meta: {"file": "/data/tomer/Sefaria-Export/txt_done/Talmud/Bavli/Commentary/Tosafot/Seder Nashim/Tosafot on Ketubot/English/merged.txt"}
text: Tosafot on Ketubot
  תוספות על כתובות
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  This file contains merged sections from the following text versions:
  -Tosafot, Translated by Jan Buckler.
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  -Tosafot, Translated by Jan Buckler
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  -Sefaria Community Translation
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  Tosafot on Ketubot
  
  
  
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  MISHNA: a virgin. Sometimes the Mishna refers to a subject with the ה' הידיעה, which is the equivalent of ‘the’ or ‘that’, and refers to a known subject. Sometimes as in our Mishna, the Mishna does not use that ה'. Tosfos explains why this is so: The reason that the Mishna does not say ‘the’ b’soloh as it says ‘the’ woman is acquired, and ‘the’ y’vomoh is acquired (Kidushin 2a), because there in Kidushin the Mishna is referring to the woman mentioned in the verse (D’vorim 22, 13): when a man will acquire a woman. The Mishna there is speaking of that woman about whom the verse is written. And so too ‘the y’vomoh is referring to that Y’vomoh mentioned in the verse in D’vorim 25, 7.  However, here in our Mishna the term b’suloh is not referring to a b’suloh that is mentioned in any verse. According to this explanation when the Mishna in Kidushin 14b speaks about a Jewish slave it should say ‘the’ Jewish slave, because it is speaking of the slave mentioned in a verse, but it does not. This needs to be explained. And the reason that the Mishna in the first Perek of Kidushin does not say ‘the’ Jewish slave, even though it is referring to a slave that is mentioned in a verse (Sh’mos 21, 2): if you will purchase a Jewish slave, that is  because if so, that the Mishna would insist on using the ה', it would need to say העבד העברי – the Jewish slave, using a ה' twice, for עבד and for עברי, because the word עברי is not attached to עבד.1<i class="footnote">The phrase does not mean the slave of a Jew. It means a slave who is a Jew. The correct expression when employing the ה' הידיעה, is העבד העברי.</i> The term does not mean the slave of a Jew; if that was the case it could say עבד העברי. However, the meaning of the phrase is the slave who is a Jew. The correct grammar for this phrase is העבד העברי, and it is not usual for the Talmud to speak this way. The Mishna prefers to drop the ה' it would ordinarily use when referring to a character mentioned in the Torah, in favor of maintaining its style of writing. Tosfos acknowledges that there are many times in the Mishna where the ה' is used even though the specific character is not mentioned in a verse. However, in regard to a man and a woman it is the norm in all places to mention these words with a ה', even though the specific event discussed is not referring to a man or woman mentioned in a verse. Such as: ‘The’ woman who went with her husband to a foreign land (Y’vomos 114b), ‘The’ woman who was widowed (below 16b), and ‘The’ man may impose a vow upon his son to be a nozir (Nozir 28b). In all these Mishnayos the Mishna speaks of ‘the’ man and ‘the’ woman, even though there is no specific verse that speaks of these stories.2<i class="footnote">Maharam Schiff explains that Tosfos means that since man and woman are mentioned with the ה' in Kidushin 2a, 41a, because the Mishna there is referring to a verse, whenever they are mentioned elsewhere the Mishna uses the ה', even though that specific Mishna is not referring to a verse.</i>
  
  Is married. In the various interactions between man and woman, sometimes the Mishna speaks of the man actively acquiring and sometimes it speaks of the woman being acquired. Our Mishna speaks of the woman being married. This must be explained. Tosfos offers three reasons for the expression used in our Mishna.The reason that the Mishna does not say ‘we marry a betulah’ as it says: the man betroths (Kiddushin 41a), which speaks of the man’s activism as opposed to the woman’s passive consent, is because now,A) by saying “a betulah is married” the sentence is shorter.1<i class="footnote">See P’sochim 3b and Chulin 63b.</i>B)Furthermore, if the Mishna said so, we marry a virgin; I might think that she can be married even against her will, since the structure of the sentence implies that it is the man who marries, as the gemarah answers (ibid. 2b), in regard to the question: and let the Mishna sayinstead of “a woman is acquired”, the man acquires? The gemarah says that using the phrase “a man acquires” might be misunderstood as saying that a man can acquire by his own volition even if the woman does not agree to be acquired. The Mishna uses the phrase “a woman is acquired” to teach us that she must consent to be acquired. So too, here the Mishna uses the phrase “a betulah is married” to teach that she must consent to be married.C)Furthermore, the Mishna there is referring to the verse (Devarim 22, 13): when a man will acquire a woman. Since the verse speaks about a man acquiring a woman, the Mishna follows suits and uses a similar phrase. However, there is no verse that discusses the act of marrying a betulah and the Mishna is not bound to follow a specific phrase.
  On Wednesday. In the secular calendar Wednesday night is the period that begins after the period of daytime on Wednesday. The Torah does not have names for the days of the week. They are referred to by number, first, second etc. In B’raishis 1, 5, the Torah says: and there was night and there was day, the first day. This teaches us that in the Torah calendar night precedes day. What is referred to as Wednesday night in the secular calendar is caller the fifth night in the Torah calendar.Our Mishna says that a vbetulah is married on the fourth day. Tosfos comments: But not on the fifth night (Wednesday night), as the Gemara says in Needoh (65b), there is no marriage contract where there is no dispute about the terms of the agreement and time is always needed to settle the disputes.1<i class="footnote">Nowadays we use a standard marriage contact for all. During the period of the Mishna each marriage contract was negotiated individually. All contained the minimal requirements of the sages, but there was much more to be negotiated. This could have drawn out for a very long period and by the time it was over, the couple may not have time to consummate the marriage that night.</i>Certainly, if the marriage is made on the fifth night, one needs to be concerned that one will be involved with the terms of the marriage and the contract and he may not have relations with his bride during that night. He may postpone his relations with her till the next night and will first be able to present his claim of lack of virginity on the following Monday. By that time his anger may have cooled and he may not complain to the court at all. It is imperative that the marriage take place Wednesday afternoon, so that he will definitely have relations with his bride that evening and if she is found not to be a virgin, he will still be angry when the court is in session Thursday morning. 
