The Oral Talmud with Benay Lappe and Dan Libenson Episode 126

MISHNA: A woman whose husband went overseas, and they came and said to her: Your husband is dead, and she married, and afterward her husband came back -- she must leave this man and that one. And she requires a bill of divorce from this one and that one. And she has a claim to neither payment of her ketuba, nor the profits of her property used by either of them, nor sustenance, nor the worn clothes she brought to the marriage -- neither against this man nor against that one. And if she took any of these items from this man or from that one, she must return them to him. And the offspring is a mamzer from this one and from that one. And neither this man nor that man may become impure for her upon her death, if they are priests. And neither this one nor that one is entitled to the rights that stem from the marriage bond -- neither to her found articles, nor to her earnings, nor to the nullification of her vows. If she was a regular Israelite woman, she is disqualified from marrying into the priesthood, and the daughter of a Levite is disqualified from partaking of the first tithe, and the daughter of a priest is disqualified from partaking of teruma. And neither the heirs of this man nor the heirs of that one inherit her ketuba. And if they both died childless, the brothers of this one and the brothers of this one must perform ḥalitza and they do not enter into levirate marriage. Rabbi Yosei disagrees and says that she does receive payment of her ketuba, and the obligation of her ketuba is upon the property of her first husband. Rabbi Elazar says: The first husband is entitled to her found articles, to her earnings, and to the nullification of her vows. Rabbi Shimon says: Her sexual relations or her ḥalitza with the brothers of the first husband exempts her rival wife, as it is considered a proper levirate marriage. And if she returns to her first husband, the child from him is not a mamzer. All these rulings refer to a situation when she married with the permission of a court, after hearing that her husband had died. But if she married without the consent of a court, it is permitted for her to return to her first husband. If she married by permission of a court, she must leave both of them and she is exempt from bringing the offering, i.e., the sin-offering for her unwitting adultery, as she had the authorization of the court and is therefore considered to have acted under duress. If, however, she did not marry by permission of a court, she must leave her second husband and is liable to bring an offering for mistakenly having relations with a man forbidden to her. In this regard, the power of a court is greater, as she is exempt from bringing an offering. If a court instructed her to marry on the basis of inaccurate testimony, and she went and ruined herself, she is liable to bring an offering, as they permitted her only to marry, and not to engage in licentious relations.

Two witnesses are usually needed to legally establish facts, so why is the testimony of a single witness accepted in the case of a missing husband? Rabbi Zeira said: Due to the strictness that you took with her at the end, you are lenient with her at the beginning. If so, let us not be strict at the end and not be lenient at the beginning. Rather, due to the case of a deserted wife, the Sages were lenient with her.

DUE TO THE STRICTNESS THAT YOU TOOK WITH HER AT THE END, ETC.: It appears to the Ri (Rabbenu Yitzhak) that we do not have the power to say that she can marry for the reason that one witness is believed according to the Torah. Rather, [it is] from a takkanah [repair, legislation] of the Sages that he is believed. And this is not an uprooting of a thing from the Torah since believing appears to be the right thing, as I will explain below in our chapter (daf 89b), for in a case where there is a small [measure of] reason and justification, it is not considered an uprooting of a thing from the Torah.

Even if the Sages generally lack the power to uproot a thing from the Torah, in a get-up-and-do [i.e., permitting conduct that Torah prohibits], there is clear consensus that they certainly do possess such power to uproot [Torah] when there is good cause [panim v'ta'am b'davar] [to permit such conduct].