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KESUVOS 16

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1)
(a) We reconcile our Mishnah, which does not believe the woman to say that, when she married, she was a Besulah, with Raban Gamliel in the previous Perek, who does - because it speaks when the husband is 'Bari' just as she is - whereas, in the previous Perek, she was 'Bari' and he, 'Shema'.
(b) We initially thought that the author of our Mishnah is not Raban Gamliel - because the 'Rov' that most women who marry are Besulos, strengthens her argument, which all but turns his 'Bari' into a 'Shema'.
(c) We attempt to prove that the author not only can be, but must be Raban Gamliel, from the Seifa, where Rebbi Yehoshua concedes to Raban Gamliel that 'Peh she'Asar Hu ha'Peh she'Hitir' - because, unless Raban Gamliel was coming to concede something to Rebbi Yehoshua in the Reisha, why should Rebbi Yehoshua suddenly concede to Raban Gamliel in the Seifa?!
(d) We refute this proof however - on the grounds that Rebbi Yehoshua may well be conceding to Raban Gamliel, following their dispute in the first Perek (as we shall now see).

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2)
(a) Rebbi Yehoshua's concession cannot refer to their dispute in the Mishnah of ...
1. ... 'Hayesah Me'uberes, v'Amru Lah Mah Tivo shel Ubar Zeh' - because there is no 'Migo' there. She is pregnant, so what could she possibly have said other than 'me'Ish Ploni v'Kohen Hu'?
2 ... 'Ra'uhah Medaberes im Echad v'Amru Lah Mah Tivo shel Ish Zeh ... ' - because there is no 'Migo' there either (at least, not according to Rav Asi, who explained there that 'Medaberes' means that they had seen her being intimate with the man).
(b) Despite the absence of a 'Migo' in those two cases, she is believed, according to Raban Gamliel - because she has a Chezkas Kashrus (until proven otherwise).
(c) In fact, the latter case will only not work out according to Rav Asi (who interprets 'Medaberes' to mean intimacy, and who in fact, was disproved), but according to Ze'iri, it could well be the case we are searching for - because 'Medaberes', according to him, means that they secluded themselves, in which case, she said 'Ish Ploni, v'Kohen Hu' (admitting that they had been intimate), when she could have said that they were not.

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3)
(a) Nor can Rebbi Yehoshua's concession refer to their Machlokes in the Mishnah of 'Hi Omeres Mukas Etz Ani, v'Hu Omer Lo Ki Ela Derusas Ish At' - because there too, there is no better argument that she could have presented.
(b) Nevertheless, she is believed - because of her Chezkas Kashrus.
(c) In fact, the latter case will only not work out according to Rebbi Yochanan, who establishes the Machlokes by 'Masayim u'Manah', but according to Rebbi Elazar who establishes it by 'Manah v'Lo Klum', it could well be the case we are searching for - seeing as the woman said 'Mukas Etz Ani' (in which case she will receive a Manah), when she could have said 'Mukas Etz Ani Tachtecha' (and she would have received two hundred Zuz).
(d) Raban Gamliel and Rebbi Yehoshua argue over 'Migo' - in the case of 'mi'she'Erastani Ne'enasti ... ', where, according to Raban Gamliel she is believed because she could have said 'Mukas Etz Ani Tachtecha'.

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4)
(a) Rebbi Yehoshua concedes to Raban Gamliel with regard to 'ha'Peh she'Asar' (even by 'Bari u'Bari'), but not with regard to 'Migo' (even by 'Bari v'Shema') - because with 'Peh she'Asar', had the current owner remained silent, it would never have occurred to his friend to claim (i.e. there would not even be a case without the defendant's admission), whereas, in the case of 'Migo', the claimant could hardly have failed to claim, seeing as he found his wife to be a Be'ulah.
(b) Neither does Rebbi Yehoshua consider 'Migo' a strong proof in its own right - because it may simply not have occurred to the defendant to present the better claim, or perhaps he is simply trying to win his case, by conveying the impression that he is telling the truth.
(c) We learned above that the fact that the majority of women are Besulos when they marry, almost makes our Mishnah a case of 'Bari v'Shema'; 'almost', but not quite - because every Besulah who marries has a Kol (i.e. it is generally known that she was a Besulah). Consequently, the fact that this woman does not, detracts from the 'Rov'.
(d) We conclude however, that it is most women who marry Besulos who have a 'Kol' to substantiate it, not all women - because if every woman did, then, whenever there is no 'Kol', even the witnesses would be considered false, and would not be believed.

