GEMARA PESACHIM 5771

Shiur#04: Ne'emanut Isha

by Rav Moshe Aberman

            This shiur will focus on the degree of trust [ne'emanut] extended to women in different halakhic areas.

            The gemara [Pesachim 4a] states: "Everyone can be relied upon to say that bi'ur chametz [removal of chametz from one's possession] has taken place.  This includes women, children and slaves of non-Jewish origin."

I.  The sugya in Pesachim

            On daf 4b the gemara explains this ruling as follows: "Checking for chametz is only a rabbinic requirement [de-rabanan]; according to biblical law [mi-de'oraita], it suffices just to nullify the chametz.  The Rabbis rely on women, children and slaves in matters of rabbinic origin."

            From this gemara it can be deduced that women may be relied upon only in matters of rabbinic origin.  However, in halakhic areas of biblical origin [de'oraita] one could not act on the basis of information supplied by a woman.  This conclusion is reached by anonymous scholars quoted by the Ritva [Ketubot] and the Meiri [Pesachim].

II.  The Sugya in Ketubot

            The distinction between laws of biblical and rabbinic origin, although supported by our gemara, is less clear in the gemara in Ketubot [daf 72a]: The mishna records certain instances when a man may divorce his wife without paying her divorce settlement [ketuba].  Included in the mishna is the case of a woman who has marital relations with her husband while she is a nidda [impure due to her menstrual period].

            The gemara questions the rationale of the mishna in this instance and notes: "If the husband knew that his wife was a nidda and, nevertheless, had relations with her, he should be held responsible for his actions and not be exempt from paying the ketuba.  If he did not know whether she was a nidda or not, he should rely on whatever his wife told him and, therefore, he can assume she is pure and there are no grounds for a divorce.  [We will not deal with the answers to this question.]  The gemara establishes that one may rely on a woman in the area of nidda based on a verse from Vayikra [15:28] "Ve-safra lah shiv'at yamim" - she shall count to herself seven days [of impurity].  "Lah le-atzmah" she counts privately, and requires no external verification.

            The law of nidda is of biblical origin.  Furthermore, we learn from a verse in the Torah that a woman is to be trusted in this regard.  This gemara would, therefore, seem to indicate that the ne'emanut [trust] extended to women need not be limited to laws of rabbinic origin but include laws of biblical origin as well.  This is in contradistinction to the gemara in Pesachim which seemingly does place such a limitation.

III.  Nidda as an exception

            One approach is to unequivocally adopt the position inferred by the gemara in Pesachim, that women are not trusted regarding matters of biblical origin.  Accordingly, the gemara in Ketubot must be re-interpreted so that this conclusion is not contradicted.  One possibility is to distinguish between a nidda and other areas of halakha.  The Ritva on Ketubot explains that the Torah makes an exception in the case of nidda.  If one could not believe a woman concerning her status as pure or impure, one could never have relations with her and would therefore not be able to fulfill the command to have children ["peru u-revu"].  However, in other de'oraita laws she does not have ne'emanut.  [This position is presumably based on an extension of the ineligibility of women to bear witness, not however on some misguided assumptions that women are less capable of accurately reporting events.]

            Nevertheless, even according to this opinion, there are situations in which we rely upon women, even regarding Torah law.  The Torat Chatat [quoted by the Shakh - Yoreh De'a 84:35] differentiates between matters of biblical origin in which the issur (prohibition) is established and needs to be removed, to those in which the issur is only suspected.  On matters that are only a suspected issur women may be depended upon, while in established issurim women should not be trusted upon.  Therefore, women are relied upon to check for worms in vegetables as worms are only suspect, not an established fact.  Chametz, however, is viewed as an established issur since at one point there was definitely chametz in the house.  Therefore, women are believed only because of the rabbinic nature of bedika.

IV.  Equal Status

On the far side of the spectrum, one can re-interpret the gemara in Pesachim, and thereby maintain that women are absolutely trustworthy even concerning biblical matters, as inferred by the sugya in Ketubot.

