Babylonian Talmud: Tractate Kethuboth

Folio 13a

for if it were [not] so, there would be a difficulty between one law and another law, for it is established for us [that] in civil matters the law is according to R. Nahman, whereas in this [case]¹  R. Judah [said] that Samuel said [that] the halachah is according to Rabban Gamaliel,²  Is it not then to be concluded from this [that it is] as we have answered?³  Conclude [so] from this.

MISHNAH. [IF] SHE⁴  SAYS, 'I WAS INJURED BY A PIECE OF WOOD', AND HE SAYS, 'NO, THOU HAST HAD INTERCOURSE WITH A MAN⁵  — RABBAN GAMALIEL AND R. ELIEZER SAY: SHE IS BELIEVED, AND R. JOSHUA SAYS: WE DO NOT LIVE FROM HER MONTH,⁶  BUT SHE IS IN THE PRESUMPTION OF HAVING HAD INTERCOURSE WITH A MAN,⁷  UNTIL SHE BRINGS PROOF FOR HER STATEMENT.⁸

GEMARA. With regard to what are their claims?⁹  — R. Johanan Says: With regard to two hundred¹⁰  [zuz] and a maneh.¹¹  R. Eleazar says: with regard to a maneh and nothing.¹²  R. Johanan says: With regard to two hundred [zuz] and a maneh, [because] he¹³  shares the opinion of R. Meir who says [that] whether he knew of her or did not know of her¹⁴  [she gets as her kethubah] two hundred [zuz]. And R. Eleazar says: With regard to a maneh or nothing, [because] he shares the view of the Rabbis who say [that] whether he knew of her or did not know of her,¹⁴  [she gets as her kethubah] a maneh. It is quite right that R. Eleazar does not say as R. Johanan [says]. because he establishes it¹⁵  according to the Rabbis.¹⁶  But why does not R. Johanan say as R. Eleazar [says]? — He holds [that when] he¹⁷  married her in the presumption of [her being] a virgin and she is found to have had intercourse, she has a kethubah of a maneh.¹⁸  [According to this view] here¹⁹  he would say. 'a maneh,'²⁰  and she would say. 'a maneh,'²¹  [and] what difference would there be between his claim and her claim?²²  [Now] it is quite right according to R. Eleazar²³  that we have stated²⁴  two cases,²⁵  one²⁶  it to exclude the opinion of Rami b. Hama,²⁷  and one²⁸  to exclude the opinion of R. Hiyya b. Abin in the name of R. Shesheth.²⁹  But according to R. Johanan why are two cases necessary?³⁰  — One to show you the strength³¹  of Rabban Gamaliel, and one to show you the strength of R. Joshua. The first case to show you the strength of R. Joshua, that, although one could say [there] miggo,³²  she is not believed. The second case to show you the strength of Rabban Gamaliel, that, although one cannot say [there]³³  Miggo, she is believed.

MISHNAH. [IF] THEY³⁴  SAW HER³⁵  TALKING WITH SOMEONE,³⁶  AND THEY SAID TO HER, 'WHAT SORT OF A MAN IS HE?³⁷  [AND SHE ANSWERED, 'HE IS] THE MAN SO-AND-SO AND HE IS A PRIEST — RABBAN GAMALIEL AND R. ELIEZER SAY: SHE IS BELIEVED,³⁸  AND R. JOSHUA SAYS: WE DO NOT LIVE FROM HER MOUTH,³⁹  BUT SHE IS IN THE PRESUMPTION OF HAVING HAD INTERCOURSE WITH A NATHIN⁴⁰  OR A MAMZER,^41-42 — UNTIL SHE BRINGS PROOF FOR HER STATEMENT. [IF] SHE⁴³  WAS PREGNANT AND THEY⁴⁴  SAID UNTO HER, 'WHAT IS THE NATURE OF THIS FOETUS.'⁴⁵  [AND SHE ANSWERED, 'IT IS] FROM THE MAN SO-AND-SO AND HE IS A PRIEST — RABBAN GAMALIEL AND R. ELIEZER SAY: SHE IS BELIEVED,⁴⁶  AND R. JOSHUA SAYS: WE DO NOT LIVE FROM HER MOUTH,⁴⁷  BUT SHE IS IN THE PRESUMPTION OF BEING PREGNANT FROM A NATHIN OR A MAMZER,⁴⁸  UNTIL SHE BRINGS EVIDENCE FOR HER STATEMENT.

