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KESUVOS 9

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1) THE SUGYA OF "PESACH PASU'ACH"
Rebbi Elazar states that if a newly married husband comes to Beis Din with the claim, "Pesach Pasu'ach Matzasi" -- he claims that he found an "open aperture" and that his wife is not a Besulah -- he is believed to prohibit her to himself. The Gemara asks why he should be believed if it is a "Sfek Sfeika" (two doubts): there is a doubt whether she was defiled while betrothed to him (or before her betrothal), and even if she was defiled while betrothed to him, perhaps it was against her will (b'Ones), and therefore we should be lenient and permit her to remain married to him.

The Gemara answers that Rebbi Elazar's ruling refers to the specific case of the wife of a Kohen ("Eshes Kohen"), in which case there is only one Safek -- whether or not she was betrothed to him at the time she was defiled, since the wife of a Kohen becomes prohibited to her husband whenever she has relations with another man, even b'Ones. Alternatively, Rebbi Elazar refers to the specific case of a woman who was betrothed when she was under the age of three ("Pechusah mi'Bas Shalosh"), and thus the only Safek is whether it was b'Ones or b'Ratzon (she was definitely betrothed to him at the time that it took place, though).

The various points of this Gemara have generated extensive discussion among the Rishonim and the Acharonim. We will briefly discuss a few of these points.

1. SFEK SFEIKA IN RESHUS HA'YACHID
QUESTION: The Gemara states that we are lenient in the case of a Sfek Sfeika which involves a question whether a woman is permitted to live with her husband. There is a principle in the laws of Tum'ah and Taharah that "Safek Tum'ah b'Reshus ha'Yachid, Tamei" -- any Safek in Reshus ha'Yachid is deemed to be Tamei. The Gemara in Sotah (28a) derives this principle from the Isur of a Safek Sotah -- the woman is prohibited to live with her husband even though there is a doubt whether she defiled herself. When the woman secludes herself ("Stirah") with another man after she was warned not to ("Kinuy"), she becomes a Safek Sotah, since it is not known whether she committed adultery or not. The Torah teaches that in such a case, she is forbidden to her husband out of doubt. The Gemara derives from the verses of Safek Sotah that any Safek Tum'ah in Reshus ha'Yachid is Tamei. (The doubt about the actions of the Safek Sotah arose in a Reshus ha'Yachid, a private place, where she was alone with the suspected adulterer.)

The Mishnah in Taharos (6:4) says that because of this principle, even when there are four or five doubts involved (Sfek-Sfek-Sfeika), the Halachah is stringent in Reshus ha'Yachid and the object or person is deemed Tamei. (That is, each Safek on an individual basis is judged Tamei until no more Sfeikos remain.)

If the source for the Halachah of Safek Tum'ah in Reshus ha'Yachid is the law of Safek Sotah, then why does the Gemara here say that in the case of "Pesach Pasu'ach" the woman is permitted when there is a Sfek Sfeika? Since all Sfeikos in Reshus ha'Yachid are deemed Tamei, in this case, too, the woman should be prohibited because all of the Sfeikos are judged as Tamei! (SHITAH MEKUBETZES)

ANSWERS:
(a) The SHITAH MEKUBETZES answers that the law that a Sfek Sfeika is Tamei in Reshus ha'Yachid applies only when "Huchzak Sham Tum'ah" -- when there is (or was) an established source of Tum'ah there. If no certain object that can cause Tum'ah was known to be there in the first place, then a Safek Tum'ah in Reshus ha'Yachid can be Tahor. (See MISHNAH ACHARONAH to Taharos, end of 3:6. Although the Mishnah in Taharos (6:4) counts as one of the Sfeikos a case in which one entered a house and there was a Safek if the Tum'ah was there or not, the Mishnah refers to a case in which there definitely existed an item of Tum'ah and the question is whether that item of Tum'ah was in this house or in another house.)

(b) RABEINU CHAIM HA'LEVI (Hilchos Yibum 6:19) writes that the comparison of the Tum'ah of the woman to the Tum'ah of a Mes applies only in the case of a woman who secluded herself with a man after "Kinuy." Any other Safek is treated like a normal Safek Isur, and not like a Safek Tum'ah in Reshus ha'Yachid. This logic is based on the same principle as that proposed by the Shitah Mekubetzes, that only when it is known for certain that there was Tum'ah in a given place is the law stringent when a doubt arises. In the case of a woman who may have committed adultery, the only situation in which definite Tum'ah is considered present is when there was an act of "Stirah" preceded by "Kinuy." Since the woman was specifically warned not to seclude herself with the man and she did so anyway, there are strong grounds to suspect her of disloyalty to her husband, and thus it is considered as though there is Tum'ah present.

2. APPLYING A "ROV" TO TIME
QUESTION: The RASHASH asks a basic question about the Safek whether the wife was unfaithful before or during the Erusin ("Tachtav or Eino Tachtav"). Why do we not simply apply the principle of "Rov" and assume that the Be'ilah occurred during the longer of the two time-periods? Since she was unmarried for most of her life, we should assume that the Be'ilah occurred during the time period when she was unmarried.

