Presumption of Life (28a)

  • Rav Yosef Zvi Rimon
Sources:
  1. Gittin 28a, mishna to mishna.
  2. When do we rely on the presumption of life (chezkat chayim)?  Tosafot s.v. “Ve-hinicho;” Tosafot, Bava Metzia 39b, s.v. “Dilma.”
  3. Is there someone who believes that there is no presumption of life at all?  Tosafot s.v. “Ha Rabbi Meir;” Tosafot s.v. “Teruma;” Penei Yehoshua s.v. “Amar leih teruma” (until “Be-Kuntres Ha-kelali sheli”). 
  4. Chezkat chayim as opposed to chazaka of marriage: Tosafot, Ketubot 23a, s.v. “Tarvaihu” (in Gemara there, line 2, “Eid echad omer… bi-fnuya ka-mashadei”); Penei Yehoshua loc. cit. [the continuation, “Ve-khen mukhach le-hedya mei-ha de-amrinan;” Shaarei Yosher, Shaar Ha-chazakot, ch. 9, s.v. “Ve-nireh le-aniyut dati le-taretz,” until “heim be-din safek” (see also next paragraph)].
  5. “One hour before my death” — Tosafot s.v. Shanei [Shaarei Yosher, Shaar Ha-chazakot, ch. 9, s.v. “Garsinan,” “Amnam,” “Al kein Nireh le-aniuyt dati”].
  6. “We do not worry that he has died, we do worry that he will die” — Rabbeinu Crescas, s.v. “Shema yamut;” Tosafot, Kiddushin 45b, s.v. “Be-feirush,” from “U-maaseh ira;” Noda Bi-Yehuda (I YD 56), until “shema yekabbel bah aviha kiddushin.”
Questions:
Our passage deals with the question of whether a person who is not before us is presumed to be alive.  First of all, we must analyze the scope of this law (when one can rely on chezkat chayim); afterwards, we must inspect the nature of the law and the relationship between this presumption and other presumptions (chazakot; singular, chazaka) which conflict with it.  In the end, we must investigate the application of the matter in our passage.  In our passage, there is a contradiction brought between our mishna and a beraita, and the Gemara cites three resolutions for the contradiction.  We must investigate each of them in terms of these principles.
 
Introduction
 
The Mishna (Gittin 28a) says that when the get is given to the woman by an agent, we see the husband as having a presumption of life, even if the agent leaves him when he is elderly or ill, and therefore we see the woman as a divorced woman and exempt her from levirate marriage. 
 
The same applies concerning a woman who father is not a kohen but who is married to a kohen: she can continue to eat teruma even though her husband has travelled to a distant land (even if she has no children from him), for she may rely on the presumption of life. 
 
The same also applies to one who sends his sin-offering from a distant land: the agent may bring the sin-offering, and there is concern that the principal may have died before the animal is offered, thus creating a situation of slaughtering non-offerings in the Temple courtyard.  (The sin-offering of a dead man cannot be offered on the altar).
 
When do we rely on a presumption of life?
 
The Gemara (28a) cites a contradiction between our mishna — which implies that we rely on the chezkat chayim — and the beraita which deals with the issue of teruma — which implies that we do not rely on the presumption of life, and therefore the woman may not eat teruma if the husband sends her a get to take effect “one hour before my death.”  The Gemara attempts to resolve this by distinguishing between possibility and impossibility: it is possible for the woman to eat food other than teruma, so she is not allowed to rely on the presumption of life, while it is impossible for the issue of the gittin, “for if you worry about this, no one will ever send a bill of divorce and they are all chained” (Rashi s.v. “Get lo efshar”).  It is tenable to ask someone to refrain from eating teruma, but not to make her an aguna, a chained woman, for the rest of her life.  However, the Gemara immediately rejects this distinction because our mishna explicitly states that also for the issue of teruma we rely on chezkat chayim.
 
However, one may still wonder if we truly rely on chezkat chayim for everything; perhaps it is only for the specific cases of gittin, teruma and offerings. 
 
Tosafot (s.v. “Ve-hinicho zaken”) say that for the issue of orphans’ property, the Sages are stringent, and they do not rely on chezkat chayim.  (They rely on Bava Metzia 39b, that a relative may not administer a captive’s estate if the captive’s heir is a minor, for we do not allow a relative to enter a minor’s estate, indicating that we worry lest the captive die, and the property belongs to a minor.)
 
