Babylonian Talmud: Tractate Kethuboth

Folio 9a

He who says. I have found an 'open opening'¹  is trusted to make her forbidden for him.²  Why?³  It is a double doubt:⁴  It is a doubt [whether she had the intercourse with the other man while] under him,⁵  or,⁶  [while] not under him.⁷  And if you say⁸  that [she had that intercourse while] under him, [there is] the [other] doubt [whether she had that intercourse] by violence or⁹  by [her free] will! — It was necessary¹⁰  [to state this rule] in the case of the wife of a priest.¹¹  And if you wish, you may say [that it speaks of] the wife of an Israelite,¹²  and for instance when her father received the betrothal for her [when] she was less than three years and one day old.¹³  What does he¹⁴  let us hear by [this since] we have already learnt [it]:¹⁵  'If a man says¹⁶  to a woman, "I have betrothed thee [to myself]", and she says, "Thou hast not betrothed me [to thyself]," she is allowed [to marry] his relatives, but he is forbidden [to marry] her relatives.'¹⁷  — What you might have supposed is that there¹⁸  [he causes a prohibition to himself] because it is certain to him,¹⁹  but here it is not quite certain to him.²⁰  [Therefore] he²¹  lets us hear [this rule].²²  But did R. Eleazar say so? Did not R. Eleazar say: The wife does not become forbidden for her husband save in the case of²³  warning²⁴  and seclusion,²⁵  and as [we find in] the occurrence that happened?²⁶  But how can you [in any case] understand it?²⁷  Was the occurrence that happened accompanied by warning and seclusion? And again, did they²⁸  declare her²⁹  forbidden?³⁰  — This is no difficulty, [for] thus he³¹  means to say:³²  The wife does not become forbidden for her husband save in the case of warning and seclusion, [and this we learn] from the occurrence that happened, because [there] there was no warning and seclusion and [therefore] she³³  was not forbidden.³⁴  But [the former question] is nevertheless difficult. In the [case of] warning and seclusion but not [in the case of] 'an open opening'!³⁵  — But according to your argument³⁶  [the question could be asked]: [in the case of] warning and seclusion, yes, [and in the case of] witnesses,³⁷  no! Hence he³⁸  means to say thus: The wife does not become forbidden for her husband through one witness³⁹  but through two witnesses;⁴⁰  but in the case of warning and seclusion:⁴¹  even through one witness,⁴²  and 'an open opening' is like two witnesses.⁴³  And if you will say: [In the case of] the occurrence that happened. why did they not declare her forbidden?⁴⁴  [The answer is:] There it was compulsion.⁴⁵  And if you wish you can say as R. Samuel the son of Nahmani said⁴⁶  [that] R. Jonathan said:

1. 'An open opening' is a euphemistic expression for 'absence of virginity'. The husband, after the first intercourse with his young wife, claims that he found no virginity.
2. V. infra.
3. Lit., 'And why?' — The question is: Why should his wife become forbidden for him by what he said regarding the absence of her virginity?
4. Lit., the doubt of a doubt'.
5. Under her husband, that is, since the betrothal (erusin); in which case she is regarded as an adulteress who is forbidden to live with her husband. V. Sanh. 51a.
6. Lit., 'A doubt'.
7. Before her betrothal.
8. Lit., 'If thou wilt be found (consequently) to say.'
9. If a betrothed (or married) woman is violated by another man she does not become forbidden for her husband. V. infra 51b, v. also Deut. XXII, 25-27.
10. Lit., not necessary', i.e., it would not have been necessary but for the case of the wife of a priest. The meaning is: the rule applies in the case of the wife of a priest.
11. If the wife of a priest was violated she was forbidden for her husband. V. infra 51b, and Yeb. 56b.
12. I.e., an ordinary Jew, not a priest.
13. In this case there is only one doubt: whether she was violated, or submitted by her free will. The other doubt ('under him' or 'not under him') does not arise since in the latter case her virginity would not be affected. V. Ned. 44b.
14. R. Eleazar (an Amora).
15. That a man may, by his own evidence, prohibit for himself a thing or a person otherwise permitted to him.
16. Lit., 'he who says'.
17. The forbidden degrees of relatives by marriage; v. Kid. 65a.
18. Kid. 65a.
19. Lit., 'it is certainly established to him.'
20. His grievance may' be imaginary.
21. R. Eleazar.
22. That he is believed.
23. Lit., 'over the affairs of'.
24. Given to the wife by the suspecting husband.
25. Of the wife with the suspected man. V. Num. V, 11ff; cf. Sol. 2a and 2b.
26. Lit., 'according to the deed that was'. I.e., of David and Bathsheba, cf. II Sam. XI. This contradicts the dictum of R. Eleazar that the woman becomes forbidden on a mere charge by her husband of an 'open opening'.
27. This latter dictum of R. Eleazar.
28. The authorities.
29. Bath-sheba.
30. [For Judah. The fact that she was allowed to marry David shews that she was not forbidden to Uriah, for it is a general rule that an adulteress is forbidden to continue with her husband as well as her paramour. Sot. 27b.]
31. R. Eleazar.
32. Lit., 'he says'.
33. Bath-sheba.
34. For Uriah. V. p. 44, n. 20.
35. Lit., 'warning … yes; an open … no.' I.e., the words of R. Eleazar imply that the wife would be forbidden for her husband only in case of warning and seclusion, but not in the case of 'an open opening', which contradicts his former ruling.
36. If you are to argue from the implications of R. Eleazar's words as they stand.
37. Why should the evidence of witnesses that the wife was unfaithful be weaker than warning and seclusion? Surely this cannot be!
38. R. Eleazar.
39. By the evidence of one witness that the wife was unfaithful; v. Rashi ad loc.
40. By the evidence of two witnesses.
41. Where there are two witnesses to the warning and seclusion.
42. If even only one witness testified to the adultery that followed she is forbidden to her husband. V. Sot. 2b.
43. I.e., the charge of an 'open opening' by her husband is on a par with the evidence of two witnesses.
44. For David, seeing that many people knew of the occurrence, and thus there were witnesses.
45. Bath-sheba could not resist the demand of the king. [And since she was thus not forbidden to Uriah, she was permitted also to David. (V. supra p. 44, n. 20)].
46. Lit., 'as that which R. Samuel the son of Nahmani said'.

