Daf Yomi - Kesuvos 41 - Highlights

Mishna

The Mishna states: If one says, “I seduced the daughter of So-and-so,” he is obligated to pay for the embarrassment and depreciation by his own admission, but he does not pay the fine (based on the principle that one who admits to a fine is not required to pay, but if he admits to a compensatory damage, he will be obligated to pay). If one says, “I stole,” he is obligated to pay the principal by his own admission, but he does not pay the double payment, fourfold or fivefold payments (if he states that he slaughtered the sheep or the ox). If one says, “My ox killed So-and-so,” or “My ox killed the ox of So-and-so,” he is obligated to pay by his own admission. If one says, “My ox killed the servant of So-and-so,” he is not required to pay by his own admission (since the thirty shekel payment is deemed a fine and not a compensatory damage). This is the general rule: Whoever pays more than what he damaged is not required to pay by his own admission. (41a)

Reputation Suffering
The Gemora comments: Our Mishna is not in accordance with the following Tanna, for it was taught in a braisa: Rabbi Shimon ben Yehudah said in the name of Rabbi Shimon: Even the payments for embarrassment and depreciation, one is not obligated to pay by his own admission since he is not trusted to blemish the daughter of So-and so.

Rav Papa asked Abaye: What if the girl is willing to have her reputation suffer in exchange for the profit from the embarrassment and depreciation payments? Would he then be believed?

The Gemora answers: Perhaps her father is not willing to have the family’s reputation suffer.

The Gemora asks: What if the father is also willing?

The Gemora answers: We still will not believe his admission because others members of her family may not be willing to have their reputation suffer.

The Gemora asks: What if all the family members are willing?

The Gemora answers: There will always be one family member someplace that will not be willing. (41a)

Half-damages;
Fine or Compensation?
The Gemora states: Concerning the payment of half-damages (which are paid when a tame ox gores another animal; if the ox did not gore three times, it is regarded as an abnormal act and the animal was not intending to inflict damage; this is called a tam), Rav Papa says: This is regarded as a compensation payment. Rav Huna the son of Rabbi Yehoshua says: The half- damages are considered a fine.

The Gemora explains: Rav Papa says that the half-damages are regarded as a compensation payment, for an ordinary ox is not considered guarded in respect to these types of ‘abnormal’ damages and the owner should really be liable to pay completely for its damages. The Torah had compassion on him since his ox was not yet warned (three times) and ruled that he is only required to pay for half the damage (hence the half-damages that he does pay is considered compensation). Rav Huna the son of Rabbi Yehoshua says that the half- damages are considered a fine, for an ordinary ox is considered guarded in respect to these types of ‘abnormal’ damages and the owner should really be exempt completely from paying for its damages. The Torah penalized him and ruled that he is required to pay half in order that he will watch his ox better in the future (hence the half-damages are considered a fine).

The Gemora attempt to provide proof that the half-damages are regarded as a compensation and not as a fine. We learned in the following Mishna (Bava Kamma 14a): The plaintiff and the defendant are involved in the payment. Now according to the one who holds that liability for half-damages is a compensation payment, it is understandable why the Mishna states that the plaintiff is involved in the payment (since he is losing half of the damages which is really due to him), but according to the one who maintains that liability for half-damages is regarded as a fine, we may ask: If he receives that which he does not rightfully deserve, how can it be said that he is involved in the payment (he is gaining, not losing)?

The Gemora answers: The Mishna is actually referring to a different case altogether. It is discussing a case where the animal’s carcass decreased in value after its death, but before the case was presented to the Beis Din. (This loss is borne by the plaintiff, as the defendant is required to pay only half the difference between the value of the live animal and the carcass as it was on the day of the accident.)

The Gemora explains why it is necessary to teach this halacha by a tam and by a muad (an ox that gored three times).

The Gemora cites another Mishna: What is the difference between a tam and a muad? A tam pays half-damages from the body of the animal that damaged (the owner is not obligated to pay more than his ox was worth, even if that is less than the half-damages), but a muad is required to pay full damages from his choice property. The Mishna, however, did not state the following distinction: A tam would not pay by his own admission, but a muad will. (This proves that the half-damages are a compensation payment and not regarded as a fine.)

The Gemora rejects this proof, by saying that the Tanna of the Mishna listed only some of the differences between a tam and a muad; he did not list them all.

The Gemora cites our Mishna: If one says, “My ox killed So-and-so,” or “My ox killed the ox of So-and-so,” he is obligated to pay by his own admission. Is our Mishna not referring to a tam, and nevertheless, the Mishna states that he is obligated to pay by his own admission.

The Gemora rejects this proof by saying that our Mishna is referring to a muad, and that is why he would be required to pay even by his own admission.

The Gemora cites another statement from our Mishna: This is the general rule: Whoever pays more than what he damaged is not required to pay by his own admission. We can infer from there that if he is paying less than he damaged (such as by a tam), he would pay even by his own admission. (This proves that the half-damages are regarded as a compensation payment and not as a fine.)

The Gemora objects to this proof: We can only infer from the Mishna that if he pays as much as he damaged; that is considered a compensation payment.

The Gemora persists: If it would be correct that one who pays less than he damaged would be required to pay even by his own admission, the following is what the Mishna should have stated: This is the general rule: Whoever does not pay as much as he damaged is not required to pay by his own admission, for by saying it in this manner, it would suggest both less and more (by the fact that the Mishna does not state the rule in this manner, it proves that one who pays less than what he damaged is considered a compensation payment).

The Gemora concludes: This is indeed a refutation of the opinion who maintains that the half-damages are a fine.

The Gemora states: The halacha is that the half-damages are regarded as a fine.

The Gemora asks: If we refuted that opinion, how can the halacha follow that viewpoint?

The Gemora answers: It is because we can answer the refutation. What did we ask? If it would be correct that one who pays less than he damaged would be required to pay even by his own admission, the following is what the Mishna should have stated: This is the general rule: Whoever does not pay as much as he damaged is not required to pay by his own admission. We could not have said it in that manner because it is not an absolute rule, for there is a case of half-damages of tzroros (a case where an animal walks and shoots pebbles from under its feet causing damage to utensils), which we have learned through an Oral Tradition (halacha l’Moshe misinai) that they are a compensation payment. (Even if the half-damages by the tam will be regarded as a fine, the half-damages of tzroros is considered a compensation payment.)

The Gemora states: Now that you have concluded that liability for the half-damages is a fine, the case of a dog that ate sheep or that of a cat that ate big hens is one of unusual occurrence (and the owner would pay half-damage just like a tam) and the payment would not be collected in Bavel (since fines may be imposed in Eretz Yisroel only by a judge who is specially ordained for the purpose; no such judges lived in Bavel). If, however, the sheep or hens were small, this is regarded as a usual occurrence and the payment would be collected in Bavel. Should the plaintiff, however, seize the property of the defendant (in a case of a fine that could not be collected in Bavel), they cannot be taken away from him. Furthermore, if he asks for a date to present his case to a Beis Din in Eretz Yisroel, we set it up for him, and if the defendant does not go with him, we place a ban upon him.

Either way, however, the defendant is to be placed under the ban, for we tell him: Remove your damaging animal. This follows the opinion of Rabbi Nosson, for we learned in the following braisa: Rabbi Nosson said: How do we know that a man may not raise a vicious dog in his house, nor shall he place a shaking ladder in his house? It is written [Devarim 22:8]: You shall not place blood in your house. (41a – 41b)

WE SHALL RETURN TO YOU, EILU NA’AROS

[END]

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Positive Commandment Overriding a Negative One

The Gemora (Kesuvos 40a, Shabbos 132a) states that a positive commandment can override a prohibition that carries with it a standard punishment.

The Gemora provides an example for this: The positive commandment of performing circumcision overrides the negative commandment of cutting off tzaraas.

My brother, Reb Ben cites the opinion of Rabbeinu Nisim Gaon, who writes the following: Many people cast doubt on this precept, as we know that a negative commandment is more stringent than a positive commandment, so why should a positive commandment supersede a negative commandment? Rabbeinu Nisim answers that a positive commandment is set, and if there is a negative commandment, the negative commandment only functions if there is no contradiction to the positive commandment. This is what Hashem decreed, that the positive commandments remain in place, and the negative commandment only functions if there is no contradiction to the positive commandment. The Ramban , however, writes that the reason a positive commandment supersedes a negative commandment is because in reality, a positive commandment is greater than a negative commandment. A positive commandment is a reflection of the love Hashem has for us, because one who fulfills the instructions of his master is beloved by his master and the master will have compassion on him. A negative commandment, however, is a reflection of Hashem’s Attribute of Judgment, and stems from fear. Since love is greater than fear, the Torah states that a positive commandment supersedes a negative commandment.

Based on this premise, the Meshech Chochmah explains that one who violates a negative commandment deserves a greater punishment than one who does not fulfill the will of Hashem. Nonetheless, since it is the will of Hashem that one observes both positive and negative commandments, one who fulfils a positive commandment demonstrates his love for Hashem. One who does not violate a negative commandment, however, merely demonstrates that he is afraid and nothing more. For this reason, the torah states that a positive commandment supersedes a negative commandment. An example of this is one can wear Tzitzis with Techeiles on a garment of linen, as the positive commandment of wearing Tzitzis supersedes the negative commandment of shaatnez. The reason for this is that one who wears shaatnez does not transgress the will of Hashem. In fact, the opposite is true, as by donning Tzitzis, he is fulfilling the will of Hashem.

In regards to the question: Why is it that a positive commandment overrides a prohibition and yet the punishment for transgressing a prohibition is much more severe than the punishment for not fulfilling a positive commandment?, Reb Yossie Schonkopf said over a parable from his Rebbe: A trucker is hired to transport a load across the country and the owner warns him not to go beyond the speed limit, not to crash the vehicle and to follow all the road instructions. If the trucker does everything perfectly but doesn't unload the goods at his destination; rather, he arrives at the destined location and immediately turns around carrying the same load, what is accomplished by the fact that the trucker obeyed the speed limit and followed all the rules?

The meaning is as follows: Our mission in life is to accomplish in this world and 'build the love towards HaShem,’ therefore, this building overrides the transgressions. The prohibitions are only there to protect what has been built and not to suffocate the building.

This concept is elucidated by the Ramban in Parshas Yisro. He states that the fulfillment of a positive commandment is based on ahavas HaShem, loving HaShem and refraining from committing a transgression is based on yiras HaShem fearing HaShem. It is a higher level to serve HaShem through love, but it is worse to violate a prohibition, which is based upon fearing HaShem.