  And if you will say, "but we learned that the spouse of a priest or a girl (who got married at an age) less than 3 have only one doubt!", like we will say in the Gemara later on, "but other women have a doubt on the doubt! So why should they get married on Wednesday? And the Rabenu Tam responds: The rabbis do not differentiate (the cases of) the decree. And because of the spouse of a priest and the girl (who got married at an age) less than 3, we decree for all women to get married on Wednesday. ---Incomplete---
  
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  Due to what did they say that a virgin is married on Wednesday? [It is] because we learned, etc. The words מפני מה usually mean – for what reason. Tosfos will show that if this is the meaning of these words in our gemarah, it does not make any sense. Tosfos must therefore offer a different meaning for these words.Shmuel is not asking for the reason why a betulah is married Wednesday afternoon, for if it were so, the Gemara does not answer anything. The Gemara’s initial response: because we have learned that if the time for marriage arrived and they were not married, he must support her and she may eat T’rumoh if he is a Kohain. Now that we have learned that they must wait till Wednesday, if the time arrives on Sunday, he need not support her. This is not the reason for the rule that one must marry on Wednesday; it is a consequence of that rule.Rather, the explanation of מפני מה אמרו – literally, for what did they say – means what consequence is there from this regulation that they instituted that a betulah must be married on Wednesday?And the Gemara answers: The consequence of this regulation affects the issue of when he is required to support his wife and when she is allowed to eat t’rumoh. Since he is not permitted to marry her till Wednesday, he need not support her and if he is a Kohain she is not allowed to eat t’rumoh till Wednesday.Why was Rav Yosef so upset with this answer? And Rav Yosef wondered: Master of Avrohom! But the consequence of this regulation is clearly explained in the Mishna – that if he had complaints about her virginity he will come to court Thursday morning and file a complaint.1<i class="footnote">See Maharsho who asks that Shmuel may have searched for a consequence that emerges from not marrying on Sunday. The consequence mentioned in our Mishna that he will come Thursday morning to court and file his complaint can be accomplished by marrying on Sunday, so that he will come to court on Monday morning.</i> And he, Shmuel, disregards2<i class="footnote">מני - literally – leaves, puts down.</i> this consequence, which is clearly stated in the Mishna and mentions a different consequence of this ruling. 
  
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  Rather, if it was stated, this [is how] it was stated: Rav Yehuda said [that] Shmuel said: The original statement in the Gemara was: Rav Yosef said in the name of Rav Yehuda who said in the name of Shmuel. Usually when the Gemara revises a statement, it is reintroduced with the same names as the original statement. Our Gemara does not mention Rav Yosef when this statement is re-introduced.We do not amend the text to read: Rav Yosaif said etc. For it is Rav Yosef himself who is saying: Rather, if this was taught, this is how it was taught etc. He does not need to include his own name when listing the authors of the statement, because Rav Yosef was actually saying this himself.
   Due to what [reason] did they say. Usually מפני מה is a question that is followed by an answer. In this second version of Rav Yehuda in the name of Shmuel the Gemara is not intending to ask why there is a regulation that one must marry Wednesday afternoon. The Gemara is aware of the need to encourage husbands to complain about their wives lack of virginity.In our text this, first section of Shmuel’s statement, is read softly as an explanatory sentence, because Shmuel is not yet asking any question, and he only comes to ask: and she should be allowed to be married on Sunday also? This question can be asked only after we hear the explanation for marrying on Wednesday afternoon.
