DO WE BELIEVE ONE WITNESS TO SAY THAT THE HUSBAND DIED WITH CHILDREN? [Edus Ishah:Yevamah]
(Mishnah): If a woman went overseas with her husband and son and returns and says 'my husband died, and then my son', she is believed. If she says 'my son died, and then my husband', she is not believed. We are concerned for her words; she does Chalitzah, not Yibum.
93b - Question: If one witness testified that the (only) Yavam died, is the Yevamah permitted?
If we believe one witness to permit an Eshes Ish because this is Avid l'Igluyei (prone to become known), here also, he would not lie!
If he is believed because Daika u'Minseva (she investigates well before remarrying), here she might not check well if she hates the Yavam!
Answer (Rav Sheshes - Mishnah): A woman was told her that her husband died (overseas) and then her son died. She remarried. Later, they told her that the son died first (so she needed to do Yibum or Chalitzah). She must leave her husband. Children she had from him, both the first and last, are Mamzerim.
Question: What is the case?
Answer #1: Two witnesses told her the first time, and later two witnesses contradicted them.
Objections: Why should we believe the second witnesses more than the first? Also, the child should be only a Safek Mamzer!
We cannot say that the Tana was not so exact, for the Seifa says 'the first children are Mamzerim, but later children are not.'
Answer #2: Rather, one witness told her the first time, and later two contradicted him.
Inference: Had he not been contradicted, he would have been believed!
Rejection (and Answer #3): The case is like Rav Acha bar Minyomi said (elsewhere), that two witnesses testified and they were found to be Zomemim.
Rif: Rav Sheshes and Rava resolved that one witness is believed to permit a Yevamah l'Shuk. Our Rebbeyim say that even though the Gemara dispelled the proofs, these were mere Dichuyim.
Rebuttal (Rosh 10:4): How can we be lenient? The Dichuyim are proper!
Question: How does Rav Sheshes learn from the Mishnah about a woman who was told that her husband died before her son? Even she is believed about this!
Answer #1 (Ba'al ha'Ma'or): She is not believed to say that the son died first, for this opposes her Chazakah (that she will not fall to Yibum when her husband dies). She is believed only to support the Chazakah, due to ha'Peh she'Asar Hu ha'Peh she'Hitir (she did not need to mention that the son died). One witness is believed to say that her son died before her husband, against the Chazakah, even though she is not. We must say that we heard that both of them died (but did not know who died first), or that the witness himself was Mechadesh to us that her husband had a son (from a Tzarah) overseas. We reject the proof, for perhaps the Mishnah discusses Edim Zomemim. Therefore there is no source that one witness can overturn her Chazakah more than she can. The Rif rules like Rav Sheshes in both cases, even to overturn her Chazakah.
Rebuttal (Milchamos Hash-m): We know that he had a son; the Mishnah says that her husband left with his son! If we heard that both died, she retains her Chazakah to be exempt from Yibum! The Mishnah teaches only about fines. We establish it to be when two witnesses testified and were Huzmu. There is no Chidush about who is believed.
Answer #2 (Milchamos Hash-m): When she says that her husband died first, she is not believed just because she supports the Chazakah. Rather, she is believed due to ha'Peh she'Asar. If one witness were believed only due to Daika u'Minseva, he would not be believed when he said that the husband died first, for perhaps she will not check because she hates the Yavam. Rather, this shows that the witness is believed even when she will not check.
Nimukei Yosef (DH Ba'u): The Heter depends on Daika u'Minseva, which is due to the fines. If there are two witnesses that her husband died, or one witness that her husband and son both died, there are no fines, therefore she is not believed to say that her husband died first. She relies on the witness because she hates the Yavam.
Rambam (Hilchos Yibum 3:5): One witness is believed to testify that a Yavam died or that a child was born to her husband to permit a Yevamah l'Shuk. Even a slave or woman or Nochri l'Fi Tumo can testify, just like they are believed to permit an Eshes Ish.
Rebuttal (Ra'avad): One witness is believed to say that the husband died even when she is not believed, because it is Avid l'Igluyei and people do not lie about this. There is no source to believe one witness that a son was born. Even her husband is not believed about this to permit her if he was Muchzak to have brothers and no children!
Defense #1 (Migdal Oz): The Gemara (117a) discusses which witnesses are believed (certain women are not). It never distinguishes between an Eshes Ish and a Yevamah!
