Abarbanel asks about yibum, Yehuda, and Boaz

וקשרתם לאות על רגליך?ש

Summary: Abarbanel's 19th doubt in Ki Seitzei is about the incident with Yehudah and Tamar, and how that meshes (or does not) with the laws of yibbum. Yehuda was a father to the deceased, not a brother! And how come halacha does not recognize this as effective, patterned after Yehuda. Abarbenel's 20th doubt is about the yibbum described in sefer Rut. Was he a brother or a distant relative? Where was the spitting for Ploni Almoni? This all seems to contradict the laws of yibbum and chalitza.

Post: There is a humorous saying that many people went off the derech because of the Abarbanel. They start to read his commentary on Shabbos afternoon, and only get through the lengthy questions before the chulent hits. They never get to the answers, and so are left with just the questions.

Yet, the lengthy questions themselves do a lot of establishing work. They show how Abarbanel views the text, and where the difficulties lie. He might contrast one apparent view of a pasuk with contradictory evidence. He frames the narrative, or laws, in a particular way, which one adopts prior to solving the difficulties. (Indeed, see in his answer how he refers to points already established in his question section.)  How one resolves those difficulties is another matter. Abarbanel presents his resolution. And one can attempt to resolve it in another way, either by questioning his axioms or satisfying all of his constraints.

Regardless, the questions themselves made for a lengthy enough post, so I am leaving the post at just that.

In the 19th doubt and 20th doubt, Abarbanel explores the nature of the halachic, or perhaps customary, yibbum which occurs in parashat Vayeshev and in sefer Rut, in light of the laws of Yibbum described in this parasha, parashat Ki Teitzei.

"The 19th doubt is in the precept of yibbum. For if it was as Chazal said in Bereishit Rabba (parasha 65) that Yehuda initiated the precept of yibbum, why didn't the Torah command the precept in the same situation in which Yehuda performed it? For behold, Yehuda performed yibbum upon his daughter-in-law, and this informs that it applies as well in the other relatives, and amongst them the father {of the deceased}. Thus, the precept of yibbum is not only in brothers. And we have received, in the first perek of Yevamot, that yibum for a brother is an obligation and a great mitzvah, and for the father, it is a great sin. And this is a great difficulty, for just as the precept of circumcision we received from Avraham and the Jews established and received that precept in the same manner that Avraham performed it, so would it be fitting for the precept of yibbum which was received from Yehuda, who initiated it, so shall we do and hear, just as Yehuda did, no more and no less.


The 20th doubt is in the matter of Boaz and Ruth the Moabite, for we find the precept of yibbum by them, and the precept of chalitza by the closer redeemer, and this is not done according to the commandment of the Torah. Whether this is because Boaz was not the brother to Machlon but rather his relative, as well as because there was a closer redeemer than he; and also when he said {Ruth 4:3} 'the parcel of land, which was our brother Elimelech's... Naomi is selling...' he does not call him ach in its specific meaning {of male sibling}, but rather that he is his relative. And this is as the verse stated (Ruth 2:1), 'And Naomi had a kinsman of her husband's, a mighty man of valour, of the family of Elimelech, and his name was Boaz.' And she as well said 'The man is nigh of kin unto us, one of our near kinsmen.' Not that he was a brother. And also, if it were admitted that he were a{n actual} brother to Elimelech, how could he perform yibbum on the wife of Machlon, his brother's son? Also, in the matter of chalitzah, Ruth did not come to the gate to say 'he does not desire to perform yibbum on me," and to remove his sandal and to spit before him. Behold, if so, neither the yibbum nor the chalitzah were in accordance with Torah law and its commandments, neither by Yehudah who was before the Torah and its mitzvot, nor by Boaz who was after the giving of the Torah."

That was the question. What about his (rather lengthy) answer? I will save that for subsequent posts. If you would like to read it inside, it starts on this page in Abravanel.

Concealing or Revealing Ones Non-Halachic Flaw In Yichus

Note: Not halacha lemaaseh. I am just discussing one source, and an alternative way of reading it, but actual pesak halacha involves many more sources and greater analysis.

In Yevamot 45a we encounter the following:

ואף רב מורה בה היתירא דההוא דאתא לקמיה דרב אמר ליה ►עובד כוכבים◄ {גוי} ועבד הבא על בת ישראל מהו אמר לו הולד כשר אמר ליה הב לי ברתך לא יהיבנא לך אמר שימי בר חייא לרב אמרי אינשי גמלא במדי אקבא רקדא הא קבא והא גמלא והא מדי ולא רקדא א"ל אי ניהוי כיהושע בן נון לא יהיבנא ליה ברתי א"ל אי הוה כיהושע בן נון אי מר לא יהיב ליה אחריני יהבי ליה האי אי מר לא יהיב ליה אחריני לא יהבי ליה לא הוה קאזיל מקמיה יהיב ביה עיניה ושכיב ואף רב מתנה מורה בה להיתירא ואף רב יהודה מורה בה להיתירא דכי אתא לקמיה דרב יהודה א"ל זיל איטמר או נסיב בת מינך וכי אתא לקמיה דרבא א"ל או גלי או נסיב בת מינך

And Rab also ruled that the child is legitimate. For once a man appeared before Rab and asked him, 'What [is the legal position of the child] where an idolater or a slave had intercourse with the daughter of an Israelite'? 'The child is legitimate', the Master replied. 'Give me then your daughter' said the man. 'I will not give her to you' [was the Master's reply]. Said Shimi b. Hiyya to Rab. 'People say that in Media a camel can dance on a kab; here is the kab, here is the camel and here is Media, but there is no dancing'! 'Had he been equal to Joshua the son of Nun I would not have given him my daughter', the Master replied. 'Had he been like Joshua the son of Nun', the other retorted, 'others would have given him their daughters, if the Master had not given him his; but with this man, if the Master will not give him, others also will not give him'. As the man refused to go away he fixed his eye upon him and he died. R. Mattena also ruled that the child is legitimate. Rab Judah also ruled that the child is legitimate. For when one came before Rab Judah, the latter told him, 'Go and conceal your identity or marry one of your own kind'. When such a man appeared before Raba he told him, 'Either go abroad or marry one of your own kind'.

In this instance, the child of such a union is valid {kasher} to marry an Israelite, but it is a dispute among post-Talmudic authorities whether the child has a pegam {flaw in lineage} which would still prevent marriage to a kohen. Some say there is none and some have a doubt about it. See e.g. the Rif for more details on this score.

But an interesting point in play here is that in terms of marrying an Israelite, the child is certainly valid, yet there is this instruction to conceal. This would seem to be because of prejudices of those other people, or wariness as to the actual validity of the lineage, despite this ruling. And concealing this information is not geneivas daas, and is not a basis for declaring the marriage a mekach taus.

There is one thing I would like to discuss regarding this. And that is:

ואף רב יהודה מורה בה להיתירא דכי אתא לקמיה דרב יהודה א"ל זיל איטמר או נסיב בת מינך וכי אתא לקמיה דרבא א"ל או גלי או נסיב בת מינך

Soncino agrees with Rashi here, translating:

Rab Judah also ruled that the child is legitimate. For when one came before Rab Judah, the latter told him, 'Go and conceal your identity or marry one of your own kind'. When such a man appeared before Raba he told him, 'Either go abroad or marry one of your own kind'.

In a footnote explaining "conceal your identity," he paraphrases Rashi, writing

I.e., 'go to a place where you are unknown and where you might in consequence pass as a legitimate Israelite and be allowed to marry a Jewess'. Since Rab Judah counselled him to marry a Jewess if he could, by concealing his origin, it is obvious that in his opinion the man was legitimate. A bastard would not have been allowed marriage with a Jewess under any circumstances.

and then he translates או גלי as "go abroad." Thus, Rav Yehuda and Rava are saying the same thing.

This is how Rashi explains both זיל איטמר and it או גלי:


I would suggest a different interpretation of או גלי. For גלי can either mean go into exile (thus "abroad" here) or "reveal." As such, and as it stands in the same place in Rava's statement as זיל איטמר, "go conceal" did in Rav Yehuda's statement, I would suggest that Rava meant "either reveal, or marry one of your own kind."

That is, while both agree the man is valid to marry an Israelite woman, they disagree as to whether one may conceal this information from one's prospective spouse and his or her family. Rabbi Yehuda held that since there was nothing to the matter, one could conceal it, or else marry someone with the same status (of valid, from such a union). Rava held that even though there was nothing halachic to the matter, one should not conceal it. Therefore, the choices are (a) to reveal it, together with the fact that halachically it is no impediment to marriage, and hope people get over their hangups, or (b) to not reveal it, but to marry someone of the same status.

This is a potentially important alternative reading, since this gemara is a source for the question of whether one may conceal certain types of flaws, which may or may not constitute flaws, from one's spouse.

Daf Yomi Yevamot: Begin vs. Permitted

I realize that daf yomi has moved on the Ketubot (and indeed, so has Rif Yomi), but there is a bit of Yevamot material I never had opportunity to post.

Citing from my translation of the Rif:

{Yevamot 116b}

איבעיא להו התירוני להנשא ותנו לי כתובתי מהו
כיון דקאמרה תנו לי כתובה אדעתא דכתובה אתיא או דילמא כל מילי דאית ליה לאיניש קאמר להו בבי דינא
ואם תימצי לומר כל מילי דאית ליה לאיניש קאמר להו בבי דינא תנו לי כתובתי והתירוני להנשא מהו
הכא ודאי אדעתא דכתובה אתאי ולא מהימנא או דילמא משום דלא ידעה במאי משתריא מאי
תיקו
ועבדינן לחומרא

It was a question to them: "permit me to remarry and grant me my ketuba," what?
Since she said "give me the ketuba," she is coming for the sake of the ketuba? Or perhaps every matter that a person has, he will state it before Bet Din?
And if you say that every matter that a person has, he will state it before Bet Din, "grant me my ketuba and permit me to remarry" {in that order}, what? Here, is it certain that she came for the sake of the ketuba and therefore is not believed? Or perhaps because she does not know with what she becomes permitted? What?
The question stands.
And we conduct ourselves stringently.

