Ketubot 27b (כז:) — the Talmud in English

And the sides of the uncertainty are:

perhaps we say

that she is deemed credible because of the principle of

“What would I gain by lying?”

For if she were lying, she could have claimed, “I was hiding.” And since she could have claimed that she was hiding, we should believe her when she says, “I was not defiled.”

Or perhaps

she is not deemed credible, because

we do not say

“What would I gain by lying?” with regard to the claim “I was hiding,” since “we have clear circumstantial evidence” that every woman who did not hide in the city was raped. If so, this is a migo in the presence of witnesses, and a person is not believed on the basis of a migo when witnesses—or even merely “we have clear circumstantial evidence”—contradict his claim.

And

we further examine this:

What is different

about this case

from that incident—

in which a certain man rented a donkey to another

[the landlord rented a donkey to the other man]

and said to him

the landlord:

“Do not go by the road of Nehar Pekuod, where there is water; go by the road of Neresh, where there is no water!”

[Do not go by way of Nehar Pekuod, where there is water; go by way of the city of Neresh, where there is no water.]

And he went

[the renter]

by way of Nehar Pekuod, and the donkey died.

The landlord then sued him for the value of the donkey.

The renter came

to

Rava

and

said to him: “Yes!

Indeed,

I went by way of Nehar Pekuod,

[I went there],

but there was no water

in the river at that time, and the donkey died through no fault of mine.”

Rava said:

The renter is believed because of

“What would I gain by lying?”

for

if he wished

to lie, he could have

said to him:

“I went by way of Neresh.”

And Abaye said

to Rava that he is not believed, since it is the normal state of the world that there is water in Nehar Pekuod. Therefore, “we have clear circumstantial evidence” that there was water in Nehar Pekuod even at that time, and this is a migo in the presence of witnesses. A person is not believed on the basis of the claim

“What would I gain by lying?” in the presence

of

witnesses

or “we have clear circumstantial evidence” contradicting his claim; therefore

we do not say

that this migo applies.

The Gemara assumed that in our case as well, Abaye and Rava would disagree as to whether we say “What would I gain by lying?” when “we have clear circumstantial evidence” contradicting her claim.

And we reject this:

How can these cases be compared

[what comparison is there between them]?! Surely one must distinguish and say that only

there

in the case of the donkey is he not believed, because

there are certainly witnesses

[that is, “we have clear circumstantial evidence”]

that there is water,

but

here

in the case of the captive woman, is it

certain

that she

was defiled?!

It is only

a concern; and in a situation of concern we do say

“What would I gain by lying?”

We learned in the Mishna that

if there are witnesses

that she was not defiled,

even a slave or even a maidservant is deemed credible:

And

we infer from the fact that the Mishna did not distinguish: It implies that

even her own maidservant is deemed credible!

And we raise a contradiction,

for this law contradicts what we learned in the Mishna in tractate Gittin: If a dangerously ill man wrote his wife a bill of divorce in order to exempt her from levirate marriage, saying, “This is your bill of divorce from today, if I die,”

his wife may not be alone

with him

except in the presence of witnesses,

lest he die, in which case she is unmarried from now, and it is forbidden to be alone with an unmarried woman.

But she may be alone with him in the presence of any witnesses,

even in the presence of a slave or in the presence of a maidservant,

because she is embarrassed before them, and we do not fear that he will have intercourse with her in their presence.

Except for her maidservant,

with whom she may not be alone,

because she is too familiar with her maidservant,

and we fear that she may have intercourse with her in the maidservant’s presence, since she is not concerned that the maidservant will publicize her misconduct.

In any event, we see that her maidservant does not report her mistress’s misconduct. If so, this poses a difficulty for our Mishna: How could we believe her maidservant that she was not defiled?

And we answer:

Rav Pappi said—

In the case of a captive woman, they were lenient,

to the extent of believing even her own maidservant.

But

Rav Pappa said:

In general, her maidservant is not believed. Therefore,

this

Mishna, which teaches that she is not believed, is referring

to her own maidservant,

while

this

Mishna of ours, which teaches that a maidservant is believed, is referring

to his maidservant,

that is, the husband’s maidservant.

And we challenge Rav Pappa:

And

is it true that

her maidservant is not deemed credible?!

But

it teaches

in our Mishna:

“A person cannot testify about himself,”

and we infer that specifically a person cannot be believed concerning himself;

but her maidservant

is deemed credible!

