Yevamot 120aיבמות ק״כ א
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120aק״כ א

לאנסובי לצרה מקמי דידה אי אמרת צרה מעידה לחברתה אף על גב דלא אינסיב מנסבינן לה לצרה אי אמרת משום דהיא לא מקלקלא נפשה אינסיב מנסבינן לה לצרה אי לא אינסיב לא מנסבינן לה

The Gemara responds that Rabbi Elazar’s reasoning could make a practical difference with regard to allowing the rival wife to marry before the woman herself, i.e., the woman who testified that her husband died, remarries. If you say that according to Rabbi Elazar, one rival wife may testify for another, then although the woman who testified that her husband died has not married, we allow her rival wife to marry. Since the woman’s report is deemed credible with regard to herself, it is also deemed credible with regard to her rival wife. However, if you say that Rabbi Elazar’s reasoning is due to the presumption that she would not cause herself injury, then if she has actually married we may allow her rival wife to marry, but if she has not married, we may not allow her rival wife to marry, in case she lied in order to cause harm to her rival wife.

מאי תא שמע ר' אלעזר אומר הואיל והותרו ליבמין הותרו לכל אדם אי אמרת בשלמא דהיא לא מקלקלא נפשה היינו דכי אינסיב מנסבינן לה

What is the basis of Rabbi Elazar’s ruling? The Gemara suggests: Come and hear a resolution based upon the wording of the baraita itself: Rabbi Elazar says: Since they were permitted to marry the brothers-in-law, they are now permitted to marry any man. Granted, if you say that his reason is because she would not cause herself injury, this is the reason that if she has actually married, as in this case, where each woman entered into levirate marriage, we may allow her rival wife to marry.

אלא אי אמרת משום דצרה מעידה לחברתה אף על גב דלא אינסיב נמי אלא שמע מינה טעמא דרבי אלעזר משום דאינסיב הוא ולא מקלקלא נפשה

But if you say the reason is because one rival wife may testify for another, then although she herself has not married, it should still be permitted for her rival wife to marry, and it would be unnecessary for Rabbi Elazar to state his opinion in a case where the women had already entered into levirate marriage. Rather, conclude from this that Rabbi Elazar’s reason is because she has already married, and she would not cause herself injury by marrying if her original husband had not died.

רבי אלעזר לדבריהם קאמר להו לדידי צרה מעידה לחברתה ואף על גב דלא אינסיב מנסבינן לה אלא לדידכו אודו לי מיהת דהיכא דאינסיב מנסבינן לה משום דהיא לא מקלקלא נפשה ורבנן (שופטים טז, ל) תמות נפשי עם פלשתים הוא דקעבדה

The Gemara rejects that and suggests that Rabbi Elazar stated his opinion to the Rabbis in accordance with their own statement, as follows: According to my own opinion, one rival wife may testify for another, and although she, herself, has not married, nevertheless we may allow her rival wife to marry. But even according to your own opinion, admit, in any event, that where she has actually married we may allow her rival wife to marry because she would not cause injury to herself. But the Rabbis, rejecting this, say that she acts upon the premise: “Let me die with the Philistines” (Judges 16:30), i.e., a woman may even harm herself by remarrying while her original husband is still alive, in order to harm her rival wife by causing her to remarry as well.

ת"ש האשה שהלכה היא ובעלה למדינת הים ובאה ואמרה מת בעלי תנשא ותטול כתובתה וצרתה אסורה ר' אלעזר אומר הואיל והותרה היא הותרה נמי צרתה אימא הואיל והותרה ונשאת

The Gemara suggests another solution. Come and hear the following baraita: In the case of a woman who went with her husband to a country overseas, and who later came and said: My husband died, she is permitted to marry and collect the widow’s compensation from her marriage contract, but her rival wife is prohibited from doing so. Rabbi Elazar says: Since she is permitted to marry, her rival wife is also permitted. This indicates that Rabbi Elazar holds that the rival wife is permitted to marry because the wife who testified that her husband has died is permitted to do so, even if the latter has not actually remarried yet. The Gemara rejects this proof: Say that Rabbi Elazar means: Since she was permitted and has married.

וליחוש דלמא בגיטא אתאי והאי דקאמרה הכי לקלקלא לצרה היא מיכוונה

The Gemara asks: If Rabbi Elazar’s reason is that she would not cause herself injury, how can her rival wife be permitted to marry? Let us be concerned that perhaps she, i.e., the woman who claimed that the husband was dead, came with a bill of divorce and is therefore permitted to remarry though the husband is alive. And the fact that she says this, i.e., that her husband is dead, is intended only to injure her rival wife, who will remarry, thinking that the husband is dead, and will suffer the severe consequences of adultery.

אי דאינסיב לישראל הכי נמי הכא במאי עסקי' דאינסיב לכהן:

The Gemara then validates this concern. If she actually married an Israelite, which is permitted for a divorced woman, then indeed one must consider the possibility that she is actually divorced and not widowed, and the rival wife is not permitted to marry. However, here we are dealing with a case where she married a priest, who is prohibited from marrying a divorced woman, and therefore she must actually be a widow, as she would not damage herself by entering into a forbidden marriage.

מתני׳ אין מעידין אלא על פרצוף פנים עם החוטם אע"פ שיש סימנין בגופו ובכליו אין מעידין אלא עד שתצא נפשו ואפי' ראוהו מגוייד וצלוב והחיה אוכלת בו אין מעידין אלא עד ג' ימים

MISHNA: One may testify that a man died only if he can testify about seeing the countenance [partzuf ] of the face with the nose, as this allows one to identify the individual with certainty. Although there are distinguishing marks [simanim] on his body and his personal belongings, which appear to indicate his identity, one may not rely on these as identification. Furthermore, one may not testify that a person died until his soul actually departs. And even if one saw him cut open and severely wounded, or crucified, or with a wild animal eating parts of him, he may not testify that he died. Additionally, one may testify to someone’s death only when the body was witnessed up to three days following death and not after that, since the appearance may change due to decomposition.