My brother, Reb Ben asked a similar question: The Gemora states that a positive commandment will override a negative commandment when both commandments are performed simultaneously. It is noteworthy that the Gemora in Sota states that a mitzvah cannot extinguish an aveira, a sin, yet an aveira can extinguish a mitzvah. Apparently, the principle that a positive commandment can override a negative commandment is not a contradiction to this Gemora. Perhaps the idea is that when one performs an aveira intentionally, he has rebelled against HaShem, and it is not possible for one to appease HaShem with a mitzvah when he has just committed an act of rebellion. When one is simultaneously overriding the negative commandment by performing a positive commandment, however, he is demonstrating that he is fully aware that he is performing a negative commandment, yet he is permitted by the Torah to override the negative commandment. This principle allows him to perform the positive commandment and be rewarded for its performance.

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Daf Yomi - Kesuvos 40 - Highlights

Unfit to the Violator

The Mishna had stated: How does the violator “drink from his pot”? He is required to marry her even if she is lame, blind or afflicted with boils. If, however, she committed adultery after the marriage or if she is unfit to marry into the congregation, he may not remain married to her, as it is written: And she shall be to him as a wife. She must be a woman that is fit for marriage to him.

Rav Kahana said: I asked the following question to Rav Zevid from Nehardea: Why doesn’t the positive commandment that the violator should marry his victim override the negative prohibition against marrying a woman unfit to him (such as a mamzeress)?

Rav Zevid replied to Rav Kahana: When do we say the principle of Aseh doche lo saaseh? In a case like the positive commandment of circumcision overriding the negative commandment of cutting off the tzaraas on the foreskin, where one cannot choose not to fulfill the mitzvah; however here, if the victim says that she does not want to become married to the violator, there is no positive commandment at all (we therefore, in cases where she is unfit to marry him, advise the victim to say that she does not want to become married to him). (40a)

Mishna
The Mishna states: An orphan who was betrothed and then divorced; Rabbi Elozar says: One who violates her will be obligated to pay the fine, whereas, one who seduces her will be exempt (since the fine belongs to her, and her consent to the seducer is regarded as if she waived the fine). (40a)

A Na’arah is like an Orphan
Rabbah bar bar Chanah said in the name of Rabbi Yochanan: Rabbi Elozar is following in the opinion of Rabbi Akiva, his teacher, who said: A woman who was betrothed and then divorced; she has a right to the fine and the fine belongs to her. How do we know that Rabbi Elozar is following Rabbi Akiva’s opinion? It is because Rabbi Elozar states: An orphan who was betrothed and then divorced; One who violates her will be obligated to pay the fine, whereas, one who seduces her will be exempt.

The Gemora asks: Isn’t the case regarding an orphan an obvious ruling? What was the necessity for the Mishna to state such a case? Rather, the Mishna is teaching us that a na’arah, who was betrothed and then divorced (and the father is still alive) is like an orphan. Just as the fine belongs to the orphan, so too, regarding a na’arah, who was betrothed and then divorced, the fine belongs to her. (40a)

Mishna
The Mishna asks: What is the payment of embarrassment? The Mishna answers: It is based upon the stature of the one who is causing the embarrassment, and upon the one who is becoming embarrassed (a greater person causes more embarrassment and a greater victim has greater embarrassment).

The following is the manner in which we evaluate depreciation: We see her as if she would be a slave being sold in the marketplace; we evaluate how much she was worth before the violation occurred and how much she is worth now (and the violator will pay the difference; Beis Din estimates how much a person would pay for her if he were to purchase her as a slavewoman to marry off to a favorite slave, with whom he is pleased; obviously, there would be a difference in her value now that she is not a virgin any longer).

The fine is the same for every woman (and there is no need for any evaluation). Any liability where the Torah prescribes a set amount is the same for every person. (40a)

Embarrassment and Depreciation
The Gemora asks: Perhaps when the Torah said that a violator and a seducer are required to pay fifty selaim, that is the only monetary obligation, and there is no payment for embarrassment and depreciation?

Rabbi Zeira answers: If that were so, then, if one cohabited with a princess will pay fifty and one who cohabited with the daughter of a commoner will also pay fifty. Obviously not! (Since the indignity of the former is undoubtedly greater, she should be entitled to more. Hence it follows that, in addition to the statutory sum which the Torah has awarded to all alike, an additional sum for indignity must be paid in accordance with the status of the offended party.)

Abaye asked him: If so, the same might be argued in respect of a slave (killed by a muad ox). Should compensation (for whom the Torah fixes at thirty shekels) for a slave who perforates pearls be thirty and that for one who does needlework, it should also be thirty?

Rather, Rabbi Zeira explains as follows: If two men forcibly violated her, one in a natural way, and the other in an unnatural manner, shall they say that one who cohabited with a sound woman (a virgin) shall pay fifty and the one who cohabited with a degraded woman should also pay fifty?. Obviously not!

Abaye asked him: If so, the same might be argued in respect of a slave: Should the compensation for a healthy slave be thirty and that for one afflicted with boils also be thirty?

Rather, this, said Abaye, is the explanation: The Torah stated (as the reason for the statutory fine): Because he had afflicted her. It is as if the Torah is saying that these (the fifty shekalim) must be paid because he had afflicted her; however, compensation for embarrassment and depreciation must also be paid.

Rava presents an alternative source: The Torah said: Then the man that lay with her shall give to the girl’s father fifty shekels of silver. We can infer that for the gratification of lying with her, he gives fifty; however, compensation for embarrassment and depreciation must also be paid. (40a – 40b)

Embarrassment and Depreciation Payments belong to the Father
The Gemora asks: How do we know that the payments for embarrassment and depreciation belong to the father; perhaps they are paid to her?

The Gemora answers: It is written [Bamidbar 30:17]: In her naarus, in her father’s house. We derive from here that all profits generated by a na’arah belong to the father. It is therefore evident that the payments for embarrassment and depreciation go to him, and not to her.

The Gemora objects to this drasha: Let us examine that which Rav Huna said in the name of Rav: How is it known that a daughter’s earnings belong to her father? It is because it is written [Shmos 21:7]: When a father shall sell his daughter as a maidservant. The Torah juxtaposes the words “daughter” and “maidservant” to teach the following: Just as the earnings of a maidservant belong to her master, so too, the earnings of a daughter belong to her father. The Gemora asks: Why is it necessary to expound the verse in this manner? Let us derive this halacha from the verse mentioned above, namely, In her naarus, in her father’s house?

Rather, it is evident that this verse cannot be the source for this halacha. This is because the aforementioned verse is discussing the annulment of vows (and we cannot derive from there that the payments for embarrassment and depreciation belong to the father).

The Gemora asks: Why can’t we compare the two halachos, and say that just like the father has control over his daughter’s vows, he should receive the payments for embarrassment and depreciation?

The Gemora answers: We cannot derive a monetary halacha from a prohibitory one.

The Gemora asks: Let us derive the halacha from the fact that the fine belongs to the father?

The Gemora answers: We cannot derive a monetary halacha from a fine.

Rather, the Gemora concludes: It is derived by the means of the following logic: The father has a right to betroth his daughter to a repulsive man or one who is afflicted with boils (thereby embarrassing her and depreciating her value) and receive the betrothal money in exchange. It is therefore evident that the payments for her embarrassment and depreciation belong to her father. (40b)

Mishna
The Mishna states: Anytime that the father can sell her, she does not receive a fine; and anytime she does receive a fine, her father cannot sell her. The father may sell his daughter as a minor, but there is no fine for her. There is a fine for a na’arah, but she can no longer be sold. A bogeres cannot be sold and there is no fine for her. (40b)

Age of the Girl
Rav Yehudah said in the name of Rav: The Mishna’s words are in accordance with Rabbi Meir, but the Chachamim maintain that a girl can be entitled to a fine even though she can still be sold, for we learned in the following braisa: Concerning a minor girl from one day old until she produces two pubic hairs; her father is entitled to sell her as a maidservant, but she is entitled to a fine. Concerning a girl who produced two pubic hairs until she reached the state of bogeres (generally, from twelve years and one day until twelve and a half); she is entitled to a fine and her father does not have the right to sell her as a maidservant. These are the words of Rabbi Meir, for Rabbi Meir says: Anytime that the father can sell her, she does not receive a fine; and anytime she does receive a fine, her father cannot sell her. The Chachamim say: Concerning a minor girl from three years and one day old (the age where she is fit for cohabitation) until she reached the state of bogeres; she is entitled to a fine.

The Gemora asks: The Chachamim said that she is entitled to a fine. May we infer from there that the father has no right to sell her?

The Gemora answers: No! There is a fine at this age besides the right of the father her to sell her as a maidservant.

The Gemora discusses the Scriptural sources for these opinions. (40b)

[END]

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A SHORT CONCEPTION

The Gemora (Kesuvos 39a) stated that perhaps one can say that a girl became pregnant while she was a na’arah and gave birth while still a na’arah; this cannot be the case, for Shmuel said: There are only six months between the time a girl becomes a na’arah until she becomes a bogeres.

The Acharonim ask from this Gemora on a teshuva written by the R”I Mintz, which is quoted in the Rama (E”H; 4; 14). He states: A woman who became pregnant from her husband towards the end of the month of Sivan, and she gave birth in the beginning of Kislev, even though there are only five months in between (Tammuz, Av, Elul, Tishrei and Cheshvan), we are not suspicious that she became pregnant beforehand because there are a total of seven months from conception to the birth and that is sufficient; the child is regarded as a seven-month baby.

If so, it should be possible for a na’arah to conceive and give birth before she becomes a bogeres? She can give birth in five months and two days!

The Chelkas Mechokeik answers that according to the R”I Mintz, a girl is not considered a na’arah for a complete six months, but rather, she would become a bogeres after four months and two days; as long as she became a na’arah at the end of one month – four months and two days later, she becomes a bogeres.

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Daf Yomi - Kesuvos 39 - Highlights

Bogeres in the Grave

Abaye said: If one violates a woman and she later dies, he is exempt from paying the fine.

The Gemora comments: That which was obvious to Abaye was a matter of inquiry to Rava, for Rava inquired: Does a girl attain a state of bogeres in the grave or not (the violated girl died and she would have become a bogeres before Beis Din issued a ruling on the violator)?

