THOUGHTS ON THE DAILY DAF
brought to you by Kollel Iyun Hadaf of Har Nof
Rosh Kollel: Rav Mordecai Kornfeld
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KIDUSHIN 77-80 - Ari Kornfeld has generously sponsored the Dafyomi
publications for these Dafim for the benefit of Klal Yisrael.
1) THE DAUGHTER WHO ACCEPTED HER KIDUSHIN IN THE CITY
QUESTION: Rav and Shmuel argue about a case in which a father, traveling on
the road, accepts Kidushin on behalf of his daughter, while his daughter, in
the city, accepts Kidushin for herself from a different man on the same day,
and on that day she is found to be a Bogeres. Rav says that since she is
presently a Bogeres, we assume that she was a Bogeres at the time that she
accepted the Kidushin, and thus her Kidushin (and not her father's) is
valid. Shmuel says that we must be concerned that she was a Na'arah at the
time that her father accepted Kidushin for her, and thus she is Safek
Mekudeshes (and she needs a Get from both men).
2) A "CHEZKAS HA'GUF" THAT A WOMAN WAS A "NA'ARAH"
Rav and Shmuel seem to be arguing about how to judge the daughter when she
is found to be a Bogeres. Rav holds that we can assume that her present
state came about in the morning of that day, and thus she was a Bogeres at
the time that her father accepted Kidushin for her. Shmuel holds that her
present state does not tell us anything about her state prior to the time
that she was found to be a Bogeres.
This Machlokes could have been applied to a more straightforward, simple
case. When her father accepted Kidushin for his daughter in the morning, and
then in the afternoon she was found to be a Bogeres, the same question
applies. Is the father's Kidushin valid or not? Why is it necessary for the
Gemara to involve another factor in this question, the factor that "she
accepted Kidushin for herself in the city?"
ANSWER: TOSFOS explains that the Gemara specifically chose this case. Tosfos
points out that the Gemara continues and asks a question on the view of
Shmuel from the case of a Mikvah that was found to have less than the
minimum amount of water. The Mishnah (Mikva'os 2:2) says that all of the
items that were immersed in that Mikvah, even before it was found to be
lacking, are Tamei retroactively. This seems to contradict the view of
Shmuel and support the view of Rav, who says that the previous status of an
item can be determined by its present status. The Gemara answers that in the
case of the Mikvah, the thing in doubt is not only the Mikvah (whether it
was lacking or not at the time the items were immersed there), but the items
that were immersed there are also in doubt -- before their immersion that
were definitely Tamei, and now there is a doubt whether or not they are
Tahor. Since the items were, until now, Tamei, we assume them to be Tamei
now based on their Chezkas Tum'ah, and not merely because the Mikvah, at
present, is invalid. Shmuel only stated his opinion (that the present state
of an item does not determine its previous state) for cases in which there
is no pre-existing Chazakah. In cases in which there is a Chazakah telling
us what the status of the item once was, as well as a present factor telling
us what the status of the item is now, Shmuel agrees with Rav that we can
determine the earlier status of the item (after the time of the Chazakah,
and before the present status) based on the present status.
However, in the simple case of a father who accepted Kidushin for his
daughter in the morning, and then in the afternoon she was found to be a
Bogeres, there is also a pre-existing Chazakah -- the Chazakah that the
daughter, until now, was not married ("Chezkas Penuyah")! Since we know that
the daughter was single until now, we may assume that she is still a Penuyah
at the time of our doubt (i.e. in the morning, at the time that our doubt
exists -- whether the father's acceptance of Kidushin for his daughter was
valid or not). In this case, even Shmuel would agree that the fact that she
is now a Bogeres permits us to assume that she had the same status earlier
(and her father's Kidushin did not take effect)! Why, then, does Shmuel
argue in this case?
It must be that the daughter does *not* have a Chezkas Penuyah. The only
way, though, that the daughter does not have a Chezkas Penuyah is by
assuming that she was definitely married at the time of the Safek. This is
accomplished by adding a new factor to the case -- the fact that the
daughter accepted Kidushin for herself in the city. Since she also accepted
Kidushin, she is married no matter what -- either her father married her
off, or she married off herself (depending on when she became a Bogeres).
The Chazakah that she is a Penuyah no longer exists, and now the Machlokes
between Rav and Shmuel applies.
OPINIONS: The Gemara suggests that the Machlokes between Rav and Shmuel whether or not we may establish a person's prior status (which is in doubt)
based on the person's present status -- is a Machlokes Tana'im. Rebbi Yakov
and Rebbi Nasan argue in a case of a person who gave away all of his
property. He claims that he gave it away when he was a Shechiv Mera, and
thus the gift is not valid because he recovered. The recipients claim that
he gave it away when he was a healthy person, and thus the gift remains
valid. Rebbi Yakov says that we follow the Chezkas Mamon, and since the
property was in the possession of the owner until the time of the doubt, we
assume that it is still in his possession and the recipients of the gift
must bring proof to their claim. Rebbi Nasan maintains that if the giver of
the gift is a Shechiv Mera now, then we assume that he was a Shechiv Mera
when he gave the gift (and the recipients must bring proof otherwise). If he
is healthy now, then we assume that he was healthy at the time that he gave
the gift, and the recipients are entitled to receive the gift. It seems that
Rav is following the view of Rebbi Nasan, and that Shmuel is following the
view of Shmuel.
