Daf 73b continued

  • Rav Michael Siev


Introduction to the Study of Talmud
by Rav Michael Siev

Kiddushin 11-Daf 73b

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Last week, we learned that people who claim to be the parents of an abandoned baby are believed while the baby is still in its abandoned position in the public domain. Once it has been brought in, however, it has already attained the status of an asufi (a person of unknown lineage, who is considered a possible mamzer), and one who claims to be its parent would not be believed to the extent that we would revoke that status (unless it was a time of famine, as we explained last week).

The Gemara now quotes a teaching that incorporates this policy. We are about halfway down the page on 73b.

Rav Chisda said: "Three are believed immediately, these are they:

asufi, a midwife, and a woman who relieves her fellows [of a presumption of impurity]."

Asufi, that which we said.

Midwife, as it is taught in a beraita: "A midwife is believed to say this came out first and this came out second;

when does this apply - if she did not leave and return,

but if she left and returned - she is not believed.

Rabbi Eliezer says: 'if she has remained in her position - she is believed, and if not - she is not believed.'"

What is [the difference] between them? The [difference] between them is if she turned her face away.

אמר רב חסדא: שלשה נאמנים לאלתר, אלו הן:

אסופי, חיה, ופוטרת חברותיה.

אסופי, הא דאמרן.

חיה, דתניא: חיה נאמנת לומר זה יצא ראשון וזה יצא שני;

במה דברים אמורים - שלא יצתה וחזרה,

אבל יצתה וחזרה - אינה נאמנת.

רבי אליעזר אומר: הוחזקה על עומדה - נאמנת, ואם לאו - אינה נאמנת.

מאי בינייהו? איכא בינייהו דאהדר אפה.

Rav Chisda teaches that there are three instances in halakha in which we believe someone if they make their claim immediately following a particular event, but not if they delay their claim; in general, those whom the halakha trusts are relied upon regardless of the timing of their claim. This list includes the cases of the asufi, the midwife and the woman who relieves her fellows from a presumption of impurity. The gemara now specifies the details of these different situations:

The case of the asufi is that mentioned previously in the gemara - the case we studied last week and to which we alluded in the introduction to this week's shiur.

The case of the midwife is as follows: if a woman gives birth to twins, the midwife is believed regarding her identification of which child was born first and thus has the status of bekhor. The status of bekhor carries with it certain halakhic ramifications, such as receiving a larger portion of the inheritance and a possible obligation of pidyon ha-ben (redemption of the firstborn), which requires the father (or the son himself, if he grows up without the ceremony having been performed) to give the value of five biblical shekels to a kohen. The beraita teaches that this applies only if the midwife has remained on site from the time of the birth until she makes the claim; however, once she leaves she is no longer believed. Rabbi Eliezer limits the midwife's believability even further - she is only trusted if she has not turned her face from the twins. Once she turns away, even if she has not left the room, she is no longer able to legally establish which child is the bekhor.

The fact that the midwife is trusted regarding this information is not meant to imply that she is the only one who is able to make this determination. As the Gemara will explain (74a), the parents themselves have a greater level of credibility than the midwife.

The gemara now moves on to explain the third case alluded to by Rav Chisda.

A woman who relieves her fellows - what is it (this case)?

As is taught in a mishna: "Three women who were sleeping on one bed,

and blood was found under one of them - they are all impure;

if one of them examined and was found to be impure - she is impure and they (the others) are all pure."

Rav Chisda said: "She examined herself immediately."

פוטרת חברותיה מאי היא?

דתנן: שלש נשים שהיו ישנות במטה אחת,

ונמצא דם תחת אחת מהן - כולן טמאות;

בדקה אחת מהן ונמצאת טמאה - היא טמאה וכולן טהורות.

אמר רב חסדא: שבדקה עצמה כשיעור ווסת.

