Daf 79a continued

  • Rav Michael Siev


Introduction to the Study of Talmud
by Rav Michael Siev

Kiddushin 17 - Daf 79a

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Over the past two weeks, we have discussed the machloket (dispute) between Rav and Shemuel regarding the case of a father who accepted kiddushin (betrothal) on his daughter's behalf early in the day, following which the girl herself accepted kiddushin on that same day. The case hinges on the status of the girl at the time her father accepted kiddushin. A father has the right to accept kiddushin on his daughter's behalf until she reaches the stage of bagrut, at which time the daughter becomes independent in this area. Bagrut is the stage at which a girl reaches full adulthood, and it comes when she develops certain signs of physical maturity (see Niddah 47a). The expected time at which she will reach this stage is six months after the onset of na'arut, the first stage of adulthood, which generally commences when a girl turns twelve. The case at hand pertains to a situation in which the father and daughter accepted kiddushin from two different men on the very day that we anticipate the girl will become a bogeret. At the end of the day, the girl is examined and found to be a bogeret. Rav assumes that just as she is a bogeret at the end of the day, she presumably was a bogeret earlier that day as well; therefore, the kiddushin accepted by the father is invalid, as he no longer had the authority to accept kiddushin on his daughter's behalf, and the kiddushin that the daughter accepted is valid. Shemuel argues that we should consider it a safek (doubt) as to whether or not the girl had already produced the signs that indicate bagrut at the time her father accepted kiddushin; therefore, it is unclear which of the two kiddushins is valid. (Even if we assume she was definitely a bogeret when she accepted kiddushin, if her father's kiddushin was valid, she would be a married woman and not eligible to accept another kiddushin.) This would necessitate following our mishna's guidelines for a case of doubt as to which of two possible men are married to a particular woman: she may not complete the marriage process with either one of the men until the other gives a get (document of divorce), and if she wants to marry a third party, both of the men would have to give a get.

The gemara we will study today quotes a beraita that may be related to our topic. The ensuing discussion presumes that one has a working knowledge of another area of halakha, which we will outline briefly here. In general, if a person makes a transaction based on an unspoken assumption, that assumption has no legal standing. For example, if I buy an umbrella on the assumption that it will rain tomorrow and it does not rain, I have no legal claim against the seller. I cannot force him to refund my money, as the sale was perfectly legal. This policy is expressed by the following title: devarim she-balev einam devarim, which literally means "words in the heart are not words." On the other hand, if I explicitly make the transaction conditional on a particular circumstance, that condition does have legal standing; if I stipulate that my purchase of the umbrella is on the condition that it rains tomorrow, the sale will be void if it does not rain.

In certain circumstances, an unspoken assumption is so obvious that we do away with the policy that devarim she-balev einam devarim; it is as though the condition was articulated because it is so clear that the transaction was only made on the basis of a certain assumption. For example, if a person on his deathbed gives away all of his property and then recovers, the transactions are void; it is perfectly clear that he only gave away his property because he assumed that his death was imminent. This is due to the two factors of the person being deathly ill and giving away all of his property without leaving anything whatsoever for himself. If he does actually die, the transactions are valid; if he recovers they are void because it is as though he stipulated that they should only be valid if he dies. On the other hand, if a healthy person gives away all of his property or if someone who is deathly ill gives away some of his property but not all of it, it is not absolutely clear that the transactions have been made on the assumption of a specific set of circumstances coming to bear, and the transactions are valid no matter what.

With this introduction, let us proceed with the gemara. We begin just two words from the end of 79a.  

Let us say that [the dispute] is similar to [this dispute between] tanna'im:

"'Who removes from whose possession?

He removes from their possession without a proof

and they do not remove from his possession without a proof;' the words of Rabbi Ya'akov.

Rabbi Natan says: 'If he is healthy - he must bring a proof that he was deathly ill,

and if he is deathly ill -

they must bring a proof that he was healthy.'"

Let us say that Rav said like Rabbi Natan and Shemuel said like Rabbi Ya'akov!

נימא כתנאי:

מי מוציא מיד מי?

הוא מוציא מידם בלא ראיה,

והן אין מוציאים מידו בלא ראיה; דברי ר' יעקב.

רבי נתן אומר: אם בריא הוא -

עליו להביא ראיה שהיה שכיב מרע,

ואם שכיב מרע הוא -

עליהם להביא ראיה שבריא היה.

נימא, רב דאמר כרבי נתן, ושמואל דאמר כר' יעקב!  

The gemara quotes a beraita and attempts to relate it to our machloket (dispute) between Rav and Shemuel. Since tanna'im are authoritative relative to amora'im, the Gemara frequently explores the tannaitic antecedents of a machloket between amora'im, or tries to resolve amoraic disputes by appealing to tannaitic sources. In our case, the gemara quotes a beraita that, on the surface, has nothing to do with our issue of when we can assume that girl has come of age. As we have seen before, it is the halakhic concept at the root of the two discussions that prompts the gemara to relate the two to each other.

The beraita addresses a case in which a man gave away all of his possessions. He later claims that his gifts were made while he was deathly ill and, since he has recovered, the transactions are void. The recipients claim that his gifts were made when he was healthy and should therefore be valid. Who has the upper hand in this dispute? Rabbi Ya'akov rules that the original owner has the upper hand; the burden of proof lies with the recipients, and they will not be awarded any property unless they can prove that the original owner was healthy at the time he transferred ownership. Rabbi Natan distinguishes between different circumstances: if the original owner is currently healthy, he must prove that he was deathly ill at the time of the transfer, otherwise we will assume that he was healthy. If he is currently deathly ill, it is the intended recipients who must prove that he was healthy when he made the transfer.

