79a: Assumptions For Marriage

Last week, we began to discuss the machloket (dispute) between Rav and Shemuel regarding the case of a father who accepted kiddushin (betrothal) on his daughter's behalf early in the day, following which the girl herself accepted kiddushin on that same day. The case hinges on the status of the girl at that time. A father has the right to accept kiddushin on his daughter's behalf until she reaches the stage of bagrut, at which time the daughter becomes independent in this area. Bagrut is the stage at which a girl reaches full adulthood, and it comes when she develops certain signs of physical maturity (see Niddah 47a). The expected time at which she will reach this stage is six months after the onset of na'arut, the first stage of adulthood, which generally commenses when a girl turns twelve. The dispute between Rav and Shemuel pertains to a case in which the father and daughter accepted kiddushin from two different men on the very day that we anticipate the girl will become a bogeret. At the end of the day, the girl is examined and found to be a bogeret. Rav assumes that just as she is a bogeret at the end of the day, she presumably was a bogeret earlier that day as well; therefore, the kiddushin accepted by the father is invalid, as he no longer had the authority to accept kiddushin on his daughter's behalf, and the kiddushin that the daughter accepted is valid. Shemuel argues that we should consider it a safek (doubt) as to whether or not the girl had already produced the signs that indicate bagrut at the time her father accepted kiddushin; therefore, it is unclear which of the two kiddushins is valid. (Even if we assume she was definitely a bogeret when she accepted kiddushin, if her father's kiddushin was valid, she would be a married woman and not eligibile to accept another kiddushin.) This would necessitate following our mishna's guidelines for a case of doubt as to which of two possible men are married to a particular woman: she may not complete the marriage process with either one of the men until the other gives a get (document of divorce), and if she wants to marry a third party, both of the men would have to give a get.

Our gemara's discussion may be used to illustrate a phenomenon very common to the study of Talmud. The Talmud teaches its principles through case law; what is the halakha in such-and-such a case, or in a different case, etc. However, the principles expressed may be general in nature and applicable to a wide range of situations not mentioned explicitly in the Talmudic discussion. Thus, the discussion may have great practical importance irrespective of the frequency with which the specific case discussed in the gemara actually occurs. Our sugya is a case in point. The particular case discussed in our gemara is rather uncommon, to say the least. Nevertheless, the sugya is critical for the principle of chazaka, which is the focal point of the debate.

The concept of chazaka posits that we assume that a particular reality, whether physical or halakhic in nature, remains in effect until we know otherwise. The most common application of chazaka is to a case in which we do not know if the reality has changed; chazaka tells us that we may assume it has not. But what if we know that it has changed or that it will change in the near future? In such circumstances do we still maintain that the previous reality exists until the point in time at which we find out for certain that it has changed? That is the essential principle at stake in the dispute between Rav and Shemuel. Rav claims that since we know that the girl was a bogeret in the evening, it is illogical to assume that the signs of her physical maturity sprouted on that very day after her father accepted kiddushin, and we can be confident that she was a bogeret in the earlier part of the day as well. Essentially, we extend her bogeret status backward and assume that she was a bogeret earlier in the day as well. Shemuel disagrees and maintains that since the girl was presumed to be a na'ara until now, we cannot confidently assume that her status changed until that change has been clearly documented. Thus, the possibility that she was a na'ara even at the beginning of that very day must be taken into account.

The Gemara

A few words of introduction must be added before we can jump into the continuation of the Gemara's discussion of this issue. There are several diffirent types of tuma (ritual impurity) that exist according to halakha (see, for example, Vayikra ch. 11-15). The process of purification differs depending on the type of tuma, but there is a requirement of immersing in a mikveh (ritual bath). Among the many halakhic specifications regarding a mikveh is the fact that it must have at least forty se'ah of water. (There is a dispute as to the modern equivalent of the se'ah. The range of opinions of the volume of 40 se'ah is from 332 to 576 liters.) Our gemara will quote a discussion about a case of a mikveh that had just over forty se'ah when it was first measured, and when it was next measured it had less than forty se'ah; the question thus arises as to when the mikveh should be assumed to have become invalid.

One of the most common and practical ramifications of ritual purity in earlier times pertained to food items that had various degrees of sanctity. Every Israelite farmer is required to give some of his crop (usually, about 2%) to a kohen as teruma. This food may only be eaten by kohanim and is considered sacred; it therefore must be kept pure and must be eaten in a state of purity. If the kohen is tamei (impure) or the food itself has become tamei, it may not be eaten. Similarly, parts of certain korbanot (sacrifices) may be eaten by kohanim or by the person who brought the korban. This type of food must also be kept pure and eaten in a state of purity.

