79b: Assumptions About Families

The main topic that we have discussed in our chapter is yuchesin, matters relating to genealogy. In the context of that general topic we have explored as well the issue of chazaka, a halakhic presumption that is based either upon an assumption that a particular situation is consistent with the general norm or that a known status quo has been maintained. The mishna and gemara that we will begin to study today is the last discussion in our chapter that focuses on these themes; the conclusion of the chapter moves on to a different topic.

Let us begin the mishna, two-thirds of the way down the page on 79b.

The mishna discusses a man who is genealogically fit and wants to establish that his sons are similarly of pure lineage. In the first set of cases, a man and his wife, both of whom have been determined to be of acceptable lineage, travel overseas with their family. When they return, the husband identifies those traveling with him as his original family (presumably, the children are no longer recognizable because they have grown up). The mishna rules that we can assume that the children are of acceptable lineage. On the other hand, if the woman has already died, the father must prove his claim that these are the children of his original wife. If he is able to do so, the children are deemed genealogically fit, in accordance with the status of their parents. 

The second half of the mishna (known as the seifa) discusses cases in which the man claims that his children are from a woman that he married overseas. In the first case, he returns from his travels with a wife and children. We can assume that the wife really is the mother of the children, so a background check of the woman is both necessary and sufficient to prove the genealogical purity of the children. If the man returns with children but no wife and explains that he married in a distant place and his wife has died, he must bring proof that the woman he mentions is in fact the mother of his children and he must also prove the genealogical purity of that woman.

To summarize, if we do not know the woman due to the fact that the man married her in a distant place, her genealogical purity must be established. With regard to the children, if the woman is present, we do not need to prove the relationship between her and the children, but if she is not (and they were born overseas), their lineage (that they descend from the woman under discussion) must be proven. We now begin the gemara, which explains the basis of these policies.

Rabba bar Rav Huna qualifies, and at the same time explains, the reasoning for the last rule we mentioned above, that if the woman and children are present together, we can assume that the children are hers, even without hard evidence to this effect: the rule only applies when the children follow the woman in the manner that children normally relate to their mother (literally, they are "tied to her"). Since their behavior backs up the claim that they are mother and children, we assume this to be the case.

The gemara now quotes a beraita (the phrase "The Rabbis taught" always introduces a beraita) that both confirms and qualifies the ruling of our mishna as explained by Rabba bar Rav Huna. If a man appears with a wife and children and explains that he married the woman in a distant place and they had children together, he must establish the genealogical purity of the woman, but need not prove that she is the mother of the children. The beraita then qualifies its own statement and says that he must bring a proof about the identity of the grown children - i.e., he must prove that the woman is their mother - but need not prove the identity of the young children. This is due to the fact that grown children do not follow their mother around in a way that makes it clearly evident that she is their mother, unlike young children. Thus, the beraita takes for granted Rabba bar Rav Huna's rule and expounds upon it. 

The beraita then further qualifies its teaching: all this is only if the man is married to one woman. If, however, he is married to two women, he must prove which wife is the mother of the children. The way the children relate to one wife does not clearly show that she is their mother; since both women are part of the household, the children may be very attached even to the woman who is not their mother, who may have taken an active role in raising them. Presumably, this would apply as well to other cases in which there is more than one woman in the household, even if there is only one wife.

We continue with the gemara, at the very bottom of 79b.

The gemara has previously taught that behavior on the part of children that indicates that they are the children of their parents is sufficient grounds to establish this relationship as factual regarding halakha. Reish Lakish argues that this presumption does not go across the board. For a kohen, we would assume that the children are kohanim of pure lineage with regard to eating teruma but we would not presume acceptable lineage to the point that we would be willing to allow the child (whether he is a kohen or not) to marry a kohen. Teruma, the percentage of produce that is separated and given to kohanim, is referred to as kodshei ha-gevul, "sanctified food of the borders," because it is sanctified and yet can be eaten anywhere. This is unique; most sanctified food can be eaten only in the Beit Ha-mikdash or in the broader city of Jerusalem, but not outside of those areas.

Rabbi Yochanan disagrees with Reish Lakish and maintains that we can rely on the presumption of acceptable lineage even to the point that we will allow the child in question to marry a kohen. The gemara goes on to explain that Rabbi Yochanan's view is consistent with another, more general statement of principles that he articulated about the strenght of chazakot. As we have discussed in the past, chazaka refers to an assumption regarding the status of a person or object, based either upon previously existing realities or based upon the normal expectations that we can have. In our sugya, the chazaka previously discussed was that if adults and children appear on the scene and claim to constitute a family, and in fact relate to each other in ways common to parents and children, we can assume, unless there are other mitigating factors, that the people actually do constitute a family unit. Rabbi Yochanan argues that the presumption created by chazakot is so strong that we can even give corporal punishments, such as lashes and even the death penalty, on the strength of these presumptions. If this is the case, chazaka should definitely be reliable enough to allow someone to marry a kohen.  

The gemara now moves on to explain these rulings. The giving of lashes based on chazaka is due to the ruling of Rav Yehuda. A woman is considered a nidda when she menstruates, and this status continues for at least seven days until she immerses in a mikva (practically, additional "clean" days are required - see Vayikra 15:19-29 and Shulchan Arukh, YD 183). There are two ramifications of nidda status: the woman is ritually impure (temei'ah) and she is forbidden to her husband. If a man and woman engage in sexual relations while the woman is a nidda, they are liable to the punishment of karet and to lashes in court. In former times, women would publicize their nidda status by wearing certain types of clothes that would be recognized as a sign that the wearer is a nidda. This was necessary because of the fact that the woman was temei'ah; due to the complex laws of how this type of tuma can be transferred, it was imperative for neighbors to be aware of this woman's status. This public display is referred to as being "established as a nidda through her neighbors."

Rav Yehuda teaches that if a woman wore the special clothes that indicate she is a nidda, and then cohabited with her husband, both the husband and wife are liable to lashes. Even if the two deny that she was a nidda, and even though we generally cannot prove conclusively that she was a nidda, the fact that she has acted publicly in a way that indicates that she is a nidda is enough to establish a chazaka to this effect; and a chazaka is considered reliable enough even to give lashes.  

To sum up, the gemara has explained that a family that acts like parents and children can be assumed to have that relationship, the possible limitations of that chazaka, and a dispute between Reish Lakish and Rabbi Yochanan regarding the strength of such a chazaka. In the context of that discussion, the gemara quoted another statement of Rabbi Yochanan that backs up what we learn in our sugya. The gemara then began to explain the different parts of that other statement, which we will continue to study next shiur.