GEMARA. What is the meaning of 'TALKING'? Ze'iri said: She was hidden.⁴⁹  R. Assi said: She had intercourse.⁵⁰  It is quite right according to Ze'iri that it Says⁵¹  'TALKING',⁵²  But according to R. Assi why [does it say] 'TALKING?' — [It is] a more appropriate⁵³  expression, as it is written:⁵⁴  'She eateth,⁵⁵  and wipeth her mouth,⁵⁶  and saith, 'I have done no wickedness.'⁵⁷  It is quite right according to Ze'iri that he teaches [in the Mishnah] two [cases]: 'TALKING' and 'PREGNANT,⁵⁸  But according to R. Assi, why [does the Mishnah teach] two [cases]? — One case⁵⁹  to declare her fit⁶⁰  and one case⁶¹  to declare her daughter⁶²  fit.⁶³  That is quite right according to him who says [that] he who declares her fit declares [also] her daughter fit.⁶⁴  But according to him who says [that] he who declares her fit declares her daughter unfit,⁶⁵  what is there to say? — R. Assi holds the view of him⁶⁶  who says [that] he who declares her fit declares [also] her daughter fit.

R. Pappa said to Abaye: According to Ze'iri who said: What Is TALKING?' She was hidden, and R. Joshua said [that] she is not believed — did not Rab say: We punish with lashes for the privacy⁶⁷  but we do not prohibit⁶⁸  on account of the privacy? Is it to say that it is not according to R. Joshua?⁶⁹  — You may even say [that it is according to] R. Joshua. [for] they set a higher standard in matters of priestly descent.⁷⁰

An objection was raised: [If] they⁷¹  saw her go in⁷²  with someone⁷³  Into a secret [place]

1. I.e., the case of our Mishnah.
2. That she is believed, and consequently she gets a kethubah of two hundred zuz.
3. That even R. Nahman will follow the opinion of Rabban Gamaliel in the case of our Mishnah, that she is believed and gets a kethubah of two hundred in.
4. The woman whose husband complains about the absence of virginity.
5. Lit., 'thou art one (that has been) trodden by a man'.
6. I.e., We do not go by her statement.
7. Since she has no virginity.
8. Lit., 'for her words'.
9. I.e., what is the claim of the husband and what is the claim of the wife?
10. She says that she was injured and claims a kethubah of two hundred zuz, on the view of R. Meir, supra 11a.
11. He says that she had intercourse with another man, in which case she gets only a maneh; v. the statement of R. Hiyya b. Abin, supra 11b and Rabbah's statement, supra 12a.
12. She claims a maneh as one who was thus injured and according to the Sages, (v. supra 11a) gets a maneh. He says that she had intercourse with a man and therefore gets no kethubah at all, on the view advanced by R. Ashi, supra 12a.
13. [I.e., The Tanna of this Mishnah shares, in the view of R. Johanan, the opinion of R. Meir, It cannot refer to R. Johanan as he would not be likely to accept the ruling of R. Meir in preference to that of the majority of the Sages (Rashi).]
14. That she was thus injured, v. supra 11b.
15. Our Mishnah.
16. Who are the majority and according to whom the law is decided,
17. The husband.
18. V. supra, p. 68, n. 14.
19. In our Mishnah,
20. I.e., That she is entitled only to a maneh because he believed her on marriage to be a virgin and found it was not so.
21. If R. Johanan would say as R. Eleazar says that she could only claim a maneh owing to her accident.
22. Hence R. Johanan has had to explain the Mishnah as representing the view of R. Meir.
23. Who says that if she had intercourse with a man, she gets no Kethubah at all.
24. Lit., 'he teaches',
25. The case of our Mishnah and that of the previous Mishnah.
26. The case of our Mishnah.
27. Who says (supra 11b) that if the husband did not know' that she had an accident she gets no kethubah at all.
28. The case of the previous Mishnah, where the husband says 'my bargain is a mistaken one, taken to mean that the woman is entitled to no kethubah at all,
29. Who says that, even if she had intercourse with another man, she gets a Kethubah of a maneh, v. supra 11b.
30. [Only the case of the second Mishnah should have been stated as illustrating the difference of opinion between R. Gamaliel and R. Joshua in regard to the pleas of 'sure' and 'perhaps', and thus incidentally excluding the opinion of Rama b. Hama, whereas the case of the first Mishnah could' be inferred from the second one.]
31. I.e., how strong his view is.
32. V. supra, p. 67. n. 8.
33. [Since on the view of R. Johanan she gets in any case two hundred zuz, even if the husband was unaware of the accident that happened before the betrothal, v. supra. p. 69.
34. People.
35. An unmarried woman.
36. A man.
37. Lit., 'what is the nature (or character) of this man'?
38. And she may marry a priest
39. I.e., we do not go by her statement.
40. V. Glos.
41. 'Mamzer' is usually translated by 'bastard'. Marriage with a 'momzer' and a 'nathin' was forbidden; v. Yeb. 78b. As to what constitutes a 'mamzer' v. Yeb. 49a.
42. And the intercourse with a 'Nathin' or a 'Mamzer' makes her unfit to marry a priest.
43. An unmarried woman.
44. People.
45. V. supra p. 66 n. 17.
46. And she and her child are fit for priestly marriage.
47. I.e., we do not go by her statement.
48. And neither she nor her child is fit for priestly marriage.
49. 'TALKING' means: 'she was hidden' with a man, and she may have had with him intercourse.
50. 'TALKING' means: 'she had intercourse' with the man.
51. In the Mishnah. Lit., 'that he teaches'.
52. Secret talking. Talking in hiding is also 'talking'.
53. I.e., euphemistic.
54. Proverbs XXX, 20.
55. Also euphemistic expressions.
56. Also euphemistic expressions.
57. The first part of the verse reads: 'So is the way of all adulterous woman.
58. One case of suspicion and one case of certainty. V. also Rashi.
59. The case of 'TALKING'.
60. To marry a priest, according to R. Gamaliel.
61. The case of 'pregnant'.
62. If the child that was born was a daughter.
63. To marry a priest, according to R. Gamaliel.
64. V. infra 13b.
65. [Whereas the mother has had a presumption of fitness, this cannot be said of her daughter who was born under suspicion, v. infra 13b.]
66. Lit., 'holds Its',
67. I.e., the being alone of a man with a married woman. V. Levy and Jast. s.v. [H].
68. The married woman to her husband. In spite of the fact that the woman was alone with another man we do not assume that misconduct took place.
69. According to R. Joshua we would not believe her and we would say that misconduct took place. Consequently, she ought to be forbidden to her husband.
70. In order to ensure the purity of the priestly families, he made the law stringent in our Mishnah. But ordinarily R. Joshua would not forbid a wife to her husband on account of her having been alone with another man.
71. People.
72. Lit., 'that she went in'.
73. I.e., with a man.