Tosafot (Bava Metzia 39b, s.v. Dilma) consider an additional factor: according to their view, we rely on chezkat chayim “concerning get because of a chained woman, and similarly for eating offerings and teruma, but here — on the contrary, they are stringent about orphans’ property…”  Tosafot talk about two factors: aguna (a reason to be lenient) and orphans’ property (a reason to be stringent).  Do Tosafot mean that generally we may rely on chezkat chayim, but concerning orphans the Sages were stringent, or perhaps their intent is to indicate that generally we do not rely on chezkat chayim, but for the sake of the aguna they were lenient?  
 
The Ramban writes that for the issue of orphans, we do not rely on the chezkat chayim, because in every matter requiring the intervention of the court, we are preoccupied with the danger of actively ruining a situation.  This indicates that apparently only for prohibitions may a person rely on the presumption of life (to eat teruma, etc.), but for topics which require the involvement of the court, they will not rely on chezkat chayim, aside from gittin.
 
The Terumat Ha-deshen (349) writes that we always rely on chezkat chayim, and only because of orphans are the Sages stringent. Accordingly, he writes that the statement of Tosafot in Bava Metzia relating this to the aguna concern is imprecise; by the letter of the law, we always rely on chezkat chayim, and only concerning orphans do the Sages stringently disregard chezkat chayim (the aguna concern is not a reason to be lenient, but an explanation of why there is no cause to be as stringent as we are with orphans’ property).  Therefore, Tosafot cite in our passage the reason of the orphans only, and they do not mention aguna at all.
 
Is there someone who believes that there is no chezkat chayim?
 
The Gemara brings a contradiction between our mishna and a beraita: in our mishna, we rely on chezkat chayim whether for the issue of get or for the issue of teruma — if the husband is going to a distant land, the woman eats teruma, and if he sends a get from there, it is valid, because the presumption is that he is still alive.  In the beraita, we do not rely on chezkat chayim for the issue of teruma, should a kohen send his wife a get saying, “You are hereby divorced one hour before my death.”
 
Three answers are suggested in the Gemara (aside from the above-mentioned rejected answer, which distinguishes between the possible and the impossible):
 
  1. Rav Ada b. R. Yitzchak: we are not concerned about death, but if she is forbidden during his life (e.g., “one hour before my death”), we are concerned (at every time lest it be the hour of which he spoke).
  2. Abbayei: this is a Tannaitic dispute.  According to Rabbi Meir, we are not concerned about death, just as we are not concerned about the wine-skin containing teruma bursting, while according to Rabbi Yehuda we are concerned about death.  (Apparently, Rabbi Yehuda is concerned “that he has died,” and not only “that he will die”).
  3. Rava: “We do not worry that he has died, we do worry that he will die.”  In the conclusion, there is a Tannaitic dispute as to whether “we do worry that he will die” (and according to Rabbi Yehuda, we are concerned).
 
Abbayei’s answer indicates that according to Rabbi Yehuda, we are concerned even “that he has died” and if so, it turns out that in his view, there is no chezkat chayim at all!  Tosafot moderate this view a bit: if we understand this view at its most extreme, even if the kohen leaves his house, his wife can no longer eat teruma. Therefore, Tosafot assume that for a short time, there is chezkat chayim even according to Rabbi Yehuda, and only for a long time is there no chazaka of this sort. 
 
What is the logic of this approach? Why according to him is there no chezkat chayim? From the words of the Penei Yehoshua (s.v. “Amar leih teruma), it appears that the problem of chezkat chayim is that this is a chazaka which is destined to change. 
 
This principle is introduced by the Penei Yehoshua in order to answer the question of Tosafot (s.v. “Teruma”).  The Gemara asks the question: why in our mishna do we rely on the chezkat chayim for the issue of get, while in the beraita we see that we do not rely on chezkat chayim for teruma?  The Gemara answers that for teruma, it is possible to ignore this presumption, but for a get, it is impossible to do so.  Afterwards, the Gemara rejects this answer, because it is explicit in our mishna that even for teruma we rely on chezkat chayim.
 
