Shiur #16: "Ra'uha Medaberet" (13a)

  • Rav Ezra Bick

Translated by David Silverberg

  I.      The Second Debate Between Rabban Gamliel and Rabbi Yehoshua


            The mishna brings yet another dispute between Rabban Gamliel and Rabbi Yehoshua, one which strongly resembles their arguments in the previous two mishnayot.  Here, too, Rabban Gamliel believes the woman whereas Rabbi Yehoshua responds, "We do not trust her word; rather, she is presumed to have had relations…" However, one critical distinction sets this mishna apart from the preceding ones.  In the previous case, we deal with a monetary claim lodged by the woman in an attempt to extract money from the husband.  There, the main question is how, according to Rabban Gamliel, the woman had strong enough evidence to her claim for us to award her the disputed money.  Although she comes with several points to her advantage - such as migo, chezkat ha-guf, and bari ve-shema - none of them constitutes sufficient evidence to warrant extracting money from the husband on the basis of her claim.  We therefore had to invest a good deal of effort to understand Rabban Gamliel's view, whereas Rabbi Yehoshua's position was clear.  In our mishna, by contrast, we deal not with a monetary claim, but rather with an issue of issurim - the woman's permissibility with respect to marriage to a kohen.  (If she had engaged in relations with a pasul - someone forbidden to her, she may not marry a kohen thereafter.)  Regarding such a case, we should, presumably, implement the basic rule of chazaka - that we assume the status quo until conclusive evidence warrants otherwise.  This is precisely the view of Rabban Gamliel.  Here, our primary effort must focus on Rabbi Yehoshua's position, how and why he arrived at his stringent ruling and ignores the woman's chazaka that she is permitted to a kohen, given that we have no more than a safek that she engaged in relations with a pasul.


            The Gemara mentions a concept called, "ma'ala asu be-yuchesin" (or, "they raised the standards regarding issues of lineage"), which means that we have here a unique, extraordinary stringency that does not follow the standard guidelines of chazaka employed in all other areas of halakha.  But the Gemara invokes this claim only to explain one detail of Rabbi Yehoshua's view.  According to Zeiri, Rabbi Yehoshua rules stringently even if the woman was seen merely secluding herself with the man.  The principle of "ein oserin al ha-yichud" - that we do not render a woman forbidden based merely on circumstantial evidence of her seclusion with a man - proves that in such a case a woman retains her chazaka, and we assume that no relations had occurred.  It is due only to the unique chumra of the area of "yuchesin" that Rabbi Yehoshua ignores her chazaka even where it is questionable whether relations ever took place.  The Gemara attributes this particular nuance of Rabbi Yehoshua's position to this exceptional principle.  It felt no need, however, to resort to this rule of "ma'ala asu be-yuchesin" to explain the basic ruling of Rabbi Yehoshua, that we forbid the woman from marrying a kohen when we know that relations occurred, only we do not know with whom.  Apparently, this ruling does not evolve from any extraordinary chumra, and has some explanation based on the familiar guidelines of halakha.  Our job here is to determine what this explanation is.


            Truth be told, Rabban Gamliel's position also requires explanation.  The mishna's phraseology clearly indicates that Rabban Gamliel does not rely on the woman's chazaka, but rather bases his pesak on her claim that she had relations with a kasher (as opposed to a pasul).  If she had no information concerning the identity of the man, even Rabban Gamliel would not permit her to marry a kohen.  This appears to be the halakha of "bari ve-shema," which we encountered in the previous mishnayot.  Thus, the question arises according to Rabban Gamliel, as well: why does the woman's chazaka not suffice to permit her to marry a kohen?


            On the other hand, it appears from the continuation of the Gemara that Rabban Gamliel's position is, indeed, grounded on the woman's personal chazaka.  On 13b, the Gemara brings a dispute as to whether the view that permits the woman to marry a kohen extends this ruling to the woman's daughter, as well.  According to one position, Rabban Gamliel's lenient ruling relates only to the woman herself; her daughter, however, cannot marry a kohen.  The Gemara explains this position as follows: "She has a chezkat kashrut; her daughter does not have a chezkat kashrut."  Clearly, then, Rabban Gamliel's view is based upon the woman's chazaka.


