Davar She-be'erva

  • Harav 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 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).
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.