲבָל אִם אָמַר אֶחָד יָצָא עִמָּנוּ מֵעִיר פְּלוֹנִית וּמֵת. מְחַפְּשִׂין בְּאוֹתָהּ הָעִיר אִם לֹא יָצָא מִשָּׁם אֶלָּא הוּא תִּנָּשֵׂא אִשְׁתּוֹ:
כסף משנה
27.
If a Jew says: "A Jewish man died in our company in this and this place. These and these were his facial features. These and these were signs of identification," we do not make a guess and say that it was probably so and so.67This applies even if the person is missing, and there are no traces of him left. Rather [the person is not considered to have died] until a witness mentions his name and the name of his city.68According to the Rambam and the Shulchan Aruch, alternatively, a person's name and his father's name.If, however, [a person]69Our wording is based on the gloss of the Ramah (Even HaEzer 17:19), who states that this law applies even if the report is given by a gentile in the course of conversation. says: "One of the inhabitants70In this instance as well, the name of the deceased is not mentioned. of the city of so and so journeyed out in our company and died," we check in that city. If only one man left the city, his wife [may be given permission to] marry.
הלכה כח
מָצְאוּ כָּתוּב בִּשְׁטָר מֵת אִישׁ פְּלוֹנִי בֶּן פְּלוֹנִי אוֹ נֶהֱרַג פְּלוֹנִי בֶּן פְּלוֹנִי וְנוֹדַע שֶׁזֶּה כָּתַב יִשְׂרָאֵל הֲרֵי זֶה תִּנָּשֵׂא אִשְׁתּוֹ. וְכֵן מִי שֶׁנִּשְׁתַּתֵּק וּבָדְקוּ אוֹתוֹ כְּדֶרֶךְ שֶׁבּוֹדְקִין לְגִטִּין וְנִמְצֵאת דַּעְתּוֹ מְכֻוֶּנֶת וְכָתַב שֶׁמֵּת פְּלוֹנִי בֶּן פְּלוֹנִי סוֹמְכִין עַל כְּתִיבָתוֹ וְתִנָּשֵׂא. וְאֵין בּוֹדְקִין עֵדֵי אִשָּׁה בִּדְרִישָׁה וַחֲקִירָה שֶׁלֹּא אָמְרוּ חֲכָמִים בַּדָּבָר לְהַחֲמִיר אֶלָּא לְהָקֵל מִשּׁוּם הַתָּרַת עֲגוּנָה:
כסף משנה
28.
[The following rule applies if] a document was found saying: "So and so, the son of so and so, died," or "So and so, the son of so and so, was killed": If it can be determined that this was written71The Maggid Mishneh states that the note must also be signed, and we must see that the signature was written by a Jew. The signature need not, however, be verified. (See Shulchan Aruch, Even HaEzer 17:11 and commentaries.) by a Jew,72Regardless of the language in which the note was written, if it was written by a Jew, it is acceptable. If, however, it was written by a gentile, it is not acceptable even if it is written in Hebrew. For a gentile's statements are acceptable only when made in the course of conversation (Maggid Mishneh).In his Bedek HaBayit (Even HaEzer 17), Rav Yosef Karo asks why a statement written by a gentile in the course of conversation is not effective. And in his Shulchan Aruch (loc. cit.), he rules that it is. [the man's] wife [may be given permission to] marry.73This is a leniency accepted in order to allow a woman to remarry. Generally, testimony must be given verbally and not in writing. (See Hilchot Edut 3:4.)
Similarly, when a person has lost the power of speech, and he was tested, as he would be tested with regard to a get,74See Chapter 2, Halachah 16. and it is proven that he is mentally sound, if he writes that so and so died, we may rely on his writing, and [the deceased's] wife [may be given permission to] marry.75See Hilchot Edut 9:11, which explains that such testimony is ordinarily not accepted by a Rabbinic court. An exception is made in this instance in order to allow a woman to remarry.
We do not follow the standard process of interrogation76Which includes questions defining the exact time and place of the event. (See Hilchot Edut 1:4.) with regard to witnesses who testify [concerning the death of] a woman's [husband]. For our Sages did not speak about establishing stringencies regarding such matters. [Indeed, their approach was characterized by] leniency in order to permit a woman without a husband [to remarry].77Moreover, even if slight contradictions arise regarding minor points of the testimony of two witnesses, the testimony is nevertheless accepted (Shulchan Aruch, Even HaEzer 17:21).
In one of his responsa (quoted by the Ramah, op. cit.), the Rambam writes: "Whoever is stringent and interrogates witnesses exactingly is not conducting himself properly, and his approach does not find favor in the eyes of our Sages." The Ramah, however, continues that if testimony appears contrived to the court, they must thoroughly investigate the matter.
