SHIUR #31: Davar She-be'erva

                by Rav Mosheh Lichtenstein

 

The gemara in Kiddushin, at the conclusion of a lengthy  sugya dealing with various halakhic forms of testimony  (eidut), presents a machloket between Abbaye and Rava.  Abbaye  claims that if a single witness notifies a husband that his  wife has been unfaithful, he must accept the report and treat  her according to the halakhot which apply to a sota  (unfaithful wife).  Rava, however, responds that sota is a  davar she-be'erva, (a halakhic category dealing with sexual  matters; its parameters will be discussed briefly later).   This category requires the testimony of two witnesses, basing  himself upon the rule that a davar she-be'erva cannot be acted  on without two eidim.  The gemara does not record Abbaye's  answer nor does it provide any clue as to how Abbaye can meet  Rava's objection.  Rishonim, though, do raise several  possibilities; these will be the starting point of our  discussion, since the various answers given by the different  Rishonim will enable us to analyze the concept of davar she- be'erva.

Rava's opinion presupposes a prior concept of davar she- be'erva which is applied to the specific case of sota to  arrive at the conclusion that a sota requires two eidim;  Abbaye, therefore, has two possible avenues of dispute.  He  can either claim that Rava's major premise regarding all davar  she-be'erva is incorrect or, alternately, he may accept the  general rule, yet disagree as to its application in the  specific case of sota.  We must now proceed to examine each  possibility and its implications.

Let us begin with the first option, which claims that  Abbaye is denying outright the claim that a davar she-be'erva  requires two eidim.  To evaluate such a claim, we must attempt  to verify, in this and other sugyot, whether the rule that  Rava takes as his starting point is indeed universally  accepted.  At first glance, Rava would seem to be justified.   In the preceding stages of our sugya, the gemara concluded,  albeit after presenting a machloket on the issue, that  kiddushin require two eidim. (See shiur #29).  Moreover, the  gemara in two other sugyot (Gittin 2b and Yevamot 88a) states  as axiomatic that a davar she-be'erva requires two eidim.   Therefore, the only possible way to deny that a davar she- be'erva requires two eidim is by claiming that Abbaye  disagrees with the other sugyot, thereby extrapolating from  his opinion in the specific case of sota a much broader  machloket relating to davar she-be'erva in general.

This approach was adopted by the Rid, who interprets  Abbaye as agreeing that sota is within the category of davar  she-be'erva; Abbaye's ruling in this particular case,  therefore, can be arrived at only if he disagrees with the  general premise, postulated by Rava in our sugya, and  supported by other sugyot, that a davar she-be'erva requires  two witnesses.

Ra'avan, too, interprets the relationship between Abbaye  and the other sugyot along these lines.  However, he draws a  distinction between the conclusion, arrived at in the previous  stages of our sugya, that two eidim are required to perform  kiddushin and the cases from Gittin and Yevamot mentioned  above.  Regarding kiddushin, the eidim are not called upon to  clarify an unknown event or to decide between conflicting  accounts.  Rather, their presence and observation per se are  necessary for the enactment of the kiddushin, even if there is  no dispute.  The act of observation for purposes of testimony  is an integral part of the ceremony, regardless of any future  need of proof.  The cases, though, which are dealt with in the  other sugyot are cases in which the testimony is required for  purposes of clarification.  Thus, to phrase the point in  halakhic terminology, the gemara in kiddushin relates to eidut  le-kiyum ha-davar, while the other sugyot deal with eidut le- birur. (See shiur #29).  Abbaye, according to Ra'avan, accepts  the need for two witnesses regarding kiyum ha-davar, but  disagrees when it comes to cases in which the testimony is  needed solely in order to supply factual information.

