Going to the Gemara here, not actually the Gemara, the Tosafot on דף ל״ב עמוד א׳. This Tosafot here in דאי דאמר משכו, אנן, תוספות brings like this: Tosafot brings that there is, that we pas ken that in the case of trei v'trei, that means when you have two edim contradicting two other edim concerning the status of a person. So there is a she'eilah whether we consider it a safek derabbanan or a safek de'oraita. Means like this: there is a chazakah. And when there is a safek whether, let's say in the case of what we're talking about here, a case whether a woman was kasher or not, actually I think I should, I'm starting in the middle with Tosafot, let's go a little bit back. The case of Yannai HaMelech. The

Gemara talks about Yannai, not the Gemara here, but Tosafot brings the Gemara, Yannai HaMelech was, wanted to be the kohen gadol. And the chachamim told him that he can't be a kohen gadol, why? Because there was a she'eilah whether he was a kasher a kohen. What was the she'eilah? There was a rumor that his mother was a shvuyah, that his mother was once captured by goyim. Now we assume that if a woman was captured by goyim, mistama the goy did an aveirah with her, so then she became pasul to a kohen. If she marries a kohen afterwards, so then the child is a chalal, the child is a pasul kohen. So they they were upset that he wanted to become kohen gadol. Then it says there that they really they found out the ma'aseh was that there were two edim that said that his mother was a shvuyah, and then two edim well said that the mother was not a shvuyah. So the Gemara says here, if this was this too, מאי חזית דסמכת אהני סמוך אהני, why do we rely on those that say it was pasul, why don't we rely on those that say it's kasher? And the

idea is that you put ינאי אחזקת אימיה דלא אישתבאי. The Gemara says that that since there were two saying like this and two saying like this, the chazakah is that she's kasher. The chazakah is, the accepted chazakah is that she's kasher. A woman normally, unless you have proof that she became pasul, she is kasher. And here when you have תרי ותרי, when you have two against two, so we're back to a safek. If we're back to a safek, what should be the din when you're back to a safek? You go after the chazakah. And since the chazakah, she has a חזקת כשרות, so that she should be kasher. That's what the Gemara says there. You know, so this is a safek. Yeah, that's what we're going to get into. So when you have תרי ותרי, two against two, and memeila it turns into a safek, the din is that you go after a chazakah. So there is a shaila takeh that whenever we have תרי ותרי and we we assume that there is a safek, is the safek a ספק דאורייתא or a ספק דרבנן? Meaning, מדאורייתא we follow the chazakah. And therefore מדאורייתא there is no more safek, because we go after the chazakah, and the chazakah paskens the din. When is there a safek? When we have no way to pasken. But since there is a din of a chazakah, so there is no more safek. אי, we know that the din is in the case of תרי ותרי, the דין is that we say it's not כשר, it's only מדרבנן. מדרבנן we still consider it as a ספק. Or is it פשט that תרי ותרי is ספק דאורייתא? That means that we do not follow the חזקה. And there there are two opinions. Again, so there are two opinions when you have two against two, and ממילא when you have two עדים saying that this person became פסול and you have two עדים saying that this person didn't become פסול, and then you have a חזקה, so there is one סברא to say that מדאורייתא, you taka follow the חזקה, and it's not a ספק anymore, and it's כשר. And whenever we use the term that in a case like this it's a ספק, it's only that the רבנן were מחמיר and they said let's be מחמיר and consider it a ספק. Or is it a ספק דאורייתא? That מדאורייתא it's a ספק, מדאורייתא we don't follow the חזקה. What is the חזקה? חזקת כשרות. In this case, it would be חזקת כשרות of the mother. But there is a חזקה that the mother is כשר. The same thing by a person. The חזקה is, a person, unless you find out for sure that a person became פסול, is כשר. Lemashel, a regular woman, we don't say, well, maybe she's a שבויה and she's פסול to a כהן. We don't say that, the חזקה is she's כשר. So here we don't know if she's a שבויה or not, so we go to חזקה. So the מחלוקת is whether we follow the chazakah or not. Right, right, in the hemshech of the same Gemara. So Tosafos asks a kushya here Like this: והא דאמרינן לעיל שנים אומרים מת, שנים אומרים לא מת. Gemara has a story here, a case here on דף ל\"א עמוד ב': if two עדים come and say on a woman that her husband died, she's allowed to get married. Two עדים come later and say that her husband didn't die, so it's a safek. And the din is the Gemara says that here let's read the Gemara inside: שנים אומרים מת ושנים אומרים לא מת, שנים אומרים נתגרשה ושנים אומרים לא נתגרשה, הרי זו לא תנשא, she cannot get married, ואם נשאת לא תצא. If she got married, לא תצא. And the גמרא טייטשט אמר רב נחמן אמר רב יוסף: אימת אמרת תצא? בזמן שבאו עדים ואחר כך נשאת. When is the din that if she did get married, she has to get divorced? Again, what's the case? There were two עדים said that that she's that her husband died, and then two עדים said not. So the case is if באו עדים ואחר כך נשאת, the second group of עדים who claim that the husband didn't die, and after that she got married, then is תצא. אבל נשאת ואחר כך באו עדים, but if she got married after the first עדים came, which is normal case, two עדים came, say her husband died, בית דין looked into it, בית דין were מתיר for her to get married, and then she got married, and then the other two עדים came, הרי זו לא תצא, then she doesn't have to get divorced. Tosafos says there, the Gemara explains, not here, the Gemara in Ketubot explains, that that's a case where נשאת לאחד מעידיה, if she got married to one of the two witnesses who claimed that he saw her husband die. That's why the din is that if she got married already, she doesn't get divorced. Okay. But Tosafos' kushya is: אף על גב דתרי ותרי ספיקא דרבנן היא. The halachah is that when you have two against two, mid'oraita it's not a safek anymore. Why? Because mid'oraita you follow the chazakah. Now, in this case, the chazakah makes it worse: she has a חזקת אשת איש, we know that she's a married woman. So her chazakah is that she's married. Came two eidim say that she's not married anymore, two eidim say that she is married. So it's trei v'trei is two against two. So if the din is that we pasak that by two and two it's only miderabbanan a safek, but mide'oraita we follow the chazakah, Tosafot' kashya is: והיה לה לצאת