Shiur #10: A Husband's Ability to Declare His Wife Forbidden
Written by Rav Moshe Taragin and Rav Yair Kahn.
Translated by David Silverberg
As we saw in our mishna, Chazal instituted that a first time bride be married specifically on Wednesday. This provision allows for a groom who claims his bride was not a virgin to submit his complaint to the Bet-Din on the following day - Thursday, when rabbinical courts were generally in session. Our sugya discusses this complaint of the groom and asks what the husband actually claims in such a case. Does his claim have the power to render the wife forbidden to him, on the grounds that she engaged in forbidden relations during the period of eirusin (the betrothal)? (An unfaithful betrothed or married woman is forbidden to her husband.) Or, does this claim involve only the monetary issue of the ketuba payment, which he demands to have waived in light of his discovery? The Amoraim discuss this point. Rabbi Elazar asserts that a ta'anat betulim (a claim that the bride was not a virgin) has the capacity to forbid the woman to her husband; thus, should a husband claim that petach patuach matzati, she becomes forbidden to him (9a). Shemuel, however, focuses on the financial issue at hand; a groom who advances such a claim is believed with respect to the ketuba payment, (9b). This shiur will deal with the position of Rabbi Elazar, and will assess the husband's ability to declare his wife forbidden to him by merely making this claim.
In addressing Rabbi Elazar's view, the Gemara first raises and resolves the question arising from the halakha of "sefeik-sefeika." Then it poses a different question. The mishna in Kiddushin (65a) already establishes that if a man claims that he betrothed a certain woman and she denies the claim, she may marry his relatives - who would be forbidden to her were the betrothal to have taken place - but he may not marry hers. Since he claims to have betrothed the woman, by his own confession her relatives are forbidden to him in marriage. In light of this mishna, the Gemara questions the necessity for Rabbi Elazar to establish the husband's ability to have his wife forbidden to him by power of his claim. At this stage of the Gemara's discussion, and presumably at its conclusion, as well, it understands the husband's power to render his wife forbidden to him as rooted in the halakha described by that mishna in Kiddushin. This halakha is known as "shavya a-nafshei chatikha de-issura" - literally, "he made her for himself a forbidden object." We must therefore examine this power Chazal grant a person to make something (or someone) forbidden to him based solely on his declaration without any need to substantiate this claim with concrete evidence.
This inquiry must take into account the unique demands that exist within the area of halakha under discussion - "davar she-be-erva." In cases of issur (ritual prohibitions), even in the absence of ANY witness we may apply considerations such as probability (rov), proximity (karov) or simply the status quo (chazaka). The area of erva (determining a person's identity or status vis-a-vis marriage and divorce), however, is generally an inflexible domain where nothing less than two eidim (witnesses) are granted authority and reliability - ein davar she-be'erva pachot mi-shnayim. In this light, it is indeed surprising to discover that an individual is granted 'personal authority' to, in a limited manner, unilaterally testify and prohibit himself upon his wife. In the example of the mishna in Kiddushin (65a), a man is allowed to claim 'This woman and I have been married' - a statement which prohibits him from marrying her relatives. 'Shavyei a-nafshei chatikha de-issura' applies in other cases of erva, as well, and would seem to defy the 'two eid minimum' principle. This shiur will explore the dynamics of this intriguing halakha.
Shavyei versus Eidut
Obviously, we cannot regard this personal statement in the same manner as we do objective testimony offered by two eidim. Not only is the man testifying as a single individual, he is also a 'nogei'a be-davar' - one who has a vested interest in the outcome of the case, who is generally excluded from giving acceptable testimony. Possibly, the best indicator of the disparity between standard two-person eidut (testimony) and shavyei a-nafshei is the limited scope of his testimony. After testifying to his marriage to this woman, the mishna in Kiddushin declares, the man may not marry her relatives. SHE, however, can nevertheless marry anyone she chooses even without receiving a 'get' (divorce). The validity of his testimony is not universal; it only pertains to him and to halakhot which affect him directly. It is evident that some discrepancy exists between this personal testimony and standard eidut.
