Almanat Isa

            The mishna (13a) had addressed two cases where a question arose as to whether the woman involved is permitted to marry a kohen.  In the first instance, of "ra'uha medaberet" (discussed in the last two shiurim (16 and 17)), a woman was seen either secluding herself or actually having relations with (there are two different views in the Gemara) a man of unknown identity.  She claims that he was a kasher, meaning, relations with him does not disqualify her from marriage to a kohen.  In the second case, she is pregnant, and again she claims that the father is a kasher.  Rabban Gamliel holds that we believe the woman in both cases, whereas according to Rabbi Yehoshua we do not accept the woman's claim.  The Gemara cites Rabbi Yehoshua Ben Levi's assertion that this debate applies regardless of the composition of the local population; Rabban Gamliel accepts the woman's claim even in a situation of "rov pesulim," where the majority of men in the locale are pasul, and Rabbi Yehoshua does not believe the woman even where "rov kesheirim."  Later, the Gemara (14a) observes that these two Tanna'im, Rabban Gamliel and Rabbi Yehoshua, appear to contradict their respective rulings in a different context, regarding a case of "almenet isa."  Let us first examine the meaning of this term, "almanat isa," about which there is a dispute among the Rishonim. 

            Rashi (14a s.v. almanat isa) explains the term as referring to a case of a woman who received a divorce of questionable validity.  Her husband threw her the get and we are unsure as to whether it landed closer to her - in which case the divorce takes effect - or closer to him - in which case the divorce is invalid.  Subsequently, the husband died, and the woman is therefore either a divorcee, who may not marry a kohen or a widow, who may marry a kohen.  This woman later marries a kohen and has a child, who has a status of a "safek chalal" – a questionable chalal (disqualified kohen).  The widow of this son is called an "almanat isa." 

            Rashi's explanation becomes difficult in light of the fact that the Gemara refers to this case as one of a "sefeik sefeika" - a "double doubt," whereas in the situation Rashi describes, we have only one safek with which to contend. 

            Rashi (s.v. terei sefeiki) cites a different explanation in the name of Rav Yosef Tov Elem. A woman received a questionable divorce (as Rashi had explained) and her husband died less than three months later.  She then married a kohen and delivered a child several months later.  Regarding the status of this child, two questions come into play.  Firstly, we are unsure who is the father.  Secondly, even if the father is the kohen, we are unsure whether she was a divorcee or a widow.  The child is only a chalal if his father was a kohen and his mother a divorcee. 

            Tosefot (s.v. almanat isa) and most Rishonim explain differently, that we deal with a family into which at some point one safek chalal or more had mixed.  Every family member thus has a sefeik-sefeika; it is unclear whether he indeed descends from the safeik chalal, and if so, the status of that chalal himself is one of safeik. 

            The mishna in Masekhet Eduyot (8:3) records, "Rabbi Yehoshua testified about an almanat isa that she is eligible for [marriage into] the kehuna."  Later, we are told that Rabban Gamliel did not accept this ruling.  The Gemara claims that the views adopted by Rabbi Yehoshua and Rabban Gamliel in Eduyot contradict the positions they take in our mishna in Ketubot,  where Rabban Gamliel allows the woman to marry a kohen, while Rabbi Yehoshua disqualifies her. 

            The Gemara resolves the contradiction as follows.  In our mishna, Rabban Gamliel believes the woman on the basis of her ta'anat bari - the fact that she advances a definite claim concerning the man's identity.  Therefore, despite the indication working against her claim - namely, she was seen either pregnant or with the man, Rabban Gamliel nevertheless believes her because she makes her claim definitively.  In the situation of almanat isa, by contrast, the woman herself cannot ascertain the husband's status and therefore we do not accept her "ta'anat shema" (indefinite claim).  As for Rabbi Yehoshua's position, the Gemara explains that he bases his rulings on the objective questions we must confront in each case.  In the mishna, we have only one doubt - whether the man she slept with was a kasher or a pasul.  In the situation of almanat isa, by contrast, we have two sefeikot to contend with, as discussed earlier.  Therefore, Rabbi Yehoshua adopts a stringent position in the mishna, and does not believe the woman, whereas in the case of almanat isa he rules leniently and permits the woman to marry a kohen. 

            It thus emerges from the Gemara that Rabban Gamliel bases his position on the subjective factor of the nature of the woman's claim, whereas Rabbi Yehoshua's rulings are based upon the objective factors we may use in resolving the question at hand, namely whether we deal with a single point of doubt or with a sefeik-sefeika. 

            One difficulty arises from this understanding of the Gemara's discussion.  Earlier we mentioned that according to Rabbi Yehoshua Ben Levi, Rabbi Yehoshua's stringent ruling in our mishna forbids the woman from marrying a kohen even in a situation of rov kesheirim.  But if, as we have seen, Rabbi Yehoshua's position is based upon the objective factors, how does he rule leniently in a case of sefeik-sefeika but stringently in a situation of rov pesulim?  Why does a sefeik-sefeika work but a rov does not?  

            We could perhaps answer quite simply, that the sugya on 14a does not follow the view of Rabbi Yehoshua Ben Levi, and it limits Rabbi Yehoshua's position in the mishna to cases of rov pesulim.  Only in this case does Rabbi Yehoshua argue with Rabban Gamliel's view, as he affords preference to the objective considerations, as explained earlier. 

            If we assume otherwise, that it is universally accepted that Rabbi Yehoshua and Rabban Gamliel argue even in the case of rov kesheirim, we could still, perhaps, explain Rabbi Yehoshua's position.  Let us first examine the debate between Rabban Gamliel and Rabbi Yehoshua and identify the point around which this dispute revolves.  One might suggest that Rabban Gamliel and Rabbi Yehoshua debate two points: the degree of reliability we grant the woman when she makes this claim, and the weight carried by rov when it comes to yuchesin (questions of lineage with respect to the kehuna). 

            The Gemara (13a), however, notes that Rabbi Yehoshua's position results from the concept of "ma'ala asu be-yuchesin" - the particularly stringent standards Chazal imposed when determining eligibility for the kehuna.  Accordingly, we might suggest that this debate surrounds but one issue: where we draw the line with regard to this principle.  Meaning, as opposed to our initial suggestion, by which Rabban Gamliel and Rabbi Yehoshua argue with regard to the respective strengths of the various factors involved, such as rov, for example (and a separate debate would thus arise concerning each factor), we now suggest that they agree on this point.  Rabbi Yehoshua, however, establishes a very rigorous standard when dealing with yuchesin, while Rabban Gamliel follows a lower standard. 

            According to the approach that they argue with regard to the relative strengths of the factors involved, and each factor must be assessed independently, one could suggest that sefeik-sefeika is seen as stronger than rov.  If, however, the debate involves the standard required by the principle of "ma'ala asu be-yuchesin," it is difficult to understand why sefeik-sefeika would override this principle while rov would not. 

            Some Rishonim understood that we have here a fundamental argument regarding sefeik-sefeika.  Rabbi Yehoshua rules leniently in a case of sefeik-sefeika, whereas Rabban Gamliel relies on the sefeik-sefeika only when the woman advances a ta'anat bari.  (The Rashba, for example, in his comments to 9a, where he addresses the basic sugya of sefeik-sefeika, connects our sugya to that discussion.)  We may, however, suggest that sefeik-sefeika may nevertheless overcome "ma'ala asu be-yuchesin" even if rov cannot.  Rov is a means of resolving a situation of doubt.  In a situation of safeik, the Bet-Din will try to resolve the doubt through various means, such as rov.  Sefeik-sefeika, however, is not a factor which enables us to resolve the safeik; rather, in a case of sefeik-sefeika, a safeik arises already in the process of the creation of a safeik.  Meaning, it is unclear at all whether or not we even confront a safeik in such a case.  In this sense, sefeik-sefeika differs from rov, which, as stated, can help us resolve the safeik once the safeik has been established. 