Tosafot ask: has the questioner forgotten an explicit mishna?  (They answer, in a somewhat forced manner, that this is only the Gemara’s initial thought — “This is the way of the Talmud, that it is not concerned, but it answers a question which has been asked.”)  The Penei Yehoshua answers that even though the Mishna writes that she eats teruma, the Gemara thinks that this case is not tied to our discussion, because in our mishna indeed it is explained that she may eat teruma, but in our mishna — as opposed to the beraita — we have not established that her husband, the kohen, has given a get.  The Penei Yehoshua explains: chezkat chayim is a chazaka which is made to change, since everyone will ultimately die one day, and therefore it is an inferior chazaka (in his language: “It is not a true presumption”).  When the husband goes to a distant land, therefore, an additional chazaka is enlisted.  This is a chezkat heter, the presumption that what has been permitted will remain permitted — the chazaka of being allowed to eat teruma which the woman has previously[1] held.  Thus, there is no proof from the law of eating teruma in our mishna that we rely on the chezkat chayim alone.  However, when the husband issues a get, her chezkat heter for teruma is undercut, because the act of sending the get invalidates this chezkat heter.   
 
In this case, the chezkat chayim alone is not effective, since it is an inferior chazaka.  This case parallels the case in our mishna concerning a get, for in it as well there is only chezkat chayim, but nevertheless it is effective.  Therefore, there is a place to ask, why chezkat chayim is not good for the issue of teruma, but it is good enough for the issue of get.  Therefore, the Gemara answers that when it is “possible,” we do not rely on chezkat chayim, for “they demand a higher standard for the issue of teruma.”  (This is the language of the Penei Yehoshua). 
 
However, the Gemara rejects this answer (and it asks in any case from teruma upon teruma), because if the matter springs from the higher standard of teruma, even when the chezkat heter and chezkat chayim work together, one must be stringent where it is “possible,” and not eat teruma unless there is definite knowledge.  This is because there is no reason, for the issue of permissible things, once we introduce stringency only because of the “higher standard”, for there to be a distinction between one chazaka and two chazakot.  However, this law — of a chazaka which will ultimately be changed — is in dispute, and there are many Acharonim who believe that it is also a chazaka when we are talking about a short time which is not defined and limited.  From the answer of the Magen Avraham, the apparently implication is that even a couple of months are still a “short time”. 
 
How does chezkat chayim trump chezkat issur?
 
The Penei Yehoshua writes (close to his words which we mentioned above) a strong question:
 
When sending a get from a distant land it is not appropriate at all to speak of a chezkat heter, for on the contrary, this woman has a chezkat issur for everyone else, and from what we learn in the mishna, “We give her the bill of divorce assuming that he still lives,” we see that this is to allow her to marry anyone, even in place of the levir. 
 
The Penei Yehoshua thus argues that the relevant chazaka here should be chezkat issur, the presumption that what has been prohibited will remain prohibited — and this woman has been prohibited to marry anyone else.  In other words, how can we rely on the chezkat chayim of the husband and permit the woman to marry, while, in place of this chezkat chayim, the chezkat issur of the woman stands?  Now, concerning the chezkat issur of her being married to her original husband, there is no problem, because in any case she will definitely be permissible (either the husband is dead or the get is effective); but this previous chezkat issur which she possessed has not been fully uprooted, because while the marriage bond has been dissolved, the levirate marriage bond has not been dissolved, because it may be that her husband died first, compelling her to marry the levir!  How then may she marry any man off the street?
 
  1. Tosafot in Ketubot 23a (s.v. Tarvaihu) explains that when the chazaka has been weakened, it has no more regular power of chazaka.[2]  In our case, the Penei Yehoshua writes that the very fact that she has received a get undermines the chezkat issur.  We have already seen how the Penei Yehoshua resolves, on this basis, the question of Tosafot (s.v. Teruma).  According to this principle, he also answers the question which arises from the Gemara in Yevamot.  The Gemara there (113a) deals with the wife of a deaf-mute.  According to the view of Rabbi Eliezer, the deaf-mute has a doubtful status, as he may be mentally incompetent, and if so, his wife is a doubtfully married woman (because a mentally incompetent man cannot marry).  Therefore, the Gemara says, the one who has intercourse with her brings a doubtful-guilt offering.  This determination is apparently difficult: this woman was once an unmarried woman, and if there is a doubt about her marriage to the deaf-mute, should we not rely on her chazaka of being unmarried and allow her to marry someone else?  The Penei Yehoshua therefore resolves this: since there was an act of kiddushin, her chazaka of being unmarried has been undermined.
  2. The Shaarei Yosher (Shaar Ha-chazakot, ch. 9, s.v. “Ve-nireh le-aniyut dati”) rejects the words of the Penei Yehoshua: according to him, the fundamental of undermining is a rabbinical stringency and not the letter of the law.  (Tosafot there write that the chazaka does not help ab initio; similarly, if she marries, she need not divorce.  In other words, ex post facto, we rely on the chezkat heter!)  He brings a rule of chazakot by which one may answer the question of the Penei Yehoshua differently:[3]
 