            When we combine this with the phraseology of the mishna, which indicates, as stated, that Rabban Gamliel permits the woman because of her definitive claim, it emerges that Rabban Gamliel's ruling evolves from a combination of these two conditions: the woman's chazaka, and her definitive claim.  We must therefore explain how these two factors combine to yield his lenient ruling.


II.   Rabbi Yehoshua's View - We Do Not Follow the Chazaka


            Why does the chezkat kashrut of this woman, who was seen having relations with a man whose status is unknown, lack the power of chazaka that applies in all other cases in halakha?


            The explanation appears to be as follows.  The notion of chazaka is based on the premise that when a question arises as to whether a certain situation has changed, we do not maintain a position of doubt (safek); we continue to maintain the previous position concerning the situation.  As the Gemara formulates this rule in several places, "This woman has had a chazaka [that she is permitted] - do not forbid her out of doubt."  We never abandon a presumption that the situation is "A" in order to declare a situation of safek (doubt); we will do so only to determine that the status is now "B."  So long as a new reality has not been convincingly established, we do not cast any doubts on the previous situation.  In other words, a lack of information cannot replace old information; only new information can replace old information.


            Rabbi Yehoshua holds that at times we can have a situation of yedi'a (definitive information) which is that we have a safek.  Meaning, we are not in a situation of "we don't know," in which case we implement the rule of chazaka which mandates that we continue to uphold the previous data, but rather in a situation where we do know, and what we know is that we must consider the safek that has arisen.  This situation is called "mara lei la-chazaka" - the chazaka has been impugned.  Although we have no new definitive information, we nevertheless have clear-cut information that the old situation has changed, and the chazaka has therefore lost is validity.


            A clear distinction exists between a doubt as to whether or not the woman engaged in relations, and a doubt as to whether the man with whom she had relations is someone who renders her forbidden to a kohen.  In the first situation, we do not know if anything at all occurred.  In terms of the clear-cut evidence before us, we have no reason to start questioning whether she had engaged in relations.  To the contrary, we follow the chazaka that she had not.  In the second case, however, we know for a fact that she did have relations.  This information is definitive, but one detail about this information is missing - the man's identity.  The very knowledge that she slept with somebody requires us to question the man's identity.  Regarding such a doubt, the woman's chazaka does not help us.  The chazaka attempts to persuade us not to consider the safek at all.  But in our case, we know that we must consider the safek.  Here, we have no reason to prefer the possibility that she slept with someone kasher over the likelihood that the man was someone forbidden to her.


            In other words, chazaka involves the proper sequence of thought.  First we assume everything we know to be true, and then we see if we have any reason to raise the possibility of issur.  Where we are unsure as to whether relations occurred at all, the possibility that they did not, which maintains the currently established fact that the woman had not previously engaged in relations, takes preference over the other possibility, that relations had occurred and the woman is forbidden to a kohen.  When, however, we know for a fact that relations did occur, we have no reason to afford preference to the side that she slept with a kasher over the side that she slept with a pasul; both possibilities emerge equally from the information that we have that she indeed engaged in relations.  In such a case, Rabbi Yehoshua holds that chazaka is ineffective.  When the question is whether or not something occurred, chazaka tells us that it did not; when, however, the question is which of two possible positive scenarios took place, the chazaka cannot make this determination.


            Accordingly, we can understand the distinction between a case where she was seen engaging in relations, in which case Rabbi Yehoshua forbids her to a kohen outright, since this definitive knowledge undermines the chazaka, and a case where she was seen merely secluding herself with a man, where Rabbi Yehoshua forbids her only because of "ma'ala asu be-yuchesin."  In the latter case, the chazaka has not been undermined and works as usual.  There the question is whether or not anything occurred, and we thus would normally follow the chazaka rather than changing her status out of doubt.


III. Rabban Gamliel's View: Maintaining the Woman's Chazaka


            We have several different options to explain why Rabban Gamliel disagrees with Rabbi Yehoshua.


