Most Women are Married as Betulot

 

I.        INTRODUCTION: THE DISAGREEMENT BETWEEN RAV AND SHMUEL WHETHER OR NOT WE FOLLOW A ROV (MAJORITY) IN MONETARY MATTERS

We shall open with a short introduction. The Gemara in Bava Batra records a fundamental Amoraic disagreement whether or not we award money to the plaintiff based on a rov (majority):

It was stated: [If] one has sold an ox to another, and it was found to have been wont to gore. Rav said: The [sale] was made under false pretences. But Shmuel said: [The seller] can say to him: I sold it to you for [the purpose of] slaughtering…

Rav said: The deal was made under false pretences [because] we follow the majority (ruba=rov] and most people buy [oxen] for plowing. But Shmuel said: We follow the majority in ritual matters, but not in monetary matters. (92a-92b)

          As is explained in the Gemara, even Shmuel agrees that a rov is an established and significant halakhic tool, only that in the context under discussion, it has little force. Though the Gemara's wording might imply that according to Shmuel rov is totally ineffective ("but not in monetary matters"), already the Tosafot (Bava Batra 23b, s.v. chutz) have proven that this is not true. The mishna (Bava Batra 23b) says: "A young pigeon which is found on the ground within fifty cubits from a cote belongs to the owner of the cote; if found beyond fifty cubits from the cote, it belongs to the finder." The Tosafot there write as follows:

If found beyond fifty cubits from the cote, it belongs to the finder – for we follow the rov of the world. And even according to the authority who says: We do not follow a rov in monetary matters, this applies where [the defendant] enjoys a chazaka [= presumptive possession]; but here, where there is no chazaka of ownership, we follow the rov.

          That is to say, all agree that rov is a reliable tool for deciding matters even in the case of monetary disagreements. Rav and Shmuel only disagree whether or not rov is strong enough proof to remove money from a defendant who enjoys a chazaka, for when the defendant enjoys a chazaka, the burden of proof falls on the plaintiff.

          Later in this shiur we shall see other authorities who maintain that Shmuel agrees that we rely on a rov in certain cases even regarding monetary matters.

II.       "MOST WOMEN ARE MARRIED AS BETULOT"

Let us now move on to our passage:

But since most women are married as betulot, if witnesses did not come, what of it? Ravina said: Because it is possible to say: Most women are married as betulot, and a minority as widows, and the wedding of a betula is discussed. And [with regard to] this woman, since she we did not hear of any discussion, the majority has become flawed. (16a-16b)

          The Gemara questions the need for witnesses who can attest that the woman was married as a betula, for surely "most women are married as betulot," and since there is a rov, there should be no need for witnesses. The Tosafot (ad loc., s.v. keivan) and the Ramban (Milchamot; 5b in Alfasi) write that the Gemara raises its question only according to Rav, for according to Shmuel, even were the rov not flawed, it would be impossible to remove money from the defendant based on the rov. Indeed, the first proof that the Gemara in Bava Batra brings against Rav is from our passage, and there the words of Ravina are brought as a resolution of the difficulty according to Rav:

An objection was raised: [If] a woman was widowed or was divorced, and she says: [When] you married me, [I was] a betula, and he says [to her]: Not so, but [when] I married you, [you were] a widow; if there are witnesses that she went out with a hinuma and [the hair of] her head was loose, her ketuba is two hundred [zuz]. The reason is that there are witnesses. But [if] there are no witnesses, not. Why? Say: Follow after the majority of women, and most women are married as betulot! Ravina said: Because it is possible to say: Most women are married as betulot, and a minority as widows, and the wedding of a betula is discussed. And [with regard to] this woman, we did not hear of any discussion, the majority has become flawed. (92b)

III.      A STRONG ROV AND A WEAK ROV

          This strong proof notwithstanding, several Rishonim argue that our passage can be understood even according to the position of Shmuel. Thus, for example, writes Tosafot Shantz:

[The Gemara] asks even according to Shmuel… for Rav and Shmuel disagree about a weak rov, e.g., the one at the beginning of [chapter] Ha-Mokher, i.e., because that person sells for this and for that [for plowing and for slaughtering]. And even though [the Gemara] there asks from "most women are married as betulot" according to Rav, for Shmuel there is no question, because [the Gemara] initially thought that "the wedding of a betula is discussed" impairs [that rov], and it is like the case about which they disagree. And [the Gemara] answers that "the wedding of a betula is discussed" causes a very great flaw, and it is not at all comparable, and there is no question even according to Rav. Now, therefore, it is well in our passage that [the Gemara] asks both according to Rav and according to Shmuel, for it is possible to say that [initially] it doesn't consider at all that "the wedding of a betula is discussed."

          The Tosafot Shantz shares the approach associated with the Tosafot in Sanhedrin 3b (s.v. dinei) that even Shmuel agrees that it is possible to remove money from the defendant with a rov in the case of a strong rov, and that Rav and Shmuel only disagree about a weak rov.[1] In our passage, the Gemara initially thinks that "most women are married as betulot" constitutes a strong rov, because at this stage of the discussion, it doesn’t recognize at all that this rov is impaired by the absence of discussion. Therefore, the Gemara's question that we should follow the rov is valid even according to Shmuel. In the Gemara in Bava Batra, on the other hand, already at the stage of the question, the Gemara knows that the rov is problematic, because "the wedding of a betula is discussed." Only Rav maintains that money can be removed from the defendant on the basis of such a rov, and therefore the Gemara raises an objection to Rav. The Gemara answers that the fact that "the wedding of a betula is discussed" is such a strong flaw that, even according to Rav, money cannot be removed from the defendant on the basis of the rov.

          Of course, the difficulty with this approach is defining what is a strong rov and what is a weak rov. The Acharonim propose several definitions in this context, but this is not the forum to expand on the issue.[2]

IV.      COMBINATION OF A ROV AND A CHAZAKA REGARDING A BETULA

COMBINATION OF A ROV AND A CHAZAKA TO REMOVE MONEY FROM THE DEFENDANT

          Other Rishonim (Tosafot Yeshanim, ad loc., Ba'al ha-Ma'or 5b in Alfasi, and others) agree with Tosafot Shantz, as opposed to the Tosafot and the Ramban, that the Gemara raises its objection even according to the view of Shmuel, but for a different reason. According to them, Shmuel maintains that a rov by itself cannot remove money from the defendant. Here, however, we are dealing with the case of a rov combined with the woman's chezkat betula, and a rov together with a chazaka can remove money from the defendant even according to Shmuel.

          The fact is that this is not the first time in our masechet that the Rishonim raise this argument. The Gemara on p. 10a reads as follows:

Rav Nachman said…: The Sages enacted for the daughters of Israel, for a betula two hundred [zuz] and for a widow a maneh. And they believed him, that if he said, I have found an 'open opening,' he is believed. If so, what did the Sages accomplish by their enactment? Rava said: There is a presumption [that] a person does not make the effort of preparing a feast and [then] ruin it.

          The Ramban writes (ad loc.):

There is a difficulty… it is obvious that he is believed, even if we maintain that a woman's ketuba is by Torah law, for he only writes her [the ketuba] on condition that he will marry her and find her a betula. It, therefore, falls upon [the woman] to bring proof that this condition was fulfilled. For surely when someone produces a deed to which a condition is attached, don't we say to him: Fulfill your condition and make your claim. Why then did they say that they believed him, implying that were it by Torah law he would not be believed?… You can answer that here, since most women are married as betulot, and there is also a chezkat betula, we go after the rov and the chazaka. And thus we find in the Yerushalmi in chapter 2. Nonetheless, the Rabbis believed him, since he presents his claim with certainty.

          Later in this shiur we shall examine why the Ramban in our passage rejects such a combination, but it is clear that fundamentally he too agrees that money can be removed from the defendant based on a rov and a chezkat betula.

