Informing The Decision
“Found To Be With Child”
(Yevamos 35b)
The Mishnah discusses the case of a man who married his brother’s wife, under the assumption that his brother had no children. He later discovered that the y’vama was pregnant at the time of his brother’s death, and there was no mitzvah of yibum at all. Since the yavam and y’vama accidentally sinned, they must bring a korban chatas in atonement.
After Three Months
Tosefos (s.v. V’nimtzes) explains that although the yavam and y’vama 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 visible. Therefore they must bring a korban chatas, to atone for their accidental sin. This circumstance is considered a shogeg, an avoidable accident, which requires atonement. Tosefos adds that if they had waited three months, and her pregnancy was still not visible, they need no atonement, since they did all they could to avoid sin. They had every right to assume she was not pregnant, and therefore they are not at all to blame. This circumstance is considered an oness – an unavoidable occurrence, for which no korban is necessary.
The First Husband Returns
Later in our Tractate (87b), we find the case of a woman who was told by two witnesses that her husband died, and she relied on their testimony to remarry. If the first husband reappears, she must bring a korban chatas to atone for her unintentional sin of remarrying.
There seems to be a contradiction here. In one case, the yavam and y’vama rightfully relied on a majority; most pregnancies are visible by the third month. The situation was an oness, and therefore they are exempt from bringing a korban. In the other case, the woman rightfully relied on the testimony of witnesses. This too should be considered an oness. Why does the Gemara classify this as a shogeg, for which a korban is required?
Resolving Uncertainty
The Noda B’Yehuda explains, after first establishing a general principle that a korban chatas is brought when a mistake was made. He then proceeds to distinguish between the two cases. When Beis Din is faced with an uncertainty, they can resolve the question in one of two ways. Either they can gather more information (through the testimony of witnesses, for example), or they can advise the proper course of conduct in the face of the unresolved question. The Torah tells us that when a question remains unresolved, we must rely on the majority to determine the most likely possibility. In most cases, pregnancy is visible by the end of the third month. Since three months after her husband’s death, this woman shows no signs of pregnancy, we may act as if she is not, since this is most likely. We still do not know for certain if she is pregnant. Yet when the Torah tells us to rely on the majority, it teaches us how to deal with uncertain situations. If later we find out that she was pregnant, this is not a shocking revelation. We knew all along that there was some chance she belonged to the minority who do not appear pregnant even after three months. We cannot say, in the face of this revelation, that we made a mistake. The information we acted on was correct, and that informs our decision as it was made based on the assumption the information was also correct. Therefore, such a situation is considered an oness, for which no korban is necessary.
This is not true regarding false testimony. When witnesses testify, they clarify what really occurred. Beis Din assumes that they are correct, and rules accordingly. If later it transpires that they were wrong (or lying), this means that Beis Din’s ruling was also incorrect. For this mistake, the couple must offer a korban.
