או אחד מן הראשונים ואחד מן האחרונים ואחד מצטרף עמהן:
or if there is one witness from the first pair of witnesses and one witness from the latter pair, and one additional witness joins with them as the second witness in both testimonies.
גמ׳ איתמר בעל אומר לפקדון ושליש אומר לגירושין מי נאמן רב הונא אמר בעל נאמן ורב חסדא אמר שליש נאמן
GEMARA: It was stated that there is an amoraic dispute in a case where a husband says that he handed the bill of divorce to another as a deposit for safekeeping and not to deliver it to his wife, and that consequently she is not divorced, and the third party [shalish], to whom the husband gave the document, says that he was serving as an agent for receipt and the husband gave him the document for the purpose of divorce. In such a case, who is deemed credible? Rav Huna says: The husband is deemed credible, and Rav Ḥisda says: The third party is deemed credible.
רב הונא אמר בעל נאמן דאם איתא דלגירושין יהביה ניהליה לדידה הוה יהיב לה ניהלה ורב חסדא אמר שליש נאמן דהא הימניה
The Gemara elaborates: Rav Huna said that the husband is deemed credible, as, if it is so that he gave it to the third party for the purpose of divorce, he would have given the bill of divorce directly to her. Both husband and wife are in the same city. Why did he give it to a third party? Apparently, he merely entrusted him with the bill of divorce for safekeeping. And Rav Ḥisda said: The third party is deemed credible, as the husband himself deemed him credible by entrusting him with the bill of divorce.
מתיב ר' אבא הודאת בעל דין כמאה עדים דמי ושליש נאמן משניהם כיצד זה אומר כך וזה אומר כך שליש נאמן
Rabbi Abba raises an objection to the opinion of Rav Huna from a baraita in the Tosefta (Bava Metzia 1:10): The legal status of the admission of a litigant is similar to that of the testimony of one hundred witnesses, and the statement of a third party is deemed more credible than the statements of both of the litigants. How so? If this litigant, the creditor, says that the debtor owes him this sum, and that litigant, the debtor, says that he owes that lower sum, the third party to whom the debtor gave the money to pay the creditor is deemed credible to establish the sum of the debt. This contradicts the opinion of Rav Huna, who said that the husband, not the third party, is deemed credible.
שאני ממון דאיתיהיב למחילה
The Gemara rejects that objection: A monetary debt is different, as it can be forgiven. Since one can forgive a monetary debt outright, he can also accept upon himself to abide by the statement of a third party as to the sum of the debt. Therefore, even if the third party deviates from the truth, because it is a case involving money, they accept his determination. However, no proof may be cited from that case to the matter of the bill of divorce, as there is no possibility of forgiveness with regard to ritual matters, e.g., divorce.
והא תניא וכן לגיטין גיטי ממון והתניא וכן לשטרות
The Gemara asks: But isn’t it taught in another baraita: And likewise that is the halakha with regard to bills of divorce [gittin], i.e., the halakha is that the third party is deemed credible? The Gemara answers: The reference in the baraita is not to bills of divorce. Rather, the reference is to monetary documents [gittei mamon]. The Gemara asks: But isn’t it taught in another baraita: And likewise that is the halakha with regard to monetary documents [shetarot]? The fact that monetary documents are labeled as shetarot indicates that the term gittin refers to bill of divorce.
מידי גבי הדדי תניא
The Gemara rejects that proof: Are they, the two expressions, taught together? If there were a passage in one baraita that said: And likewise, that is the halakha with regard to gittin and documents, one could infer that the term gittin is referring to bills of divorce, as the term documents is referring to all other documents. However, since these are two discrete baraitot, perhaps one is referring to monetary documents as gittin and the other is referring to them as shetarot.
תנן האשה שאמרה התקבל לי גיטי צריכה שתי כיתי עדים שנים שיאמרו בפנינו אמרה ושנים שיאמרו בפנינו קבל וקרע ואמאי ליהמניה לשליש
The Gemara cites proof with regard to the credibility of the third party. We learned in the mishna that a woman who said to an agent: Receive my bill of divorce for me, requires two sets of witnesses to confirm that she was divorced when the agent received the bill of divorce. She requires two witnesses who say: In our presence she said to the agent: Receive my bill of divorce on my behalf, and two others who say: In our presence the agent received the bill of divorce and tore it. The Gemara asks: And why are the witnesses necessary? Let us deem the third party, to whom the husband handed the bill of divorce, credible and not require witnesses.
מי קא נפיק גיטא מתותי ידיה דליהמניה
The Gemara rejects this: Does the bill of divorce emerge from his possession, i.e., does he have the bill of divorce, such that it would lead one to deem him credible? The third party is believed only in a case where the item in question is under his control, as then he can do with it as he wishes. However, in this case the bill of divorce is no longer in his possession, as it has been torn, and the credibility attributed to the third party is no longer relevant.
