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Kesuvos, 14

1) AN ARUSAH WHO CLAIMS THAT THE ARUS IS THE FATHER OF HER CHILD

QUESTION: Rav Yosef rules that when an Arusah was found to be pregnant and both she and the Arus claim that the Arus is the father, then we accept her word and we do not assume that she committed Z'nus. She is permitted to marry a Kohen (such as when the Arus is a Kohen) and the child is Kasher. Rav Yosef says that there are two reasons for ruling this way. First, the Arus agrees with her claim. Second, the Halachah follows Raban Gamliel who says that the woman is believed when she says a sure claim (Ta'anas Bari) that she lived with a man who is Kasher (in this case, her Arus).

Abaye challenges Rav Yosef and asks that Rav Yosef's second reason is not a good reason. Rav Yosef implies that even when the Arus does not agree that he is the father, we still believe the Arusah because we rely on Raban Gamliel who says that the woman is believed. Abaye asks that -- on the contrary -- we do *not* rely on Raban Gamliel's ruling in a case where there are Rov Pesulim Etzlah, where most of the men around her will invalidate her to Kehunah (such as in this case, where having relations with any man other than her Arus will invalidate her to Kehunah). Rav Yosef answers that in a situation of b'Di'eved, the Halachah is like Raban Gamliel even in a case of Rov Pesulim. Here, it is a situation of b'Di'eved, because the woman is already betrothed to her Arus and wants to marry him, and thus we do not prohibit her to him.

What is Rav Yosef answering? Raban Gamliel permits the woman in the case of the Mishnah only because the husband's claim does not contradict the woman's claim; the woman's claim is a Ta'anas Bari, and her husband's claim is a Ta'anas Shema (an uncertain claim), and Bari prevails over Shema. But if the Arus does not agree that he is the father, and the Arusah claims that he is, then they are contradicting each other (both have Ta'anos which are Bari) and she should not be believed!

ANSWERS:

(a) TOSFOS, the TOSFOS HA'ROSH and other Rishonim answer that the case Rav Yosef and Abaye are arguing about, where the Arus does not agree that he is the father, is not referring to where the Arus *denies* being the father, but rather is referring to a case where the Arus is not available to testify (e.g. he died, or he is abroad), and therefore we cannot ask him and we do not know what he would claim. That is why the case is one of "Bari v'Shema," where Raban Gamliel says that she (with her claim of Bari) is believed.

(b) The RI (cited by Tosfos) explains that according to Abaye in Yevamos (69b), when an Arusah is suspected of living with her Arus, we must also suspect her of living with other men. Rav Yosef here is saying that according to this logic, the confession of the Arus is meaningless, because once we know that she lived with her Arus (as she herself admits), we must assume that she lived with other men as well. Therefore, regardless of what the Arus claims, his claim is always considered to be a Shema (and her claim is a Bari), and that is why Raban Gamliel would permit her in this case.

14b