For chazaka does not help unless it resolves the essence (the cause) of the doubt… but for a deaf-mute’s wife, according to Rabbi Eliezer, her law is always in doubt, and because of this the presumption of permissibility is totally ineffective, since the very essence of the doubt is not decided at all, and it remains as a matter of law in a state of doubt.  Because of this, even the matters which are its results are in a state of doubt.
 
When we talk about chazaka, one must investigate what exactly is under discussion and what the chazaka will decide.  For example, when a person immerses in a mikve that we find to be deficient, we say that one relates to the mikve based on the chazaka of fullness.  Apparently, we could have said that the person has a chazaka of impurity.  However, the discussion is focused on the mikve, whether it is deficient or full, and therefore the chazaka of the mikve is determinative.  The person is not the source of the doubt but only the product of the doubt, as it were, and therefore we inspect the chazaka at the source of the doubt.
 
In our analysis, we talk about the husband — is he living or dead? — and therefore the husband is the source of the doubt.  If he has chezkat chayim, this chazaka is determinative, while the heter of the woman is the product of the doubt, and therefore this is not impacted by the fact that she has a chazaka of being forbidden to marry a man off the street (in our case) or a chazaka of being allowed to marry anyone (in the case of the deaf-mute).[4]
 
  1. The Penei Yehoshua suggests another answer: the chezkat chayim is based on the law of the majority, and this majority is not a majority in a defined group of things (rubba de-ita kamman) but rather a statistical majority based on our familiarity with the common reality (rubba de-leita kamman).  Since chezkat chayim is based on the rubba de-leita kamman, it differs from all other chazakot, as it is a clarifying chazaka, and therefore it overpowers the chazaka of issur.
  2. We may answer in an additional way, according to the other fundamental principle in matters of chazakot, [5] and it is that the law of chazaka applies only in a case of doubt.  Since when a person is alive, there is no reason to raise the doubt that perhaps he is dead, there is also no reason to be concerned about a chezkat issur.  Therefore, we see him as certainly alive, and we need not resort to various chazakot.
  3. [An additional way to resolve this is to answer our case in a specific way, according to the understanding of the law of levirate marriage.  Tosafot in Yevamot 30b write that the chazaka of levirate marriage only applies once there is a chazaka of the husband’s death, and if so, his chezkat chayim suffices to counteract a presumption of death (Shaarei Yosher ibid.).]
 
“One hour before my death”
 
In order to understand the Gemara, we must note that there may be a case in which we have doubts if the previous situation has changed, and therefore we rely on the previous chazaka.  However, there may also be a case in which it is clear to us that at a certain time the previous status changed, and the question is only when it changed or what is the thing which has changed, and in case a such as this, we do not follow the previous chazaka
 
For example, when there is a mixture of prohibited and permitted substances, we do not follow the chazaka of heter which previously existed, because in this circumstance it is clear to us that one of the pieces is forbidden, and what is not clear is only which of the pieces is forbidden.  Therefore, we do not follow the original chazaka for a mixture.  This is what arises from the words of the Shaarei Yosher (2:8).
 
For the issue of “one hour before my death,” the woman is forbidden certainly for one hour in his life, but it is not clear to us when this hour falls, and therefore (see ibid.), we do not follow the chazaka.
 
What is the meaning of the Gemara’s rejection, “perhaps she will die first”?  We may understand it in the following way: it may be that the woman will die before the husband, and if so it may be that she will never be forbidden!  The question, if so, is not when the status will change but if the status will change, and according to this criterion, one should allow the woman to rely on her chezkat heter.
 
“We do not worry that he has died,
We do worry that he will die”
 
Why do we “worry that he will die” and not rely on the chezkat chayim?  Rabbeinu Crescas explains that since the husband will definitely die eventually, it is impossible that there will be a chazaka which opposes this reality. 
 
