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Kesuvos, 13

1) THE VIEW OF RABAN GAMLIEL THAT THE WOMAN IS BELIEVED

QUESTION: In two different cases (in the Mishnah on 12b and the Mishnah here), Raban Gamliel teaches that "Bari v'Shema, Bari Adif" -- in a case where two people make claims against each other, and one person is certain about his claim and the other is doubtful about his claim, the certain claim prevails. Rebbi Yochanan explains why Raban Gamliel needs to teach this in two different Mishnayos. He explains that in the case of the second Mishnah, where the man claims that his wife had relations with another man before they were married, and his wife claims that she is a Mukas Etz, Raban Gamliel is teaching that the woman is believed to say she is a Mukas Etz, even though she has no Migu. In the previous Mishnah, where the man claims that she had relations with another man before they were married and she claims that she was raped after they were married, though, it is obvious (according to Raban Gamliel) that she is believed, because she has a Migu that she could have said that she was a Mukas Etz.

Why does Rebbi Yochanan mention that the only Chidush of the second Mishnah is that she is believed even though there is no Migu? The Gemara (12b) gives two reasons why Raban Gamliel says that the woman is believed in the case of the Mishnah there: first, she has a Migu (that she could have said she was a Mukas Etz), and second, she has a Chazakah (that she was a Besulah). In the second Mishnah, not only is there no Migu, there is also no Chazakah! Why, then, did Rebbi Yochanan not say that the second Mishnah is needed to teach that Raban Gamliel believes the woman even when there is no Migu *and* when there is no Chazakah?

ANSWERS:

(a) The RAN explains that in the case of the second Mishnah, there *is* a Chazakah. The Chazakah is that Jewish women do not commit Z'nus, and thus we may assume that she was a Mukas Etz and did not have relations with another man.

This also seems to be the intention of TOSFOS (12b, DH Ela) who also implies that there is a Chazakah in the case of the Mishnah here.

(b) RASHI (12b, DH Ela d'Ika Migu) seems to be saying that there is no Chazakah in this Mishnah, and when the Gemara says that the Mishnah teaches that she is believed ("Bari v'Shema, Bari Adif") without a Migu, it also means to say that she is believed without a Chazakah.

13b

QUESTIONS: Raban Gamliel and Rebbi Yehoshua argue in a case where a woman secluded herself with another man and we do not know whether he was Pasul (that is, his Be'ilah with invalidate her from marrying a Kohen) or Kasher. She claims that he was Kasher. Raban Gamliel says that she is believed and she is not Pesulah l'Kehunah, while Rebbi Yehoshua says that she is not believed, and we fear that she had relations with a Nasin or a Mamzer and she may not marry a Kohen. A Beraisa expands on the Machlokes and says that Rebbi Yehoshua proved that she should not be believed, and that she should be Pesulah l'Kehunah, from the case of a Shevuyah, who is not believed to say that she was not defiled by her captors. Rebbi Yehoshua says that we see that in the case of a Shevuyah, even though she says that she is Tehorah, we assume that she was defiled by her captors, and thus we should also not believe her in the case of our Mishnah. Raban Gamliel admits that the case of Shevuyah is a good proof for a case where she is pregnant, in which case we know that she had relations and thus she is not believed to say that she had relations with a Kasher man, since she has no Migu that she could have said that she did not have relations. In such a case, Raban Gamliel agrees that she is not believed to say that the child is Kasher. However, regarding a case where she was not pregnant, Raban Gamliel replies that no proof can be adduced from the case of Shevuyah, because that case is different; there, she was captured by Ovdei Kochavim, and Ovdei Kochavim are steeped in licentiousness, and thus we must assume that she was defiled. In contrast, in the case of our Mishnah -- which is not discussing Ovdei Kochavim -- she was not necessarily defiled. Rebbi Yehoshua replies that even in our case where there are no Ovdei Kochavim, there is no one watching to make sure that Z'nus does not occur ("Ein Apotropos l'Arayos") and we must suspect that she willfully had relations with the man with whom she secluded herself.

The Gemara questions ("v'Teipuk Lei...") this interchange between Rebbi Yehoshua and Raban Gamliel and asks, "Why did he not say that there (in the case of Shevuyah), most of the men around her are Pesulim (Rov Pesulim Etzlah)," and that is why we must assume that she was defiled, "while here (in the case of our Mishnah where she secluded herself with an unidentified man), most of the men around her are Kesherim (Rov Kesherim Etzlah)," for she is in a Jewish city where most of the men in the city will not make her Pesulah to Kehunah. These are the words of the Gemara's question.

