Bari ve-Shema and Proof

 

In the shiur this week, we will begin the second perek of Ketubot. The sugya, though, is a direct continuation of the first perek, specifically relating back to daf 12b.

You should therefore first review the mishna and gemara there;

Then learn the mishna on 15b and the gemara until "ki bari ve-shema dami". 

Additional sources:

1. The gemara understands that the reisha of the mishna is a case of bari ve-bari.  Why is that true in the case of a widow who is litigating with her husband’s heirs? See Rashi on the mishna and the Rosh (end of siman 1). 

2. What is the difficulty with the statement of the gemara: keivan derov nashim betulot nisa'ot, ki bari ve-shema dami.

How can this be explained? See the KovetzShiurim Ketubot Siman 44 (text available in the hebrew shiur here).

3. The gemara states that chazaka is effective in a case of bari ve-shema and not in a case of bari ve-bari. What about a case of shema ve-shema? See theShita Mekubetzet 75b (text available in the hebrew shiur here).

 

I.          INTRODUCTION 

Today we shall begin studying the second chapter of Ketubot (15b), but the first topic that we shall learn is based entirely on the last pages of the first chapter (12b and on), and the disagreements between Rabban Gamliel and Rabbi Yehoshua discussed there. By its very nature, this shiur does not come to open a new topic of discussion, but to complete the discussion of certain topics that have already been studied. (See shiur #15) 

Among the disagreements between Rabban Gamliel and Rabbi Yehoshua at the end of the previous chapter, we shall occupy ourselves today with the first of them: 

[If] someone married a woman and did not find in her [signs of] virginity, [and] she says: "After you betrothed me I was raped, and (it is as if) your field has been flooded," and he says: "Not so, but rather [you had relations] before I betrothed you, and my acquisition was an acquisition in error," Rabban Gamliel and Rabbi Eliezer say: She is believed. Rabbi Yehoshua says: We do not live by her mouth. (Mishna, 12b) 

            The Gemara at the beginning of the second chapter initially understands that Rabban Gamliel rules in favor of the woman based on her chezkat betula (presumptive status of being a virgin). Accordingly it asks whether our mishna, the first mishna in the second chapter, argues with his position, for in our mishna, the woman is only believed when there are witnesses, and her chezkat betula does not suffice:[1] 

Mishna: [If] a woman was widowed or was divorced, [and] she says: "[When] you married me, [I was] a betula," and he says: "Not so, but [when] I married you, [you were] a widow," if there are witnesses that she went out with a hinuma and [the hair of] her head was loose, her ketuba is two hundred [zuz]….

Gemara: The reason is that there are witnesses. But [if] there are no witnesses, the husband is believed. Shall we say that [the mishna] taught an anonymous [ruling] that is not in accordance with Rabban Gamliel? For if Rabban Gamliel, surely he said: She is believed!

You may even say [that it is in accordance with] Rabban Gamliel. Rabban Gamliel only said [this] in [a case of] "certain and perhaps (the woman’s position is definitive, while that of the husband is merely speculative)," but here, in [a case of] "certain and certain (both sides advance definitive claims)," he did not say [it]. (15b-16a) 

II.         WHY IS THE CASE OF THE WIDOW AND THE HEIRS TREATED AS A CASE OF "CERTAIN AND CERTAIN"? 

One of the cases in the mishna at the beginning of the second chapter is the case of a widow, where the present argument is between the woman and her late husband's heirs, and not between the woman and the husband himself. Is this case also defined as one of "certain and certain," despite the fact that the husband's heirs presumably are not personally familiar with the woman's status at the time of her wedding? 

Rashi maintains that the answer is yes: 

… And the heirs say to the widow: Our father married you when you were a widow, and you are only entitled to 100 zuz. 

            Rashi's words imply that the mishna is dealing with a case in which the heirs assert with certainty that the woman was a widow at the time of her marriage. 

            The Rosh (2, 1), on the other hand, takes a different approach: 

The heirs' plea is regarded as "certain," because we advance on behalf of the orphans whatever claims their father could have made. 

