QUESTION: Rava resolves a contradiction between the first part of the Mishnah
and the second part of the Mishnah. In the Reisha, the Mishnah states that if
a woman is found to have a Mum (blemish) after the Erusin but before the
Nesu'in, then the burden of proof is upon the *woman* (or her father) if she
wants to receive the money of the Kesuvah. She does not receive her Kesuvah
unless she can prove that the Mum developed *after* the Erusin (and thus it
was the husband's bad fortune). However, in the Seifa, the Mishnah states
that if a woman is found to have a Mum after the Nesu'in, then the burden of
proof is upon the *husband*, and he must give her the Kesuvah unless he can
prove that she had the Mum before the Erusin.
Rava answers that the Mishnah holds that a Chezkas ha'Guf (that she had no
Mum until the last possible moment) together with a Ta'anas Bari (her claim
of certainty) are strong enough to win the case for the woman. That is why --
when the Mum is found after the Nesu'in -- the burden of proof is on the
*husband*.
In contrast, when the Mum is found after the Erusin and before the Nesu'in,
her Chezkas ha'Guf is not as strong. It has a weakness in that the Mum was
found while she was still in the Reshus of her father, and thus there is
reason to say that she always had a Mum while in the Reshus of her father
(even before the Erusin; this is called "Kan Nimtza, Kan Hayah"). The Chezkas
ha'Guf, therefore, does not have the power to decide the case in her favor,
and that is why the *woman* must bring proof that the Mum developed only
after the Erusin.
Abaye questions Rava's explanation of the Mishnah. He asks that if Rava's
assertion is true that the element of "Kan Nimtza, Kan Haya" weakens her
Chezkas ha'Guf and tells us that she had the Mum even before the Erusin, then
in the Seifa, when the Mum was found after the Nesu'in, it should suffice for
the husband to bring proof that the woman had the Mum *during* the Erusin
(before the Nesu'in)! As long as we know that she had the Mum during the
Erusin, we can then assume that she had it before the Erusin as well (because
of "Kan Nimtza, Kan Hayah"). Why, then, does the Mishnah say that he must
prove that she had the Mum *before* the Erusin in order for him to win the
case?
Rava answers that besides the Chezkas ha'Guf, there are two other Chazakos
that must be taken into consideration. First, there is a Chazakah that tells
us that the husband should have to pay the Kesuvah even if she did have a Mum
at the time of the Erusin, because a man usually checks out a woman before
marrying her, and thus he probably saw that she had a Mum and accepted it.
(We will call this, in short, the "Chazakah that he checked and accepted the
Mum"). Second, there is a Chazakah that tells us the opposite -- had he seen
the Mum, he would probably not have agreed to marry her, and since we see
that he did marry her, he must not have been aware of the Mum (we will call
this, in short, the "Chazakah that he was unaware of the Mum"). This second
Chazakah tells us that he should *not* have to pay the Kesuvah, since he was
unaware of the Mum at the time of the marriage.
Taking these two Chazakos into consideration, the Gemara says that if the
husband brings proof that she had the Mum before the Erusin, then these two
Chazakos cancel each other out (since once says that he checked her out and
knew about the Mum and accepted it, and the other says that he was unaware of
the Mum and that is why he married her). When they cancel each other out, the
husband is left with a Chezkas Mamon (he is holding the money that is in
doubt), and he wins the case.
If, on the other hand, the husband can only prove that the Mum was there
after the Erusin (before the Nesu'in), then the "Chazakah that he checked and
accepted the Mum" combines with her Chezkas ha'Guf, and thus the husband
loses the case and he must pay her the Kesuvah. These two Chazakos outweigh
the single "Chazakah that he was unaware of the Mum."
RASHI (DH Chada) asks, why do we view the situation as two Chazakos against
one? If the Mum was there after the Erusin, then we should view it as two
Chazakos against *two*, because the Chezkas Mamon of the husband should join
with the "Chazakah that he was unaware of the Mum!" Those two Chazakos would
then counteract the two Chazakos supporting the woman's claim!
Rashi answers that the Chezkas Mamon does not exist in this situation,
according to Raban Gamliel whose view the Mishnah is following. The Chezkas
Mamon here is opposed by a Chezkas ha'Guf, and Raban Gamliel maintains that a
Chezkas ha'Guf neutralizes the Chezkas Mamon and renders it totally
ineffective.
