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Bava Basra, 134


QUESTION: The Gemara teaches that a husband is believed to say that he divorced his wife (since it is in his hands to divorce her now). However, we only accept his word from now, but not retroactively from the time that specified that he divorced her. For all subsequent matters, he is believed that he divorced her, but he is not believed that he divorced her with reference to the past. This is because his credibility is based on his ability to give her a Get now -- "b'Yado." He cannot give her a Get to take effect in the past, and therefore his credibility does not extend to the past.

A similar concept is expressed by the Gemara in Gitin (54b). If a person was kneading dough and upon finishing he told the owner of the dough that it became Tamei, he is believed. He is believed because it was in his ability to make the dough Tamei while he was kneading it.

However, we see that there is an obvious difference between the person's credibility in each of these two cases. In the case in Gitin, the person kneading the dough is believed to say that the dough became Tamei even though the dough is no longer in his hands. Rava there explains that in questions of Isur (matters of prohibitions), such as whether the item became Tamei, as opposed to cases of monetary law, one is believed by virtue of the fact that it was *once* in his hands to do to the object that which he says was done (see also RASHI to Gitin 54a, DH Rava).

Why, then, in the case of our Gemara, is the husband believed only with regard to the present time and onward, and not with regard to the past? This case is also a case of Isur (the Isur of Eshes Ish), and the husband should be believed with regard to the past as well, since his credibility is based on "b'Yado!"

ANSWER: The SHEV SHEMAITSA (end of 6:1) explains that just as there is a leniency in cases of Isur in that one witness is believed in cases of Isur, so, too, a person is believed because of "b'Yado" even though it is no longer in his hands. In our Gemara, where the issue is whether the woman was divorced or not, the case is one of a "Davar she'b'Ervah" in which a single witness is *not* believed. The credibility of testimony in cases of "Davar she'b'Ervah" must be of a higher degree than that which is required for normal cases of Isur. Hence, a proper "Migu" is required, and for the husband to have a proper "Migu" it must be in his hands to divorce his wife right now. He is not believed about the past based on a "Migu" that he *could* have divorced her at that time, because that would be a "Migu l'Mafre'a" which does not work (see TOSFOS to Bava Basra 30a). (Y. Marcus)

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