or into a ruin,¹  and they said to her, 'What sort of a man is he?' [and she answered]. 'he is a priest and he is the son of the brother of my father' — Rabban Gamaliel and R. Eliezer say: She is believed. R. Joshua says: We do not live from her mouth, but she is in the presumption of having had Intercourse with a Nathin or a Mamzer, until she brings proof for her statement. Now it is quite right according to Ze'iri,²  that he teaches³  two [cases]: into a secret [place] or into a ruin.⁴  But according to R. Assi who said: She had intercourse,⁵  why does it teach⁶  two cases?⁷  — It teaches [only] one [case]: into the secret [place] of the ruin.⁸  But it teaches: into a secret [place] or into a ruin! — [But say] one [expression stands] for a ruin of a town and one [expression stands] for a ruin of a field. And they are [both]⁹  necessary. for if it¹⁰  had told us [only] concerning a ruin of a town [one might have said that] in this [case] Rabban Gamaliel declares her fit because most¹¹  [of the men] of the town are fit with regard to her,¹²  but in [the case of] a ruin of a field, when most [of the men]¹³  are unfit with regard to her.¹⁴  I might say that he agrees with R. Joshua.¹⁵  And if it¹⁶  had told us [only] this [case]¹⁷  [I might have said that only] in this case¹⁸  did R. Joshua say [that she is not believed], but in that [case]¹⁹  I might say [that] he agrees with Rabban Gamaliel;²⁰  [therefore] it was necessary [to state both cases].