Understanding Ra'avan - the function of two witnesses

To understand the underlying logic beneath this  distinction, we must ask ourselves what is the difference  between a single witness as opposed to two eidim. (See shiur  #30).  Two basic possibilities suggest themselves.  The first,  and most obvious, is that the difference between them is due  to the fact that two spectacles are better than one, and that,  therefore, two eidim are simply more reliable than one.  What  two see, one does not necessarily notice; thus, the  quantitative difference creates a qualitative disparity which  is reflected in the halakha that various areas such as davar  she-be'erva require two eidim.  This is not meant to imply  that a single witness is totally unreliable, for if so he  could not be trusted in cases of personal observance of  mitzvot (eid echad ne'eman be-issurim) or to impose an  obligation to swear etc.  Rather, his testimony is valid, yet  refutable, while the testimony of two eidim cannot be refuted.   The rationale for this is that two witnesses provide an  objective verifiable standard of comparison - since the  accounts of both can be collated against each other, thereby  removing any possible subjective element - while the lone  testifier's version must be evaluated on its own merits.   Therefore, the testimony of the single witness can be rejected  or disproved, while the higher standard provided by two is  unconditionally accepted.

Alternately, it may be claimed that the requirement for  two eidim is not due to a qualitative difference between them  and a single witness - who is also relied upon, although alone  - but to the legal-ceremonial status of two eidim.  The two  eidim have a formal standing as witnesses and their deposition  creates a legal entity of "testimony."  The single eid,  however, though he supplies factual information, is not an  independent legal persona and his account does not take on a  legal life of its own.

Ra'avan's claim that Abbaye requires two witnesses in  cases of kiyum ha-davar alone is dependent on which of the  above interpretations we adopt.  If we accept the former  approach that the difference is qualitative, there should be  no distinction regarding the need for two eidim in a davar  she-be'erva between cases of kiyum ha-davar and those of  providing evidence ex post facto.  The criteria for  determining the level of eidut (one or two), will be dependent  on the halakhic discipline involved (e. g. monetary issues,  personal status, observance of mitzvot etc.) and not on the  role of the eidut.  The alternate explanation, though, that  two witnesses are required for the ceremonial effect, since  only they have the legal status of eidim, is eminently logical  according to Ra'avan.  If the witnesses have a formal role to  fulfill, as in kiddushin, two are required; however, if  factual information is needed, one suffices, since he, too, is  reliable.

Thus, according to Ra'avan's interpretation of Abbaye,  two eidim are not required for a davar she-be'erva per se, but  for the creation of eidut le-kiyum ha-davar in any halakhic  act in need of legal affirmation.  Rava, though, disagrees and  imposes a standard of two eidim in all cases of davar she- be'erva, even for purposes of factual clarification.  Abbaye's  position, therefore, is in accord with an understanding of two  eidim as an independent legal entity, while Rava's opinion is  that the two provide us with objective information and are  required in all areas of halakha which require a court's  decision to determine their status.

Tosafot

Tosafot question Abbaye's denial of the need for two  witnesses in the case of sota based on a sugya in Sota.  The  first mishna in Sota states unequivocally that a sota who is  prohibited to her husband through the mechanism of kinui and  setira (a private rendezvous with the suspected lover against  the expressed wishes of the husband) is only so prohibited if  the process involves two eidim.  This presents an obvious  difficulty for Abbaye who claims that a sota does not require  two eidim; Tosafot, indeed, consider it an unresolvable  contradiction in light of which a reevaluation of the sugya  must be undertaken.  Abbaye must be reinterpreted to agree in  principle with Rava that two eidim are required for sota and  other davar she-be'erva.  Therefore, Abbaye's ruling in our  sugya that two eidim are unnecessary has to be understood as  relating only to cases in which the receiver of the  information (i.e. the husband in this particular instance)  accepts the report as reliable (shtika ke-hoda'a).

Summary -------

A. Two possible approaches were suggested as to the status of  a single witness' testimony.  Either the evidence supplied by  him is weaker since it cannot be corroborated against a second  version of the same event or that his deficiency is not a  qualitative one, but rather due to a formal legal definition  of testimony as requiring two witnesses.

B. There are two forms of eidut: 1. eidut le-kiyum ha-davar  whose function is to assist in establishing legal entities, 2.  eidut for purposes of factual clarification of unknown  circumstances.