  Let her marry on Sunday. Later on 5a the Gemara offers another reason for marrying Wednesday afternoon: So that they will have their first marital relations on Thursday (see introduction to 2c). This is a favorable time to begin their married life together, because Hashem gave his blessings to the fish that they should be fruitful and multiply (B’raishis 1, 22), on Thursday. Our Gemara seems to ignore the blessing mentioned on 5a.The Gemara does not want1<i class="footnote">Tosfos does not explain why the gemarah does not want to answer that the reason for marrying Wednesday afternoon is to benefit from the blessing. It is possible that Rav Yosef was unaware of the Braiso later on 5a that uses this reason as an explanation of why the first relations should be on Thursday. He was not convinced of the significance of associating with this blessing to suggest this reason himself.</i> to answer that [a betulah] is married on Wednesday afternoon, so that she will have relations that night which according to the Torah calendar is Thursday, in order to benefit from the blessing that was said on Thursday for the fish, as the Gemara says later (5a).And furthermore we must ask: Why does the Gemara need the reason that the Rabonon were diligent to promote the welfare of Jewish daughters to prohibit marrying on Sunday, it should be known to [the Gemara] that one may not marry on Sunday, because he will lose the benefit of the blessing derived from having the first relations on Thursday?2<i class="footnote">This question seems to be a repetition of the first question. See Maharsho, Maharam and Maharam Schiff. The consensus seems to be that the first question may be answered as we suggested in note 1, that Rav Yosaif, who is speaking in our Gemara was uncomfortable with that reason. However, the Gemara there on 5a is problematic. That Gemara is aware of the reason of accessing the blessing, because it is quoted in a Braiso there. If so, how does that Gemara reconcile the beraitah that speaks of the reason that the Rabonon were diligent to promote the welfare of Jewish daughters? It would seem that whatever is accomplished by adding this new reason is already taken care of with the reason that one should access the blessing.</i>And R’I says: That the reason that one should marry on Wednesday in order to participate in the blessing derived from having the first relations on Thursday is only sage counsel, and one is not called a transgressor of Rabbinic law if he chooses to marry on some other day.However, because of the reason that the Rabonon were diligent to promote the welfare of Jewish daughters and insisted that the groom prepare a minimal banquet for at least three days, if one marries on Sunday and does not follow the regulation of the Rabonon, he is called a transgressor. Tosfos offers support to his explanation that one is not a ‘transgressor’, if he chooses not to follow the advice of the Rabonon who tell us to marry on Wednesday afternoon, so that we will benefit from the blessing.The Gemara later on 5a questions whether the concern that one’s anger will cool off before the court is in session applies to when one marries Wednesday afternoon and immediately has first relations during that afternoon and does not wait till the evening. And so can it be understood later (5a) where the Gemara says that the reason one should have the first relations during the night following Wednesday afternoon and not during the afternoon, is because of the blessing associated with first relations on Thursday, but we are not concerned that if he has the first relations Wednesday afternoon and he finds that she is not a betulah, his anger will cool off before the courts are in session Thursday morning.  But what is the difference, no matter what the reason; one must have the first relations at night in order to benefit from the blessing?  Rather, it is certain, that if it was only because of the blessing that the Rabonon advised to have first relations on the fifth night (Wednesday evening) and he chose not to heed their advice, he is not called a ‘transgressor’, but if the reason was because of the possibility that his anger might cool off, he would be labeled a ‘transgressor’.
  
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  Therefore, [if he falls] ill, he does not provide her sustenance. This Tosfos belongs on 2a. In the first version of Rav Yosef's explanation the gemarah concluded that if the wedding is delayed because of extenuating circumstances such as the bride or groom becoming ill, he is not required to support her. R’I finds this difficult: For the gemarah says in HaCholaitz (Yevamot 41b): A yovom who stood in court1<i class="footnote">עמד בדין – שתבעתו בדין או כנוס או פטור וברח - Rashi says that she summoned him to court and said: Take me as your wife or release me by performing chalitzoh.</i> and then fled, before he took her as his wife, the Yevamah is supported from the assets of the yovom.And Y’rushalmee explains that beraita means: One who flees and the rule is the same for one who becomes ill. Whereas here we say that if he the groom becomes ill, he is not required to support her. Why is a groom who becomes ill different than a yovom who becomes ill? And R’I says that there is a difference between the two cases. There, in Yevamot 41b, he, the yovom, became ill after he stood in court, and he was already required to support her before he became ill or fled, but here the groom became ill before the time of the marriage arrived. Since he had not yet been required to support her, when he is ill he does not become liable for her support.Rashi in Yevamot disagrees with Y’rushalmee. And Rashi explained there in Yevamot that it is specifically when he, the yovom, flees2<i class="footnote">Rashi there ד"ה נזונת, says that when he flees, he is fined by having to support her from his assets. Obviously, if he becomes ill and is unable to perform the Mitzvah of Yibum, there is no reason to fine him.</i> that his Yevamah is supported from his assets, but not if he became ill. And this does not appear to be correct as can be understood from Y’rushalmee.And we cannot raise a difficulty to Rashi’s explanation that when the gemarah speaks of a fine when the yovom flees, it is an indication that if he became ill he would not have to support his Yevamah, from the second version of our gemarah, who asked the question about whether one is liable to support his bride if he becomes ill. If Rashi’s analysis of the gemarah is correct, why did they, who asked the question, not resolve it from that Braiso which Rashi says is an indication that when one becomes ill, he is not required to support his Yevamah? The same should apply for a betrothed. For we can answer: That one’s betrothed is more closely attached to him than his Yevamah as the gemarah says in Yevamot in many places, and therefore a ruling that when he becomes ill he does not need to support his Yevamah is not adequate proof that he does not have to support his betrothed.
  
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  She can say to him that his field was inundated. The time has arrived for the marriage to take place. The groom is ready, but the bride menstruates. Since the time of marriage has arrived, she wants to be supported. He claims that he is ready to marry her but she is not, and he should not be required to support her. She claims: That it (her body) is his field that became spoiled; she should not suffer for his misfortune and is entitled to be supported.He cannot counter-claim that to the contrary, it is her misfortune that caused that they are unable to marry, for since she is not commanded in the Mitzvoh of being fruitful and multiplying,1<i class="footnote">The Mishna says in Yevamot 65b:האיש מצווה על פריה ורביה. אבל לא האשה the man is commanded to be fruitful and but not the woman.</i> she is not the one who is being punished by not being allowed to fulfill the mitzvoh because of her menstruation, as the Gemara says in Perek Habo al Y’vimto (Yevamot 64b).2<i class="footnote">The Gemara there is discussing the ruling that if a man does not have children with his wife for ten years, he divorces her and must pay the k’suboh. The Gemara wonders why he must pay the k’suboh; perhaps it is her fault that they did not have children? The Gemar answers: Since it is not her mitzvoh, she will not be punished by not having children. We see that when an otherwise healthy couple is incapable of having children, it is the fault of the husband and he must therefore pay the k’suboh.</i>Furthermore, the woman is the ‘field’ of the husband and it may be said that the field (her body) that he purchased has spoiled, but the husband is not her field and it cannot be said that the field that she purchased has spoiled. She did not purchase anything. It cannot be argued that she made a faulty purchase and should therefore suffer not being supported by her husband-to-be.