Everyone who goes out into the war of the House of David writes for his wife a deed of divorce,¹  for it is written, And to thy brethren shalt thou bring greetings, and take their pledge.²  What [is the meaning of], 'and take their pledge'? R. Joseph learnt: Things which are pledged between him and her.³

Abaye said: We have also learned⁴  [this]:⁵  A MAIDEN IS MARRIED ON THE FOURTH DAY OF THE WEEK. [This implies] only on the fourth day, but not the fifth day.⁶  What is the reason? [Presumably] on account of the cooling of the temper.⁷  Now in which respect [could the cooling of the mind have a bad result]? If with regard to giving her the kethubah,⁸  let him give it to her.⁹  Consequently¹⁰  [we must say only] with regard to making her forbidden for him;¹¹  and [it is a case where] he puts forward a claim.¹²  Is it not that he puts forward the claim of 'an open opening'?¹³  — No, [it is a case where] he puts forward the claim of blood.¹⁴

Rab Judah said [that] Samuel said: If any one says. 'I have found an open opening', he is trusted to cause her to lose her kethubah. Said R. Joseph: What does he¹⁵  let us hear? We have [already] learned [this]:¹⁶  He who eats¹⁷  at his father-in-law's [between the time of betrothal and the time of marriage] in Judaea,¹⁸  without witnesses, cannot [after the marriage] raise the claim of [the loss of] virginity, because he is alone with her.¹⁹  In Judaea he cannot raise this claim, but in Galilee²⁰  he can raise it. Now in which respect? If to make her forbidden for him, why [should he] not [be able to raise this claim] in Judaea?²¹  Consequently²²  [we must say it is] to cause her to lose her kethubah;²³  and [it is in a case] when he raises a claim. Is it not that he raises the claim of 'an open opening'? — No, when he raises the claim of blood.²⁴

1. [So that in case he falls in battle his wife should be free to marry without the necessity of halizah. The Get would in that case take effect retrospectively from the date of its writing (Rashi). Tosaf.: He writes a Get without any conditions to take effect immediately]
2. I Sam. XVII, 15.
3. I.e., the betrothals, these thou shalt take from them by a deed of divorce (Rashi).
4. We have been taught in a Mishnah; v. supra 2a.
5. That the claim of 'an open opening' makes the wife forbidden for the husband.
6. Lit., 'on the fourth day, yes, on the fifth day, no.'
7. The husband might be appeased by the following Monday, cf. supra 2a and 5a.
8. V. Glos.
9. No harm is done by this. There is no sin involved in the payment of the marriage settlement to the wife, even if, in law, she forfeited it through her conduct.
10. Lit., 'but'.
11. If her conduct makes her forbidden for the husband for marital intercourse then the disregard of this prohibition would involve a sin. And therefore a maiden marries on the fourth day of the week so that there should be no 'cooling of the mind'.
12. I.e., the husband must have put forward a serious claim.
13. As evidencing unfaithfulness, This proves that the charge of an 'open opening' by the husband renders his wife forbidden to him.
14. I.e., he claims that there was no bleeding. And this is a more manifest sign of the absence of virginity, evidencing unfaithfulness, than 'an open opening.
15. Rab Judah.
16. In a Mishnah; cf. infra 22a.
17. I.e., he who frequently visits the house of the father of his betrothed bride.
18. This was customary in Judaea.
19. And might have had intimate relations with the bride.
20. In Galilee that custom (v. p. 46, n. 16) did not prevail.
21. If he is sure that he has not been intimate with her during the time of betrothal and he charges her with unfaithfulness, he renders her, by the mere charge, forbidden to him?
22. Lit., 'but'.
23. In Judaea he cannot make her lose the kethubah, because he might have been intimate with her during the period of betrothal.
24. And therefore Samuel's statement is necessary.