Ketubot 9

האומר פתח פתוח מצאתי נאמן לאוסרה עליו

A groom who says: I encountered an unobstructed orifice, claiming that when he consummated the marriage he discovered that his bride was not a virgin, is credible to render her forbidden to himself. Although it is not always possible to corroborate his claim with testimony that his wife committed adultery after betrothal, he is credible to render her forbidden to him as though she had in fact committed adultery.

ואמאי ספק ספיקא הוא ספק תחתיו ספק אין תחתיו ואם תמצא לומר תחתיו ספק באונס ספק ברצון

The Gemara asks: But why is she forbidden to him? It is a case of compound uncertainty. It is uncertain whether she engaged in intercourse while under his jurisdiction, after betrothal, in which case she would be forbidden to him, and it is uncertain whether she engaged in intercourse while not under his jurisdiction, in which case she would not be forbidden to him. And if you say that she engaged in intercourse while under his jurisdiction, it is uncertain whether she engaged in intercourse by coercion, in which case she would not be forbidden to him, and it is uncertain whether she engaged in intercourse willingly, in which case she would be forbidden to him. In cases of compound uncertainty, the ruling is lenient. Why, then, is his claim deemed credible?

לא צריכא באשת כהן ואיבעית אימא באשת ישראל וכגון דקביל בה אבוה קידושין פחותה מבת שלש שנים ויום אחד

No, it is necessary to teach this ruling only in the case of the wife of a priest, who is rendered forbidden to her husband even if she engaged in intercourse by coercion. In that case, there is a single uncertainty. And if you wish, say instead that this ruling is relevant even to the wife of an Israelite, and it is in a case where her father accepted her betrothal when she was less than three years and one day old. Intercourse with a girl less than three years old does not permanently rupture the hymen, and therefore there is no uncertainty whether she engaged in intercourse before or after betrothal. Clearly, it took place after betrothal, and there is only one uncertainty: Did she engage in intercourse by coercion or willingly?

מאי קא משמע לן תנינא האומר לאשה קדשתיך והיא אומרת לא קדשתני היא מותרת בקרוביו והוא אסור בקרובותיה

The Gemara asks: If this is a case where there is only one uncertainty, what is it teaching us? We already learned this explicitly: With regard to a man who says to a woman: I betrothed you, and she says: You did not betroth me, and there are no witnesses to corroborate either claim, she is permitted to marry any of his relatives, e.g., his brother, because based on her claim they are not related. And it is prohibited for him to marry her relatives, as based on his claim she is his betrothed. Apparently, one is capable of creating a prohibition for himself without corroborating witnesses.

מהו דתימא התם דודאי קים ליה אבל הכא מיקם הוא דלא קים ליה קא משמע לן

The Gemara says that it was necessary to teach the case of the claim of virginity, lest you say: There, where certainly it is clear to him that he betrothed her, it is prohibited for him to marry her relatives. However, here, perhaps it is not clear to him that she was not a virgin, as he is not experienced in these matters and is mistaken. Therefore, Rabbi Elazar teaches us that his claim is nevertheless credible and she is forbidden to him.

ומי אמר רבי אלעזר הכי והאמר רבי אלעזר אין האשה נאסרת על בעלה אלא על עסקי קינוי וסתירה וכמעשה שהיה

And did Rabbi Elazar say that? But didn’t Rabbi Elazar say: A woman is forbidden to her husband due to adultery, only over matters of jealous warning and seclusion, and as it was in the incident that transpired involving David and Bathsheba? A wife is forbidden to her husband only in a case where he warns her not to seclude herself with a certain man and witnesses testify that she subsequently entered into seclusion with him.

ותסברא מעשה שהיה בקינוי וסתירה הוה ועוד מי אסרוה

And how can you understand it in that manner? Was the incident that transpired with jealous warning and seclusion? Furthermore, did the Sages render Bathsheba forbidden to her husband? Had she been forbidden to her husband, she would have also been forbidden to David, based on the following principle: Just as an adulteress is forbidden to her husband, she is also forbidden to her paramour.

הא לא קשיא הכי קאמר אין האשה נאסרת על בעלה אלא על עסקי קינוי וסתירה ממעשה שהיה דלא הוה קינוי וסתירה ולא איתסרא מכל מקום קשיא קינוי וסתירה אין פתח פתוח לא

That is not difficult, as this is what Rabbi Elazar is saying: The fact that a woman is forbidden to her husband due to adultery only over matters of jealous warning and seclusion is derived from the incident that transpired involving David and Bathsheba, as there was no jealous warning and seclusion, and therefore she was not forbidden to her husband. In any case, it is difficult, as the statements of Rabbi Elazar are contradictory. It may be inferred: By means of jealous warning and seclusion, yes, a man renders his wife forbidden to him; by means of the claim that he encountered an unobstructed orifice, no, he does not render her forbidden.

ולטעמיך קינוי וסתירה אין עדים לא

The Gemara rejects that inference: And according to your reasoning, that the statement of Rabbi Elazar restricts to jealous warning and seclusion the manner in which a husband can render his wife forbidden, infer: By means of jealous warning and seclusion, yes, a man renders his wife forbidden to him; by means of the testimony of two witnesses that she engaged in adulterous relations, no, he does not render her forbidden. That cannot be so, as clearly two witnesses establish her as one who committed adultery and render her forbidden to her husband.