אף על פי שנשאת לאחד מעידיה, so she should have to get divorced. Tosafot' kashya is that why is the din in the Gemara before that when two eidim came and said died, and other two eidim came and said died, she has to get divorced? Why does she have to get divorced? Excuse What did we Sorry, why doesn't she have to get divorced? If she got married before the second group of eidim, we said she doesn't have to get divorced. The she'eilah, how could she not get divorced? בפועל now, it's two against two. Two against two is a real safek, and mide'oraita we follow the chazakah. The chazakah is that she's an אשת איש. So an אשת איש, she's אסור ממש מדאורייתא, so she'd have to get divorced. That's Tosafot' kashya. אומר רבינו תם, Tosafot says like this, Rabbeinu Tam answers: דאתיא חזקה דדייקא ומינסבא ומערעא חזקת אשת איש, that there is another chazakah, another opposite chazakah. The Gemara has a chazakah that אשה דייקא ומינסבא, a woman before she gets married is medayek, herself looks into to make sure that her husband is not around. And that chazakah is a very strong chazakah. And where do we see that chazakah is strong? Where is really this chazakah used? The original place where this chazakah is used in a case when one witness comes and says on a woman, \"מת בעלך.\" That's the din. Then what happened? The din is she can get married. Normally, we know for any type of testimony, you have to have two edim. Except it's called עד אחד באשה, one ed comes and says that her husband died, he's ne'eman. Even if a woman comes and says, even if she herself comes and says. The Gemara asks, how could that be? But the Gemara says, because חזקה אשה דייקא ומינסבא. The chazakah is a woman before she'll get married will make sure Why will she make sure? And the Gemara says, מתוך חומרא שהחמרת עליה בסופה, הקלת עליה בתחלתה. Because she knows that if her husband does ever come, she'll be stuck from both. The din is תצא מזה ומזה, she has to get divorced from both. So she'll make sure. So because of that chazakah that a woman דייקא ומינסבא, we rely on that and we allow we trust one ed. So Tosafot uses the same logic here, that normally, takeh when you have two against two, you follow the chazakah. And therefore, in this case, when two say מת, and two say not מת, and the chazakah is a חזקת אשת איש that she is a married woman, the din should be she has to get divorced, because the chazakah is married. But the reason we say that if she got married before the second group came, לא תצא, she stays, because we're metzaref, we combine here the sevara of חזקה אשה דייקא ומינסבא. That's it. That is This, what Tosafot says here, seems to be a kashya on a famous shittah of Rabbi Akiva Eiger in a teshuvah and of the Shev Shema'tata. Rabbi Akiva and the Shev Shema'tata both go in the same direction, they say like this: it's actually a machloket between them and the Sha'ar Mishpat. They say like this: why is the din that when you have two against two and one group of edim have a migo? Tosafot said before a migo doesn't help, This we always know that a migo makes him, makes a person, trust a migo. A migo is a sevara that if you would have been a liar, you could have said a worse lie, a better lie, and since you didn't, is a re'iyah, a proof that you're saying the truth. And normally, by a case when a person has a migo, we believe him, like a case when there is a תובע and a נתבע. So the din is that if the person normally wouldn't be believed, but if he has a migo, we believe him. What happens if you have two against two? So the din is you don't believe either one. That's what we learned last week, the edim is מוכחשים. Now, what happens if one person has a migo? And the truth is, Tosafos asks a kushya here that actually in every case, the second group always has a migo. They could have come and instead of saying that what you claim happened, we say it didn't happen, they could have said, \"You're גזלנים.\" So why don't we always believe the second group with a migo? So Tosafos answers, one of the teirutzim is, a migo cannot help edim. Why? The logic is very simple: a migo is a form of verifying that this and this is true. There is no better verification than edim. And therefore, how could any migo help edim? Edim is better than migo. What would be if one of these two groups of edim would have two more edim to them? Would it make them better? The din is, תרי כמאה, two and a hundred are the same. So there is nothing that could be added to two edim, and therefore Tosafos says that you can't add the migo thing, now you trust these edim because they have a migo. The migo is nothing, that's what Tosafos says. So the so the Rabbi' Akiva Eiger explains like this. He wants to explain, what is the basis of the she'eilah, of the ספק בכלל, whether by two and two, תרי ותרי, is a safek de'oraita or a safek derabbanan. Safek de'oraita means that we do not go after the chazakah, so mid'oraita it's a safek, or it's a mid'rabbanan only, but miDeoraita we follow the chazakah. So he says, the sevara is like this: by a migo, we don't give a migo to edim, we don't trust edim with the extra migo, because migo is a birur. Migo is something that verifies. That that logic of a migo, that since you could have said a better lie, and you didn't say it, is a raaya, we have a proof that you're saying the truth, it's a birur. No birur could help edim, because edim is the best birur in the world. A chazakah, he says, is a din, not a birur. It's not a מברר. Take for instance like a case of חזקת אשת איש, חזקת כשרות. There is a proof that this that this person is kasher? We have a proof that this that she's an אשת איש? We have no proof. It's just since there is a safek, and we don't know what is what's right, so we leave it as is, that's all. So it's not a raaya. So that's what he's מחלק. By a migo, by edim, since migo is a birur, you can't you can't add that birur to edim. Edim are the best birur, it's the best verification. But since chazakah is a din, a din you could add. When you have two against two, there is a safek now. So we don't know what to do. So what's the din if you don't know what to do? The din is you follow the chazakah. But not that we find not that the chazakah makes us verify what the truth is. And therefore, he says, what would be in a case where a chazakah is a birur? There are certain chazkot which is a birur, then we wouldn't say it by eidim either. For instance, there are all kinds of chazakot, one of the chazakot is אין אדם פורע תוך זמנו. If a person claims that, \"I paid you,\" and he the case is where he says, \"I paid you before the