Wednesday, June 18, 2008

Bari V'shema

The Mishna had stated: If their husbands died before they had a chance to drink, Beis Shamai says that they collect their kesuvah and do not drink. Beis Hillel says: Either they drink, or do not take a kesuvah.

The Gemora (Daf Yomi: Sotah 25a - b)explains the argument: Beis Shamai maintains that a debt from a document which awaits collection is considered as if it has already been collected. [The widow wishes to collect from her husband’s property for her kesuvah. Her claim to these properties is questionable, for perhaps she committed adultery and forfeits her kesuvah. Since it is regarded as if she is already in possession of the properties, the husband’s heirs are trying to take the property away from her. The burden of proof rests on them. If they cannot provide proof, she collects her kesuvah.] Beis Hillel, however, holds that we do not regard the document as if it already collected (and therefore she is trying to take the properties from the husband’s heirs; the burden of proof is on her).

Tosfos HaRosh in Kesuvos (81a) asks: Why doesn’t the Gemora explain Beis Shamai’s reasoning based upon the principle of “bari v’shema bari adif”? Since the woman’s claim is a definite one, because she asserts that she did not defile herself, and the heirs’ claims are only an uncertain one, for they do not know if she defiled herself or not, her claim should be the stronger one, and therefore – win out!

They answer that the principle would not apply in this case for the following reason: Her definite claim is a weak one, for she knows that the husband’s heirs cannot counter her claim, for they have no way of knowing. Their claim, although it is an uncertain one, is a sound one, for there is a strong presumption of guilt based upon the fact that the husband warned her and she went against his warning by secluding herself with that man (raglayim l’davar). When the definite claim is a weak one, it cannot be superior than an uncertain strong claim.

Reb Dovid Parvarsky inquires as to the reason to the above qualification. Is it because the definite claim is a weak one, and that is why it cannot win over the uncertain claim? Accordingly, even if the doubtful claim is a weak one, the definite claim would still not be victorious! Or perhaps, it is because the uncertain claim is a powerful one? Accordingly, even if the definite claim would also be strong, it would not be able to overpower the uncertain claim!