  
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  Rav Ahai resolved. This is not the usual expression used to introduce an answer in the gemarah. Tosfos quotes Rashbam who explains the reason for this unusual idiom. He disagrees with Rashbam and presents Rabbeinu Tam’s explanation. It is not as Rashbam explains that thi Rav Achai who is answering the question is Rav Achai Gaon who authored Sheiltot and he was at the end of all the amoraim. Rav Achai lived in the post-amoro period and was a G’on but not an amoro.  And that is why the expression is different throughout the shas, i.e. פריך רב אחאי – Rav Achai asked. פשיט רב אחאי – Rav Achai answered. These unusual introductions for Rav Achai’s questions and answers indicate that they were inserted into the body of the gemarah at some later time.However Tosfos holds that Rashbam’s explanation is incorrect and he bases his objection on this gemarah. For here, Rav Ashi who lived during the period of the amoraim is commenting about his, Rav Achai’s, statement. The fact that it is Rav Ashi who is disagreeing with Rav Achai’s answer proves that he lived either pre-Rav Ashi or at the same time. Rav Ashi lived approximately one generation before the end of the period of amoroim.Rabbeinu Tam’s explanation of the unusual introduction: Rather, says Rabbeinu Tam that he, Rav Achai mentioned in our gemarah, is an amoro as is indicated by Rav Ashi’s response to his proposal that the Mishna is speaking of when the women were at fault.Why then do we have this unusual introduction? And each amoro had his expression for introducing his thoughts. For example: R’ Abohu castigated (Sanhedrin 3b).1<i class="footnote">See Artscroll there who translates מגדף as an expression of surprise. See the notes there where he explains מגדף as castigating. This explanation seems to be how Tosfos here understands this word.</i>R’ Yochanan pondered (Bovo Kamo 112b).2<i class="footnote">In Bava Kamo 66a and Airuvin 76a Artscroll translates this word as ‘examined’. Tosfos seems to equate this word with castigating and condemning as is evident from the fact that Tosfos is proving that the amoroim used different introductions to express the same idea. Obviously, Tosfos holds that these words are interchangeable.</i>Abaye condemned (B’rochos 29a).3<i class="footnote">Just as R’ Abohu, R’ Yochanan and Abaye all used different words that essentially have the same meaning to introduce their thoughts, so too, Rav Achai, introduces his statements with a different expression than other amoroim.</i>
  It doesn't teach: And [the grooms] didn't marry. Rather, [it teaches]: And [the brides] were not married. During the days of the Gemara the Mishna was not vowelized. If so, how can we build a halachic decision on the basis of an assumption that the word נשאו is read with a cheerik, nisu, and means that the women were not ready to marry, perhaps the proper vowelization is with a komatz, nosu, and it means that the men were not ready to marry? (See R’ Yacov of Emden who explains that even if the word is read with a cheerik, according to the rules of grammar it is spelled without a י'. The י' that our gemarah uses a י' is only for purposes of clarification, but it does not truly belong in the Mishna.) Tosfos explains: It was a tradition received by them, the sages of the gemarah, from their teachers to read these words as “lo nisu”. Tradition may be used as the basis for resolving halachic issues. It is self evident that this was an accepted tradition, since we do not find that Rav Ashi challenges the reading of this word, he merely offers a reason for the use of this vowelization of the phrase “lo nisu” that would tolerate that it was the fault of the husband.Tosfos suggests a second approach to explain how it is evident in the Mishna that it is speaking of a case when the women are putting off the marriage. Furthermore, if “lo Nosu”, which is plural, is referring to the men, and is saying that the men are responsible for putting off the wedding, the Mishna should have continued the sentence in the plural and said and they, the women who were not married at the proper time, due to the fault of the husband, eat from them. The Mishna changes from plural to singular and writes: they eat from him. This is a subtle hint that the subject has changed. The previous sentence of the Mishna speaks of the time allowed for the husband to prepare for the wedding. Ordinarily we would say that the next sentence ‘lo nosu” refers to him, and is speaking of when he is at fault for not marrying. The Mishna hints that this is not so by switching from plural to singular in that next sentence.1<i class="footnote">To be perfectly clear, even if we knew that the proper vowelization is “lo nisu”, the sentence is referring to many women who were not married to many men and should continue with the plural - they eat from <u>them</u>. The abuse of proper grammar by the Mishna is an indication that the Mishna is sending us a message that we are not to accept this sentence at face value. See שיטה מקובצת who quotes Ritvo and the disciple of the Rashbo who offer this explanation.</i>
  Rather [it teaches]: And [the brides] were not married. A cursory glance at the Gemara seems to tell us that the Mishna when using the words ‘lo nisu’, is speaking only of when the women are at fault for delaying the marriage. Tosfos cannot accept such an understanding.  