time was up of the loan,\" so the chazakah is that we don't believe him because there's a חזקה אין אדם פורע תוך זמנו. That chazakah is definitely a birur. That type of chazakah is that we have a proof that this person is not saying the truth, that the guy who's claiming the money is saying the truth. We have a proof by this chazakah. See, the chazakah of חזקת כשרות is not a birur. חזקת כשרות, because there is originally this person was kasher, is a re'iyah it's kasher now too? We just don't know what to do, so we leave it. Status quo, that's really what a chazakah is. But in a case where a chazakah is a birur, he says chazakah wouldn't help by תרי ותרי, that's what he says. That's a klal that the Sha'ar HaMishpat says and R'' Akiva Eiger says. So again, when do we say that when you have תרי ותרי, two against two, and mimela there is a safek, so the din is that we follow the chazakah? That's only if the chazakah is a case chazakah is din, and that's how we've got to follow the chazakah. In a case, like חזקת כשרות this because that has nothing to do, we're not verifying who's right. But a case where this is a verification, we wouldn't say it. Now, here in this Tosafot, we see the opposite. Here, Tosafot is talking in the case where you have תרי ותרי. Two say that died, two say didn't die. And Tosafot says that the reason we let her stay married is why? Even though there is a חזקת אשת איש, because we have a chazakah in the case of the תרי ותרי. What's the chazakah? אשה דייקא ומינסבא. The chazakah that a woman checks out before she gets married. Now, that chazakah is definitely not a din, it's a birur. We have a proof that what she's saying is true, that this If she's going to get married, mistama the edim who claim that he did die are saying the truth, because of this chazakah, it's the verification. And ר' Akiva Eiger says clearly, in a case where a chazakah is a verification, we cannot use this chazakah in the case of teri vetrei. So how could Tosafot say that they use the chazakah of teri vetrei? Now, it's not a kushya on Tosafot, it's a kushya on ר' Akiva Eiger, because there are people who argue. There's the Sha'ar HaMishpat, they're not like that. The Sha'ar Any chazakah we will always use, and he makes a different chiluk between chazakah and migo. He says that the idea of a chazakah is chazakah is not to do with the edim, chazakah is is our own verification. When does something help by edim? When it's going to be a way to believe the edim. If edim say something and they have another reason why we should believe them, then we can't say edim are believed, and there's nothing that can help. But chazakah, and that's why a migo, if edim have a migo, what's got a migo? The migo makes that we should believe that the edim are saying the truth. There's nothing that could give us more than the edim themselves. But chazakah is something that we do. We have even if a chazakah is birur, we, beit din, have our own birur, our own way of investigating the story. To prove teri against teri, it's a safek, and then we have our own way of finding out. So he says, even if it's a birur, but it's our birur, not a berur that the edim are saying the truth. Anyway, but that's the Sha'ar HaMishpat. So according to that, Tosafot fits. It's like a תרי ותרי, here you have two against two, and then we have the chazakah that we, Beit Din, have a chazakah of אשה דייקא ומינסבא. And according to the Rabbi Akiva Eiger and the Shev Shmaitsa, that in any case where chazakah is a berur, we can't use that chazakah in the case of תרי ותרי, because when you have two edim, so nothing will help any side of the edim, any berur will not help, Tosafot says clearly here that the chazakah will help. This kushya is only on Tosafot. The Rashba in Kiddushin asks the same kushya as Tosafot, and gives a different tirutz. What was Tosafot's kushya again? Tosafot's kushya is, how come by the case of תרי ותרי, if she got married b'diavad, we say לא תצא, she got married to one of her witnesses, we say לא תצא, they shouldn't get divorced. When you have two against two, mid'oraita you go on the chazakah, חזקת אשת איש, that's Tosafot's kushya. And Tosafot answered, we believe that her because of דייקא ומינסבא. The Rashba in in Kiddushin gives a different tirutz. The way that the Pnei Yehoshua explains in Ketubot the peshat in the Rashba, פשט is like this. As we said before, the case here is where she got married to one of her witnesses. And what's the difference between one of her witnesses or married to somebody else? Very simple, because married to somebody else, that somebody else doesn't know what happened. So, as far as he's concerned, we, בית דין, say there are two against two, two who say he died, who say how could how could he get married? So, even if he got married before that second group came, we tell him to divorce, because it's a case of teri v'teri. The edim themselves, the ed says, \"I know she the husband died.\" And the Gemara also explained that the case is where she says, \"bari li.\" She says, \"I also know that the husband died. I'm I'm sure the husband died.\" That's the case here. So the Rashba says that the whole reason by teri v'teri is because it's a safek. That's why teri v'teri you can't allow them to get married. But since he doesn't have a safek, the guy that got married doesn't have a safek, therefore, in this case, we let him stay. The kushya is, since it's teri v'teri, two against two, let's go according to the chazakah of אשת איש, the chazakah of אשת איש is only for us, because we have a safek. He claims, \"I have no safek.\" The one that's marrying her says, \"I have no safek. If I have no safek, what what's the problem with me? Why? I know for sure. I saw him die.\" If that counts for anything, why do we ever have a question? I mean, whoever gets married, the woman can always say, \"I know for sure.\" If he knows, if he's talking, how does he know? He says, \"I saw.