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5)
(a) By permitting the woman to claim two hundred Zuz on the basis of witnesses who testify that she was a Besulah when she married, one should be afraid - that she may really still have her Kesubah, and, after she has claimed her Kesubah with Eidei Heinumah in one Beis-Din, she will produce her Kesubah in another Beis-Din and claim it again.
(b) Rebbi Avahu considers this a proof that one writes a receipt (a fact that is disputed in Bava Basra). The reason of those who hold that one does not is - because it is an onus on the creditor to guard his receipt against mice (see also Tosfos DH 'Kosvin'), and it is the creditor who is supposed to have the upper hand.
(c) To answer the Kashya, Rav Papa establishes our Mishnah in a place where the custom is not to write a Kesubah. According to him, in most places, where the Minhag is to write a Shtar Kesubah, the Din would be that she either produces it to claim, or she loses it altogether.

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6)
(a) (a) Others learn Rav Papa on the Beraisa, which discusses a case where the woman lost her Kesubah, hid it or it got burnt. The continuation 'They danced in front of her, or joked in front of her' - are proofs that when she married, she was a Besulah, since these are things that they would do exclusively in front of a Besulah.
(b) The other two items mentioned by the Beraisa, which prove that she was a Besulah when she married are - that they passed the 'Kos shel Besorah' (which will be explained later) in front of her, or the cloth with the bloodstains on it.
(c) We ask the same Kashya that we asked on our Mishnah, and cite the same Machlokes between Rebbi Avahu and Rav Papa. Rav Papa establishes the Beraisa in a place where the Minhag is not to write a Kesubah. The Tana on the other hand, who refers to a case where the Kesubah is lost - speaks when the husband wrote a Kesubah of his own accord (see Tosfos DH 'Mai Ibdah').
(d) To answer the question that we asked originally (why we do not suspect that she will claim her Kesubah with the witnesses, and then produce her written Kesubah and claim again) - we interpret 'Ibdah' to mean that the Kesubah got burnt (in which case, she cannot possibly produce it).

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7)
(a) On this, we ask three questions: 1. 'In that case, Ibdah is the same as Nisrefah'! - 2. What does the Tana then mean when he says 'Hitminah Kesubasah'?; 3. Having taught us 'Nisrefah', why does it need to insert 'Ibdah' at all?
(b) So we establish the Beraisa to mean that whenever she claims that the Kesubah got lost, it is as if she hid it in front of Beis-Din, and the only way she will be believed is if she brings witnesses that her Kesubah got burnt.
(c) If Rav Papa established the Beraisa in a place where the Minhag is not to write a Kesubah, then he will certainly do so in the case of our Mishnah; but not vice-versa - because of the three Kashyos that we asked earlier on. Consequently, whereas our Mishnah holds 'Ein Kosvin Shover', the Beraisa will have to hold 'Kosvin Shover'.
(d) If the Minhag is not to give the woman a written Kesubah, she will nevertheless be able to claim the Kesubah later - on the grounds that it is a Tenai Beis Din, and can therefore be claimed even without a document.

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8)
(a) Seeing as the woman may claim her Kesubah with the Eidei Heinumah - we are indeed afraid that she will use witnesses to claim in one Beis-Din, and then claim again in another Beis-Din using other witnesses. That is why we conclude that even Rav Papa will agree here that, since there is no other alternative, 'Kosvin Shover'.
(b) Rav Ada bar Ahavah interprets 'Kos shel Besorah' (one of the signs mentioned in the Beraisa that she was a Besulah when she married a Kohen) as a cup containing Terumah that they passed before her, as if to declare her fit to eat Terumah, because she was a Besulah when she married the Kohen. Rav Papa objects to this explanation - on the grounds that granted, a Besulah who marries a Kohen is permitted to eat Terumah, but so is an Almanah.
(c) So he interprets 'Kos shel Besorah' to be a mere symbol - declaring that this will be her 'first' Bi'ah, just like Terumah is called 'first'.

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9)
(a) According to Rebbi Yehudah in a Beraisa, they would pass a cup of wine in front of her. Rav Ada bar Ahavah explains that, in fact, they would pass a cup in front of the Kalah - a full cup for a Besulah, and an empty one for a Be'ulah.
(b) They did not simply pass the cup in front of a Besulah, but not in front of a Be'ulah - because then, we are afraid that she will seize two hundred Zuz, and claim that in reality, she was a Besulah when she married, but they did not pass the cup in front of her because they were drunk.
(c) This argument would not normally be strong enough to gain her two hundred Zuz. However, now that she already has the money, and in addition, she has a 'Migo' (because she could have said that she does not have it) - see Tosfos DH 'Isnusi' - she is believed.

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