            That is to say, the rule that "we advance on behalf of the orphans" bestows the status of a claim put forward with certainty, or at least the status of a claim possibly put forward with certainty which prevents the plaintiff from removing the money from the defendant.[2] 

III.        "CERTAIN AND UNCERTAIN" AS A PROOF 

After the Gemara says that "in a case of 'certain and certain,' Rabban Gamliel did not say it," it continues the discussion as follows: 

And he who asked this, why did he ask it? Surely it is [a case of] "certain and certain" [Rashi: What did he think, (that the mishna) excludes Rabban Gamliel; surely it is not similar to what he said]!

Since most women are married [as] virgins, it is like [a case of] "certain and perhaps" [Rashi: Her claim is closer to being true than his is, and therefore it is like "certain and perhaps"]. 

            The means at the court's disposal to decide between the parties can be divided into three main categories: 

1)  Presumptive possession – who is regarded as the plaintiff upon whom the burden of proof falls.

2)  Proofs and substantiations that each party adduces to in support of his claim.

3)  The pleas of the parties – to what is each party entitled based on his own words.

 

At first glance, "certain and perhaps" belongs to the third category, and accordingly, the Gemara's statement, "Since most women are married [as] virgins, it is like [a case of] 'certain and perhaps,' which suggests a comparison with the second category is difficult: How does a proof such as "most women are married as virgins" help us define the case as one of "certain and perhaps"? 

Let us examine the words of the Kovetz Shiurim (ad loc., no. 44) relating to this issue. We shall first explain his position, and then present a slightly different approach: 

Since most women – as Rashi explains, her claim is more likely to be true than his claim, and it is like "certain and perhaps." The implication is that the reason that a claim asserted with certainty is preferred is that it is more likely to be true. But this is difficult for here we are dealing with a weak plea of "certain" and a strong plea of "perhaps," and this reason does not apply. 

            First of all, attention should be paid to the fact that the Kovetz Shiurim identifies the concept of "certain and perhaps" according to the authority who says that a claim asserted with certainty is preferred (the view of Rav Yehuda and Rav Huna on p. 12b, which was not accepted as law) with the idea of "certain and perhaps" which joins with a chezkat betula in order to take money from the defendant according to Rabban Gamliel. 

            This being the case, the Kovetz Shiurim tries to clarify the rationale underlying the rule that in a case of "certain and perhaps," the claim asserted with certainty is preferred. Here he proposes the following approach: "[The plaintiff's] claim is more likely to be true." That is to say, the state of "certain and perhaps" serves as substantiation in support of the party who asserts his claim with certainty, because the other party's ignorance raises doubts about his claim. This approach clearly emerges from the Tosafot in Bava Kama: 

You might ask that here the Gemara implies that Rav Yehuda does not maintain that a claim asserted with certainty is preferred, whereas below in the second chapter and in Ha-Sho'el: "If one person says to another: A maneh of mine is in your possession, and the other one says: I do not know, Rav Yehuda and Rav Huna say: He is liable, because the claim asserted with certainty is preferred… You can say… there the plaintiff's plea of "certain" is strong, because he knows that the defendant will deny his claim if he is lying, and also the defendant should know whether or not he owes him anything. Therefore, the fact that [the defendant] claims "perhaps" proves that [the plaintiff's] plea of "certain" is true, and [so] the plea of "certain" is preferred. But here [the plaintiff] asserts his claim with certainty because he knows that the defendant was not present at the time of the goring, and [the defendant's] plea of "perhaps" is strong because there is no reason for him to know – therefore [the plaintiff's] plea of "certain" is not preferred. (46a, s.v. de-afilu) 

            The Tosafot build the possibility of seeing "certain and perhaps" as a substantiation of the fact that we are dealing with a strong plea of "certain" and a weak plea of "perhaps" – the defendant should know, and his ignorance makes his claim suspect; and similarly, the plaintiff's plea asserted with certainty supports his claim, "because he knows that the defendant will deny his claim if he is lying." 