\" Right, that's the case here. Lechatchilah, no. Lechatchilah we don't allow. This is only if he got married before, so don't to make him divorce, we don't, because he says he has because he says bari li. But al kol panim, that the Rashba answers that kushya, the kushya of Tosafot, that how do we allow them to stay married when it's teri v'teri, so it's a safek, and by a case of a safek, we go after the chazakah, so we should have to get divorced because of חזקת אשת איש? So he says, because it's the ed himself, the chazakah shouldn't apply here. Now, according to that, we have no problem. There's no kushya on the on the Rabbi Akiva Eiger, because there's nothing to do with chazakah of אשה דייקא ומינסבא. The whole kushya is according to Tosafot, if Tosafot answers that the reason why we don't follow the chazakah of אשת איש, even though it's teri v'teri, we assume that she could stay married, is because of this chazakah of אשה דייקא ומינסבא, which is a birur chazakah, not a דין חזקה, a birur chazakah, so that's a kushya. So how could, according to Rabbi Akiva Eiger, we shouldn't follow it? Does does everyone, when the Gemara says that that that she's marrying one of the עדים, is it understood, what is the understanding, in general, if she did not marry one of the עדים? Then she has to get divorced. She has to get divorced even though she's already married? Sure. Even if she's already married. Right, because it's תרי ותרי. Yeah, there's no question about that. If she got married to one of the עדים, then we say she could stay. Tosafot asked on that גופא: How could she stay when, after all, it's תרי ותרי, and there's a חזקת אשת איש? And Tosafot answered, \"דייקא ומינסבא.\" The Rashba answers not \"דייקא ומינסבא.\" The Rashba answers it's because it's one of the עדים. So even לגבי the ענין of חזקת אשת איש, we don't tell them to get divorced, because לגבי the עד, there is no חזקת

אשת איש, because he claims, \"I know.\" That's the Rashba. Well, the עד is a נוגע בדבר, no? Huh? You can say he has no right to marry her. Yeah, that's what we want, right? Because they're two against one, but he's the one that's marrying. Yeah, but the woman says the עד is Well, the Gemara said that's why lechatchilah he can't get married, but bediavad if he's married and he says the woman is already a נוגע בדבר, she says ברי לי and he says ברי לי, so we can't make them get divorced, because he says, \"I know.\" If anyone else, let's say this עד dies and she wants to marry somebody else, what will we say? You can't, because as far as we're concerned, you're still a חזקת אשת איש of the previous husband. Ein hachi nami, as far as we're concerned, but the עד himself, since he says I know, we can't stop it. That's what he says. And the חזקת אשת איש will not spoil him from staying married. That's what the Rashba answers. But Tosafot doesn't answer it, and according to this, they have a kashya. According to Tosafot's explanation, why does the Gemara have to be when he marries one of the עדים? If he's saying that she has a chazakah that she's checked it out, shouldn't make a difference whether she married one of the eidim or not. That chazakah does not help. And in fact, you can simply say the reason why there's no question in Tosafot from Rabbi Akiva Eiger is because here there's not only a chazakah there's not only the chazakah's birur, because if it was just simply a בירור חזקה, it wouldn't be enough. But there's there's two חזקות בירור here. There's not only the fact that the that the that the the ed is marrying her, but that she has a chazakah that she's checked him out. So there are there are there are there are two issues here, not just one. A ed marrying her is no chazakah. A ed marrying her is just what he's doing. Well, you're just saying it's like it's like he wouldn't The fact that he's marrying her, he's making a statement that he's absolutely convinced Well, he he was a ed! Even if he doesn't marry her, he's absolutely convinced. He comes as an edut. Two eidim come and say, \"We saw him die,\" absolutely convinced. הלכות עדות, 100%, that's what they're saying. That's no question. Makes no difference whether he marries her or not. לגבי בדיעבד, if someone else married, we have no edut, because we have eidim against eidim. Presumably, one of them is lying, right? Well, we don't know who. Exactly, that's why it's a safek. So they cancel they cancel each other out. Now,

this ed would be less likely to lie if he knew that his children would be would be mamzerim. So therefore, this guy actually has a chazakah has an extra To our ne'emanut, there is no such thing. To eidim, there is no such extra ne'emanut besides what the eidim said. Well, you talk All all I'm saying לגבי him marrying is we can't stop him from marrying her, but it doesn't help us to למשל, for our ne'emanut, to say that we know that this group of eidim is more true than the other, there's no such thing. It's it's just like a migo. It's A migo doesn't help! A migo doesn't help by eidim! Exactly, a migo will not help. You can't help. No ne'emanut, no form of ne'emanut will help eidim. No motivation Nothing, nothing. Edut itself is the best form of birur. Or right, every ed is 100%, and if you catch him lying, he's not, but there's no other thing that could help an ed. That's what Tosafot says. So here, we're not talking about helping him we should believe him, but it's enough that he himself married her, so what could we stop him? He says it's kasher, he says, \"I know.\" So we can't stop him. And עד כדי כך the Rashba says we can't stop him, even though there's a as far as we're concerned, she's a real אשת איש, because they're two against two, canceled them out as if they don't exist. And if they don't exist, what is she? An אשת איש, חזקת אשת איש. But if he married her a lot, and she also has to say, otherwise it's Totally, it's a safek, anyway. It wouldn't matter that before he was a ed? Yes. No, no, he was a He was a ed before the second group of edim came. Right. Right. Let's get into this. But what I'm trying to say, this is the Rashba, and which seems not to be Tosafot. So

according to Tosafot, Tosafot has a different answer. Tosafot doesn't seem to accept this sevara because she married the ed, that's why we disregard the חזקת אשת איש. Tosafot says the reason we disregard the חזקת אשת איש, because there's a חזקה דאשה דייקא ומינסבא. So that's why we disregard. So according to Tosafot, it seems there is תרי ותרי, and normally you'd be afraid that it's חזקת אשת איש, and we go against the תרי ותרי, against that, because there is a chazakah that proves that she's saying the truth. This is the opposite chazakah. The opposite chazakah. Right. And we accept the opposite chazakah, and we accept even though it's a birur, and there's the kashya on on Rabbi Akiva Eiger. If it's a birur, you can't accept it in a case of תרי ותרי, that's the she'eilah. What I want to say, huh? He doesn't hold like the Rashba. Talking about Rishonim, this is an Acharon. Rabbi Akiva Eiger can't say, how does he explain Tosafot, though? He holds like the Rashba? He learned Tosafot, he learned the Rashba, here you have a Tosafot against him. You can't say it's not you can't say he learned like the Rashba, so how's he going to learn in Tosafot? It's like an amora can't say, \"Well, I don't learn like a Mishnah.