            Rabbeinu David [Pesachim] claims that women have equal status to men and can be trusted on all matters even those of biblical origin.  According to Rabbeinu David, the statement extending reliability with regards to bedikat chametz solely because of its rabbinic origin, refers to the ability to trust children not women.  The mention of women in this context is only incidental.

            Rabbeinu David establishes his opinion on a deduction from the above-mentioned gemara in Ketubot.  The mishna states that a man may divorce his wife without paying her ketuba if she fed him fruit, from which terumot u-ma'asrot were not removed, or bread, from which challa was not taken.  [It is forbidden mi-de'oraita to eat fruit or bread from which the appropriate portions have not been removed.]  In both instances the gemara asks how such a scenario could occur: If the husband knew that no terumot u-ma'asrot or challa were removed, then he is at fault for eating a forbidden food.  If he was not aware, then how would he know later?  [We will not deal with the answers of the gemara.]  If the husband should not rely on his wife, but nevertheless ate the food without first verifying its halakhic status by other means, then he is at fault and cannot divorce his wife without paying her ketuba.  Therefore, we must assume that, even though, the husband had no other sources of information he is allowed to eat the food on the basis that his wife gave it to him, and she is to be believed even regarding biblical prohibitions.  Therefore, Rabbeinu David concludes, that it was obvious to the gemara women could be depended upon in matters of biblical origin and nidda is not an exception.  [This proof hinges on the premise that terumot, ma'asrot and challa are mi-de'oraita.  It is possible that the author of the mishna holds that these laws are only de-rabanan bizman ha-zeh.]

            Rabbeinu David further claims that chametz is included in the halakhic realm of issurim.  Information on issurim does not require formal eidut [testimony] and women are disqualified only in areas requiring formal eidut.  In matters of issurim, just as we depend on information received from an individual man we should accept information from women as well.  Women should be no different than men in these matters since the trust extended to the individual is based on his association with the particular command.

            Although, not explicitly stated by Rabbeinu David, according to his logic, it is possible that women would not be given ne'emanut in all biblical matters.  Since women are exempt from fulfilling positive time-related commandments [mitzvot asseh she-hazman graman] they would not necessarily be trusted in this area.

            A further proof to the reliability of women can be seen in Yevamot [117a]: The mishna states that a woman can be relied upon to inform us that another woman's husband has died.  The reason would seem to be that verification of a spouse's death does not require formal testimony (eidut).  Rather, what we need is reliable and trustworthy information (ne'emanut).  Women are considered reliable to inform us of a death even where there may be biblical halakhic consequences involved.

            Similarly, one woman may act as the messenger to bring a get [divorce document] to another and she is relied upon to verify its validity and authenticity.  Although this is only a rabbinic requirement, it has biblical implications, allowing the recipient of the get to remarry. [see also Ketubot 23b]

V.  The Complex Approach

            A third approach is to accept both the gemara in Pesachim and in Ketubot at face value.  Accordingly, there are certain cases where a woman is believed regarding Biblical matters, and certain cases where she is not.  There are various suggestions as to where the exact line should be drawn.

A.  Be-yada

            Some Rishonim follow the basic approach of Rabbeinu David, but compare the ne'emanut of a woman to that of a solitary male witness.  This limits the scope of her ne'emanut to instances in which a solitary male witness is relied upon.  When testifying that something which was once prohibited is now claimed to be permitted, a single witness is relied upon only when he can control and correct the issur.  [This is the ruling of many Rishonim in a case of itchazek issura]  Such would be the case regarding shechita [slaughtering].  It is forbidden to eat an animal while it is alive due to the issur of eiver min ha-chai, until a proper shechita has been done.  A single witness can be relied upon that the meat is now permitted since it is in his power to do or have others do the shechita.  Similarly, a woman whose reliability is equated to that of a single man, can be trusted in comparable cases of issurim only if she can control the state of issur [be-yada].  Therefore, the Torah had to teach us that women are to be relied upon in the case of nidda.  Since a woman can not control the state of nidda she should not be relied upon in these matters.  Nevertheless, the Torah teaches us that nidda is an exception in which a woman should be trusted even though she lacks control.  [See also Tosafot Gittin 2b who argue that nidda is considered be-yada.]  Accordingly, in a case of itchazak issura, a woman is trusted only if she can control the state of issur.  Therefore, she is believed that she removed terumot u-ma'asrot, even when these matters are of a biblical nature.