The explanation of the Gemara’s assertion that the Mishna is read “lo Nisu” is that this implies that we are also speaking of when [the bride] is at fault for delaying the marriage. Rav Achai is proving that even when the bride is responsible for delaying the marriage as the result of uncontrollable circumstances, they are entitled to be supported by their future husbands.However, it cannot be said that the use of “lo nisu” implies that it is exclusively speaking of when [the bride] is delaying the marriage, but not of when [the husband] is delaying the marriage.This is to be understood from the fact that [Rav Ashi] says in his rejoinder: actually it is speaking of when [the husband] is at fault for delaying the marriage, if so, why are the words “lo nisu” used? Since in the beginning of the Mishna it speaks of the bride when it says that we give a betulah twelve months to prepare herself for the marriage, and since the beginning of the Mishna is speaking of the bride etc. [the Mishna continues with a phrase that speaks of the bride, but it actually is referring to only when the husbands are causing the delay of the marriage]. If the words “lo nisu” cannot be explained as referring to when the men are at fault. Rav Ashi’s explanation is untenable, for because of the reason offered by Rav Ashi that since the Mishna began speaking about the bride, it continues to speak of the bride, we are not to teach a sentence that is essentially an error in the end of the Mishna. It must be that the words “lo nisu” can also refer to when the men are at fault.1<i class="footnote">The words לא נישאו actually mean – they were not married. This can be as a result of the husband’s or the wife’s extenuating circumstances. Since the Mishna specifically uses a verb that refers to the woman’s part, it seems to be hinting that they did not get married because the woman was not ready. However, the words per se can also be speaking of when they did not marry because the husband was not ready.</i>
  
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  [If] he died, [that] is when it is not a bill of divorce. The Mishna in Gittin 76b speaks of when a person gave his wife a divorce document and said: If I do not return before twelve months go by the divorce should be effective. The validity of the divorce is dependent on his not returning before twelve months.There are three possibilities that we will consider:A) He did not return because he did not care to. In this case the divorce is definitely valid and she is free to marry whomever she pleases.B) He wanted to return but he did not do so because of unavoidable circumstances. We will again consider two possibilities:1) He died. This is the ultimate in unavoidable circumstances. The Mishna rules that the divorce is not valid and if he died childless, she is bound to her brother-in-law and he must either marry her or release her by chalitzoh. See Devarim 25, 7-10)2) He was ill and unable to come. This also qualifies as an unavoidable circumstance.What is the Mishna in Gittin 76b teaching us about this case (B2)? It seems that since the Mishna speaks of one who does not come because he died, that it is only then that the divorce is invalid, but when the husband does not come because of illness, even though it is definitely an unavoidable circumstance the divorce is valid. Otherwise, the Mishna would tell us that the divorce is invalid even when the husband did not come because of illness. This proves Rava’s contention that even if the reason the husband does not return within twelve months was beyond his control, the divorce is valid.But if the Mishna is in fact ruling that the divorce is valid when the husband did not return due to illness and we are not concerned that the reason for his not returning was due to unavoidable circumstances, why is the divorce invalid when he dies? Ultimately the condition of the divorce was fulfilled; he did not return.Tosfos explains the reason that the divorce is invalid when he dies:  That is because there is no divorcing after the death of the husband. The effective date of the divorce was twelve months after the document was written, although we are not concerned about the unavoidable circumstances that caused him not to return, there is no husband alive at the time the divorce is to be effective. A dead person cannot divorce his wife. If her husband died childless, she is bound to her brother-in-law because there never was a divorce.This ruling that if he died the divorce is invalid implies: that if [the husband] did not return because he was ill, the divorce is valid, even though illness certainly qualifies as an unavoidable circumstance that prevented him from returning. We see that even though his return was prevented by unavoidable circumstances, the divorce is valid.For if when the husband did not return because he was ill, it is also not a valid divorce, because we consider the illness as an unavoidable circumstance and he is not held accountable for not returning,  and the reason that it is not a valid divorce here, when the husband died, is because the death is an unavoidable circumstance when one does not return because of unavoidable circumstances the divorce is invalid, if so, the Mishna inform us that when [the husband] became ill, which is a less drastic unavoidable circumstance, the divorce is invalid and certainly by kal v’chomer we would infer that when he died which is a more drastic unavoidable circumstance the divorce is invalid. Since the Mishna does speak about a husband who dies, we can deduce that the Mishna is teaching us that if he became ill and did not return before twelve months the divorce is valid. This proves that Rava is correct and we are not concerned that the reason he did not return was due to unavoidable circumstances.At this point in the dialogue the Gemara never considered that it is possible to hold that when a husband does not return because he is ill the divorce would be invalid and when he does not return due to death the divorce might be valid. If the divorce is invalidated by the less dramatic unavoidable circumstance such as illness, it is certainly invalidated by a more dramatic unavoidable circumstance such as death.  For now, at this point in the dialogue, [the Gemara] still did not entertain the idea that it could be said that when a husband dies it is more likely that the divorce should be effective because he is content  that the divorce should be valid so that [his wife] should not fall before the yavam.1<i class="footnote">See Artscroll 2b note 28.</i> Presumably, the reason that he gave her the divorce may be so that she should not be bound to her brother-in-law if he dies. It is specifically because of the possibility of his death that he wants her to be divorced, but if he survives he wants her to be his wife and does not want the divorce to be valid if he is unable to return because of some other unavoidable circumstance.
