79b: Doubts About Kiddushin

Over the past couple of shiurim, we have been engrossed in the machloket (dispute) between Rav and Shemuel concering a case in which a father accepts kiddushin (betrothal) on his daughter's behalf early in the day and she herself accepts kiddushin from someone else later on that day. The case hinges on the girl's status: a father may accept kiddushin for his daughter until she becomes a bogeret, which means she has reached full adulthood, which depends upon both age and physical maturity. The onset of bagrut is expected to be six months after the initial stage of adulthood, called na'arut (during which the girls is referred to as a na'ara). The machloket is about a case in which the two attempted betrothals happened on the very day that we expect the girl to become a bogeret. Sure enough, the girl is examined at the end of the day and found to be a bogeret. Rav rules that we can assume she was a bogeret earlier in the day as well, while Shemuel rules that we must treat both betrothals as questionable.

In the passage we studied last shiur, the gemara attempted to show that the machloket between Rav and Shemuel is actually an older dispute between tanna'im. The gemara concluded that the two disputes are not fully parallel, and both Rav and Shemuel can claim to have the support of both tanna'im mentioned there. The gemara we will study today makes another attempt here to show that there is a tanna'itic antecedent for the dispute between Rav and Shemuel.

We begin about a third of the way down on 79b.

The gemara references two beraita'ot (plural of beraita) that both address the case that Rav and Shemuel discuss. One beraita concludes that "she is a bogeret in front of us," meaning that her current status as a bogeret is decisive. We assume that she was a bogeret earlier in the day as well, and the kiddushin accepted by her father is therefore not valid. The other beraita states that we must be concerned about both kiddushins, meaning that each is treated as a safek. Clearly, the first beraita seems to be consistent with the ruling of Rav while the second apparently confirms the ruling of Shemuel!

The gemara counters that it is possible to claim that both beraita'ot are actually consistent with the policy articulated by Shemuel. The first beraita addresses a case in which the girl "contradicts" her father, meaning that she claims that she was a bogeret at the time her father accepted kiddushin on her behalf. In such a case, the combination of the fact that she was known to be a bogeret later in the day and her claim that she had already produced the signs of bagrut earlier in the day allow us to conclude with certainty that she was a bogeret at that earlier time. However, if the girl does not claim to know with certainty that she was a bogeret at the time her father accepted kiddushin on her behalf, the second beraita is applicable, and we treat both kiddushins as questionable. Thus, neither beraita necessarily confirms Rav's opinion that we assume the girl was a bogeret earlier in the day even in the absence of her claim to that effect.  

Let us continue in the gemara.

Now that the gemara has added the new factor of the girl's claim, and on that basis has asserted that the beraita'ot do not argue but rather address different sets of circumstances, the gemara suggests that perhaps Rav and Shemuel themselves do not argue! Perhaps Rav's ruling was meant for a situation in which the girl claims to have been a bogeret at the time her father accepted kiddushin while Shemuel's ruling applies to a case in which she does not make such a claim.

The gemara rejects this suggestion based on an incident that directly relates to this case. The case about which Rav and Shemuel argue actually came before Rav Yosef, who ruled in accordance with Rav, that the girl may be presumed to have been a bogeret at the time her father accepted kiddushin on her behalf. Shemuel heard about this and expessed his displeasure regarding Rav Yosef's ruling. Essentially, he said: Does this rabbi think that he is so much wiser than everyone else, that he knows for sure that this girl was a bogeret? The fact that Shemuel was so upset clearly indicates that he and Rav must have a disagreement! If our previous suggestion was correct, that Rav only applies his ruling when the girl claims to know with certainty that she was a bogeret at the critical time, and Shemuel agrees to that ruling, why should Shemuel have objected?

At this point, it is critical for us to examine the transition between the hava amina, the initial thought of our sugya, and its conclusion, the maskana. Previously, we had understood that Rav and Shemuel argue in both cases, whether the girl claims to have been a bogeret when her father accepted kiddushin or not. The hava amina in our sugya is that there is no machloket between Rav and Shemuel because they both agree that we assume the girl to have certainly been a bogeret in the case in which she "contradicts him," and we treat the case as a safek if she does not contradict him. This suggestion contains a dual revision of our original understanding: 1) Rav agrees that it is a safek if the girl does not claim to have been a bogeret at the earlier time. 2) Shemuel admits that the girl can be considered to have been a definite bogeret at the time her father accepted kiddushin for her if she claims that to have been the case. According to the maskana,  it is clear that there is a machloket, and we therefore return to the original understanding of the gemara. The hava amina mentioned here is completely rejected.  This is the standard interpretation of the gemara.

However, there is another interpretation as well, presented by the Ramah (Rav Meir Halevi). He claims that the gemara was certain that the case in which Rav Yosef made his ruling was one in which the girl contradicts her father. This is because that case is actually the only one in which Rav insists that the girl must have been a bogeret when her father accepted kiddushin on her behalf. In other words, the hava amina of our gemara is not fully rejected. The story has demonstrated that Shemuel holds it is a safek even if the girl contradicts her father, but we have not seen any indication that Rav argues even if the girl does not contradict her father. We have no reason to reject the hava amina's first revision of our initial understanding of the machloket. Thus, although Rav and Shemuel still argue, their dispute is not as far reaching as originally thought.

[This question of how to understand the maskana may be based on two different versions of the text. Our girsa (version) of the text says that "perhaps" (דילמא) it was a case in which the girl contradicted her father. However, the word דילמא appears with an asterisk above it, which directs the reader to the inside margin of the page. The note there points out that the Maharsha, one of the classic commentators on the Gemara (and particularly on Tosafot) claims that the correct girsa does not have the word דילמא. This indicates that the gemara was certain that the case was one in which the girl contradicted her father. This may support the interpretation of the Ramah.]

The issue of the extent to which we reject our hava amina is one that is important both from the perspective of methodology and, in this instance, from a halakhic standpoint as well. Whenever the Gemara rejects a hava amina, it is very important to consider whether the entire hava amina is being rejected or only a part of it. In this case, it makes a difference in a practical sense.

The passage we are currently studying concludes with a discussion about who the halakha follows in this case. Ameimar rules like Shemuel while Rav Ashi differs. The gemara's last word is that the halakha follows Rav. That being the case, what it is that Rav holds is of great significance, and that is exactly the point of contention between the two interpretations we have explained above. Both agree about Shemuel's opinion; the question is if Rav disagrees even if the girl does not claim to have been a bogeret when her father accepted kiddushin on her behalf. According to the standard interpretation, Rav holds that the father's kiddushin is deemed invalid regardless of whether or not the girl claims to have been a bogeret at that time. According to the Ramah, the gemara has accepted part of the hava amina, and Rav therefore makes his ruling only when the girl does claim to know with certainty that she was a bogeret when her father accepted kiddushin for her. If the girl herself is not sure when exactly she became a bogeret, we will have to treat the case as a safek. 

The question of how to understand the maskana of our gemara has not been fully resolved; the Shulchan Arukh (EH 37:5) quotes both opinions as to the halakha in a case in which the girl doesn't claim with certainty to have been a bogeret when her father accepted kiddusin.

Next week, we begin the next mishna, which introduces a new topic.