This case must be introduced with a short explanation of the laws of niddah (a menstruant woman). The Torah (Vayikra 15:18-24) legislates that a woman who menstruates is considered ritually impure for seven days, after which she can immerse in a mikvah and become pure once again. Although we no longer keep all the laws of purity in the absence of a Beit Ha-mikdash (Temple) and people who eat sanctified food such as teruma, the law of niddah does have practical ramifications even nowadays, as it is absolutely forbidden for even a husband and wife to engage in sexual relations while a woman has this status (Vayikra 18:19, 20:18). This will suffice to explain the basic concept as needed to understand our gemara - for an explanation of the practical laws of niddah, which are complex, the reader is referred to one of the many works available in English that deal with this topic, including The Laws of Niddah, published by Artscroll.

The mishna teaches that if three women were lying in the same bed and blood was found on the sheets under one of the women, we treat all of them as being impure; despite the fact that the blood was found under one of them, it is conceivable that it came from one of the others, as people tend to move around when sleeping. (The gemara on this mishna (Niddah 61a) explains that this is only the case when the women are packed tightly together. Otherwise, only the two women located in the immediate proximity of the stain are considered impure.) However, if one of them performed an internal examination and found herself to be impure, it is presumed that the blood on the sheet also came from her, and the others retain their status of purity. This is only the case if the woman performed this examination immediately and announced the results; otherwise, the other women cannot be considered pure on the basis of this woman's impurity.

Onward in the Gemara

The Gemara now brings a related point. We are 13 lines from the bottom of 73b.

The Rabbis taught: "A midwife is believed to say this is a kohen and this is a Levite,

this is a Netinite and this is a mamzer;

when does this apply - when no one has challenged [her claim],

but if one has challenged - she is not believed."

What kind of challenge? If you say a challenge of one [person],

but Rabbi Yochanan said: "There is no challenge less than two!"

Rather, a challenge of two.

And if you want, say: "Really I will tell you a challenge of one,

and when Rabbi Yochanan said there is no challenge less than two,

that applies where there is a presumption of legitimacy,

but here where there is no presumption of legitimacy - one is also believed."

תנו רבנן: נאמנת חיה לומר זה כהן וזה לוי,

זה נתין וזה ממזר;

במה דברים אמורים - שלא קרא עליה שם ערער,

אבל קרא עליה ערער - אינה נאמנת.

ערער דמאי? אילימא ערער חד,

והאמר רבי יוחנן: אין ערער פחות משנים!

אלא ערער תרי.

ואיבעית אימא: לעולם אימא לך ערער חד,

וכי אמר רבי יוחנן אין ערער פחות משנים,

הני מילי היכא דאיתא חזקה דכשרות,

אבל היכא דליכא חזקה דכשרות - חד נמי מהימן.

Just as we learned above that the midwife is believed in her declaration of which of two twins was born first, this beraita teaches that the midwife is also believed to determine, in case of doubt, which child belongs to which family. The case under discussion, as Rashi (s.v. zeh kohen) points out, must be one in which several women of different genealogical status gave birth in the same place; thus, it is possible for a doubt to arise as to the identity of the children. If no one challenges the midwife's claims, her word is considered authoritative. If she has been challenged, however, we do not consider the midwife to be absolutely authoritative. 

The gemara questions what type of protest is significant enough in our case to discount the claims of the midwife. Rabbi Yochanan teaches that a protest is not considered halakhically significant unless two people support the claim. The gemara affirms that, based on this teaching, we must assume that the midwife is trusted unless there are two people who support the counter-claim. Alternatively, the gemara suggests that perhaps Rabbi Yochanan's teaching applies only when the protest attempts to reverse a previously held assumption of legitimacy. In our case, however, the status of the newborn children has not yet been confirmed, and there is no presumption of legitimacy; therefore, a protest is significant even if it is made by one person alone. This second answer confirms the significance of the concept of chazaka that we have discussed on other occasions: once a halakhic status is conferred upon a person or object, we consider that to be operative unless we know for sure that the status has changed or was mistaken to begin with. A higher level of certainty is required to change an already accepted position than is necessary to prevent that position from being adopted in the first place.

