Ketubot 76
חֲדָא בִּמְקוֹם תַּרְתֵּי, וַחֲדָא בִּמְקוֹם תַּרְתֵּי לָא אָמְרִינַן. עַד שֶׁלֹּא תִּתְאָרֵס — הַעֲמֵד הַגּוּף עַל חֶזְקָתוֹ לָא אִיכָּא לְמֵימַר. מַאי אִיכָּא? חֲזָקָה דְּאֵין אָדָם שׁוֹתֶה בְּכוֹס אֶלָּא אִם כֵּן בּוֹדְקוֹ, וְהַאי רָאָה וְנִיפַּיַּיס הוּא — אַדְּרַבָּה: חֲזָקָה אֵין אָדָם מִיפַּיֵּיס בְּמוּמִין, וְהַעֲמֵד מָמוֹן עַל חֶזְקָתוֹ.
one presumption opposed by two others. And we do not say that one presumption is decisive when it is opposed by two. However, if the husband brings proof that that she was blemished before she was betrothed, we cannot say: Establish the state of the woman’s body according to its presumptive status, since it has been established that the blemishes existed prior to the betrothal. What claim is there in the woman’s favor? Only the presumption that a person does not drink from a cup unless he first examines it, and this man has undoubtedly seen her blemishes and been appeased. The Gemara responds: On the contrary, there is a presumption that a person does not become appeased with regard to blemishes, and therefore the money is established according to its presumptive status and we do not obligate the husband to pay for the marriage contract.
רַב אָשֵׁי אָמַר: רֵישָׁא ״מָנֶה לְאַבָּא בְּיָדְךָ״, וְסֵיפָא ״מָנֶה לִי בְּיָדְךָ״.
Rav Ashi said that the contradiction between the first and last clauses of the mishna can be resolved in the following manner: The first clause is similar to a claim made by one who says: My father has one hundred dinars in your possession. When the blemishes were discovered he had not yet married her, and therefore the payment for the marriage contract would go to the woman’s father, and not to her. And the latter clause is referring to a married woman who claims the marriage contract for herself, and it is therefore as though she says: I have one hundred dinars in your possession. The presumptive status of her body enables her to claim money only for herself, not on behalf of someone else, including her father.
אֵיתִיבֵיהּ רַב אַחָא בְּרֵיהּ דְּרַב אַוְיָא לְרַב אָשֵׁי: מוֹדֶה רַבִּי מֵאִיר בְּמוּמִין הָרְאוּיִין לָבֹא עִמָּהּ מִבֵּית אָבִיהָ, שֶׁעַל הָאָב לְהָבִיא רְאָיָה. וְאַמַּאי? ״מָנֶה לִי בְּיָדְךָ״ הוּא!
Rav Aḥa, son of Rav Avya, raised an objection to Rav Ashi’s opinion from a baraita: Rabbi Meir concedes with regard to blemishes that naturally come with her from her father’s house, and which did not develop after the marriage, that the father must bring proof that she did not have them before the betrothal, even if she was already married when they were discovered. But why does Rabbi Meir agree in that case? It is similar to the case where someone says: I have one hundred dinars in your possession, along with the presumptive status of her body; therefore, the burden of proof should be upon the husband.
הָכָא בְּמַאי עָסְקִינַן — בִּיתֶירֶת. יְתֶירֶת, מַאי רְאָיָה מַיְיתֵי? רְאָיָה דְּרָאָה וְנִיפַּיַּיס הוּא.
The Gemara answers: With what are we dealing here? With a case of a woman who has an additional toe. She was obviously born with that blemish. The Gemara is puzzled by this response: If the baraita is speaking about an additional toe, what proof could the father possibly bring to argue that the toe grew after the marriage? The Gemara answers: He can provide proof that the husband saw the extra toe before the betrothal and he became appeased about it.
אָמַר רַב יְהוּדָה אָמַר שְׁמוּאֵל: הַמַּחֲלִיף פָּרָה בַּחֲמוֹר, וּמָשַׁךְ בַּעַל הַחֲמוֹר אֶת הַפָּרָה, וְלֹא הִסְפִּיק בַּעַל הַפָּרָה לִמְשׁוֹךְ אֶת הַחֲמוֹר עַד שֶׁמֵּת הַחֲמוֹר — עַל בַּעַל הַחֲמוֹר לְהָבִיא רְאָיָה שֶׁהָיָה חֲמוֹרוֹ קַיָּים בִּשְׁעַת מְשִׁיכַת פָּרָה.
§ Rav Yehuda said that Shmuel said: With regard to one who exchanges a cow for a donkey, where the two animals involved in this transaction are not in the same location, one of the parties acquires one of the animals by means of pulling it, which transfers the other animal to the other party through acquisition by means of the exchange. And in this case the owner of the donkey pulled the cow, but before the owner of the cow could pull the donkey in turn, the donkey died. The owner of the cow claimed that the donkey died before the other one pulled the cow, which means the exchange transaction never took effect. In that case, the owner of the donkey must bring proof that his donkey was alive at the time when the cow was pulled. If he is unable to bring proof to this effect, the owner of the cow retains his animal.