אלא הכי קאמר אין האשה נאסרת על בעלה בעד אחד אלא בשני עדים וקינוי וסתירה אפילו בעד אחד נמי ופתח פתוח כשני עדים דמי

The Gemara explains: Rather, this is what Rabbi Elazar is saying: A woman is not rendered forbidden to her husband through the testimony of one witness. Rather, she is rendered forbidden only by means of the testimony of two witnesses who testify that she engaged in adulterous relations. And if there was jealous warning and seclusion, she is rendered forbidden even by means of the testimony of one witness as well, if he comes after the husband warned his wife and testifies that she engaged in adulterous relations. And the legal status of the claim: I encountered an unobstructed orifice, is like that of two witnesses, and it renders her forbidden even without jealous warning and seclusion.

וכי תימא מעשה שהיה מפני מה לא אסרוה התם אונס הוה ואיבעית אימא כי הא דאמר רבי שמואל בר נחמני אמר רבי יונתן

And if you would say with regard to the incident that transpired involving David and Bathsheba: For what reason did the Sages not deem her forbidden, when clearly David committed adultery with a married woman? The Gemara answers: There it was rape, and she did not engage in intercourse willingly. And if you wish, say instead that the Sages did not deem her forbidden, as that which Rabbi Shmuel bar Naḥmani said that Rabbi Yonatan said:

כל היוצא למלחמת בית דוד גט כריתות כותב לאשתו דכתיב ואת אחיך תפקד לשלום ואת ערבתם תקח מאי ואת ערבתם תקח תני רב יוסף דברים המעורבין בינו לבינה

Anyone who goes to a war waged by the royal house of David writes a conditional bill of divorce to his wife. This was done to prevent a situation in which the wife of the soldier would be unable to remarry because her husband did not return from battle and there were no witnesses with regard to his fate. The conditional bill of divorce accorded the wife the status of a divorcée and freed her to remarry, as it is written: “And to your brothers bring greetings and take their pledge [arubatam]” (I Samuel 17:18). What is the meaning of: And take arubatam? Rav Yosef taught: It is referring to matters that are shared [hame’oravin] between the husband and his wife, i.e., marriage. Since apparently it was customary for men at war to send their wives a conditional divorce, and since Uriah later died, Bathsheba assumed divorced status retroactively from the time that he set out to war. Therefore, she was not forbidden to David.

אמר אביי אף אנן נמי תנינא בתולה נשאת ליום הרביעי ליום רביעי אין ליום חמישי לא מאי טעמא משום איקרורי דעתא

§ Apropos the credibility of the claim: I encountered an unobstructed orifice, Abaye said: We, too, learn in the mishna proof for the opinion of Rabbi Elazar: A virgin is married on Wednesday. Abaye infers: On Wednesday, yes, a virgin is married; on Thursday, no, she is not married. What is the reason for this ruling? It is due to the fact that if the marriage were to be held on Thursday, several days would elapse before the court would next convene, and in the interim his resolve will cool and his anger subside. The concern is that consequently he will fail to claim before the court that his bride was not a virgin.

ולמאי אי למיתב לה כתובה ניתיב לה אלא לאוסרה עליו ודקא טעין טענה

The Gemara asks: And for what matter is that a source of concern? If the concern is with regard to giving her payment for her marriage contract, i.e., if he fails to go to court, her legal status at the time of marriage will remain that of a virgin, and when the time comes she will receive payment for her marriage contract to which she is not entitled; then let him give it to her if he wishes. Why is that a concern? Rather, it is with regard to rendering her forbidden to him, and that would result in a case where he makes a claim.

מאי לאו דקטעין טענת פתח פתוח לא דקטעין טענת דמים

What, is it not referring to a case where he makes the claim: I encountered an unobstructed orifice, after engaging in intercourse with his bride, and his claim is accorded credibility to render her forbidden to him in accordance with the opinion of Rabbi Elazar? The Gemara rejects that proof: No, it can be explained that it is a case where he makes the claim that there was no blood, which would have resulted from rupture of the hymen had she been a virgin. That is a claim based on objective, verifiable evidence and not merely dependent on his subjective sensation.

אמר רב יהודה אמר שמואל האומר פתח פתוח מצאתי נאמן להפסידה כתובתה אמר רב יוסף מאי קא משמע לן תנינא האוכל אצל חמיו ביהודה שלא בעדים אינו יכול לטעון טענת בתולים מפני שמתייחד עמה ביהודה הוא דלא מצי טעין הא בגליל מצי טעין

§ Rav Yehuda said that Shmuel said that a groom who says: I encountered an unobstructed orifice, is deemed credible with regard to causing her to lose her marriage contract. Rav Yosef said: What is he teaching us? We already learned explicitly in a mishna (12a): A man who eats at the house of his father-in-law in Judea after betrothal, without witnesses to attest to the fact that he was not alone with her, cannot make a claim about his bride’s virginity after marriage, because in accordance with the custom in Judea, the assumption is that he secluded himself with her and it was he who engaged in intercourse with her. The Gemara infers: It is in Judea that he cannot claim that she is not a virgin, but in the Galilee, he can claim that this is the case.

ולמאי אי לאוסרה עליו ביהודה אמאי לא אלא לאו להפסידה כתובתה ודקא טעין טענה מאי לאו דקא טעין טענת פתח פתוח לא דקא טעין טענת דמים

The Gemara asks: And for what matter is this claim directed? If it is to render her forbidden to him, then in Judea why is the claim not credible? If he is certain that he did not engage in intercourse with her, and finds that she is not a virgin, apparently she committed adultery and that claim should render her forbidden. Rather, is it not that he is seeking to cause her to lose her marriage contract in a case where he makes a claim? And what, is it not referring to a case where he makes the claim: I encountered an unobstructed orifice, and apparently he is accorded credibility? The Gemara rejects that proof: No, it can be explained that it is a case where he makes the claim that there was no blood.