Ketubot 76b — the Talmud in English

If we say “the bride in her father’s house” -

if it is said that Shmuel held in accordance with the words of Rabbi Elazar mentioned above, “contradiction: the one who taught this did not teach that,” so that the first part of the Mishna is according to Rabbi Yehoshua, and in fact it is upon the father to bring proof in order to remove money from the possession of the husband—and even if the defect is found after the marriage, and one might say, “Here it was found, here it had been,” nevertheless, since the one who seeks to remove [money] from his fellow is subject to bringing proof.

And from here Shmuel proved that also in our case, even though the defect was found in the domain of the owner of the cow, since the donkey was found dead after the acquisition had already been made, nevertheless, since the owner of the donkey comes to establish possession of his fellow’s cow, he must bring proof.

And we raise an objection:

Are they comparable?!

Is there not no proof from there?

Since

there

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

the father brings

proof and removes it,

the father’s proof is required in order to remove money from the possession of the husband,

but

here

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

the owner of the donkey brings proof and establishes possession

his proof is required in order to keep the cow in his possession! And how did Shmuel prove his law from the Mishna?

Rather,

Rav Abba said:

The source for Shmuel’s words is from the latter clause, which deals with

the bride in her father-in-law’s house

when she entered the husband’s domain, and in accordance with Rabbi Elazar, that the latter clause is the opinion of Rabban Gamliel, and in fact it is upon the husband to bring proof, even if the defects were found in the father’s domain.

And even though the husband has complete possession, and furthermore, the defects were found in the father’s domain—he must bring proof.

And all the more so in our case, where the owner of the donkey does not have complete possession of the cow, for there is doubt concerning the acquisition itself; therefore Shmuel held that he must bring proof.

And

we reject this:

It is still not comparable!

There is still a distinction to be made.

There

in the Mishna, where the husband’s possession of the money is opposed by the woman’s bodily presumption,

the husband brings proof and undermines the father’s presumption

therefore the proof is imposed upon the husband, in order to undermine the woman’s bodily presumption, but

here,

where the bodily presumption assists the owner of the donkey, to say that it died after the acquisition,

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

Is the obligation of proof imposed 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

the bride in her father’s house,

and in fact it is upon the father to bring proof, in accordance with Rabbi Yehoshua.

And

as for what we objected above, that no proof can be brought from there, since the father comes to remove money from the husband and therefore must bring proof,

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

to

establish possession of money: the money of the

kiddushin

that she received from the husband. And nevertheless, he is not believed without proof.

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

And do not say

that the proof applies only

according to the one who says that kiddushin was not given for forfeiture

that is, that the woman must return the money of the kiddushin when the kiddushin was annulled, and therefore the father must bring proof in order to establish the money of the kiddushin in his possession.

Rather, even according to the one who says that kiddushin was given for forfeiture, this applies to definite kiddushin,

where she was certainly betrothed, and the kiddushin was annulled only because of an external cause; only then does he hold that she does not return the money of the kiddushin.

But mistaken kiddushin,

she certainly must return the money. And only

if he brings

the father

proof

that the kiddushin took effect,

[then] no!

indeed, she does not return the money. And

if not, no!

The Gemara raises an objection to Shmuel’s words:

It was objected:

We learned in Hullin, concerning the laws of tereifot:

“A needle found in the thickness of

the reticulum,

a place at the head of the rumen, adjacent to the omasum, called the reticulum, which is like a cup and has thick folds of flesh around its rim, and a needle is found embedded in that thickness, if it was embedded only

from one side,

and the perforation did not pass through,

it is fit. From two sides, it is a tereifa.”

And even when the needle pierced from both sides, it must still be examined: if

there was found upon it

upon the needle

a particle of blood, it is known that it was before slaughter

and it is a tereifa.

However, if

there was not found upon it a particle of blood, it is known that it was after slaughter

and it is fit.

And if he sold the animal to a slaughterer, and the slaughterer slaughtered it and it was found to be a tereifa, it is uncertain whether it had already been a tereifa before the sale, and the sale was a mistaken transaction, in which case 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 in the slaughterer’s possession.

If

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

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

But if

the mouth of the wound had not formed a scab,

it is a doubt, and

“the one who seeks to remove [money] from his fellow is subject to bringing proof.”

And

it implies that

if the slaughterer gave the money, he must bring proof and remove it

if the slaughterer paid, he must bring proof in order to remove the money from the seller, even though there is doubt concerning the very arrival of the money into the seller’s possession, and the presumption of the mara kamma assists the slaughterer.

And

we object, according to Shmuel, that in the case of one who exchanges a cow for a donkey, where there is doubt when the donkey died, the owner of the donkey must bring proof; ostensibly, this case parallels our case, and the owner of the donkey is like the seller of the cow.

And if so, in our case,

why

must the slaughterer bring proof in order to remove money,

should the owner of the animal bring proof and establish possession

is not the obligation of proof imposed upon the seller, as it is imposed upon the owner of the donkey?!

Rather, perhaps you will say: in fact, it is upon the seller to bring proof, in accordance with Shmuel. And the beraita deals

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

and therefore it used the expression “the one who seeks to remove [money] from his fellow,” referring to the seller. But in truth, even if he is the one in possession, he must bring proof.

It is impossible to say this, because

what established this?

Is it an established matter that the seller always gives the cow without money, and why did the tanna use the expression “the one who seeks to remove [money]” concerning the seller? It is possible that the doubt arose after he paid?!

Rather, when Rami bar Yeḥezkel came, he said: Do not heed these rules that Yehuda, my brother, formulated in the name of Shmuel

do not listen to 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 a doubt arises in his domain, he must bring proof,

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

And the tanna teaches this as well concerning the bride.

And proof of this is from the Mishna concerning the bride’s defects, and in accordance with Rava, who said above, “Here they were found and here they had been”; so too here, wherever the doubt arose, we ascribe that it was created there, and he must bring proof.

It was objected: “A needle found in the thickness of the reticulum -

the

one who seeks to remove [money] from his fellow is subject to bringing proof,”

and

it implies that

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

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

And why,

is it not the case that

the doubt arose in the slaughterer’s domain,

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

And we answer: in fact it is upon the slaughterer to bring proof. And the beraita deals with a case

where the slaughterer gave the money,

and therefore it used the expression “the one who seeks to remove [money].”

And

if you say:

“What established this?”

Why did the tanna simply state that the slaughterer is the one who seeks to remove [money]? Is it not possible that he is the one in possession, for example, if he did not pay the seller?

And we answer:

As a general matter, as long as a person has not given money, a person does not give an animal

the way of the world is that the 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 a claim”; and even if the defects were found while she was still in her father’s house, the husband must give her a ketuba, since he certainly saw the defects and was reconciled to them.