            One could suggest that Rabban Gamliel simply rejects this entire theory we presented, and holds that in any situation of doubt, where we face two possibilities, we choose the one that corresponds to the situation that we know has existed until now.  Therefore, even in a case where we know that relations occurred, Rabban Gamliel implements the woman's chezkat kashrut and she remains permitted to marry a kohen.


            According to this approach, however, we must explain why, as mentioned earlier, the woman must lodge a claim that the man was kasher.  After all, the principle of chazaka applies even without any claim by the relevant party.  The Ritva (s.v. le-zeiri) replies to this question, "Rabban Gamliel's main reason is the [woman's] personal chazaka.  However, he requires a claim because if she does not make a claim, she is considered as confessing to having had relations with a pasul."  The chazaka does in other words, not need the backing of a claim; however, the woman's silence would be interpreted as a confession on her part that the man was pasul.  It thus turns out that the chazaka suffices independently to allow her to marry a kohen, on condition that she does not herself confess - either expressly or by implication - to having had relations with a pasul.


            (It emerges from the Ritva's theory that Rabban Gamliel would permit the woman even if she makes a claim of shema [ = an uncertain claim], because in truth we do not need her claim; we require only that she avoid confessing.  This conclusion must be assessed in light of the sugya of "almenet isa" - 14a - and that of "tinoket she-yareda le-ayin" - 14b.)


            We may, however, explain Rabban Gamliel's view differently.  Perhaps he accepts the concept of "mara lei le-chazaka," only he feels that here the woman's definitive claim overcomes this problem.  As we explained, chazaka would not work in our case because the two possibilities, that the man was either kasher or pasul, emerge equally as answers to the question of "with whom did she have relations"; neither possibility deserves preference over the other.  To this Rabban Gamliel responds that if the woman claims with certitude that the man was kasher, then although her claim is  not believed, it suffices to afford priority to that possibility over the possibility that she slept with a pasul.  When we discuss this case, Rabban Gamliel claims, we must formulate the situation as follows: "The woman had relations with a kasher, but perhaps" - as an afterthought - "with a pasul."  Once we perceive the situation in this manner, the chezkat kashrut comes along and mandates that we stop with that of which we are certain, and do not proceed to consider other possibilities.  It thus turns out that the woman may marry a kohen, as we implement her chazaka.  Accordingly, Rabban Gamliel's view is indeed based upon a combination between her claim and her chazaka.  Therefore, if the woman advances an uncertain claim, Rabban Gamliel would not permit her to a kohen, since the definitive knowledge of her relations creates a situation of "mara lei le-chazaka."


            [There are other explanations for Rabban Gamliel's view, which see it as based primarily on the issue of bari ve-shema - that she advances a definitive claim.  These approaches must explain the Gemara mentioned earlier, regarding the status of the woman's daughter, such that it does not base the woman's permissibility on her chazaka.  See, for example, the Kehillat Yaakov here.]


IV. A Situation of "Rov Pesulin'


            The Gemara (13b) cites the assertion of Rabbi Yehoshua Ben Levi that Rabban Gamliel would allow the woman's marriage to a kohen even in a situation of "rov pesulin" - where the majority of the men in the area are forbidden to her, and would thus disqualify her from marrying a kohen.  The Gemara offers no explanation for this statement, which appears, at first glance, difficult to understand.  Why do we not apply the concept of "rov" and follow the majority?  Even if Rabban Gamliel bases his position on chazaka, a famous principle dictates that "ruba ve-chazaka ruba adif" - we follow rov even in the face of a chazaka!


            One solution to this difficulty appears in Tosefot (13b; s.v. heishavtanu).  Tosefot claim that we have a general principle by which we assume that whenever a single woman has an illicit relationship she first checks the status of the man.  Apparently, this means that we have a rov that a woman would prefer to engage in relations with a kasher rather than with a pasul.  Therefore, even in a situation of "rov pesulin," where the majority of men in the area are forbidden, in truth we have a rov to the opposite effect - that the man involved was in fact kasher.