וְתַנָּא תּוּנָא כַּלָּה. הֵי כַּלָּה? אִילֵּימָא
Rav Yehuda adds: And the tanna of the mishna also taught along similar lines with regard to a bride. Shmuel learned this halakha concerning an acquisition by means of barter from the case of a bride. The Gemara inquires: Which halakha involving a bride serves as the basis for the halakha that Shmuel taught? If we say
כַּלָּה בְּבֵית אָבִיהָ, מִי דָּמֵי? הָתָם — מַיְיתֵי אָב רְאָיָה וּמַפֵּיק, הָכָא — מַיְיתֵי בַּעַל הַחֲמוֹר רְאָיָה וּמוֹקֵים.
that his proof is from the halakha with regard to a bride who is still in her father’s house, when the burden of proof is upon the father, is it comparable? There, the father brings proof and takes money away from the husband, whereas here, the owner of the donkey brings proof and maintains possession of the cow. Consequently, perhaps this case is different, and he should not be obliged to provide proof.
אָמַר רַבִּי אַבָּא: כַּלָּה בְּבֵית חָמִיהָ. וְאַכַּתִּי לָא דָּמֵי: הָתָם — בַּעַל מַיְיתֵי רְאָיָה וּמַרַע לֵיהּ לַחֲזָקֵיהּ דְּאָב, הָכָא — בַּעַל הַחֲמוֹר מַיְיתֵי רְאָיָה וּמוֹקֵים חֲזָקֵיהּ בִּידֵיהּ.
Rabbi Abba said: The proof is from the case of a bride in her father-in-law’s house, that is, one who has entered her husband’s domain. The Gemara raises a difficulty: And yet the cases are still not comparable: There, the husband brings proof and undermines the presumption that was in favor of the father, i.e., the presumptive status of the daughter’s body, whereas here, the owner of the donkey brings proof and thereby maintains the presumptive status of the donkey’s body and consequently maintains the cow in his possession. Perhaps, therefore, he should not have to bring proof.
אָמַר רַב נַחְמָן בַּר יִצְחָק: כַּלָּה בְּבֵית אָבִיהָ, וּלְקִידּוּשִׁין.
Rav Naḥman bar Yitzḥak said: Shmuel’s proof is from the halakha of a bride in her father’s house, but with regard to the money used for betrothal, not for the marriage contract. The father must bring proof in order to retain the betrothal money.
וְלָא תֵּימָא אַלִּיבָּא דְּמַאן דְּאָמַר קִדּוּשִׁין לָאו לְטִיבּוּעִין נִיתְּנוּ. אֶלָּא אֲפִילּוּ לְמַאן דְּאָמַר קִדּוּשִׁין לְטִיבּוּעִין נִיתְּנוּ — הָנֵי מִילֵּי קִידּוּשֵׁי וַדַּאי, אֲבָל קִידּוּשֵׁי טָעוּת, אִי מַיְיתֵי רְאָיָה — אִין, אִי לָא — לָא.
Rav Naḥman bar Yitzḥak explains: And do not say that this is only according to the one who says in general that betrothal money was not given with the understanding that it is to be lost, that is, the money was handed over only for the purpose of betrothal and it must be returned if the betrothal is canceled. Rather, say that this is even according to the one who says that in the case of betrothal money that was given to be lost, this applies only to a betrothal whose status is certain. According to this opinion, if a husband later divorces his wife or dies she does not have to restore the betrothal money. But with regard to a mistaken betrothal, if the father brings proof then yes, he may keep the money; if he does not bring proof he may not retain ownership of the betrothal money. This supports Shmuel’s opinion that in an uncertain case the one in possession of the money must bring proof in order to retain his ownership.
מֵיתִיבִי: מַחַט שֶׁנִּמְצֵאת בְּעוֹבִי בֵּית הַכּוֹסוֹת, מִצַּד אֶחָד — כְּשֵׁרָה. מִשְּׁנֵי צְדָדִין — טְרֵיפָה. נִמְצָא עָלֶיהָ קוֹרֶט דָּם — בְּיָדוּעַ שֶׁהוּא לִפְנֵי שְׁחִיטָה, לֹא נִמְצָא עָלֶיהָ קוֹרֶט דָּם — בְּיָדוּעַ שֶׁהוּא לְאַחַר שְׁחִיטָה.
The Gemara raises an objection to Shmuel’s opinion with regard to presumptions from a baraita about a different issue: In a case of a needle that is found in the thick wall of a slaughtered animal’s second stomach, if it has pierced the stomach from only one side, the animal is kosher. If the stomach is pierced from both sides, meaning that the needle pierced a hole completely through the wall of the stomach, it has the status of an animal with a condition that will cause it to die within twelve months [tereifa], and one is consequently prohibited to eat from it. Furthermore, if a drop of congealed blood is found on top of the needle, it is certain that the perforation was created before the slaughtering of the animal, and it is therefore a tereifa. If no drop of blood is found on it, it is certain that it occurred after the slaughtering, which means the animal is kosher.
