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Kidushin, 79

1) THE DAUGHTER WHO ACCEPTED HER KIDUSHIN IN THE CITY

QUESTION: Rav and Shmuel argue about a case in which a father, traveling on the road, accepts Kidushin on behalf of his daughter, while his daughter, in the city, accepts Kidushin for herself from a different man on the same day, and on that day she is found to be a Bogeres. Rav says that since she is presently a Bogeres, we assume that she was a Bogeres at the time that she accepted the Kidushin, and thus her Kidushin (and not her father's) is valid. Shmuel says that we must be concerned that she was a Na'arah at the time that her father accepted Kidushin for her, and thus she is Safek Mekudeshes (and she needs a Get from both men).

Rav and Shmuel seem to be arguing about how to judge the daughter when she is found to be a Bogeres. Rav holds that we can assume that her present state came about in the morning of that day, and thus she was a Bogeres at the time that her father accepted Kidushin for her. Shmuel holds that her present state does not tell us anything about her state prior to the time that she was found to be a Bogeres.

This Machlokes could have been applied to a more straightforward, simple case. When her father accepted Kidushin for his daughter in the morning, and then in the afternoon she was found to be a Bogeres, the same question applies. Is the father's Kidushin valid or not? Why is it necessary for the Gemara to involve another factor in this question, the factor that "she accepted Kidushin for herself in the city?"

ANSWER: TOSFOS explains that the Gemara specifically chose this case. Tosfos points out that the Gemara continues and asks a question on the view of Shmuel from the case of a Mikvah that was found to have less than the minimum amount of water. The Mishnah (Mikva'os 2:2) says that all of the items that were immersed in that Mikvah, even before it was found to be lacking, are Tamei retroactively. This seems to contradict the view of Shmuel and support the view of Rav, who says that the previous status of an item can be determined by its present status. The Gemara answers that in the case of the Mikvah, the thing in doubt is not only the Mikvah (whether it was lacking or not at the time the items were immersed there), but the items that were immersed there are also in doubt -- before their immersion that were definitely Tamei, and now there is a doubt whether or not they are Tahor. Since the items were, until now, Tamei, we assume them to be Tamei now based on their Chezkas Tum'ah, and not merely because the Mikvah, at present, is invalid. Shmuel only stated his opinion (that the present state of an item does not determine its previous state) for cases in which there is no pre-existing Chazakah. In cases in which there is a Chazakah telling us what the status of the item once was, as well as a present factor telling us what the status of the item is now, Shmuel agrees with Rav that we can determine the earlier status of the item (after the time of the Chazakah, and before the present status) based on the present status.

However, in the simple case of a father who accepted Kidushin for his daughter in the morning, and then in the afternoon she was found to be a Bogeres, there is also a pre-existing Chazakah -- the Chazakah that the daughter, until now, was not married ("Chezkas Penuyah")! Since we know that the daughter was single until now, we may assume that she is still a Penuyah at the time of our doubt (i.e. in the morning, at the time that our doubt exists -- whether the father's acceptance of Kidushin for his daughter was valid or not). In this case, even Shmuel would agree that the fact that she is now a Bogeres permits us to assume that she had the same status earlier (and her father's Kidushin did not take effect)! Why, then, does Shmuel argue in this case?

It must be that the daughter does *not* have a Chezkas Penuyah. The only way, though, that the daughter does not have a Chezkas Penuyah is by assuming that she was definitely married at the time of the Safek. This is accomplished by adding a new factor to the case -- the fact that the daughter accepted Kidushin for herself in the city. Since she also accepted Kidushin, she is married no matter what -- either her father married her off, or she married off herself (depending on when she became a Bogeres). The Chazakah that she is a Penuyah no longer exists, and now the Machlokes between Rav and Shmuel applies.

OPINIONS: The Gemara suggests that the Machlokes between Rav and Shmuel whether or not we may establish a person's prior status (which is in doubt) based on the person's present status -- is a Machlokes Tana'im. Rebbi Yakov and Rebbi Nasan argue in a case of a person who gave away all of his property. He claims that he gave it away when he was a Shechiv Mera, and thus the gift is not valid because he recovered. The recipients claim that he gave it away when he was a healthy person, and thus the gift remains valid. Rebbi Yakov says that we follow the Chezkas Mamon, and since the property was in the possession of the owner until the time of the doubt, we assume that it is still in his possession and the recipients of the gift must bring proof to their claim. Rebbi Nasan maintains that if the giver of the gift is a Shechiv Mera now, then we assume that he was a Shechiv Mera when he gave the gift (and the recipients must bring proof otherwise). If he is healthy now, then we assume that he was healthy at the time that he gave the gift, and the recipients are entitled to receive the gift. It seems that Rav is following the view of Rebbi Nasan, and that Shmuel is following the view of Shmuel.

