by R. Gil Student
I. The Marriage
In 1527, in a courtyard in Egypt, a young Jewish man gave a young Jewish woman a wedding ring against her father’s wishes. Or at least that is what two witnesses claim occurred. Two other witnesses testified that this was impossible because they observed the area whose gate was closed the entire time and did not see the couple or the original witnesses inside the area, leading to a heated cross-border rabbinical debate with responsa from five leading authorities. The complex halakhic issues are fascinating, as great minds apply Talmudic law differently to a real case. Equally interesting are the practical dimensions.
In short, Rav Ya’akov (Mahari) Beirav of Tzfas1 ruled that the woman is not married and does not need a get (religious divorce). Rav Moshe (Maharam) Alashkar and Rav David Ibn Zimra (Radbaz), both in Egypt, ruled that she needs a get — which was done after the man was enticed with money “as is appropriate to do.”2
Why did Mahari Beirav get involved in this Egyptian affair? Aside from his brilliant, bold personality that seemed to attract him to controversy, and the fact that he had only recently emigrated from Egypt where he had served as a leading rabbi, there is a simpler reason — he was manipulated.
A third set of witnesses emerged that contradicted the marriage. One of this third set of witnesses was named Yosef Ibn Gabbai. Ibn Gabbai traveled across Israel to Damascus, presenting the case to rabbis. He wielded a court’s record of the testimony of the first two sets of witnesses, added a few half truths and blatant lies, and omitted key facts. Most significantly, he failed to mention that he had subsequently married the young woman and wanted the first marriage declared invalid. Based on this faulty evidence, Mahari Beirav reached a lenient conclusion and gave Ibn Gabbai a written ruling annulling the first marriage that he believed did not occur.
Clearly, Ibn Gabbai maliciously attempted to elicit under false pretenses annulment of the first marriage in order to avoid paying the first man to divorce the woman. However, the rabbis in Egypt insisted on the divorce, which happened. The question remains whether Ibn Gabbai was allowed to remain married to her.
Mahari Beirav’s ruling (Responsa, no. 42) is elegantly written and compellingly argued. Maharam Alashkar (Responsa, no. 60) replied to Mahari Beirav’s ruling with a biting, forceful responsum arguing on both fact and law. Rav Levi Ibn Chaviv (Ralbach) replied to Maharam Alashkar defending Mahari Beirav,3 although taking a middle ground that forbade the woman to both the first and second men (Responsa, no. 138). Ralbach tells us that Ibn Gabbai approached him in Jerusalem. However, Ralbach felt that even given the limited evidence provided, he could not rule leniently.
Radbaz (Responsa, published twice as vol. 4 no. 56 and vol. 7 no. 51) also replied to Mahari Beirav, although more respectfully than Maharam Alashkar. The latter had clashed with Mahari Beirav a number of times when they were both leading rabbis in Egypt. Maharam Alashkar (Responsa, nos. 61-62) responded to Ralbach’s reply with respectful disagreement. The difference in tone between his correspondence with Mahari Beirav and Ralbach reveals the interpersonal dimensions in this debate, although even the friendship and respect between Maharam Alashkar and Ralbach could not bridge their halakhic disagreements. Finally, Mahari Beirav’s student, Rav Moshe of Trani (Mabit), defended his teacher with strong words against Maharam Alashkar’s attacks (Responsa, vol. 1 no. 49), showing how the latter misunderstood some of Mahari Beirav’s arguments.
Maharam Alashkar notes a number of factual problems with the case Ibn Gabbai shopped around to rabbis. First, as the (second) husband, his testimony is completely invalid. Additionally, the original man and woman, whose marriage was under question, were longtime sweethearts who wanted to marry but the woman’s father objected. This becomes relevant when Mahari Beirav questioned the man’s words when he gave the woman a ring (“take this as kiddushin for me”). Those words are ambiguous, because he could have asked her to guard the ring that he plans to use as kiddushin for another woman. However, given the context of their romance, that interpretation becomes implausible. Both Maharam Alashkar and Radbaz point out that the ambiguity only lies in the court’s Hebrew translation but the original language (Spanish?) is clear.4
Radbaz disputes the witness Ibn Gabbai brought to Mahari Beirav, who said that the woman was a minor at the time that the first wedding was supposed to have taken place. He met her in person and saw that she was well past twelve years old, which was confirmed by the year in which they say she was born. Maharam Alashkar says that, contrary to what was told to Mahari Beirav, the woman does not deny that the original marriage took place. He also says that if you look at the place where the second set of witnesses claim to have been standing, you cannot see from there the gate that they claim was closed the whole time, preventing the first witnesses from entering the area where the wedding supposedly took place. Additionally, there are other entrances so the testimony about the gate does not prove that the first set of witnesses were absent.