הוּגְלַד פִּי הַמַּכָּה — בְּיָדוּעַ שֶׁשְּׁלֹשָׁה יָמִים קוֹדֶם שְׁחִיטָה. לֹא הוּגְלַד פִּי הַמַּכָּה — הַמּוֹצִיא מֵחֲבֵירוֹ עָלָיו הָרְאָיָה. וְאִי יְהַיב טַבָּח דְּמֵי — בָּעֵי לְאֵיתוֹיֵי רְאָיָה וּמַפֵּיק.
If a scab appeared over the wound on that spot, it is certain that the incident happened three days before the slaughtering. The significance of this fact is that if the animal was sold to a butcher after this point in time, the butcher can claim that the transaction was performed in error, as he did not intend to purchase a tereifa animal. If a scab did not appear over the wound, and the seller claims that the animal was injured while in the possession of the butcher who purchased the animal, while the butcher claims that it was wounded when he bought it, the burden of proof rests upon the claimant. And therefore, if the butcher had already given the money, he needs to bring proof and then he can take his money back from the seller.
וְאַמַּאי? בַּעַל בְּהֵמָה לַיְיתֵי רְאָיָה וְנוֹקֵים?
The Gemara returns to Shmuel’s opinion: But why should this be the halakha? Let the owner of the animal, i.e., the seller, bring proof and establish the validity of the sale, just as the owner of the donkey must provide proof in order to maintain possession of the cow. Why is the burden of proof upon the butcher?
בִּדְלָא יְהַיב טַבָּחָא דָּמֵי. מַאי פַּסְקָא?
The Gemara answers: This baraita is referring to a case where the butcher had not yet given the money, but was going to pay at a later time. Therefore, the seller is the one claiming money from the butcher, and he must offer proof in order for the transaction to be upheld. The Gemara poses a question: Why was it stated without qualification? The wording of the baraita implies that either side must bring proof. This baraita appears to refute the opinion of Shmuel.
אֶלָּא, כִּי אֲתָא רָמֵי בַּר יְחֶזְקֵאל, אָמַר: לָא תְּצִייתִינְהוּ לְהָנֵי כְּלָלֵי דְּכָיֵיל יְהוּדָה אַחִי מִשְּׁמֵיהּ דִּשְׁמוּאֵל. הָכִי אָמַר שְׁמוּאֵל: כֹּל שֶׁנּוֹלַד סָפֵק בִּרְשׁוּתוֹ עָלָיו הָרְאָיָה. וְתַנָּא תּוּנָא כַּלָּה.
Rather, when Rami bar Yeḥezkel came, he said: Pay no attention to those rules formulated by my brother Yehuda in the name of Shmuel. In actuality, this is what Shmuel said: In whosesoever’s domain the uncertainty came into being, the burden of proof rests upon him. In the case of the exchange of the cow for the donkey, it is the owner of the cow who must provide proof. And the tanna of the mishna also taught along similar lines with regard to a bride. If the bride was in her father’s domain he must provide proof; if she was living with her husband the burden of proof is upon him.
מֵיתִיבִי: מַחַט שֶׁנִּמְצֵאת בְּעוֹבִי בֵּית הַכּוֹסוֹת כּוּ׳, וְאִי דְּלָא יְהַיב טַבָּח דָּמֵי — בַּעַל בְּהֵמָה בָּעֵי לְאֵיתוֹיֵי רְאָיָה וּמַפֵּיק, וְאַמַּאי? סְפֵיקָא בִּרְשׁוּת טַבָּח אִיתְיְילִיד!
The Gemara raises an objection: A needle that is found in the thick wall of an animal’s second stomach…the burden of proof rests upon the claimant. And if the butcher had not already given the money, the owner of the animal needs to bring proof, and only then can he take his money. The Gemara asks: But why? The uncertainty was formed in the butcher’s possession. According to Rami Bar Yeḥezkel’s opinion, it should be the butcher’s responsibility to provide proof.
דִּיהַיב טַבָּח דְּמֵי. וּמַאי פַּסְקָא? סְתָמָא דְמִילְּתָא, כַּמָּה דְּלָא יָהֵיב אִינִישׁ זוּזֵי — לָא יָהֵיב אִינִישׁ חֵיוְתָא.
The Gemara answers: This baraita is referring to a case where the butcher had already given the money. Since the butcher is the one demanding money from the seller, he must provide proof. The Gemara poses a question: But why was it stated without qualification? How is it known that the tanna was referring to this particular case? The Gemara answers: The ordinary situation is that as long as a person has not given money, the other person will not give him the animal. It can therefore be assumed that the butcher paid for the animal before he was allowed to slaughter it, which means it is he who is claiming the return of the money.
וַחֲכָמִים אוֹמְרִים: בַּמֶּה דְּבָרִים אֲמוּרִים — בְּמוּמִין שֶׁבַּסֵּתֶר. אָמַר רַב נַחְמָן:
§ The mishna teaches: And the Rabbis say: In what case is this statement said? With regard to hidden blemishes. But he cannot claim to have been unaware of visible blemishes. Rav Naḥman said:
