Babylonian Talmud: Tractate Kethuboth

Folio 12a

Rabbah said: This teaches that if he married her in the presumption that she was a virgin and she was found to have had intercourse she gets a kethubah of a maneh.¹  R. Ashi said: [No.] generally.I can tell you. she receives indeed nothing; but it is different here, because the first one had married her.²  But let us apprehend that perhaps she was unchaste under him!³  — Said R. Sherabia: [We] suppose he betrothed her to himself and had immediately intercourse with her.⁴

Some⁵  there are who refer this⁶  to our Mishnah: A VIRGIN, WHO IS A WIDOW, A DIVORCEE OR A HALUZAH FROM MARRIAGE, — HER KETHUBAH⁷  IS A MANEH AND THERE IS NO CLAIM OF VIRGINITY WITH REGARD TO THEM. A VIRGIN FROM MARRIAGE' — how is it possible? — When she was brought into the bridal chamber and no intercourse took Place. Rabbah said: This teaches that if he married her in the presumption that she was a virgin and she was found to have had intercourse she gets a kethubah of a maneh.⁸  R. Ashi said: [No.] indeed, I can tell you. generally she gets nothing; but it is different here, because she was brought into the bridal chamber.⁹  But let us apprehend that perhaps she was unchaste under him!¹⁰  — Said R. Sherabia: When he betrothed her to himself and had immediately intercourse with her.¹¹  He who refers this¹²  to the Baraitha,¹³  how much more [would this apply] to our Mishnah.¹⁴  But he who refers this to our Mishnah would not apply it to the Baraitha, because he could say unto her, 'I have relied upon the witnesses.'¹⁵

MISHNAH. HE WHO EATS WITH HIS FATHER-IN-LAW IN JUDAEA WITHOUT THE PRESENCE OF WITNESSES CANNOT RAISE A COMPLAINT REGARDING THE VIRGINITY. BECAUSE HE HAS BEEN ALONE WITH HER.¹⁶

GEMARA. Since it says¹⁷  in the Mishnah HE WHO EATS,¹⁸  It follows that there are places also in Judaea where one does not eat.¹⁹  Abaye said: Conclude from this that in Judaea, too, the places differ in their custom, as it was taught: R. Judah said: In Judaea they used formerly to leave the bridegroom and the bride alone one hour before their entry into the bridal chamber, so that he may become intimate with her,²⁰  but in Galilee they did not do so. In Judaea they used formerly to put up two best men,²¹  one for him and one for her, in order to examine the bridegroom and the bride when they enter the bridal chamber,²²  and in Galilee they did not do so. In Judaea. formerly. the best men used to sleep in the house in which the bridegroom and the bride slept, and in Galilee they did not do so. And he who did not act according to this custom could not raise the charge of non-virginity.²³  To which [does this²⁴  refer]? Shall I say [that it refers] to the first clause?²⁵  [If so,] It ought to read, 'He who acted²⁶  [according to this custom]!' Again²⁷  [if you will say that it refers] to the last clause,²⁸  it ought to read, 'He who was not examined!'²⁹  — Abaye said: Indeed [it refers] to the first clause, so read.³⁰  'He who acted [according to this custom].' Said Raba to him: But it reads,³¹  He who did not act!' But. said Raba. it means thus: He who did not act according to the custom of Galilee in Galilee but [acted] according to the custom of Judaea in Galilee cannot raise the claim of virginity. R. Ashi said: Indeed [it refers] to the last clause,³²  and we should read,³³  'He who was not examined.'³⁴

MISHNAH. IT IS ALL ONE WHETHER [THE WOMAN IS] AN ISRAELITISH WIDOW OR A PRIESTLY WIDOW³⁵  — HER KETHUBAH IS A MANEH. THE COURT OF THE PRIESTS³⁶  COLLECTED FOR A MAIDEN³⁷  FOUR HUNDRED ZUZ, AND THE SAGES DID NOT PROHIBIT [IT] TO THEM.³⁸

GEMARA. A Tanna taught: And the priestly widow-her ketubah is two hundred [zuz]. But we have taught in our Mishnah: AN ISRAELITISH WIDOW AS WELL AS A PRIESTLY WIDOW — HER KETHUBAH IS A MANEH! — Said R. Ashi: There were two ordinances. At first they³⁹  ordained for a maiden four hundred zuz and for a widow a maneh.

1. [For evidently he relied on the evidence that the first marriage was not consummated, and thus married her on the presumption that she was a virgin. and still it is said that he cannot bring a charge against her to make her forfeit the kethubah of a maneh to which she is entitled as a widow.]
2. And there may have been intercourse and this militates against the presumption that she was a virgin on the second marriage.
3. After the betrothal to the second husband. [Why then should he not be able to bring a charge against her so as to give witnesses an opportunity to testify as to the true facts?]
4. So that unchastity was impossible.
5. Lit., 'and some'.
6. I.e., the observations of Rabbah, R. Ashi and R. Sherabia.
7. I.e., the kethubah of each of them.
8. V. supra p. 60, n. 11.
9. [So that it is to be assumed that the marriage was consummated, v. supra p. 60, n. 12.]
10. After the betrothal to the second husband.
11. So that unchastity was impossible.
12. I.e., the observations of Rabbah, R. Ashi and R. Sherabia.
13. Fol. I 11b, bottom. In the case of the Baraitha there were witnesses that there was no intercourse.
14. In the Mishnah there were no witnesses that no intercourse took place.
15. And in view of the testimony of the witnesses the presumption that she was a virgin is a strong one, so that R. Ashi's reply to Rabbah would not hold good. True, 'the first one married her,' but there are witnesses who say that no intercourse took place. Rabbah's deduction from the Baraitha would therefore be justified.
16. And he may have had intimate intercourse with his bride.
17. Lit., 'reaches'.
18. In the house of the father-in-law.
19. V. note 3.
20. Lit., 'that his heart may become bold,' towards her, that is that he may become used to her. V. Krauss, T.A II, p. 461. n. 341.
21. Heb. Shoshebin, groomsman, v. B.B. (Sonc ed.) p. 615, n. 10.
22. So that they should not deceive one another regarding the tokens of virginity (Rashi). [That would be in such localities in Judaea where the young affianced people were not allowed to be alone before the entry into the bridal chamber. This shews that customs differed in Judaea itself.]
23. Cf. Tosef. Keth. I.
24. The last sentence from 'and' till 'virginity'.
25. In which it said that in Judaea they used to leave the bridegroom and the bride alone.
26. If he did not act according to this custom he ought to be able to raise the charge of non-virginity'.
27. Lit., 'but'.
28. With regard to the examination by the best men.
29. I.e., he over whom there was no supervision by the best man, v. Rashi
30. Lit., 'and teach'
31. Lit., 'teaches'.
32. With regard to the examination by the best men.
33. Lit., 'and teach'.
34. I.e., over, whom there was no supervision by the best man.
35. An Israelitish widow is the widow of an ordinary Israelite who was also the daughter of an ordinary Israelite. A priestly widow is a widow who was the daughter of a priest; v. Rashi.
36. [ (a) A court of twenty-three judges holding sessions in priestly communities (Shittah Mekubbezeth. a.l.); (b) A Sanhedrin dominated by Sadducean or High-priestly elements. (V. Geiger Urschrift, pp. 114ff: and Buchler, Swartz Festshrift).]
37. For the virgin-maiden that was the daughter of a priest; v. Rashi.
38. Lit., 'did not strike at their hand', 'protest [ (a) Although the same was recorded as part of the Kethubah proper and not as the extra addition. v. infra 54b, the payment thereof would he enforced; (b) or. although not recorded at all, the woman could collect it by virtue of the prevalent custom, v, Tosaf.]
39. The Court of the priests.

