Ketubot 76b (עו:) — the Talmud in English

Is it possible to say that the phrase “a bride in her father’s house”

means that Shmuel held in accordance with the statement of Rabbi Elazar cited above—“Break it apart: the one who taught this did not teach that”—that the first clause of the Mishna follows the view of Rabbi Yehoshua, and that the father must always bring proof in order to remove money from the husband’s presumptive ownership, even if the defect was discovered after the marriage, and it could be said, “Here it was found, and here it had been”; nevertheless, since whoever seeks to take money from another bears the burden of proof.

And from here Shmuel proved that in our case as well, although the defect was found in the domain of the owner of the cow, since the donkey was found dead only after the acquisition had already taken place, nevertheless, because the owner of the donkey seeks to establish ownership of his fellow’s cow, he bears the burden of proof.

And we raise an objection:

Are the cases comparable?!

Surely there is no proof from there.

Since

there

—in the Mishna, where the father must bring proof in order to collect the ketuba from the husband—

the father brings

proof and collects,

because the father’s proof is required in order to remove money from the husband’s presumptive ownership,

but

here

—in Shmuel’s ruling, where the owner of the donkey has already taken possession of the cow—

the owner of the donkey brings proof and establishes his ownership

because his proof is required in order to retain the cow in his possession! How, then, did Shmuel prove his ruling from the Mishna?

Rather,

Rav Abba said:

The source for Shmuel’s ruling is the final clause, which deals with

a bride in her father-in-law’s house

when she has entered the husband’s domain, and follows the view of Rabbi Elazar, that the final clause reflects the opinion of Rabban Gamliel, and that the husband must always bring proof, even if the defects were found in the father’s domain.

And although the husband is in full possession, and, furthermore, the defects were found in the father’s domain, he bears the burden of proof.

All the more so in our case, where the owner of the donkey does not have complete possession of the cow, since there is uncertainty regarding the acquisition itself; therefore, Shmuel held that he bears the burden of proof.

And

we reject this:

The cases are still not comparable!

There is still a distinction to be made.

There

—in the Mishna, where the husband’s monetary presumption is opposed by the woman’s bodily presumption—

the husband brings proof and undermines the father’s presumption

and therefore the burden of proof rests on the husband, in order to undermine the woman’s bodily presumption. But

here,

where the bodily presumption assists the owner of the donkey in establishing that the donkey died after the acquisition,

must the owner of the donkey bring proof and establish his presumption in his possession?!

Is the burden of proof placed upon the owner of the donkey in order to uphold the bodily presumption?!

Rather,

Rav Naḥman bar Yitzḥak said:

Shmuel’s proof is from the first clause, which deals with

a bride in her father’s house,

and the father must always bring proof, in accordance with Rabbi Yehoshua.

And

as for what we asked above—that no proof can be brought from there, since the father seeks to take money from the husband and therefore must bring proof—

this is not an objection! Since through the proof that the betrothal took effect, he also comes

to

establish possession of the money—the money of the

betrothal

that she received from the husband. Nevertheless, he is not deemed credible without proof.

And from here Shmuel proved that the owner of the donkey must likewise bring proof in order to retain the cow in his possession.

And do not say

that the proof is required only

according to the one who says that betrothal money is not given for permanent retention

—that is, that the woman must return the betrothal money if the betrothal is voided—and therefore the father must bring proof in order to retain the betrothal money in his possession.

Rather, even according to the one who says that betrothal money is given for permanent retention, this applies only to certain betrothal;

that is, where it is certain that she was betrothed and the betrothal was not voided except because of an external circumstance. Only in that case does he hold that she need not return the betrothal money.

But mistaken betrothal

certainly requires her to return the money. Only

if

the father

brings proof

that the betrothal took effect,

no!

Indeed, she does not return the money.

But if not, no!

The Gemara raises an objection to Shmuel’s ruling:

Meytivi,

we learned in tractate Ḥullin, with regard to the laws of tereifa:

“A needle found in the thickness

of the bet ha-kosot,

the place at the head of the rumen, adjacent to the reticulum, called the bet ha-kosot, which resembles a cup and has thick folds of flesh around its rim, and a needle was embedded in that thickness—if it was embedded only

on one side,

so that the puncture did not pass through,

it is kosher. If on two sides, it is a tereifa.”

