1) THE PRINCIPLE OF "HA'PEH SHE'ASAR, HU HA'PEH SHE'HITIR"
QUESTIONS: The Mishnah discusses various cases in which Rebbi Yehoshua agrees with Raban Gamliel that a person is believed with a "Ta'anas Bari" (a claim of certainty) based on a "Migu." The Mishnah states, however, that if there are witnesses who remove the Migu, the person is not believed.
The Mishnah mentions this in three places with regard to three different cases. The first Mishnah (15b-16a) says that when the present owner of a field says to the son of the original owner, "This field belonged to your father, and I purchased it from him," he is believed because he could have remained silent and never said that the field belonged to the other man's father. It was "his mouth that prohibited [the field to him], and his mouth that permitted it." The Mishnah there adds that "if there are witnesses that the field belonged to the other person's father, and this one says that he bought it from him, he is not believed."
The second Mishnah (18b) presents a similar case in which witnesses attempt to invalidate the Shtar on which they are signed. When two witnesses say that it is indeed their signatures on the Shtar, but they add that they signed the Shtar under duress (and the information contained therein is false), they are believed. "But if there are [other] witnesses that this is their handwriting... then they are not believed" to disqualify themselves.
Finally, the Mishnah here (22a) teaches that "a woman who says, 'I was an Eshes Ish and now I am divorced,' is believed because 'the mouth that prohibited her is the mouth that permitted her.'" The Mishnah continues, "But if there are witnesses that she was an Eshes Ish, and she says that she is divorced, she is not believed," because she no longer has the support of the "Peh she'Asar" principle. The same applies in a case of a woman who says that she was taken captive as a Shevuyah but she was not defiled and is still Tehorah; she is believed because of "Peh she'Asar." If, however, two witnesses say that she was taken captive, "and she says that she is Tehorah," she is not believed because she no longer has a "Peh she'Asar."
REBBI AKIVA EIGER (in TOSFOS REBBI AKIVA EIGER on the Mishnayos) asks two very strong questions on the wording of the Mishnah here (22a).
1. Why does the Mishnah say that a woman who says "I was an Eshes Ish and now I am divorced," or "I was taken captive but I am Tehorah," is believed because of a "Peh she'Asar"? The principle of "Peh she'Asar" is a special Halachah derived from a verse (cited by the Gemara here) which teaches that a person is able to remove an Isur that he created himself. Here, however, the woman did not create any Isur in the first place! Normally, when a woman says that she is an Eshes Ish, or she says that she was a Shevuyah, she becomes Asurah because "Shavyah a'Nafshah Chatichah d'Isura" -- a person is entitled, and believed, to make herself Asurah. When she claims that she is Asurah, she is believed with regard to herself and she must abide by what she claims. Here, though, she never said that she was Asurah. She said, "I was an Eshes Ish and now I am divorced." She never claimed to have a status of Isur. Why, then, does the Mishnah say that she is believed to create her Heter because she created her Isur? She never made herself Asurah, and there is no need for a "Peh she'Asar"!
This question is especially problematic in the case in which she says, "I was taken captive but I am Tehorah." In that case, she does not say that she was Teme'ah originally but later became Tehorah. On the contrary, she says that although she was captured she was never defiled. Why, then, does the Mishnah need to say that she is believed to say that she is Tehorah because of a "Peh she'Asar" when she never made herself Asurah in the first place? "Shavyei a'Nafshah" does not apply when she says that she was taken captive but asserts that she is Tehorah!
Some Acharonim (KOVETZ SHI'URIM #58) attempt to answer this question by saying that it depends on how the Halachah of "Shavyei a'Nafshah" works. The KETZOS HA'CHOSHEN (34:4) cites the MAHARIT who explains that "Shavyei a'Nafshah" works through the mechanism of a Neder: when a woman says that she is prohibited to a certain person or thing, it is as if she prohibited that thing upon herself through a Neder. The Ketzos ha'Choshen argues and proves that "Shavyei a'Nafshah" does not work through a Neder, but it is a Halachah derived from the principle of "Hoda'as Ba'al Din k'Me'ah Edim Dami" -- self-admission is as good as [or better than] one hundred witnesses. The Torah teaches that when a person admits he owes money, he must pay regardless of how many witnesses say he is exempt, because when one testifies about himself he is trusted more than any number of witnesses to say that he owes money. "Shavyei a'Nafshah" is an extension of that Halachah as applied to the category of Isur and not just to monetary matters.
