In last week's issue we discussed the Chachamim's leniency in accepting a single witness's testimony regarding the death of a woman's husband. Recall that even though ordinarily two witnesses are required for legal testimonies, the Chachamim accepted a single witness due the concern that the woman could be stuck in wedlock (see Volume 3 Issue 6). The fifteenth perek lists five women who are not believed and suspected of lying in order to ruin her marriage due to the assumed animosity that is felt between them. One of those listed is the tzrah – co-wife.
The Mishnah (15:6) discusses a case where a woman and her husband go overseas, and she returns claiming her husband passed away. The Mishnah explains that while she can remarry, the tzara that stayed behind may not. This is consistent with the above Mishnah that a tzara is not believed regarding the other. Note however that the law is the same even though the wife that provided the testimony can remarry as we are nevertheless concerned that she is willing to ruin her own married to ruin the marriage of the tzarah.
The Mishnah continues with a debate where the tzara was a bat Yisrael and married to a kohen, and whether she may continue to eat terumah. According to R' Tarfun since the wife that returned is not believed with respect to the tzarah's situation, she can continue to eat terumah based on the assumption that her husband is still alive. R' Akiva however disagrees stating – "this is not the way to distance her from a transgression". He maintains that even though is not allowed to remarry, she is also not allowed to continue to eat terumah.
The Lechem Mishnah (Gerushin 2:16) understand that R' Tarfun and R' Akiva (also the Rambam and Raavad) argue about the meaning of the first Mishnah when it rules that these five women are not believed. R' Tarfon understands that their testimony is not accepted at all, the assumption that the husband is alive endures and the wife (tzara in our case) is considered definitely married. According to R' Akiva however, we simply suspect that the woman testifying has ulterior motives and might be lying to undermine the marriage; yet this is not a certainty. Consequently, while the wife cannot remarry, we are still concerned that the husband might not be alive. The Lechem Mishnah provides additional practical difference between these two positions (other than whether she could continue to eat terumah). Firstly, if the wife attempts to remarry, what would be the status of the offspring? According to R' Tarfon since she is still considered definitely married to the first husband, the children will be mamzerim. According to R' Akiva however, since there is a doubt, the children will be considered safek mamzerim. Similarly, according to R' Tarfon since the second relationship would not be considered marriage (since she is still married) that man would be allowed to marry any of her close relatives, while R' Akiva would maintain that the since the second relationship might be considered marriage, he would not be allowed to marry any of her relatives.
The Shav Shmatath (7:4) cites the Mishnah Lemelech and disagrees. He explains that two witnesses are required in matters of ervah (forbidden relationship). Recall that the Chachamim introduced this leniency for the sake of agunot. Once however, they did not trust certain individuals, the woman is still considered definitely married. This point is accepted by everyone.
Why then does R' Akiva maintain that the tzarah cannot continue to eat terumah? The Shav Shamatah provides a number answers. One is that if one wife remarries and the other continues to eat terumah, the outcome is contradictory. One wife is behaving as if the husband is dead while the other as if he alive. Consequently, we do not allow her to continue to eat terumah in order to avoid the overt contradiction. Note that this is despite the fact that even according to R' Akiva that tzara is considered definitely married and if she had a relationship with another man it could be tried as a capital case.
Another answer the Shav Shmatatah provides is that R' Akiva understands that we split between two legal consideration. Matters of ervah require two witnesses, so as we have explained, she is still considered married. Whether she can consume terumah is in the world of issurim which only requires one witness. Consequently, according to R' Akiva, the returning wife is believed for terumah and the tzarah must stop eating terumah. R' Tarfon however understands that the core testimony is one of ervah. Consequently, issurim that are consequences of it require two witnesses.
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