The question then becomes: how big a discrepancy? Do we say that shavyei basically is patterned after eidut, in some limited fashion? Possibly, two objective eidim are required to establish objective truth that will dictate halakhot to all involved. In personal matters, however, to determine halakhot that will only affect oneself, individual testimony suffices. In fact, there are additional examples which may be based upon this form of personal testimony. Firstly, the principle of hoda'at ba'al din ke-mei'a eidim dami (the admission of the obligated party has the same legal power as the testimony of 100 witnesses) allows an individual to attest to his own liability even in the absence of eidim. A similar theme may be discerned from the position of Rabanan in Keritut (11b-12a). If eidim testify to a person's having performed a sin unintentionally (which normally mandates the offering of a korban chatat - sin offering), but the subject himself contradicts them, Rabanan claim that HE, and not THEY, are believed. The gemara offers two explanations for this revolutionary principle (normally no one may contradict two witnesses - except two other witnesses). According to the first, the alleged sinner is believed because he has a migo - meaning, had he chosen to lie, he could have done so without contradicting the eidim by claiming that he committed the violation intentionally (in which case no sacrifice is required). The gemara then suggests an alternative approach: "A person is trusted about his own affairs like a hundred eidim." The Rambam and Ra’avad (Hilkhot Shegagot 11:8) debate which explanation was accepted. If a person is trusted regarding his own affairs like witnesses, shavyei might express a similar theme; regarding one's own status his testimony is accepted and granted reliability.
By contrast, we might disassociate shavyei entirely from the world of eidut. As a lone witness with a vested interest, he cannot offer anything even resembling eidut. However, he does have a right to unilaterally establish or declare his status even in the absence of eidim. If a person affirms his status as a married woman, a nidda, or any other identity that causes a prohibition, though we may not lend objective credibility to this lone testimony, we do COMPEL the person to personally live by the standards he set for himself. The process is not evidentiary but instead arbitrary or arbitrational. A person has the right even in the absence of eidim to arbitrate his own status (in one direction, to create issurim). Not only does he have this right, we enforce this responsibility - to live by the standards of one's own claim. Such an option is suggested by the Mahari Lev (quoted by the Ketzot Ha-choshen 34:4). He likens this process to the optional generation of issur in the world of neder. Though many have questioned this parallel to neder (see Noda Bi-yehuda Even Ha-ezer second volume 23), one thing is clear: the Mahari parallels shavyei to neder in that each can arbitrarily establish a new prohibition in the absence of an objective, formal issur.
One of the objections raised against the neder theory is that a neder can be annulled via the process of she-eila. However, she'eila does not appear to be an option regarding shavyei a-nafshei. In order to resolve this difficulty, we must note that although the prohibition of shavyei a-nafshei is rooted in neder insofar as it is subjective, it is probably not created verbally, but rather based on the subject’s convictions. If a person is convinced of certain facts, the concept of neder, which governs personal behavior, demands that a person abide by those convictions. However, no formal neder was verbalized. Now let us inquire as to the possibility of she'eila: can it be applied whenever we find the prohibition of neder, and thus should also be applied to shavyei a-nafshei, or is it applied to the ma'aseh hafla'a (the verbalization of a neder), which doesn’t exist in the case of shavyei? Perhaps we can resolve this issue by considering the case of teruma. Teruma is created through the verbal act of hafla'a, though the prohibition of eating teruma is an independent issur, unrelated to the prohibition of violating nedarim. We find that she'eila is effective regarding teruma, which clearly indicates that she'eila relates to the ma'aseh hafla'a. Perhaps we can infer from here that she'eila does not apply to the prohibition of neder if it was created without verbalization. We thus understand quite clearly why she'eila is inapplicable to shavyei.