  
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  And perhaps, actually I will say to you [that if] he falls ill it is also not a bill of divorce. In the previous Tosfos we learned that the Gemara is attempting to prove Rava’s contention that a divorce cannot be invalidated by a claim that the husband did not return because of an unavoidable circumstance, from the fact that the Mishna in Gittin 76b says that the divorce is ineffective only when the husband did not return because he died. We are to deduce from the Mishna that if he did not return because of illness, even though that also qualifies as an unavoidable circumstance, the divorce is valid.The Gemara now rejects this proof by saying that actually the divorce would also be invalidated if the husband did not return due to illness, and the claim of an unavoidable circumstance is sufficient reason to invalidate a divorce, however the Mishna spoke of when the husband died, because it wants to teach another halachic principle: That one cannot divorce after his death. Rashi explains: That the Mishna wants to teach us that even when there is no condition in the divorce document and the husband specifically said that he wants the divorce to be effective only after his death, it is invalid. The Gemara proceeds to reject this proposal because the Mishna has already taught us this lesson.Tosfos wonders how the Gemara could have possibly entertained the idea that we can see from this ruling of the Mishna that a divorce is ineffective after death. The case we are discussing in the Mishna is when the husband gave the divorce with the condition that he does not return before twelve months. He was detained by the most unavoidable circumstance, his death. Perhaps that is the reason that the divorce is ineffective not because one cannot divorce after death? (See Maharsho).Tosfos will now explain how we can see in this ruling of the MishnaA) that one can claim: I did not return because of unavoidable circumstances, andB) That a divorce that is to be effective after one’s death is invalid.The system Tosfos uses to arrive at this conclusion is to show that the Tano of the Mishna chose the case that he used specifically to bring out both points.The Gemara counters that the Mishna could actually hold that when the husband does not return because of illness, the divorce is invalidated, and the claim that I did not return because of unavoidable circumstances is an acceptable claim and his wife is not divorced.But why does the Mishna speak of when the husband died, it could have taught us this principle by speaking of when the husband did not return because of illness? And that which [the Gemara] said – [the Mishna] should have taught that the divorce is invalid when he did not return due to illness and I would conclude that certainly when he dies which is a more drastic unavoidable circumstance, that the divorce is invalid. The reason that [the Mishna] taught about when [the husband] died, is because [the Mishna] is also informing us that divorce is ineffective after death.But how can we possibly say that the Mishna is teaching us that a divorce after death is ineffective, the reason the divorce is invalid in the case of the Mishna might be because the husband was prevented from returning by the most unavoidable circumstance – his death? Perhaps if he was able to return and did not do so of his own volition, the divorce would be effective even if it was to go into effect after his death? And [the Mishna] comes to inform us of both principles:A) That there is legitimacy to the claim “I was prevented from returning by an unavoidable circumstance” and the divorce is invalidated.B) And that a divorce after death is ineffective.Tosfos will now analyze the case used by the Mishna to teach us of both principles. It is precisely the ambiguity of the case that would convince us of the Mishna’s message. For if [the Mishna] only comes to inform us that there is legitimacy to the claim “I was prevented from returning by an unavoidable circumstance”, which is principle A), but he does not agree with principle B) and a divorce is effective even after the death of the husband, [the Mishna] should have spoken of [a husband] who became ill and was thus prevented from returning. The divorce would be valid because his claim that he was prevented by an unavoidable circumstance is legitimate. That is an adequate illustration of the principal that there is legitimacy to a claim that I was prevented by an unavoidable circumstance. Why did he speak about when the husband died? That must be to also teach us that a divorce after death is ineffective. And if he only wanted to inform us that divorce after death is ineffective, [the Mishna] should not have spoken about one who says: This is your divorce document if I do not return etc. wherein he makes a condition, rather, [the Mishna] should have spoken of when the husband said: This is your divorce to be effective after my death. This case would have illustrated his position that a divorce is ineffective after death. Why did he speak of when there was a condition? He wants to teach us that one can claim that I was prevented by an unavoidable circumstance.Thus according to Tosfos the Gemara at this point in its dialogue is saying that both principles,A) That there is legitimacy to the claim that I was prevented from returning by an unavoidable circumstance, andB) A divorce after death is ineffective, could be derived from the Mishna.
  
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  This is your bill of divorce if I die from this illness; this is for after [I] die. The Gemara quotes an earlier Mishna in Gittin 72a to show that the Mishna has already established the principle that there is no divorce after death. The Mishna there speaks of three cases:A) This is your divorce if I die.B) This is your divorce when this sickness ends (which is when he dies).C) This is your divorce (to be effective) after my death.Tosfos points out that the underlying reason for the invalidity of all three cases is actually, the last case: This is your divorce after my death. The previous two cases are simply different ways of expressing that the divorce should be effective after death. This last case: This is your divorce after death is the underlying reason for all of the cases mentioned in the Mishna.Since this explanation that the third case is the explanation of the previous two, seems to be a bit out of the ordinary, Tosfos needs to find a similar situation elsewhere.The Gemara in Gittin 52a quotes a Braiso that lists a group of people that cannot designate t’rumoh for others: The Braiso there also follows the same pattern. Such as: the Braiso that lists those who cannot designate t’rumoh and says: You may designate your own t’rumoh but your supervisor may not designate t’rumoh for you. You may designate your own t’rumoh but your partners may not designate t’rumoh for you. You may designate your own t’rumoh but your sharecroppers may not designate t’rumoh for you, and not anybody who is designating t’rumoh for produce that does not belong to him. (Gittin 52a). For in that Braiso as well the reason for all of the cases is because the one designating the T’rumoh is designating t’rumoh for produce that is not