I would offer another potential translation above. The standard translation of או דילמא משום דלא ידעה במאי משתריא appears to be "Or perhaps because she does not know with what she becomes permitted." That is, perhaps she has the misconception that via the granting of the ketuba, she is now permitted to be married.

I would note that tishri, or tishrei, the month, is called this because it means "to begin," and this is the beginning of the year. Here as well, she knows that she is supposed to lay out all her claims before bet din, but does not know which among her claims she is supposed to begin with. So, do we say that even though she mentioned remarriage, since she started with the ketuba that is her only real interest? Or, do we say that she is flustered in court and does not know how to present her case, and does not know with what to begin, לא ידעה במאי משתריא, and happened to choose to begin with the monetary aspect of the case, but we should not make a big deal out of it.

Daf Yomi Yevamot 116a/121b: More Miracles in Halacha

Revisiting the topic.

{Yevamot 116a}

ההוא גיטא דאישתכח בסורא וכתב ביה הכי בסורא מתא אנא ענן בר חייא נהרדעא פטר ותריך ית פלוניתא אינתתיה ובדוק רבנן מסורא ועד נהרדעא ולא הוה ענן בר חייא אחרינא לבר מענן בר חייא מחגרא דהוה בנהרדעא
ואתו סהדי אמרי כי איכתיב האי גיטא ענן בר חייא מחגרא גבן הוה בנהרדעא
אמר אביי אפילו לדידי דחיישינא הכא לא חיישינא
הא קאמרי סהדי דההוא יומא כי איכתב האי גיטא ענן בר חייא מחגרא גבן הוה בנהרדעא מאי קא בעי בסורא
אמר רבא אפי' לדידי דלא חיישינא הכא חיישינא
דלמא בגמלא פרחא אזל
אי נמי בקפיצה
אי נמי מילי מסר
כדאמר להו רב לספריה וכן אמר להו רב הונא לספריה כי איתינכו בשילי כתובו בשילי ואף על גב דמסירי לכו מילי בהיני וכי איתינכו בהיני כתובו בהיני ואף על גב דמסירי לכו מילי בשילי
והלכתא כרבא

There was a certain get that was found in Sura, upon which was written as follows: In Sura the city, I, Anan bar Chiyya of Nehardea, release and divorce Plonit my wife.
And the Rabbis searched from Sura until Nehardea and there was no other Anan bar Chiyya except for Anan bar Chiyya of Chagra {so in other words there was this one other person}, who was at that time in Nehardea. And witnesses came and said, "when this get was written, Anan bar Chiyya of Chagra was with us in Nehardea."
Abaye said: Even according to me that I worry {about another Yitzchak} here, I do not worry. For witnesses have says that on that day, when this get was written, Anan bar Chiyya of Chagra was with in Nehardea, so he could not have been in Sura {which usually would take two days' journey}.
Rava said: Even according to me, that I do not worry, here I do worry. Lest he traveled by flying camel. Alternatively, with a {miraculous} leap. Alternatively, perhaps he gave over words {instructions to do so}. As Rav said to his scribes, and so did Rav Huna say to his scribes, "when you are at Shili, write "in Shili," even though you received the instructions in Hini. And when you are in Hini, write "in Hini," even though you received the instructions in Shili.
And the halacha is like Rava.

I wrote in an earlier post about how halacha sometimes considers the possibility of miracles in determining halacha. Thus, perhaps there is kefitzat haderech, or a flying camel. This is related to the attempt in Eruvin to show that there is no techum over ten tefachim, because the 7 rulings came from Sura to Pumpedita in one day, when travel past techum was forbidden, so it must have been Eliyahu haNavi over ten handbreadths, with the rejection that perhaps it was Yosef the demon. Here, too, we have two miraculous possibilities, though with a concluding possibility entirely within the realm of derech hateva. (I wonder where the end of Abaye and Rava's statement is, though, and if there is any setamaitic elaboration, especially since three alternatives are given within Rava's statement.)

In contrast, we have Rabbi Meir telling over a proof from a story of a man who survived three days in a cistern.

SAID R. MEIR: IT ONCE HAPPENED THAT A MAN FELL INTO A LARGE CISTERN etc. It was taught: They said to R. Meir, 'Miracles cannot be mentioned [as proof]'. What [did they mean by] 'miracles'? If it be suggested because he neither eats nor drinks, surely [it may be pointed out], It is written in Scripture, And fast ye for me, and neither eat nor drink [three days]! — Rather because he does not sleep. For R. Johanan stated: [A man who said]. 'I take an oath that I will not sleep for three days' is to be flogged and he may sleep at once. What then is R. Meir's reason? — R. Kahana replied: There were arches above arches. And the Rabbis?— They were of marble.

So it seems that we do not consider the possibility of miracle when deciding halacha.

Daf Yomi 114b - Naomi as prototype of Believed Woman

Unlikely, but still why not put the idea out there.

{Yevamot 114b}
Mishna:

האשה שהלכה היא ובעלה למדינת הים
שלום בינו לבינה ושלום בעולם באה ואמרה מת בעלי תנשא מת בעלי תתיבם
שלום בינו לבינה ומלחמה בעולם קטטה בינו לבינה ושלום בעולם באה ואמרה מת בעלי אינה נאמנת
רבי יהודה אומר לעולם אינה נאמנת אא"כ באה בוכה ובגדיה קרועים
אמרו לו אחת זו ואחת זו תנשא:

A woman who went with her husband to an overseas country.
If there was peace between them and peace in the world, and she comes back and says "my husband died," she may remarry, or "my husband died," {and there are no children} she may undergo yibbum.
If there was peace between them and war in the world, or arguments between them and peace in the world, if she came back and said "my husband died," she is not believed.
Rabbi Yehuda says: She is never believed unless she comes crying, with her clothing ripped.
They said to him: Both this and that may remarry.

{Yevamot 116b}

בית הלל אומרים לא שמענו אלא הבאה מן הקציר בלבד
אמרו להן ב"ש אחד הבאה מן הקציר ואחד הבאה מן הזיתים ואחד הבאה ממדינת הים לא דברו בקציר אלא בהווה
חזרו ב"ה להורות כדברי ב"ש:

Bet Hillel say: We only heard regarding one who came from the {wheat?} harvest.
Bet Shammai say: Whether the one who comes from the harvest, or from the olives {picking}, or who came from an overseas country. They only spoke regarding the harvest because of the common case.
Bet Hillel retracted in order to rule like the words of Bet Shammai.

What is the basis for this requirement that the woman appears in mourning when telling over her loss? What is the basis for coming from the harvest? What is this famous incident?

Tosafot suggests that during the wheat harvest, heatstroke is common and thus we might be more prone to believe that he died, and this is (I guess) the common case of causing death.

I may as well be fanciful, and suggest another common case, which Bet Shammai and Bet Hillel might be referring to -- Rut and Naomi's return from Sedei Edom. Ruth was a case of peh sheAsar peh sheHitir, for she was the source that she had married, as well as that she was widowed. Naomi, though, they knew was married when she left. (There are also issues in that their relationship precludes one testifying on the behalf of the other.)

We see at the end of the first perek of Rut:

יט וַתֵּלַכְנָה שְׁתֵּיהֶם, עַד-בּוֹאָנָה בֵּית לָחֶם; וַיְהִי, כְּבוֹאָנָה בֵּית לֶחֶם, וַתֵּהֹם כָּל-הָעִיר עֲלֵיהֶן, וַתֹּאמַרְנָה הֲזֹאת נָעֳמִי.	19 So they two went until they came to Beth-lehem. And it came to pass, when they were come to Beth-lehem, that all the city was astir concerning them, and the women said: 'Is this Naomi?'
כ וַתֹּאמֶר אֲלֵיהֶן, אַל-תִּקְרֶאנָה לִי נָעֳמִי: קְרֶאןָ לִי מָרָא, כִּי-הֵמַר שַׁדַּי לִי מְאֹד.	20 And she said unto them: 'Call me not Naomi, call me Marah; for the Almighty hath dealt very bitterly with me.
כא אֲנִי מְלֵאָה הָלַכְתִּי, וְרֵיקָם הֱשִׁיבַנִי יְהוָה; לָמָּה תִקְרֶאנָה לִי, נָעֳמִי, וַיהוָה עָנָה בִי, וְשַׁדַּי הֵרַע לִי.	21 I went out full, and the LORD hath brought me back home empty; why call ye me Naomi, seeing the LORD hath testified against me, and the Almighty hath afflicted me?'

Also, coming back from a harvest is the next pasuk:

כב וַתָּשָׁב נָעֳמִי, וְרוּת הַמּוֹאֲבִיָּה כַלָּתָהּ עִמָּהּ, הַשָּׁבָה, מִשְּׂדֵי מוֹאָב; וְהֵמָּה, בָּאוּ בֵּית לֶחֶם, בִּתְחִלַּת, קְצִיר שְׂעֹרִים.

22 So Naomi returned, and Ruth the Moabitess, her daughter-in-law, with her, who returned out of the field of Moab--and they came to Beth-lehem in the beginning of barley harvest.

though it is a barley harvest.

On the day of Ruth's customary yibbum, it was at the end of the wheat harvest, as we read (second perek):

כג וַתִּדְבַּק בְּנַעֲרוֹת בֹּעַז, לְלַקֵּט--עַד-כְּלוֹת קְצִיר-הַשְּׂעֹרִים, וּקְצִיר הַחִטִּים; וַתֵּשֶׁב, אֶת-חֲמוֹתָהּ.

23 So she kept fast by the maidens of Boaz to glean unto the end of barley harvest and of wheat harvest; and she dwelt with her mother-in-law.

