SAFEK KIDUSHIN AND DIVORCE
Question: We should teach the case of Gerushin (when we don't know to whom the Get was closer) and require Chalitzah, so people will know that this is only a stringency!
Answer: If we would require Chalitzah, people would come to do Yibum!
Question: Also regarding Safek Kidushin, we should be concerned lest requiring Chalitzah will lead people to do Yibum!
Answer: There, it is no problem if they do Yibum. The Chazakah permits Yibum!
Question (Abaye - Mishnah): If a house fell on a man and his brother's daughter (one of his wives), and we do not know who died first, the Tzarah does Chalitzah but not Yibum.
We should follow the Chazakah that the Tzarah is exempt from Yibum and Chalitzah!
Suggestion: Perhaps it is a mere stringency to require Chalitzah.
Rejection: This stringency will lead to a leniency! If we require Chalitzah, people will come to do Yibum!
Answer #1: Divorce is common, so Chachamim decreed not to do Chalitzah, lest people do Yibum. A house falling down is uncommon, so no decree was made.
Answer #2: Regarding divorce the Ervah is alive, so people will think that Chachamim verified that the divorce was valid, and they will do Yibum with the Tzarah;
When the house fell, no one will think that Chachamim clarified who died first!
Question (Mishnah): If his wife was standing in a Reshus ha'Rabim, and he threw a Get to her:
If it is closer to her, she is divorced. If it is closer to him, she is not divorced. If it is in the middle, she is divorced and not divorced.
Question: What does it mean 'divorced and not divorced'?
Answer: If he is a Kohen, she is forbidden to him. If she is Ervah [to the Yavam], her Tzarah must do Chalitzah.
Summation of question: We are not concerned lest requiring Chalitzah lead people to do Yibum!
Answer: Rabah and Rav Yosef established that Mishnah to be when one pair of witnesses says that the Get was closer to her, and another pair says that it was closer to him. This is a Safek mid'Oraisa;
Our Mishnah discusses when there is only one pair of witnesses. It is a Safek mid'Rabanan.
Objection #1: What is the source that our Mishnah discusses when there is only one pair?
Answer: Just like there is only one pair regarding Kidushin, also regarding divorce.
Question: What is the source that there is only one pair regarding Kidushin? Perhaps there are two!
Answer: If there were two pairs, there would be no reason not to do Yibum!
Rejection: Two witnesses who say that the money was closer to her is a great reason not to do Yibum!
Objection #2: Also when there are two pairs of witnesses, the Safek is mid'Rabanan!
Mid'Oraisa, the pairs of witnesses cancel each other, and we follow her Chazakah (she is not Mekudeshes, so the Tzarah may do Yibum).
We say so about the property of Bar Shatya (a man who alternated between sanity and insanity)!
Bar Shatya sold property. Two witnesses testified that he was sane at the time, and two testified that he was insane at the time.
(Rav Ashi): The witnesses cancel each other, and we follow the Chazakah that the property belongs to Bar Shatya.
Answer #2 (to question 4:d, Daf 30b - Abaye): Each clause teaches about the other. The case of Kidushin also applies to divorce. The cases of divorce also apply to Kidushin.
Objection (Rava): If so, what does 'This is (the case)' come to exclude?
Answer #3 (Rava): The case of Kidushin also applies to divorce. There is a case of divorce that does not apply to Kidushin.
'This is' regarding divorce doesn't exclude anything. It was taught for parallel structure with 'this is' regarding Kidushin.
A SHTAR KIDUSHIN DOES NOT NEED A DATE
Question: What does 'this is' regarding Kidushin exclude?
Answer: It excludes a Shtar Kidushin without a date (it is valid).
Question: Why didn't Chachamim enact that a Shtar Kidushin needs a date?
We understand according to the opinion that the date on a Get is to clarify from when the husband lost rights to receive Peiros (the yield of her property). He does not get Peiros until Nisu'in, so we do not need to know the date of Kidushin!
However, some say that the date is to prevent a husband from saving his wife from execution if she had adultery (by giving her a Get without a date), e.g. if he married his sister's daughter, on whom he has compassion (normally, he is happy that she be killed). If so, the same concern exists regarding Kidushin!
Answer #1: Because some people are Mekadesh with money, and some with Bi'ah (and we cannot enact a date for these), we did not enact for a document, either.
Question (Rav Acha): A date was enacted for a deed of sale of a slave, even though some people buy with money, and some with a deed!
Answer: Most people buy slaves with a deed; most people are Mekadesh women with money.
Answer #2 (to Question (c)): We didn't enact a date on a Shtar Kidushin, since it would not (always) enable us to know when she is Chayav Misah:
If we would enact that she keeps the document, she would erase the date (we cannot kill her unless we are sure)!
If we would enact that he keeps the document, if he has compassion on her, e.g. when she is his sister's daughter, he will (erase the date to) cover up for her!
Suggestion: We should enact to leave it by the witnesses.
Rejection: If they remember the date, they do not need the document. If they do not remember the date, perhaps they will testify based on what they see written, and the Torah said that testimony must be "from their mouths", not from what they wrote!
Question: If so, the same applies to divorce!
Answer: There, the Get saves her (so she fears to erase the date. Tosfos - indeed, if she erased the date we could not kill her.) Here, the document condemns her!
A YEVAMAH WHO FALLS FROM TWO BROTHERS
(Mishnah): Reuven, Shimon and Levi (brothers) were married to unrelated women. Reuven died. Shimon gave a Ma'amar to the Yevamah, then he died. Both Yevamos do Chalitzah, not Yibum;
"U'Mes Echad Mehem Yevamah Yavo Aleha" - this is when she has Zikah from one brother, not from two.
R. Shimon says, Levi may do Yibum with whichever he wants, and Chalitzah to the other.
(Gemara) Question: If the Isur of Zikah from two brothers is mid'Oraisa, Chalitzah should not be required!
Answer: The Isur is only mid'Rabanan, lest people say that when two Yevamos fall from one brother, both may do Yibum.
Question: We should say that one does Yibum and the other does Chalitzah!
Answer: We decreed not to, lest people say that some Yevamos from a brother do Yibum and others do Chalitzah.
Question: What is wrong if they say this?
Answer: If they would do Yibum and then Chalitzah, there would be no problem. The concern is lest they do Chalitzah and then Yibum;
"Who will not build... " - once Chalitzah is done, it is forbidden to do Yibum.