          We are dealing here with an interesting combination: By themselves, neither a rov nor a chazaka can remove money from the defendant; but when they come together, they can remove money. How are we to understand this phenomenon?

THE POSITION OF THE BA'AL HA-MA'OR – A "QUANTITATIVE COMBINATION"

          The Ba'al ha-Ma'or (on our passage) deals with this question:

Let us believe her even though we do not follow a majority in monetary matters, because here [= in support of the woman] there are two things: a rov and a chezkat betula, and here [= in support of her husband] there is [only] one thing: a chazaka regarding the money. This is similar to the claim of "After I was betrothed to you, I was raped," where she is believed for this reason that here there are two and here there is one. Here regarding the woman there are two things: a claim presented with certainty and a chezkat betula. And here regarding her husband, there is [only] one thing, a chazaka regarding the money and a claim of 'perhaps.'

          According to the Ba'al ha-Ma'or, we are dealing here with a purely quantitative combination of assorted components, and there is no need to understand how they help each other in order to overcome a chazaka regarding money.

          There are, however, other ways to understand this combination of a rov and a chazaka.

"AN INCONSEQUENTIAL MINORITY" (MI'UTA DE MI'UTA)

Another explanation may be suggested in light of the talmudic passage in Yevamot 119a-119b dealing with the position of Rabbi Meir, who takes a minority into consideration, and does not always rely on a rov even in ritual matters. The mishna there deals, among other things, with a woman who was married to a man with no children or brothers who went abroad together with his mother, and testimony was received that he had died. The mishna asserts that in such a case the wife is permitted to remarry, and she not need be concerned that perhaps another son was born to her mother-in-law prior to her husband's death, and so she is liable for yibbum (levirate marriage). The Gemara explains that even Rabbi Meir agrees that in such a case there is no need to take the minority into consideration, because the woman enjoys a chazaka that she is permitted:

[The woman's] chazaka as well as the rov [point] to [the permissibility of marriage with] any stranger, and possibility that a son was born constitutes a minute minority (lit., "a minority of a minority"); and Rabbi Meir does not take a minute or inconsequential minority into consideration.

          A minority that argues for a change against a chazaka is a particularly weak minority, and therefore the Gemara defines it as an inconsequential minority, which even Rabbi Meir does not take into consideration.

          This principle can be applied in our case as well, namely, that it is possible to remove money from the defendant on the basis of a rov when that rov does not clash with a minority, but rather with an inconsequential minority, which need not be taken into consideration. According to this explanation, the distinction proposed by the Tosafot Yeshanim is fundamentally similar to the distinction proposed by the Tosafot Shantz between a weak rov and a strong rov. Only that according to the Tosafot Yeshanim, a rov is defined as being strong when it accords with the chazaka governing the situation.

          That is to say, according to this explanation, we are not dealing here with two separate factors, but rather the chazaka defines the rov as being especially strong and lacking a minority worthy of consideration, and as such it can remove money from the defendant.

"TWO SOLUTIONS TO OVERCOME TWO PROBLEMS"

          It is possible to propose yet another explanation, namely, that we are dealing here with two different factors, each of which deals with a different issue.

          As was mentioned in the past, the chazaka of possession can be viewed as based on two different components:

1)       A practical rule – a court does not remove money from the defendant without good reason.

2)       Unless we know that a person is liable to pay money, we presume as if with certainty that he bears no such liability.

A rov constitutes good proof, but not irrefutable proof. It provides the court with good reason to act, and therefore it suffices to overcome the practical rule (component 1), but it does not suffice to overcome the presumption in favor of the defendant (component 2).

Chazaka, on the other hand, constitutes no proof whatsoever, not even indefinite proof, and therefore it does not provide the court with a good reason to act (component 1). However, it creates its own presumption, one that cancels out the presumption in favor of the defendant – as long as it has not been proven otherwise, the woman is presumed to be a betula who is entitled to her ketuba; and thus, the chazaka can overcome the presumption that a person is not liable unless we know otherwise (component 2).

