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Kesuvos, 9

1) THE SUGYA OF "PESACH PASU'ACH"
Rebbi Elazar states that if a newly married husband comes to Beis Din claiming "Pesach Pasu'ach Matzasi" -- that he found an "open aperture" and that his wife is not a Besulah -- he is believed to prohibit her to himself. The Gemara asks why he should be believed -- it is a "Sfek Sfeika," as follows: First, there is a Safek whether she was defiled while betrothed to him. Second, even if she was defiled was betrothed to him, perhaps it was against her will (b'Ones), and therefore we should be lenient.

The Gemara answers that Rebbi Elazar is referring to the specific case of the wife of a Kohen ("Eshes Kohen"), in which case there is only one Safek -- whether or not she was betrothed to him at the time she was defiled, since the wife of a Kohen becomes prohibited to her husband whenever she has relations with another man, even b'Ones. Alternatively, Rebbi Elazar is referring to the specific case of a woman who was betrothed when she was under the age of three ("Pechusah mi'Bas Shalosh"), and thus the only Safek is whether it was b'Ones or b'Ratzon (she was definitely betrothed to him at the time that it took place, though).

The various points of this Gemara have generated extensive discussion among the Rishonim and the Acharonim. We will briefly discuss a few of these points.

[I] SFEK SFEIKA IN RESHUS HA'YACHID

QUESTION: The Gemara tells us that we are lenient in the case of a Sfek Sfeika that involves a question whether a woman is permitted to live with her husband. There is a principle in Taharos that "Safek Tum'ah b'Reshus ha'Yachid, Tamei" -- any Safek in Reshus ha'Yachid is deemed to be Tamei. The Gemara in Sotah (28a) derives this principle from the Isur of a Safek Sotah, where the woman is Asur to her husband even though there is a Safek whether she defiled herself. When the woman secluded herself ("Stirah") with another man after being warned not to ("Kinuy"), she is a Safek Sotah, since we do not know whether she committed adultery or not. The Torah teaches that in such a case, she is Asurah mi'Safek. The Gemara derives from the verses of Safek Sotah we derive that any Safek Tum'ah in Reshus ha'Yachid is Tamei as well. (Our doubt about the actions of the Safek Sotah arose in a Reshus ha'Yachid, a private place. It arose in a place where only she and the suspected adulterer were present with no one else.)

The Mishnah in Taharos (6:4) says that because of this principle, even if there are four or five Sfeikos involved (Sfek-Sfek-Sfeika), we are Machmir in Reshus ha'Yachid. (That is, each Safek, on an individual basis, is judged Tamei, until no more Sfeikos remain.)

If the entire source for the Halachah of Safek Tum'ah in Reshus ha'Yachid is Safek Sotah, it seems clear that the former cannot be more stringent than the latter. Why, then, does the Gemara say that in the case of "Pesach Pasu'ach" the woman is permitted when there is a Sfek Sfeika? Since all Sfeikos in Reshus ha'Yachid are deemed Tamei, in this case, too, the woman should be Asur because all of the Sfeikos are judged Tamei! (SHITAH MEKUBETZES)

ANSWERS: The SHITAH MEKUBETZES answers that we only say that a Sfek Sfeika is Tamei in Reshus ha'Yachid when "Huchzak Sham Tum'ah" -- when there is (or was) an established source of Tum'ah there. If we have not established that there is any object that can be Metamei there in the first place, then a Safek Tum'ah in Reshus ha'Yachid can be Tahor. (See MISHNAH ACHARONAH Taharos, end of 3:6. Even though the Mishnah in Taharos (6:4) counts as one of the Sfeikos a case where one entered a house and there was a Safek if the Tum'ah was there or was not there, the Mishnah is referring to a case where there definitely was an item of Tum'ah, and the question is whether that item of Tum'ah was in this house or in another house.)

RABEINU CHAIM HA'LEVI (Hilchos Yibum 6:19) writes that even though the Tum'ah of the woman is compared to the Tum'ah of a Mes, that is only in the case of a woman who secluded herself with a man after Kinuy. Otherwise, any Safek is treated like a normal Safek Isur, and not like a Safek Tum'ah in Reshus ha'Yachid. This logic is based on the same principle as that proposed by the Shitah Mekubetzes, that it is only when we know for sure that there was Tum'ah in a given place must we be Machmir. In the case of a woman being Mezanah, the only time we consider it as though there is definitely Tum'ah present is when there was Stirah preceded by Kinuy. Since she was specifically warned not to seclude herself with this man and she did so anyway, we have "strong grounds" to suspect her of disloyalty to her husband, and it is considered as though there is Tum'ah present.

QUESTION: The RASHASH asks a basic question about the Safek whether the wife was Mezaneh before or after the Eirusin ("Tachtav or Eino Tachtav"). Why don't we simply follow the principle of "Rov" and assume that the Be'ilah occurred during the longer of the two time-periods! That is to say, if she was unmarried for most of her life, we should assume that the Be'ilah occurred during the time period when she was unmarried!