Perhaps Rebbi Akiva Eiger understands that "Shavyei a'Nafshah" works like a Neder, as the Maharit says. Accordingly, he is justified in saying that when a woman says, "I was an Eshes Ish and now I am divorced," she never made a Neder to make herself Asurah.
Others point out that it is not so simple to say that Rebbi Akiva Eiger understands "Shavyei a'Nafshah" like the Maharit. In his comments to Yoreh De'ah (1:12), Rebbi Akiva Eiger quotes the BECHOR SHOR in Yevamos (87b) who discusses a person who makes an item prohibited to himself with "Shavyah a'Nafshei Chatichah d'Isura," but he knows that it was a mistake and the item is really permitted to him. For some reason, he cannot give a good enough excuse (Amasla) to Beis Din in order to permit it to him. Is he permitted to eat from that object as long as Beis Din is not watching, since he knows that it is really Mutar, or does it remain Asur to him completely (see TESHUVAS REMA quoted in the margin to YD 185:2). The Bechor Shor concludes that according to the letter of the law, the item is Mutar, but nevertheless one should conduct himself stringently (because "anything that the Chachamim prohibited from being done in the eye of the public is prohibited even in the inner chambers of one's home"). If Rebbi Akiva Eiger agrees with the Bechor Shor, then he clearly does not hold that "Shavyei a'Nafshah" works like a Neder, because then the item would be Asur even in private because of the Neder.
In fact, most of the Acharonim reject the Maharit's explanation of "Shavyei a'Nafshah" as a function of a Neder, and say that a person is believed to create an Isur upon himself just as he is believed to obligate himself in monetary matters (as the Ketzos ha'Choshen explains), since he alone loses through his admission (see NODA B'YEHUDAH, end of EH 2:43, Kovetz Shi'urim ibid.). Rebbi Akiva Eiger, however, asks that even if we understand "Shavyei a'Nafshah" to work because of "Hoda'as Ba'al Din," that a person is believed to prohibit himself, why should we consider the woman to be prohibiting herself? She is not saying that she is prohibited.
2. Rebbi Akiva Eiger asks that the Mishnah writes (in both the case of Gerushah and the case of Shevuyah) that if witnesses come and say that she was married (or taken captive) "and she says that she is no longer married (or is Tehorah)," she is not believed. This wording implies that the Mishnah is discussing a new case in which the witnesses first testified before she said anything, and then she replied that she is divorced or Tehorah (see Tosfos to 15b, DH u'Modeh).
Why does the Mishnah mention such a case? All the Rishonim write that even if the witnesses come after she says that she was married and is now divorced (after her "Peh she'Asar"), she also is not believed because she no longer has her "Peh she'Asar" -- because we know that she was married not from her words but from the words of the witnesses. The Mishnah should not give a completely new case, in which witnesses come first and say that she was married, and then she says that she was married but is now divorced. The Mishnah should continue the first case and say that if, after she says that she was married and is now divorced, witnesses come and say that she was married, her Heter is revoked because she no longer has a "Peh she'Asar"!
In fact, this is exactly how the Mishnah sets up the situation when it discusses the case of verifying the signatures of witnesses in a Shtar. The Mishnah says that if two witnesses testify that they signed the Shtar but that they were forced to sign, and then a second group of witnesses come and say that they recognize the signatures of the first two witnesses in the Shtar, the first pair is no longer believed to say that they were forced to sign. Why in the cases of the Gerushah and Shevuyah does the Mishnah present the case where "Peh she'Asar" no longer works as a completely separate case? (Rebbi Akiva Eiger concludes this question with the words, "'v'Tzarich Iyun Gadol.")
