פירוש על יבמות 16:5

אפילו שמע מן השנשים – that they don’t intend to testify, he can go to testify so that his (i.e., the dead person) wife may marry.

Introduction This mishnah talks about the acceptability of hearsay regarding a person’s death. Note that such testimony is generally not acceptable in a court of law. The Sages were lenient in these cases in order to make it somewhat easier for a woman to remarry.

הרי אנו הולכים לספוד ולקבור את איש פלוני – in the Gemara (Tractate Yevamot 121b) that one requires that they would say, “we come from eulogizing and burying this particular individual,” and it also requires that he would hear them telling of the matters of the eulogy: “such-and such Rabbis were there,” “such-and-such eulogies were there,” because it is the manner of young children to pay and to bring up names and lest it was an ant or locust that they buried, and bring them in with the name of that certain individual.

Even if he only heard from women saying, “so-and-so is dead”, this is enough. If one hears women saying amongst themselves that a certain man has died, the one who overhears them may go to the court and testify as to his death. This is true even though the women themselves did not intend to testify. If they had intended to testify their testimony would certainly be acceptable, as we learned in the previous chapter. Indeed, they themselves may come to court.

Rabbi Judah says: even if he only heard children saying, “behold we are going to mourn for a man named so-and-so and to bury him” [it is enough]. A second category of people who cannot generally provide testimony is children. However, in this case, in order to make it easier to establish a man’s death, overhearing children speaking about a certain person’s funeral or burial is sufficient.

Whether [such statement was made] with the intention [of providing evidence] or was made with no such intention [it is valid]. Rabbi Judah ben Bava says: with an Israelite [the evidence is valid] only if the man had the intention [of acting as witness]. In the case of a non-Jew the evidence is invalid if his intention was [to act as witness]. According to the first opinion, hearing a person say that so-and-so is dead always allows the hearer to testify as to his death in court, whether or not the person intended to testify. Rabbi Judah ben Bava holds that an Israelite must intend to testify for the one who hears him to be able to repeat his words in court. A non-Jew’s words can be brought to court only if he doesn’t intend to testify. Note that there are some versions of the mishnah in which Rabbi Judah ben Bava says, “with an Israelite [the evidence is valid] even if the man had the intention [of acting as witness].” According to this reading, Rabbi Judah ben Bava agrees with the previous opinion about the Israelite’s testimony (it is acceptable whether or not he intended to testify), but disagrees about the non-Jew’s.