The Gemora explains: If we say that she attains a state of bogeres in the grave, the fine would belong to her son (if she has one; based on the Mishna (41b) which states that although the fine usually belongs to the victim’s father, if she becomes a bogeres before the violator is found to be guilty, the fine belongs to her or her inheritor, namely, her son). Or, perhaps, she does not attain a state of bogeres in the grave and therefore, the fine would belong to her father?

The Gemora challenges the facts for such an inquiry: Can a girl who died while she was still a na’arah give birth before her death? But Rav Bibi cites the following braisa in front of Rav Nachman: Three types of women are permitted to insert a wad into their bodies prior to engaging in marital relations in order to prevent conception. They are: A minor, a pregnant woman and a nursing woman. A minor is permitted because otherwise, she may become pregnant and die. A pregnant woman is permitted because otherwise, she might become pregnant again, and the second fetus will crush the first one. A nursing woman is permitted because otherwise, she might be compelled to wean her child, resulting in his death.

The braisa continues: What age minor are we referring to? We are concerned when the minor is between eleven and twelve years old. If she is younger or older than that, she is not permitted to cohabit in that manner; these are the words of Rabbi Meir. The Chachamim disagree with the entire ruling and state that these women should cohabit in the regular manner and Heaven will have compassion on them (becoming pregnant in these situations is highly unusual and therefore we prohibit them from utilizing and type of contraceptive measures) as it is written [Tehillim 116:6]: Hashem protects the fools. (It is evident that a minor cannot conceive; how then, could the na’arah have given birth?)

Perhaps you will answer that she became pregnant while she was a na’arah and gave birth while still a na’arah; this cannot be the case, for Shmuel said: There are only six months between the time a girl becomes a na’arah until she becomes a bogeres.

The Gemora explains Rava’s inquiry in a different manner: If we say that she attains a state of bogeres in the grave, the father would lose his right to the fine (and the violator would keep the money). Or perhaps, she does not attain a state of bogeres in the grave and therefore, the fine would belong to her father?

Mar bar Rav Ashi explains Rava’s inquiry differently: Does the father lose the right to the fine if his daughter died while she was a na’arah (in the same manner as he would lose the right if sahe became a bogeres while still alive)?

Rava’s inquiry remains unresolved. (38b – 39a)

Mishna
The Mishna states: One who seduces pays three types of payments and one who violates pays four. One who seduces pays for embarrassment, the blemish, and the Torah mandated fine for seducing. One who violates also pays for the pain he inflicted.

What are the differences between one who violates and one who seduces? The violator is required to pay for the pain that he inflicted, and the seducer does not pay for pain. The violator is required to pay the fine immediately (even if he marries her), whereas the seducer pays the fine only when he sends her away. The violator is required to drink from his pot (he must marry her), whereas the seducer may send her away, if he desires.

How does the violator “drink from his pot”? He is required to marry her even if she is lame, blind or afflicted with boils. If, however, she committed adultery after the marriage or if she is unfit to marry into the congregation, he may not remain married to her, as it is written: And she shall be to him as a wife. She must be a woman that is fit for marriage to him. (39a)

Which Pain?
The Mishna had stated: The violator is required to pay for the pain that he inflicted.

The Gemora asks: What pain are we referring to?

Shmuel’s father answered: We are discussing the pain of her being thrown to the ground before she was violated.

Rabbi Zeira asks: Accordingly, if he would have thrown her down onto silk, would there be no liability for pain? The Gemora proves from a braisa that this is not the case.

Rather, Rav Nachman says in the name of Rabbah bar Avuha: We are discussing the pain of the separation of her legs.

The Gemora asks: If so, a seducer should also be required to pay for this pain?

Rav Nachman answers in the name of Rabbah bar Avuha: A girl who is seduced is compared to a man who says to his fellow, “Rip my silks and you will be exempt from paying.” (By willing to be seduced, she is waiving her rights to the payment.)

The Gemora objects to this line of reasoning: The payments do not belong to the girl; they belong to the father! She cannot waive these rights.

Rather, Rav Nachman says in the name of Rabbah bar Avuha: The smart women say that a girl who was seduced does not suffer any pain from the separation of her legs.

The Gemora explains that even though, she does experience some pain, it is deemed insignificant, and is offset by the pleasure she receives. (39a – 39b)

Preventing the Marriage
The Mishna had stated: The violator is required to pay the fine immediately (even if he marries her), whereas the seducer pays the fine only when he sends her away.

The Gemora asks: How can he send her away if he didn’t marry her yet (once he marries her, there is no fine)?

Abaye answers: The Mishna means that he pays when he decides that he will not marry her.

The Gemora cites the following braisa supporting this explanation: Although they said that the seducer only pays the fine if he decides not to marry her, he is required to pay for embarrassment and the blemish immediately. In cases of violation and seduction, the girl and the father can prevent the marriage from occurring.

The Gemora provides Scriptural sources to the fact that she and the father can prevent the marriage from occurring by a case of seduction, and the Gemora provides a Scriptural source that she can prevent the marriage from taking place by a case of violation.

The Gemora asks: How do we know that the father can prevent the marriage from taking place by a case of violation?

Abaye answers: It is because it is illogical to allow the sinner to profit from his sin (because the father could have prevented this marriage from taking place before the violation, it would stand to reason that he can still prevent it).

Rava answers: It is derived through a kal vachomer from a case of seduction. (39b)

Fine and her Kesuvah

The Gemora cites a braisa: Although they said that the violater is required to pay the fine immediately (to the father), if she demands a divorce later, she does not receive a kesuvah payment. If he died before her, the money which was paid for the fine is regarded as her kesuvah payment. Rabbi Yosi the son of Rabbi Yehudah says: She does receive a kesuvah payment of a maneh.

The Gemora explains the reasoning for their dispute: The reason that the Rabbis instituted a kesuvah (an obligation for the husband or his estate to pay the wife a certain amount of money in case he divorces her or dies) is in order for it to be not so light in his eyes to divorce her; the violator cannot divorce her anyway, so there is no reason for a kesuvah payment. Rabbi Yosi the son of Rabbi Yehudah maintains that the violator can torture his wife until she says that she does not want him any longer (so there is still a reason for the kesuvah payment). (39b)

[END]

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CIRCUMCISION BEFORE EXECUTION

Tosfos states that if a person would destroy his fellow’s eye while he was killing him, it would not be regarded as if he blinded him and murdered him (in which case, you might think that we should punish him for both actions, by executing him and exacting payment for the eye); but rather, it is considered as if he killed him in a more painful manner. Chashukei Chemed derives from this Tosfos that there is no prohibition to wound a fellow at a time that he is being executed anyway.

Using this principle, it is possible to answer the following question posed by Reb Yosef Engel in Gilyonei HaShas to Avoda Zara (10b). The Gemora states: The Caesar decreed that Ketiah (a gentile) should be put to death. As they were escorting him to the death chamber, a certain matron called out and said, “Woe is to the ship that leaves without paying its taxes first.” Rashi explains: Ketiah was being executed for supporting the Jews; if he would not circumcise himself before his death, he will not merit a portion in the World to Come together with them. Ketiah thereby, fell on top of his foreskin and cut it off. He said, “I now have paid my tax. I will leave this world and enter into the World to Come.”

Reb Yosef Engel asks: It appears that Ketiah did not satisfy all the requirements of conversion, for he didn’t immerse in a mikvah and he didn’t accept the yoke of fulfilling all the mitzvos; if so, shouldn’t there have been a prohibition to cut his foreskin? Isn’t he violating the prohibition of wounding oneself?

In the sefer Shabbos Shaboson, the following novel ruling is brought in the name of Rav Yosef Tzikonovsky: If one is being brought to be executed, he is allowed to circumcise himself even though his brothers had died on account of circumcision (normally, that would preclude a third brother from circumcision). Since he is going to die anyway, he would be permitted to circumcise himself, although the procedure itself can lead to his death. He provides a fascinating source from the Abudraham: It is our custom, when saying the words: “V’omer lach b’damayich chayi,” that we place some of the wine on the lips of the child. This is based upon the Medrash which states that after the sin of the Golden Calf, as some of the Jewish people were being killed, Moshe would circumcise them, Aharon would uncover the foreskin and Yehoshua would give them to drink (from the ashes of the Golden Calf causing them to die). All forty years in the Desert, there was no circumcision because of the burdens of traveling and because the Northern Wind did not blow (which was necessary to heal them). Moshe and Aharon did not want them to die without a circumcision and without accepting the yoke of mitzvos. Yehoshua gave them to drink, leading to their death. We give the circumcised child to drink and say: This circumcision and drinking should lead to life, not death.

Accordingly, Ketiah, could circumcise himself prior to his death, and he needn’t be concerned with the prohibition of wounding himself unnecessarily.

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Daf Yomi - Kesuvos 38 - Highlights

What do we Learn from the Extra Passuk?

Rava asked (on Rami bar Chama’s teaching) that this is already known from the teaching of the house of Chizkiya. The house of Chizkiya taught that that the passuk discusses a person who kills another person and a person who hits an animal. There is no difference if the person hit the animal (and damaged or killed it) did so on purpose or accidentally, with intent to hit or without intent to hit, whether his blow was upwards or downwards. In all cases he is obligated to pay. Similarly (regarding a person killing a person where the Torah says the penalty is death and not payment) there is no difference if the person hit a person (and damaged him) on purpose or accidentally, with intent to hit or without intent to hit, whether his blow was upwards or downwards. In all cases he does not pay. [This teaches that there is no difference whether the blow was upwards or downwards, making the teaching of Rami bar Chama redundant.]

Rami bar Chami therefore revised his statement, and said there is a different reason why we need these two pesukim (mentioned on 37b). One might think that if a person kills another person with a blow that blinds his eye and also kills him, only in such a case do we say that he is exempt from paying monetary damages for the blinding as well. However, in a case where he blinded him and immediately killed him with a different blow, one might think that he is obligated to pay for the blinding as well. [The extra passuk teaches us that this is not the case.]

Rava asked that this is already known from a different teaching of the house of Chizkiya. The house of Chizkiya taught “an eye for an eye,” but not a soul and eye for an eye (meaning that whenever one kills he does not pay for causing injury whether it was from the killing blow or not).

Rav Ashi therefore gave a different reason. One might think that because the Torah taught novel rules when it instituted monetary penalties (as opposed to regular payments or obligations that are always in direct relation to what was damaged) that even if one will be killed he still must pay a fine that was incurred at the same time. The extra passuk (either “kol cheirem” or lo sikchu kofer”) therefore teaches us that the same rule (“kim ley”) that applies to payments applies to fines.