If so, the combination of rov and chazaka works as follows: the chezkat betula cancels out the presumption of possession working in favor of the defendant (component 2). The defendant is left with the fact that the money is now in his hands, and the court will not remove it without decent proof (component 1), but in this context the rov constitutes a sufficiently strong proof, and therefore it can be used to remove money from the defendant.

Support for this understanding may be brought from the Tosafot Yeshanim. The Tosafot Yeshanim compare this combination of rov and chazaka to the combination of "perhaps and certain" and a chezkat betula, and explain the Gemara's question as follows: Just as Shmuel rules in accordance with Rabban Gamliel to remove money with the help of the combination of "certain and perhaps" and a chezkat betula (as is explained on p. 12b), so too is it possible to remove money with the help of the combination of a rov and such a chazaka. It is clear from this equation that a rov functions in the same way as "certain and perhaps," namely, that it constitutes strong, but not irrefutable proof. Such a proof can only remove money from the defendant if his chazaka of possession is undermined by way of a counter chazaka.

V.       "A CHAZAKA THAT IS LIKELY TO CHANGE" AND "A CHAZAKA REGARDING THE PRESENT SITUATION"

As stated above, the Tosafot and the Ramban in the Milchamot understand that the Gemara's objection – "But since most women are married [as] betulot, if witnesses did not come, what of it?" – is not a valid question according to Shmuel who maintains that in monetary matters we do not follow the majority. As for the Tosafot, they may well disagree with the various explanations proposed above attempting to explain for how even Shmuel can agree that a rov together with a chazaka can remove money from the defendant. But, as we saw above, the Ramban himself, in his novellae to the first chapter, agrees that such a combination is effective. And indeed, the Ramban explains in his Milchamot that his objection relates only to the application of this principle to our case, and this is because one of the two components is lacking:

Here there is no chezkat betula. Granted in the case where a man marries a woman who had not been previously married, there is a chezkat betula, for we do not suspect that perhaps she had engaged in illicit sexual relations, for the daughters of Israel are presumed to be fit. But in our mishna, [the husband] does not claim "I married you on the assumption that you were a betula, and I found that you were not a betula," but rather "I married you on the presumption that you were a widow"… and in such a case there is no chezkat betula, for a woman does not enjoy a chazaka that she was never married; there is only a rov. But she does enjoy a chazaka that she did not engage in illicit sexual relations. (5b in Alfasi)

          It is possible to remove money from the defendant on the base of a rov and a chezkat betula, but in our case there is no such chazaka.[3] Why does a woman enjoy a chazaka that she had never engaged in illicit sexual relations, as conceded by the Ramban himself, but she does not enjoy a chazaka that she had never been married? The Acharonim discuss this issue at length, and propose various understandings.[4] But the simplest understanding of the Ramban is that the chazaka that a woman did not engage in illicit sexual relations is a strong chazaka, as opposed to the chazaka that she was never married, which is a weak chazaka, because it is likely to change at any given time.[5]

          Another understanding emerges from the words of the Shita Mekubetzet in the name of the Shita Yeshana, which seems to be different than that of the Ramban:

Since she had been married for a long time, she lost her chezkat betula.

          The Shita Mekubetzet seems to mean that here the chezkat betula is countered by "a chazaka regarding the present situation," for now she is certainly not a betula.[6]

          As stated above, we seem to be dealing with two different arguments against the chezkat betula in our case – "a chazaka that is likely to change" (the Ramban) and "a chazaka regarding the present situation" (the Shita Yeshana). In truth, however, it seems that they should be joined: First of all, the assertion that we do not follow a chazaka when it is likely to change is not so simple. Second, we do follow a chazaka even when it clashes with a chazaka regarding the present situation, and we know that there was a change – in such a case we simply push off the change to the latest possible stage. It seems, therefore, that only when we join these two factors – we are dealing with a chazaka that is likely to change, and we know that indeed it changed – only then do we say that we cannot know when the change took place, and that we are dealing with an uncertainty.[7]