C. Accepting the approach that there is a qualitative gap  between one and two eidim leads to the conclusion that two  eidim are required both for eidut le-kiyum ha-davar and for  cases of beirur (clarification); conversely, if two eidim are  a formal definition of the entity of eidut, their presence is  crucial in cases where the eidim function in a ceremonial  capacity, but not necessarily required if we are only seeking  information.

D. Ra'avan posits the above as a machloket between Abbaye, who  requires two eidim only in cases of kiyum ha-davar, and Rava,  who does not distinguish between the two.

E. Tosafot disagree with Ra'avan and claim that it is accepted  by all Amora'im, Abbaye included, that all issues relating to  davar she-be'erva requires the testimony of two witnesses.   The point of contention between Abbaye and Rava is, according  to this interpretation, whether the silence of the husband can  in this case be interpreted as agreement and admission.

There is still one issue which remains to be resolved:   the definition and delineation of davar she-be'erva.   Actually, as we shall see, the former is dependent upon the  latter; therefore, the starting point of the discussion must  be an attempt to define the concept of davar she-be'erva.

At first glance, the phrase davar she-be'erva - which the  gemara cites in various cases (death of a husband, validity of  a get and a sota) yet never defines - refers to personal  status for purposes of marital eligibility or, to put it  differently, any halakhic issue within the discipline of Even  Ha-Ezer.  The Shev Shmateta (6:15), though, points out a  machloket between the Rambam and Tosafot Rid, which he  interprets as a disagreement on this very issue.  Rid states  that two eidim are needed to determine that a woman is  ineligible to marry a kohen; aside from a sevara (logical  deduction), he derives this from the gemara at the end of our  daf that specifies the need for two eidim to establish the  status of a chalal (a kohen disqualified upon grounds of  personal status), reasoning that there is no intrinsic  difference between disqualifying a candidate for marriage to a  kohen or the illegitimate offspring of such a union.  The  Rambam, however, disagrees and rules that a chalal can be  determined only through the agency of two eidim, yet his  mother's ineligibility can be gleaned from a lone witness.  To  answer the obvious question "what is the difference," the  Shmateta explains that a distinction must be drawn between the  two cases.  In the former instance, the chalal is not issued a  direct disqualification from performing certain acts which  require a kohen (e.g. eating teruma or working in the  mikdash); rather it is his personal status which is redefined.   He is no longer considered as belonging to a select group who  are members of a halakhic entity called kehuna, since we now  assign and relate to him another legal status, known as  chalal.  The shift which is brought about by the new  information is in his personal status per se.  Though this,  obviously, has ramifications relating to many halakhic  questions, the basic change relates to the halakhic persona as  such.  Regarding the woman, though, the situation is the  opposite.  Her ineligibility to marry a kohen is not due to  any intrinsic personal status bestowed upon her by halakha,  but rather to a specific injunction which bars the marriage of  a kohen and a divorcee.  No personal status is at stake here;  the only issue is the application of a specific halakha to the  situation.

It is this distinction between the establishment of an  inherent personal status with halakhic ramifications versus  the application of particular halakhot from Even Ha-Ezer which  determines  what is davar she-be'erva.  To establish (or  alter) personal status is an issue of davar she-be'erva which  requires two eidim, while the application of pertinent data to  Even Ha-Ezer situations is a routine halakhic process but not  davar she-be'erva.  Therefore, the Rambam rules that two eidim  are required to transform a kohen's personal status into that  of a chalal, yet one witness suffices to disqualify his mother  from a prospective marriage with a kohen.