Having presented the beraita, the gemara claims that Rav's opinion in our gemara is in accordance with Rabbi Natan's opinion in the beraita, while Shemuel seems to accept the view of Rabbi Ya'akov. Rabbi Natan rules that without proof to the contrary, we assume that whatever condition the original property owner is in now was his condition earlier, when the transaction was made. This serves as the basis of Rav's ruling that the girl found to be a bogeret in the evening may be assumed to have been a bogeret that morning. Rabbi Ya'akov, on the other hand, makes no assumptions about the original condition of the bestower. Even if he is healthy now, it is possible that he was deathly ill when he gave away his property; therefore, his original ownership remains operative until we know otherwise.

The gemara proceeds to refute the attempted comparison between the two cases. We are six lines from the top of 79b.

Rav would say to you: That which I say is even like [the ruling of] Rabbi Ya'akov:

until now Rabbi Ya'akov didn't say [his ruling except] for there,

for there is [room] to say, "keep the money in its status;"

but here, shall we say, "keep the body in its status?"

And Shemuel [can] say: That which I say is even according to Rabbi Natan:

until now Rabbi Natan didn't say [his ruling except] for there,

for the whole world exists in a presumed status of health;

he who removes himself from that status must bring a proof.

But here, does she remove herself from her original status?

אמר לך רב: אנא דאמרי אפילו כרבי יעקב:

עד כאן לא קאמר ר' יעקב התם,

דאיכא למימר העמד ממון על חזקתו;

אבל הכא מי נימא העמד גוף על חזקתו?

ושמואל אמר: אנא דאמרי אפילו לרבי נתן:

עד כאן לא קאמר רבי נתן התם,

דכולי עלמא בחזקת בריאים קיימי;

מאן דקא מפיק נפשיה מחזקה הוי עליה לאיתויי ראיה.

אבל הכא מי קא מפקא נפשה מחזקה דקמיה?

The gemara claims that both Rav and Shemuel could argue that their opinions hold true according to each side of the machloket in the beraita; they need not pigeonhole themselves into picking one side of the dispute. It would be in Rav and Shemuel's best interest to demonstrate the compatibility of their opinions with the statements of as many tanna'im as possible; the greater the level of support among the tanna'im, the more well-grounded an opinion is considered to be.

Rav's ruling seems to fit naturally with Rabbi Natan's ruling. Nontheless, he would argue that even Rabbi Ya'akov might agree with his ruling in the case of the bogeret. In the case of the gifts we are dealing with money, and therefore should maintain the chazaka of ownership until we know otherwise. In the case of the bogeret, there is no operative chazaka to maintain, for it is the very day on which she is expected to become a bogeret. Thus, the chazaka that she remains a na'ara is weak, and cannot override our assumption that the current status extends backwards.

Similarly, Shemuel's view fits naturally with that of Rabbi Ya'akov, but he can argue that even Rabbi Natan might agree in the case of the bogeret. Rabbi Natan only rules that the donor must prove that he was ill if he is currently healthy due to the fact that the overwhelming majority of people are not deathly ill at any given time. Thus, if he claims that he was deathly ill and has recovered, his claim is considered unlikely and must be proven. However, in our case the possibility that the girl's current status - that of a bogeret - was not applicable at the critical time (the time her father accepted kiddushin on her behalf) is far greater. Therefore, perhaps Rabbi Natan would agree that we do not extend the current status back in time to the critical moment.

To sum up, the gemara has asserted that we cannot definitively equate the case of the beraita with our case of the bogeret. On the one hand we might be more likely to extend the current reality backward in time in the case of the girl, because her original status as a na'ara was expected to expire and was not as difficult to overcome as a chazaka of property ownership. On the other hand, we might be more likely to extend backward the current reality of a person's health, simply because it is a common reality. Essentially, there are always two factors that must be taken into account: the strength of the original chazaka that must be broken and the likelihood that the current reality was in place at the earlier time.

This leads us to a question, however. Rabbi Natan rules that if the donor is currently ill, we extend back a presumption of poor health such that the burden of proof is on the recipients to prove that he was healthy when he gave them the property. We have already claimed that since it is unusual for people to be so sick, the chazaka that one is in such a conidition is relatively weak. If Rabbi Natan is willing to extend backward even such a chazaka, should he not be willing to extend back a more reasonable chazaka such as the girl's new status as a bogeret? If so, we would have to admit that only Rav's opinion is consistent with that of Rabbi Natan!  

Perhaps Shemuel would answer as follows: the point about most people not being deathly ill is irrelevant at this point because the donor is actually deathly ill right now in front of us. Therefore, it is not farfetched to imagine that he was very ill at the earlier time as well. At the same time, the original chazaka of ownership remains more solid than the girl's chazaka of being a na'ara. Therefore, it is still possible that Rabbi Natan would rule like Shemuel in the case of the bogeret.

We have explored the gemara's appeal to the tanna'im, its careful consideration of the factors that must go into extending chazakot, and along the way we have been introduced to the concept of devarim she-balev einam devarim. We are left with just a bit more of this sugya for next week.