his. We see that this system of listing a series of rulings with the last ruling being the reason for the entire list is acceptable.Tosfos now wonders why the Mishna on 72a which was quoted to prove that there is no divorcing after death is needed at all. The principle that one cannot divorce after death has already been stated in an earlier Mishna on 13a. If you ask: That very Mishna on 72a, why is it needed? But the Mishna clearly teaches in the first Perek of Gittin (13a) that one cannot divorce after death. As we are taught in the Mishna: One who says: Give this divorce document to my wife, if he dies they should not give [the divorced] after his death. It is clear that handing over a divorce after the husband’s death is ineffective and if he dies childless she is bound to the yovom.Tosfos here does not offer an answer: And in the first Perek of Gittin (13a, תוס' ד"ה לא) we have explained.1<i class="footnote">Tosfos there says that each of the two Mishnayos is teaching a particular novelty in the ruling of – there is no divorcing after death. The Mishna on 13a is teaching that even if he appointed an agent to present the divorce after his death it is ineffective. The Mishna on 72a is teaching that even when the divorce was already in her possession while her husband was still alive, the divorce is ineffective.</i>
  
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  Perhaps [it was necessary to mention the case of death] to exclude that which our Rabbis [said]. The Gemara suggested that although the principle that one cannot divorce after death is clearly stated in the Mishna on 72a, the Mishna on 76b is teaching us that when one gives a divorce with the condition that it should be effective if he does not return in twelve months, if he dies the divorce is invalid and we do not say that the date in the document was an indication that it should be effective retroactively. This is in opposition to the opinion of ‘our teachers’ who follow the opinion of R’ Yosee and hold that the divorce is effective retroactively in this case.As the Gemara explains, R’ Yosee holds that the date of the document is an indication that it was meant to be effective as of that date, not later when the twelve month period passed. If so, this is not a case of ‘divorcing after death’, because when the condition if fulfilled the divorce is retroactively effective when the husband was alive.Tosfos assumes that when one dates a divorce document and then says: the divorce should be effective after my death, R’ Yosee will also hold that the divorce is effective retroactively.1<i class="footnote">See Maharsho, Maharam Schiff and שיטה מקובצת. Maharam Schiff and שיטה מקובצת say that Rashi disagrees with Tosfos assumption that when one dates a divorce document and then writes “this should be your divorce after my death” that according to R’ Yosee the concept of the date is an indication that he wants the divorce to be effective retroactively applies. When one dates a divorce document, he does so to fulfill the Rabbinical requirement that a divorce must be dated. The date per se is no indication that he wants the divorce to be effective retroactively. It is only when he dates a divorce document and then writes that it should be effective if he does not return before twelve months pass, that we say that the present date is an indication that he wants it to be effective retroactively. He had the option of post dating the divorce and fulfilling the requirement of dating with the post date. Why did he write the present date at all? He wants the divorce to be effective as of the present date. It is only from the end of the Mishna in Gittin 76b that we see that the author of the Mishna does not subscribe to the view of ‘our teachers’ who hold that the date is an indication that he wants the divorce to be effective retroactively.</i> If so, why is the fact that the author of our Mishna does not agree with ‘our teachers’ evident only from the end of the Mishna on Gittin 76b, it should also be evident from the beginning of the Mishna that it was not meant to be effective retroactively? Tosfos must explain that the date in that Mishna on 72a is not a standard date and therefore the concept that dating a document is an indication that it was meant to be effective as of that date is not applicable.But from that case in the beginning of the Mishna in Gittin 72a, we cannot derive that the ruling of the Mishna is to the exclusion of ‘our teachers’ who hold that the date proves that it was meant to be effective retroactively, for the beginning of the Mishna on 72a can be interpreted as speaking of when there is no date written in the document. Since there is no date, even ‘our teachers’ will hold that it was not meant to be effective retroactively. The effective date will then be ‘after my death’ and the divorce is void because there is no divorce after death according.But how can we possibly say that the beginning of the Mishna is speaking of when there was no date in the divorce document? And that which [the Mishna] says (Gittin 86a): Three Gittin are invalid and one [of the three] is when it has no date. It follows that any divorce that is not dated is void because it has no date, whereas the Mishna on 72a according to Tosfos interpretation, would be saying that even when it has no date, it is void because it was meant to be effective after death and not because it had no date.Tosfos demonstrates that there is a practical difference between when the divorce is invalid because it has no date or it was made effective posthumously. But [the Mishna] says, if [the wife] already married with the undated divorce, the child born is kosher and not illegitimate. De facto the divorce in the beginning of the Mishna is valid even though it was undated. Since it was undated we cannot apply the concept of the date proves that it was meant to be effective retroactively,and because of the rule that there is no divorce after death, [the Mishna] here is teaching that [the husband] did not say anything, i.e. his divorce is ineffective, and even if she already married any child born from that second marriage is illegitimate.We now have an explanation of the beginning of the Mishna on 72a that does not contradict the opinion of ‘our teachers’. It is only from the end of the Mishna on 76b that we can see that the Mishna does not follow the opinion of ‘our teachers’ who hold that the inclusion of a date indicates that the divorce was meant to be effective retroactively.Tosfos now presents two additional explanations of the Mishna on 72a that do not contradict the opinion of ‘our teachers’. Alternatively, we can answer that the Mishna on Gittin 72b is speaking of when [in the divorce document] the sh’meetoh cycle or the year or the month is written as the date. For [the Gemara] says in the second Perek of Gittin (17b) that any of these are satisfactory for the requirement of a date, but such a date is not an indication that this date is the effective date [of the divorce]. Alternatively, we can answer that the Mishna on Gittin 72a is speaking of when the divorce document was post dated. Post dating also satisfies the Rabbinical requirement of a date, but that is no indication that the divorce should be effective retroactively.