And even when the needle pierced through both sides, one must still examine whether

there was found on it

on the needle—

a drop of blood; it is known that this occurred before slaughter

and the animal is a tereifa.

However, if

no drop of blood was found on it, it is known that this occurred after slaughter

and the animal is kosher.

And if he sold the animal to a slaughterer, and the slaughterer slaughtered it and it was found to be a tereifa, there is uncertainty: Perhaps it had already been a tereifa before the sale, in which case the sale was mistaken and the seller must return the animal’s price to the slaughterer.

Or perhaps it became a tereifa only after the sale, and it became a tereifa while in the slaughterer’s possession.

If

the mouth of the wound had formed a scab, it is known that the animal became a tereifa three days before slaughter,

and if the sale took place one or two days before slaughter, it is known that the sale was mistaken.

But if

the mouth of the wound had not formed a scab,

it is uncertain, and

whoever seeks to take money from another bears the burden of proof.”

And

it follows that

if the slaughterer gave the money, he must bring proof and collect

if the slaughterer paid, he must bring proof in order to take the money from the seller—even though there is uncertainty regarding the money’s having reached the seller, and the presumption of the mara kama assists the slaughterer.

And

we raise an objection, according to Shmuel: In the case of one who exchanges a cow for a donkey, where there is uncertainty as to when the donkey died, the owner of the donkey must bring proof. Apparently, this case parallels ours, with the owner of the donkey functioning as the seller of the cow.

If so, in our case,

why

must the slaughterer bring proof in order to take money, while

the owner of the animal should bring proof and establish his ownership

—surely the burden of proof should rest on the seller, just as it rests on the owner of the donkey!?

Rather, perhaps you will say that, in fact, the seller must bring proof, in accordance with Shmuel, and that the baraita deals

with a case where the slaughterer did not give the money,

and therefore it uses the expression “whoever seeks to take money from another,” referring to the seller. In truth, however, even if he is the one in possession, he bears the burden of proof.

This cannot be said, because

what fixed rule is this

—is it a fixed rule that the seller always gives the cow without receiving money, so that the tanna used the expression “whoever seeks to take” with reference to the seller? It is entirely possible that the uncertainty arose after the buyer had paid!?

Rather, when Rami bar Yeḥezkel came, he said: Do not accept these principles that Yehuda my brother stated in the name of Shmuel

—do not heed what my brother Yehuda said in the name of Shmuel, that the owner of the donkey must bring proof!

This is what Shmuel said: Whenever uncertainty arises in one’s domain, he bears the burden of proof,

and the owner of the cow, in whose domain the uncertainty arose—for the donkey was found dead after the cow had been drawn—must bring proof.

And the tanna taught this as well with regard to a bride.

And proof for this is found in the Mishna concerning the defects of a bride, in accordance with Rava, who said above, “Here they were found, and here they had been.” So too here, wherever the uncertainty arose, we attribute the creation of the condition to that place, and he bears the burden of proof.

Meytivi: “A needle found in the thickness of the bet ha-kosot

—

whoever seeks to take money from another bears the burden of proof.”

And

it follows that

if the slaughterer did not give the money, the owner of the animal must bring proof and collect

the owner of the animal must bring proof in order to take money from the slaughterer.

And why,

surely

the uncertainty arose in the slaughterer’s domain,

since the animal was found to be a tereifa after the acquisition!?

And we answer: In fact, the slaughterer must bring proof. The baraita is dealing with a case

where the slaughterer gave the money,

and therefore it uses the expression “whoever seeks to take money.”

And

if you say:

What fixed rule is this?

Why did the tanna simply state that the slaughterer is the one seeking to take money? It is possible that he is the one in possession, for example, if he did not pay the seller.

And we answer:

As a general matter, just as a person does not give money, a person does not give an animal

—it is the way of the world that a seller does not give the animal before the buyer has paid him.

The Mishna explains the view of the Rabbis:

“And the Sages say: In what case is this statement said? With regard to concealed defects,

but with regard to visible defects, he cannot make such a claim.” Even if the defects were found while she was still in her father’s house, the husband must give her the ketuba, since he certainly saw the defects and accepted them.