Our gemara (Ketubot 9a), interprets a beraita as listing several forms of evidence. At the end of this list appears shavyei, which is "LIKE TWO EIDIM." Are we to take this equation in the strict sense - that shavyei is a personal form of eidut? Or, are we to read the statement as merely confirming that shavyei is AS EFFECTIVE as eidim in establishing the issur - at least on a personal level?
The Gemara later in Masekhet Ketubot (22b) states:
"Two [witnesses] say he died, and two say he did not die; or two say she was divorced, and two say she was not divorced - she may not marry, but if she does, she need not leave [her second husband]… Since we have two witnesses in opposition to two witnesses, one who has relations with her should be liable [to bring] an asham taluy [the guilt-offering required when one enters a situation of a possible karet violation]! Rav Sheshet answers, [we are dealing with a case where] she married one of her witnesses. She herself should be liable [to bring] an asham taluy! [We are dealing with a case] where she says, 'I am certain.'"
The Gemara here implies that a claim of certainty is accepted even to establish a leniency, despite the principle of safek de-orayta le-chumra, that we always rule stringently in situations of doubt concerning Torah law. Apparently, the reason is that we deal here with the concept of ne'emanut - personal credibility, and a person is trusted with regard to that which applies to himself. The halakha of neder, by contrast, applies only to creating an issur, not permitting one. This Gemara is a strong indication to the concept of personal eidut. One may refute this proof, however, by suggesting that the claim of certainty in this sugya serves merely to exempt one from an asham taluy, as we may infer from Rashi's comments: "An asham taluy [is required] only for someone whose conscience weighs on him, and this one says 'I am certain'." According to Rashi, we are not dealing with a personal eidut but with a subjective feeling of possible guilt. One who claims certainty lacks this subjective guilt and is not obligated to bring an asham taluy.
We have questioned the efficacy of shavyei - personal testimony in the absence of formal witnesses. Is this a limited form of eidut or does it generate an issur even though no objective evidence has been presented? Personal accountability might force a person to accept the issurim which he asserted, without resorting to the institution of eidut.
The Scope of Shavyei
One avenue for examining this question might be to look at the strength of the claim offered in Beit Din. What if his claim is undermined by objective considerations? Obviously, if eidim testify to the contrary, we should discard his statement, having categorically established otherwise. People are not allowed to establish personal halakhic MYTHS or FICTIONS about themselves. What if, however, his claim merely suffered in its credibility because of other considerations? Viewing his statement as a form of eidut might force us to accept his statement only when his claim appears legitimate but lacks two witnesses to substantiate it. Only in such a case might we grant him personal believability.
Our gemara considers a newlywed husband who testifies that his wife was not a betula and hence is prohibited to her (assuming she betrayed him during their engagement). Though shavyei certainly allows a man to claim he was married, the gemara considers rejecting this claim because the husband may be mistaken in assuming that his wife was not a betula. The gemara considers rejecting shavyei when the man's claim is dubious, although his integrity is not challenged. This would certainly suggest a more evidentiary-based view of shavyei. If shavyei entailed unilateral establishment of issur we might apply it anytime HE is subjectively convinced, even if we doubt the accuracy of his claim.
Ultimately, in the maskana (conclusion), the gemara accepts shavyei in this case, but the foundation for this broadening of shavyei is unclear. On what basis does it apply shavyei to this case of the allegedly disloyal wife? Does the gemara ultimately determine that his claim has gathered credibility and can be viewed as pseudo-eidut? Does the gemara trust his ability to accurately discern his wife's state? Or does the gemara impose shavyei even though his ability to accurately gauge this delicate matter remains uncertain, simply because the gemara now views shavyei not as testimony but as subjective acceptance of issur? The Ritva comments that ultimately the gemara does feel safe relying upon his judgment. The Shitta Mekubetzet (inferring from Rashi), however, claims that even though we don't grant this claim more credibility, we nevertheless accept his words. These two opinions seem to express the two divergent visions of shavyei.