Onward in the Gemara

We are three lines from the bottom of 73b.

A seller is believed to say "to this I sold and to this I did not sell;"

When does this apply - when his merchandise is in his hand,

but if his merchandise is not in his hand, he is not believed.

And let us see from whom he took money?

No, it is needed, for he took from both of them,

and he said: "one was with my intent and one was against my will,"

and it is not known which was with his intent and which was against his will.

נאמן בעל מקח לומר לזה מכרתי ולזה אין מכרתי;

במה דברים אמורים - בזמן שמקחו בידו,

אבל אין מקחו בידו - אינו נאמן.

וניחזי זוזי ממאן נקט?

לא צריכא דנקט מתרוייהו,

ואמר: חד מדעתאי וחד בעל כורחי,

ולא ידיע הי מדעתו והי לא מדעתו.

The gemara now quotes a further case of one who is believed for a limited time only. If two people claim to have purchased the same item from a third party, the seller is believed when he identifies the true purchaser. This is only true, however, when the seller is still in possession of the merchandise, and the debate is about who has purchased the rights to the merchandise; in such a case, the seller surely has kept track of whom it is that he is doing business with. If, however, the merchandise has already left his possession and both claimants are holding onto it, the seller is no longer trusted to remember the identity of the true purchaser.

The gemara questions the need for limitation on the seller's trustworthiness. Presumably only one person paid for the item, and the merchant should still remember who that was!  The gemara explains that we are talking about a situation in which the merchant recalls that both claimants paid for the item; one was the legitimate buyer and one forced the merchant to receive his payment. Thus, we cannot independently confirm who the legitimate purchaser is, and we also cannot be fully confident that the merchant will remember which of the two payments he received was legitimate.

The commentators raise a question with regard to this gemara. The implication is that if only one person paid, we would in fact trust the merchant to reveal the identity of the real purchaser. Why should this be the case? Halakha generally recognizes the validity of testimony in many areas of halakha, including monetary law, only when the testimony is confirmed by two witnesses; why should the merchant be any more credible than a single witness?

The Ran (Rabbeinu Nissim) explains that the fact that the merchant is trusted actually does not work according to normal legal procedures. Nevertheless, the Sages decreed that merchants have an unusual degree of credibility in such circumstances order to allow to allow for the development of an efficient market system.

Other commentators (such as Tosafot and Ritva) explain the gemara very differently than we have presented it until now. The reason the seller is trusted when the merchandise is still in his possession is because he still has the legal ability to nullify the sale. Once he has accepted payment it is considered reprehensible to do so, but since he does have the legal option of nullifying the sale and conducting a new one, he is trusted when he identifies the partner with whom he has agreed to do business. He is never trusted, however, once the merchandise has left his possession. The gemara's question - "let us see from who he took money" - refers even to the case in which the seller still holds the merchandise. If there are witnesses who document which claimant paid for the object, we do not believe to seller to contradict them. The gemara answers that both claimants paid and the question is which was with the approval of the seller.

Look back at the Gemara we have studied today. Can you track the development of its discussion? How did we get from asufi to cases of buyers and sellers?

The selection of Gemara we have studied today displays a style quite characteristic of talmudic discussion. In the context of its presentation of laws pertaining to an asufi, the gemara discusses the circumstances in which people who step forward and identify themselves as the parents of an abandoned child are believed. This case is one of the three cases Rav Chisda mentioned in which people are believed if they make their claim within a certain window of time. Having quoted Rav Chisda's statement, the gemara proceeds to explain the other cases on his list, despite the fact that they have nothing to do with asufi. The second case on the list was that of a midwife, and the gemara proceeds to analyze a different case in which a midwife has credibility. Finally, the gemara moves on to discuss other cases in which a person's credibility depends upon the timing of his claim. Each step is related to the step before, though we end up with a discussion that covers a wide range of topics!