\" They have a kashya on an amora from a Mishnah. It could be an argument and So you have to prove, but how would you learn פשט? If you ask him, you can ask him, how do you learn פשט in that Tosafot? In other words, he never said, Rabbi Akiva Eiger never said that this is a מחלוקת ראשונים. He doesn't say it's a מחלוקת ראשונים. He says a כלל. He's saying this is a כלל, so then here we have to say, unless he'll have to come and answer, I'm saying it's a מחלוקת ראשונים and and and anyway, the Rashba never said against... What I'm trying what I want to say is that I want to say that Tosafot holds like the Rashba. Tosafot never meant as it seems. Tosafot never meant, like the Rashba said, that the reason if he got married, she got married to an עד, we let them stay, even though there's תרי ותרי, because since she married the עד, לגבי the עד himself, we don't look at the חזקת כשרות, because he טענ'ס, \"I know.\" And there's no safek. I want to say Tosafot means that also. Tosafot is just explaining another step to this whole case here. As far as we're concerned, on one hand, we have a real safek. To us, it's a safek, and it's a חזקת אשת איש, two against two. אלא מעשה the עד married her. That's what the Rashba says. Tosafot says that's the teirutz. The only problem we have here, how do we believe her that she says beri li? The case is that he married the עד, and also she says, \"I'm sure.\" The question is not are we sure because she says she's sure, do we know that's what happened? The she'eilah is, do we believe her גופא that she's sure? Maybe she's lying that she's sure. See, what we're saying is the fact that she's sure doesn't prove at all that she's that that that that's what happened, maybe she's mistaken, cuz we don't know. But there's another step here. She's sure? Maybe she's not even sure, either. Besides the fact that we have to פסקן לגבי us, even לגבי her herself who says, \"beri li,\" how do we allow her to stay married because she says, \"beri li,\" that she says, \"I'm sure\"? How do you know she's telling the truth? That's where Tosafot comes in the אשה דייקא ומינסבא. Not that אשה דייקא ומינסבא takes away this the חזקת אשת איש. In other words, we have two against two, and we know that she's right, why? Because אשה דייקא ומינסבא. We still don't know who's right. אשה דייקא ומינסבא תוספות is only to add this point that at least when she says, \"beri li,\" we believe her that she thinks it's ברי לי. And therefore, we could let her stay married. But not לגבי us. So really the real teirutz Tosafos takes for granted is like the Rashba, that what, why is it takeh that you let her stay married? Not because we know who's right, it's because married the ed, and the woman in the case the Gemara says is which says, \"ברי לי, I know for sure.\" That's why we let. But on that gufa is a she'eilah, she says, \"ברי לי,\" how do we believe her that she said ברי לי? That's where we have אשה דייקא ומינסבא. This is not the real אשה דייקא ומינסבא. And I'll explain clearly a re'ayah that this is not an אשה דייקא, a real like אשה דייקא ומינסבא. This is not the real case where we find in other cases אשה דייקא ומינסבא. I'll tell you a re'ayah. Tosafos continues here and says like this. I have a kashya, Tosafos says. After this, אם תאמר, בי תרי אמרי נתגרשה ובי תרי אמרי לא נתגרשה, מאי, תוספות says. The same din that the Gemara says, two say that she got her husband died, two say her husband didn't die, is a case where two say her husband divorced her, two say her husband didn't divorce her. And this is exactly the same din. And there, also, we say if she got married after the two edim came and said she got divorced, and then two edim came and said לא, and she was married already to one of the edim, then she could stay. So here he asks the קשיא, והא לא דייקא? The klal of אשה דייקא ומינסבא we only say in the case that the husband died, because you're always afraid the husband might come. The case we're talking about the get, he's here, but she says he divorced. So we don't say. Since there is no אשה דייקא ומינסבא, Tosafos asks a kashya, there's no אשה דייקא ומינסבא, that, דהתם במיתה דדייקא, שיראה, she's afraid, שמא יבוא הבעל, he'll come, וידעו הכל שלא מת, that he didn't die. אבל בגירושין, מאי ניחוש? לומר שנתגרשה והבעל, but to say נתגרשה, she's not believed. By geirushin, by divorce we don't. So Tosafos's kashya is how on this case will we say that she could stay married? So Tosafos's answer: יש לומר דלענין הא הכא דייקא, חמירא חזקת אשת איש, that לגבי this din, she is מדייק. That why? שלעולם יראה שמא יזומו, יבואו שני עדים, תוספות says. A woman is also always afraid that maybe another group of edim will come and פסל one of the group, פסל the group that said that she got divorced, and then she'll be stuck without edim. The woman doesn't want that, so we assume אשה מדייק, תוספות says. So the same answer Tosafos gave by the case of מת, Tosafos gave by the case of נתגרשה. Now, the truth is, the real case of אשה דייקא ומינסבא is not said by נתגרשה. In the Gemara, where does, like I said before, where is the case of אשה דייקא ומינסבא in the Gemara? The case is when one witness comes and says her husband died, so she's allowed to get married, because אשה דייקא ומינסבא. If one witness comes and this says this woman got divorced, she's not allowed to get married. No such din, and we don't say אשה דייקא ומינסבא. In other words, the real case of אשה דייקא is not said by גירושין. So how does Tosafos in the world say here that there's still a kind of דייקא? Who cares a kind of דייקא, but it's a kind of אשה דייקא which is not enough in halacha to allow her to get married? So how comes she could stay married here? I mean, she either got divorced or she didn't get divorced. She knows what it is, whether she's lying or she's not lying. What do you mean דייקא? No, here דייקא means she's afraid. דייקא means that she's afraid, means the word דייקא means. There also what's דייקא? She's so afraid that she'll make sure. So here also, because since she's afraid, we assume it's true. She's afraid what, that when That they'll find out that she that if if the first edim will get מוכחש, if edim will come and פסל the first edim, then she will not have edim, and what will be? She'll have to get divorced from her second husband. Because if the moment the first edim are lost, so there are no edim that her husband divorced her, so then she'll have to get divorce from her second husband. So a woman is afraid. But that fear in halacha is not an enough fear to פסקן based on that that we believe her. For in a normal case where a woman comes and says, \"My husband,\" and an eid comes that her husband divorced her, we don't say, \"Well, mistama she's telling the truth because אשה אשה דייקא,\" or whatever, \"אשה יראה.