Daf Yomi Yevamot 113b -- Two Different Types of "Knowledge"

A nitpick on the gemara:

Mishna:

העיד רבי יוחנן בן גודגדא על החרשת שהשיאה אביה שיוצאה בגט ועל קטנה בת ישראל שנשאת לכהן שאוכלת בתרומה
אמרו לו אף זו כיוצא בה
פירוש אף זו שנשאת כשהיא פקחת ונתחרשה כיוצא בה כשם שחרשת שהשיאה אביה שאף על פי שנישואיה נישואי תורה מתגרשת כך זו הפקחת שנשאת ואחר כך נתחרשה אע"פ שנישואיה נישואי תורה מתגרשת

Rabbi Yochanan ben Godgada testified regarding the female deaf-mute whose father married her off, that she goes out with a get, and regarding the female minor, daughter of an Israelite who was married to a kohen, that she eats of teruma.
They said to him: Even this one is like her.
{Yevamot 113b}
Gemara:

העיד ר' יוחנן כו':
אמר רבא מעדותו של רבי יוחנן בן גודגדא אמר לעדים ראו גט זה שאני נותן וחזר ואמר לה כנסי שטר חוב זה הרי זו מגורשת
מי לא אמר רבי יוחנן בן גודגדא דלא בעינן דעתה דאשה הכא נמי לא בעינן דעתה דאשה
פשיטא
מהו דתימא כיון דאמר לה כנסי שטר חוב זה בטלי בטליה קא משמע לן דאם איתא דבטליה לעדים הוה אמר להו ומדלא אמר להו לא בטליה והאי דקאמר לה הכי מחמת כיסופא הוא דקאמר לה

"Rabbi Yochanan {ben Godgada} testified...":
Rava said: From the testimony of Rabbi Yochanan ben Godgada, if he {the husband} said to witnesses, "see this get that I give," and then turns to her and says "take this document of indebtedness," she is divorced. {since a woman may be divorced without her consent, or in this case, knowledge}
Does not Rabbi Yochanan ben Godgada say that we do not need her knowledge {consent}? So too here we do not need the knowledge {here, actual knowledge} of the woman.
This is obvious!
I would have though since he says "take this document of indebtedness," he has canceled it {the get}. Therefore it informs us that is he had canceled it, he would made a statement to that effect to the witnesses, and from the fact that he did not make such a statement to them, he did not cancel it, and this that he told her as he did, it was to conceal his shame that he said this to her.

Rather than make such intricate distinctions and explanations of the man's intent and the meaning of his statement, or his inner motivations -- which surely is not what Rava intended -- we might say: Rabbi Yochanan ben Godgoda was speaking of a woman with Biblical marriage who could be divorced despite being a deaf-mute. This is because divorce does not need consent, and thus does not really require her knowledge of the matter. Thus, Rava's derivation that the husband may even mislead a normal woman is a fair derivation. But it is not necessarily so obvious, as the gemara states. There may be a difference between lack of knowledge/consent and false knowledge of what is going on, after all. Rava is saying that there is this equivalence.

No great chiddush here, but still something to point out.

The Rif's Girsa of the Mishna in Yevamot 120a

Here is a short one. The Mishna, as cited by the Rif on Yevamot 120a reads:

{Yevamot 120a}

אין מעידים אלא על פרצוץ פנים עם החוטם אע"פ שיש סימנים בגופו ובכליו.
ואין מעידין אלא עד שלשה ימים.
ואפילו ראוהו מגוייד או צלוב (על הצליב') וחיה אוכלת בו אין מעידין עד שתצא נפשו
רבי יהודה בן בבא אומר לא כל האדם ולא כל המקומות ולא כל העתות שוין

They {=a witness} may only testify {that the person died} if there is the full face with the nose, even if there are signs on his body and clothing {that it is him}.
{Different girsa. See the Mishna in the gemara. This follows the Mishna in the Yerushalmi.}
They only testify {if they saw the body} within three days {of death}.

And even if they saw his arteries cut, or crucified {on a cross}, or a wild animal eating his, they do not testify about him until his soul departs.
Rabbi Yehuda ben Bava says: Not every man, nor every place, nor every time is the same.

I wonder at the words in parentheses - על הצליבה. Where did they come from, if they are not original? It appears like a partial duplication of the words which remain -- או צלוב. The reason they are presumably marked out is that they seem unnecessary, for where will one be crucified if not on a cross? And furthermore, they do not appear in our Mishna in the gemara. Rather, our Mishna reads:

אין מעידין אלא על פרצוף פנים עם החוטם אע"פ שיש סימנין בגופו ובכליו
אין מעידין אלא עד שתצא נפשו ואפי' ראוהו מגוייד וצלוב והחיה אוכלת בו
אין מעידין אלא עד ג' ימים
ר' יהודה בן בבא אומר לא כל האדם ולא כל המקום ולא כל השעות שוין

But hold on one moment. There is a possibly more drastic change from the Mishna to the Rif's Mishna -- the placing of the phrase אין מעידין אלא עד שתצא נפשו, and the placing of the phrase ואין מעידין אלא עד שלשה ימים. In our Mishna in the gemara, the organization of the three phrases is:

1) Until his soul departs
2) even if they saw his arteries cut, or him crucified, or a wild animal eating him.
3) they do not testify about him except for having seen him the first three days after death.

This is a logical juxtaposition to Rabbi Yehuda ben Bava's statement about the nature of decomposition, but other structures are possible.

Meanwhile, the Rif's organization has:
3)
2)
1)

with (1) and (2) flipped.

However, before dismissing this order, I should note that often enough the Mishna in the Yerushalmi differs from the Mishna in the Bavli, and often the Rif's Mishna is the same as the Yerushalmi. This is one such case. The Mishna there {Yerushalmi Yevamot 82b} reads:

אין מעידין אלא על פרצוף פנים עם החוטם אף על פי שיש סימנין בגופו ובכליו אין מעידים אלא לאחר שלשה ימים.
אפילו מגוייד וצלוב על הצליב והחיה אוכלת בו אין מעידין אלא עד שתצא נפשו
ר' יודה בר בבא לא כל האדם ולא כל המקומות ולא כל השעות שוות

Which is essentially the same, and has the order of
3)
2)
1)

just as in the Rif's Mishna.

Furthermore, the Yerushalmi also has וצלוב על הצליב which is essentially the wording in the Rif's Mishna. Therefore, it has its basis and given only this evidence, I would say that we should preserve the phrase.

Update: Rashi in our gemara shows our gemara's order and text. Rashi does have על הצליבה but at least based on the punctuation we have, it is part of his commentary but not part of the dibbur hamatchil. I'm not sure how much stock to put into that division, though.

Rosh has the order as Rif:
3)
2)
1)
but does not have על הצליבה.

Daf Yomi Yevamot 115a/121a: The Law By A Single Witness of a Drowning in Water Which Has No End -- The Difference A Single Letter Makes

That single letter being either an aleph or a yud. Or perhaps a heh.

From my Rif blog (to be posted later), from Yevamot 115a (as well as from 121a):

איבעיא להו עד אחד במלחמה מהו

טעמא דעד אחד דמהימן משום דמילתא דעבידא לאיגלויי לא משקר ה"נ לא משקר
או דילמא טעמא דעד אחד משום דהיא גופה דייקא ומינסבא והכא זימנין דסניא ליה ולא דייקא ומינסבא

ואתינן למפשטה מהא דתניא מעשה בשני תלמידי חכמים שהיו באין עם אבא יוסי בן סימאי בספינה וטבעו והשיא רבי את נשותיהן ע"פ נשים והא מים כמלחמה דמו ומאה נשים כעד אחד דמו וקתני והשיא רבי את נשותיהן
אלמא דעד אחד נאמן במלחמה

It was a question to them: A single witness, by war, what? The reason that a single witness is believed is that facts which will eventually be revealed, he will not lie, and so too here, he will not lie. Or perhaps the reason of a single witness {being believed} is that she herself will delve into the matter before remarrying, but here, there are times that she hates him and will not delve into it before remarrying.
And we come to resolve it from this that they learnt {in a brayta}: There was an incident with two Torah scholars who came with Abba Yossi ben Simai in a boat, and it sank, and Rabbi married off their wives based on the testimony of women.
And behold, water is like war, and 100 women are reckoned as a single witness, and it teaches "and Rabbi married off their wives." Thus it is clear that a single witness is believed in war.

ודחינן ותסברא והא מים שאין להן סוף נינהו ומים שאין להם סוף אשתו אסורה
אלא היכי דמי הכא כגון דקאמרן אסוקינהו לקמן וחזונוהו לאלתר וקאמרי סימנין דידהו דלאו עלייהו קא סמכינן אלא אסימנין הוא דקא סמכינן וליכא למגמר מינה דסמכינן אנשים והוא הדין לעד אחד ולא אפשיט בעיין

And we reject it as follows: Now reckon! If it were water that had no end, in water which had no end his wife would be forbidden! Rather, how so here? Such as where they {=the women} say that it cast them before us and we saw them immediately,
{Yevamot 115b}
and they give their identifying signs -- such that it was not upon them that we rely, but rather we rely on the signs, such that there is not to learn from this that we rely upon women. And the same is the law for a single witness.
And so we do not resolve our question.

אלא מיהו כיון דאמרינן בפרקא דלקמן ההוא גברא דטבע בדיגלת ואסקוה אגישרא דשביסתנא ואסבא רבא לדביתהו אפומא דשושבינא לבתר חמשא יומא שמעינן דעד אחד במים שאין להם סוף נאמן
ודוקא היכא דאמר אסקוה לקמאי וחזיתיה לאלתר ואישתמודענא ליה דאיהו פלוני וכד אסיקנא למעשה דשני ת"ח שהיו באין עם אבא יוסי בן סימאי וכדאמרינן בההוא גברא דטבע בדיגלת ואסקוה אגישרא והוא הדין לעד אחד במלחמה היכא דאמר מת וקברתיו ואי לא קא מסהדי

Rather, however, since we say in the coming perek {121a} that "a certain man drowned in Diglat {=the Tigris river} and they took him out on the Shebistana bridge, and Rava permitted his {=the man's} wife to marry, on the say-so of the groomsman, after five days," we deduce that a single witness is believed even by water which has no end.
Etc.