What does Rashi mean? How could Rashi say that the Chezkas Mamon is
neutralized by the Chezkas ha'Guf in a case where the Mum is found after the
Erusin (before the Nesu'in)? We learned earlier (Rashi 75b, DH Rava Amar)
that the Chezkas ha'Guf can only neutralize the Chezkas Mamon if the Mum is
found *after* the Nesu'in. But if it is found before the Nesu'in, then the
Chezkas ha'Guf loses its power, because the logic of "Kan Nimtza, Kan Hayah"
opposes it! Thus, the Chezkas Mamon should overpower the Chezkas ha'Guf!
Since the Gemara is discussing a Mum found after the Erusin and before the
Nesu'in, the Chezkas Mamon should certainly not be overpowered by the Chezkas
ha'Guf and should still be effective.
ANSWERS:
(a) TOSFOS (DH v'Chada) asks this question on the Gemara itself. Tosfos gives
two answers. First, Tosfos answers that even when the Chezkas ha'Guf is weak,
it still has strength to counter the husband's claim, and in order for the
husband to win the case it must be opposed by a Chezkas Mamon. Similarly, the
"Chazakah that he was unaware of the Mum" is also not strong enough by itself
to overpower the opposing Chazakah (the "Chazakah that he checked and
accepted the Mum") unless it is supported by a Chezkas Mamon as well.
However, the Chezkas Mamon cannot be utilized twice. Therefore, since it is
used once to overpower the Chezkas ha'Guf, the "Chazakah that he checked and
accepted the Mum" will overpower the "Chazakah that he was unaware of the
Mum," because the latter does not have the support of the Chezkas Mamon (for
it was already used). As a result, he will lose the case.
Conversely, if the Chezkas Mamon is used to support the "Chazakah that he was
unaware of the Mum," then it can no longer be used to oppose her Chezkas
ha'Guf. As a result, the Chezkas ha'Guf will win the case for her. (In
summary, both Chazakos of the man's claim need the Chezkas Mamon to win the
claim for him, but since only one can use it, he loses the claim. First, the
Chezkas Mamon needs its own strength to overpower the countering Chezkas
ha'Guf. And second, the "Chazakah that he was unaware of the Mum" needs the
support of the Chezkas Mamon to overpower the countering "Chazakah that he
checked and accepted the Mum.")
However, this does not seem to be the intention of Rashi. Rashi writes that
there is a full-fledged Chezkas ha'Guf here that overpowers the Chezkas
Mamon. He makes no mention of the fact that the Chezkas Mamon was used up
already to counter a different Chazakah.
(b) The Rishonim favor the second answer of Tosfos. Tosfos says that the
Chezkas Mamon together with the "Chazakah that he was unaware of the Mum"
cannot be viewed as two separate supports for the husband's claim. In
contrast, the Chezkas ha'Guf together with the "Chazakah that he checked and
accepted the Mum" *are* viewed as two separate supports for *the wife's*
claim. The reason for this is as follows.
The two Chazakos that support the woman's claim provide independent support
for her claim. That is, if *either one* of the Chazakos is true, then she
will win the case: If the Chezkas ha'Guf is true -- and she really developed
the Mum only after the Nesu'in -- then she wins the case. If the "Chazakah
that he checked and accepted the Mum" is true -- i.e. even though she had a
Mum before the Erusin, he saw it and accepted it -- then again she wins the
case.
In contrast, *both* of the Chazakos that support the husband must be true in
order for him to win the case. The "Chazakah that he was unaware of the Mum"
cannot work by itself without the Chezkas Mamon. This is because the Chezkas
Mamon does nothing for him without a "Chazakah that he was unaware of the
Mum." That second Chazakah must be true in order for the Chezkas Mamon to
work, because if it is not true (and he saw the Mum before the Erusin and
accepted it), then the Chezkas Mamon is worthless! (In short, his two
Chazakos provide only a single support for a single claim for him to win the
case: that the Mum was there before the Nesu'in *and* that he did not notice
it.) Consequently, his two Chazakos have only the strength of one Chazakah
and thus they are overpowered by the woman's two independent Chazakos.
However, this approach also does not seem to fit into what Rashi is saying.