What do we learn from the extra passuk according to Rabah, who indeed holds that being that monetary penalties are novel teaching we do not apply the rule that if he will be killed he does not pay? He must hold like the Tana Kama of Rabbi Chananya ben Akavya (who says that the extra passuk teaches that someone who pledges the value of a person who is being taken to be killed by Beis Din does not have to give any money).
Mishna
A girl was betrothed and divorced (and then seduced). Rabbi Yosi Haglili says that she does not receive a fine. Rabbi Akiva says that she does, and she receives it (instead of her father).
The Reasoning for their Argument
What is the reasoning of Rabbi Yosi Haglili? The Torah states, “that she was not betrothed.” This clearly implies that if she was betrothed, she does not receive the fine. What does Rabbi Akiva do with this passuk? He understands “that she was not betrothed” refers to the fact that if she was betrothed, her father does not receive the fine. However, if she was betrothed she received the fine for herself.

The Gemora asks, this would imply that we should understand that when the Torah states the word “na’arah” and it specifically excludes a “bogeres” – “girl over twelve and a half,” it means that if the girl was a bogeres she should receive the fine for herself (and no one suggests that this is the case)! Similarly, when the Torah states that the girl was a “besulah” – “virgin” and not a “beulah,” Rabbi Akiva’s line of reasoning would imply that in such a case she herself should receive the fine! We know that the passuk in these matters is saying that in the case of the Torah the fine applies, and when it does not one is totally exempt! Here, too, the fact that she is “betrothed” should decide whether the person pays or is totally exempt!

Rabbi Akiva can answer that “that she was not betrothed” is needed, as stated in (his opinion in) the following Beraisa. The Beraisa states that “that she was not betrothed” excludes a girl who was betrothed and divorced, that she does not receive a fine. Rabbi Akiva says that she does receive a fine and her father keeps it. This is something that can be derived logically, as we can compare the fact that her father has the rights to her kiddushin money (when she is a na’arah) and any fine if she is seduced. Just as her father receives her kiddushin money if she was betrothed and then divorced (and then became betrothed a second time), so too he receives money from her fine in such a situation.

(Rabbi Akiva continues.) Why, then, does the passuk state “that she was not betrothed?” It is an extra passuk that is supposed to be compared to and used to derive from it a gezeirah shavah. It says here (regarding violation) “that she was not betrothed” and it says (regarding seduction) “that she was not betrothed.” Just as regarding violation the Torah mandates a fine of fifty coins, so too regarding seduction (where the amount is not specified) the amount is fifty coins. Additionally, just as the coins regarding seduction are clearly shekalim, so too the coins regarding violation are shekalim.

The Gemora asks: Why does Rabbi Akiva understand that “that she was not betrothed” is to be used for a gezeirah shavah, whereas “besulah” must be totally excluding a “beulah?” Why don’t we say that “besulah” should be used for a gezeirah shaveh and “that she was not betrothed” should be used to exclude a fine for a girl who was betrothed and divorced (as per the opinion of Rabbi Yosi Haglili)?

The Gemora answers that it makes sense that “that she was not betrothed” should be used for a gezeirah shavah, as she is still deemed to fit the description of a “na’arah besulah.” On the contrary, the Gemora asks, use “besulah” for a gezeirah shavah as she is described as “that she was not betrothed.”

The Gemora answers that the former choice makes sense, as the body of a besulah has clearly changed whereas the body of the one who was betrothed and divorced didn’t change (and the damage done to her is therefore more severe and deserving of a fine).

How does Rabbi Yosi Haglili know this logic (that the amount of coins regarding seduction is fifty and the denomination of coins regarding violation is shekalim)? He derives this from the passuk that states “he will give coins like the money given in exchange for virginity.” This teaches us that the amount regarding seduction should be like that given in exchange for virginity (said regarding violation which is fifty), and the exchange for virginity should be like this (the fine should be paid in shekalim).
Two Opinions According to Rabbi Akiva
The Gemora asks, Rabbi Akiva contradicts himself (as in the Beraisa he stated the fine goes to the father, whereas in our Mishna he said the fine goes to the girl herself)! The Gemora answers that the Beraisa and Mishna must be authored by two separate Tanaim who argue regarding the opinion of Rabbi Akiva.

It is good that according to the opinion of Rabbi Akiva discussed in our Mishna that when the passuk is used for a gezeirah shavah, it is not totally uprooted from its simple explanation. However, according to his opinion as stated in the Beraisa, is it possible that the fact that a passuk is open to be used for a gezeirah shavah a reason that it should go against the simple meaning of the passuk (as being betrothed is not a factor)?

Rav Nachman bar Yitzchak answers that the passuk should be read as if it is saying that she is not currently betrothed. The Gemora asks: If she was currently betrothed she would be stoned! [Therefore, how could this be the meaning of a passuk which merely discusses a fine?]

The Gemora answers that this comes to teach us that one might think that because the fine paid is a novel teaching of the Torah, even though he is killed (if he seduced her while she was betrothed) he still must pay the fine. The passuk “that she was not betrothed” therefore comes to teach that if she was betrothed he would not pay the fine.

The Gemora asks, according to Rabah who says that as a fine is a novel teaching of the Torah even though one is killed he still pays a fine, what does the passuk teach us? It must be that he is of the opinion of Rabbi Akiva as stated in the Mishna.

The Beraisa asks: Who receives the fine? [Some say] her father. Some say she receives the fine. Why does (this opinion state that) she receive the fine (doesn’t the Torah state that the father receives the fine)?

Rav Chisda answers that the Beraisa is discussing the case where she was betrothed and divorced. The argument in this Beraisa is the same argument between the opinion of Rabbi Akiva as stated in the Mishna, and that of Rabbi Akiva stated in the Beraisa (above).

[END]

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OVERCOMING A TEST

The Gemora (Kesuvos 33a - b)asks: How do we know that the death penalty is more severe; perhaps receiving lashes is more severe, for Rav had said: Of they would have whipped Chananya, Mishael and Azaryah, they would have succumbed and served the idol!?

Reb Bunim from Parshischa said: The reason that they weren’t tested by means of whipping is because the Holy One, Blessed is He does not test anyone beyond his ability. Every test is given according to that particular person’s individual strength. This should serve as a tremendous chizuk for a person. If he is being tested; it is clear that he has the innate strength to overcome it.

Reb Baruch Sorotzkin, the Telzer Rosh Yeshiva once told this over to a woman who was being severely tested. Reb Mottel Gifter, also a Rosh Yeshiva in Telz was on the phone at the same time, and he said emphatically, “Baruch, it’s easy for you to say!”

Yes, it’s easy to say, but if it would be easy to hear as well, it wouldn’t be a test. Hashem should give us all the strength to overcome whatever our test might be.

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‘KIM LEIH B’DIRABAH MINEIH’ IN A CASE OF UNCERTAINTY

Reb Akiva Eiger rules that if one seduces an idolater, he is exempt from paying a fine because of the principle of ‘kim leih b’dirabah mineih,’ one incurs the more severe penalty of death and he is not liable for the monetary payments. Since the halacha is: Zealots have a right to kill one who cohabits with an idolater, he will not be required to pay the fine. If, however, it is uncertain if the girl is a Jew or an idolater, he will be liable for the fine because in this situation, the zealots cannot kill him.

Reb Elchonon Wasserman in Koveitz Shiurim (84) learns from here that whenever it is uncertain if the principle of ‘kim leih b’dirabah mineih’ applies, he would still be liable for the payment.

Reb Yitzchak Zilberstein comments that if not for Reb Elchonon, a distinction could have been made between a court-imposed death penalty and a case where one incurs death by the hands of the zealots. In a case of an uncertainty regarding a court-imposed death penalty, such as one who desecrated Shabbos in a time where it is uncertain if Shabbos has started or not (bein hashemoshos), and at the same time he burned the stalks of his fellow, he would be exempt from paying for the damages. The reason is as follows: Even though, Beis Din cannot administer the death penalty, he would be exempt from paying because he might be liable for death. However, in a case where one does not incur a death penalty; it is a transgression where zealots have a right to kill him. In a case of uncertainty, where he may not be killed, he should certainly be responsible for the monetary payments involved.

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QUEEN ESTHER’S ORDERS

Reb Shmuel the Badchan said over by the Beis Yisroel’s wedding: Esther instructed Mordechai: Go and gather all the Jews, leich kenos es kal hayehudim. Don’t read the word ‘kenos’ with a ‘kaf,’ meaning gather, but rather with a ‘kuf,’ meaning penalize.

The Jewish people were being sold for the purpose of being destroyed. Esther instructed Mordechai to issue a monetary fine against all the Jews.

Her rationality for this was as follows: Our Gemora states: Anytime that there is a fine (a girl twelve tears old), there cannot be a sale (the father is not entitled to sell his daughter as a maidservant). If the Jewish people would be fined, they cannot be sold.

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FOOD FOR THOUGHT - Kesuvos 29 - Daf Yomi

*** Why are the halachos of violation and seducing in Meseches Kesuvos?

*** The Mishna states: These are the na’aros (girls who have reached maturity; generally at twelve years old until they become a bogeres at twelve and a half) who are entitled to a fine.

Rashi explains: If a man violates an unmarried woman, he must pay a penalty of fifty shekalim to her father.

Why did Rashi choose to explain the Mishna to be referring to a case of violation; the same halacha would be true if a man seduces a woman?

*** Rabbi Meir said: Concerning a minor girl from one day old until she produces two pubic hairs; her father is entitled to sell her as a maidservant, but she is entitled to a fine.

Why does she have to be one day old; couldn’t the father sell her as a maidservant while she is still in her mother’s womb?

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Daf Yomi - Kesuvos 29 - Highlights

The Mishna states: These are the na’aros (girls who have reached maturity; generally at twelve years old until they become a bogeres at twelve and a half) who are entitled to a fine (if a man violates an unmarried woman, he must pay a penalty of fifty shekalim to her father): If one cohabits with a mamzeres, a nesinah, or with a Cuthean (converts to Judaism after an outbreak of wild animals in Eretz Yisroel and their conversion was debated as to its validity); if one cohabits with a convert, a captive, or with a slavewoman who were redeemed or converted, or freed before the age of three years and one day; if one cohabits with his sister, or with his father's sister, with his mother's sister, with his wife's sister, with his brother's wife, with his father's brother’s wife, or with a niddah (a menstruating woman), they are entitled to a fine. Even though they incur kares, they are not liable to the Court imposed death penalty (and therefore, they are not exempt from the fine).