תינח אמרה קיבל למה לי אמר רבה הא מני ר"א היא דאמר עדי מסירה כרתי
The Gemara asks: That works out well in explaining why witnesses are required to testify that she said to the agent in their presence: Receive my bill of divorce on my behalf. However, why do I need witnesses to testify: In our presence the agent received the bill of divorce and tore it? From the point that the bill of divorce was in his possession no testimony should be necessary. Rabba said: In accordance with whose opinion is this mishna? It is in accordance with the opinion of Rabbi Elazar, who says: Witnesses of transmission of the bill of divorce effect the divorce. The divorce takes effect primarily by means of its transmission to the woman in the presence of witnesses. Therefore, witnesses are necessary to testify that the transmission took place in their presence.
קרע למה לי אמר רב יהודה א"ר בשעת הגזירה שנו
The Gemara seeks to clarify a different matter mentioned in the mishna. Why do I need the witnesses to testify that the third party tore the bill of divorce? Rav Yehuda says that Rav says: The Sages taught the mishna during a period of religious persecution, when the government decreed that it is prohibited to write bills of divorce. Therefore, immediately after the divorce took effect they would destroy any evidence that a bill of divorce had been written by tearing it.
אמר רבה ומודה רב הונא דאי אמרה איהי לדידי אמר לי שליש דלגירושין יהביה ניהליה מהימנא מי איכא מידי דשליש גופיה לא מהימן ואיהי מהימנא
Rabba said: And although he said that the husband is deemed credible, Rav Huna concedes that if the wife said: The third party said to me that my husband gave the bill of divorce to him for the purpose of divorce, she is deemed credible. The Gemara asks: Is there anything with regard to which, according to Rav Huna, the third party himself is not deemed credible, but the wife is deemed credible when quoting him?
אלא אי אמרה קמאי דידי לגרושין יהביה ניהליה מהימנא מיגו דאי בעיא אמרה לדידה יהביה ניהליה בעל
Rather, Rabba said that Rav Huna concedes that if she said: In my presence my husband gave the bill of divorce to the third party for the purpose of divorce, she is deemed credible. Her credibility is based on the principle of miggo, that the ability to make a more advantageous claim grants credibility to the claim one actually makes. Since, if she wished, she could have said that the husband gave it to her and she was divorced, therefore, when she says that the husband gave it to an agent for the purpose of divorce she is deemed credible.
בעל אמר לגירושין ושליש אומר לגירושין והיא אומרת נתן לי ואבד אמר רבי יוחנן הוה דבר שבערוה ואין דבר שבערוה פחות משנים
§ The Gemara proceeds to a related matter. If the husband said that he gave the bill of divorce to the third party as an agent of delivery for the purpose of divorce, and the third party says that the husband gave it to him as an agent of delivery for the purpose of divorce, and the wife says: The third party gave me the bill of divorce and it was lost, Rabbi Yoḥanan said: This is uncertainty with regard to a matter of forbidden relations. And there is no resolution of a matter of forbidden relations with fewer than two witnesses.
ואמאי וליהימניה לשליש מי קא נפיק גיטא מתותי ידיה דלהימניה
The Gemara asks: But why is this case one of uncertainty? But let us deem the third party credible, i.e., let us believe his statement that the husband gave him the bill of divorce for the purpose of divorce. The Gemara rejects this: Does the bill of divorce emerge from his possession, such that it would lead one to deem him credible?
ולהימניה לבעל דאמר רב חייא בר אבין א"ר יוחנן בעל שאמר גירשתי את אשתי נאמן מי קאמר גירשתי
The Gemara asks: But let one deem the husband credible, as Rav Ḥiyya bar Avin says that Rabbi Yoḥanan says: A husband who says: I divorced my wife, is deemed credible. The Gemara rejects this: In the case under discussion does the husband say: I divorced her? He merely stated that he handed the bill of divorce to the third party.
ולימא חזקה שליח עושה שליחותו דאמר רבי יצחק האומר לשלוחו צא וקדש לי אשה סתם ומת שלוחו אסור בכל הנשים שבעולם חזקה שליח עושה שליחותו
The Gemara asks: But let us say that there is a presumption that an agent performs his assigned agency, as Rabbi Yitzḥak says that in the case of one who says to his agent: Go out and betroth a woman for me, and he did not specify which woman, and his agent died without informing him whether he betrothed a woman or the identity of the woman he betrothed, it is prohibited for him to marry all the women in the world, as there is a presumption that an agent performs his assigned agency. Apparently, one relies on this presumption even with regard to matters of forbidden relations. Because the identity of the woman is unknown, one must be concerned with regard to all women; perhaps they are relatives of the woman whom the agent betrothed on his behalf.