When they saw that they¹  treated them²  lightly.³  they ordained for them⁴  two hundred [zuz]. When they saw [again] that they⁵  kept away from them,⁶  for they⁷  said, 'Instead of marrying a priestly widow, we shall rather marry⁸  the virgin-daughter of an Israelite,'⁹  they restored their [former] ordinance.¹⁰

THE COURT OF OUR PRIESTS, etc. R. Judah said [that] Samuel said: They¹¹  did not say it only [regarding] the court of the priests.¹²  but even the noble families¹³  in Israel, if they want to do as¹⁴  the priests do,¹⁵  may do [so]. An objection was raised: If one wants to do as¹⁴  the priests do,¹⁵  for instance [if] the daughter of an Israelite [gets] married to a priest. or the daughter of a priest [gets married] to an Israelite, one may do [so]. [We would infer from this that only if] the daughter of an Israelite [gets married] to a priest, or the daughter of a priest [gets married] to an Israelite, [it is allowed to do as the priests do], because there is [then] one side of priesthood.¹⁶  but if the daughter of an Israelite [gets married] to an Israelite, it is not [allowed to do as the priests do]!¹⁷  — The Mishnah states here a case of 'not only'; not only [is it allowed¹⁸  in the case of] the daughter of an Israelite [getting married] to an Israelite, who cannot say to her 'I raise thee' [to a higher position];¹⁹  but [in the case of] the daughter of an Israelite [getting married] to a priest. who can say to her, 'I raise thee [to a higher position].'²⁰  I might think that it is not allowed;²¹  [hence] he lets us hear [that this is not so].²²

MISHNAH. IF A MAN²³  MARRIES A WOMAN AND DOES NOT FIND²⁴  IN HER VIRGINITY [AND] SHE SAYS, AFTER THOU HADST BETROTHED ME [UNTO THEE]²⁴  WAS FORCED AND [SO] THY FIELD HAS BEEN INUNDATED'²⁵  AND HE SAYS, 'NO, BUT [IT OCCURRED] BEFORE I BETROTHED THEE [TO ME] AND MY BARGAIN WAS A MISTAKEN BARGAIN' — RABBAN GAMALIEL AND R. ELIEZER SAY [THAT] SHE IS BELIEVED. [BUT] R. JOSHUA SAYS: WE DO NOT LIVE FROM HER MOUTH,²⁶  BUT SHE IS IN THE PRESUMPTION OF HAVING HAD INTERCOURSE²⁷  BEFORE SHE WAS BETROTHED AND HAVING DECEIVED HIM, UNTIL SHE BRINGS PROOF FOR HER STATEMENT.²⁸

GEMARA. It was stated: [If one person says to another person]. 'l have a maneh in your hand,'²⁹  and the latter³⁰  says. 'I do not know³¹  — Rab Judah and R. Huna Say: [He is] bound [to pay].³²  and R. Nahman and R. Johanan Say: [he is] free [from the obligation to pay].³³  R. Huna and R. Judah say: [he is] bound [to pay]. [because they hold that] in the case of 'sure', and 'perhaps'. 'sure' has it.³⁴  R. Nahman and R. Johanan say: [he is] free [from the obligation to pay] [because they hold the view]: leave³⁵  the money in the possession of its present owner.³⁶  Abaye said to R. Joseph: The opinion³⁷  of R. Huna and Rab Judah corresponds with the view of Samuel,³⁸  for we have learned: [If] she³⁹  was pregnant, and they said to her, 'What is the nature of this embryo?'⁴⁰  [and she answered]. 'It is from the man So-and-So, and he is a priest.' Rabban Gamaliel and R. Eliezer say [that] she is believed. And Rab Judah said [that] Samuel said [that] the halachah is according to Rabban Gamaliel. And R. Samuel b. Judah said to Rab Judah: Sharpwitted one!⁴¹  You said to us in the name of Samuel [that] the halachah is according to Rabban Gamaliel also in the first⁴²  [Mishnah]. [Now what means]: 'also in the first [Mishnah]'? [Assuredly it must mean]. although one could say⁴³  'leave the money in the possession of its [present] owner.' [still] Rabban Gamaliel said: 'sure' has it.⁴⁴  Is it [then] to say that R. Judah and R. Huna follow the opinion of Rabban Gamaliel, and R. Nahman and R. Johanan follow the opinion of R. Joshua? — R. Nahman can answer you:⁴⁵  I even follow the opinion of⁴⁶  Rabban Gamaliel; only Rabban Gamaliel says it there⁴⁷  because there is miggo.⁴⁸  but what miggo is there here?⁴⁹  Or [again]: Rabban Gamaliel says it only there, because we Say: leave her in her presumptive state,⁵⁰  but here what presumptive state has he got?⁵¹  It is also evident that [it is right] as we have answered, that R. Nahman follows the opinion of⁵²  Rabban Gamaliel,

