The Mishnah (15:4) teaches that an individual is able to testify on their own that a women’s husband died abroad. The Mishnahteaches that anyone as able to do so excluding five people that may have ulterior motives. Ordinarily any matter that pertains to arayot (forbidden relationships) requires two valid witnesses to affect a change in legal status. We have already once discussed how in this case the Chachamim made it possible to accept this testimony, since the alternative would be that the wife is an a aguna.1 The earlier Mishnah (15:1) however taught that even the wife is able to testify on her own, provided that there were no grounds for suspicion. How do we understand this law?
Ostensibly there are two possible understandings. The first way is that accepting the wife’s testimony falls under the broader rule that we accept single witness testimonies in this case. Even though there is a conflict of interest for her (baal davar) - the result of the ruling impacts on her directly – nonetheless we accept her testimony. This might then have broader implications that in cases of edut isha even a baal davar is believed. Alternatively, we might understand that accepting the wife’s testimony in this case is a different law and independent.
The Chelkat Yoav (Even HaEzer 29) explains that the reason why we believe her is not because we accept single witness testimony. The acceptance of the wife’s testimony was instituted prior to the time of Beit Shamai and Beit Hillel as we learnt this week (15:2). We will learn (16:7) that in the times of Rabban Gamliel, much later, it was instituted that we can accept single witness testimony in such cases.
Indeed the Yerushalmi (15:1) explains that even prior to the ruling that single witness testimony is accepted, a wife would be believed if she said her husband has died. The Yerushalmi explains that a single witness might be suspected of falsely testifying to her detriment whereas the wife is not.2 The difference therefore is that when it comes to a single witness it is an issue of trust (ne’emanut) where as the wife is trusted (at least in the first instance) based on a strong presumption (chazaka).3
The Chelkat Yoav strengthens this assertion that our accepting the wife’s testimony is not because she falls into the broader category of being a single witness. He cites the Re’em and the Radvaz who explain that even if the wife was a robber (gazlan de’oraita) she is still believed even though a robber is not believed in these cases (edut isha). He also cites R’ Akiva Eiger who explains that even if she had been in a prohibited marriage she would nonetheless be believed.
1 Please see Volume 3, Issue 9, “Aguna with a twist of Teshuva” for the different explanations of how the Chachamim were able to allow her to remarry even though two witnesses should be required.
2 The Chelkat Yoav understands that the Yerushalmi implies that after the later decree, she is believed for both reasons, for both takanot. The Chelkat Yoav’s focus there is whether noge’ah ba’davar applies to edut isha. That however is not the focus of this article.
3 As it is explained in the Otzar Iyunim (Yevamot 89), Metivta where the content of this article was gleaned. See there for much more detail.
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