Actually, it is unclear why Rebbi Akiva Eiger does not ask both of his questions on the first Mishnah of the Perek. Both questions seem applicable to the first Mishnah (15a) which discusses the ownership of a field: Why is "Peh she'Asar" necessary if there never was a "Hoda'as Ba'al Din" in the first place that the field belongs (at present) to another party? Also, why does the Mishnah conclude that if witnesses testify that the field once was another party's and then another person says "I bought it from him," the second person is not believed? The Mishnah should say that even if witnesses come after the "Peh she'Asar," the "Peh she'Asar" is revoked upon their testimony.
ANSWERS: RASHI and TOSFOS (16a DH Hasam Shor Shachut, 15b DH u'Modeh) present differing explanations for why Rebbi Yehoshua agrees with the "Migu"s of these Mishnayos. Accordingly, the answers to these questions according to Rashi will differ from the answers according to Tosfos.
Rashi writes that Rebbi Yehoshua agrees in these cases that the logic of Migu applies because there is no claim; no one is challenging the landowner such that he needs to make any response that the field is his. He came forth of his own accord and said that the field belonged to the father of the other person. Tosfos, in contrast, maintains that Rebbi Yehoshua agrees with the logic of Migu under any circumstances. Rebbi Yehoshua argues with Raban Gamliel only when there is no real Migu. (See Insights to 16a.)
Tosfos may answer Rebbi Akiva Eiger's questions as follows:
(a) The wording of the Mishnah provides proof for Tosfos' assertion that Rebbi Yehoshua agrees with any Migu because The wording of the Mishnah implies that there was a "Ta'anah" -- that is, someone did come and challenge the ownership of the field. The Mishnah relates that the landowner says, "This field was your father's and I bought it from him." Why does he need to say an independent statement that "this field was your father's" and then say a second statement that "I bought it from him"? Let him just say one statement, "I bought the field from your father"! The fact that he introduces his claim by saying that "this field was your father's" implies that someone is challenging his ownership of the field and he is responding to that challenge by admitting that the field once belonged to the other person's father, but that it was bought from him (as Tosfos himself explains on 15b, DH u'Modeh, with regard to a similar terminology on 17b).
Tosfos cites support for his interpretation from the end of the Mishnah (16a). When the Mishnah says that "when there are witnesses who say that the field belongs to the other person's father and the present owner says 'I bought it from him' he is not believed," the Mishnah clearly refers to a case in which one is making a claim against the person with the "Peh she'Asar." Who brought witnesses if not the person making a claim against the present owner? It is apparent that a claim is not enough to counteract a Migu; the Migu is uprooted only by witnesses.
According to the approach of Tosfos, both questions of Rebbi Akiva Eiger may be answered as follows. In the Mishnah's case of a woman who says, "I was an Eshes Ish but now I am divorced," why does the woman first say the words "Eshes Ish Hayisi"? The words "Gerushah Ani" already imply that she was once married! The Mishnah must be teaching that there was a claim against her -- someone is challenging her status and saying that she cannot remarry because he knows that she is an Eshes Ish. (Since he is a single witness and not a pair of witnesses, she still has a Migu.) She is responding to the allegation by admitting that it is true that she was once an Eshes Ish, but now she is divorced.
If this is the case, then it is clear why the logic of "Shavyei a'Nafshah" would have prohibited her from remarrying had it not been for "Peh she'Asar." The statement of "I was an Eshes Ish" is not a prelude to her statement of "but now I am divorced," but rather it is a response to someone's claim that she is an Eshes Ish. She is admitting to the challenge against her that she is an Eshes Ish, but in order to permit herself she is adding "now I am divorced." Accordingly, "Shavyei a'Nafshah" indeed should apply: she admits to the claim of the other person, which was a claim to prohibit her from remarrying, and then she adds additional information to permit herself to marry! The same applies to the Mishnah which discusses the ownership of a field, in which case there is a bona fide "Hoda'as Ba'al Din" as soon as the present owner replies in the affirmative to the claim against him.