The Gemara says that the Machlokes between Rebbi Yakov and Rebbi Nasan is
not related to the Machlokes between Rav and Shmuel. Rav could follow even
the view of Rebbi Yakov, since, in that case, there is a Chezkas Mamon (the
owner of the property always owned it until now). In contrast, in our case
there is no Chezkas ha'Guf that the daughter was a Na'arah.
The Rishonim argue with regard to why there is no Chezkas ha'Guf that the
daughter was a Na'arah.
(a) RASHI (DH Mi Ika) explains that since the case of Rav and Shmuel is
where six months have passed into the daughter's period of being a Na'arah,
and on the day that the six months end she is prone to became a Bogeres,
there can be no Chazakah concerning her status on that day, since her status
is prone to change. A Chazakah can be established only when we can assume
that the status will remain the same until proven to have changed. Since, in
this case, the girl's status is naturally going to change at the end of the
six-month period of Na'arus, there is no Chazakah telling us that she is
still a Na'arah.
(b) TOSFOS (DH Mi Ika) explains in the name of the RI that it is the normal
manner for a girl's physical changes to occur in the morning. Hence, on this
day, there is no Chazakah that she is still a Na'arah.
According to the Ri, the fact that a girl's status is prone to change at the
end of the six-month period of Na'arus is not sufficient to remove the
Chazakah. Rather, there must be a "Regilus," a normal, frequent occurrence
that the change occurs in the morning. Once we know that her status is prone
to change on that day *and* that it normally changes in the morning, only
then is there no longer a Chazakah of Na'arus.
The SHAV SHEMAITSA (3:16) explains that this Machlokes between Rashi and the
Ri is based on the way to understand the general concept of Chazakah
(specifically, "Chazakah d'Hashta"). When no "Chazakah d'me'Ikara" is
present (i.e. until the time of the Safek, there was no known status that
could determine what the status is at the time of the Safek), can we
determine the status at the time of the Safek based on a "Chazakah
d'Hashta" -- if the status if the item or person is known presently, can we
determine that this was the item's status earlier, at the time of the Safek?
According to Rashi, there is no "Chazakah d'me'Ikara" in the case of our
Gemara, and therefore, according to Rav, we may rule in accordance with the
"Chazakah d'Hashta" (i.e. since she is a Bogeres now, we assume that she was
a Bogeres at the time of the Safek).
According to Tosfos, we cannot prove from our Gemara that we can apply a
"Chazakah d'Hashta." The reason why there is no "Chazakah d'me'Ikara" here
is because of "Regilus" -- it normally happens that the girl's status
changes at that time. What tells us that the girl is not a Na'arah is *not*
the fact that *now* she is a Bogeres ("Chazakah d'Hashta"), but rather the
fact that it is usual for a girl's status to change in the morning of the
day on which the six-month period of Na'arus ends.
3) INVESTIGATING THE LINEAGE OF A WOMAN WHO COMES FROM "MEDINAS HA'YAM"
QUESTION: The Mishnah lists the circumstances under which we must
investigate the lineage of a woman and her children in a case where a man
comes back from Medinas ha'Yam with a wife and children. The Mishnah states
that when the man and woman were married first and then they went to Medinas
ha'Yam and returned with children, there is no need to investigate the
lineage of the woman nor of the children. The reason why we do not have to
investigate the lineage of the woman is because, as RASHI explains, her
lineage was already confirmed at the time of her marriage.
Why, though, is it necessary to check a woman's lineage altogether?
(a) Rashi seems to be learning that the Mishnah here is following the view
of Rebbi Meir. The Gemara earlier (76b) cites a Machlokes between Rebbi Meir
and the Rabanan regarding whether or not a woman's lineage needs to be
investigated before one marries her. Rebbi Meir requires such a Bedikah
(Mishnah, 76a), while the Rabanan do not require such a Bedikah, because
"all families are b'Chezkas Kesheros."
Our Mishnah is expressing the view of Rebbi Meir, who requires Bedikah. The
Rabanan, though, would argue with this Mishnah and not require Bedikah at
(b) The TOSFOS RI HA'ZAKEN argues and says that our Mishnah here is even
following the view of the Rabanan. He differentiates between a woman who
comes from a known, recognized region and community, and one who comes from
Medinas ha'Yam, a foreign, unknown community. The Rabanan say that every
family has a Chezkas Kashrus only when that family is known to us, and is
known not to have any blemishes. A woman who comes from Medinas ha'Yam,
however, comes from an unknown family, and therefore she has no Chazakah of
Kashrus. Hence, even the Rabanan agree that if not for the fact that we
believe the husband that this woman is his original wife (whom he married
before he left to Medinas ha'Yam), a Bedikah would be necessary. We do not
rely on the man's word to believe him that a Bedikah was already done (which
is what Rashi says), but rather we believe him that his wife is from a known
region, and therefore no Bedikah is necessary. (See BEIS SHMUEL 4:3,
mentioned in Insights to 72:2, who cites two views on this matter, which
appear to be the views of Rashi and Tosfos Ri ha'Zaken.)