An objection was raised:²¹  This²²  is a testimony with regard to which the woman is fit.²³  But R. Joshua Says: She is not believed. Said R. Joshua to them:²⁴  Do you not agree that in the case of a woman²⁵  who was captured, and there are witnesses that she was captured, and she says. 'I am pure.'²⁶  she is not believed? They said to him, 'Yes: but what a difference there is between this case and that case.'²⁷  In this case²⁸  there are witnesses,²⁹  and in that case³⁰  there are no witnesses.³¹  He said to them: In that case too³²  there are also witnesses, for her stomach reaches up to her teeth.³³  They said to him, 'Most of the idolators are unrestrained in sexual matters.' He said to them: 'There is no guardian against unchastity.'³⁴  This applies³⁵  only in the case of the testimony of the woman with regard to herself.³⁶  but in the case of the testimony of the woman with regard to her daughter. all agree that the child is a shethuki.'³⁷  — [Now] what did he³⁸  say unto them³⁹  and what did they answer him? This they said unto him: 'You have answered us with regard to the pregnant woman,⁴⁰  what will you answer us with regard to the woman [whom they saw] talking [to a man]?'⁴¹  — He said to them: The woman [whom they saw] talking [to a man] is the same as the captive woman.⁴²  They said to him, 'The captive woman is different, for most of the idolators are unrestrained in sexual matters.'⁴³  He said to them: Here also,⁴⁴  since she hid herself,⁴⁵  there is no guardian against unchastity.⁴⁶  [Now] at all events he teaches two [cases]: The woman [whom they saw] talking [to a man] and the pregnant woman!⁴⁷  [This is] a refutation of R. Assi,⁴⁸  [This is indeed] a refutation,⁴⁹  — But let this difference weigh with him⁵⁰  There⁵¹  most of the men are unfit with regard to her, but here⁵²  most of the men are fit with regard to her! — This⁵³  supports the opinion of R. Joshua b. Levi, for R. Joshua b. Levi said: He who declares her fit⁵⁴  declares her fit even when most of the men are unfit,⁵⁵  and he who declares her unfit declares her unfit even when most of the men are fit.⁵⁶

R. Johanan said: He who declares her fit declares also her daughter fit, [and] he who declares her unfit declares also her daughter unfit. And R. Eleazar said: [Even] he who declares her fit declares her daughter unfit. Rabba said: What is the reason of R. Eleazar? [This:] It is quite right [with regard to her], she has the presumption of fitness,⁵⁷  [but] her daughter has no presumption of fitness.⁵⁸  R. Eleazar objected to [the ruling of] R. Johanan: This only applies to the testimony of the woman with regard to herself, but in the case of the testimony of the woman with regard to her daughter, all agree that the child is a shethuki.⁵⁹  Does this not [mean] a shethuki and unfit? — No, a shethuki and fit. But is there a shethuki [who is] fit? — Yes, according to Samuel, for Samuel said: [If] ten priests are standing together and one of them goes away⁶⁰  and has intercourse [with a woman], the child is a shethuki. Now what [means here] a shethuki? Is it to say that he is 'silenced' from the property of his father?⁶¹  This is evident! Do we know who his father is? — It means one silences him from the rights of priesthood,⁶²  for it is written: 'And it shall be unto him and to his seed after him the covenant of an everlasting priesthood.⁶³  [that is, only] one whose seed is legitimately descending from him, excluding this one,⁶⁴  whose seed is not legitimately descending from him.⁶⁵

A bridal couple⁶⁶  once came before R. Joseph. She said, 'It⁶⁷  is from him'.⁶⁸  and he said,