The second question may be answered as follows. According to Tosfos, the reason why the Mishnah concludes that witnesses say she was an Eshes Ish "and then she says that she is divorced" is to teach that a claim alone is not enough to remove the Migu according to Rebbi Yehoshua (in contrast to Rashi's view). Only the testimony of witnesses can remove the Migu. The Mishnah intends to teach that a claim that comes before the statement of "now I am divorced" will not refute the Migu, but witnesses will refute it. The same applies to the Mishnah earlier (16a). The Mishnah there says that witnesses came first and then the landowner said "I bought it from your father." This shows that only witnesses can refute a Migu when they precede the claims of the litigant, but a claim cannot refute a Migu, as Tosfos proved from these very words in the Mishnah.
(It is possible that Rebbi Akiva Eiger himself considered this answer, and that is why he did not ask his question on the first Mishnah of the Perek. With regard to monetary matters, it is clear that a Ta'anah forces a person to reply, and therefore an affirmative reply constitutes "Hoda'as Ba'al Din." In addition, since the person must reply it is possible to presume, as Rashi indeed suggests, that a Migu will not work when there is a Ta'anah forcing a reply. With regard to matters of Isur (such as Eshes Ish or Shevuyah), however, Rebbi Akiva Eiger understands that a Ta'anah does not force a response since the person who makes the Ta'anah (that she is an Eshes Ish or Shevuyah) is not demanding to receive something for himself from the woman, unlike the previous owner of the field.)
Why does the Mishnah of Kiyum Shtaros (18b) not give a similar case for where witnesses upset the Migu? It should say that if a second set of witnesses comes and verifies the signatures of the witnesses in the Shtar, and then those witnesses said that they signed the Shtar under duress, they are not believed. Why does the Mishnah teach that they are not believed in a case in which the second set of witnesses come after they say that they signed under duress?
The answer is that in this case it is an obvious fact, even according to Rashi, that a Ta'anah prior to the Migu will not remove the Migu. If someone says, "This is your handwriting," and the witnesses respond, "Yes, it is our handwriting, but we were forced to sign," the person's Ta'anah will not ruin their Migu (see BEIS YAKOV to 16a, on Rashi DH Hacha). The reason for this is as follows. Normally, a Ta'anah ruins a Migu because it forces the person to make a counter-claim, and a Migu works only when the person could have remained silent and still have won the case ("Iy Ba'i Shasik," Tosfos ibid., Rashi to 16a, DH Iy Amart). Here, however, if a person challenges the witnesses who claim that this is their handwriting on the Shtar, they have no need to respond since nothing of theirs -- neither money nor freedom to marry whom they choose -- is at stake. Since it is obvious that a Ta'anah does not upset this Migu, the Mishnah does not need to teach that witnesses who come prior to the Migu upset a Migu in order to infer that a Ta'anah before the Migu does not upset the Migu. Therefore, the Mishnah mentions a case in which the witnesses come after the Migu!
(b) The above answers are valid only according to the way Tosfos explains the Sugya, because Tosfos says that a Ta'anah alone will not ruin a Migu. According to Rashi, however, a Ta'anah does ruin a Migu, and thus it is obvious that the Mishnah of Gerushah does not refer to a case in which one challenged the woman with a Ta'anah claiming that she was an Eshes Ish. Rebbi Akiva Eiger's question returns: she never said anything to prohibit herself as an Eshes Ish through "Shavyei a'Nafshah"; why does she need a "Peh she'Asar" to be permitted to remarry? She says that she is a Gerushah and thus she should be permitted to remarry!