Thus, we see that we acted upon the say-so of a single witness, the שושבינא, the groomsman. The kametz aleph ending is the definite article, though in Babylonian Aramaic you can have that kametz aleph ending even for the absolute form (without "the").

However, in our girsa in our gemara, we have שושביני, which is the plural. If so, Rava is not relying on a single groomsman, but rather upon multiple groomsmen. (And indeed, if you check the Soncino translation, you will see "and, on the evidence of the shoshbinim," and in a footnote, he writes "Pl. of shoshbin, groomsman'."

If so, the Rif's proof from the single witness is no proof.

Looking at the commentary of the Ran, on the side of the Rif, you see a third option -- שושביניה, which is the same as our gemara but with a (mapik) heh at the end. This is the possessive -- his bridegroom, which is once again singular.

This is why girsology is so critical. On the basis of a single letter difference, you can derive a major halachic principle, either correctly or incorrectly.

Update: Just how does such a girsological difference arise? The most obvious way is that a scribe wrote שושבינ'גת, with an apostrophe after the nun. Another sofer then expanded it in the wrong direction.

Update: Later in Rif, when he actually reaches the gemara, he has the same girsa as the Ran - שושביניה, with a yud heh rather than with an aleph. So perhaps earlier he was paraphrasing. Regardless, the issue is still the presence or absence of heh, which will give us plural or singular.

Daf Yomi Yevamot 110a: Another Two Applications of the Kelal Horaah of "Do We Listen to Forced 'Explanations' of Braytot?"

A short while back, I saw a gemara in Yevamot -- cited lehalacha -- that caught my eye. Despite reinterpretations of several braytot to match Rav's view, in the end we reject Rav. To cite that gemara (from my post)

דאמרינן לקמן רב פפא סבר למיעבד עובדא דמאי הוה לה למיעבד אמר ליה רב הונא בריה דרב יהושע לרב פפא והא אנן תנן הני מתניתא א"ל ולא שנינהו א"ל ואנן אשינויא ניקום וניסמוך

דאלמא לית הלכתא כרב דאמר לא תצא מהיתרה של בעלה הראשון ולא כרבי שמעון דאמר נשאת שלא ברשות מותרת לחזור לו ואף על גב דאמר רב הכין הלכתא לא סמכינן עליה

For we say later on {Yevamot 91b}: Rav Pappa thought to practice in accordance with it, for "what should she have done?" Rav Huna son of Rav Yehoshua said to Rav Pappa: But we learned all those braytot {with rulings in the opposite direction}! He said to him: But they were all explained {with specific reasons for those rulings and why we do not apply "what should she have done?"}. He said to him: Should we then rely on explanations?
Thus it is evident that the halacha is not like Rav who said that she does not go out of her initial permittedness to her first husband, and not like Rabbi Shimon who said shat if she was married not with permission, she is allowed to return to him. And although Rav said that such is the halacha, we do not rely upon him.

At the time, I wondered how wide-ranging this halachic principle is, this principle of "Should we then rely on explanations?" Does it extend past this one case, where Rav Pappa brings it forth? Does this Rif elsewhere apply it, and what about other halachists?

This could form good precedent for applying a mechkar-based approach to pesak halacha. Over and over, after all, we have somewhat far-fetched reinterpretations and harmonizations of braytot and statements of Amoraim, to answer some difficulty.

I just encountered one instance where the Rif cites the principle rather explicitly, and another case where Rabbenu Tam, while not explicitly invoking this, rejects a reinterpretation of a brayta.

The first we encounter shortly in daf Yomi, in Yevamot 110a:

איתמר קטנה שלא מיאנה והגדילה ועמדה ונשאת רב אמר אינה צריכה גט משני ושמואל אמר צריכה גט משני
ואוקימנא להא דאמר רב אינה צריכה גט משני כשבעלה הראשון אחר שגדלה אצלו אבל אם לא בעלה אחר שגדלה אצלו קדושי קטנה ולא כלום הוא וצריכה גט משני It was stated {by Amoraim}: A {female} minor who did not refuse and then she grew up and married {someone else} --

Rav said: She does not require a get from the second husband.
And Shmuel said: She requires a get from the second husband.
And we establish this that Rav said that she does not require a get from the second, where the first one had intercourse with her after she grew up by him, but if he did not have intercourse with her after she grew up by him, it is betrothal of a minor and it is nothing at all, and so she requires a get from the second husband.

ושמואל סבר אף על גב דבעלה אחר שגדלה צריכה גט משני שכל הבועל על דעת קידושין הראשונים הוא בועל

And Shmuel held that even though he had intercourse with her after she grew up, she requires a get from the second husband, for whoever has intercourse does so on the basis of the initial betrothal.

ואותבינן עליה דרב מהא דתניא המקדש את הקטנה קידושיה תלויין
מאי קידושיה תלויין לאו דכי גדלה גדלו בהדה ואע"ג דלא בעל
ופריק לה מילתא דקטנה מיתלא תליא
וקיימא אי בעל אין ואי לא בעל לא

And we object to Rav from this that they learnt {in a brayta}: If one betroths a {female} minor, her betrothal is suspended.
What is meant by "her betrothal is suspended?" Does this not mean that when she matures, it {meaning the betrothal} matures with her, even though he did not have intercourse with her.
And we resolve the matter of a {female} minor is a suspended suspended, and we establish that is he had intercourse, yes, and if he did not have intercourse, no.

ולא איפסקא הכא הלכתא בהדיא
וחזינן מאן דכתב דהא מילתא ספיקא היא ועבדינן בה לחומרא דהא תניא המקדש את הקטנה קידושיה תלוין ואע"ג דשנינן לה אשינויא לא סמכינן ואי לא בעל [משגדלה] ונתקדשה לאחר צריכה גט מזה ומזה

And we do not explicitly establish the halacha here.
And we have seen one who wrote that this matter is one of doubt, and so we act stringently, for they learnt {in a brayta}: If one betroths a {female} minor, her betrothal is suspended. And even though we interpreted it {otherwise, as above}, we do not rely on interpretations, and if he did not have intercourse with her [when she matures] and she is betrothed to another {man}, she requires a get from this one and from that one.

והאי סברא סברא מעליא הוא דגרסינן בהדיא בפרק יוצא דופן ...

And this reasoning is an excellent reasoning. For we learn explicitly in perek Yotzei Dofen...

Thus, in this case, where the halacha is not ruled explicitly in the gemara, we do not say that the halacha is like Rav over Shmuel by prohibitions, but rather we pay heed to the brayta that goes against him, and rule stringently because it is a Biblical matter. And despite the fact that we reinterpreted the brayta to accord with Rav, we do not pay heed to reinterpretations -- ואע"ג דשנינן לה אשינויא לא סמכינן -- just as Rav Pappa said earlier in a different context. And Rif, in the part which continues, which I did not cite, bolsters this conclusion of what to do from a different sugya. So here it is not the fact that it is a reinterpretation, by itself, but it is indeed a factor.

The second one I encountered recently is in Chullin 67a-b, about bug-infested produce, though this differs in that the reinterpretation is not really even in the gemara. The gemara there reads:

אמר שמואל קישות שהתליעה באביה אסורה משום (ויקרא יא) השרץ השורץ על הארץ לימא מסייע ליה דתני חדא על הארץ להוציא את הזיזין שבעדשים ואת היתושים שבכליסים ותולעת שבתמרים ושבגרוגרות ותניא אידך כל השרץ השורץ על הארץ לרבות תולעת שבעיקרי זיתים ושבעיקרי גפנים מאי לאו אידי ואידי בפירא והא באביה והא שלא באביה לא אידי ואידי באביה ולא קשיא הא בפירא הא באילנא גופא

And the Rif cites that gemara and says:

אמר שמואל קישות שהתליע באיביה אסורין משום שרץ השורץ על הארץ תניא על הארץ להוציא זיזין שבעדשים ויתושין שבאכלוסין ותולעת שבתמרים וגרוגרות וה"מ דאיתליע בתלוש אבל התליע במחובר אסור
דקי"ל כשמואל

Thus, the gemara explained the brayta against Shmuel, but Rif interjects with a distinction which would work to resolve it with Shmuel -- a contrast between attached to the ground or not. This because elsewhere in the gemara there is a statement by an Amora that appears to say we rule like Shmuel.

However, others do not go for this reinterpretation of the brayta in accordance with Shmuel, going instead for the local distinction made in the braytot, which is against Shmuel. This is well summed up by Tosafot (which appears to the right).

Thus, some will discard the explanations of the brayta within our gemara as just an explanation but without force of law, and will offer their own explanation of the brayta to accord it with Shmuel. Thus, we do not go for "explanations" of braytot just because they appear in the gemara. Those who will keep with the gemaras explanation and rule against Shmuel will pay no heed to the fact that we can "explain" the braytot in keeping with Shmuel's position.

Not as neat as the first case, but I'm just citing them as I encounter them.

Daf Yomi Yevamot 104b-105b: Witnesses vs. Judges

I offer here a possible alternative interpretation of the Mishna which appears on Yevamot 104b than the one advanced in the gemara.