ANSWER: The principle of "Rov" does not apply to time. There is a general rule in the laws of "Rov" that states that when the subject of the doubt involved is "Kavu'a" -- that is, the Safek arises about the status of an object that is immobile and established in its place -- "Rov" does not apply. Therefore, when the doubt involves a question about the day on which an event occurred, "Rov" cannot be applied to determine that certain days are in the majority and that the act happened during those days. (In other words, "Rov" determines only what person or object did an act, but not to whom the act was done or when it was done.)

3. APPLYING "CHAZAKOS"
QUESTION: In the two cases of Eshes Kohen and Pechusah mi'Bas Shalosh, why does the Halachah prohibit the woman out of doubt? She should be permitted out of doubt based on the Chazakah that she was permitted to her husband before the doubt arose. Since she was permitted to her husband before the Be'ilah occurred, the rule of "Chazakah" should enable us to assume that she is presently permitted to him as well. (TOSFOS)

ANSWERS:
(a) In the case of the Eshes Kohen, TOSFOS answers that although she has a "Chazakah d'Me'ikara" that until now she was permitted to her husband (and it may be assumed that she became a Be'ulah before she became betrothed to him), another Chazakah contradicts that Chazakah. She has a "Chezkas ha'Guf" that states that she was originally a Besulah and that she became a Be'ulah at the latest possible moment. This second Chazakah tells us that she was "Tachtav," betrothed to him, when she became a Be'ulah, and thus she should be prohibited to him. Tosfos explains that because of the two contradictory Chazakos, the Safek remains a Safek and she is prohibited to him.

The PNEI YEHOSHUA questions the answer of Tosfos. The Gemara in Nidah (2b) teaches that when an object changes from one status to another, the "Chazakah d'Me'ikara" enables us to assume that the change in status occurred at the latest possible moment only when there are no other Chazakos involved. When, however, there are additional Chazakos involved, such as a Chazakah that tells us that she is permitted to her husband, that Chazakah combines with the Chazakah d'Hashta (in our case, that she no longer is a Besulah) to override the Chazakah d'Me'ikara (that says she was a Besulah until she was betrothed to him). This is known as "Tartei l'Rei'usa." Accordingly, when the Chezkas Besulah is challenged by a Chazakah that she was permitted to her husband until now, the latter should override the former and she should be permitted to her husband, the Kohen.

The Rishonim and Acharonim address this problem and offer a number of solutions:

(1) The TOSFOS HA'ROSH explains that the Gemara in Nidah which says that a "Chazakah d'Me'ikara" is overruled by a "Chazakah d'Hashta" combined with another Chazakah ("Tartei l'Rei'usa") refers to a very specific case -- the case of a person who immersed in a Mikvah which was later found to have an insufficient amount of water. Since the water seeps out of the Mikvah slowly, it takes a long time for the water level to fall below the minimum level. Therefore, the "Chazakah d'Me'ikara" that allows us to assume that since the Mikvah was valid at an earlier it most likely started to lose its water at the most recent time (and thus at the moment the person immersed in it, it had enough water) is a weak Chazakah, since the Mikvah probably started to lose water earlier, as the water seeps out slowly. That is the only reason why the "Chazakah d'Me'ikara" is overridden in that case. Normally, though, "Tartei l'Rei'usa" does not override a "Chazakah d'Me'ikara."

This approach indeed is cited as one opinion by Tosfos in Nidah (2b) and in Chulin (10a). However, Tosfos cites other opinions that "Tartei l'Rei'usa" applies in all cases. How will those opinions explain the Sugya here?

(2) The RAMBAN and REBBI AKIVA EIGER suggest that the Chazakah that the woman is a Besulah does not permit the woman to her husband because there is a "Sfek Sfeika l'Isur" which conflicts with the Chazakah. That is, this case is not a normal case of a Safek in which a Chazakah may determine the outcome of the ruling, but there is a double reason, so to speak, to prohibit her: even if she became a Be'ulah before the marriage, she still might be prohibited because perhaps she lived with a person who rendered her Pesulah to a Kohen, and even if she lived with the type of person who does not invalidate a Besulah to a Kohen, her act of Be'ilah might have been done after she was married when relations with any other man renders her Pesulah to a Kohen.

(Tosfos does not mention this logic because he wants to show that the wife of the Kohen is prohibited even in a city where most of the people are Kesherim and would not invalidate her to a Kohen. See RITVA.)

(3) REBBI AKIVA EIGER suggests that the logic of "Tartei l'Rei'usa" (a "Chazakah d'Hashta" combined with another Chazakah) cannot apply in this case. "Tartei l'Rei'usa" can override the "Chazakah d'Me'ikara" only when the "Chazakah d'Hashta" can combine with the second Chazakah by supporting what the other Chazakah proves. For example, in the case of the Mikvah found to be lacking the minimum amount of water, the "Chazakah d'Hashta" says that the person is Tamei because there is not enough water now in the Mikvah to make him Tahor. That Chazakah supports the "Chezkas ha'Guf" that the person is Tamei now and that he should remain Tamei since he did not immerse in a valid Mikvah.