VI.      PREPARING FOR THE NEXT SHIUR

          The next shiur will focus on the Gemara on p. 17a: "Tanu rabbanan: Ma'avirin… parashat derakhim havai" and it will deal with the clash between the honor due to a corpse, a bride and a king.[8]

1)       A corpse and a bride: Tosafot, s.v. tanu rabbanan ma'avirin'; Ritva, s.v. ma'avirin. Note the different positions of the Tosafot, the Ramban, and the Rambam.

2)       A king who waived his honor – see also Kiddushin 32a: "Amar Rav Yitzchak bar Sheila" until 32b: "she-tehe eimato alekha"; Sanhedrin 18a in the mishna: "Ha-melekh lo dan… ein shom'in lo" (19a, "Melekh lo dan… ve-lo me'idin oto"); 19b, "Lo choletz… mitzva shani"; Sota 41a in the mishna until "ve-shibechuhu chakhamim"; 41b, "ve-shibechuhu chakhamim… mitzva shani."

3)       Why is it that if a sage waives his honor, his honor is waived, but if a king waives his honor, his honor is not waived? See Respona Maharam mi-Rotenburg, IV, no. 107 (see below; similarly, see Tosafot, Sanhedrin 19a, s.v. Yanai); Chiddushei Rabbenu Yona, Sanhedrin 19a (see below); Shita Mekubetzet on our passage (see below).

4)       Why doesn't our Gemara answer "a mitzva is different"? See Ritva, s.v. parashat derakhim, and compare to Tosafot, s.v. parashat derakhim, and Tosafot, Sota 41b, s.v. mitzva.

Responsa Maharam mi-Rotenburg, IV, no. 107:

 See hebrew text here

Chiddushei Rabbenu Yona, Sanhedrin 19a:

See hebrew text here

Shita Mekubetzet, Ketubot 17a:

See hebrew text here

שו"ת מהר"ם מרוטנבורג ח"ד סי' ק"ז

אי קאמר כהן אמחול על כבודי - כבודו מחול; כמו הרב שמחל על כבודו - כבודו מחול, דאורייתא דידיה הוא, כל שכן כהן, שהכהונה לו ולזרעו עד עולם ברית מלח, כדכתיב 'והיתה לו ולזרעו אחריו ברית כהונת עולם', וכן בפרשת קרח כתיב כמה פעמים 'כהונתכם', אלמא שהכהונה שלהם היא. ולא דמי למלך שאין כבודו מחול, דכתיב 'כי לד' המלוכה' הממליך מלכים ולו המלוכה.

חידושי רבנו יונה סנהדרין יט.

כי אמרינן דמלך שמחל על כבודו אין כבודו מחול, משום דכבודו הוא כבוד של ישראל כולו, דהמלך שלהם ניכר, והילכך אינו יכול למחול כבודן של ישראל. אבל כשיש לו דין עמהם ומעמידין אותו, יותר יש להם כבוד כשהם דנין אפילו למלך. אבל תלמיד חכם יכול למחול על כבודו, לפי שאין אחרים מִזלזלים כשהוא מוחל; ומיהו כשיש לו דין עם אחרים יש לנו לכבדו מפני כבוד תורתו.

שיטה מקובצת כתובות יז.

אין כבודו מחול. פירשו הגאונים אין סומכין על מחילת כבודו אלא נוהגין בו כבוד הראוי לו.

שנאמר שום תשים עליך מלך. כתב רש"י ז"ל שלפיכך ריבה הכתוב שימות הרבה משום דאין כבודו מחול פי' דכל שעה שמוחל על כבודו הרי כאילו הסיר עצמו ממלך וצריך אתה להשימו עליך מחדש.

(Translated by David Strauss)