It is quite possible that I am wrong, but I boldly advance the following in the interests of increasing talmud torah:

Citing from my translation on my Rif blog:

{Yevamot 104b}
Mishna:

החרש שנחלץ והחרשת שחלצה והחולצת מן הקטן חליצתה פסולה
קטנה שחלצה תחלוץ משתגדיל ואם לא חלצה חליצתה פסולה
חלצה בשנים או בשלשה ונמצא אחד מהן קרוב או פסול חליצתה פסולה ורבי שמעון ור' יוחנן הסנדלר מכשירין
ומעשה שחלצה בינו לבינה בבית האסורין ובא מעשה לפני ר"ע והכשיר

The {male} deaf-mute who underwent chalitza and the {female} deaf-mute who performed chalitza, and she who received chalitza from a {male} minor, her chalitza is invalid.
A {female} minor who performed chalitza must perform chalitza when she becomes an adult, and if she does not perform chalitza then, her chalitza is invalid.
If she performed chalitza with two, or with three {people present} and it turns out that one of them is a relative or is invalid {as a judge}, her chalitza is invalid. And Rabbi Shimon and Rabbi Yochanan haSandler validate.
And there was an incident in which she performed chalitza with just he and she present, in the prison, and the incident came before Rabbi Akiva and he validated.

And then:

{Yevamot 105b}

חלצה בשנים או בשלשה ונמצא וכו':
אמר רב יוסף בר מניומי אמר רב נחמן אין הלכה כאותו הזוג דאפילו דאיעבד בתרי חליצתה פסולה וכן הלכה:

"If she performed chalitza with two or three and it turned out...":
Rav Yosef bar Minyumi cited Rav Nachman: The halacha is not like that pair, for even if after the fact, with two {judges} her chalitza is invalid.
And so is the halacha.

This is a good summary of this gemara:

IF [A SISTER-IN-LAW] PERFORMED HALIZAH IN THE PRESENCE OF TWO etc. R. Joseph b. Manyumi stated in the name of R. Nahman: The halachah is not in agreement with this pair. But, surely. R. Nahman had once stated this; for R. Joseph b. Manyumi stated in the name of R. Nahman: The halachah is that halizah [must be performed] in the presence of three [judges]! — [Both are] required: For if the first only had been stated, it might have been assumed [that three judges are required] ab initio only. but that ex post facto even two [judges are enough] hence we were taught that 'the halachah is not in agreement with this pair'. And if we had been taught that 'the halachah is not in agreement with this pair' but in accordance with the ruling of the first Tanna, it might have been assumed [that this applies only] ex post facto, but that ab initio five [judges] are required, [hence the former statement was also] required.

Soncino's take on this is that what we are referring to here are judges, and this is indeed based on the fact that the setama digemara states that

it might have been assumed [that this applies only] ex post facto, but that ab initio five [judges] are required

And we know earlier of Rabbi Yehuda's statement that five judges are required, with the disputants holding three. And indeed, we rule earlier in the gemara that only three are required, but we do five merely to publicize it.

But we already had this from another Mishna, and another gemara! I'll answer this in a bit.

Another issue is how to parse the Mishna. There are two ways to parse it:

חלצה בשנים או בשלשה ונמצא אחד מהן קרוב או פסול חליצתה פסולה ורבי שמעון ור' יוחנן הסנדלר מכשירין
ומעשה שחלצה בינו לבינה בבית האסורין ובא מעשה לפני ר"ע והכשיר

We can either say

If she performed chalitza with two, or with three {people present} and it turns out that one of them is a relative or is invalid {as a judge}, her chalitza is invalid. And Rabbi Shimon and Rabbi Yochanan haSandler validate.

In which case she either started with two judges and then nothing happened, or else she started with three and something happened, namely that one of the three judges was found to be a relative or otherwise invalid.

This is the way Rashi, and the gemara, takes the Mishna.

The alternative reading of the Mishna is as follows:

If she performed chalitza with two or three {people present} and it turns out that one of them is a relative or is invalid, her chalitza is invalid. And Rabbi Shimon and Rabbi Yochanan haSandler validate.

In this reading, she starts with either two or three, and then one of them is found to be invalid, such that she has one or two.

But since when is one judge acceptable for this? In fact, we have read earlier of a Tanna, and an Amora, who orchestrated a chalitza as lone judges. So this is certainly readable as such.

However, there is a further way to read this -- that we are dealing here not with judges but with witnesses. As the pasuk in Devarim 17:5 reads:

ו עַל-פִּי שְׁנַיִם עֵדִים, אוֹ שְׁלֹשָׁה עֵדִים--יוּמַת הַמֵּת: לֹא יוּמַת, עַל-פִּי עֵד אֶחָד.

6 At the mouth of two witnesses, or three witnesses, shall he that is to die be put to death; at the mouth of one witness he shall not be put to death.

What is the need for three once we have two? The answer is that three are also called a set, and if you invalidate one of the three witnesses, you end up invalidating all of them.

And why would you expect three judges? Well, even though five judges are best, only three of them sign on the get chalitza, the document certifying that the chalitza happened.

I believe it quite possible that this is why the case in our Mishna was חלצה בשנים או בשלשה ונמצא אחד מהן קרוב או פסול חליצתה פסולה. That is, if there was a set of two and one was invalidated, such that you do not have a valid set of witnesses, or even if there was a set of three and one was invalidated, such that you also don't have a valid set of witnesses, since the set is broken -- if so, the chalitza is invalid.

And this is Rabbi Akiva coming afterwards to back them up that bedieved, witnesses are not required. And this is why it is not in the same location as the other dispute about whether three or five, or one judge is required.

This reading has so much to recommend itself to me that I prefer it to the assumption that it is talking about judges. But I could be wrong.

We might (or might not) have to develop a reason for Rav Yosef bar Minyumi's two statements, but that seems eminently possible. For example, one statement is that if a witness set breaks up, it is invalid, and the second is that you need three rather than two witnesses.

What pushes it towards judges rather than witnesses? Well, Rabbi Akiva's case, according to a named Amora, happened with witnesses. To cite the gemara:

T ONCE HAPPENED THAT A MAN SUBMITTED TO HALIZAH etc. PRIVATELY BETWEEN HIMSELF AND HERSELF! How, then, can we know it? — Rab Judah replied in the name of Samuel: When witnesses observed it from without.

But firstly, this might be Rabbi Akiva's opinion and not that of Rabbi Shimon and Rabbi Yochanan haSandler. And furthermore, if not present actually there, perhaps they are not valid witnesses to validate the chalitza if such is required, even if they can function as witnesses that such an event occurred.

A problem with this comes from various parallel statements in regard to the number required for refusal, with a parallel zug, and from Rabbi Yosef bar Minyumi, on Yevamot 107b. Those would need to be similarly reinterpreted.

Daf Yomi Yevamot 102a: If Eliyahu Should Come -- A Case of Absence of Evidence vs. Evidence of Absence

Is absence of evidence equal to evidence of absence? There is a statement trotted out on occasion that lo` ra`inu `aino ra`aya - "'We have not seen' is not a proof." (But it resonates better in Hebrew.) An example to consider is found in the beginning of Chullin, which lists who may and who may not slaughter lechatchila and bedieved. Women are not on the list, and presumably can shecht even lechatchila. And indeed Tosafot in discussing it brings proofs that this is the case from other gemaras. Meanwhile, Tosafot quotes Hilchot Eretz Yisrael that women should not shecht because "da'atan kalot" -- however you want to interpret it. (E.g. they are delicate such that they will faint a moment at the sight of blood and thus will invalidate the shechita, or else that they will treat the mitzvah lightly.) (It is actually Hilchot Amar Yehoshua, from Eldad haDani.)

In Shulchan Aruch, well:

The Shulchan Aruch in Yoreh Dayah says that everyone is able to shecht lichatchila, even a woman. The Rama states that it is permitted for women to shecht but it is not our minhag, and therefore it should not be done. The Shach comments on the Rama, and says the reason why it is not the minhag is because it is never seen, but that is not a reason for women not to shecht. Therefore the Shach holds that it is totally mutar for a woman to be a shochet.

This is thus an example of lo ra`inu aino ra`aya -- how can you establish a minhag that something is not done. It might just not have been common and thus not seen. Though some interpret this Rema as saying that since it is not our custom, women never had a chance to be mumchin, experts, and thus it is a problem.

Regardless, I believe the same idea can be brought to bear on our gemara in Yevamot 102a:

אמר רבה אמר רב כהנא אמר רב אם יבא אליהו ויאמר חולצין במנעל שומעין לו אין חולצין בסנדל אין שומעין לו שכבר נהגו העם בסנדל ורב יוסף אמר רב כהנא אמר רב אם יבא אליהו ויאמר אין חולצין במנעל שומעין לו אין חולצין בסנדל אין שומעין לו שכבר נהגו העם בסנדל מאי בינייהו איכא בינייהו מנעל לכתחלה

Rabbah stated in the name of R. Kahana in the name of Rab: If Elijah should come and declare that halizah may be performed with a foot-covering shoe, he would be obeyed; [were he, however, to declare that] halizah may not be performed with a sandal, he would not be obeyed, for the people have long ago adopted the practice [of performing it] with a sandal.

R. Joseph, however, reported in the name of R. Kahana in the name of Rab: If Elijah should come and declare that halizah may not be performed with a foot-covering shoe, he would be obeyed; [were he, however, to declare that] halizah may not be performed with a sandal, he would not be obeyed, for the people have long ago adopted the practice [of performing it] with a sandal.

What is the practical difference between them? — The practical difference between them is [the propriety of using] a foot-covering shoe ab initio.

Thus, these two statements from Rav are viewed by the setama digemara as contradictory, with contrasting practical differences.

And this is seen in the Rif's summary as well, in which he adopts Rabba's version:

Rif:

חלצה במנעל חליצתה כשרה
אמר רבא אמר רב כהנא אמר רב [אסי] אם יבא אליהו ויאמר חולצין במנעל לכתחילה שומעין לו אין חולצין בסנדל אין שומעין לו שכבר נהגו העם בסנדל
ומנעל לכתחילה מ"ט לא
גזירה משום מנעל המרופט אי נמי משום חצי מנעל

"If he performed chalitza on her with a {foot-covering} shoe, it is valid":
Rava {our gemara: Rabba} cited Rav Kahana who cited Rav [Assi]: If {the prophet} Eliyahu would come and tell us that we may perform chalitza with a {foot-covering} shoe -- ab initio {lechatchila} -- we listen to him. That we do not perform chalitza with a sandal, we do not listen to him, for the nation is already accustomed to use the sandal.

