Answer (cont.): Also a lion that entered amidst bulls [is more indicative for Isur than Heter].

Pesak: Ameimar ruled there that we are concerned for Safek Drusah.

Implied question: We say there that we can say like this, and we can say like this!

Answer: The reason for Isur is more reasonable than the reason for Heter.

Proof: Regarding a Safek whether a dog or cat clawed the victim, we assume that it was a dog, even according to Shmuel, who is concerned for a Safek Drusah. (Me'iri - because most animals are Kosher, we make the lenient assumption.)

Question: Initially, we ask that you should not forbid due to Safek, and we want to let her do Yibum l'Chatchilah. Now we ask that she should not even need Chalitzah, due to a decree lest she do Yibum!

Answer: Here we ask, what will it help that you forbid Yibum? Since she does Chalitzah, people will come to do Yibum!

We answer that in any case she does Chalitzah. If occasionally one comes to do Yibum, there is no problem.

Question: Why is this considered Chezkas Heter l'Shuk more than for Yibum?

Both of them died. It is possible that she died first, just like it is possible that he died first!

Answer: It is considered Chezkas Heter l'Shuk more than for Yibum because her husband's death permits her l'Shuk, but death of the Ervah does not permit Yibum until also her husband dies.

Explanation: This Tana holds that death causes the fall to Yibum.

Question: This is a Mishnah in Gitin (78a), and there the Gemara does not ask regarding what law [is she divorced and not divorced]! (Maharshal points out that Tosfos Bava Basra 169b DH b'Chazakah did not consider this difficult.)

Question #1: Rashi's explanation (the Gemara asked why she may not do Yibum) is difficult. How did the Metaretz (the one who answered) think to say so?!

Question #2: In old Seforim, the text says "perhaps". Rashi deleted this, and said that the text says "also".

Explanation #1 (Ri): The Gemara means that it is similar to Kidushin, and he (Rabah) understands that Kidushin is even with one set of witnesses;

Even though when there is one set of witnesses, mid'Oraisa she may do Yibum, since when there are two sets of witnesses, it is a Safek mid'Oraisa, Chachamim decreed not to do Yibum when there is one set, due to the case of two sets.

Explanation (cont.): The Gemara asks, regarding Kidushin itself, what is the source that there is one set of witnesses?

Perhaps this is only when there are two sets of witnesses, but if there was one set, she may do Yibum;

We do not decree due to two sets of witnesses, because the case of two sets of witnesses itself is a Safek mid'Rabanan, and mid'Oraisa she may do Yibum, for we leave her in her Chazakah;

Mid'Rabanan she does Chalitzah, but not Yibum, to be stringent. This is only when there are two sets of witnesses, but with one set, they were not stringent.

It is proven [from here] that two sets of witnesses is a Safek mid'Rabanan, like it explains at the end.

Explanation (cont.): Now we say that if you want to establish it only when there are two sets of witnesses, but if there was one set, she may do Yibum, and we do not decree due to two sets of witnesses...

... Because in the very case of two sets she does Chalitzah only to be stringent, but if she does Yibum, there is no problem...

[We ask,] how can you say that she may do Yibum, and there is no problem?! There are witnesses saying...

Conclusion: We conclude that perhaps the very case of two sets of witnesses is a Safek mid'Rabanan, like he asked at the beginning.

Now, based on this conclusion, in a case of Kidushin with one set, she may do Yibum.

Retraction: However, the Gemara merely said "perhaps." (Perhaps the case of two sets is a Safek mid'Rabanan, and when there is one set, she may do Yibum. However, perhaps two sets is a Torah Safek, and we decree to forbid Yibum when there is one set!)

Explanation #2 (Ri): We can explain that he (Rabah) understands that Kidushin is when there is one set of witnesses, for we do not need to teach about two sets. Obviously, it is a Safek mid'Oraisa!

A Mishnah (Gitin 78a) teaches it regarding Safek divorce, that she does Chalitzah.

However, if Kidushin were with two sets of witnesses, [the Mishnah would have taught] also divorce with two sets of witnesses, even though it is not needed, for it was already taught in a Mishnah in Gitin.

Therefore, he says "similar to Kidushin", for also Kidushin is with one set.

Explanation (cont.): The Gemara asks that perhaps Kidushin itself is with two sets of witnesses, for also this is a Safek mid'Rabanan;

One set and two sets are the same. Both are a Safek mid'Rabanan, like the Gemara proceeds to explain.

Question: Since we conclude that two sets of witnesses if a Safek mid'Rabanan, what forced Rabah and Rav Yosef to establish the Mishnah in Gitin with two sets of witnesses?

Answer: The Mishnah says there "half-half", which applies more to two sets of witnesses.

Reference: In Kesuvos (26b) and Bava Basra (32a) I elaborated.

Implied question: Why is this unlike the case in Kidushin (79b) and Bava Basra (153b), if [now] he is healthy [but claims that when he gave a gift he was a Shechiv Mera, i.e. it was on condition that he die from his illness], he must bring a proof that he was a Shechiv Mera;

If [now] he is Shechiv Mera [the recipient must bring a proof that he was healthy]?

