Sunday, August 26, 2007

who is believed?

the mishna says we believe the woman to say that her husband died but not for the brothers to get the yerusha. according to those rishonim that 1 witness is believed m'doraysa then why don't we believe for yerusha?

another question i had, since we see even m'doraysa you can be believed with out 2 witnesses, simply put - there is another way to be believed, thru regular din witnesses or thru anan sahadei or other types of reliability, if so, why when moshe and aharon come to testify don't we believe them? even if there is a pasuk that says they aren't kosher witnesses, but they should create an anan sahadei type of reliability?

the answer can be found to both issues by seeing how the ritva explains the concept of 1 wittiness being believed m'doraysa. i don't want to spoil it - so please look there in 88a and more importantly see how the chazon ish explains the ritva (brought by rav yahfen), it's wild! the general idea is that even after the sevaros of reliability it works thru din of eidus and this is limited to the way chachamim want it - you must see there.

one more related point, what is the concept of a woman being believed to say she was divorced against her husband denial and the chazaka of eishes ish, how does chazaka that she will not be brazen and lie enough to get her out of a marriage, don't you need witnesses? someone suggested to me that her chazaka that she doesn't lie is really a "rov" or the psychology of man (rov that come from a chazaka), if so we don't really believe her per say but rely on the rov against the chazaka of eishes ish.

1 comment:

Avi Lebowitz said...

RE: #1 - i think it is a very good question. The Rishonim who hold that it is m'doraysa explain the language of the gemara 88a that bec. of agunah the rabonon were lenient, to mean that even if m'doraysa we have a chazaka of dayka uminsiba to believe her, it would of been appropriate for the rabbonon to assur her m'drabonon, if not for the fact that they were concerned for agunah. Therefore, it could be that since by yerusha there is no concern of agunah, even if m'doraysa she is believed, m'drabonon she is not believed.
But i think the real answer is that she is not believed until she gets remarried, since that confirms the dayka uminsiba, but the yerusha is decided at the time of death even before she remarries. since at the time when she gives her eidus she is not fully believed until she follows through by remarrying and creating a dayaka uminsiba, chazal didn't think it made sense that the yerusha should be dependent on whether or not she gets remarried similar to tosafos sevara 117b d.h. lav, that the heter of mother in law is dependent on the remarriage of the daughter in law.
But, i will bl"n take a look at the Ritva.

RE:#2 - doesn't r' elchonon discuss this in koveitz mamarim (at the end of hearos on yevamos).