KIDUSHIN 63 - sponsored by Asher and Etti Schoor of Lawrence, NY. May they be blessed with a year filled with the joy of the Torah and see their children continue to grow in Avodas Hashem.
1) "EIN ADAM CHOTEH V'LO LO"
QUESTION: The Mishnah teaches that when the father of a Ketanah says, "I married off my daughter, but I do not know to whom," and another man comes and claims that he is the man who was Mekadesh her, that man is believed. In the Gemara, Rav states that the man is believed with regard to requiring the woman to receive a Get from him, but he is not believed with regard to permitting himself to marry her (with Nisu'in).
The reason why he is believed with regard to requiring the woman to receive a Get is the Chazakah that "a person does not sin with something from which he derives no pleasure" ("Ein Adam Choteh v'Lo Lo"). The possible sin is that if this man did not marry her, but it was another man who married her, the Get which he gives her does not permit her to marry anyone else because she is still married to the other man (the one who actually was Mekadesh her). Nevertheless, he is believed to say that he is the one who married her and thus the Get permits her to marry anyone she wants, because he would not lie in order to cause her to sin since he gains nothing from that sin.
In contrast, he is not believed with regard to permitting himself to marry her because perhaps his Yetzer ha'Ra has overcome him and he is not telling the truth.
When the man claims that he is the one who was Mekadesh the woman, his intention is to keep the woman as his wife. Beis Din does not allow him to do so, and thus he is believed only with regard to requiring the woman to receive a Get from him.
Why does the Gemara refer to this case as a case of "Ein Adam Choteh v'Lo Lo"? His intention is for his own gain. His intention in saying that he was Mekadesh her is not to free her to the rest of the world by giving her a Get, but to take her as his wife!
ANSWER: The RAN explains that although his original intention was for his own personal benefit, once he is informed that he may not keep her as his wife he presumably would retract his testimony if his intentions were entirely selfish. The logic of "Ein Adam Choteh v'Lo Lo" does not apply to the original testimony he gives in Beis Din but rather to his act (or lack of act) of retracting that testimony. Since the man did not retract his testimony, it is assumed that his intention in upholding his testimony is to free her to marry others. Since he gains nothing from that testimony, he is believed because "Ein Adam Choteh v'Lo Lo."
2) BELIEVING THE TESTIMONY OF ONE MAN
QUESTION: The Mishnah teaches that when the father of a Ketanah says, "I married off my daughter, but I do not know to whom," and another man comes and claims that he is the man who was Mekadesh her, that man is believed.
Why is a single witness believed to testify about the woman's status? The Torah teaches that "Ein Davar sheb'Ervah Pachos mi'Shenayim" -- any matter which involves a prohibited relationship requires the testimony of two witnesses (in contrast to cases of Isur and Shevu'ah, in which one witness suffices). Moreover, a witness may not testify about a matter which affects him. Why does Beis Din accept this man's testimony that he is the one who betrothed the woman? He is a single witness testifying about a "Davar sheb'Ervah," and his testimony is about himself!
ANSWER: The Rishonim explain that there is a difference between testimony which establishes a new status and testimony which merely reveals information which was unknown heretofore ("Megaleh Milsa"). In the case of the Mishnah, the fact that the father married off his daughter to a man is known already. (Even though it is the father's own word which establishes this fact, the Torah believes the father of a girl with regard to her marital status ("Es Biti Nasati l'Ish ha'Zeh," Devarim 22:16; see Kidushin 64a).) Accordingly, Beis Din already knows that the woman is an Eshes Ish and that no man other than her husband may live with her. The only thing Beis Din does not know is the identity of her husband. When the single witness comes and claims that he is the man who betrothed her, his testimony serves merely to reveal the identity of the man to whom the father married off his daughter. For this type of testimony even one witness is believed.
3) TWO MEN SAY THEY MARRIED ONE WOMAN
QUESTION: The Mishnah teaches that when the father of a Ketanah says, "I married off my daughter, but I do not know to whom," and another man comes and claims that he is the man who was Mekadesh her, that man is believed. Rav and Rav Asi disagree about the extent to which Beis Din accepts the man's testimony. Rav maintains that his testimony is believed only to require the woman to receive a Get from him, but his testimony is not believed to permit himself to marry her with Nisu'in. Rav Asi maintains that he is believed even to permit himself to marry her with Nisu'in.
The Gemara challenges Rav's opinion from the Mishnah which says that when two men claim to have married her, both must give her a Get unless they agree among themselves that one will give her a Get and the other will marry her. The fact that one may marry her disproves the view of Rav who says that the man is not believed with regard to marrying her.
The Gemara answers that Rav agrees that when one man consents to give a Get and let the other man marry her, the man who marries her is believed because he would not lie in this case out of fear ("Irtusei Mirtas") that the father would recognize the other man as the one who betrothed his daughter. Hence, when one man agrees to give a Get, he is assumed to be backing down from his false claim, and the man who still claims to have betrothed her is believed.
When only one man claims to have married the woman, Rav agrees that once the man gives a Get the woman is no longer considered an Eshes Ish and may marry any man (as mentioned above). Why does the Gemara not explain that the same applies in the case in which two men claim to be the husband and one man gives her a Get? The other man, who wants to marry her, should be treated like any other man in the world who is permitted to marry her after the first man gives her a Get! Once one of the men gives a Get, the other should be allowed to marry the woman even according to Rav. Why does the Gemara challenge Rav's opinion from this case of the Mishnah (and why does the Gemara have to answer "Irtusei Mirtas")?
ANSWER: The RASHBA and RITVA explain that in the case of two men who each claim to be the one who betrothed her, a Get from one of them does not suffice to permit her to marry any man. When one gives a Get and the other does nothing, neither man may marry the woman because of the concern that the one who gave the Get may not be telling the truth and she is still an Eshes Ish. The reason for this is as follows.
When only one man claims to be the husband, Rav maintains that if he gives a Get he is believed because of the principle that "a person does not sin [or cause others to sin] if he stands to gain nothing." However, he is not believed to permit himself to marry the woman, because perhaps his claim that he is her husband is motivated by his desire to have a relationship with her. Nevertheless, he is trusted to divorce her, because if he is not the true husand, by divorcing her he will cause others to sin (they will marry her under the assumption that she is divorced, when she is really an Eshes Ish). A person does not cause others to sin with no motivation of personal gain.
In contrast, when two men claim to be the husband and one of them gives the woman a Get, he does not cause anyone to sin by giving the Get. In any case no one will marry the woman since another man still claims to be married to her. (Only after the second man gives her a Get will someone else marry her.) If the second man lives with her, he may not be sinning from the perspective of the first man, since the second man claims to be the true husband in any case.)
Therefore, the woman should not be permitted to marry anyone until both men give her a Get. If the Beraisa allows the second man to marry her, it poses a contradiction to Rav's view.