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Kidushin, 78

78b

QUESTION: The Mishnah teaches that a man who says that his son is a Mamzer is not believed. RASHI (DH Eino Ne'eman) explains that the reason is because the father is a "Karov," a close relative of his son, and is thus not believed to testify about him.

We can infer from the words of Rashi that if not for the fact that the father is a Karov to his son, he *would* be believed, even though he is only a single witness, an Ed Echad. Why, though, would we believe him? We have learned (73b) that "Ein Davar she'b'Ervah Pachos mi'Shenayim," and in order to create a Pesul in lineage, two witnesses are necessary!

ANSWERS:

(a) The RAN argues with Rashi and explains that the reason why the father is not believed is because, indeed, he is only a single witness.

(b) The TOSFOS YOM TOV and others explain Rashi's explanation as follows. The Mishnah is not discussing a father who wants to be Posel his child who, until now, has had a Chezkas Kashrus that he is legitimate. If that were the case, then the Ran would be correct -- the father would not be believed because he is only one witness, and two witnesses are necessary in order to override a Chazakah. Rather, the Mishnah is referring to an unborn fetus, who has no Chezkas Kashrus (since he has not yet been born). In such a case, even a single witness is believed to testify about the status of the child. Rashi wants to explain that the Mishnah's statement includes *all* cases, and thus he adds that the father is not believed even when the child has no Chezkas Kashrus, because the father is a Karov to the child.

According to the Ran, however, who says that the father is not believed because he is a single witness, and a single witness is not believed against a Chazakah, it seems that if there were no Chazakah, then a single witness *would* be believed. This seems to contradict the Ran's words earlier, though. The Gemara earlier (74a) says that there are three people who are believed to testify about the child's status -- the father, the mother, and the midwife. The Ran there asks how a woman could be believed, and he answers that she is believed only mid'Rabanan, "because, usually, there is no other way" for us to know the status of the child. This implies that even when no Chazakah is present (such as in the case of a midwife, who testifies about the status of the baby that was just born, before any Chazakah has been established), the midwife should *not* be believed mid'Oraisa. According to the Ran in our Sugya, though, a single witness should be believed!

The BEIS SHMUEL (EH 4:60) answers by differentiating between the testimony of a woman and that of a regular Ed Echad. The Ran holds that even though an Ed Echad is believed when there is no Chazakah, that applies only to an Ed Echad that is valid to testify for all other cases in the Torah. Since a woman is not valid to testify for all other cases in the Torah, her testimony cannot be accepted, even when no Chazakah is present. (Her testimony is acceptable only for something that will, anyway, become known ("Milsa d'Avida l'Giluyei").)

QUESTION: Rebbi Yehudah derives from verse, "Yakir" (Devarim 21:17) that a father is not only believed to testify that his son is a Bechor, but that he is also believed to testify that his son is a Pesul. The Rabanan argue and maintain that a father is not believed to testify that his son is a Pesul. What, then, do the Rabanan learn from the verse, "Yakir?" The Gemara says that they learn from the verse that a father is believed to say that his son is a Bechor when we would not have known it otherwise (i.e. there was no Chazakah that he was the Bechor, such as when he shows up from abroad claiming to be the man's son). Even though the father would be believed to say that his son is the Bechor because of a "Migu" that he could just give to him, as a gift, a double portion of his property, nevertheless the verse "Yakir" is necessary to teach that we accept his word that this son is his Bechor even when he could *not* give a double portion of his property to his son, such as when the father receives property through inheritance *after* testifying that this son is his Bechor (he has no "Migu" that he could have given that property as a gift to his son, since "Ein Adam Makneh Davar she'Lo Ba l'Olam").

The Gemara explains that according to Rebbi Meir, who says that a person *could* be Makneh property that has not yet "come into the world" (and thus the father still has a "Migu" that he could give his future possessions to his son), the verse is necessary to teach that the father is believed to say that his son is the Bechor with regard to property that the father will receive as an inheritance when the father is a "Goses" (and no longer able to give a gift to his son).

