Agunah with a twist of Teshuva

Yevamot (10:1) | Yisrael Bankier | 17 years ago

The tenth perek begins with a case where a woman receives testimony that her husband, who was travelling overseas, died. Based on this testimony, she remarries. Soon after, her original husband returns home alive and well. The Mishnah deals with this unfortunate scenario. The Gemara is particular on the language of the Mishnah and explains that this case refers to where the woman remarries based on a single witness’ testimony.

Ordinarily, in Jewish law, a formal testimony requires two valid witnesses. The Gemara (Yevamot 88a) does mention certain instances where testimony from a single witness is valid, however cases that could potentially permit a forbidden relationship do not appear to qualify. The Gemara however does conclude that “because of agunah (the potential of this woman being bound in wedlock) the Rabbis were lenient”. Due to this leniency, they also instituted stringencies in the event that the original husband does return alive (as listed in the Mishnah). The intention being that the woman will be extra careful before trusting the single witness and relying on the rabbinic leniency.

The commentaries have difficulty with the Gemara’s conclusion. If two witnesses are required for valid testimony, no matter how honourable the intentions, how can the Chachamim allow her to remarry if she is really still considered to be married? Especially in a case dealing with forbidden relationships – an issur karet!

Rashi (Shabbat 145b) and Rashba (Shita Mekubetzet, Ketubot 3a) write that in this instance the Chachamim retroactively dissolve the original marriage. Consequently, when she goes to remarry, she is genuinely a single woman.10

The Ritva poses a number of problems with this suggestion. One difficulty being that the Gemara explains that if both “husbands” die, then both sets of brothers perform chalitzah, yet only the brothers of the original husband are obligated biblically - implying that the original marriage is still intact. The Meiri solves this problem explaining that that dissolution of the original marriage is conditional on the original husband not returning.

The Ritva offers another solution explaining that this is an exceptional circumstance. Firstly the witness is testifying about a matter that, if he is lying, will be revealed in due course. Combine this with the fact that the Chachamim will be ruling very stringently in the advent that the husband does return. Consequently, the wife will be very careful, and inspect the details before remarrying. All these factors combined are enough to be considered like complete testimony even on a biblical level. The Torah gave authority to the Chachamim to determine when a mass of indicators can be given the weight of complete testimony. They simply decided that this is one such circumstance.

Finally the Tosfot (Yevamot 88a, s.v. mitoch) takes a third approach. The single witness is not accepted as testimony on a biblical level, and the marriage (if the husband is still alive) remains intact. Rather, the Tosfot explain that as there appears to be strong reasoning supporting this decision and since the ruling does not uproot a biblical rule, the Chachamim were given the authority to rule in such a manner.11

There is one important point to remember when learning this topic as we approach Rosh Hashanah and Yom Kippur. We have learnt that if the husband returns, since she has technically had a relationship with another man while still being married to her original husband, she is forbidden to return to her original husband. This is despite being misled and misguided be faulty testimony. With this in mind the Gemara in Yoma (86b) writes:

R’ Yochanan says: Great is the power of teshuva as it overrides a negative prohibition in the Torah (repentance) as it is written: (Yirmiyahu 3:1) “If a man [divorces] his wife... and become another man’s, may he return to her again? Will not that land be greatly polluted? But you [Israel] have played the harlot with many lovers; and would you yet return to Me? says Hashem.”

10 Even though it is possible to understand that Rashi there is referring only to a case of testimony based on hearsay (ed m’pi ed), nevertheless the opinion written in the name of the Rashba clearly refers to this case.

11 See also Tosfot, Nazir 43a, s.v. ve’hai.


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