            Following this approach, the Kovetz Shiurim concludes with a difficulty: "But this is difficult, for here we are dealing with a weak plea of 'certain' and a strong plea of 'perhaps,' and this reason does not apply." That is to say, were this a case of "certain and perhaps," it would be a case of a weak plea of "certain" and a strong plea of "perhaps."[3] 

            We can resolve this difficulty by saying that the Gemara's initial assumption relates to the case of a divorced woman presenting a claim against her ex-husband, for there we are indeed dealing with a case of a strong plea of "certain" and a weak plea of "perhaps." Moreover, if we see "certain and perhaps" as a type of proof, here we might be dealing with an alternative proof, i.e., "most women are married as virgins," despite the fact that the "certain and perhaps" under discussion here is not of the sort that is considered proof. 

IV.       DECIDING THE LAW BASED ON THE PARTIES' PLEAS 

In my humble opinion, however, it is more reasonable to understand that the Gemara here is based on a different understanding of the rule that in a case of "certain and perhaps," the claim asserted with certainty is preferred, and of its combination with a chazaka, according to Rabban Gamliel. 

It seems that the simple understanding of the rule that in a case of "certain and perhaps," the claim asserted with certainty is preferred is not that we are dealing with a proof that meets the standards of the principle that "the burden of proof falls upon the plaintiff." But rather, that the realm of the pleas is significant enough to remove money from the defendant. When the court hears the plaintiff's claim but no counter claim on the part of the defendant (and for this purpose a plea of "perhaps" is not considered a counter claim), the only story that it knows is that of the plaintiff, and it acts accordingly. The rule that the burden of proof falls upon the plaintiff is never activated. This understanding is found in the Levush Mordekhai: 

The authority who maintains that in a case of "certain and perhaps," the plea asserted with certainty is preferred, maintains that since the Torah says, "if any man have any matters, let him come to them" (Shemot 24:14),[4] it means that when one person raises a claim against another, the second party is obligated to respond to his claim, and he is obligated to give a clear answer, for the plaintiff presented the court with his claims… Rav Huna and Rav Yehuda maintain: Since [the plaintiff] presents a strong plea that [the defendant] had borrowed from him, and [the defendant] answers, "I do not know," it is as if hasn't clearly presented his plea, for "I do not know" is not a response and clarification. (Ketubot, no. 9) 

            All of this is true according to the authority who maintains that in a case of "certain and perhaps," the plea asserted with certainty is preferred. We, however, are trying to clarify the position of Rabban Gamliel based on the approach of Rav Nachman and Rabbi Yochanan (which has been accepted as law), who do not say that in a case of "certain and perhaps," the plea asserted with certainty is preferred, but nevertheless in a case of "certain and perhaps" that is accompanied by a chezaka, we are prepared to remove money from the defendant. This combination can be explained based on the words of the Meiri. 

There is no need for these things[5] and they are merely additional support. For the primary factor is the claim asserted with certainty, for a plea of "perhaps" is not a plea in the presence of a plea asserted with certainty. (12b) 

            A similar view is found in the Shita Yeshana in the Shita Mekubetzet, ad loc.: 

In a case of "certain and perhaps" where the plea of "certain" is assisted by reason and support, in such a case Rav Nachman agrees that the plea asserted with certainty is preferred, for the other party presented a plea of "perhaps," and this one's claim is assisted by reason and support… for it is assisted by a chezkat haguf, in such a case of "certain and perhaps," Rav Nachman agrees. 

            This was explained by Rav Shach, z"l, as cited in his name by Rav Moshe Feinstein, z"l, in his Iggerot Mosheh: 

The fact that a legal presumption and a plea asserted with certainty or a miggo and a plea asserted with certainty works, even though each one on its own does not work – what is the reason that the combination of the two of them works in Ketubot 12? Because according to the laws of pleas and counter-pleas, when one party presents a claim, the other party is obligated to respond "yes" or "no," and the plea of "perhaps" is not a response. Only that Rav Nachman and Rabbi Yochanan maintain that in the absence of certain proof the [plaintiff's] claim is not a claim, and [the defendant] is not obligated to respond. Therefore, a miggo or a chazaka help turn the plaintiff's claim into a claim, to which the defendant must respond, and "perhaps" is not a response. 