[The Torah writes: "If a man finds a virgin maiden, who is not betrothed, and seizes her, and lies with her, and they are found; then the man who lay with her shall give to the maiden's father fifty silver (shekels), and she shall be his wife; because he afflicted her, he may not send her away all his lifetime" (Deut. 22:28-29). This passage teaches that a man who violates a maiden is obligated to pay her father a fine of "fifty silver," i.e., fifty selas (two hundred dinars); he is also obligated to marry the violated girl (if her father and she agree), and he is forbidden to divorce her. We also derive from the wording, "If a man finds a virgin maiden," that the fine is payable only under the following conditions: (1) she must be a "maiden" ( a na'arah)," i.e., she must have the signs of puberty (two hairs), and she must be between the age of twelve years and one day, and twelve and one-half years, when she becomes a bogeret, and (2) she must be "a virgin," i.e., a girl who has not engaged in sexual relations. Our mishnah teaches that the fine must be paid irrespective of whether he can fulfill "and she shall be his wife," and even in cases of forbidden sexual unions punishable by karet (the punishment of being "cut off from among the people"). Introduction to this chapter from Kehati] (29a)

The Gemora infers from our Mishna that only a girl who is a na’arah is entitled to the fine, but a minor would not be entitled to this fine.

The Gemora asks: Who is the Tanna that holds like that?

Rav Yehudah said in the name of Rav: It is the opinion of Rabbi Meir, for we have learned in the following braisa: Concerning a minor girl from one day old until she produces two pubic hairs; her father is entitled to sell her as a maidservant, but she is entitled to a fine. Concerning a girl who produced two pubic hairs until she reached the state of bogeres (generally, from twelve years and one day until twelve and a half); she is entitled to a fine and her father does not have the right to sell her as a maidservant. These are the words of Rabbi Meir, for Rabbi Meir says: Anytime that the father can sell her, she does not receive a fine; and anytime she does receive a fine, her father cannot sell her. The Chachamim say: Concerning a minor girl from three years and one day old (the age where she is fit for cohabitation) until she reached the state of bogeres; she is entitled to a fine.

The Gemora asks: The Chachamim said that she is entitled to a fine. May we infer from there that the father has no right to sell her?

The Gemora answers: No! There is a fine at this age besides the right of the father her to sell her as a maidservant. (29a – 29b)

The Mishna had stated that women who are unfit to be married are nevertheless entitled to receive a fine if they are violated.

The Gemora asks: Why is this the case? It is written [Devarim 22; 29]: And she shall be to him a wife; and it is learned from here that he has an obligation to marry her only if she is qualified to be married by him. (We can infer from here that the fine is payable only if he violated a girl whom, in law, he could marry, but as to the women mentioned in the Mishna, who are either generally prohibited to an Israelite for marriage, or there is kares barring their way to marriage, there should be no fine due to them.)

Rish Lakish answers: It is written in the Torah: Na’arah, na’arah and ha-na’arah (the ‘hey’ at the beginning of the word is also available for exposition). Once, the word ‘na’arah’ is necessary for itself (ordinary unblemished girls); once to include those girls where one would be liable for violating a mere prohibitory law, and once to include those girls where one would be liable for violating a transgression punishable with kares.

Rav Papa answers: It is written in the Torah: Besulah, besulos, ha-besulos. Once, the word ‘besulah’ is necessary for itself (ordinary unblemished girls); once to include those girls where one would be liable for violating a mere prohibitory law, and once to include those girls where one would be liable for violating a transgression punishable with kares.

The Gemora asks: Why doesn’t Rav Papa learn like Rish Lakish?

The Gemora answers: The word na’arah is necessary to teach us a different halacha, for Abaye said: If one violates a woman and she later dies, he is exempt from paying the fine.

The Gemora asks: Why doesn’t Rish Lakish learn like Rav Papa?

The Gemora answers: The word besulah is necessary to expound a gezeirah shavah between the laws where one violates a girl and where one seduces a girl. If one seduces a girl, the fine is fifty just like the halacha is if he violated her. If one violates a girl, the payment is in shekalim just like the halacha is if he seduced her.

The Gemora concludes that six words are necessary altogether. Two are necessary for itself. One to teach Abaye’s halacha and one for the gezeirah shavah. One to include those girls where one would be liable for violating a mere prohibitory law, and one to include those girls where one would be liable for violating a transgression punishable with kares. (29b)

The Gemora states that our Mishna’s viewpoint excludes the opinion of Shimon Hatimni who maintains that the violator only pays a fine if he violates a woman where there is a possibility where she can become his wife. It also excludes the opinion of Rabbi Shimon ben Menasya who holds that the violator only pays a fine if he violates a woman where she would be qualified for him to keep her as a wife.

The Gemora asks: What is the practical difference between these two opinions?

The Gemora answers: A mamzeres or a nesinah would be the difference between them. Kiddushin would take effect with them, but they cannot remain married.

The Gemora asks: According to Rabbi Akiva who holds that kiddushin does not take effect with women prohibited by a mere prohibition, what would the practical difference between these two opinions?

The Gemora answers: A widow to a Kohen Gadol would be the difference between them. (29b)

[END]

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Did Rav Ashi Deny Knowing Testimony in Beis Din?

There is a known rule throughout Shas that once a person has finished testifying, he cannot go back and alter his testimony. In our Gemora (Kesuvos 20), Rav Ashi denied knowing testimony for Rav Kahana, but later remembered and testified? How could he do so? Didn’t he already testify that he didn’t know? The Hagaos Ashri (#16) states that it is therefore clear that he did not deny knowing testimony in Beis Din. Other Rishonim, however, argue that the rule above is only if someone actually testified regarding events that happened. However, if he says he is not aware of the events and later remembers, this is not called going back and changing what he had said. He simply remembered that he knew testimony.

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Daf Yomi - Kesuvos 20 - Highlights

Conflicting Witnesses

Rav Nachman said: if they were here and other witnesses would contradict them the contradiction would be valid, and we would not pay attention to their testimony as it is contradicted testimony. Not that they (the witnesses in the document) are not here, and if they were here they might even admit, why should we believe them?

Rav Nachman therefore said: we put the pairs of witnesses against each other (cancelling each other out) and leave the money in the hands of its owner, as in the case of Bar Shatya.

Bar Shatya sold some of his possessions, and two witnesses came and testified that he did so when he was insane. Two others that he did so when he was of sound mind. Rav Ashi said: the pairs of witneses are against each other, and we leave the possessions in the hands of Bar Shatya. We only say this if he (person like Bar Shatya) has a chazakah (holding of ownership for an extended time) from his fathers. However, if he does not, we say that he bought it when he was insane and he sold it when he was insane.

Rabbi Avahu said: witnesses can only be made zomimim when they are present. Witnesses can be contradicted even when they are not present. If witnesses are attempted to be made into zomimim but not when they are present, it still counts as a contradiction.

Authenticating Signatures

Mar states: if there are witnesses verifying that the handwriting of witnesses signed on a document is indeed authentic, or this can be verified from a different document that had been questioned and subsequently authenticated by Beis Din, they (the witnesses who say that though this is an authentic signature it was from when they were young etc. see 19b) are not believed. The Gemora asks, this implies that it had to have been questioned, implying that if it was not questioned they are believed.

This is a proof to Rabbi Asi. Rabbi Asi stated: A document cannot be validated through another document, unless the other document had been questioned and was subsequently authenticated by Beis Din.

Nehardai stated: a document cannot be authenticated unless two marriage documents or documents of the sales of fields are produced (with their signatures) and the owner was there for three years without any complaints.

Rabbi Simi bar Ashi added: these other documents must come from a contract involving a party besides the person who wants to verify the present document. Why? Perhaps he forged the third document based on the signatures of witnesses from other documents in his possession. If so, perhaps he will also forge signatures from documents that are in other people’s possession? It is too difficult for a person to copy signatures that he merely saw and does not have the document to copy from.
Jogging a Witness’ Memory

The Beraisa states: a person can write down his testimony on a document, and testify from it even after many years. Rav Huna states: this is only if he indeed remembers it himself. Rabbi Yochanan said: even if he does not remember it himself (but knows that he wrote it).

Rabah says: it is evident from Rabbi Yochanan that if two people knew testimony and one merely forgot it, the other person can remind him.

The Gemora asks: can the person he is testifying for remind him? Rav Chaviva says that he can, and Mar the son of Rav Ashi says that he cannot. The halachah is that he cannot. If the witness is a rabbinic student, he can be reminded.

This is as happened when Rav Ashi knew testimony for Rav Kahana, and Rav Kahana said, “do you remember testimony for me in this matter?” Rav Ashi said he didn’t. Rav Kahana said, “isn’t this what happened?” Rav Ashi said that he didn’t know. However, Rav Ashi later remembered that this is indeed what had happened, and testified to that effect. Rav Ashi saw that Rav Kahana was stunned that he had testified. Rav Ashi told him, “Do you think I relied on your reminder of the events? I reminded myself and fully remembered.”

The Beraisa states: fresh mounds of earth that are close to either a city or a path, whether the mounds are old or new, should be considered impure (containing dead bodies). If they are far away from the city or path, the new ones are considered pure and the old ones are considered impure. What is considered close? Within fifty cubits is close. What is considered old? Within sixty years is old. These are the words of Rabbi Meir. Rabbi Yehuda states: Close refers to the closest, and old means it is not remembered when it was established.

What does the Beraisa mean when it says “city” and “path?” If it refers to actual cities and paths, is there a doubt whether or not it has a status of impurity? Didn’t Reish Lakish say that the sages found a reason to state that all places in Eretz Yisrael that are not known to be impure are not?

Rabbi Zeira explains that a city refers to a city next to a cemetery, while a path refers to the path in a cemetery. The Gemora asks, it makes sense regarding the path of a cemetery, as sometimes twilight arrives and they bury the person in a mound. However, in a city next to a cemetery, everyone is buried in the cemetery! Rabbi Chanina answered that because women bury their dead infants and lepers bury their limbs outside the city, and a woman only goes fifty cubits outside the city as if she will go more people will talk about her. Therefore, there generally is no impurity in other places in Eretz Yisrael.

Rav Chisda says: it is apparent from the law of Rabbi Meir that a person only remembers testimony for sixty years, not more. The Gemora says that this is incorrect. Rabbi Meir was only talking about something which is not upon him to remember. However, when he was specifically made a witness he remembers for even longer.