And the shoe, ab initio, why not? As a decree because of a flabby {or burst} shoe; alternatively because of half a shoe.

Thus, Eliyahu is coming to tell us that we may use a shoe even lechatchila. Thus, it appears that a shoe, bedieved, is allowed, but lechatchila is not allowed.

However, we can cast it in another light, where both statements attributed to Rav are correct. At issue is not lechatchila or bedieved, but rather whether, in the absence of existing practice, we can use a determination -- such as Eliyahu's coming and telling us -- to overturn precedent, or rather, lack of precedent. And further, compare that to where we actually have positive precedent.

We read a bit later in the gemara (same daf):

For it was taught: R. Jose related, 'I once went to Nesibis where I met an old man whom I asked, "Are you perchance acquainted with R. Judah b. Bathyra?" and he replied, "Yes; and he in fact always sits at my table". "Have you ever seen him arranging a halizah ceremony for a sister-in-law?" [I asked]. "I saw him arranging halizah ceremonies many a time", he replied. "With a foot-covering shoe [I asked] or with a sandal?" — "May halizah be performed", he asked me' "with a foot-covering shoe?" I replied: Were that [not] so, what could have caused R. Meir to state that halizah if performed with a foot-covering shoe is valid, while R. Jacob reported in his name that it was quite proper to perform [even] halizah ab initio with a foot-covering shoe!'

Thus, practically, we never see anyone perform chalitza with a foot-covering shoe, but only with a sandal. Thus,

Rabbah stated in the name of R. Kahana in the name of Rab: If Elijah should come and declare that halizah may be performed with a foot-covering shoe, he would be obeyed; [were he, however, to declare that] halizah may not be performed with a sandal, he would not be obeyed, for the people have long ago adopted the practice [of performing it] with a sandal.

That is, the negative precedent of not using a foot-covering shoe is not a proof nor a practice that one should not do it (either lechatchila or perhaps even bedieved), so Eliyahu can overturn it. However, using a sandal for chalitza is a positive precedent, such that Eliyahu cannot overturn that long-standing precedent.

Meanwhile, Rav Yosef reported to complementary case.

R. Joseph, however, reported in the name of R. Kahana in the name of Rab: If Elijah should come and declare that halizah may not be performed with a foot-covering shoe, he would be obeyed; [were he, however, to declare that] halizah may not be performed with a sandal, he would not be obeyed, for the people have long ago adopted the practice [of performing it] with a sandal.

Given that there is no precedent in actual practice, can Eliyahu come and declare that one should not use a foot-covering shoe (whether lechatchila or perhaps even bedieved)? Recall that there is a Mishna that says it is valid, though it unclear whether that means lechatchila or bedieved. Can he overturn that and say that in fact you cannot do it and that, say, even bedieved it does not work? (Or if the Mishna intended lechatchila, can he say that one should not do it lechatchila, though bedieved it would work?) Since there is no contradictory practice of using a foot-covering shoe, Eliyahu has the ability to make such a statement and be hearkened to. But for a sandal, since there is precedent in existing practice, he would not be listened to.

Thus, in sum, given a situation in which something is not done, we do not take that as proof, and Eliyahu can come and overturn the halacha either way. However, where we have positive precedent, he cannot come and overturn it.

Daf Yomi Yevamot 87b; 91b; Do We Abide By Forced "Explanations" of Braytot?

A fascinating, and quite possibly important precedent, set by Rav Pappa on Yevamot daf 91b, as cited by Rif:

{Yevamot 87b}

אוקימנא לרישא דמתניתין דקתני תצא מזה ומזה שנשאת ברשות בית דין ובעד אחד דאי אית לה שני עדים לא צריכה לב"ד ומשום הכי תצא מזה ומזה
וסיפא דקתני נשאת שלא ברשות מותרת לחזור לו שלא ברשות בית דין אלא בשני עדים ולפיכך מותרת לחזור לו

We establish the reisha {first part} of our Mishna which states that "she leaves from this one and from that one" as the case in which she was married with the permission of Bet Din, and with a single witness, for if she had two witnesses, she would not require Bet Din -- and because of this, she must leave from this one and from that one.
And the last part, which states that if "she married not with permission, she is permitted to return to him {the first husband}, this is not with permission of Bet Din but rather with two witnesses, and therefore she is permitted to return to him.

דהויא לה אנוסה דאמרי' מאי הוה לה למעבד
וכן אמר רב לא שנו אלא שנשאת בעד אחד אבל נשאת בשני עדים לא תצא מהיתרה של בעל הראשון
ולית הלכתא הכין אלא לא שנא נשאת על פי בית דין ובעד אחד ולא שנא נשאת על פי שני עדים אם בא בעלה הראשון תצא מזה ומזה וכל הדרכים האלו בה

for she is like a raped woman, for we say "what should she have done?"
And so too Rav said: They only learnt this where she married on the word of a single witness, but if she was married on the word of two witnesses, she does not go out from her initial permittedness to the first husband.

And the halacha is not like this, but rather, it does not matter whether she married based on the say-so of Bet Din and with one witness, or whether she was married on the say-so of two witnesses -- if her first husband comes, she goes out from this one and that one, and all of these matters, in her.

דאמרינן לקמן רב פפא סבר למיעבד עובדא דמאי הוה לה למיעבד אמר ליה רב הונא בריה דרב יהושע לרב פפא והא אנן תנן הני מתניתא א"ל ולא שנינהו א"ל ואנן אשינויא ניקום וניסמוך
דאלמא לית הלכתא כרב דאמר לא תצא מהיתרה של בעלה הראשון ולא כרבי שמעון דאמר נשאת שלא ברשות מותרת לחזור לו ואף על גב דאמר רב הכין הלכתא לא סמכינן עליה

For we say later on {Yevamot 91b}: Rav Pappa thought to practice in accordance with it, for "what should she have done?" Rav Huna son of Rav Yehoshua said to Rav Pappa: But we learned all those braytot {with rulings in the opposite direction}! He said to him: But they were all explained {with specific reasons for those rulings and why we do not apply "what should she have done?"}. He said to him: Should we then rely on explanations?
Thus it is evident that the halacha is not like Rav who said that she does not go out of her initial permittedness to her first husband, and not like Rabbi Shimon who said shat if she was married not with permission, she is allowed to return to him. And although Rav said that such is the halacha, we do not rely upon him.

The Rif cites this statement in its narrow, local focus, such that in this particular case we see that we do not hold like Rav in the face of a bunch of contradictory braytot, and rather we rule that there is no distinction between being permitted by Bet Din or by the testimony of two witnesses.

However, there is a general rule here that is potentially applicable to many other cases. After all, there are many times where Amoraim, or else the setama, raises objections from countless braytot (think the classic example of Abaye and Rava about yiush shelo midaat) and the "explanations" seem fairly forced. Sure, it works, but pashut peshat in the brayta is otherwise, like the opponent who brings it up. Of course, who are we to determine that an explanation is forced? But assuming someone is on the level to assess this, perhaps there is a kelal horaah here to be put into play.

I haven't looked into how other halachists than the Rif deal with this. Perhaps when I get the chance...

a

Daf Yomi Yevamot 84a: Slight Correction to Soncino Yevamot 84a

A slight correction to Soncino Yevamot 84a, at least based on the version available online. Perhaps it has already been corrected.

The following is my translation of the Mishna, from my Rif blog. Note how I translate the sentence marked in red:

{Yevamot 84a}
Mishna:

יש מותרות לבעליהן ואסורות ליבמיהן
מותרות ליבמיהן ואסורות לבעליהן
מותרות לאלו ולאלו
ואסורות לאלו ולאלו

There are some women who are permitted to their husbands but forbidden to their levirs {=brother-in-law}; who are permitted to their levirs but forbidden to their husbands; who are permitted to these and to these; and who are forbidden to these and to these.

מותרות לבעליהן ואסורות ליבמיהן
כהן הדיוט שנשא את האלמנה ויש לו אח כהן גדול
חלל שנשא כשרה ויש לו אח כשר
ישראל שנשא בת ישראל ויש לו אח ממזר
ממזר שנשא ממזרת ויש לו אח כשר
מותרות לבעליהן ואסורות ליבמיהן:

Who are permitted to their husbands and forbidden to their levirs:
A normal kohen who married a widow, and he has a brother who is a kohen gadol;
A chalal {offspring of forbidden relations for a kohen} who married a valid woman, and he has a valid brother;

ואלו מותרות ליבמיהן ואסורות לבעליהן כהן גדול שקידש את האלמנה ויש לו אח כהן הדיוט
כשר שנשא חללה ויש לו אח חלל
ישראל שנשא ממזרת ויש לו אח ממזר
ממזר שנשא ישראלית ויש לו אח ישראל
מותרות ליבמיהן ואסורות לבעליהן

And these are permitted to their levir and are forbidden to their husbands:
A kohen gadol who betrothed a widow and he has a brother who is a normal kohen;
a valid kohen who married a chalala, and he has a brother who is a chalal;
an Israelite who married a bastardess and he has a brother who is a bastard;
A bastard who married an Israelite woman and he has an Israelite brother;
they are permitted to their levirs but are forbidden to their husbands.

ואלו אסורות לאלו ולאלו
כהן גדול שנשא אלמנה ויש לו אח כהן גדול או כהן הדיוט כשר שנשא חללה ויש לו אח כשר
ישראל שנשא ממזרת ויש לו אח ישראל
ממזר שנשא בת ישראל ויש לו אח ממזר
אסורות לאלו ולאלו
ושאר כל הנשים מותרות לאלו ולאלו

And these women are forbidden to these and to these:
a kohen gadol who married a widow and he has a brother who is a kohen gadol or even a regular kohen;
a valid {kohen} who married a chalala and he has a valid brother;
an Israelite who married a bastardess and he has an Israelite brother;
a bastard who married the daughter of an Israelite and he has a bastard brother,
they {the women} are forbidden to these and to these.

