Resources for Kesubos 22

1.     The גמרא says that if a woman says she is טמאה to her husband she is believed and her husband is אסור to her. If she then changes her mind and says she is actually טהורה, she is not believed unless she gives an אמתלא as to why she had said originally she was טמאה. The טור and שולחן ערוך in יו"ד סימן קפּ"ה סעיף ג bring this הלכה but add from the רמב"ן that if the woman had not said anything but had been הוחזקה to be a נדה from her neighbors based on how she had dressed (women used to wear different clotheing during their time as a נדה) then she is considered to be טמאה even if she gives an אמתלא. The טור asks why is it more חמור where people see that she seems to be a נדה (where she isn’t believed to give an אמתלא) than where she says explicitly she is a נדה (where she can give an אמתלא)? The בית יוסף brings the רשב"א who answers that when a person does an action (such as dressing differently), that carries more weight and we don’t assume people do that just because they are “too tired”. The ב"ח asks on this answer from the case in יו"ד סימן א סעיף י"ג where a person makes a cut on a piece of meat to indicate that it is treif and then says it was really kosher and he only made the cut so people wouldn’t take it. In that case he is believed with an אמתלא even though that is a case where an action was done. The חוות דעת in סימן קפּ"ה ס"ק ה is אות ה says a big יסוד to answer these questions: he says that no עד can ever take back their testimony. After all, we have a principle of כיון שהגיד שוב אינו חוזר ומגיד and this applies to cases of עד אחד as well. Therefore, אמתלא never helps where there is real נאמנות. The case of הוחזקה נדה בשכינותיה is a case with real נאמנות  since it becomes a real  חזקהwhen everyone sees her dressing like a נדה. However, when an עד אחד says something outside of ב"ד it has no power of נאמנות on its own and the person can even change their mind without an אמתלא by saying they weren’t being serious. However, this is only true for חושן משפּט issues. When it comes to איסורין  there is an additional principle of שויא אנפשיה חתיכה דאיסורא. For that and that alone one needs an אמתלא.

2.     The גמרא says that where two witnesses say a woman’s husband is dead and two others say he is alive, the woman cannot stay married since she would need to bring an אשם תלוי. She can only stay married where she is married to one of the witnesses who said her husband is dead and she herself says "ברי לי". רש"י explains that "ברי לי" means אין לבה נוקפה since she is sure her husband is dead or he would have come back. The ריטב"א asks that if that was true then she should still need to get divorced since אין לבה נוקפה just makes her not bring a אשם תלוי but doesn’t mean there isn’t a ספק איסור. The גרי"ז זצ"ל in נזיר דף כ"ג says an amazing vort. He explains that רש"י holds like the רמב"ם  that ספיקא דאורייתא לקולא מדאורייתא. However, even theרמב"ם  must admit that the notion of אשם תלוי is an obvious exception to that rule (since if ספק דאורייתא was מותר then there is no need for a קרבן). The גרי"ז זצ"ל is מחדש that any place where there is an אשם תלוי we say ספיקא דאורייתא לחומרא מדאורייתא. In other words, the הלכה of what one does by a ספק איסור is dependent on whether there is a חיוב קרבן or not.  Therefore, if it is אין לבה נוקפה, then there is no חיוב קרבן in which case ספק דאורייתא לקולא מדאורייתא and חז"ל did not require her to get divorced. 

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