Resources for Yevamos daf 31
מראה מקומות
1. רבה says based on our משנה that in a case where a גט was thrown ספק קרוב לו ספק קרוב לה there is no חליצה. The גמרא brings a ברייתא that seems to be a סתירה to this and answers that the ברייתא that says חליצה is required is talking about a case of two sets of witnesses who disagree about who the גט was closest to so it is a ספק דאורייתא whereas our משנה is discussing a case of one set of witnesses which is only a ספק דרבנן. רש"י explains that when the גמרא says “one set of witnesses” it means that one עד says it was closer to her and one says it was closer to him. The ריטב"א asks that in that case it definitely isn’t a good גט since if they don’t agree as to what they saw there aren’t two witnesses at all and a גט needs שני עדים! Therefore, the ריטב"א says we are talking about a case where both witnesses agree as to what they saw but they aren’t sure if it was closer to him or her. The בית שמואל in אה"ע סימן ל׳ ס"ק ט says that if two witnesses see a קידושין and it is ספק קרוב לו ספק קרוב לה it is like a קידושין without עדים at all. רע"א there says that this is against our ריטב"א who says that this is exactly our case and our גמרא calls it a ספק! The אבני מילואים is מחלק that if the two witnesses agree that it fell in a specific place but couldn’t judge if it was closer to him or her, that is a ספק. However, the בית שמואל is talking about a case where the witnesses didn’t see where it landed. In that case their עדות isn’t considered an עדות at all. The נתיבות המשפּט inכללי תפיסה אות ז (towards the beginning of חו"מ after הלכות דיינים) explains that if עדים don’t see everything they could have seen it is considered a חצי דבר and we have a דרשה in בב"ק of דבר ולא חצי דבר so the testimony is not a testimony at all if they didn’t see where it landed. To bring out the point he says “if the עדים saw a loan but didn’t see how much, would we say it’s a ספק on everything the borrower owns and the other party could grab it?” Clearly, if you miss an important part of the story, the עדות is not עדות at all.
2. רבה and אביי have a מחלוקת about the case of a גירושין that was ספק קרוב לו ספק קרוב לה. In that case רבה says she does not need חליצה since she has a חזקת היתר לשוק. However, אביי says she needs חליצה לחומרא. What is the יסוד of the מחלוקת? The ש"ך in יו"ד סימן נ׳ ס"ק ג explains as follows: תוספות on the previous עמוד in ד"ה אשה זו asks that רבה’s “חזקת היתר לשוק” is not a full חזקה since the צרה was never really מותרת לשוק at any time. She was always had a חזקת איסור since she was an אשת איש, and the ספק in her צרה’s divorce status came before she fell to יבום so there was no point where she was really מותרת לשוק. We see from the גמרא in חולין that an animal that was נשחט properly but had a ספק טריפה from when it was still alive is אסור even though the חזקת איסור it had previously of אינו זבוח is definitely gone, but since it never had a time when it was actually בחזקת היתר it cannot be eaten. Similarly, since this lady never had a time when she was fully מותרת לשוק, she should not have a חזקת היתר. תוספות answers that the גמרא in חולין is an outlier since there it is more likely to be a טריפה than not but in general where the ספק is 50/50 then we would use a חזקת היתר even if it had never occurred in practice. The ש"ך suggests that this is exactly the מחלוקת רבה ואביי. In other words, אביי held like the question of תוספות that the גמרא in חולין is a clear proof that there is no such thing as a “potential חזקת היתר” so she needs חליצה. However, רבה held like תוספות’s answer that the גמרא in חולין is an exception and really a חזקת היתר that never occurred in practice still counts as a חזקת היתר. However the שב שמעתתא in שמעתתא ה פּרק ז׳ וח says that this cannot be true since תוספות told us earlier that our case of יבום is even in a case of גירש ולבסוף כנס which means in רבה we were never discussing the חזקת היתר from the צרה herself because she never had one. Rather the חזקה comes from the ערוה who had an actual חזקת אשת איש which ממילא would permit the צרה to remarry. Therefore, the שב שמעתתא argues that the proof comes from the words of אביי who asked from a case of a בית falling on people where there is no חזקת אשת איש to the ערוה since her husband has a חזקת חי as much as she does. It is in that case only that the חזקת היתר is clearly from the צרה herself. If אביי didn’t hold of that kind of חזקת היתר as the ש"ך suggested, he couldn’t ask a question on רבה from the case of the בית since רבה perhaps agrees to him in that case and only said his דין in a case of יבום where there is an חזקת איסור coming from the ערוה herself. Therefore, it must be that אביי also holds of חזקת היתר even when it was never in practice and is proving from this ברייתא that it must be that מדרבנן we still require חליצה as a חומרא, and רבה disagrees since it isn’t שכיח.
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