Rashi says that the Chezkas Mamon does not work because it is countered by a
Chezkas ha'Guf. If he meant what Tosfos is saying, Rashi should have said
that there *is* a Chezkas Mamon, but it is looked at as one and the same as
the "Chazakah that he was unaware of the Mum" and is overpowered by the
wife's two Chazakos.
(c) Rashi might have rejected the second explanation of Tosfos, which the
Rishonim favor, because the Gemara itself mentions the Chezkas Mamon as being
independent of the "Chazakah that he was unaware of the Mum." The Gemara says
that if the husband can prove that the woman had the Mum before the Erusin
(and thus the only question is whether he saw it and accepted it or he was
unaware of it), then the single "Chazakah that he checked and accepted the
Mum" cannot oppose the two Chazakos countering Chazakos -- the *Chezkas
Mamon* and the "Chazakah that he was unaware of the Mum" -- and those two
Chazakos prevail.
According to Tosfos' second approach, the Gemara here should not have
mentioned the Chezkas Mamon as a separate Chazakah. (Tosfos' first answer
might have been trying to avoid this question.)
Rather, Rashi (at the end of 75b) seems to answer our question. He explains
that the "Chazakah that he checked and accepted the Mum" is not just a
separate Chazakah, but that it removes the weakness that the Chezkas ha'Guf
normally has when the Mum is discovered during the Erusin. Since there is a
reason that the husband should be obligated to pay the Kesuvah even if the
Mum existed when the woman was in the Reshus of her father, the Chezkas
ha'Guf remains with its original strength and it neutralizes the Chezkas
Mamon. What remains is the Chezkas ha'Guf together with the "Chazakah that he
checked and accepted the Mum" against the "Chazakah that he was unaware of
the Mum" without the Chezkas Mamon. And she wins the case.
Rashi's logic can be understood as follows: The Chazakos that we have been
discussing can be classified into three categories: a Chazakah that provides
a strong logical argument, a Chazakah that provides a weak logical argument,
and a Chazakah that provides no logical argument.
The Chezkas ha'Guf provides a strong logical argument that the woman should
receive the Kesuvah. The Chezkas ha'Guf argues that physical bodies normally
do not change. Hence, if we see that a Mum did appear on her, it is most
logical to assume that it developed at the latest possible moment. Since this
is based on a reality of physical nature, it is the strongest of the
Chazakos.
The "Chazakah that he was unaware of the Mum" and the countering "Chazakah
that he checked and accepted the Mum" are based on arguments concerning the
psychology of men. These two Chazakos provide logical arguments that are not
based on a reality in the physical world, but on the cognitive nature of
people. That is why these Chazakos are not as strong as a Chezkas ha'Guf.
The Chezkas Mamon is the weakest of Chazakos, because it provides no logical
reason why the husband should be exempt from paying the Kesuvah. It merely
says that when in doubt, leave the money where it is.
Rashi holds that when there is a Chezkas ha'Guf, even though we do not have
actual evidence as to when the Mum developed, the Chezkas ha'Guf is a strong
enough proof that the Mum came after the Nesu'in that the situation is no
longer considered to be one of doubt. Hence, the Chezkas Mamon does not come
into play, since it only is used when entirely in doubt.
When the Chezkas ha'Guf has a weakness (such as when the Mum was found during
the Erusin, before the Nesu'in), then the imperfection of the Chezkas ha'Guf
-- that is, the element of "Kan Nimtza, Kan Hayah" -- is enough to make the
situation be considered one of doubt, and therefore the Chezkas Mamon comes
into play to determine the Halachah.
However, when we have the added factor that the husband probably checked her
out before Nesu'in (the "Chazakah that he checked and accepted the Mum"), the
Chezkas ha'Guf's logical argument is strengthened again. We have enough
logical reasons to say that it is not a doubt anymore and the Chezkas Mamon
can no longer be considered a factor. The "Chazakah that he was unaware of
the Mum" *would* be considered a factor to counter the Chezkas ha'Guf, since
it involves a logical argument, but it is not a strong enough argument to
overpower both the logical arguments of Chezkas ha'Guf and the "Chazakah that
he checked and accepted the Mum."
That is why Rashi writes that when there is a Chezkas ha'Guf (without a
weakness, or with a weakness but supported by the other Chazakah), the
Chezkas MKornfeld)