1. A deserted building.
2. According to whom 'talking secretly'. or being with a man in a secret place, gives grounds for suspicion, though it does not necessarily imply intercourse.
3. In the Baraitha just quoted.
4. 'Into a secret place' does not imply misconduct, but 'into a ruin' does imply misconduct.
5. Talking secretly, or being with a man in a secret place. affords no grounds for suspicion unless there has been some evidence of misconduct.
6. In the Baraitha just quoted.
7. Since the reference here is to a case where misconduct was seen to have taken place, what matters it whether it occurred in a secret place or a ruin?
8. The Baraitha is to be understood as if the reading was 'into the secret (place) of the ruin,' and thus only one case is mentioned.
9. Both expressions.
10. In the Baraitha just quoted.
11. Lit., 'the majority'.
12. Most of the inhabitants of the town are Jews, and the intercourse with a Jew does not make her unfit to marry a priest.
13. All kinds of men resort from all parts to a ruin in the field (Rashi).
14. She might have had intercourse with a man who makes her unfit to marry a priest.
15. That she is not believed.
16. The Baraitha just quoted.
17. A ruin of a field.
18. A ruin of a field.
19. A ruin in the town.
20. That she is believed.
21. Cf. Tosef. Keth. I. This is a continuation of a passage in the Tosef, which is identical with the first part of the second case of our Mishnah: 'She was pregnant (and they said unto her, "What is the nature of this embryo" (and she answered, "It is) from the man So-and-so (and) he is a priest"' — Rabban Gamaliel and R. Eliezer say: She is believed.
22. For variants v. Tosef. loc. cit.
23. I.e., the woman is legally fit to give that testimony and she is believed.
24. R. Gamaliel and R. Eleazar, v. n, 20.
25. Lit., 'a woman captive'.
26. I.e., no man had intercourse with me during my captivity.
27. Lit., 'between this (woman) and this (woman)'.
28. Lit., 'to this woman'.
29. In the case of the captive woman there ate witnesses that she was captured.
30. Lit., 'and to this (woman)'.
31. In the case of the pregnant woman (the case of the Tosefta and our Mishnah) there are no witnesses that she had intercourse with one who makes her unfit for marrying a priest. It is clear, especially from the wording in the Tosefta, that this whole sentence, from 'yes,' until 'witness, is spoken by Rabban Gamaliel and R. Eliezer. V. Rashi.
32. Of the pregnant woman.
33. A figurative expression for 'she is visibly pregnant
34. No one is immune from the possibility of having forbidden sexual intercourse. And the pregnant woman may have had intercourse with one forbidden to her and may thus have become unfit for a priestly marriage. The whole passage is explained soon.
35. Lit., 'with regard to what are these words said'? When do Rabban Gamaliel and R. Eliezer hold that she is believed?
36. Her testimony with regard to herself is believed.
37. A shethuki (lit., 'silenced') is defined in Kid. 69a as one who knows his mother but does not know who his father is. Therefore, the woman herself may marry a priest, but if she gave birth to a daughter, that daughter may not marry a priest. The corresponding sentence in the Tosefta is much shorter; viz 'This applies only to the testimony with regard to herself, but with regard to the child all agree that it is a shethuki'.
38. R. Joshua.
39. R. Samuel and R. Eliezer.
40. Her pregnancy is evidence against her.
41. Why should she not be believed?
42. The one case is similar to the other case. In both cases there is a strong possibility of intercourse.
43. It is not only a question of sexual intercourse, but it is also a question who it was with whom the woman had intercourse. In the case of the captive woman, she is made unfit for priestly marriage, because the men among whom she finds herself are mostly unfit for her. But not so in the case of the woman who was talking to a man, where most men are fit for her, v. supra.
44. In the case of the woman who was talking to another man.
45. She was talking to the man secretly.
46. And she may have had intercourse with a man who makes her unfit for a priestly marriage.
47. The 'talking woman' and the pregnant woman are, at all events, two different
48. According to whom the case of the 'talking woman' is also a case of certain sexual intercourse.
49. I.e., R. Assi stands refuted.
50. Or, let it be a difference to him (R. Joshua). Lit., 'let it go out to him' — 'let it be different to him'.
51. In the ease of the captive woman.
52. In the case of the 'talking woman,
53. The fact that R. Joshua disregards this difference.
54. Lit., 'according to the words of him who declares her fit'.
55. With regard to her, as in the case of the captive woman.
56. With regard to her, as in the case of the 'talking woman'.
57. Legal fitness. She is of legitimate birth and she is fit to marry a priest. The doubt as to the nature of the man with whom she had intercourse does not destroy the presumption of her fitness.
58. Because suspicion attaches to her very birth. If the man who is the father is unfit, then she is unfit and must not marry a priest. The doubt is sufficient to make her unfit, since there is no presumption of fitness to remove.
59. V. p. 73, n. 10 and p. 74. n. 4.
60. Lit., 'separated himself'.
61. I.e., he does not inherit the property of his (alleged) father.
62. He has no share in the rights and privileges of priesthood.
63. Num, XXV, 13.
64. The unknown father of the shethuki.
65. [He cannot transmit the rights of priesthood to his seed, v. Yeb. 100b, but as regards marriage with one of priestly stock, this shethuki is permitted. This shews that one may be a shethuki and yet fit.]
66. Lit., 'that betrothed (man) and his betrothed (woman)'.
67. The child with which she was pregnant.
68. From her fiance.