NEDARIM 91 (8 Elul) - Dedicated in memory of Esther Miryam bas Harav Chaim Zev and her husband Harav Refael Yisrael ben Harav Moshe (Snow), whose Yahrzeits are 7 Elul and 8 Elul respectively. Sponsored by their son and daughter in law, Moshe and Rivka Snow.
1) A WOMAN WHO CLAIMS IN THE PRESENCE OF HER HUSBAND THAT HE DIVORCED HER
QUESTION: Rav Hamnuna states that if a woman tells her husband, "You divorced me," in front of Beis Din, she is believed. Her statement is assumed to be true because a woman would not brazenly say such a lie in front of her husband.
The PNEI YEHOSHUA in Gitin (17a) discusses several practical consequences of the assumption that a woman does not brazenly lie in front of her husband. He asks what the Halachah would be in a case in which a married woman was unfaithful and was about to be sentenced to death by Beis Din. If she says to her husband at that moment, "You divorced me before I lived with the other man," in order to save herself from death, is she believed? Moreover, the Gemara in Gitin (ibid.) teaches that the date must be written in a Get. Rebbi Yochanan explains that the date is necessary in a Get because without the date, a man might give his unfaithful wife an undated Get so that she can claim that she was divorced before she was unfaithful, and thereby save her from the death penalty. If a woman's claim that "you divorced me" would be accepted in such a case, requiring the date in a Get will not prevent an unfaithful wife from avoiding the death penalty, as she may still claim "you divorced me."
(a) The PNEI YEHOSHUA explains that Rav Hamnuna's logic for believing the wife's testimony applies only when there are no opposing reasons not to believe her. A woman who needs to save herself from death is not believed to say that her husband divorced her, because in such a situation a woman will be brazen enough to lie in the presence of her husband.
The Pnei Yehoshua adds that not everyone agrees with this answer. There are some opinions (in Kesuvos 22a) that maintain that Rav Hamnuna means that a woman is believed to say that she is divorced even when she will clearly suffer if she does not say that she is divorced.
(b) The Pnei Yehoshua suggests another answer. In order for a woman to be put to death for adultery, witnesses must have warned her before the act that if she commits the act she will be killed, and she must have acknowledged the warning and responded that she still intends to do the act. If, however, she was divorced at the time of the act as she now claims she was, why did she not simply tell the witnesses who warned her that she is not subject to punishment because she is divorced? The fact that she said that she intends to do the act despite the punishment contradicts her claim later in Beis Din that she was divorced before she committed the act.
Rebbi Yochanan maintains that although she would not be believed in such a case to say that she was divorced before the act, if she actually shows her Get to Beis Din, she would be vindicated despite the fact that she did not mention her divorce to the witnesses. It is assumed that she did not mention her divorce when the witnesses warned her not to commit the act simply because she knew she had a Get to exonerate her from punishment. This is why Rebbi Yochanan rules that the date must be written in a Get.
(c) REBBI AKIVA EIGER (Teshuvos 1:125) answers that the assumption that a woman would not be so brazen as to say such a lie in front of her husband applies only when her statement would separate her from her husband. When witnesses have already testified that she willfully committed adultery, she is already forbidden to her husband. Once she is already separated from him, she will be brazen and say in his presence that he divorced her.
(d) The SHALMEI NEDARIM explains that Rav Hamnuna rules that when a woman says to her husband that he divorced her, she is believed from now on to have the status of a divorcee. However, she is not believed to establish when she was divorced in the past. Accordingly, if she committed promiscuous acts, those acts are assumed to have been before she was divorced. (The Shalmei Nedarim adds that if she would bring witnesses that she was divorced, Beis Din would have grounds to believe her claim that she was divorced before her act of promiscuity.) (Mordechai Zvi Dicker)