Sometimes, there may be doubt as to whether or not a person or item has become tamei. In that case, the operative principle is that it depends on the location in which the safek (doubt) has arisen (see, for example, Rambam, She'ar Avot Ha-tuma cb. 16). If the doubt arises in a private domain (reshut ha-yachid), we assume that the item is tamei; if the doubt arises in a public domain, we assume that it is tahor (pure).

With all of this this in mind, we can continue with the Gemara's discussion. We begin eight lines from the end of the short lines on 79a.

Based on the fact that Shemuel's ruling in our sugya relates to the general issue of chazaka, the gemara questions how Shemuel justifies his stance in light of the mishna in Mikva'ot (2:2) which apparently implies the opposite. What if a mikveh originally had a bit more than 40 se'ah, but the next time it was measured it was found to have a bit less than 40 se'ah? Obviously, the mikveh has become deficient sometime between the two measurings, but it is unclear when. The mishna rules that we must assume that any person who used that mikveh to achieve tahara (spiritual purity) between the two measurings must be considered as though he has not left his status of tuma. Therefore, any sanctified food that he may have handled must also be presumed to be tamei, in which case it must be burned. (The same ruling would apply to a utensil that was tamei and was immersed in the mikveh, and then came into contact with sanctified food.)

This case represents a challenge to the opinion of Shemuel. In the case of the mikveh, we know that it had enough water at the time it was initially measured and that it was missing water the next time it was measured. By saying that anyone who has used the mikveh between those times is to be considered tamei, the mishna teaches that we do not assume that a particular reality continues on until we know for sure it has changed. Rather, we assume that the mikveh became deficient immediately after the initial measuring. And this assumption is not even a safek; if it was, we would have to apply the procedures for cases of doubt in tuma and tahara. Those procedures dictate that in a reshut ha-rabbim we are lenient while in a reshut ha-yachid we are stringent. But in this case the mishna rules that we are always stringent, even in a reshut ha-rabbim. This ruling seems to match the opinion of Rav in our gemara: he rules that we assume the girl was definitely a bogeret at the time her father accepted kiddushin for her, just as she is a bogeret now. How does Shemuel reconcile his opinion with this mishna?

The gemara responds that we may not be able to compare the case of the mikva with Shemuel's ruling regarding the na'ara-bogeret. In the case of the mikveh, there is an alternate chazaka that contradicts the chazaka regarding the mikveh: that of the person (or utensil) who used the mikveh. That person was tamei and went to the mikveh in order to change his status. Since there is a doubt regarding the mikveh, we should continue to consider him tamei until we know otherwise! From that perspective, the mishna's ruling actually parallels Shemuel's ruling in our gemara.

The gemara counters that it is not enough to emphasize the forward-extending chazaka of the tamei person or utensil and to thus justify Shemuel's consideration of the forward-extending chazaka of the na'ara. In the case of the mikveh, there is also a forward-extending chazaka of the mikveh as full, which would lead us to conclude that the person or utensil that used it is now tahor; but the mishna rules that the sanctified food is tamei! The implication is that we discount forward chazakot in favor of current realities, in which case Shemuel's opinion is difficult: he takes into account the forward-extending chazaka of the girl as a na'ara even though there is also a backward-extending chazaka that she is a bogeret.

The argument could be made that this chazaka (that the mikveh was full) has clearly come to an end while the chazaka of the person or utensil as tamei has not. This would explain why we follow the chazaka of the person or utensil rather than the original chazaka of the mikveh. But this line of reasoning does not make Shemuel's opinion any easier to swallow: the chazaka that the girl is a na'ara has also come to an end, yet Shemuel does not discount it!

Finally, the gemara explains that in the case of the mikveh there are two reasons to assume that the sanctified food is tamei: the original chazaka of the person or utensil as tamei and the current reality that the mikveh is deficient. In Shemuel's case, there is only one consideration that would invalidate the father's kiddushin; the fact that now, at the end of the day, the girl is found to be a bogeret. Therefore, Shemuel argues, although we may be certain in the case of the mikveh, we remain uncertain in the case of kiddushin, and must take both possible outcomes into account.

The sugya we have studied today is complex in that it assumes familiarity with several areas of halakha, and because the back and forth revolves around subtle points which can nevertheless make a difference in the final halakha. It would be wise to review the sugya in order to make sure that you understand each step: how the gemara challenges Shemuel's opinion based upon the mishna in Mikva'ot, the different attempts to resolve the question and their rejection, and the final distinction between the two sugyot. We will continue the sugya next week.