ANSWER: We cannot apply a "Rov" to time. There is a general principle in the laws of "Rov" that when the subject of the doubt involved is "Kavu'a" -- that is, where the Safek arises about the status of an object that is immobile and established in its place -- "Rov" does *not* apply. Therefore, when it comes to a question of which day an act occurred on, we cannot apply "Rov" to days and say that certain days are in the majority and thus the act happened on those days. (In other words, Rov can only determine what person or object *did* an act, not *to whom* the act was done or *when* it was done.)

QUESTION: In the two cases of Eshes Kohen and Pechusah mi'Bas Shalosh, why do we prohibit the woman out of doubt? We should permit her out of doubt, based on the Chazakah that she was permitted to her husband before the moment of the doubt. Since, before the Be'ilah took place, she was permitted to her husband, the rules of "Chazakah" should allow us to assume that she is presently permitted to him as well! (TOSFOS)

ANSWERS:

(a) Regarding the wife of a Kohen, Tosfos answers that although she has a "Chazakah d'Me'ikara" that until now she was permitted to her husband (and we assume that she became a Be'ulah before becoming betrothed to him), there is another Chazakah contradicting that Chazakah. She has a "Chezkas ha'Guf" that tells us that she was originally a Besulah and that we must assume that she became a Be'ulah at the latest possible moment. This second Chazakah tells us that she was Tachtav, betrothed to him, when she became a Be'ulah, and she should be prohibited to him. Tosfos explains that because of these contradicting Chazakos, the Safek remains a Safek and she is prohibited to him.

The PNEI YEHOSHUA questions the answer of Tosfos. We find in Nidah (2b) that when an object changes from one status to another, the "Chazakah d'Me'ikara" allows us to assume that the change in status occurred at the latest possible moment *only* if there are no other Chazakos involved. If, however, there are additional Chazakos involved, such as a Chazakah that tells us that she is *permitted* to her husband, that Chazakah combines with the Chazakah d'Hashta (in our case, that she *no longer* is a Besulah) to override the Chazakah d'Me'ikara (that says she was a Besulah until she was betrothed to him). This is known as "Tarei l'Rei'usa." If so, when the Chezkas Besulah is challenged by a Chazakah that she was permitted until now to her husband, the latter should override the former, and she should be permitted to her husband the Kohen!

The Rishonim and Acharonim address this problem and offer a number of solutions:

1. The TOSFOS HA'ROSH explains that the Gemara in Nidah which says that a "Chazakah d'Me'ikara" is overruled by a "Chazakah d'Hashta" combined with another Chazakah ("Tartei l'Rei'usa") is referring to a very specific case -- the case of a person who immersed in a Mikvah which was later found to have an insufficient amount of water. Since the water seeps out of the Mikvah slowly, it takes a long time for the water level to fall below the minimum level. Therefore, the "Chazakah d'Me'ikara" that says that since the Mikvah was valid at an earlier time we assume that it started to lose its water at the most recent time (and thus at the moment the person immersed in it, it had enough water) is a weak Chazakah, since the Mikvah probably started to lose water earlier, since the water seeps out slowly. That is the only reason that the Chazakah d'Me'ikara can be overridden in that case. Normally, though, a Tartei l'Rei'usa does not override a Chazakah d'Me'ikara.

This is indeed one opinion cited in Tosfos in Nidah (2b) and in Chulin (10a). However, Tosfos also cites other opinions that "Tartei l'Rei'usa" applies in *all* cases. How will that opinion explain our Sugya?

2. The RAMBAN (and REBBI AKIVA EIGER) suggest that the Chazakah that she is a Besulah will *not* permit the woman to her husband, since there is a "Sfek Sfeika l'Isur" conflicting with the Chazakah. That is, this case is not a normal case of a Safek in which a Chazakah could determine how we should rule, but there is a double doubt, so to speak, for making her Asur: (1) Even if she became a Be'ulah before the marriage, she still might be Asur, because perhaps she lived with a person who makes her Pesulah to a Kohen; (2) and even if she lived with the type of person who does not invalidate a Besulah to a Kohen, it might have happened *after* she was married, when *any* person makes her Pesulah to a Kohen.

(Tosfos does not mention this logic because he wants to show that the Eshes Kohen is Asurah even in a city where most of the people are Kesherim and would not invalidate her to a Kohen, RITVA.)

3. REBBI AKIVA EIGER suggests that the logic of "Tartei l'Rei'usa" (a "Chazakah d'Hashta" combined with another Chazakah) cannot apply in this case.