The difficulty from the Mishna in Gittin cited above nevertheless remains, as it implies that one cannot rely on her maidservant.

And we answer: In fact, her maidservant is not deemed credible. As for the difficulty from the wording of our Mishna, which says “A person cannot testify about himself” but does not also say that her maidservant is not deemed credible, this is no difficulty, because

her maidservant is also considered like herself,

and is therefore included in the wording “A person cannot testify about himself.”

The Gemara offers another answer:

Rav Ashi said—

Both this and that,

both our Mishna and the aforementioned Mishna in Gittin, are referring

to her maidservant, and

there is indeed room for concern that

the maidservant saw

her mistress’s misconduct

and remained silent.

However,

there,

in the Mishna in Gittin,

as

a result of

her silence

she

permits her,

for without her testimony, how would we know that she had had intercourse?! Therefore,

she is not deemed credible

to be alone in her presence, since she is not concerned that the maidservant will report that she had intercourse. But

here,

in our Mishna,

as

a result of

her silence she renders her forbidden,

since a captive woman is forbidden, and her maidservant has come to testify that she did not become forbidden.

She is deemed credible,

since we do not fear that she will testify falsely; our only concern was that we could not rely on her to come forward on her own initiative to render her mistress forbidden.

And we challenge this:

Now too,

in the Mishna concerning a captive woman, let us be concerned lest

she come and lie,

because of her love for her mistress?

And we answer:

Two

[two] lies—both remaining silent about her mistress’s misconduct and giving false testimony—

she would not commit!

The Gemara proves that it is not the practice to lie in two ways,

as in

[as in the incident that occurred to]

Mari bar Isak, and some say

[and some say it occurred to]

Hana bar Isak.

His father went to a place called Bei Hozai, and his brother went there with him. His father died in that place, and Mari bar Isak came to inherit his property. Suddenly,

a man came to him

claiming that he was the same

brother from Bei Hozai

who had gone there with his father, and

said to him: “Divide my father’s property with me,”

for I am your brother.

He said to him,

Mari bar Isak:

“I do not recognize you,”

[I do not recognize you; bring proof that you are my brother!]

That brother came

the same brother

before Rav Hisda

to demand that Mari bar Isak divide his father’s property with him. He argued before Rav Hisda that Mari bar Isak’s claim that he did not recognize him appeared to be a false claim, since it is not usual for one brother not to recognize another. And if he truly was not his brother, Mari bar Isak should certainly have claimed that he was not his brother, rather than merely making a claim of uncertainty.

He said to him,

Rav Hisda

said to you correctly

Mari bar Isak, that he does not recognize you,

for

it is

written:

“And Joseph recognized his brothers, but they did not recognize him.” This teaches that he left

his brothers

without a beard and returned with a beard,

and therefore they did not recognize him. Here too, since you left here without a beard and returned with a beard, Mari bar Isak did not recognize you.

He added and

said to him

Rav Hisda: If you nevertheless wish to divide your father’s property,

go and bring witnesses that you are his brother!

He said to him,

the brother: Indeed,

I have witnesses, but they are afraid of him,

[but they fear Mari] because

he is a violent man

[he is a violent man].

He said to him,

Rav Hisda

to him

that is, to Mari bar Isak:

Go and bring them

the witnesses

that he is not your brother!

He said to him,

Mari to Rav Hisda: Is

the law really so

that I must bring witnesses?!

But

the burden of proof rests upon the claimant?

He said to him,

Rav Hisda to Mari: Indeed, as a general matter, the law is that the claimant must bring proof; however,

this is how I judge

[I have judged]

you and all your violent associates,

[and all your violent associates]: they bear the burden of proof, since their litigants are afraid of them.

The Gemara analyzes this: Surely one can challenge what Rav Hisda’s ordinance accomplished. If the witnesses are afraid to testify against Mari bar Isak,

now too,

when he is told to bring witnesses himself, let us be concerned lest

the witnesses come

and

lie,

because they fear him?

Rather, it is certainly proven, as we said above, that

two

lies

people do not commit,

and therefore we do not fear that because of their fear of him they will actually lie; we fear only that they will not come to testify.