There is more but this should suffice to emphasize the importance of independent, local information.
A case as complex as this contains many legal points of contention. One is whether the testimonies of the first and second set of witnesses conflicted. Could the second set be mistaken about the time? After all, no one wore watches in those days. The Gemara (Pesachim 11b) debates how big of a mistake in time we can attribute to witnesses. Mahari Beirav disagrees with Maharam Alashkar and Radbaz in the interpretation and application of this text.
The rabbis of Egypt had previously decreed that a man may not marry a woman without the presence of a minyan of ten men and the approval of a Jewish court. Mahari Beirav asks whether that decree intended merely to excommunicate the man or also annul the marriage, which the rabbis may do with a decree. Mahari Beirav believes the decree annuls the marriage. Maharam Alashkar disputes this because the decree is enforced currently (in his time) with just excommunication, not annulment. Mabit points out that the decree was enacted long before and reportedly was enforced with annulment of the original marriage.
The Talmud (Makos 5a) distinguishes between a second set of witness that dispute previous testimony and that confute the previous testimony. Disputation (hakhchashah) addresses the events under discussion, offering a different narrative. Confutation (hazamah) addresses the original witnesses themselves, declaring that they could not have seen what they claim (e.g. you were with us somewhere else). Disputing witnesses create a case of doubt. By biblical decree, confuting witnesses (eidim zomemim) undermine the original witnesses, rendering the original testimony null and void (Deut. 19:16-21).
Mahari Beirav says that the second set of witnesses, who testified that the first set of witnesses could not have seen what they claimed because the gate was closed, serve as confuting witnesses. Therefore, the original testimony is null and the wedding lacks witnesses, which renders it null as well. No divorce is necessary in this case. Maharam Alashkar and Radbaz disagree. Because the second set of witness testify that the gate was closed, they are also testifying that the man and woman could not have entered and gotten married. Therefore, the testimony is about the actual events and not the original set of witnesses.
At first glance, it seems unclear what the debate is about. There is no question that the second set of witnesses are testifying about both the original set of witnesses and the events. I believe that this is the same debate between the Rambam and the Tur. Rambam (Mishneh Torah, Hilkhos Eidus 18:2) says that if a second set of witnesses serves as both disputation and confutation, it does not undermine the original testimony. The Lechem Mishneh (ad loc.) points out that the Tur (Choshen Mishpat 37) modifies the Rambam’s language to avoid this implication. According to the Tur, the second set of witnesses serves as confutation as long as it testifies about the first set of witnesses, regardless of whether it also testifies about the events.
Lechem Mishneh explains that the Tur sees this law about confutation (hazamah) as a logical rule. The second set of witnesses testify about the first set and the first set cannot refute the claim because witnesses are not believed about themselves. Therefore, it does not matter whether the second set of witnesses testify about other things, as well. Regardless, the logic remains.
However, the Rambam believes that the law about confutation is a biblical decree without reason. There is no reason to believe the second set of witnesses over the first, merely because of the order of testimony. But that is how the Torah tells us to act. Since this is a biblical decree without reason, we cannot extend it beyond its strict confines. Therefore, the rule of confutation only applies when the second set of witnesses testifies about the first set and nothing else. In this, Mahari Beirav seems to follow the Tur while the others follow the Rambam.
The debate about this episode covers many more issues, particularly regarding proper procedures for testimonies. It also reveals the challenges and personalities of great rabbinical figures in the generation of the Spanish expulsion. Perhaps most importantly, it teaches us to be wary of biased sources and to always strive for independent verification of facts.
About a decade later, he temporarily relocated to Damascus following the Ordination Controversy. However, Maharam Alashkar says that Mahari Beirav was in Damascus at this time and Ralbach mentions that Ibn Gabbai had returned from Damascus. Mahari Beirav may have been in Damascus for a short time during this affair. However, Radbaz says that he was in Tzfas. ↩
Radbaz’s words ↩
Ralbach and Mahari Beirav would later clash in the Ordination Controversy. ↩
Radbaz mentions Arabic and Lo’ez, which means the vernacular. Perhaps in this context, with a large community of Spanish exiles, it means Spanish or Ladino. ↩