\" We don't say it. So how come Tosafos says here that we do say it? The answer must be that this is not the case of אשה דייקא. All we need here is the reason why we tell her that you could stay married is because the eid claims he knows and she claims she knows. So we can't do anything, we can't stop her. She says, \"I know.\" The only דייקא here is just for one point: how she says she knows, maybe הא גופא she's lying? So that גופא we enough even אשה דייקא is enough for us to let her stay married, but not for us to פסקן. Well, there are two inyanim here. There is the אשה דייקא to make beit din know the truth. In the normal case of אשה דייקא, an עד comes and says her husband died. Beit din says, \"Yes, we know her husband died.\" So, if someone else wants to marry her, guy comes to a rav, asks a shailah, \"Can I marry this woman?\" \"Yes, you may marry her.\" On what basis do we know that her husband died? אשה דייקא ומינסבא. So there, אשה דייקא is to prove us. Here, אשה דייקא is not for that. That wouldn't be enough. And why would אשה דייקא here not be enough? Pashut! Like Rabbi Akiva Eiger says, you have תרי ותרי, two against two, and a בירור will never help, so we don't know, so we still don't know. The only reason why she can stay married is like the Rashba says, because we can't cheppen them, we can't touch them, because they know, they claim they know. But we need a sevara at least for us to accept that when they say they know, they're not lying, but not for not to פסקן for us. So then, so then it sounds like what would be the shailah regarding their children? Ah, the children לכאורה פשוט they'll be ממזרים! Yeah? Not a safek. Vadai, because of the הלכה, חזקת אשת איש, אין הכי נמי! As far as, לכאורה, לכאורה, according to this, when they get married, their children will be ממזרים, because of the חזקה of אשת איש, they'll be ממזרים. And we still can't stop people, get them to, stay married. That's the sevara of the Rashba. Rashba doesn't say they're ממזרים, it's not so clear, but the, the peshat is like that. So the whole nekudah is that not that this חזקה of אשה דייקא ומינסבא is מברר which of the two עדים is right. Peshat peshat in Tosafot seems that it is מברר. But I'm saying that Rabbi Akiva Eiger מסביר פשט in Tosafot differently. When he mevarer a Tosafot, it doesn't mean that it's mevarer, it's like the Rashba. The best proof that this is the pshat, the Rashba that I've been quoting till now is a Rashba in Ketubot. I didn't tell you that the Rashba here asks the same kashya. And here, he gives Tosafot' teirutz. It's a setira in the Rashba! Over there he gives a teirutz because it's the עד that's marrying her, so we don't care about the חזקת אשת איש, and here, the Rashba gives the teirutz of Tosafot. But according to what I'm saying, the two teirutzim go together, it's not two teirutzim. It's one thing. One is mashlim the other. One answers the other. The real teirutz is because it's the, it's the עד himself, and she herself is ברי לי, so we can't stop, and it's not mevarer. We don't have anything that's מברר, תרי ותרי, farkert, as far as we're concerned, it's a חזקת אשת איש. She's really a married woman, and we can't, if someone else will ask a shaila, \"Can I marry her?\" we'll say clearly no. מה שאין כן לגבי them, we can't stop it. The only thing is, here Tosafot adds that the אשה דייקא is enough that we should listen to what they're saying and let them do what they say. Otherwise, we wouldn't do that. This answers something else. In the Rambam, when the Rambam brings this din of, תרי ותרי, two say מת and two say לא מת, Rambam brings this din, and he says that if she married one of the witnesses and she says ברי לי, \"I know for sure,\" we let them stay married if she got married after the first עדים. The whole Gemara. And then the Rambam at the end adds, because both of, because they will not be מקלקל, לא יקלקלו על עצמן, they will not spoil it for themselves. It's a chidush in Rambam that he speaks about both. Always in the Gemara we always talk about the woman, אשה דייקא ומינסבא, because she's the one that's going to have the problem. She can't be married to two husbands. The husband, what happens to the, the the man, on the man we don't say it. Okay, the man is not allowed to marry her if she has another husband, but the lashon is always אשה דייקא. Here all of a sudden the Rambam says, שלא יקלקלו על עצמן, that they will not do something that will spoil. Where did the Rambam take it from? The emes is, the Rambam is learning what we're saying in Tosafos now, that this is not a case of אשה דייקא ומינסבא. All we, the reason we let them stay married, because he's the eid and he says, \"I saw,\" she says, \"I know.\" The shailah is, but that gufa, why do we accept their saying? So just like we have that shailah on her, we have that shailah on him! We have that shailah on him, too! He says that I, I'm an eid, I know. But the shailah is even לגבי letting him marry her, how do we know what he's saying even לגבי himself? So he says, \"Well, we have a svara, a person will not be mekalkel himself.\" So it's a new svara, it's not a svara of the Gemara of אשה דייקא ומינסבא. And that is equally on both. Not be mekalkel what problem? Mekalkel what problem means the children, that he would not want that his children should be mamzerim. Not only, or himself would not want to be over an issur. He will not want to be over the issur of אשת איש. So the fact that a person will not want to be over the issur of אשת איש, we let him stick to his word, but not that that is a svara why we know that he is saying the truth. We still don't know who's saying the truth. Well, as far as you know, though, he's telling the truth. Huh? As far as you know, he's telling the truth. But as far as, he doesn't know it. Right, right, as far as he's concerned it's not. Now the emes is, I want to go a step further. I'm not even so sure, I said like this before, lichorah they'll be mamzerim. I'm not so sure. It's possible, it's possible that because the eid married her and we let the eid stay, so as if we say in this case, you married her, it's your business. We can't stop you, so we don't get involved in the children either. And we wouldn't pasken the children mamzerim, that's also a possibility. Since when does the beis din allow the people involved to determine the halacha? I don't Not the halacha, לגבי themselves! Their status! It's not, it's no, it's what he's doing. If I know there's a They're, they're allowing the people to clarify their own status and accepting that clarification. Yeah, yeah, yeah. If I, if I come But they're not, but they're not allowing them to say, \"Okay, we don't know what it is, you can do what you want.