Ketubot 75b (עה:) — the Talmud in English

But with regard to visible blemishes, he cannot make such a claim.

Since he certainly knew of them and nevertheless agreed to betroth her.

And if there is a bathhouse in that city, even

with regard to

concealed blemishes he cannot claim

that he did not know of them,

because he examines her

before the betrothal,

through his female relatives.

Gemara:

Introduction:

We learned above (12b): “One who marries a woman and does not find that she has hymens: She says, ‘I was raped after you betrothed me, and your field was flooded,’ while he says, ‘No; rather, it happened before I betrothed you, and my transaction was a mistaken transaction.’”

Rabban Gamliel and Rabbi Eliezer say: She is deemed credible.

And Rabbi Yehoshua says: “We do not live by her word.” Rather, she has the presumptive status of one who had previously engaged in intercourse, and she misled him, until she brings proof of her statement.”

The simple conclusion of the Gemara there is that Rabban Gamliel’s reason is that the ḥazaka of the body—that she was born a virgin—establishes for us that she engaged in intercourse after the marriage. Since we must assume that her bodily status changed—that she engaged in intercourse—only from the time that she is found to have previously engaged in intercourse, that is, after the marriage, the husband’s field was flooded, and he is obligated to pay her ketובה.

Rabbi Yehoshua, however, maintains that the ḥazaka of possession is always stronger, and money cannot be removed from the husband’s presumptive ownership except by conclusive proof.

Our Mishna ostensibly deals with a similar case. For according to the woman’s claim, the ḥazaka of the body supports her, indicating that the blemishes developed after her marriage.

According to the husband’s claim, however, the ḥazaka of possession supports him, indicating that his money cannot be removed from his presumptive ownership except by proof.

And the Gemara raises a difficulty: We learned in the first clause, “If she had blemishes while she was still in her father’s house, the father must bring proof,” and it is precise to infer:

The reason is that the father brings proof

that the blemishes developed after the betrothal, and only then is the husband not deemed credible;

but

if

the father does not bring proof, the husband is deemed credible!

Who is the author [

who maintains this]?

It is Rabbi Yehoshua, who says: “We do not live by her word.”

And money cannot be removed from its presumptive ownership except by proof.

Come and hear the latter clause:

“If she entered the husband’s domain, the husband must bring proof,”

and it is precise to infer:

The reason is that the husband brings proof

that she had the blemishes at the time of the betrothal, and only then is he deemed credible to divorce her without paying her ketubah;

but

if

the husband does not bring proof, the father is deemed credible!

And if so,

we have arrived [

we have come]

at the

words of

Rabban Gamliel, who says that she is deemed credible.

Since the ḥazaka of the body—that she did not have blemishes—supports her.

This is difficult: In the first clause we follow Rabbi Yehoshua, while in the latter clause we follow Rabban Gamliel?

Rabbi Elazar said: It is a disjointed Mishna!

The words of the Mishna must be divided between two tannaim, because this difficulty has no resolution:

The one who taught this

the first clause, namely, Rabbi Yehoshua,

did not teach this

the latter clause, namely, Rabban Gamliel.

Indeed, according to Rabbi Yehoshua, even if she entered the husband’s domain, the father must bring proof, since the burden of proof rests upon the one who seeks to extract something from another.

According to Rabban Gamliel, even if she did not enter the husband’s domain, he must bring proof, since the ḥazaka of the body supports her claim, indicating that the blemishes developed after the betrothal.

Parenthetically , Rava explains Rabbi Yehoshua’s words:

Rava said: Do not say [

that

Rabbi Yehoshua does not follow the ḥazaka of the body at all;

Rather, when Rabbi Yehoshua does not follow the ḥazaka

of the body

it is only

where there is a ḥazaka of possession

opposed to it, as in our Mishna,

But where there is no ḥazaka of possession

opposed to it, but rather another ḥazaka, such as the ḥazaka of an unmarried woman,

Rabbi Yehoshua follows the ḥazaka of the body.

For he too agrees that the ḥazaka of the body is stronger than all other presumptions.