And the remainder of women are permitted to these and to these.

From the Soncino translation:

THE FOLLOWING ARE FORBIDDEN TO BOTH THE FORMER AND THE LATTER; IF A HIGH PRIEST WHO MARRIED A WIDOW HAD A BROTHER A HIGH PRIEST, OR IF A COMMON PRIEST OF LEGITIMATE STATUS WHO MARRIED A HALALAH HAD A BROTHER OF LEGITIMATE STATUS...

The point of distinction is where או כהן הדיוט attaches. Is it that the brother is either a kohen gadol or a normal kohen, or is it that the normal kohen who is valid marries? The correct attachment is the former. It is meant to contrast with an earlier case in the Mishna, where the kohen gadol merely betroths but does not marry the widow, where a normal kohen would be permitted:
כהן גדול שקידש את האלמנה ויש לו אח כהן הדיוט
Here, since it is full marriage rather than just betrothal, she is forbidden to a levir even if he is a regular kohen. And this is indeed what Rashi says, and what Soncino says, citing Rashi, in a footnote on this former case of betrothal in the Mishna.

Daf Yomi Yevamot 79-80: Is The Stam Mishna Really In Accordance With Rabbi Akiva?

We are soon to encounter the following Mishna and gemara in Daf Yomi. Borrowing from my translation at my Rif blog:

{Yevamot 79b}
Mishna:

אמר רבי יהושע שמעתי שהסריס חולץ וחולצין לאשתו והסריס לא חולץ ולא חולצין לאשתו ואין לי לפרש
אמר רבי עקיבא אני אפרש סריס אדם חולץ וחולצין לאשתו שהיתה לו שעת הכושר סריס חמה לא חולץ ולא חולצין לאשתו שלא היתה לו שעת הכושר
ר' אליעזר אומר לא כי אלא סריס חמה חולץ וחולצין לאשתו שיש לו רפואה סריס אדם לא חולץ ולא חולצין לאשתו מפני שאין לו רפואה
העיד ר' יהושע בן בתירא על בן מגוסת שהיה בירושלים סריס אדם ויבמו את אשתו לקיים דברי ר' עקיבא:

Rabbi Yehoshua said: I have heard that a saris {eunuch} performs chalitza, and they perform chalitza for his wife, and also that a saris does not perform chalitza and they do not perform chalitza for his wife, and I do not have an explanation.
Rabbi Akiva said: I will explain it. A eunuch at the hands of man performs chalitza and they perform chalitza for his wife, because he had a time of validity. A eunuch of the sun {that it, a natural eunuch} does not perform chalitza and they do not perform chalitza for his wife, for he did not have a time of validity.
Rabbi Eliezer says: Not so, but rather a eunuch of the sun performs chalitza and they perform chalitza for his wife, for he has a possible cure. A eunuch at the hands of man does not perform chalitza and they do not perform chalitza for his wife, for he has no cure.
Rabbi Yehoshua ben Beteira testified regarding Ben Megosat, who was a man-made eunuch living in Yerushalayim, that they performed yibbum on his wife, thus fulfilling {/confirming} the words of Rabbi Akiva.

So we have this dispute, but who do we rule like? Well, we then encounter:

{Yevamot 79b}
Mishna:

הסריס לא חולץ ולא מייבם וכן אילונית לא חולצת ולא מתיבמת
הסריס שחלץ ליבמתו לא פסלה
בעלה פסלה מפני שבעילתו בעילת זנות וכן אילונית שחלצו לה אחין לא פסלוה בעלוה פסלוה מפני שבעילתן בעילת זנות:

A eunuch does not perform chalitza nor yibbum, and so too an aylonit does not undergo chalitza nor yibbum.
A eunuch who performed chalitza on his yevama {sister-in-law} does not invalidate her. If he had intercourse with her, he invalidated her, for his intercourse was an intercourse of harlotry.
And so too an aylonit upon whom the brothers performed chalitza, they do not invalidate her, but if they {one of them} had intercourse with her, they invalidate her, because their intercourse is an intercourse of harlotry.

{Yevamot 80b}
Gemara:

קתני סריס דומיא דאילונית מה אילונית בידי שמים אף סריס בידי שמים אבל בידי אדם חולץ
וסתמא כר' עקיבא דאמר בידי אדם אין בידי שמים לא
שמעינן מינה דהלכתא כר"ע דהוה ליה מחלוקת ואח"כ סתם וקי"ל מחלוקת ואח"כ סתם הלכה כסתם:

The Mishna taught a eunuch similar to an aylonit -- just as an aylonit is {so} at the hands of Heaven, so too the eunuch from the hands of Heaven. However, if at the hands of man, he does perform chalitza.
And the plain Mishna is thus in accordance with Rabbi Akiva who said that {a eunuch} in the hands of man, yes, but in the hands of Heaven, no.
We deduce from this that the halacha is like Rabbi Akiva, for this is a dispute {in the Mishna} followed by a plain statement {without dispute}, and we have established that a dispute followed by a plain statement, the halacha is like the plain statement.

Thus, for the aforementioned reason given by the setama digmara, we rule in accordance with Rabbi Akiva.

I find that gemara a tad difficult. After all, the very next Mishna has no compunction about specifying exactly which type of eunuch is under discussion:

{Yevamot 81a}
Mishna:

סריס חמה כהן שנשא בת ישראל מאכילה בתרומה

A kohen who is a eunuch of the sun who married the daughter of an Israelite, he may feed her teruma.

and had Rabbi wished, he could have specified in the previous Mishna as well. Instead, the setama is forced to resort to the fact that it lists saris and aylonit, and thus deduce that they must be of the same type -- natural -- and then continue deducing from there that it is a stam Mishna like Rabbi Akiva, so we rule like him.

But the role of this Mishna seems different to me. I would have said that the Mishna is deliberately not specifying the type of saris, so as to work within the framework of the preceding Mishna. Thus, it does not specify e.g. seris chama so as not to take sides, but rather whichever of the aforementioned we paskin like, that is the saris under discussion. Thus, the stam Mishna is not in accordance with anyone.

On the other hand, there is another reason to rule in accordance with Rabbi Akiva. All else being equal, we have the testimony of Rabbi Yehoshua ben Beteira that actual practiced halacha was practiced and ruled in accordance with the understanding of Rabbi Akiva.

Rif: The Din In The Gemara is One Way, But We Rule In Another Way

We are soon to encounter a noteworthy Rif. He argues with other post-Talmudic Rabbis about the meaning of a gemara, such that the din in the gemara would be other than what they say. They say that decreases in value of nichsei tzon barzel, iron sheep brought into marriage, are not the loss of the husband. Rif argues that according to the correct interpretation of the gemara, such losses are borne by the husband. Yet, because the halacha has been misunderstood otherwise until this point, this misunderstanding forms the basis of the husband's understanding when entering into marriage and establishing the ketuba. If so, the assumptions of the husband are the basis for how we rule in this monetary matter.

This approach can have wide ranging impact on dinei mamonot, monetary matters. Indeed, while I have not learned them in depth, this may well contribute to a general import laid on precedent in דיני ממונות.

At any rate, this Rif is here. It will show up in a few days on my Alfasi blog, on 21b-22a in the pages of Rif, about approximately Yevamot 66b:

ודייקי רבוואתא מדקתני במתניתין בעבדי צאן ברזל אם מתו מתו לו ולא קתני אם פחתו פחתו לו דוקא כעין מתו ממש דלא
משמשי מעין מלאכתן כלל דכמאן דליתנהו דאמי הוא דחייב באחריותן ומשלם דמים אבל אי איתנהו אף על גב דבלו טובא ופחתו אי משמשי מעין מלאכתן נוטלתן האשה ואינו משלם דמים שדין עבדי צאן ברזל ודין נכסי צאן ברזל אחד הוא כדין אלו כך דין אלו

And the {post-Talmudic} Rabbis deduced from the fact that it said in our Mishna regarding servants who are iron sheep, "if they died, they died to him," and it does not teach "if they reduced in value, they reduced in value to him," that specifically cases similar to their actual death, such that they cannot do anything like their work at all, and so they are like they are not there at all -- in such a case he is liable in their responsibility and pays money, but if they are there, even though they greatly degraded and reduced in value, if they can serve in a way similar to their work, the woman takes them and he {the husband} does not pay money. For the law of servants who are iron sheep, and the law of assets which are iron sheep is one and the same. As the law of these, so is the law of these.

ואנן לא חזינן להאי דיוקא

דהא מקשינן בגמרא למאן דאמר כל היכא דמיחייב באחריותן אכלי בתרומה מהא דתנן

כהן ששכר פרה מישראל אע"פ שמזונותיה עליו לא יאכילנה בכרשיני תרומה
וקא מפרקינן ותיסברא נהי דמחייב באונסיה בכחישה וביתרות דמיה מי מחייב
מדקא מפרקי' הכי גבי שכירות פרה מכלל דלגבי צאן ברזל מיחייב אפילו בכחישה וביתרות דמים ולהכי אכלי בתרומה
ושמעת מינה דליתא להאי דיוקא דדקו קמאי ז"ל
אלא מיהו אע"ג דדינא דגמרא הכי לא מחייבינן ליה לבעל השתא בכחישה וביתרות דמים דכיון דלא נהגי עלמא הכי כל צאן דמקבל לנכסי צאן ברזל וכתב להו עליה אדעתא דמנהגא הוא דמקבל להו עליה הילכך לא מיחייב אלא לפום מנהגא

And we do not see {agree with} this deduction. For we ask in the gemara on the one who said that where he is obligated in their responsibility, they may eat of teruma, from this that they learn {in a Mishna}: A kohen who rented a cow from an Israelite, even though he is obligated in feeding it, he may not feed it vetches of teruma. And we resolve it as follows: Think now! Although he is liable {our gemara: for its theft or loss; I would suggest: for its feed}, but for its accident, emaciation or its reduction in value do we obligate? {No!}
From the fact that we resolve it like that by renting a cow, we may deduce that by iron sheep, he is obligated even for emaciation and reduction in value, and that is why they eat teruma.
And we deduce from this that there is nothing to this inference that they, of blessed memory, deduced before us.
However, even though the law in the gemara is such, we do not require the husband nowadays in emaciation and reduction of value, for since the world does not practice in accordance to this, all sheep that he accepts as iron sheep and writes them down for her, it is in mind of this custom {/practice} that he accepts he accepts upon himself to her. Therefore, he is only obligated in accordance with the custom.