            That is to say, even the opinion that in a case of "certain and perhaps" where the plea of "certain" is not supported by a chazaka, the plea asserted with certainty is not given preference – accepts the idea proposed above, namely, that a claim brought against a person demands a response, and a response of "perhaps" is not regarded as a response. But not every story related before the court is regarded as a claim that necessitates a response; only a story that has some kind of foundation is regarded as such a claim. Therefore, it is not the foundation that allows the plaintiff to takes the money from the defendant, but rather the substantiated claim. As for our case, the chezkat betula is not a proof that can take money from the defendant, but it is capable of turning the woman's words into a claim that requires a response, and the absence of a response on the part of the defendant who pleads "perhaps" decides the case in his disfavor. 

            Let us now return to our Gemara: "Since most women are married [as] virgins, it is like [a case of] 'certain and perhaps.'" It may be proposed that the Gemara does not mean to say that the claims of "certain and perhaps" clarify the matter as proof, but rather that owing to the fact that the husband put forward a less credible plea than that of the woman, he is regarded as not having put forward a fitting response. A dubious plea is not viewed favorably by the court, and therefore it has difficulty competing against a reasonable plea that accords with our regular understanding of reality. This being the case, we are dealing here with a situation that is truly similar to pleas of "certain" and "perhaps" according to our understanding: a plea that demands a response which does not get a fitting response. 

            It should, however, be remembered that this is all according to the Gemara's initial understanding, that the fact that "most women are married [as] betulot" defines the case as one of "certain and perhaps." It is certainly possible that according to the conclusion that our mishna is considered a case of "certain and certain," only a genuinely doubtful plea is regarded as a plea of "perhaps." 

            According to this explanation, there is no need to examine whether we are dealing here specifically with a strong plea of "certain" and a weak plea of "perhaps," for there is no need to say that Rabban Gamliel's view according to Rav Nachman and Rabbi Yochanan, that a plea of "certain" together with a chazaka is preferred to a plea of "perhaps," deals only with a strong plea of "certain" and a weak plea of "perhaps." 

V.        ANOTHER UNDERSTANDING OF RABBAN GAMLIEL'S POSITION 

Thus far we have presented two ways of understanding the rule that in a case of "certain and perhaps," the claim asserted with certainty is preferred, based on the assumption that even though we do not rule in accordance with this position, a similar rationale underlies the rule governing a claim of "certain" that is accompanied by a chazaka or miggo according to Rabban Gamliel. And according to this we offered two different explanations of the Gemara's initial understanding that "most women marry [as] virgins" is regarded as a situation similar to the case of "certain and perhaps." It seems, however, that we can suggest an entirely different understanding, according to which the view of Rabban Gamliel is not all based on the principle regarding the superiority of a claim asserted with certainty over a claim that is not asserted with certainty. 

It says in our Gemara that the chezkat betula helps in a case of "certain and perhaps," but does not help in a case of "certain and certain." What is the law in the case of "perhaps and perhaps"? According to what we have said thus far, it is clear that in such a situation the legal presumption would not help, for there is no foundation of "certain and perhaps" that the chazaka can support. The plaintiff has no built-in advantage over the defendant. 

We see, however, from the Shitah Mekubetzet, p. 75b, that the Rishonim disagreed about this issue: 

The Rivash writes in his novellae that even though Rabban Gamliel spoke only about the case of "certain and perhaps," but not about the case of "certain and certain," as we find above … here too it is a case of "certain and perhaps"… And so too write the Ramban and the Rashba. But Rashi writes that we have come to Rabban Gamliel who said there that she is believed because the chezkat haguf is given preference. This means: he is consistent with his position, and everything depends on the chezkat haguf …. And a distinction must be made between the case of "certain and certain" and the case of "perhaps and perhaps," and this is easy to understand. 