[END]

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BLACKMAILING FATHER TESTIFIES THAT HE MARRIED OFF HIS MINOR DAUGHTER

The Gemora (Kesuvos 17b – 18a) states: If two witnesses said that they were coerced to testify falsely on account of a threat to their finances, they are not believed.

The Gemora asks: What is the reason for this?

The Gemora answers: It is because that a person is not believed to establish himself as an evil person. (Rashi explains that every witness is assumed to be reliable; by issuing a self-incriminating statement, he will be disqualifying himself from further testimony. Just as a person cannot testify regarding his relative, he may not testify about himself because he is related to himself.)

The following question was raised to the poskim years ago: A man testified in Beis Din that he married off his minor daughter, but he refused to state the identity of this man. His intention was to put pressure on his wife for her to accept a divorce without receiving any alimony payments and to have equal visitation rights for the children. Do we accept his testimony and consider the girl as a married woman?

Rav Eliyahu Pesach Ramnik, Rosh Yeshiva of Ohavei torah in Far Rockaway applied the principle of ‘a person is not believed to establish himself as an evil person’ as the basis for his ruling. He explained: The father, who is testifying that he married off his minor daughter is establishing himself as a wicked person for several different reasons. Firstly, if in truth, he has married her off in order to extort money from his wife, using a mechanism of the Torah in this manner causes a tremendous desecration of Hashem’s name, and if the wife does not concede to his demands, the child will remain an agunah her entire life. This will result in an even bigger chilul Hashem. Secondly, he is transgressing the prohibition of paining another fellow Jew. The pain and the embarrassment that he is causing his wife and daughter to endure is indescribable. Thirdly, the Gemora in Sanhedrin (76a) states that one who marries his daughter to an elderly man transgresses a Biblical prohibition of causing his daughter to sin, since she will not be satisfied in that marriage; certainly in this case, the father will be violating this prohibition, for the daughter does not even know the identity of her true husband. Based on these above reasons, it emerges that by accepting the father’s testimony, he would be rendered a rasha, and therefore, his testimony should not be accepted and his daughter would not be regarded as a married woman.

Rav Yitzchak Zilberstein, in his sefer Chashukei Chemed questions the above conclusion. He cites several Acharonim who rule that when a man has already been established as a rasha regarding other matters, his testimony can still be valid (provided that he is not disqualified from offering testimony) even though it also renders him a rasha. The Chacham Tzvi (responsa 3) rules that if someone has violated a light transgression in our presence, he would still be believed that he has violated an even stricter prohibition. This is because his testimony is not rendering him a rasha, he already has established himself a rahsa. It is for this reason that we will be compelled to accept the father’s testimony that he married off his daughter, for this man has already been established as a rasha. He is desecrating the name of Hashem by using the Torah’s mechanisms for evil purposes and by causing pain and grief to his wife and to his daughter.

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DANCING BEFORE A BRIDE

The Gemora (Kesuvos 17) asks: How should one dance before a bride?, and Beis Shamai says she is to be described as she is, while Beis Hillel opines that she is always to be described as pleasant. Beis Shamai asks Beis Hillel: How is one permitted to one lie? To which Beis Hillel replies, shouldn’t one praise a buyer’s purchase to him? It seems as if Beis Hillel is avoiding the question. On the other hand, how can Beis Shamai just ignore the requirement to judge positively?

The Mishneh Halachos (12:278) suggests that Beis Hillel’s reply was to distinguish between one who asks about the kallah at the beginning (should he even meet her?), versus after they are married. If someone comes to ask about her at the beginning, Beis Hillel would agree that one must speak the truth. To do otherwise would transgress the prohibition against offering bad advice. (See the Gemora in Kesubos 75a-b where not all failings or blemishes are visible.) However, after they are married, to speak the truth (where the truth is not pleasant) would produce nothing but pain. Here, Beis Hillel argues, one must judge positively that there is something pleasant about her. For this reason, Beis Hillel used a comparison to a buyer, after he had purchased.

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Must a Prospective Bride Inform the Groom regarding her Absence of Blood?

The following question was posed to Reb Moshe Feinstein: There was a girl who was over twenty years old who had pubic hairs; however, she did not commence menstruating yet. Some doctors told her that when she gets married and cohabits with her husband, she will begin her cycle and she will have the ability to bear children. Is it permitted for her father to arrange a match for her without informing the groom of the situation? Is there a concern that this will be regarded as a mistaken kiddushin or not?

Reb Moshe (E”H, III, 27) addresses the question and cites proof from our Gemora (Kesuvos 10b).

There was a man who came before Rabban Gamliel the Elder and said, “Rebbi, I have had marital relations but did not find any blood.” His wife said, “Rebbi, I am from the Durkati family who does not have either menstrual blood nor virgin blood.” Rabban Gamliel investigated regarding her relatives, and found that she was correct. He said “go and take your purchase (wife, as she indeed was a virgin), praised are you who have merited (a wife) from the house of Durkati.” What does Durkati mean? A cut-off (from these bloods) generation.

Rabbi Chanina said that Rabban Gamliel comforted this man with illogical comfort. This is because Rabbi Chiya taught that just as yeast is good for dough, so is blood is good for a woman (as it causes her to become pregnant quicker).” The Braisa also says in the name of Rabbi Meir that any women who has much blood, has many children.

It is said that Rabbi Yirmiyah bar Aba stated (that the phraseology of go and take your purchase in the case immediately above means) “acquire your purchase,” he said to him. Rabbi Yossi bar Avin says “you are obligated in your purchase,” he said to him. The opinion that he meant “you are obligated in your purchase” is understandable according to the words of Rabbi Chanina (that this wasn’t great as his wife couldn’t have so many children, nor get pregnant quickly). However, according to the opinion that says “acquire,” what kind of meritorious acquisition is this (that he should use a term referring to both acquiring and implying that it is a great merit to do so)? The Gemora answers, that the husband will never have a doubt whether or not his wife is a Nidah.

We see that even according To Rabbi Yosi bar Avin who holds that the absence of blood can prevent a woman from bearing children, nevertheless, the kiddushin is valid, and not regarded as a mistake even though it is detrimental to him.

It is evident that the possibility exists that a woman without blood can give birth, although she will not bear many children. Since she is fit to have children, and many men are not particular to have many children and they are also not particular if she becomes pregnant immediately or not, it is not regarded as a mistaken kiddushin.

In our case, where there are doctors that say that her menstrual cycle will return and she will have the ability to bear many children, the father is not obligated to reveal her blemish to the groom’s family. Reb Moshe adds: The father and the bride should resolve that if four years goes by and she doesn’t become pregnant and she does not begin to menstruate, she should accept her bill of divorce without a hassle and without and monetary claims on the husband.

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Daf Yomi - Kesuvos 10 - Highlights

Conflicting Decrees

It is said that Rav Nachman said that Shmuel said in the name of Rebbi Shimon Ben Elazar that the sages established decreed for Jewish girls that a virgin should receive (a kesuvah containing a guarantee that she will receive in case of divorce or widowhood) two hundred (zuz). A widow should receive one hundred (zuz). They (the sages) also believed the groom to say that he found an open opening (and he could thereby cause her to lose the two hundred zuz). If so, what did the sages help with their decree (of establishing this guaranteed money in her kesuvah)?

Rava answered that the sages decree was still helpful, as it is established that a person will not bother to prepare a wedding feast and lose it (for a marriage that will only last a couple days). [Accordingly, we do not assume that the groom will make this claim unless it is true.] (10a)

Rabban Shimon ben Gamilel’s Opinion: Torah Law
or Rabbinic Decree?

The Braisa states that since this is a fine established by the sages, she can only demand collection from his worst property. The Gemora asks, what is the fine (that is given to the groom, what did he do wrong)? It must mean to say that since this is a decree of the sages, she can only demand collection from his worst property. Rabban Shimon ben Gamliel says that the money in the kesuvah is a Torah law.

Did Rabban Shimon ben Gamliel actually say this? Doesn’t the Braisa state that the passuk states “He should take money like the amount given to virgins.” The Braisa continues that this teaches that the amount (given to the father of a seduced girl) should be equal to the amount given to virgins, and the amount given to virgins must be equal to the amount given to this person (the father of the seduced girl). The sages understood from this passuk that it is a reliable source that the concept of money guaranteed in a kesuvah is Torah law. Rabban Shimon ben Gamliel argued that the concept of kesuvah is not Torah law but rather from the words of the scribes (sages).

The Gemora answers that the opinions in this Braisa must be switched around. The Gemora asks, what do you see that makes you switch the opinions of the latter Braisa? Why not switch the opinions of the previous Braisa (and say Rabban Gamliel indeed holds kesuvah is a decree of the sages)?

The Gemora answers that we see from another source that Rabban Gamliel holds that the concept of kesuvah is based in Torah law. The Mishna (106b) states that Rabban Shimon ben Gamliel says that he must pay her with Kaputkiya currency. [Rashi explains that Kaputkiya currency was better than the currency of Eretz Yisrael. Rabban Shimon said that if a person married there this meant that his kesuvah must be a lean that is linked to Kaputkiya currency. The Rabbanan there argue and allow him to pay even in Eretz Yisrael currency, as long as the divorce took place in Eretz Yisrael. They seemingly understand that the sages allowed the monies they instituted to be paid in the currency of the place of marriage or divorce, which means that they did not treat it like a loan. This implies that Rabban Shimon treated the monies in the kesuvah like the Torah treats a loan, and he therefore must hold the concept of monies in the kesuvah is Torah law.]

Alternatively, the Gemora answers that the entire latter Mishna is Rabban Shimon, and it is missing some words and is supposed to be read in the following way. The sages understood from this passuk that it is a reliable source that the concept of money guaranteed in a kesuvah is Torah law. However, the concept of kesuvah for a widow is not Torah law, but rather from the words of the scribes (sages),as Rabban Shimon ben Gamliel said that the concept of kesuvah of a widow is not a Torah law but rather from the words of the sages. (10a)
Rav Nachman’s Ruling on the Claim of Finding an Open Opening

There was a man who came before Rav Nachman and said that he had found an open opening. Rav Nachman said, “give him lashes with thorny palm fronds, as he had those (prostitutes) from Birchasa who were struck by him.”[Rav Nachman meant that if he knew how to determine this, he must have been someone who knew what this felt like because of prior experience with prostitutes for which he deserves lashes.]