Defense #2 (Magid Mishneh): The Ba'al ha'Ma'or and Rashba agree with the Rambam. We cannot learn from her husband, who is not believed, for she relies on him totally. When there is a witness, Daika u'Minseva. Also, the law of a husband is not simple. The Gemara (Bava Basra 135a) says that a man is believed to say that he has children to exempt his wife. The Gemara did not say that this is only when he does not overturn a Chazakah to fall to Yibum. However, we conclude that he is not believed to say that he has no brothers against the Chazakah. Perhaps the same applies when he says that he has children, against the Chazakah, and he is believed only when we do not know whether or not he has children. Perhaps he is believed less about brothers because this does not depend on him; he might not realize that he has brothers! Children depend on him, so perhaps he is always believed about this.
Rosh (10:4): Why didn't the Gemara ask whether or not one witness is believed to say that her son died before her husband and permit Yibum? She herself is not believed about this (118b)! Indeed, we could have asked about this. The Gemara records the actual question asked of Rav Sheshes and his answer. Alternatively, surely he is believed. The questioner thought that she is believed more than one witness, but Rav Sheshes answered that one witness is believed more than she is. When there is one witness, we are not concerned lest she not check well.
Rosh (ibid.): Rashi says that we asked about when the witness says that her Yavam died, or that her husband died before her son. I do not understand the latter case. Even she is believed to say that her husband died before her son, all the more so one witness is believed to say this! Likewise, one witness is believed to say that her Yavam died, even though she is not believed to say this.
Korban Nesan'el (70): Since we see that we are not concerned lest she not check because she hates the Yavam, the witness is believed to permit her l'Shuk in either case.
Rosh (ibid.): Therefore, it seems that the Gemara asks only about one witness who says that her Yavam died. If he says that her husband died before her son it was obvious that he is not believed. Even though she is believed to say so, she has a Migo: she did not need to mention that the son died. We would have relied on the Chazakah that her son is alive. The Migo does not apply to the witness. Perhaps he hates her and wants to ruin her, or he was hired by such a person. He knows that she will investigate when she hears that also the son died, therefore he testifies that the husband died first.
Question: Why does the Rosh say that surely one witness is not believed to say that her husband died before her son? Even though he has no Migo, why is this worse than saying that her Yavam died?
Answer #1 (Tif'eres Shmuel 1): We are bothered why the witness mentioned the son's death. It was not necessary to permit her. It looks like he intends to ruin her. Alternatively, she will be sure that he tells the truth due to the Migo (he did not need to mention the son), and will not check well.
Rebuttal (Yam Shel Shlomo 10:25): Even so, it is not obvious that he is not believed!
Answer #2 (Korban Nesan'el 80): If the Gemara asked about this case, it should have deliberated whether we can learn from her credibility (that her husband died first) that also one witness is believed, or not (because a witness has no Migo). Rather, we ask only if he is believed to say that the Yavam died, for this is Avid l'Igluyei. Tosfos says that the Gemara asks about both. This is like the Rosh's first answer above, that the Gemara could have asked about whether or not one witness is believed to say that her son died first to permit Yibum. (There is no Kal va'Chomer from her credibility.)
Shulchan Aruch (EH 156:8): One witness is believed to testify that a son was born to the Mes to permit a Yevamah l'Shuk.
Rema: Some disagree.
Beis Yosef (DH v'Divrei and DH u'Mah she'Chosav v'Im Eino): The Rosh (Teshuvah 52:2) says that if a child did not live 30 days, we do not exempt Tzaros from Chalitzah even if the mother says that he was a (viable) nine month baby. All the more she cannot permit herself. The Rosh holds like the Ra'avad, who does not believe a witness to say that a son was born.
Shulchan Aruch (158:3): One witness is believed to say that her Yavam died to permit her to marry l'Shuk, or to say that her husband died and then her son died.
Bach (DH Kosav): The Rambam is consistent. He always believes one witness about a Yevamah, even when the witness says that a son was born to the husband. The Ra'avad says that the birth of a son is not Avid l'Igluyei, therefore one witness is not believed about it.
Rema: Some say that we do not believe one witness to say that the Yavam died to permit a Yevamah l'Shuk.
Beis Shmuel (2): One witness is believed only due to Igun. The Bach says that we do not believe one witness to say that the son died first when the Yavam is here, for there is no Igun (he can do Chalitzah). This is wrong. Sometimes we decree not do Chalitzah lest later we hear that the Chalitzah was needless, and people (who did not hear) will see her marry a Kohen! One witness is believed to overturn a Chazakah and permit her to do Yibum. He is also believed to permit a Yevamah without Chalitzah.
Taz (4): The Rosh and Tur say that also he is not believed to say that her husband died before her son. I do not know why the Rema omits this. To avoid Igun one may be lenient also about this.