\" Right, that's what the Rashba says, yes. \"We can't stop you, you can do what you want, but we don't\" Exactly, yeah, yeah. know what it is. Right. That That doesn't Yeah. That That doesn't sit well, because you're saying, \"You can operate on your own and do what you want, and Yeah, we can't stop you. and we can't stop you.\" It makes much It's It's much better to say that we don't know what the status is, and we are allowing you to establish what the status is, and we will accept the status that that you have established. We can't establish the status ourselves, but we are allowing you to accept to establish the status. And then we accept Therefore, then we pasken, then you can have it. See, but the Gemara that's no matter what the Gemara says opposite. Because the Gemara said that when do we say b'diavad if she marries, you don't לא תצא, is only if she married one of the עדים. Whichever way you'll learn, that's what the Gemara says. What's the difference? Obviously, only for the עד we would allow, and somebody else not. If someone else married her before the second group of עדים came, no matter what, תצא. I'll give you an answer. I'll give you an answer. Yeah. I'll give you an answer. The beis din assumes that since he is putting himself on the line, therefore, he's telling the truth, and the other ones are lying. So let me ask you: after he dies, or he divorces her, the second guy, can she can beis din, will beis din pasken she can marry someone else? Once they allow him to marry her, she's a chazakah, there's a chazakah there that he is allowed to marry her. No, that's not true. That's not the din. The din is that beis din would not allow. If this If this husband who marries her now, the one עד, marries her, and then he dies, she can't marry someone else, because of the first

ones, not because of this one. Because she still has the חזקת אשת איש. Yeah. See, according to Tosafos, all right. According to Tosafos pshat, the way we learn כפשוטה, without what I'm saying, simple pshat, she would, because the חזקת אשה דייקא ומינסבא proves it. What we're saying now, according to this, it's not like that. It's not the chazakah proves it. Just a matter of whether It's a matter we allow them. So this We need the Without אשה דייקא ומינסבא, we wouldn't even allow them to do it. אשה דייקא ומינסבא, or the man is medayek, we allow them. We see this in another Tosafos also. Tosafos in Kesubos דף כ״ה brings a similar I'm not going to go through it because it's late. לגבי יבם, if a יבמה is a sheilah whether she's you're allowed to marry somebody else, whether she's מחוייב to do yibum. For instance, the sheilah was, she had a husband, she had a child, and then they both died. Question is: who died first? If the husband died first, then she doesn't need yibum, because the husband died with a child, then the child died. If the child died first, so by the time the husband died, there was no children, so she has to get yibum. So there's a sheilah also by a case of תרי ותרי. Tosafos says over there clearly that there's no אשה דייקא ומינסבא by the יבם, because ומתוך דשניחא לה, she loves her יבם. יבם is somebody she knows, she likes him. So the fact that she could marry him overweighs the fact that she a woman cares, and there is no Anyway, there there is no ממזרות, but everyone is going into it. Always better than a stranger. So and so Tosafos asks over there the שאלה, over there also we say that she בדיעבד if she got married, she stays. Tosafos asked the שאלה: why? Tosafos answers: there is some kind of אשה דייקא. So what do we see from there? This is not a real אשה דייקא that it seems. פשוט פשט in Tosafos, this is the regular אשה דייקא ומינסבא, that she gets married, she's מדייקת, and therefore, we trust her. But over there, there is no אשה דייקא. Just like over here, by the עדים, Tosafos said. Over there by יבם, the same thing. And still we do say it. Obviously, we're not saying it that this is מברר the case. We still have the ספק. It's only helps out to allow what the Rosh says, to let them stay married. So

according to this, פושט that Rabbi Akiva Eiger's קשיא, a קשיא of Rabbi Akiva Eiger, there's no קשיא. The whole קשיא was, how do you allow a חזקה which is a בירור to intervene when it comes to תרי ותרי? It's not intervening, we still stay with תרי ותרי, and the חזקת אשת איש and it still stays. It's a צדדיקע זאך, just why he passed it in there. This is a way you could learn פשט in Tosafos. The only problem with this thing is that the Lechem Mishneh on the Rambam in one place says that this אשה דייקא ומינסבא is really מברר that she is מותר. And the only reason we don't allow her to get married to somebody else is because of a לעז, because we're afraid that since there are תרי ותרי, people won't know, people will talk, and rumors will come out, there's a חשש לעז, that's all. Like it's a real דרבנן, but even דרבנן it's not because we have a real safek. So according to him, for sure our pshat is wrong. According to him, he and he says pshat in Tosafos that it could. Pshat in Tosafos in places we see that אשה דייקא ומינסבא in this case, we know for sure that the husband died. So he learned this a real אשה דייקא ומינסבא. So now we're back to it. According to him, we have a kashya on the Rabbi Akiva Eiger. According to him, that this is a this is definitely a בירור, and a בירור which is מברר in a case of תרי ותרי, we have a problem with the how we learn. So we have to have a different teirutz. So the other teirutz we can say is like this: Tosafos says in Kiddushin, and again, this whole din that an עד אחד, one עד is נאמן when it comes to that's by her, right? That's what we've been saying. We say if a person says, one עד comes, says her husband died, one עד is נאמן, and the reason the Gemara gives: אשה דייקא ומינסבא. So Tosafos asks the kashya, where do we find כזה דבר? Where do we find that one עד should be נאמן? We have a כלל: אין דבר שבערוה פחות משנים. There's no such thing when it comes to ענינים of אישות, of marriage and divorce, you have to have two. How all of a sudden? Basically, Tosafos's answer is that it's a דין דרבנן. It's a דין דרבנן, דרבנן made it.