The Gemora asks, doesn’t Rav Nachman himself say that this claim is believed? The Gemora answers that he indeed says the claim is believed, but he is also given lashes (for knowing that he has a claim)! Rav Achai answered, that when Rav Nachman said he is believed he meant when he was already married (and therefore does not receive lashes, as he could know this from past permitted experience). This story was talking about someone who was never previously married. (10a)
Other Rulings in this Case

There was a man who came before Rabban Gamliel and said that he had found an open opening. Rabban Gamliel said, “perhaps you turned to the side (and she is actually still a virgin). I will give you a parable, to what is this compared to? To a person who was walking in the darkness of night, (and when he reaches the door of his house and there is an obstacle preventing the door from opening normally). If he turns, it is as if he found it open (and he doesn’t realize that he would not have been able to open the door normally). If he does not turn (and he tries to go in normally) he will find it locked.

Others say that Rabban Gamliel replied to the man that perhaps you purposely turned, and uprooted the door and the lock. I will give you a parable, to what is this compared to? To a person who was walking in the darkness of night, (and when he reaches the door of his house and there is an obstacle preventing the door from opening normally). If he purposely turns (forcefully), it is as if he found it open (and he doesn’t realize that he was the one who knocked away the barrier). If he does not turn (and he tries to go in normally) he will find it locked. (10a)
Ways to Determine Virginity

There was a man who came before Rabban Gamliel bar Rebbi and said that he had had marital relations and did not find any blood. His wife said, “Rebbi, I was a virgin.” Rabban Gamliel said, “bring me the sheet.” They brought him the sheet, he soaked it in water and laundered it, and he found on it many drops of blood. He replied to the man “go and take your purchase (wife, as she indeed was a virgin).”

Huna Mar the son of Rava from Parzakya said to Rav Ashi that we should also do this test (if this claim is brought before us). He answered that our ironing (that they used to do with glass stone, see Rashi) is like their laundering. If you will say that we should therefore iron (the sheet), the glass will take away the spots.

There was a man who came before Rabban Gamliel and said that he had had marital relations and did not find any blood. His wife said, “Rebbi, I was a virgin.” Rabban Gamliel said, “bring me two maidservants, one who is a virgin and one who is not, and sit them down on a barrel of wine. The one who is not has the smell of the wine wafting (in that area, as it is not closed), and the one who is a virgin does not. This women too (can be tested to determine her status). They sat her down on the barrel of wine and the smell did not waft. He said “go and take your purchase (wife, as she indeed was a virgin).”

The Gemora asks, why didn’t he just check this with her originally (why did he also do this with two maidservants)? The Gemora answers that he had heard this tradition, but he never saw it done. He therefore thought that perhaps the tradition was inaccurate. It was also not normal to denigrate Jewish girls (for this purpose, so he ordered that they bring maidservants who were not Jewish).

There was a man who came before Rabban Gamliel the Elder and said, “Rebbi, I have had marital relations but did not find any blood.” His wife said, “Rebbi, I am from the Durkati family who does not have either menstrual blood nor virgin blood.” Rabban Gamliel investigated regarding her relatives, and found that she was correct. He said “go and take your purchase (wife, as she indeed was a virgin), praised are you who have merited (a wife) from the house of Durkati.” What does Durkati mean? A cut-off (from these bloods) generation.

Rabbi Chanina said that Rabban Gamliel comforted this man with illogical comfort. This is because Rabbi Chiya taught that just as yeast is good for dough, so is blood is good for a woman (as it causes her to become pregnant quicker).” The Braisa also says in the name of Rabbi Meir that any women who has much blood, has many children.

It is said that Rabbi Yirmiyah bar Aba stated (that the phraseology of go and take your purchase in the case immediately above means) “acquire your purchase,” he said to him. Rabbi Yossi bar Avin says “you are obligated in your purchase,” he said to him. The opinion that he meant “you are obligated in your purchase” is understandable according to the words of Rabbi Chanina (that this wasn’t great as his wife couldn’t have so many children, nor get pregnant quickly). However, according to the opinion that says “acquire,” what kind of meritorious acquisition is this (that he should use a term referring to both acquiring and implying that it is a great merit to do so)? The Gemora answers, that the husband will never have a doubt whether or not his wife is a Nidah.

There was a man who came before Rebbi and said, “Rebbi, I had marital relations and did not find blood.” His wife said, “Rebbi, I was still a virgin but it was a year of famine.” Rebbi saw that their faces were black from famine. He commanded that they should be put into the bathhouse, he fed them, and gave them to drink, and then had them enter a room. The husband then had marital relations and found blood. Rebbi said to him, “acquire your purchase.” Rebbi said about them the passuk “their skin was stuck to themselves, dry like wood.” (10a – 10b)
Mishna

The kesuvah of a virgin is for two hundred (Zuz), and that of a widow for one hundred (Zuz). A virgin widow, divorcee, and woman who received chalitzah who were only formerly betrothed receive a kesuvah of two hundred and her husband has the ability to claim that he did not find that she was a virgin. (10b)
The Word “Almanah”

Why does the Mishna call the opposite of a virgin an “Almanah” – “widow” (see Chasam Sofer who explains that the correct opposite would seemingly be “Beulah” – “one who has had marital relations)? Rav Chana from Bagdas answers that this is an acronym for “Al Shem Manah” -- “due to the one hundred (that she gets for her kesuvah).” [This is why the Mishna stated “Almanah” and not “Beulah” as the word itself hints that she only receives one hundred.]

What about a widow who was merely betrothed (she receives two hundred)? The Gemora answers that since a regular widow from marriage receives one hundred, a widow from betrothal is also called an Almanah (even though she receives two hundred). What is the reason that the Torah calls a widow an “Almanah” (the Torah never talks about a kesuvah, and it is argued above whether or not it is even a Torah concept)? The Gemora answers, the Torah called a widow an “Almanah” as in the future the Rabbanan would decree that a widow should receive a kesuvah of one hundred.

The Gemora asks, is there a pasuk in the Torah that is based on future events? The Gemora answers that there is. This is evident from the passuk in Bereishis “and the third river is called Chidekel, it is the one that goes to the east of Ashur.” Rav Yosef taught that Ashur is a city called Slika. Was this city extant during the time period discussed in the pesukim (the creation of the world)? It must be that it was said in the context of the future. Accordingly, we can also say that the Torah’s name for a “widow” - “Almanah” is based on the future. (10b)

Other Interesting Words and their Characteristics

Rav Chana from Bagdas also says that dew waters, saturates, fertilizes, gives a shine (to the fruit), and helps things grow. Rava bar Rebbi Yishmael says, and some say Rav Yeimar bar Shalmiya says, what is the passuk that tells us this? The passuk “its rows are saturated to allow its rows (to give bounty for people, see Rashi in Tehilim), with dew it will moisten (alluding to fertilization), its produce will be blessed (shine and help grow).”

Rabbi Elazar states that the mizbe’ach (altar) “meizi’ach” – “atones,” supplies, causes love and “mechaper” – “atonement.” The Gemora asks, aren’t “meizi’ach” and “mechaper” redundant, as they both mean atonement? The Gemora answers that “meizi’ach” means that it atones to take away bad decrees from Bnei Yisrael. “Mechaper” means that it atones for their sins.

Rav Chana from Bagdas also stated that dates make a person, warm, full, loosen his bowls, give him strength, and do not make him too finicky. Rav says that if one eats dates he should not rule on halachic matters. The Gemora asks from a Braisa that states that dates are good to eat (after eating one’s meal) in the morning and at night, in the early afternoon they are bad, and in the late afternoon there is nothing as good as them. They take away three problems: worry, stomach sickness, and having to go the bathroom for too long. [This seemingly indicates that a person should be able to rule halachic matters after eating them.]

The Gemora answers, did we say they are not good? They are very good! For a little while, however, they can confuse one’s mind in a matter similar to wine, in the same manner as Mar stated that someone who drinks a Revi’is (86-150 ml) of wine should not rule on halachic matters.

Alternatively, the Gemora answers that this is not a question. One (statement of Rav) is before eating and one (Braisa) is regarding after eating. This is as Abaye said that his foster mother told him that eating dates before a meal is like an ax to a palm tree, and eating dates after a meal is like the bolt on a door.

Rava states that the word “Dasha” – “door” is an acronym for “Derech Sham” – “that way.” “Darga” – “step,” Rava states, is an acronym for “Derech Gag” – “the way to the roof.” “Purya” – “bed,” Rav Papa says, is an acronym for “she’parin v’ravin aleha” – “that people are fruitful and multiple on it.” Rav Nachman bar Yitzchak states that the word “aylonis” is an acronym for “A ram that cannot give birth.” (10b – 11a)

[END]

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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.

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Daf Yomi - Kesuvos 9 - Highlights

I Found an Open Entrance

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.

The Gemora questions this ruling: Why should she become forbidden to him? It is a double doubt if she should be forbidden to him. It is uncertain whether she cohabited with another man during her betrothal to him (in which case she is regarded as an adulteress who is forbidden to live with her husband) or perhaps it occurred before she was married to him. And even if you say that she cohabited with another man during her betrothal to him, there is another doubt whether she was violated or by her own free will.

The Gemora answers: Rabbi Elozar is referring to a case where she is the wife of a Kohen (in which case, she will be forbidden to the husband even if she was violated). Alternatively, he can be referring to the wife of a Yisroel, but the case is where her father accepted kiddushin for her when she was under three years old and one day (in which case, she will be forbidden to her husband, since she obviously cohabited while she was married to him, for if it occurred before she was three, her virginity would not be affected).

The Gemora asks: What is the necessity for Rabbi Elozar’s ruling? Didn’t we learn Rabbi Elozar’s main point (that a man may, by his own testimony, may prohibit for himself a thing or a person otherwise permitted to him) in the following Mishna: If a man says to a woman, “I betrothed you,” and she says, “You have not betrothed me,” she is permitted to marry his relatives, but he is prohibited to marry her relatives.

The Gemora answers: We might have thought that only in the Mishna’s case does one become forbidden by his own words because he is certain regarding his claim, but in Rabbi Elozar’s case, where his claim is not a certainty, for he really does not know if he found an open entrance or not, perhaps she does not become forbidden to him; Rabbi Elozar teaches us that she is indeed forbidden to him.

The Gemora asks: Did Rabbi Elozar really say that she is forbidden to him? But surely, Rabbi Elozar had said: A wife does not become forbidden to her husband except in the case when there is a warning and seclusion (if the husband warned the wife not to seclude herself with a specific man and she disregards his warning and secludes herself with that man, she becomes forbidden to her husband), and as we find in the occurrence that happened (between King David and Bas-sheva)? (It is evident that Rabbi Elozar does not prohibit the wife to her husband just based on his claim that he didn’t find signs of her virginity.)