            Clearly, however, this answer does not explain the second clause of Rabbi Yehoshua Ben Levi's comment, that Rabbi Yehoshua, who forbids the woman in the mishna's case, maintains his position even in a situation of rov kesheirim - where the majority of the local townspeople are permitted to her.  Here we have no choice but to view this as a rabbinically-ordained stringency due to "ma'ala asu be-yuchesin."


            Rabbi Akiva Eiger suggests a different answer.  In truth, he claims, we do not have a rov that a woman who engages in an illicit relationship does so with a kasher.  We must take note, however, that the woman engaged in a voluntary relationship and the man's identity depends on her calculated decision.  Therefore, the number of kesheirim versus the number of pesulim in the general population has no relevance with respect to the man's identity.  He does not come by chance from the town to the woman; he was rather selected by her based on some personal qualities of his, and not on the basis of the random composition of the local population.  Therefore, we have no rov in either direction.  This answer would explain Rabbi Yehoshua Ben Levi's second clause in a similar manner.


            The Shitta Mekubetzet cites the "Shitta Yeshana" as emphasizing that the woman is believed even in a case of "rov pesulin" because she advances a definitive claim (in addition to the fact that she had a choice in the matter, as opposed to a captive woman, who is at the mercy of her captors).  We may explain that although Rabbi Akiva Eiger is essentially correct, this relates only to the connection between the "rov pesulin" and the specific choice of the woman.  A woman can always select a kasher just as easily as she can a pasul, despite the fact that the latter group constitutes the majority.  But since every woman chooses whom she does for a different reason, in the long run we still have a statistical rov that women involved in illicit relationships live with pesulim more often than they do with kesheirim.  If we were dealing with a normal rov, we could say that the rov determines what occurred in a given case that comes before us.  In such a case, chazaka cannot outweigh the rov, because the rov requires us to establish a new status regarding the given situation, and this is not considered determining an issur merely from doubt.  In our case, however, where the woman lodges a definitive "bari" claim; i.e., she claims that she used her free will to ignore the rov, the rov cannot determine what occurred in this specific instance.  Here Rabbi Akiva Eiger is correct, that the statistical majority of "rov pesulin" has no relevance to her specific case.  Therefore, although there is, in fact, a statistical rov, nevertheless in this instance the chazaka takes preference.  Only when we confront a safek concerning her status will the rov come along and tell us that we should forbid her, since in the majority of cases this is the correct answer.  However, where the woman lodges a definitive claim that the man is kasher, the chazaka tells us that we have no safek to begin with, and thus the consideration of choosing the "probable" answer based on the rov is irrelevant.


V.   Requiring "Rov Kesheirim Etzla"



            The Gemara (14a) says that optimally we should not rely on Rabban Gamliel's ruling unless "rov kesheirim etzla" - the majority of men in the vicinity are kesheirim.  According to Tosefot's explanation, this is very difficult to understand.  Once we have a rov telling us that women generally determine the man's validity before engaging in relations, then no distinction exists whatsoever between a situation of "rov kesheirim" and that of "rov pesulim."  Tosefot must therefore understand this provision as a rabbinically-mandated stringency based purely on the superficial, outward appearance of the situation, whereas in essence there is no advantage to having "rov kesheirim" in the city.  The same would apply to Rabbi Akiva Eiger's approach, at least to a certain extent.  Even according to his view, no true connection exists between the woman's status and the majority of kesheirim or pesulim in the general population.  However, according to the final approach we suggested, this halakha becomes clear.  If, in fact, the pesulim comprise the majority, this rov does indeed have a statistical relevance to this case.  Rabban Gamliel maintains that in such an instance, we still afford preference to the woman's chazaka.  Here we can perhaps explain that Chazal ordained that one should optimally not rely on this last point; le-khatechila, we take the rov into account and refrain from issuing a pesak that in the long run would be incorrect in most cases.  Although, strictly speaking, the chazaka should outweigh the rov, there is nevertheless room for a stringency introduced by Chazal in consideration of the statistical majority.