It is possible to explain according to the principle above (concerning “one hour before my death”): when we analyze “perhaps he has died” the question is if he has died, but we do not have any reason to think that he has died.  However, when we are talking about “perhaps he will die,” the question is when he will die, and therefore we do not follow, in this case, the chazaka.  According to this, the Gemara rejects first the distinction of “one hour before my death” with the argument that such a situation is in reality one of “Will she be forbidden?”  (For it may be that she will die first and never be forbidden.)  However the Gemara adopts the same principle and explains in a different way: every situation of “perhaps he will die” is a situation of when, and therefore we may never rely on this chazaka!
 
However, there is someone who disputes this principle.  Tosafot in Kiddushin (45b) write that RaMenachem of Joigny rules that if the father of a young girl goes to a distant land, we are concerned that he may betroth her to someone else, and she is forbidden to marry in the meantime, just as we are worried in our passage lest he die.  In this case, there is no certainty that the father will betroth her, and despite this, Rav Menachem of Joigny is concerned about this. 
 
Thus, Rav Menachem of Joigny does not explain the distinction between “perhaps he will die” and “perhaps he has died” in the way we have explained.  How did Rav Menachem of Joigny understand this distinction?
 
The Noda Bi-Yehuda (I, YD 56) explains Rav Menachem’s view according to a new principle: chazaka helps concerning the present, but it does not help concerning the future.  We may determine according to chazaka that the situation has not changed at this time, and therefore we say that presumably now the husband is alive.  However, we cannot determine according to chazaka that the future will not change, and therefore it is impossible to say that there is a chazaka that the husband will not die, and it is impossible to say that the father will not betroth his daughter (even though there is no certainty that he will betroth her at all). 
 
According to this principle, the Noda Bi-Yehuda deals with an additional problem: there is a Talmudic dispute at to whether vestot, regular periods according to which a woman is assumed to be menstruating, are biblical or rabbinical.  If vestot are biblical, whatever pure things a woman touches on that day will be impure; but if they are rabbinical, the pure things which a woman touches on that day are biblically pure, because we follow the item’s chazaka of purity.   Even so, everyone agrees that the prohibition of intercourse on that day is biblical. 
 
This is difficult: according to the one who says that vestot are of rabbinical origin, why may a woman not rely on her chazaka of purity?  The Noda Bi-Yehuda answers using the above-mentioned principle: concerning pure things, the doubt is the present — if, at this time when the women touches them, she is pure or impure.  Concerning intercourse, on the other hand, the doubt is whether she will bleed during intercourse, and the power of the chazaka is not great enough to predict the future and to say that the woman will not see during the time of intercourse.
 

[1] According to him, this matter is comparable to the chezkat heter which a mikve (ritual bath) acquires once it has been measured one time, or a knife once inspected for slaughtering.  However, see in the continuation the approach of the Shaarei Yosher; he argues that in matters of chazaka, we only concern ourselves with the source of the doubt, and if so, the law of the mikve and the knife is not relevant for our issue, for the status of mikve or knife is in truth the source of the doubt, while the woman is, as it were, the product of the doubt about her husband’s current status. 
[2] The Gemara there says that if one witness says “She has been betrothed” and another witness says “She has not been betrothed,” she should not marry, but if she does marry, she should not divorce.  Tosafot ask: why should she not marry ab initio; what about her chezkat heter (that she was unmarried)?  They respond that since we know that he threw her the kiddushin (and the doubt is whether it was close to him or close to her), it is impossible to rely on the chezkat heter and to allow it ab initio.  It is apparently implied that the act of kiddushin, muddled though it may be, undermines her chazaka of being unmarried. 
[3] This is according to the Ritva, Kiddushin 79, and Tosafot Rosh in the beginning of Nidda.
[4] There are, indeed, cases in which we relate to the product of doubt, but this is only when the source of the doubt is not found in the world, or when there is not any halakhic or legal debate about the source of the doubt. 
[5] This is cited in different places by Rishonim and Acharonim — see Tosafot Ketubot 22b, s.v. “Ha-ba aleha;” Maharsha and Penei Yehoshua ad loc.  See also the Rashba, Kiddushin 66a, cited by Penei Yehoshua loc. cit.