The Gemora questions the last statement: Was there a warning and seclusion by the incident with King David and Bas-sheva? And furthermore, was Bas-sheva rendered forbidden to her husband?

The Gemora explains: This is no difficulty, for this is what Rabbi Elozar meant to say: A wife does not become forbidden to her husband except in the case when there is a warning and seclusion, and this we learned from the occurrence that happened, where there was no warning and seclusion, and that is why Bas-sheva was not forbidden to her husband.

Nevertheless, the original question remains: She is only forbidden to her husband if there is a warning and a seclusion, but she would not be rendered forbidden based on his testimony that he found an open entrance.

The Gemora answers: Rabbi Elozar’s statement cannot be taken literally, for will she only be forbidden to her husband if there is a warning and a seclusion, bit if witnesses testify that she committed adultery, will she not be rendered forbidden? Obviously, yes! Rather, the following is what Rabbi Elozar meant: A woman will not be rendered forbidden to her husband through the testimony of one witness, but rather, only through the testimony of two witnesses. And a warning and seclusion even with through one witness (on the seclusion) will render her forbidden. A husband’s claim that he found an open entrance is regarded as if there would be two witnesses (because he is certain regarding his claim). And why was Bas-sheva not rendered forbidden to David (the adulteress becomes forbidden to the adulterer)? It is because she was violated (it was without her consent, and in such cases, the woman would be permitted to her husband, therefore, she is permitted to the adulterer as well).

Alternatively, the Gemora answers according to what Rabbi Shmuel bar Nachmeini said in the name of Rabbi Yonasan: Everyone who goes out into the war of the House of David writes for his wife a deed of divorce beforehand (so that in case he falls in battle his wife should be free to marry without the necessity of chalitzah. The get would in that case take effect retroactively from the date of its writing; this is why she did not become forbidden to her husband; she did not commit adultery). (8b – 9b)

Support from the Mishna

Abaye cites support for Rabbi Elozar’s ruling from our Mishna: The Mishna had stated: A virgin is married on Wednesday. We may infer from here that she is only married on Wednesday, but not on Thursday. What is the reason for this? It is because we are concerned that his anger will subside (by waiting for the next time that Beis Din would be in session; they were in session in the big cities on Monday and Thursday; if a husband, who got married on Wednesday, will have a claim regarding his wife’s virginity, he would be able to go early the next morning to the Beis Din). What were the Rabbis concerned about? If it was regarding her kesuvah, what is the reason to concern ourselves with that; let the husband give her the kesuvah (if he so desires)? Rather, it must be that she is forbidden to him. Isn’t the Mishna referring to a case where the husband claimed that he found an open entrance (and this would prove that the wife is forbidden to him based on such a claim)?

The Gemora rejects the proof: Our Mishna could be discussing a case where he claimed that he did not find any blood (only in this case, where his claim is a more certain one, will she be rendered forbidden to him). (9b)

Deprive her of the Kesuvah

Rav Yehudah said in the name of Shmuel: 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 cause her to lose her kesuvah.

Rav Yosef asks: What is the necessity of Shmuel’s ruling? Have we not learned this principle from the following Mishna: One who eats at his father-in-law's house (between the time of betrothal and the time of marriage) in Judaea (where this was common practice) without witnesses, cannot raise the claim (after the marriage) regarding his bride’s virginity, because he has secluded himself with her (and we suspect that he might have had intimate relations with his bride). The Gemora infers from here that it is only in Judaea that he cannot raise this claim, but in the Galilee (where it was not customary for the husband to seclude himself with the bride before they were married), he can raise it. Regarding what, was his claim? If his intention was to render her forbidden to him, why should he not be able to raise this claim in Judaea? (If he is sure that he has not been intimate with her during the time of betrothal and he charges her with unfaithfulness, he renders her, by the mere charge, forbidden to him?) It is evident that his claim is to cause her to lose her kesuvah. Isn’t the Mishna referring to a case where the husband claimed that he found an open entrance (and this would prove that he is believed to cause her to lose her kesuvah based on such a claim)?

The Gemora rejects the proof: The Mishna could be discussing a case where he claimed that he did not find any blood (only in this case, where his claim is a more certain one, will she lose her kesuvah). (9b)

[END]

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Daf Yomi - Kesuvos 9 - Highlights

I Found an Open Entrance

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.

The Gemora questions this ruling: Why should she become forbidden to him? It is a double doubt if she should be forbidden to him. It is uncertain whether she cohabited with another man during her betrothal to him (in which case she is regarded as an adulteress who is forbidden to live with her husband) or perhaps it occurred before she was married to him. And even if you say that she cohabited with another man during her betrothal to him, there is another doubt whether she was violated or by her own free will.

The Gemora answers: Rabbi Elozar is referring to a case where she is the wife of a Kohen (in which case, she will be forbidden to the husband even if she was violated). Alternatively, he can be referring to the wife of a Yisroel, but the case is where her father accepted kiddushin for her when she was under three years old and one day (in which case, she will be forbidden to her husband, since she obviously cohabited while she was married to him, for if it occurred before she was three, her virginity would not be affected).

The Gemora asks: What is the necessity for Rabbi Elozar’s ruling? Didn’t we learn Rabbi Elozar’s main point (that a man may, by his own testimony, may prohibit for himself a thing or a person otherwise permitted to him) in the following Mishna: If a man says to a woman, “I betrothed you,” and she says, “You have not betrothed me,” she is permitted to marry his relatives, but he is prohibited to marry her relatives.

The Gemora answers: We might have thought that only in the Mishna’s case does one become forbidden by his own words because he is certain regarding his claim, but in Rabbi Elozar’s case, where his claim is not a certainty, for he really does not know if he found an open entrance or not, perhaps she does not become forbidden to him; Rabbi Elozar teaches us that she is indeed forbidden to him.

The Gemora asks: Did Rabbi Elozar really say that she is forbidden to him? But surely, Rabbi Elozar had said: A wife does not become forbidden to her husband except in the case when there is a warning and seclusion (if the husband warned the wife not to seclude herself with a specific man and she disregards his warning and secludes herself with that man, she becomes forbidden to her husband), and as we find in the occurrence that happened (between King David and Bas-sheva)? (It is evident that Rabbi Elozar does not prohibit the wife to her husband just based on his claim that he didn’t find signs of her virginity.)

The Gemora questions the last statement: Was there a warning and seclusion by the incident with King David and Bas-sheva? And furthermore, was Bas-sheva rendered forbidden to her husband?

The Gemora explains: This is no difficulty, for this is what Rabbi Elozar meant to say: A wife does not become forbidden to her husband except in the case when there is a warning and seclusion, and this we learned from the occurrence that happened, where there was no warning and seclusion, and that is why Bas-sheva was not forbidden to her husband.

Nevertheless, the original question remains: She is only forbidden to her husband if there is a warning and a seclusion, but she would not be rendered forbidden based on his testimony that he found an open entrance.

The Gemora answers: Rabbi Elozar’s statement cannot be taken literally, for will she only be forbidden to her husband if there is a warning and a seclusion, bit if witnesses testify that she committed adultery, will she not be rendered forbidden? Obviously, yes! Rather, the following is what Rabbi Elozar meant: A woman will not be rendered forbidden to her husband through the testimony of one witness, but rather, only through the testimony of two witnesses. And a warning and seclusion even with through one witness (on the seclusion) will render her forbidden. A husband’s claim that he found an open entrance is regarded as if there would be two witnesses (because he is certain regarding his claim). And why was Bas-sheva not rendered forbidden to her husband? It is because she was violated (it was without her consent).

Alternatively, the Gemora answers according to what Rabbi Shmuel bar Nachmeini said in the name of Rabbi Yonasan: Everyone who goes out into the war of the House of David writes for his wife a deed of divorce beforehand (so that in case he falls in battle his wife should be free to marry without the necessity of chalitzah. The get would in that case take effect retroactively from the date of its writing; this is why she did not become forbidden to her husband; she did not commit adultery). (8b – 9b)

Support from the Mishna

Abaye cites support for Rabbi Elozar’s ruling from our Mishna: The Mishna had stated: A virgin is married on Wednesday. We may infer from here that she is only married on Wednesday, but not on Thursday. What is the reason for this? It is because we are concerned that his anger will subside (by waiting for the next time that Beis Din would be in session; they were in session in the big cities on Monday and Thursday; if a husband, who got married on Wednesday, will have a claim regarding his wife’s virginity, he would be able to go early the next morning to the Beis Din). What were the Rabbis concerned about? If it was regarding her kesuvah, what is the reason to concern ourselves with that; let the husband give her the kesuvah (if he so desires)? Rather, it must be that she is forbidden to him. Isn’t the Mishna referring to a case where the husband claimed that he found an open entrance (and this would prove that the wife is forbidden to him based on such a claim)?

The Gemora rejects the proof: Our Mishna could be discussing a case where he claimed that he did not find any blood (only in this case, where his claim is a more certain one, will she be rendered forbidden to him). (9b)

Deprive her of the Kesuvah

Rav Yehudah said in the name of Shmuel: 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 cause her to lose her kesuvah.

Rav Yosef asks: What is the necessity of Shmuel’s ruling? Have we not learned this principle from the following Mishna: One who eats at his father-in-law's house (between the time of betrothal and the time of marriage) in Judaea (where this was common practice) without witnesses, cannot raise the claim (after the marriage) regarding his bride’s virginity, because he has secluded himself with her (and we suspect that he might have had intimate relations with his bride). The Gemora infers from here that it is only in Judaea that he cannot raise this claim, but in the Galilee (where it was not customary for the husband to seclude himself with the bride before they were married), he can raise it. Regarding what, was his claim? If his intention was to render her forbidden to him, why should he not be able to raise this claim in Judaea? (If he is sure that he has not been intimate with her during the time of betrothal and he charges her with unfaithfulness, he renders her, by the mere charge, forbidden to him?) It is evident that his claim is to cause her to lose her kesuvah. Isn’t the Mishna referring to a case where the husband claimed that he found an open entrance (and this would prove that he is believed to cause her to lose her kesuvah based on such a claim)?

The Gemora rejects the proof: The Mishna could be discussing a case where he claimed that he did not find any blood (only in this case, where his claim is a more certain one, will she lose her kesuvah). (9b)

[END]

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