1. The husbands who married widows of priestly stock.
2. The wives.
3. And easily divorced them, because the amount of their kethubah was not high (Rashi).
4. The wives.
5. The would-be husbands.
6. The widows of priestly stock.
7. The would-be husbands.
8. Lit., 'we shall go and marry'.
9. Lit., 'a virgin, a daughter of an (ordinary) Israelite', seeing that both receive the same kethubah.
10. Lit.. 'they restored their words'.
11. The scholars.
12. That the kethubah of the virgin-daughter of a priest could be increased to four hundred zuz.
13. I.e., families of distinguished birth.
14. Lit., 'according to the way', 'manner'.
15. And increase the kethubah to four hundred zuz.
16. I.e., one of them, either the bridegroom or the bride, is of the priestly family.
17. And increase the kethubah to four hundred zuz.
18. To increase the kethubah to four hundred zuz.
19. As they are both of ordinary Israelite families.
20. To the privileged position of the wife of a priest.
21. To increase the kethubah to four hundred zuz.
22. That it is allowed to increase the kethubah to four hundred zuz.
23. Lit., 'he who marries'.
24. Lit., 'and he did not find'.
25. I.e., 'it is thy loss.
26. I.e., we do not go by what she says and we do not believe her.
27. With another man.
28. Lit., 'for her words'.
29. I.e., you owe me a maneh.
30. Lit., 'this one'.
31. The person from whom the money is claimed neither denies nor admits the claim.
32. The person against whom the claim is made must pay' the maneh to the claimant.
33. The person against whom the claim is made need not pay anything.
34. Lit., 'better', 'preferable'. — When one litigant asserts a certainty and the other litigant puts forward the plea of 'I do not know,' judgment is given for the one who asserts a certainty.
35. Or, let stand.
36. Lit., 'in the presumption of its owner'. The phrase here signifies: leave the money in the possession of its present holder, because, as he is the holder of the money', he is in the presumption of being its rightful owner.
37. Lit., 'This'.
38. Lit., 'it is of Samuel'.
39. An unmarried woman.
40. i.e., who is the father of this expected child,'
41. Heb. Shinena. V. B.K. (Sonc. ed.) p. 60 n. 2.
42. I.e., in our Mishnah, which is the first of the three Mishnahs in which Rabban Gamaliel and R. Eliezer say that she is believed. The first Mishnah will also include the following Mishnah, where, as in our Mishnah, the kethubah is the point at issue.
43. Lit., 'there is to say'.
44. [Since he accepts the woman's plea which is 'sure' in preference to the husband's which is 'doubtful'. Which shews that R. Huna and Rab Judah in their ruling follow the view of Samuel that the halachah follows Rabban Gamaliel.]
45. Lit., 'R. Nahman says unto thee'.
46. Lit., 'I who say ever.
47. Lit., 'until now Rabban Gamaliel does not say there'.
48. Miggo, means since,' 'because,' and 'in consequence of,' and is used here as a legal term, denoting 'a legal rule according to which a deponent's statement is accepted as true on the ground that, if he had intended to tell a lie, he might have invented one more advantageous to his case,' v. Jast. s. v'. The Miggo here is this: Instead of saying that she was forced to have intercourse, she could have said that she was injured by a piece of wood. [This would be a more advantageous plea since it does not disqualify her from marrying a priest as does the plea that she had been forced. And similarly in the case of the next Mishnah she might have maintained that her accident happened after she had become betrothed to him, and thus is entitled to a kethubah of two hundred zuz instead of pleading that it occurred before, reducing thereby her claim to a maneh. V. Rashi.]
49. In the case of the money claim, what miggo is there which we could apply to the claimant? Therefore, we say, 'leave the money in the possession of its (present) owner.'
50. The presumption is that the maiden is a virgin. This presumption holds good until she had been found not to be a virgin, and this has been found only after her betrothal. Therefore she was, at the time of her betrothal, in the presumptive state of a virgin.
51. There is no presumption in favour of the claimant. The presumption is in favour of the person from whom the money is claimed, since he holds the money.
52. Lit., 'says'.