In the case of the Eshes Kohen, however, the additional Chazakah is that she was permitted to a Kohen until now. The "Chazakah d'Hashta" (which says that the Be'ilah occurred before the Erusin) does not support the Chazakah that she is permitted to a Kohen, because, on the contrary, that Chazakah would be reinforced if she had not had Be'ilah at all before the Erusin! The "Chazakah d'Hashta" does not make her permitted; it just circumvents the Isur that is created by the "Chazakah d'Me'ikara." Since the "Chazakah d'Hashta" says that the Be'ilah occurred earlier, it avoids the Isur that would have come about had we assumed that the Be'ilah occurred after Erusin because of the "Chazakah d'Me'ikara."

(It may be inferred from Rebbi Akiva Eiger's explanation that "Tartei l'Rei'usa" can be applied only l'Chumra -- to create an Isur based on an additional Chazakah of Isur, but not to create a Heter based on an additional Chazakah of Heter.)

(b) In the case of Pechusah mi'Bas Shalosh, why do we not rely on the Chazakah that she was permitted to her husband until now, and thus we should rule that she is still permitted (and her Be'ilah was b'Ones)?

TOSFOS cites the Yerushalmi that says that a case of Ones usually becomes widely known. If word did not spread that this woman was raped, it may be assumed that her Be'ilah was done b'Ratzon, willingly. Therefore, it is not just a Safek, but a Rov that she did it b'Ratzon, and the Rov overrides the Chazakah.

4. SAFEK "MUKAS ETZ"
QUESTION: Why does the Gemara say that in the cases of the Eshes Kohen and Pechusah mi'Bas Shalosh there is only one Safek (and thus the woman is Asur mi'Safek to her husband)? There is actually a second Safek involved, and thus the case is a Sfek Sfeika (and she should be Mutar) -- there is the possibility that she did not have Be'ilah at all but that she is a Mukas Etz. She might have lost her Besulim some other way besides Be'ilah, and thus she should not be Asur to her husband!

ANSWERS:
(a) Tosfos points out that according to RABEINU CHANANEL, becoming a Mukas Etz causes only the blood to come out, but the Pesach (opening) remains closed. In the cases of the Gemara here, the husband claims "Pesach Pasu'ach Matzasi" -- he found the Pesach to be open, and thus obviously she is not only a Mukas Etz but she is actually a Be'ulah.

(b) The RE'AH and RASHBA explain that a case of Mukas Etz is so uncommon that it cannot even be considered a possibility.

(c) TOSFOS answers that had the woman lost her Besulim merely by being a Mukas Etz, she would have spoken up and admitted it, since she would not have been embarrassed by it. The fact that she did not claim that she was a Mukas Etz proves that she was not a Mukas Etz.

This answer seems problematic. This answer explains why she is not permitted to her husband with a Sfek Sfeika that she might have been a Mukas Etz. However, when she says that she was raped or, in the case of an Eshes Kohen, that the Be'ilah occurred before she was betrothed, she should be believed because of a Migu that she could have said she was a Mukas Etz (and she would have been permitted due to the Sfek Sfeika).

The answer is that Tosfos may understand the case like the ROSH and RAN. The Rosh and Ran explain that she would be believed if she would say that she was raped, since she claims to be certain of the facts ("Bari") while her husband does not claim to know for certain how and when she became a Be'ulah ("Shema"). Since her husband cannot contradict her claim, she would be believed (according to Raban Gamliel, whose opinion is the Halachah; see Mishnah 12b). The Rosh and Ran therefore conclude that the case of the Gemara must be when the wife either says that she is a Besulah (and he can contradict her with certainty), or she says nothing. That is why she becomes prohibited as a result of his claim.

This also explains why the wife is not permitted to her husband because of the Migu that she could have said she is a Mukas Etz. That Migu will not permit her when she claims she is a Besulah, since her husband claims that she is lying, a claim with which he is "Shavya a'Nafshei Chatichah d'Isura" -- according to his own word, she is prohibited to him. A claim which is "Shavya a'Nafshei Chatichah d'Isura" overrides even the testimony of a pair of valid witnesses, and it certainly overrides a simple Migu (MAHARSHA).

(d) Other Rishonim (see SHITAH MEKUBETZES) say that this is a Sfek Sfeika that "cannot be reversed" ("she'Einah Mis'hapeches"). (For example, in the case of Pechusah mi'Bas Shalosh, the Sfek Sfeika cannot be said the other way around: perhaps her Be'ilah was b'Ones, and even if it was b'Ratzon, perhaps she was Mukas Etz -- there is no such thing as Mukas Etz being b'Ratzon. Consequently, the two possibilities of how the loss of her Besulim was not b'Ratzon -- either because of Ones or because of Mukas Etz -- are one and the same Safek.)

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