Answer: Here, since it is habitual that sometimes he is healthy and sometimes insane, we cannot establish him on the Chazakah of how he is now.

Observation: We could have asked "if Yagid Alav Rei'o (the accompanying case teaches about this), all should have been taught regarding one (Gitin or Kidushin), and one of them in the other", like we ask in Bava Basra (19a).

Question: The Ri was unsure whether a document in the handwriting of the Mekadesh, without witnesses, helps for Kidushin, or not;

Since we do not need a date, why do we care if there are no witnesses?

Explanation #1 (Rashi): This refers to a document of purchase of a slave.

Question #1 (Ri): If so, why did he mention a slave? He could have mentioned a document of purchase of a field, or all monetary documents!

Question #2: Also, there, Chachamim did not enact a date!

Explanation #2: Rather, we discuss a Shtar Shichrur (document of freedom. They enacted a date to know from when he is forbidden to a Shifchah and permitted to a Bas Yisrael;

He asks as follows. Some slaves acquire themselves (their freedom) through money, and some through a document.

Support: Now the answer "there, most [acquire with a document...] is good. (I.e. most slaves are freed through a document, but most are not bought with a document.)

Question: In Gitin (9a), the Mishnah says that Gitin of divorce are like Gitin of Shichrur in three ways;

It should teach also Zman, which applies to Gitei Nashim and Shichrurei Avadim, but not to [Shtarei] Kidushin!

Answer: All the matters it lists there and asks there, there is one common reason for Gitei Nashim and Shichrurei Avadim;

However, the Zman for Shichrurei Avadim is to permit him to a Bas Yisrael, but in Gitei Nashim it is for Peros.

Note: Keren Orah points out that a Get Shichrur proves that he is permitted to a Bas Yisrael even without a date! He suggests that the date is to forbid him to a Shifchah. I question this, for the freed slave keeps the Get, and he can erase the date! Perhaps Tosfos means that if he was Mekadesh a Bas Yisrael, the date can prove that it took effect - PF.

Question (Ri): In Bava Kama (98a), regarding one who burned another's documents, we say "if there are witnesses who know [what was written in them], they should write another document";

Why can they do so? We say here [that testimony must be] "from their mouths, and not from their writing"!

Answer (Ri): Indeed, if they testify that they saw so written in the document, this is proper;

It is as if they testify "we saw testimony accepted in Beis Din", for witnesses signed on a document, it is as if their testimony was investigated [and accepted] in Beis Din";

However, we are concerned lest they not testify that they saw so written in the document. Perhaps they will testify about the episode itself, as if they remember it, but really they remember only due to the writing.

Support: Similarly, in Kesuvos (20a), we say that one may write his testimony on a document and testify about it even many years later, if he remembers it himself;

However, if he does not remember it by himself, he may not.

Also there, we do not [forbid] when he testifies that he saw so written. Rather, he testifies about the episode itself.

Also, there it is not a document, just he wrote something to remind himself. We cannot say that it is like testimony investigated in Beis Din.

Our custom: The Ri heard from R. Tam that the custom is nowadays that witnesses send their testimony in their handwriting to Beis Din. We do not apply "mi'Pihem v'Lo mi'Pi Kesavam", since they remember their testimony.

Implied question - Citation (71a): "Im Lo Yagid" excludes a mute, who cannot speak.

Citation (cont.): He can speak through writing!

Citation (cont.) Answer: Testimony is different, for it says mi'Pihem v'Lo mi'Pi Kesavam. A mute is different, for he is not able to tell, like we say (Menachos 103b) any [Minchah] that is not able to be mixed [with the oil, because it is too big, mixing is Me'akev, so it is Pasul].

However, for someone else, it helps [to write his testimony] when he remembers it.

Rashi's opinion: However, Rashi explained on the verse (Devarim 19:15) "Al Pi Shenayim Edim" excludes sending [testimony in] writing to Beis Din.

Explanation #1 (Rashi): Now that they enacted a date, if she does not bring a document that she was divorced before this (the Zenus), we leave her on Chezkas Eshes Ish, and we kill her.

Objection: It says explicitly in Gitin (17b) if he erased the date and gave it to her, how did Chachamim's enactment help?! It answered that we are not concerned for schemers;

Inference: When there is no date, we do not kill her!

Explanation #2 (Ri): The Gemara means that it comes to save her, i.e. the Get comes to save her and show that she was divorced. Therefore, she fears to erase the date, for she thinks that it disqualifies the Get, and weakens her position;

However, surely if she erased it, we do not kill her.

Explanation (cont.): Here (Kidushin), it comes to obligate her. The [document of] Kidushin comes to testify that she is Mekudeshes. Surely she will erase the date!

Observation: We could have said that one of them is single.

Inference: Eshes Beis Mesim in every place is only mid'Rabanan;

If not for the decree here, even Ba'alas Ma'amar would do Yibum. We would not decree due to Eshes Shnei Mesim!