Monday, September 10, 2007

Counterclaim - Kesuvos 9 - Daf Yomi

Rabbi Elozar said: If the husband (after his first act of cohabitation with his virgin bride) claims, “I found an open entrance (her hymen has been torn by someone else),” he is believed to render her forbidden to him.

It is not clear from the Gemora regarding the counterclaim of the woman. Most Rishonim maintain that she is forbidden to him only if she contradicts him and states that her entrance was not opened, or if she remained quiet. However, if she concedes that her entrance was opened, but she claims that she was violated or she was wounded by wood, she is believed, and she will not be forbidden to him. This is because the husband’s claim is an uncertain one, but she knows what happened, and a certain claim has more validity than that of an uncertain one, especially when we can combine her certain claim with her presumption of innocence.

The Rosh disagrees with this. He states: Since there is only one doubt, we must rule stringently, and she is not believed. It is also established that we do not give more credence to a certain claim over an uncertain one, especially when there is a majority contradicting her claim. Most women cohabit willingly, and when they are violated, there is usually a rumor to that effect. A majority is superior to a presumption of innocence. We can therefore, not rely on her claim, and she is forbidden to her husband. The Rashba, while agreeing with the Rosh, states that she is believed regarding her kesuvah.