            Accordingly, women should be trusted regarding bedikat chametz.  Although, the house prior to bedika is in a state of itchazak issura, the ability to search for chametz is at first glance defined as be-yada.  However, Tosafot [Pesachim 4b s.v. Himnuhu] argue that since bedikat chametz requires great effort, it is not considered be-yada.  It is, therefore, only because bedikat chametz is a rabbinic law that a woman is to be believed that the house is chametz-free.  [See Yerushalmi]

B.  Personal vs. General Issur

            Another possible explanation would be that the Torah distinguishes between general matters of halakha to those pertaining to her in person.  On matters pertaining to her own person such as nidda, the Torah views women as reliable as men.  However, matters of general issues are more akin to testimony.  The Torah did not grant women the possibility of testifying.

C.  Testimony that can be challenged

            Other Rishonim (see Meiri) resolve the contradiction between the gemarot in Pesachim and Ketubot as follows: Women can be relied upon only if their statement can be challenged.  In Ketubot, the woman's assertion, that teruma and challa have been separated, can be challenged, by asking to whom they were given.  Therefore, women can be relied upon even on the biblical level.  However, the woman's claim that the house has been checked for chametz cannot be challenged since the presence of chametz does not necessarily prove that the house was not searched.  Therefore, women can be trusted only on the rabbinic level.

D.  Daily Routine

            The Shitta Mekubetzet [Ketubot 28a] quotes an opinion that women should be trusted only in those matters that are a part of daily routine.   It seems that, in principle, women are considered reliable. In matters that are a common occurrence, we assume the woman is familiar with the laws involved, and can provide us with reliable information.  However, in instances that occur less often we will not rely on a woman for fear that her information is inaccurate due to a lack of knowledge.  That would explain why, though women are considered trustworthy, in bedikat chametz they would not be trusted were it not that bedika is only required mi-de-rabanan.

SUMMARY

            We have seen that the Rishonim differ on if and when women should be trusted in halakhic matters of biblical origin.

            According to the Ritva women can not be trusted except for rare exceptions such as nidda.

            According to Rabbeinu David women have the same ne'emanut as men and are excluded only from formal eidut.

            Between these polar views are opinions giving women a limited or partial trust:

            According to Tosafot, a woman is only believed if it is in her control to change the status of the issur [be-yada] and if no great exertion is required to change the state of the issur.

            According to the Torat Chatat women are relied upon only when there is a doubt if the issur exists or not. However, if we are certain that the issur existed at some point, we do not rely on the woman's testimony that the issur has now disappeared.

            According to the opinion brought in the Shitta Mekubetzet, a woman is relied upon only in matters that are part of her daily routine.

            According to other Rishonim, a woman is only believed if her testimony can be challenged by consulting external sources.

            We also raised the possibility that a woman is only relied upon with regard to matters that concern her personally.

Sources and questions for next week's shiur - Chametz on Erev Pesach

Sources:

1.  Pesachim 4b-6a "Tenan ha-tam R. Meir omer ... ke-mashmalan.

2.  Rambam Hilkhot Chametz U-matza 1:8; 3:8; and Ra'avad.

3.  Pesachim 28a-b, from the mishna until bottom of daf b.

Questions:

1.  Is it permitted to benefit from chametz on erev Pesach according to R. Shimon?

2.  What is mandated by the law of "tashbitu?"

3.  When does the issur of "bal yera'eh" begin?