To understand the approach attributed to the Rambam by  the Shmateta, we must return to the previous discussion  regarding the double witness standard and the suggestions  which were raised there to explain the absolute need for two  eidim.  One possible explanation was that two eidim provide a  qualitatively better testimony, and therefore all issues with  halakhic consequences regarding marital eligibility must be  based upon such qualitatively superior data.  However, if the  information can be received through other channels (e.g.  raglayim la-davar), there is no formal requirement of two  witnesses.  Alternately, the need for two eidim was posited as  an imperative requirement for a legal entity of testimony,  which can only be provided by two actual witnesses.  Though  this rules out the possibility of other circumstantial  evidence, it also limits the concept of davar she-be'erva to  cases where information alone is insufficient, due to the fact  that a legal status has must be established.  Previously, we  applied this to differentiating between cases of kiyum ha- davar and beirur, based upon Ra'avan.  Now, however, in light  of the Shmateta's claim, it may be seen that certain cases  whose starting point is a factual clarification are, actually,  akin to issues of kiyum ha-davar.  For, though in the one  case, the kiyum ha-davar through eidim must be during the  event, while in the other, the eidim are needed only in court,  in both cases, a change of status is effected - either by the  court or by the event - requiring the legal entity of two  eidim.

Thus, the machloket between Abbaye and Rava can easily be  understood as reflecting these variant approaches to davar  she-be'erva.  Abbaye is willing to accept circumstantial  evidence since he is only interested in a high standard of  factual clarification, while Rava insists upon two actual  eidim to establish a status of sota.

This interpretation of the machloket is possible only if  a status of sota indeed exists as an independent legal entity,  an assumption which is not self evident.  To clarify the  picture regarding sota, we will attempt to present a brief  survey of the nature of the issur which prevents an unfaithful  wife from living with her husband.

The Torah, as interpreted by Chazal, relates to sota in  two separate cases.  The basic case, is when the woman  committed a known act of adultery.  This is included in the  pasuk which prohibits returning his divorcee, if she has  remarried.  The common denominator to both is the existence of  a simultaneous relationship of one woman to two men.  The  original husband who "sandwiches" the second suitor is not  considered as having terminated his involvement.  This case,  in which the adultery is certain, is known as sota vadai.  The  other instance is that of a wife whose husband suspects her of  unfaithfulness, based upon her conduct and inconsiderate  response to his warning, yet there is no hard evidence to  prove or disprove his suspicions.  Such a woman, if she  fulfills the conditions that the Torah laid down, is a sota  safek, whose saga is described at length, from the initial  domestic discord to the enactment of the final drama in the  azara (temple).

The question facing us for the purposes of our  discussion, is what is the cause which prohibits a sota from  living with her husband. Is it the objective act of having  relations with another man, the root of the matter being the  defilement involved in a dual conjugal relationship (the  phrase in the pasuk in Devarim is "asher hu-tama'a", she was  defiled,) or is it the unfaithfulness implicit in and  expressed by her behavior but not the act of adultery per se  which generates the issur.  If we accept the first approach,  any doubts relating to her behavior are a matter requiring  nothing more than plain factual clarification.  The second  option, however, relates to her subjective personal attitude  and is not based upon hard information.  Accordingly, it may  be insufficient to merely verify the act of adultery.  It is  quite reasonable to assume the requirement of a legal process  which can confer upon her the personal status of a sota,  without which she is not prohibited.  To put it differently,  sota is a davar she-be'erva which requires the establishment  of a halakhic status, which must be based upon the testimony  of two eidim.

There are strong proofs that a sota safek is indeed a  davar she-be'erva requiring two eidim and that her status as a  sota - and not the objective act of adultery, (which remains  unproven) - is what causes the separation between herself and  her husband.  The why and wherefore, though, of the sota vadai  remain an open question.  Here, too, it may be an issue of  personal status which prohibits her - the only difference  between a case of vadai and a case of safek being the process  by which the common status of sota is arrived at - thereby  including the sota vadai under the category of davar she- be'erva.  On the other hand, since there is a proven act of  adultery, on the one hand, and no prior process of forewarning  as in a sota safek, on the other hand, it is also possible  that they are distinct halakhic phenomena, as indicated by  their separate locations and associations in the Torah.

The gemara in Ketubot (9a) can be understood as  entertaining both of the above possibilities.  It begins  assuming that the process described regarding safek sota  applies to a case of vadai as well.  However, it concludes  that two eidim without prior warning suffice to establish the  issur.  Whether this conclusion is due to a conceptual change  in the sugya's approach suggesting that the two sotas are  distinct entities, as would seem reasonable, or to an  adjustment of the procedural element, is not explicit.   Therefore, the explanation that Rava treats sota as a davar  she-be'erva, even regarding a sota vadai, is a plausible  claim, yet one which is neither self evident nor obvious.