Why, though, should it make a difference what state the father will be in once he inherits the property? If one can make a Kinyan *now* to be Makneh a "Davar she'Lo Ba l'Olam" that he will receive only later, according to Rebbi Meir, then what difference does it make what state he will be in later (as long as he is still alive then) when he receives the item? The Kinyan is being performed *now*!

ANSWER: The PNEI YEHOSHUA deduces from this Gemara a new way of understanding the concept of being "Makneh Davar she'Lo Ba l'Olam." Even though the act of Kinyan is being performed now, before the item is in his possession, the actual transfer of ownership occurs only later, once the item is in the Makneh's possession. According to Rebbi Meir, one is able to be "Makneh Davar she'Lo Ba l'Olam" because he obligates himself, with "His'chayvus," to be Makneh the item later when he receives it. The act of Kinyan that he performs today takes effect only insofar as it makes the Makneh *obligated* to give over the item later. If, later, the Makneh is unable to transfer the ownership of the item (for example, when that time comes he has become a Goses), then the earlier act of Kinyan itself is unable to effect the transfer of ownership of the item.

QUESTION: The Rabanan argue with Rebbi Yehudah and maintain that a father is not believed to testify that his son is a Pesul. What, then, do the Rabanan learn from the verse, "Yakir?" The Gemara says that they learn from the verse that a father is believed to say that his son is a Bechor when we would not have known it otherwise (i.e. there was no Chazakah that he was the Bechor, such as when he shows up from abroad claiming to be the man's son). Even though the father would be believed to say that his son is the Bechor because of a "Migu" that he could just give to him, as a gift, a double portion of his property, nevertheless the verse "Yakir" is necessary to teach that we accept his word that this son is his Bechor even when he could *not* give a double portion of his property to his son, such as when the father receives property through inheritance *after* testifying that this son is his Bechor (he has no "Migu" that he could have given that property as a gift to his son, since "Ein Adam Makneh Davar she'Lo Ba l'Olam").

The Gemara explains that according to Rebbi Meir, who says that a person *could* be Makneh property that has not yet "come into the world" (and thus the father still has a "Migu" that he could give his future possessions to his son as a gift), the verse is necessary to teach that the father is believed to say that his son is the Bechor with regard to property that the father will receive as an inheritance when the father is a "Goses" (and no longer able to give a gift to his son).

TOSFOS explains that the reason a Goses is unable to perform an act of Kinyan is because he is unable to talk. Tosfos questions why the Gemara gives "Goses" as an example of a person who cannot make a Kinyan because he cannot talk. The Gemara should have given the straightforward case of a person who became mute! Tosfos answers that the Gemara does not give that example because such a person tends to recover from his illness.

Why does Tosfos say that the reason a Goses is unable to make a Kinyan is because he is unable to talk? It would seem that the reason he cannot make a Kinyan is because he has no Da'as! What is it about the ability to talk which is so vital to the ability to make a Kinyan? (See KETZOS HA'CHOSHEN 250:8.)

ANSWERS:

(a) The Gemara asks why we need a special verse to teach that the father is believed, when the father should be believed to say that a son is the Bechor because he has a "Migu" that he could give, as a gift, a double portion of his property to that son. This "Migu" means that since the father has the power to *do* an act of giving his property to his son, we therefore accept his *word*. The GET PASHUT explains that this "power" must be something that the person can do on his own. If he needs the assistance of others to accomplish the act, then the concept of "Migu" (or "b'Yado") cannot be applied.

When a person cannot talk, he cannot clearly state his intention of Kinyan. He might be able to shake his head if asked, or try to signal until he is understood, but his intention can only be clarified through the help of others around him. Consequently, the Ne'emanus of "Migu" does not apply to him.

(b) The MAHARIT writes that whenever a person is unable to speak, there is a Chazakah that he is not of sound mind, and that he does not have the Da'as to make a Kinyan. The Maharit maintains that this is true for any ill person, even one who is not a Goses. Once a person has lost his power of speech, we must be concerned that he has lost his Da'as as well, and, consequently, he can no longer perform a Kinyan.