הלכה כט
אַל יִקְשֶׁה בְּעֵינֶיךָ שֶׁהִתִּירוּ חֲכָמִים הָעֶרְוָה הַחֲמוּרָה בְּעֵדוּת אִשָּׁה אוֹ עֶבֶד אוֹ שִׁפְחָה אוֹ עַכּוּ״ם הַמֵּסִיחַ לְפִי תֻּמּוֹ וְעֵד מִפִּי עֵד וּמִפִּי הַכְּתָב וּבְלֹא דְּרִישָׁה וַחֲקִירָה כְּמוֹ שֶׁבֵּאַרְנוּ. שֶׁלֹּא הִקְפִּידָה תּוֹרָה עַל הֲעָדַת שְׁנֵי עֵדִים וּשְׁאָר מִשְׁפְּטֵי הָעֵדוּת אֶלָּא בְּדָבָר שֶׁאֵין אַתָּה יָכוֹל לַעֲמֹד עַל בֻּרְיוֹ אֶלָּא מִפִּי הָעֵדִים וּבְעֵדוּתָן כְּגוֹן שֶׁהֵעִידוּ שֶׁזֶּה הָרַג אֶת זֶה אוֹ הִלְוָה אֶת זֶה. אֲבָל דָּבָר שֶׁאֶפְשָׁר לַעֲמֹד עַל בֻּרְיוֹ שֶׁלֹּא מִפִּי הָעֵד הַזֶּה וְאֵין הָעֵד יָכוֹל לְהִשָּׁמֵט אִם אֵין הַדָּבָר אֱמֶת. כְּגוֹן זֶה שֶׁהֵעִיד שֶׁמֵּת פְּלוֹנִי. לֹא הִקְפִּידָה תּוֹרָה עָלָיו. שֶׁדָּבָר רָחוֹק הוּא שֶׁיָּעִיד בּוֹ הָעֵד בְּשֶׁקֶר. לְפִיכָךְ הֵקֵלּוּ חֲכָמִים בְּדָבָר זֶה וְהֶאֱמִינוּ בּוֹ עֵד אֶחָד מִפִּי שִׁפְחָה וּמִן הַכְּתָב וּבְלֹא דְּרִישָׁה וַחֲקִירָה כְּדֵי שֶׁלֹּא תִּשָּׁאַרְנָה בְּנוֹת יִשְׂרָאֵל עֲגוּנוֹת: סְלִיקוּ לְהוּ הִלְכוֹת גֵּרוּשִׁין בְּסִיַּעְתָּא דִּשְׁמַיָּא
כסף משנה
29.
Do not wonder at the fact that our Sages discharged78I.e., these are leniencies that our Sages instituted. The acceptance of the testimony of one witness, by contrast, is a leniency implied by Scriptural law.This follows the interpretation of the Rambam's statements here by the Noda BiY'hudah (Even HaEzer, Volume I, Responsa 27 and 33). There is, however, an apparent contradiction based on the Rambam's statements in Hilchot Edut 5:2. the prohibition [against a married woman], which is considered a very severe matter, on the basis of the testimony of a woman, a servant or a maidservant, statements made by a gentile in the course of conversation, a written statement or [testimony] that was not investigated by the ordinary process of interrogation, as we have explained.
[These leniencies were instituted] because the Torah requires only testimony of two witnesses, and all the other details of the laws of witnesses with regard to matters that cannot be verified definitively except via witnesses and their testimony - e.g., that one person killed another, or that one person lent money to another. When, by contrast, the matter may be verified definitively without the testimony of a witness, and the witness cannot justify [his statements] if they are not true - e.g, when one testifies that a person died,79I.e., if the man presumed dead returns, it will be obvious that the witness lied. the Torah did not necessitate [that the requirements of formal testimony be met in these instances]. For it is unlikely that a witness will testify falsely.80See similar statements in Hilchot Kiddush HaChodesh 3:14 and Hilchot Yibbum VaChalitzah 4:31.
The Ra'avad and others note that our Sages (Yevamot 93b, 115a) mention two rationales why a woman should be permitted to remarry, the one cited by the Rambam and also because of the severe consequences that she will bring upon herself if her husband is found alive (see Chapter 10, Halachah 7), a woman will investigate the matter thoroughly and will not remarry unless she is certain that he has actually died. The Talmud appears to imply that these rationales are contradictory and cites cases in which one would apply, but not the other.
The Noda BiY'hudah (loc. cit.) explains that the Rambam sees the two rationales as complementary. Ordinarily, when a matter can easily be verified - e.g., a question of whether or not chalitzah was performed - the statement of one witness is acceptable without question. In this instance, however, it is not always easy to verify whether in fact the man died, and therefore the rationale that the woman must investigate the matter is necessary. For this reason, in all the instances where the Talmud implies that one rationale would conflict with another, the Rambam reaches a conclusion that takes both rationales into consideration.
For this reason, our Sages [extended] the leniency with regard to this matter and accepted the testimony of a single witness that is based on the testimony of a maidservant, [testimony] from a written document, and [testimony] that was not investigated by the ordinary process of interrogation. [These leniencies were accepted] so that the daughters of Israel will not be forced to remain unmarried.
Blessed be the Merciful One, who grants assistance.