Perhaps the answer may be derived from the Gemara later (23b). Rashi there explains that the reason why the Mishnah gives so many examples of "Peh she'Asar" is that they are progressively larger Chidushim. Had the Mishnah taught only the first case, one might have thought that in the second case (of witnesses who verify their signatures on a Shtar) "Peh she'Asar" does not apply. In the case of the first Mishnah, where the person's first statement (if accepted alone) would cause him to lose the field, he certainly would not say that it is the field of the other person's father unless he meant to finish his statement and say "and now it is mine." However, in the case of Kiyum Shtaros, perhaps the witnesses changed their mind. It is possible that they first said that it is their signatures with intention to authenticate the Shtar, and then they changed their mind and said that they were forced to sign. Perhaps "Peh she'Asar" does not apply in that case.
Rashi's intention may be as follows. The reason the Mishnah does not give a simple case in which the landowner says one statement ("I bought this field from your father") but it separates it into two statements ("This field was your father's, and I bought it from him") is to teach a Chidush. One might have thought that since he split his statement into two, his second statement is a retraction of the first and he actually changed his mind. Perhaps he intended to say "this is your father's field, and it is still his field," and now he is changing his mind about what he wants to say. The Mishnah therefore teaches that we do not assume that he was changing his mind, because he has a "Peh she'Asar." He is believed to say that it is all one statement and that he intended from the start to say that the field is now his. (The principle of "Peh she'Asar" itself teaches that he may claim that he never intended to change his mind, even though his wording implies differently.)
This logic refutes the proof cited above (at the beginning of answer (a)) to Tosfos' interpretation of the Mishnah.
This is also the Chidush in the case of the woman who says that she was married and is now divorced. The Mishnah means that the wording itself implies that there are two separate statements and that she is changing her mind. Her words imply that she first meant to admit that she was Asurah, and immediately afterwards she regretted it and added that she is now permitted to marry because she is divorced. There indeed seem to be two statements -- not like Rebbi Akiva Eiger asserts that it is all one statement and that she intended from the very start to complete her statement and say that she is divorced. The Mishnah is teaching that since she added the explanation of her first statement immediately ("Toch Kedei Dibur"), "Peh she'Asar" allows her to remove the Isur that she seemingly made with the first half of her statement by insisting that it was indeed a single statement. This explains why "Shavyei a'Nafshah" would apply if not for the "Peh she'Asar." This answers Rebbi Akiva Eiger's first question.
According to this approach, Rebbi Akiva Eiger's second question according to Rashi may be answered as follows.
Rebbi Akiva Eiger asks, why does the Mishnah say that witnesses come before the "Peh she'Asar" is activated? Even if they come afterwards, the woman should not be believed! In order to answer this question, it is necessary to explore how Rashi might answer Tosfos' second challenge to his explanation. Tosfos asks: Why does the Mishnah (16a) state that witnesses come, and not simply that the original owner has a claim (Ta'anah) that it was his father's?
The answer to this question may be that the end of the Mishnah there (which discusses a case in which witnesses come) expresses not only Rebbi Yehoshua's opinion, but it means that even Raban Gamliel agrees with this ruling (see Insights to 16a). This is why the Mishnah says that witnesses come, and it does not say that the original owner makes a Ta'anah; the Mishnah wants to present a case in which Raban Gamliel also maintains that there is no Migu (and Raban Gamliel maintains that there is a Migu in the face of a Ta'anah). This explains why the Mishnah splits the case into two separate cases. The first case (where there is a Migu) expresses exclusively the opinion of Rebbi Yehoshua, while the second case (where there is no Migu) expresses an uncontested Halachah with which even Raban Gamliel agrees.
This approach answers Rebbi Akiva Eiger's question. Had the Mishnah merely continued with the first case and added that there is no Migu when witnesses come later, we would not have known that the Mishnah is no longer discussing Rebbi Yehoshua's opinion but rather an uncontested Halachah.
In the case of Kiyum Shtaros, the Mishnah does not make two separate cases, because there Rebbi Yehoshua and Raban Gamliel do not argue. In that case, even though there is a Ta'anah Rebbi Yehoshua agrees that a Migu works. Thus, that entire Mishnah, the Reisha and the Seifa, is the uncontested opinion of both Rebbi Yehoshua and Raban Gamliel. (M. KORNFELD)