Now, how the רבנן had a right to do it, so there's all kinds of ביאורים. The Rambam said it's דרבנן, and the Rambam says also, look in the Rambam הלכות הלכות גירושין, פרק י״ג, the Rambam says, it's it's mid'oraita what the Rambam exactly means. But to this inyan what we're talking about is not noge'a exactly what the Rambam what why it's not, but what's noge'a to us is it's a din derabbanan. Here, the end of פרק י״ג, אל יקשה בעיניך, it's don't wonder, worry, שהתירו חכמים ערוה החמורה בעדות אשה, the chachamim were matir such a strict case, an אשת איש, a married woman, through an עדות אשה, through a woman's testimony, a עבד, a שפחה, a גוי, even a גוי מסיח לפי תומו, if a גוי testifies without knowing he's testifying. Like comes and says, \"Hey, what happened? I saw this guy killed,\" without knowing, then we could believe him and she could get married. עד מפי עד, מפי הכתב, like all the cases. He says, how could that be? So he says, שלא הקפידה תורה על העדאת שני עדים ושאר משפטי העדות, the תורה only cared that you really need two עדים and all the דינים of עדות, אלא בדבר שאין אתה יכול לעמוד על בריו אלא מפי עדים והגדתם, it's only on things that you could only find out through the עדים. Case where they, someone killed the other, whatever. אבל דבר שאפשר לעמוד על בריו שלא מפי עדות זה, something that you could find out without him, ואין העד יכול להשמט אם אין הדבר אמת, and he can't, כגון זה שהעיד שמת פלוני, the עד could never get out if he would lie you'd catch him, whatever. לא הקפידה תורה, the תורה didn't care. שדבר רחוק הוא שיעיד בו שקר, it's a far-fetched thing that he should be lying. I mean, you have to understand what he means, but the main thing is he's explaining, לפיכך, הקילו חכמים בדבר זה, the חכמים were מקיל, והאמינו בעד מפי עד, אחד, מפי שפחה, מפי הכתב, בלא דרישה

וחקירה, כדי שלא תשארנה בנות ישראל עגונות. The chachamim were meikil in order people shouldn't stay agunot, because of, well, what could happen is guy died, and there only happened to be one עד there, what should she do? Forever? Forever, there's nothing you could do. Chachamim were meikil. Basically, it comes out that the Rambam learned like Tosafot, that it's a din derabbanan. Now, how the Rabbanan had a right to say that mid'oraita you need two, so mid'oraita when one עד comes, she's still an אשת איש, and the Rabbanan were meikil, so the Rambam tries to explain it whatever way to understand what he means, but look, it's derabbanan. Rashi in one place even said it that further. Rashi in Maseches Shabbos, דף קמ״ה, Rashi says that it's a geder of אפקעינהו רבנן לקדושין מיניה. We find cases where mid'oraisa she's married, and the Rabbanan said that in this and this case she's not married, and the Gemara asked a kashya, how how is it possible mid'oraisa she's an אשת איש, and the Rabbanan are meikil? So the Gemara says, כל דמקדש אדעתא דרבנן מקדש. Everyone gives kiddushin, he gave it al daas of the chachamim. So the Rabbanan have a right to be מפקיר קידושתיך, your kiddushin. So it's as if he never gave kiddushin. I'm not going into that, but the bottom line is from all these things you see that this is a din derabbanan. Which means באמת מדאורייתא, the din would be that that she should still be an אשת איש. Not only a chazakah, she's an אשת איש, an עד comes, no, not even it's even less of a chazakah, it's more than a chazakah, chazakah would be if two עדים say something, if there's no עדים at all, there's one עד, and a woman, and a goy, there's no עדים, she's an אשת איש, there's nothing there. So the Rabbanan

were meikil because of what? Because אשה דייקא ומנסבא. The Gemara does say that. The reason they were meikil is דייקא ומנסבא. But that אשה דייקא ומנסבא goes against the דינים of eidus, goes against the din of אשת איש, that the Rabbanan did. If you learn like that, then you could say the kashya in here also. There is תרי ותרי here. תרי ותרי, the חזקת אשת איש, and the fact that אשה דייקא ומנסבא is not strong enough to be מברר the safek, like like Rabbi Akiva Eiger says, it's a סברא של מברר, the truth is it's never מברר. But the Rabbanan made a din that אשה דייקא ומנסבא is such a chashuve zach that it goes against the din of אשת איש. Because included in that din is this case too, when the Rabbanan said that אשה, just like they said אשה דייקא ומנסבא you could believe her when there's only one עד, which also doesn't make any sense, one עד, she's not only a chazakah, she's an אשת איש, the Rabbanan made a דין אשה דייקא ומנסבא. So even though it doesn't fit to the כללים of normally of of אישות, and normally of eidus, same thing here. How come Rabbi Akiva Eiger is talking about Yeah, he's talking about a regular חזקה דבירור, when we have תרי ותרי and then we have a חזקה דבירור, it won't do any good because the chazakah won't be מברר, because in דיני עדות, no חזקה דבירור could be מברר any din of eidus. But in the case of אשה דייקא, it's an exception, because it's an exception anyway, it's an exception בכל התורה כולה, it's an exception, the normal case is an exception. וממילא, it's an exception here too, so according to that we have no kashya on Rabbi Akiva Eiger. Why does the Rashba give two separate answers? Huh? Why does the Rashba give two separate answers? That's, ask him, not me! What I try to say is to answer for the Rashba. But the answer the answer they gave, this answer here is the is the way you've explained it, and it seems like it's the that seem that answer sifts the best of all the answers. Seems seems like that's the only answer you need, so why would the Rashba give another answer somewhere else in? I don't know if the Rashba learns like this. I don't know if the Rashba learned that this is a דין דרבנן. See, Tosafot, they say bring, learns Rashi, the Rambam, but the Rashba could learn it's מדאורייתא, אשה, that by מדאורייתא עד אחד is נאמן. Maybe the Rashba wants to be able to give answers according to everyone, whether you, maybe the Rashba is saying, giving an answer no matter how you learn it, whether you learn, whether you learn this concept that the Chachamim have the ability to מפקיר the the קידושין or not, or which is fine, or it's even if it's mid'oraita, then we have a problem, כותים, כותים, they're כותים, then he wants to also say, he gives that answer, yeah. But anyway, the shtikel shver according to this, why would the Rashba give two separate answers? Two, why he gives this answer saying, but why isn't it two separate answers. According to this, that's why I do like the pshat I said before.