            According to the view that Rabban Gamliel's ruling applies even in the case of "perhaps and perhaps," the combination of pleas and chazaka must be understood in a different manner. If the situation of "perhaps and perhaps" suffices, even though with respect to the claims the plaintiff enjoys no advantage, it is clear that the factor that allows the money to be taken from the defendant is the chezkat betula. Only that it does not have the power to allow the money to be taken from a defendant who asserts his claim with certainty. That is to say, according to the previous explanations, the main thing in the position of Rabban Gamliel, who maintains that a claim asserted with certainty together with a chazaka allows money to be taken from a defendant claiming "perhaps," is the plaintiff's claim asserted with certainty versus the defendant's claim of "perhaps." But since the claim asserted with certainty does not suffice by itself, the chazaka is also required. According to this explanation, the situation is just the opposite – the main thing is the chazaka. But because it does not suffice by itself, the defendant's claim of "perhaps" is also necessary. This can be understood as follows: When a person claims "perhaps" his chezkat mamon is weakened, for he himself isn't claiming that he should retain possession of his money. Since his chezkat mamon is weak, the money can be removed from him on the basis of the chezkat betula, even though this does not constitute proof in the usual sense of the word. 

            To clarify the matter, let it be added that there are two levels of chezkat mamon: 

1) Money cannot be removed from a person without special justification.

2) Our starting assumption is that a person has a legal right to the money found in his possession.[6]

 

The chezkat betula cannot serve as a proof that can undermine the assumption of legal tights. When, however, the defendant himself fails to deny the claim made against him (but merely pleads "perhaps"), this assumption, by its very nature, does not exist, and we are left solely with the first level. When there is only this level, the property in one’s possession is not removed without justification. Chezkat betula is indeed strong enough proof to justify removing money from the defendant.[7]

According to this approach, it might be possible to understand the Gemara in a slightly different manner: 

And he who asked this, why did he ask it? Surely it is [a case of] "certain and certain"!

Since most women are married [as] betulot, it is like [a case of] "certain and perhaps." 

            We suggested above that a dubious claim is considered like a claim of "perhaps," and therefore the claim asserted with certainty that is supported by a chazaka and necessitates a response is left without a response and accordingly is preferred. Now, however, we can present the matter in a more moderate manner: the fact that a claim is dubious is not significant enough to define it as if there were no response, but it suffices to undermine the defendant's chezkat mamon, just as a plea of "perhaps" undermines his chazaka. For a litigant who presents a dubious plea is not perceived by the court as the owner – a necessary condition for chazaka. This being the case, a chazaka can remove money from the defendant, just as it can remove money from a person who claims "perhaps." 

Of course, all this was said according to the Gemara's initial assumption, but according to the conclusion it would seem that this principle only applies to an actual plea of "perhaps." 

PREPARING FOR THE NEXT SHIUR 

            In the next shiur we shall examine the last clause of the mishna, "And Rabbi Yehoshua agrees…," and the continuation of the Gemara on p. 16a until "there is a slaughtered ox before you. 

1.  What is the difficulty with the miggo upon which Rabban Gamliel relies? (See Ritva 12b, s.v. girsat Rashi; Shita Mekubetzet, end of 12b, s.v. ve-zeh lashon shita yeshana; Rashba, Kiddushin 50a, s.v. ha de-amrinan hava leh meizid).

2.  What precisely is the case about which Rabbi Yehoshua agrees in the mishna? What is the meaning of "there is a slaughtered ox before you" (pay attention to the meaning of these words according to the Rishonim and in which case is there a slaughtered ox)? 

See the following sources: 

1.  Rashi, s.v. she-ha-peh she-asar; iy amrat bishlama; hakha.

2.  (Tosafot, s.v. u-modeh; hakhi); Tosafot, s.v. hatam.

3.  Ba'al ha-Ma'or, 5b in Alfasi, s.v. hakhi.