The Gemara says that the Machlokes between Rebbi Yakov and Rebbi Nasan is not related to the Machlokes between Rav and Shmuel. Rav could follow even the view of Rebbi Yakov, since, in that case, there is a Chezkas Mamon (the owner of the property always owned it until now). In contrast, in our case there is no Chezkas ha'Guf that the daughter was a Na'arah.

The Rishonim argue with regard to why there is no Chezkas ha'Guf that the daughter was a Na'arah.

(a) RASHI (DH Mi Ika) explains that since the case of Rav and Shmuel is where six months have passed into the daughter's period of being a Na'arah, and on the day that the six months end she is prone to became a Bogeres, there can be no Chazakah concerning her status on that day, since her status is prone to change. A Chazakah can be established only when we can assume that the status will remain the same until proven to have changed. Since, in this case, the girl's status is naturally going to change at the end of the six-month period of Na'arus, there is no Chazakah telling us that she is still a Na'arah.

(b) TOSFOS (DH Mi Ika) explains in the name of the RI that it is the normal manner for a girl's physical changes to occur in the morning. Hence, on this day, there is no Chazakah that she is still a Na'arah.

According to the Ri, the fact that a girl's status is prone to change at the end of the six-month period of Na'arus is not sufficient to remove the Chazakah. Rather, there must be a "Regilus," a normal, frequent occurrence that the change occurs in the morning. Once we know that her status is prone to change on that day *and* that it normally changes in the morning, only then is there no longer a Chazakah of Na'arus.

The SHAV SHEMAITSA (3:16) explains that this Machlokes between Rashi and the Ri is based on the way to understand the general concept of Chazakah (specifically, "Chazakah d'Hashta"). When no "Chazakah d'me'Ikara" is present (i.e. until the time of the Safek, there was no known status that could determine what the status is at the time of the Safek), can we determine the status at the time of the Safek based on a "Chazakah d'Hashta" -- if the status if the item or person is known presently, can we determine that this was the item's status earlier, at the time of the Safek?

According to Rashi, there is no "Chazakah d'me'Ikara" in the case of our Gemara, and therefore, according to Rav, we may rule in accordance with the "Chazakah d'Hashta" (i.e. since she is a Bogeres now, we assume that she was a Bogeres at the time of the Safek).

According to Tosfos, we cannot prove from our Gemara that we can apply a "Chazakah d'Hashta." The reason why there is no "Chazakah d'me'Ikara" here is because of "Regilus" -- it normally happens that the girl's status changes at that time. What tells us that the girl is not a Na'arah is *not* the fact that *now* she is a Bogeres ("Chazakah d'Hashta"), but rather the fact that it is usual for a girl's status to change in the morning of the day on which the six-month period of Na'arus ends.

79b

QUESTION: The Mishnah lists the circumstances under which we must investigate the lineage of a woman and her children in a case where a man comes back from Medinas ha'Yam with a wife and children. The Mishnah states that when the man and woman were married first and then they went to Medinas ha'Yam and returned with children, there is no need to investigate the lineage of the woman nor of the children. The reason why we do not have to investigate the lineage of the woman is because, as RASHI explains, her lineage was already confirmed at the time of her marriage.

Why, though, is it necessary to check a woman's lineage altogether?

ANSWERS:

(a) Rashi seems to be learning that the Mishnah here is following the view of Rebbi Meir. The Gemara earlier (76b) cites a Machlokes between Rebbi Meir and the Rabanan regarding whether or not a woman's lineage needs to be investigated before one marries her. Rebbi Meir requires such a Bedikah (Mishnah, 76a), while the Rabanan do not require such a Bedikah, because "all families are b'Chezkas Kesheros."

Our Mishnah is expressing the view of Rebbi Meir, who requires Bedikah. The Rabanan, though, would argue with this Mishnah and not require Bedikah at all.

(b) The TOSFOS RI HA'ZAKEN argues and says that our Mishnah here is even following the view of the Rabanan. He differentiates between a woman who comes from a known, recognized region and community, and one who comes from Medinas ha'Yam, a foreign, unknown community. The Rabanan say that every family has a Chezkas Kashrus only when that family is known to us, and is known not to have any blemishes. A woman who comes from Medinas ha'Yam, however, comes from an unknown family, and therefore she has no Chazakah of Kashrus. Hence, even the Rabanan agree that if not for the fact that we believe the husband that this woman is his original wife (whom he married before he left to Medinas ha'Yam), a Bedikah would be necessary. We do not rely on the man's word to believe him that a Bedikah was already done (which is what Rashi says), but rather we believe him that his wife is from a known region, and therefore no Bedikah is necessary. (See BEIS SHMUEL 4:3, mentioned in Insights to 72:2, who cites two views on this matter, which appear to be the views of Rashi and Tosfos Ri ha'Zaken.)