An additional factor is raised by the Ritva. He questions the woman's response to the husband's accusation. If, indeed, she categorically contradicts the husband, then we enforce shavyei; he is certain of his position and she of hers. If, however, she agrees to his claim about her physical condition but attributes it to some other factor (such as an accident or medical procedure), shavyei no longer applies. In this case, their levels of certainty about the questionable issue are discrepant. He cannot have positive knowledge regarding his wife’s alleged promiscuity. Being that her claim is 'DEFINITE' (bari) and his 'POSSIBLE' (shema), we reject his claim. Apparently, because we treat his statements as a form of testimony, they must be lodged in a definite manner. If doubt is cast upon his claim (relative to hers), we necessarily have a harder time envisioning this as eidut and applying shavyei.
The definition of shavyei might influence the scope of its application. By insisting on shavyei's similarities to eidut we might only apply it when the claim is lodged in a certain manner which is not contradicted by external factors. If, however, shavyei generates a new issur, we might accept it in all cases.
Enforcement of Shavyei
A second issue which could shed light upon the nature of shavyei might be the degree to which we enforce an issur based solely on shavyei. Would Beit Din enforce shavyei or merely suggest acting on its ramifications as a preferable form of behavior? Conventionally, we view shavyei as enforceable, as the Ritva himself asserts in Ketubot (9a). The Rambam, however, in Hilkhot Ishut 24:17, comments in a manner which led many to suggest that he introduces a non-enforceable form of shavyei (see, for example, the Chatam Sofer Even Ha-ezer 1:28, Responsa of R. Akiva Eiger I:88 and the Pitchei Teshuva Even Ha-ezer 115:7). Certainly, such a position would stem from a non-evidentiary view of shavyei, viewing it instead as an issue of personal mores which may not be enforceable.
It must be stated, however, that most positions reject this stance outright and claim that shavyei is imposed even against the will of the subject. Does, however, shavyei carry a punishment if its terms are violated? The ability to penalize based on shavyei would confirm that the claim is being treated as evidence - at least as far as the individual is concerned. An absence of punishment may suggest that no knowledge of any sort has been established and a merely personal standard of behavior has been imposed; no penalty, however, can be administered for its violation. Interestingly enough, the Rambam (Hilkhot Issurei Bi'a 20:13) is the only position which suggests malkot for violation of shavyei. (This creates an inner contradiction within the rulings of the Rambam, who himself claimed that shavyei is not enforced; it would seem paradoxical not to enforce the terms dictated by shavyei but to administer malkot if they are contravened. Evidently, according to the Rambam, non-enforceability is not a general rule of shavyei, but is a local issue specific to a sota. However, we cannot expand on this issue within the context of this shiur).
We have charted two different perspectives upon this intriguing halakha. Lacking two objective witnesses, halakha accepts the individual testimony of the person himself. Have Chazal streamlined a form of personal testimony which has objective validity, albeit only regarding the person himself? Or have they merely empowered someone to decide his own fate and status, enabling him to determine a personal program, without actually creating anything resembling testimony? We saw that the questions of enforcement, penalty and the ability to reverse positions, might all reflect the essence of shavyei.
Two Types of Shavyei
Before concluding, let us examine a relevant sugya towards the end of Masekhet Nedarim (90b). The mishna relates that originally, a kohen's wife who claimed that she was raped, thus rendering her forbidden to him, would receive her ketuba payment when he consequently divorces her. However, the concern arose that a woman who desires another man could simply concoct such a story to compel her husband to divorce her and pay the ketuba. It was therefore instituted that such a claim must be accompanied by concrete evidence. The Rishonim there ask why we don't accept the woman's claim on the grounds of shavyei. Tosefot there cite an answer from "Ha-rav Rabbi Eliezer" claiming that although a kohen may not live with a zona (a woman who engaged in extramarital relations even against her will), the zona herself is not under any prohibition. Therefore, her claim creates an issur only for the husband, not for her. Tosefot reject this explanation on the basis of an explicit Gemara in Masekhet Yevamot (84b) to the effect that a zona may not marry a kohen, just as a kohen may not marry a zona. It is thus very difficult to understand this position of Rabbi Eliezer.