The Gemara answers that this Beraisa is support for the assertion of Rebbi Yehoshua ben Levi, from the fact that it did not differentiate between the cases where one is Rov Pesulim Etzlah, and the other case is Rov Kesherim Etzlah. Rebbi Yehoshua ben Levi asserts that Raban Gamliel believes the woman and permits her even where Rov Kesherim Etzlah, while Rebbi Yehoshua does not believe her and prohibits her even were Rov Kesherim Etzlah.

RASHI explains that the Gemara is asking a question on Rebbi Yehoshua: why did Rebbi Yehoshua say that in a case of Rov Kesherim that "Ein Apotropos l'Arayos" and that is why we suspect her of Z'nus and rule that she is Pesulah? We should believe her and permit her to a Kohen, since most of the people around her are Kesherim (Rov Kesherim Etzlah)! The question of the Gemara, then, is a question on Rebbi Yehoshua's opinion, according to Rashi.

Rashi's words are very difficult to understand for a number of reasons.

(a) The TOSFOS HA'ROSH points out that this is not how the words "v'Teipuk Lei " are normally used. Those words normally mean that instead of using one line of reasoning to arrive at this conclusion, the Beraisa should have used another line of reasoning to arrive at this conclusion. Rashi is using these words to be asking a direct question on the view of Rebbi Yehoshua and to be saying that instead of saying that the woman is Pesulah, he should use this logic (of Rov Kesherim Etzlah) to say that she is permitted to a Kohen.

Why did Rashi not explain like the Tosfos ha'Rosh, which is the straightforward understanding of the Gemara? Rashi should have said that "v'Teipuk Lei" here means to ask that Raban Gamliel did not need to answer Rebbi Yehoshua's question by saying that Ovdei Kochavim are immersed in licentiousness, but he could have answered that in the case of Shevuyah, most of the men around her are Pesulim (Rov Pesulim Etzlah), while in our case, most of the men are Kesherim (Rov Kesherim Etzlah)!

(b) There is a basic question that the Gemara should have asked. In the Beraisa, Raban Gamliel gives in and agrees to Rebbi Yehoshua in the case of a woman who secluded herself with a man, and now we see that she is pregnant. Why did he give in to Rebbi Yehoshua in the case of a pregnant woman? Raban Gamliel should have given in only in a case where the woman is pregnant *and* Rov Pesulim Etzlah, but in the case of a pregnant woman where Rov Kesherim Etzlah, there is no proof from Shevuyah that she is not believed!

(c) What indeed is Rebbi Yehoshua's proof to argue with Raban Gamliel in a case of Rov Kesherim? His proof is only from a case of Shevuyah, where there are Rov *Pesulim* Etzlah! How does Rebbi Yehoshua know that the woman is not believed even in a case where there is Rov Kesherim Etzlah? (SHITAH MEKUBETZES)

(d) According to Rashi, the Gemara is proving that Raban Gamliel and Rebbi Yehoshua argue even in a case of Rov Kesherim and not just in a case of Rov Pesulim, since Rebbi Yehoshua did not say that he agrees that she is believed in a case of Rov Kesherim.

Why would we have thought that Rebbi Yehoshua agrees in a case of Rov Kesherim? Our Mishnah is discussing a case of Rov Kesherim, and yet Rebbi Yehoshua clearly states that she is not believed and she is Pesulah to Kehunah! We know that our Mishnah is discussing a case of Rov Kesherim, because Rebbi Yehoshua is quoted as prohibited her because of a fear that she had relations with a Nasin or a Mamzer. If the Mishnah was referring to a case of Rov Pesulim, then Rebbi Yehoshua would have said that we fear she had relations with a Nochri, and not to a Nasin or a Mamzer who are certainly a minority. (It must be that a Nasin and Mamzer are the minority, and we cannot say that the Mishnah is referring to a case where most men around her are Nesinim and Mamzerim, because when Rebbi Yehoshua says that "Ein Apotropos l'Arayos," how do we know that he applies it even in a case of Rov Kesherim? Perhaps he was just saying that it applies in a case where Rov *Pesulim* (such as where most men are Nesinim and Mamzerim), where they are not Ovdei Kochavim (for if there were Ovdei Kochavim, he would not have to say "Ein Apotropos..." because even Raban Gamliel agrees that Ovdei Kochavim are steeped in licentiousness). It must be that the only type of man who is Pasul who is considered to create a Rov Pesulim is a Nochri, who can create a Rov of Ovdei Kochavim. Thus, since Rebbi Yehoshua says "Ein Apotropos l'Arayos" in a case when there are no Ovdei Kochavim, it must be that it applies in a case where Rov Kesherim.)