Daf Yomi Yevamot 64b: Chazaka, Epilepsy, and Leprosy

In about a week, we will encounter the following gemara in Daf Yomi (translation from a Rif Yomi post in preparation):

{Yevamot 64b}

אמר רבא לא ישא אדם אשה לא ממשפחת נכפין ולא ממשפחת מצורעים והוא דאיתחזק בתלתא זימני אבל בתרי זימני אקראי בעלמא הוא:

Rava said: A man should not marry a woman from a family of epileptics or from a family of lepers. And this is where it has been established from three times. But from two times, it is mere happenstance.

The idea is perhaps that we establish all things, including likelihood of physical malady, with chazaka, and this is no exception. Of course, if so, why give this justification that "it is mere happenstance." Of course! Why give this justification.

I would also point out that there is a possible distinction between the first and second half of Rava's statement. The first part is ambiguously Hebrew. It might pass for Aramaic, though we might anticipate inish and iteta rather than adam and isha. But, the second half of the statement, which clarifies with the word והוא, is unambiguously Aramaic. Thus the de prefix and the Aramaic vocabulary. So Rava might not have explicitly stated this, and this is the clarification of the setama digmara.

Is there reason to worry about a woman being from a family of epileptics or of lepers? That is, it is genetic? And if it is genetic, then shouldn't one instance be sufficient. (Absent genetic testing. And we assume here that these translations are accurate, which admittedly may not be so.)

It turns out that both epilepsy and leprosy are both genetic and developmental. For epilepsy (Wikipedia source):

Epidemiology

Epilepsy is one of the most common serious neurological disorders.^[9] Genetic, congenital, and developmental conditions are mostly associated with it among younger patients; tumors are more likely over age 40; head trauma and central nervous system infections may occur at any age.

and for leprosy:

Leprosy or Hansen's disease is a chronic infectious disease caused by the bacterium Mycobacterium leprae.^[1] Leprosy is primarily a granulomatous disease of the peripheral nerves, mucosa of the upper respiratory tract, and skin lesions.^[2]

...

Pathophysiology

The exact mechanism of transmission of leprosy is not known. The only other animals besides humans to contract leprosy are the armadillo, chimpanzees, sooty mangabeys, and cynomolgous macaques.^{[citation needed]} The bacterium can also be grown in the laboratory by injection into the footpads of mice.^{[citation needed]} There is evidence that not all people who are infected with M. leprae develop leprosy, and genetic factors have long been thought to play a role, due to the observation of clustering of leprosy around certain families, and the failure to understand why certain individuals develop lepromatous leprosy while others develop other types of leprosy.^{[citation needed]} However, the role of genetic factors is not clear in determining this clinical expression. In addition, malnutrition and possible prior exposure to other environmental mycobacteria may play a role in development of the overt disease.

Thus, epilepsy may be genetic, but they may also be the result of other factors. And leprosy might be the result of a certain bacterium, but genetic factors might make one more susceptible.
Thus, one occurrence is not really enough to establish a genetic trait in the family. Perhaps it was from some other cause. Two as well, especially if we are considering a somewhat extended family. With three in the same family, it stands to reason that there is some genetic trait being manifest, and there is what to worry about.

Daf Yomi Yevamot 65b, parshat Vayechi: An Open Canon Approach vs. Changing the Truth

Citing from a translation not yet posted on my Rif blog:

{Yevamot 65b}
אמר רבי אלעא משום רבי יהודה בר' שמעון מותר לשנות בדברי שלום שנאמר כה תאמרו ליוסף וגו
Rabbi Illa'a cited Rabbi Yehuda son of Rabbi Shimon: It is permissible to change {a statement} for the purposes of peace, for it is stated {Bereishit 50:17}:

טז וַיְצַוּוּ, אֶל-יוֹסֵף לֵאמֹר: אָבִיךָ צִוָּה, לִפְנֵי מוֹתוֹ לֵאמֹר.	16 And they sent a message unto Joseph, saying: 'Thy father did command before he died, saying:
יז כֹּה-תֹאמְרוּ לְיוֹסֵף, אָנָּא שָׂא נָא פֶּשַׁע אַחֶיךָ וְחַטָּאתָם כִּי-רָעָה גְמָלוּךָ, וְעַתָּה שָׂא נָא, לְפֶשַׁע עַבְדֵי אֱלֹהֵי אָבִיךָ; וַיֵּבְךְּ יוֹסֵף, בְּדַבְּרָם אֵלָיו.	17 So shall ye say unto Joseph: Forgive, I pray thee now, the transgression of thy brethren, and their sin, for that they did unto thee evil. And now, we pray thee, forgive the transgression of the servants of the God of thy father.' And Joseph wept when they spoke unto him.

Did Yaakov really not command them to tell this to Yosef. In large part, the answer to this question feeds into the question of whether Yaakov ever knew of the brothers' sale of Yosef, and at what point he knew. Clearly, someone who is of the opinion that Yosef never told his father, and Yitzchak never told, and the brothers never told, is more likely to assume that Yaakov never found out. If so, this command would need to be fictional.

However, a closed-canon approach to the text (that everything pertaining to the text is in the text) also feeds into this stance that Yaakov never commanded this. For we saw, in the immediately preceding perek, exactly what Yaakov blessed and then commanded, and this command to say this Yosef in not present there. Looking there, we see {Bereishit 49:29}:

כט וַיְצַו אוֹתָם, וַיֹּאמֶר אֲלֵהֶם אֲנִי נֶאֱסָף אֶל-עַמִּי--קִבְרוּ אֹתִי, אֶל-אֲבֹתָי: אֶל-הַמְּעָרָה--אֲשֶׁר בִּשְׂדֵה, עֶפְרוֹן הַחִתִּי.	29 And he charged them, and said unto them: 'I am to be gathered unto my people; bury me with my fathers in the cave that is in the field of Ephron the Hittite,
ל בַּמְּעָרָה אֲשֶׁר בִּשְׂדֵה הַמַּכְפֵּלָה, אֲשֶׁר עַל-פְּנֵי-מַמְרֵא--בְּאֶרֶץ כְּנָעַן: אֲשֶׁר קָנָה אַבְרָהָם אֶת-הַשָּׂדֶה, מֵאֵת עֶפְרֹן הַחִתִּי--לַאֲחֻזַּת-קָבֶר.	30 in the cave that is in the field of Machpelah, which is before Mamre, in the land of Canaan, which Abraham bought with the field from Ephron the Hittite for a possession of a burying-place.
לא שָׁמָּה קָבְרוּ אֶת-אַבְרָהָם, וְאֵת שָׂרָה אִשְׁתּוֹ, שָׁמָּה קָבְרוּ אֶת-יִצְחָק, וְאֵת רִבְקָה אִשְׁתּוֹ; וְשָׁמָּה קָבַרְתִּי, אֶת-לֵאָה.	31 There they buried Abraham and Sarah his wife; there they buried Isaac and Rebekah his wife; and there I buried Leah.
לב מִקְנֵה הַשָּׂדֶה וְהַמְּעָרָה אֲשֶׁר-בּוֹ, מֵאֵת בְּנֵי-חֵת.	32 The field and the cave that is therein, which was purchased from the children of Heth.'
לג וַיְכַל יַעֲקֹב לְצַוֹּת אֶת-בָּנָיו, וַיֶּאֱסֹף רַגְלָיו אֶל-הַמִּטָּה; וַיִּגְוַע, וַיֵּאָסֶף אֶל-עַמָּיו.	33 And when Jacob made an end of charging his sons, he gathered up his feet into the bed, and expired, and was gathered unto his people.

Thus, this is what he charged them with. If they speak now of a different charge, how come this was not mentioned previously? Thus, a strict closed-canon approach will gravitate towards the position that Yaakov did not command this.

On the other hand (adopting a slightly looser, open-canon approach), who is to say that Yaakov did not also charge his sons with other commands. For example, did he only specify his burial? Might he also not have specified other instructions, such as how to conduct themselves, how to deal with various business interests if any, how to disperse his property? It states וַיְכַל יַעֲקֹב לְצַוֹּת אֶת-בָּנָיו, "and when Jacob made an end of charging his sons," which we might take to refer to other commands, of which the preceding was merely an excerpt worthy of note. And even without this diyuk, we could state the same thing.

Indeed, other times in Tanach things happen without note, though sometimes care is taken to refer to the fact that it had happened. Thus, in Yonah 1:10:

י וַיִּירְאוּ הָאֲנָשִׁים יִרְאָה גְדוֹלָה, וַיֹּאמְרוּ אֵלָיו מַה-זֹּאת עָשִׂיתָ: כִּי-יָדְעוּ הָאֲנָשִׁים, כִּי-מִלִּפְנֵי יְהוָה הוּא בֹרֵחַ--כִּי הִגִּיד, לָהֶם.

10 Then were the men exceedingly afraid, and said unto him: 'What is this that thou hast done?' For the men knew that he fled from the presence of the LORD, because he had told them.

the pasuk informs us that Yonah had told them he had fled from Hashem, because it is so jarring to see them refer to it when it appeared nowhere before. But it may be in general that facts may be presented when relevant and nowhere before. This might be a more peshat-oriented approach.