Before proceeding to explain this view, let us consider another sugya later in Masekhet Ketubot (22a): "A woman who said, 'I am a married woman' and then turned around and said, 'I am single' is believed." The Gemara questions this halakha on the basis of shavyei; once she declares herself forbidden to all men, as a married woman, how can we then believe her second claim that she is unmarried? The Gemara answers that this halakha refers to a case when the woman supplied an "amatla" - a valid explanation as to why she at first claimed to have been married. At first glance, we can understand this Gemara in light of the perspective viewing shavyei as based on one's reliability with respect to his own status. If, however, shavyei merely requires one to act upon his own convictions, similar to the institution of nedarim, then why do we require an amatla? So long as she herself knows that her declaration was false, the prohibition should not take effect.
We should perhaps distinguish between two different halakhot: shavyei LE-nafshei, and shavyei A-nafshei. This Gemara (22a) speaks of shavyei le-nafshei - the woman turning herself, so-to-speak, into a person with whom relations are forbidden. By claiming to have been married, she establishes her own personal status, prohibiting others to have relations with her (and, by extension, forbidding herself from engaging in relations with others). In our sugya, however, which deals with a case of a husband who accuses his wife of infidelity during their period of eirusin, he seeks to define her status as forbidden to him. It stands to reason that an issur based on the model of nedarim can apply only in our sugya, when a person confidently claims that something is forbidden to him. Such a concept cannot apply, however, when someone seeks to make him/herself forbidden to others. After all, shavyei according to the neder model works on the basis of a personal conviction that something is forbidden to him; this would not allow one to create an issur relevant to others. Thus, in a case of shavyei le-nafshei - when a woman declares herself a married woman, she becomes forbidden to others not because of a neder-based prohibition, but rather because she has credibility. Therefore, if she cannot supply an amatla explaining why her initial claim was not meant seriously, we must accept it and establish her status as a married woman via a vis herself.
With this in mind, we can now explain the view of Rabbi Eliezer cited by Tosefot in Nedarim. Tosefot's entire question is based on the neder perspective of shavyei. If, however, we understand shavyei as based on one's credibility with respect to personal matters, as a type of limited eidut, their question never gets off the ground. The mishna asserts that when we suspect the truthfulness of the woman's claim, that she may be seeking a divorce out of a desire to marry a different man, we do not believe her. Rabbi Eliezer comes to prove that in this case we cannot apply the neder perspective of shavyei, for here we deal with shayei LE-nafshei, rather than shavyei A-nafshei. Although, as indicated in the Gemara in Yevamot, a zona is personally forbidden to marry a kohen, the "chatikha de-issura," the subject assuming forbidden status here is the woman who becomes forbidden to her kohen-husband. Therefore, shavyei must operate in this case according to the model of eidut, in which case Tosefot's difficulty never even arises.
We might add that in our sugya, where the husband seeks to declare his wife forbidden to him - shavyei a-nafshei, the prohibition might take effect only as a form of neder (according to those views who understood shvayei in this light). However, the husband is not believed to determine the status of his wife, since personal credibility is limited to one's own status and cannot be applied to anyone else.
We dealt in this shiur with the curious sugya of "shavyei a-nafshei chatikha de-issura." In approaching this halakha, we suggested two different explanations. The first claimed that a person has limited credibility on the basis of the principle that a person is trusted about his own affairs like a hundred witnesses. The second approach argued that a person is obligated to act in accordance with his own beliefs and convictions just as he must abide by his own nedarim. Finally, to explain a seemingly difficult view cited by Tosefot in Nedarim, we suggested a distinction between two manifestations of shavyei: shavyei a-nafshei, where one deems a person or object forbidden to him, and shavyei le-nafshei, where a person declares himself forbidden to others.