            Alternatively, we may suggest that this debate regarding sefeik-sefeika relates specifically to the situation of almanat isa.  The Rambam accepts Tosefot's understanding of the case, as discussed earlier, that we deal with a family into which a safeik chalal had somehow mixed (see Hilkhot Issurei Bi'a 19:23).  The Rambam implies that essentially, every family enjoys a chezkat kashrut; once, however, a safeik chalal has mixed into the family, that chazaka is undermined.  It is not the widow herself regarding whom a safeik arises, but rather the entire family.  The Rambam writes: "Every family is presumed kasher and permitted to marry le-khatechila (19:17)… A family into which a safeik chalal is mixed - every widow from that family may not, le-khatechilka, marry a kohen" (19:23).  We may thus explain that due to the principle of "ma'ala asu be-yuchesin," Chazal forbade all the women of this family from marrying a kohen le-khatechila.  They placed upon this family a definitive status of "chalal," decreeing that we will treat this safeik as a case of vadai (certainty).  We find other examples of situations of safeik which Chazal transform into cases of vadai.  "Demai," produce purchased from an am ha-aretz, constitutes a situation of safeik, as we are unsure whether the seller had taken teruma and ma'aser, but Chazal forbade it on the level of vadai.  The same can be said of bedikat chametz, which is a definitive requirement mi-de'rabanan that stems from the concern that some chametz might still remain in the home.  Likewise, Chazal declared all residences of pagans tamei, out of concern for the possibility that children are buried there (Pesachim 9a). 

            In cases such as these, where we have a safeik which Chazal forbade on the level of vadai, what happens when a sefeik-sefeika arises?  Does the rabbinically ordained stringency remain, even though we now have two points of doubt?  On the one hand, one might argue that once Chazal decreed that we view the situation as one of vadai, then any safeik that arises is automatically eliminated since it is considered vadai.  Accordingly, we can never even arrive at a case of sefeik-sefeika in these situations. 

            On the other hand, one may contend that when a sefeik-sefeika arises in these situations, we may, in fact, rule leniently, for one of two reasons.  Firstly, although the Sages imposed a stringency in these cases, the safeik does not disappear; therefore, once it combines with an additional safeik, the standard rules of sefeik-sefeika take effect.  Secondly, even if the initial safeik is, indeed, entirely erased by Chazal's decree, nevertheless, the stringency remains a halakha mi-de'rabanan.  Therefore, once an additional safeik arises, we have a situation of a "safeik de-rabanan" - in which case we always rule leniently. 

            Accordingly, Rabban Gamliel, who rules stringently in the case of almanat isa, makes two basic assumptions.  First, he claims that the Chakhamim declared a status of "isa" upon the entire family into which a safeik chalal had mixed.  In addition, he holds that Chazal not only decreed that we consider this case of safeik as a vadai, but they went so far as to prevent the implementation of the general principle by which we rule leniently in cases of a safeik de-rabanan. 

            Rabbi Yehoshua, who argues with Rabban Gamliel's ruling, rejects either one of these two assumptions.  First, he might claim that Chazal never decreed upon this family a prohibition on the level of vadai.  Alternatively, he may accept this first premise of Rabban Gamliel but maintain that this stringency does not apply when an additional safeik arises. 

            According to this approach, Rabban Gamliel's position does not reflect a fundamentally stringent perspective when dealing with a sefeik-sefeika, but rather results from a specific decree of Chazal.  Fundamentally, however, Rabban Gamliel rules leniently in situations of sefeik-sefeika just as he would in cases of rov.  This approach would not, however, resolve the difficulty within Rabbi Yehoshua's view.

            (According to the Ba'al Ha-ma'or [5a in the Rif], Rabban Gamliel holds that we should believe the woman even if she does not make a ta'anat bari, if she has a rov working in her favor.  According to this approach, we must explain that essentially, even Rabban Gamliel rules leniently in cases of sefeik-sefeika; otherwise, it is hard to understand why he relies on a rov but not on a sefeik-sefeika.  The Ramban there in the Milchamot takes issue with the Ba'al Ha-ma'or's approach and holds that the woman is not believed with only an ordinary rov.  This would then allow for the possibility that Rabban Gamliel does not rely on a sefeik-sefeika, either.)

(Translated by David Silverberg)