Informing The Decision
‘Found To Be With Child’
(Yevamos 35b)
The Mishnah discusses a man thought he was performing yibum by marrying his brother’s wife after his brother passed away without having any children. He later discovered, however, that the yevamah was pregnant at the time of his brother’s death. Since the yavam and yevamah accidentally sinned by marrying, they must bring a korban chatas to atone for their sin.
After Three Months
Tosafos (s.v. V’nimtzes) explain that although the yavam and yevamah sinned accidentally, they were still somewhat to blame. They should have waited three months after the husband’s death, by which point pregnancy is usually evident. Since they didn’t, they must bring a korban chatas. They sinned accidentally, but it was an avoidable sin.
Tosafos add that if the couple did, in fact, wait three months and then married under the assumption that they were performing yibum (since her pregnancy was still not evident), they need no atonement since they did all they could to avoid sin. They had every right to assume she was not pregnan, and therefore they are not at all to blame. Their sin is considered an oness (an unavoidable occurrence) for which no korban is necessary.
The First Husband Returns
Later in our mesechta (87b), the Gemara discusses a woman who remarries based on the testimony of two witnesses that her first husband died. It rules that if the first husband reappears, she must bring a korban chatas to atone for her sin.
There seems to be a contradiction here. Both this woman and the yavam and yevamah acted in accordance with halacha. Why must one bring a korban chatas while the other two do not? Why isn’t the married woman’s sin also considered an oness?
Resolving Uncertainty
The NodaB’Yehuda distinguishes between the two cases. He explains that when beis din is faced with an uncertainty, it can resolve the uncertainty in one of two ways. It can either gather more information (through the testimony of witnesses, for example) or chart a proper course of conduct in the face of the unresolved question.
The Torah tells us that when a question remains unresolved, beis din should rely on general patterns. In most cases, pregnancy is visible by the end of the third month. If three months pass after a woman’s husband dies without any signs of pregnancy, beis din may act as if she is not since she most likely isn’t. If it later we finds out that she was pregnant, the judges aren’t necessarily shocked since they knew all along that there was a certain chance that she belonged to those minority of women whose pregnancies are not evident even after three months. In other words, if beis din discovers that she was pregnant, it did not make a mistake in ruling the way it did. Therefore, a yavam and yevamah who married based on this ruling are considered to have performed an oness for which no korban is necessary.
The same cannot be said about a woman who remarries based on false testimony that her first husband died. When beis din permitted her to remarry, it wasn’t relying on general patterns. It was relying on what it thought was a fact – that her husband was dead. Since beis din was wrong – the witnesses were either mistaken or lied – its ruling was an incorrect ruling; beis din made a mistake. The woman who relied on this incorrect ruling, therefore, is considered to have committed an accidental sin and must bring a korban.