And the proof is:

For it was taught in a beraita:

With regard to the laws of afflictions, the Torah states: “And behold, the hair has turned white in the affliction” (Leviticus 13:25). We learn from this that only

if the affliction preceded the white hair is he impure.

But

if

there was

white hair before the affliction, he is pure.

And when there is

a doubt

as to which preceded which, according to the Rabbis,

he is impure.

And Rabbi Yehoshua says:

It is dimmed.

What is meant by “dimmed”?

Rabba said:

“Dimmed”

means

pure.

As when the affliction becomes dim in appearance and the person becomes pure. [In the Torat Kohanim the version reads “dull,” like a person whose teeth have been set on edge because no attention is paid to his words]].

His reason is that we establish the body according to its presumptive status, namely, that it has no afflictions.

It is thus clear that even according to Rabbi Yehoshua, we follow the ḥazaka of the body where no ḥazaka of possession stands opposed to it.

The Gemara returns to resolve the Mishna in additional ways:

Rava said:

The entire Mishna can be established as following Rabban Gamliel, who holds that the ḥazaka of the body is stronger. However, in the

first clause,

the father must bring proof, despite the fact that the ḥazaka of the body supports him, because the doubt arose in his domain, thereby weakening his ḥazaka. For we say: “

Since

Since they were found here,

it may be said that

they were here

even before the betrothal.”

The latter clause as well: “Since they were found here, they were here.”

Abaye raised an objection to him [

Abaye challenged Rava’s words; we learned in the Mishna:

“If she entered the husband’s domain, the husband must bring proof that she had these blemishes before she was betrothed, and that his transaction was a mistaken transaction.”

And it is precise to infer that if he brings proof

that they existed before she was betrothed—it is effective;

only then does the proof help him. But if he brings proof that she had the blemishes

after she was betrothed, it does not

help him exempt himself from the ketubah.

And

according to Rava’s words,

why

does his proof not help him,

so let us say, “Since they were found here, they were here,”

and since he proved that the blemishes existed in the father’s domain, the father should have to bring proof that they developed after her betrothal, just as in the case where the blemishes were found in the father’s domain after the betrothal?

Rava said to him:

When the blemishes were found in his domain and the husband brings proof that she had them

after she was betrothed,

the proof does not help him,

because it can be said:

“There is a ḥazaka that a person does not drink from a cup unless he examines it,” [

that is, he does not marry a woman until he has examined her beforehand],

and this man saw

the blemishes

and was reconciled to them [

he agreed to betroth her nevertheless]. And we challenge this:

If so,

since he was reconciled to them, even if he brings proof that the blemishes developed

before she was betrothed, as well

he should be obligated to pay her ketubah, since he knew of the blemishes and waived his claim concerning them?

Rather,

it must be

said:

“There is a ḥazaka that a person does not become reconciled to blemishes,”

and he certainly did not know of them. Therefore, if the blemishes existed before the betrothal, his transaction was a mistaken transaction!

Here too,

why did Rava say, “There is a ḥazaka that a person does not drink from a cup,” when there is opposed to it

“There is a ḥazaka that a person does not become reconciled to blemishes,”

so it necessarily follows that he did not know of the blemishes, and the difficulty returns to its original place?

Rather,

the matter must be resolved differently: When the blemishes were found in the husband’s domain and the husband brings proof that she had them

after she was betrothed,

the proof does not help him

because there are two

presumptions opposed to his claim:

A.

There is a ḥazaka: establish the body according to its presumptive status,

that it had no blemishes; therefore, the blemishes must have developed only after the betrothal.

B.

And there is a ḥazaka: “A person does not drink from a cup unless he examines it,” and this man saw the blemishes and was reconciled to them.

Therefore, his proof is entirely ineffective.

What can you say—that there is a ḥazaka that a person does not become reconciled to blemishes?! [

Perhaps you will say: “There is a ḥazaka that a person does not become reconciled to blemishes,” which supports his claim, since he certainly did not see the blemishes before the marriage?]