Bava Basra 32a — Iyun
Chazakas Eishes Ish: Tosafos's Linguistic Proof
Part of Bava Basra (Iyun)
Continues the Kesubos sugya on chazakas eishes ish, examining Tosafos's argument from the precise wording of isha dayka u'minsva, and the Chasam Sofer's response to using photographs as modern evidence.
Audio Transcript
Because the question is how far did Chachamim go with the sevara of אשה דייקא ומינסבא, to go against the דין דאורייתא? It's a bedieved anyway. Not every case. So they made like this: they went to a certain so they made this din only in a case where ניסת לאחד מעדיה, and even then it's only bedieved. Why lechatchila don't we allow? Why don't we allow her to get married by תרי ותרי? Because אשה דייקא ומינסבא. It's not really Because באמת אשה דייקא is not a din. The Chachamim put it in a case where they felt it needed it. So they only put it in certain cases. So from this Gemara, we see that where did the Chachamim put this din against the דין דאורייתא? Only in a case where it's to ניסת לאחד מעדיה, and she says ברי לי, and it's bedieved, that's where they relied on this. But they also they relied as their din. In other words, they only put their din in such a case. Okay, yeah, yeah, but by תרי ותרי, they didn't want. By a case where there's no תרי ותרי, there's just עד אחד, so the Chachamim say אשה דייקא is enough. When there's תרי ותרי, there's a din against, so the Chachamim didn't want to do it. But in a case where ניסת לאחד מעדיה, they said, okay, we'll do it bedieved. But the main point is that it's a חידוש דין that they made against all kelalim of עדות. So here, yeah, yeah. The general kelalim are the same. Just say, nothing changed. The only thing that's different is that the Chachamim say, such a deduction is very dangerous. Right, we don't make, yeah. But you could question that exactly what you bring up, why do they need the husband's the other עד married her, why do you need him for if he No, I'm saying because אשה דייקא ומינסבא, the Rabbanan didn't do it just a blanket statement. They only did it in a case where they felt it's already the furthest degree. Since it's ניסת לאחד מעדיה, and she says ברי לי, and it's bedieved, that's where they put in their din. Because the Rabbanan could put it whenever they want, they only put it in a case where it's an emergency case. A takanah only when she marries a witness. Right, right. Because otherwise, if they go because otherwise you might say that in any case where it's for the good of the of the whole situation, no one loses, everything gained, they may be also they'll say, well, one witness is learned to say more in the death, we'll hold with it. But here, they added it has to be together with a husband who is a one who is a one, and her, and she says I know for sure. Yeah, yeah, yeah, all this, okay. Otherwise, we'd never need witnesses. You could always say אשה דייקא ומינסבא, exactly! And the truth is with one witness it's enough takeh, we don't really need witnesses, but something with a goy is enough, takeh very little.
Another maalah in the second tirutz over the first is the lashon of Tosafot, because Tosafot used the lashon here that this אשה דייקא ומינסבא, what does it do? דאתיא חזקה דדייקא ומינסבא ומרעא לחזקת אשת איש. The chazakah of אשה דייקא ומינסבא, מרעא, it spoils the חזקת אשת איש. Now, according to the second tirutz, that's exactly it. Takeh, it's only derabbanan, but the Rabbanan in this in this case decided to get rid of, push away the... According to the first tirutz, we're saying the fakert, חזקת אשת איש stays, it's only if you got married we don't So we have to say it spoils the chazakah, it's לגבי them, from their point of view. From their point of view, we allow them to stay. Yeah, but it's better if you say מרעא, completely spoiled. Yeah, right. Also because Tosafot says there's a shakla vetarya of אשה דייקא ומינסבא. Well, if the whole I'll tell you one thing: the moment it's a דין דרבנן and they have the right to do it, then klal, most kashyot fall off, and whatever they decide, they do it. In other words, they felt that in this case, we... No, there we see here we over there not, but in this case yes. In other words, the Rabbanan, it's hard for us to be משער where the Rabbanan saw is it important to do this. Always when we're put in de'oraita, then it's a clear-cut thing. If they make, פסקו דין, so here they decided oh, this case we need it because of this. In this case we need it, so that already So in a case of kiddushin, in a case where there was שנים ושנים, they felt that אשה דייקא won't be enough. In a case of yibum, they felt this is enough. The moment to say that, it makes it a lot easier to... Well, look at how the Rabbanan is going against the halachah. They came up with a new sevara, where a woman is involved, and then what, she can be a witness on anyone, on anyone with it? Not by תרי ותרי. A woman, her child, or whatever. But not by תרי ותרי. Not by here. They ask that it also has to be... Right, that because here, because here you have witnesses against! Partly, also. Because you have two witnesses saying he didn't die! In a normal case, you don't have anybody against. You have one witness coming, which normally not believed, here we believe him because אשה דייקא ומינסבא. Or a woman comes, but there's nobody against. Here, you have תרי saying two saying that he didn't die. That makes it worse, so here they only use אשה דייקא ומינסבא in specific far-fetched case where it's the furthest degree. What does it mean אשה דייקא ומינסבא? Do it means that she has gone out and listened to the evidence, and she believes that that the evidence is correct, or she's seen... No. seen the death herself? No, no. No, it's So, what does it mean? She feels it in her heart? Not feels it. She got a message in the middle of the night? What does it mean? No, we assume that she asked people and she did her own investigation. She would not just trust edut. That's what it means, yeah. She would not, because she knows this the consequences. That's the Gemara. מתוך חומרא What? Certain that, but in a way that she's she's confident. מתוך חומרא שהחמרת עליה בסופה, הקלת עליה בתחלתה. Because we're machmir that if the husband comes and she get divorced from both, so she knows the consequences, she knows what risk she's taking, so we assume that she investigated. That's the Gemara's klal, yeah. That's the klal, that's Is that only to show that when they send one with a document But here, here there's no document. Obviously if you have, it would be no problem, you don't need edim. Here you have no document. She said, \"I lost the document.\" And these days, when you can check death records later on?
There is a teshuvah, I think, of the Chasam Sofer בנוגע, Chasam Sofer בנוגע picture. A picture has evidence, see. Then it was more than now. Now picture is not, that's you could splice it, you can do anything you want, fake photography. But in his time when photography just started, so he writes, I think, that this could help. I don't know if mamash just on a picture, if someone's dead, without a head or something, I don't know. I don't think he said that. If a guy has left an infant child, I mean if it was adopted, one can say In the Gemara, but the Gemara, not him. The Gemara, they were talking about this period. Mensch talks all about this, I don't know, but yes. Whatever. Whatever. Wait, there's three of them. Another one. Another one. Good, yeah. Right here. No, I got it. Hold on, I got this. Hold on, I got this. Alright, thank you. No, that's fine. There you go. Huh? Yeah. I know. I know, I know. Can I help you? Can I help you? No, we're good. Thank you. Bye-bye.