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Kesuvos, 12

12b

QUESTION: The Mishnah states that if a man finds his wife to be a Be'ulah and claims that the marriage was an error ("Mekach Ta'us"), while the woman claims that she was raped after she became betrothed to him (and thus the marriage was not a Mekach Ta'us), Raban Gamliel and Rebbi Eliezer say that she is believed, and Rebbi Yehoshua says that she is not believed. The Gemara (11b) cites an opinion that when Rebbi Yehoshua says that she is not believed (and thus the marriage *was* a Mekach Ta'us), she does not lose her entire Kesuvah, but only one hundred Zuz. Why does she not lose the entire Kesuvah? There is a Safek that she willfully committed Z'nus, and thus she should not receive anything!

ANSWERS:

(a) TOSFOS (9b, DH Iy) explains that she gets part of the Kesuvah because of a Sfek Sfeika: first, there is a Safek that perhaps she had Z'nus before the Erusin, and second, even if it was after the Erusin, perhaps it was b'Ones (against her will). Since there is a Sfek Sfeika in her favor to collect one hundred Zuz for her Kesuvah, she may collect it. Regarding the other hundred, though, there is a Sfek Sfeika *against* her: perhaps she had Z'nus willfully, and even if it was b'Ones, perhaps it was before the Erusin.

The PNEI YEHOSHUA there asks why should she be able to collect money with a Sfek Sfeika? There is a rule that "Ein Holchin b'Mamon Achar ha'Rov" -- we do not follow a "Rov" when it comes to monetary matters, and a Sfek Sfeika should not be any better than a Rov, since a Sfek Sfeika works by creating a situation of Rov possibilities in one's favor. The Pnei Yehoshua explains that Tosfos is only allowing her to collect money through a Sfek Sfeika because she also has a "Ta'anas Bari" -- she is sure of her claim. (See REBBI AKIVA EIGER, and SHAV SHMAISA 1:23.)

(b) The SHAV SHMAISA (1:23) cites the MAHARI BEN LEV who says that a Sfek Sfeika indeed *cannot* be used to collect money. He gives a different explanation for why she collects one hundred Zuz of the Kesuvah. He says that the reason she collects the money is because when it comes to the Isur, we are going to permit her to her husband because of a Sfek Sfeika. If she is permitted to him, then we cannot take away her entire Kesuvah; since she is allowed to remain married to him, he must assume some responsibility towards her, and thus he may not take away her entire Kesuvah. The Shav Shmaisa suggests that this is what Tosfos means. The Pnei Yehoshua says the same logic, but he uses it as an argument against Tosfos.

(c) The SHAV SHMAISA himself (1:24) writes that perhaps a Sfek Sfeika can be used to collect money only in the case of a Kesuvah. The HAGAHOS MORDECHAI (in Yevamos) writes that since the Kesuvah is already written in a contract, we may follow a "Rov" to collect the money, since it is "k'Man d'Gabuy Dami" -- it is as though it has already been collected, since the woman is holding the contract of the Kesuvah. Therefore, it can be collected through a "Rov," since it is not considered to be taking money out of someone else's possession. He adds that since the Kesuvah is an act of Beis Din, it is considered as though the woman is already holding the money, and thus she is not taking it away from him with a "Rov," but the "Rov" is just allowing her to hold on to it.