"Tartei l'Rei'usa" can override the "Chazakah d'Me'ikara" only when the "Chazakah d'Hashta" can combine with the second Chazakah by *supporting* what the other Chazakah proves. For example, in the case of the Mikvah found to be missing water, the "Chazakah d'Hashta" says that the person is Tamei because there is not enough water now in the Mikvah to make him Tahor. That Chazakah supports the "Chezkas ha'Guf" that the person is Tamei now and that he should remain Tamei, since he did not immerse in a valid Mikvah.

In the case of Eshes Kohen, though, the additional Chazakah is that she was permitted to a Kohen until now. The "Chazakah d'Hashta" (which leads us to conclude that the Be'ilah occurred before the Erusin) does *not* support the Chazakah that she is permitted to a Kohen, because on the contrary -- that Chazakah would be reinforced if she had not had Be'ilah *at all* before the Erusin! The "Chazakah d'Hashta" is not making her permitted, it is just circumventing the Isur that is created by the "Chazakah d'Me'ikara." By telling us that the Be'ilah occurred earlier, the "Chazakah d'Hashta" avoids the Isur that would have come about had we assumed that the Be'ilah occurred after Eirusin because of the "Chazakah d'Me'ikara."

(It would seem that Rebbi Akiva Eiger's argument could be used to propose that "Tartei l'Rei'usa" can only be applied *l'Chumra*, to create an Isur based on an additional Chazakah of Isur, but not to create a Heter based on an additional Chazakah of Heter.)

(b) In the case of Pechusah mi'Bas Shalosh, why do we not rely on the Chazakah that she was permitted to her husband until now, and thus we should say that she is still permitted (and her Be'ilah was b'Ones)?

TOSFOS cites the Yerushalmi that says that a case of an Anusah is normally heard about; if word did not get around that she was raped, then we may assume that her Be'ilah was done b'Ratzon, willingly. Therefore, we may assume that it is not just a Safek, but a *Rov* that she did it b'Ratzon, and the Rov overrides the Chazakah.

QUESTION: Why does the Gemara say that in the cases of an Eshes Kohen and Pechusah mi'Bas Shalosh there is only one Safek (so that the woman is Asur mi'Safek to her husband)? There is still another Safek involved, making it a Sfek Sfeika (and she should be *Mutar*) -- there is the possibility that she did not have Be'ilah at all but that she is a *Mukas Etz*. She might have lost her Besulim some other way besides Be'ilah, and thus she should not be Asur to her husband!

ANSWERS:

(a) Tosfos points out that according to RABEINU CHANANEL, becoming a Mukas Etz causes only the blood to come out, but the Pesach remains closed. In the cases of our Gemara, the husband claims "Pesach Pasu'ach Matzasi" -- he found the Pesach to be open, and thus obviously she is not only a Mukas Etz, but she is actually a Be'ulah.

(b) The RE'AH and RASHBA explain that a case of Mukas Etz is so uncommon that it cannot even be considered a possibility here.

(c) TOSFOS answers that had the woman merely been a Mukas Etz, she would have spoken up and admitted it, since she would not have been embarrassed by it. The fact that she did not claim that she was a Mukas Etz proves that she was not a Mukas Etz.

This answer seems problematic, though. This answer explains why we cannot permit her to her husband with a Sfek Sfeika that she might have been a Mukas Etz. However, when she says that she was raped, or -- in the case of an Eshes Kohen -- that the Be'ilah occurred before she was betrothed, she should be believed because of a Migu that *she could have said* she was a Mukas Etz (and she would have been believed because of a Sfek Sfeika).

The answer is that Tosfos may have learned like the ROSH and RAN. The Rosh and Ran say that she would be believed if she says that she was raped, since she claims to be certain of the facts ("Bari") while her husband does not claim to know how and when she became a Be'ulah ("Shema"). Since her husband cannot contradict her claim, she would be believed (according to Raban Gamliel, who represents the Halachic opinion -- see Mishnah 12b). The Rosh and Ran therefore conclude that the case of our Gemara must be when the wife either says that she is a Besulah (and he can contradict her with certainty), or she is not saying anything. That is why she becomes Asur due to his claim.

This also explains why the wife is not permitted to her husband because of the Migu that she could have said she is a Mukas Etz. That Migu will not permit her when she claims she is a Besulah, since he claims she is lying and he is "Shavya a'Nafshei Chatichah d'Isura." Shavya a'Nafshei Chatichah d'Isura even overrides the testimony of a pair of valid witnesses; it certainly can override a simple Migu (MAHARSHA).

(d) Other Rishonim (see SHITAH MEKUBETZES) say that this is a Sfek Sfeika that "cannot be reversed" ("she'Einah Mis'hapeches"). (For example, in the case of Pechusah mi'Bas Shalosh, the Sfek Sfeika cannot be said the other way around -- perhaps her Be'ilah was b'Ones, and even if it was b'Ratzon, perhaps she was Mukas Etz -- because there is no such thing as Mukas Etz being b'Ratzon. Thus, the two possibilities of it not having been b'Ratzon because of Ones or Mukas Etz are one and the same Safek.)

9b