ר' יהודה בן בבא אומר לא כל האדם ולא כל המקום ולא כל השעות שוין:

Rabbi Yehuda ben Bava says: One cannot establish general guidelines for this matter because not every person, nor every place, nor every hour is identical. Decomposition is not uniform. It occurs at different rates in different situations.

גמ׳ תנו רבנן פדחת ולא פרצוף פנים פרצוף פנים ולא פדחת אין מעידין עד שיהו שניהם עם החוטם אמר אביי ואיתימא רב כהנא מאי קרא (ישעיהו ג, ט) הכרת פניהם ענתה בם

GEMARA: The Sages taught in a baraita: If the witnesses saw his forehead but not the countenance of the face, or if they saw the countenance of the face but not his forehead, they may not testify that it is he, until they see both of them with the nose. Abaye said, and some say it was Rav Kahana who said: What is the verse from which it is derived that one may testify that a man died only if one sees his face? The verse is: “The show of their face does witness against them” (Isaiah 3:9), which indicates that one clearly recognizes another only upon seeing his face.

אבא בר מרתא דהוא אבא בר מניומי הוה מסקי ביה דבי ריש גלותא זוזי אייתי קירא דבק בבלייתא דבק באפותיה חלף קמייהו ולא בשקרוה:

The Gemara relates that Abba bar Marta, who is also known as Abba bar Minyumi, had been loaned money by members of the Exilarch’s house. Since he did not want to be seen by these violent people, he brought wax [kira], stuck it to a strip of worn-out fabric, and stuck all of that to his forehead in order to alter his appearance. He passed before them and they did not recognize him [beshakru]. This shows how much a person’s face changes when the appearance of his forehead is altered.

אע"פ שיש סימנין וכו': למימרא דסימנין לאו דאורייתא

§ We learned in the mishna that, although there are distinguishing marks on a dead person’s body and clothing, one may not rely on these as identification. The Gemara asks: Is this to say that distinguishing marks are not recognized as valid identification by Torah law, and while a rabbinic ordinance allows one to rely upon them to remedy certain situations, for testimony about a person’s death, the Sages require the stringencies of Torah law?

ורמינהי מצאו קשור בכיס ובארנקי ובטבעת או שנמצא בין כליו אפילו לזמן מרובה כשר

But the Gemara raises a contradiction, based upon the following baraita: If an agent charged with delivering a bill of divorce to a woman lost it, and then he found it tied to a purse, or a money bag [arnekei], or a ring, or if it was found among his personal belongings, even after a long time, it is valid, i.e., one may rely upon the distinguishing marks on these objects to positively identify the document, and the agent may then deliver it to the woman. This indicates that distinguishing marks are sufficient to identify an object even by Torah law.

אמר אביי לא קשיא הא רבי אליעזר בן מהבאי הא רבנן דתניא אין מעידין על השומא ר' אליעזר בן מהבאי אומר מעידין מאי לאו בהא קמיפלגי דמר סבר סימנין דאורייתא ומר סבר סימנין דרבנן

Abaye said: This is not difficult. That baraita is in accordance with the opinion of Rabbi Eliezer ben Mahavai, while this mishna is in accordance with the opinion of the Rabbis; as it is taught in a baraita: One may not testify about a person’s identity based upon the position of a mole on his body. Rabbi Eliezer ben Mahavai says: One may testify based on a mole. What, is it not about this issue that they disagree: One Sage, Rabbi Eliezer ben Mahavai, holds that distinguishing marks are recognized as valid identification by Torah law, and one Sage, the anonymous first tanna, representing the majority of the Rabbis, holds that distinguishing marks are recognized as a means of identification only by rabbinic law and are therefore insufficient to permit a Torah prohibition?

אמר רבא דכולי עלמא סימנין דאורייתא הכא בשומא מצויה בבן גילו קמיפלגי מר סבר שומא מצויה בבן גילו ומר סבר אינה מצויה בבן גילו

Rava said: It is possible that everyone agrees that distinguishing marks are recognized as valid identification by Torah law, and here they are disagreeing about whether such a mole is commonly found on his peer, i.e., anyone very similar to him, which would undermine its usefulness as a means of identification. One Sage, the anonymous first tanna, holds that such a mole is commonly found on his peer and therefore is not sufficient for identification. And one Sage, Rabbi Eliezer ben Mahavai, holds that it is not commonly found on his peer and is therefore an unambiguous distinguishing mark sufficient for identification.

ואיכא דאמרי הכא בשומא העשויה להשתנות לאחר מיתה קמיפלגי מר סבר עשויה להשתנות לאחר מיתה ומר סבר אינה עשויה להשתנות לאחר מיתה

And there are those who say otherwise: Here they are disagreeing about whether a mole is likely to change in appearance and size after death. One Sage, the anonymous first tanna, holds that it is likely to change after death. It is insufficient for identification because it may have looked different when the person was alive. And one Sage, Rabbi Eliezer ben Mahavai, holds that it is not likely to change after death and is reliable for identification. This marks the end of one version of the discussion about this issue.

ואיכא דאמרי אמר רבא דכולי עלמא סימנין דרבנן והכא בשומא

And there are those who say that Rava said: Everyone agrees that distinguishing marks are relied upon by rabbinic law. However, this is referring to ordinary distinguishing marks. Marks that are exceptionally unusual may be relied upon even according to Torah law. And here, in the dispute between the Rabbis and Rabbi Eliezer ben Mahavai, it is about whether a mole