It is now possible to conclude with a suggestion that  Abbaye and Rava do not disagree at all about davar she- be'erva, but rather argue about this very issue of sota.   Abbaye, according to this interpretation, is quite willing to  accept Rava's premise that a davar she-be'erva requires two  eidim - and only two eidim - in cases that have to determine  personal status.  His objection to Rava's ruling regarding  sota is not due to an opinion that raglayim la-davar can  replace two eidim in cases of personal status, but to an  understanding that a sota vadai is not an issue of personal  status but of a significant act whose implications are  independent of any change in the legal persona.  Rava,  however, treats sota as a situation whose source is rooted in  the personal unfaithfulness and the subsequent change in  status brought about by such a relationship.  This clearly  places sota within the category of davar she-be'erva,  requiring two eidim to establish such a status, as Rava states  in his reply to Abbaye.  Abbaye's point of contention, though,  is not necessarily the davar she-be'erva aspect, rather it is  a different approach to the issue of sota.

Thus, in summary, the machloket between Abbaye and Rava  can be interpreted as follows.

A. Rava (and others) require two eidim in issues of kiddushin  etc. while Abbaye denies the need for two eidim whatsoever.

B. Abbaye insists upon two eidim for kiyum ha-davar, but not  in cases of factual clarification.  Rava thinks that cases of  beirur must also be based upon two eidim.

C. Both Abbaye and Rava agree that two eidim are necessary  regarding davar she-be'erva. Abbaye however feels that in this  case silence is treated as admission.

D. Abbaye also requires two eidim for cases of beirur, since  their testimony is more reliable than that of one; however,  circumstantial evidence can be substituted for their  testimony.  Rava, though, requires eidut as a halakhic  category, which is needed to bring about a change in personal  status.  Consequently, two eidim cannot be replaced by other  forms of investigation.

E. The machloket does not revolve around the standard of  testimony for davar she-be'erva, all agreeing that we need two  eidim to establish personal status.  However, they disagree  whether or not sota is an issue of personal status.  Abbaye  claims that it isn't, while Rava's opinion is that sota, even  vadai, is an issue of personal status which must be determined  on the basis of two eidim alone.

For Further Research:

The above line of reasoning, which interpreted the  machloket between Abbaye and Rava as a difference of opinion  regarding the particular case of sota, does not account for  the other sources mentioned above, which apply davar she- be'erva to cases of factual clarification regarding death (of  a husband) or divorce.  To form a complete picture and to  arrive at an assessment of this interpretation, the  relationship between these other cases and those of sota must  be considered.  Is it the same concept of davar she-be'erva or  a different one?  Is the framework of reference regarding sota  relevant to them or not?  What ramifications does this have  for our explanation?  Moreover, what is the significance of  the gemara in Sota 3b, which has two different pesukim for the  varying stages of sota?

All these questions require treatment in order to round  out the topic of davar she-be'erva.  However, since time and  space are running out, we shall leave these secondary  discussions as questions for further reference for the  consideration of each individual learner.

 

Sources for next week's shiur:

Trei u-trei vs. chazaka (the power of testimony)

1) Kiddushin 66a "Ibaye le-hu ishtekha zinta be-eid echad..."  (till the end of the page). 2) Bava Batra 31a (seventh line from the bottom) "Zeh omer  shel avotai" till 31b "aval le-otah edut lo." Tosafot s.v. Ve-zu Ba'a [Compare this Tosafot to the beginning  of one on 32b, s.v. Amai]. 3) Shulchan Arukh Choshen Mishpat 34, 28. Ketzot ad loc. 6 (till "nish'ar be-safek ak"l). 4) Bava Batra 31b "De-tali be-ashlei ravrevi" till 32a "u- leziluta debei dina lo chaishinan." Tosafot s.v. Anan (till "u-mira'a chezkat eshet ish"); R. Yona ad loc. s.v. Ve-ata Eid Echad.