The Gemara considers:

Let us say

[it would seem possible to say that] what Rav Pappi and Rav Ashi said above—that her maidservant is deemed credible—is

subject to a dispute between tanna’im,

that is, it depends on the dispute between the tanna’im that we shall now explain:

For we learned in one beraita that the testimony concerning a captive woman

is testimony

for which everyone is qualified to testify:

a man and

even

a woman,

or

a boy or a girl, her father, her mother, her brother, or her sister;

but not

her

son or daughter,

and

not her slave or her maidservant.

It is apparently explained in this beraita that her maidservant is not deemed credible to say that she was not defiled.

And it was taught

in

another

beraita elsewhere that

everyone is deemed credible to testify

concerning a captive woman,

except for her

[that is, the woman herself]

and her husband.

It follows that this beraita holds that her maidservant is deemed credible to testify concerning her. If so, these beraitot disagree, corresponding to the opinions of Rav Pappi and Rav Ashi.

Weighing the matter, we discuss it: Indeed,

the words

of

Rav Pappi and Rav Ashi,

who said that a maidservant is deemed credible to testify concerning her mistress, certainly

are

in accordance with the dispute between the aforementioned

tanna’im!

And they hold in accordance with the second beraita, which maintains that a maidservant is deemed credible to testify concerning her mistress.

But

the words

of

Rav Pappa,

who said that a maidservant is not deemed credible,

might

we say that they too are subject to a dispute between tanna’im?!

[Did he likewise state his view only in accordance with one of the tanna’im]?!

And we say: No! Rav Pappa’s statement—that a maidservant is not deemed credible to testify concerning her mistress—is not dependent on the dispute between the beraitot cited above.

And what will you answer to the difficulty from the second beraita, which implies that a maidservant is deemed credible?

Rav Pappa will say to you:

When that

beraita teaches that she is deemed credible, it is specifically

when she speaks casually and without intending to testify!

That is why they believed her. But in general, they did not believe her maidservant.

The Gemara brings proof that a person is deemed credible when speaking casually and without intending to testify concerning a captive woman:

As in the incident that, when Rav Dimi came, he said:

that

Rav Hanan Kartigena

was

relating

[telling]

an incident,

that

it came before Rabbi Joshua ben Levi—

and some say

[and some said] that

Rabbi Joshua ben Levi

was

relating

[telling] that same

incident,

that

it came before Rabbi—

involving a certain man who was speaking casually and without intending to testify, and said: “My mother and I were taken captive among the gentiles,

and I guarded my mother so carefully that even when

I went out to draw water,

my

thoughts were upon my mother,

or when I went out

to gather wood,

my

thoughts were likewise upon my mother,

so that the gentiles would not defile her.”

And Rabbi permitted her to marry a kohen on the basis of that man’s statement,

which proves that one who speaks casually and without intending to testify is deemed credible concerning a captive woman:

Mishna:

There was an incident involving the wife of Rabbi Zekharya ben HaKatzav, who was a kohen, and who was taken captive together with him at the time of the destruction of the Temple.

And Rabbi Zekharya ben HaKatzav said: “By this Sanctuary

[this is an oath]

! Her hand did not leave my hand from the moment the gentiles entered Jerusalem until they left.”

The Sages said to him:

You are not deemed credible to permit her to yourself, because

a person cannot testify about himself

[that is, on his own behalf].

Gemara:

The tanna

taught in a beraita concerning this incident involving Rabbi Zekharya ben HaKatzav:

And nevertheless,

although the Sages forbade her to him, he did not distance her from himself. Rather,

he designated a house for her in his courtyard, and when she went out

of the courtyard, while Rabbi Zekharya was also in the courtyard at that time, she

went out ahead of her sons,

so that she would not be alone with him;

and when

likewise,

she entered

the courtyard, she

entered behind her sons,

and they were not alone together.

Abaye raised a question: What is the ruling as to doing the same with a divorced woman,

so that he lives with her in the same courtyard while taking care not to be alone with her?

And the sides of the uncertainty are: Perhaps only

there,

in the incident involving Rabbi Zekharya,

he

was permitted to live with her in the same courtyard because

they were lenient in the case of a captive woman; but

here,

it is different

with regard to a divorced woman, and it is not permitted. Or perhaps it is not different, and it is likewise permitted for him to live with her in the same courtyard, provided that he is not alone with her.

And we resolve the matter:

Come

and

hear

what we learned in tractate Semahot:

For it was taught—

An Israelite

who divorces his wife may not marry

and live

in her neighborhood

[that is, within a distance of three houses from him], but while she is still unmarried, she may live in his neighborhood.