  
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  Perhaps [the divorce takes effect] specifically [in the case where] he died, [because] he is not amenable [to have his wife] happen before [her] <i>yovom</i>. The Gemara has now introduced a new thought into the dynamics of divorcing with a condition. It may be that if one does not return before twelve month because of extenuating circumstance such as being ill, the divorce is invalid. However, if the reason he does not return is because he died, we say that if he is childless, he especially wanted the divorce to be effective so that his wife would not have to go through the process of Yibum. Tosfos quotes a Gemara in Gittin 73a seems to contradict this idea.The Gemara in Gittin 73a is dealing with a situation fairly similar to our Gemara. A person who is quite ill gives his wife a divorce document and says: This is your divorce if I die do not recover from this sickness. Eventually, his house caves in or he is bitten by a snake and dies. The Gemara rules that the divorce is invalid, because he did not anticipate that he would die in such an unusual manner.If you ask: In Perek Mee She’achozo (Gittin 73a) the Gemara says: That this question was submitted to the Sages of Eretz Yisro’ail and they responded: if he was eaten by a lion, we do not have a tradition. The explanation: We do not have a tradition that it is a valid divorce.1<i class="footnote">See Shulchan Aruch Even Ho’ezer 145, 6, where he rules that in this case it is a doubtful divorce. It seems that the answer of the Sages of Eretz Yisroell was as we explained that they had no tradition in this matter and were therefore in doubt.</i> But why is it not a valid divorce, he is certainly discontent that she might fall before his brother the yovom? When he gives a divorce in this situation it is because he wants to free her from dealing with his brother, it is a fair assumption that he does in fact want her to be divorced even if he does not die from his sickness, but from a falling house or being mauled by a lion.Tosfos must say that it is of course a fair assumption that he would want her to be divorced in any case, however that assumption alone is insufficient. For the divorce to be effective two components are necessary:A) We must understand that he wants her to be divorced.B) We must be convinced that he actively considered the possibility that he might die in this manner. If he never considered the possibility that he might die in this manner, we cannot say that he actively wanted her to be divorced if this should happen.The divorce is effective only if he thought about the possibility that he might die in this manner even if he did not specifically mention it. We then say that he definitely wanted her to be divorced if this should happen. But if we are convinced that he never thought of the possibility that he would die by the hands of a lion or in a collapsing house, the divorce is invalid even though we know that he would want it to be effective. He did not actively intend that she should be divorced if he dies in a house collapse, because he never considered that possibility.  We can answer: That when we are dealing with unavoidable circumstances that are extremely extraordinary, such as being eaten by a lion or dying in a collapsing house, it never entered [the husband’s] mind that something like this may happen so that he should actively want that it should be an effective divorce. Even though component A) is fulfilled, component B) is unfulfilled and the divorce is invalid.
  
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  And [the wife] thinks [that he was detained] unavoidably. See Artscroll notes 1 and 2. The term צנועות implies that she is legally permitted to marry, but due to her extreme modesty and piety she will refrain from marrying. Tosfos will explain why she is legally allowed to marry and why she might refrain from doing that which is permissible by law. Conversely, Tosfos understands that the term פרוצות implies that she is legally not allowed to marry, but she will do so anyway. Tosfos will also examine the case of the “brazen” women, in view of his explanation of the “modest” women.Let us assume that a husband gave his wife a divorce with the stipulation that it should be effective only if he does not return within twelve months. Twelve months go by and he has not returned. Is the divorce legally valid or do we need to be concerned that he wanted to return but was constrained by unavoidable circumstances such as illness etc.And by law, when a husband does not return within twelve months, we need not be concerned that perhaps he was constrained by unavoidable circumstances, because the majority of men who do not return at the set date are not constrained and we may assume that this husband is of the majority who voluntarily chose not to return and it is perfectly legal for her to marry. And it is for this [reason] that [the Gemara] calls them “modest” women because they are being stringent upon themselves, even though by law, they may marry.But if Tosfos holds that when it is unknown whether the husbands did not return out of their free will or because they were constrained, they are legally allowed to marry, why are those who do marry referred to as “brazen”? They are simply doing what is perfectly legal.1<i class="footnote">See שיטה מקובצת who quotes רא"ה who disagrees with Tosfos about the special circumstances concerning the “brazen women”. רא"ה holds that the case of the brazen women is the same as the case of the “modest women”. It is where the wife may legally assume based on the majority, that the husband who did not return was not constrained. However the Rabonon were concerned that the minority who were constrained may someday come back and inform us that they were constrained. Although their wives had the right to assume they were not constrained, if in fact they were constrained, the divorce was invalid and the issues of their subsequent marriages are mamzerim. The Rabonon therefore legislated that even if they were constrained, the divorce is valid. These women are referred to as “brazen” only in comparison to their modest sisters, but they acted within their legal rights. There are those who say that Rashi is of the same opinion as רא"ה.</i> Tosfos prefers to say that the concern about the brazen women is speaking of different circumstances.Obviously, the circumstances surrounding the “brazen” women must be somewhat different. Theirs must be a situation where legally they are not allowed to marry and we are concerned that they might rationalize and transgress by marrying anyway. And in regard to the “brazen [women]” we do not have the text – and she will think that [her husband] was not constrained and she is therefore permitted to marry, because in ordinary circumstances she would be perfectly correct in making that assumption, Rather, the correct text is and she will consciously say that he was not constrained even though she knows that it is untrue.We must be speaking of a situation where there is a legal basis to be concerned about the possibility that he was constrained and she is violating that requirement. Tosfos suggests two possibilities:A) The explanation of this text is: even when there will be reports that he was constrained due to illness, and she would legally be bound to investigate these reports before marrying, but she will say that he was not constrained and that she is permitted to marry, despite the reports that her husband was ill and could not return because of his illness. This is definitely illegal and the Sages were concerned that “brazen women” might rationalize their illegal behavior.2<i class="footnote">See Ritvo who explains why these women are allowed to marry in the face of reports that their husband did not return because he was constrained.</i>B) Or possibly, we are concerned that even if she herself knows that he was constrained and others are not aware that her husband was constrained, she will say that he was not constrained and she is allowed to marry. This is certainly illegal and only brazen women will behave this way.According to Tosfos explanation when modest women will legally be allowed to marry and they might refrain from doing so because of their piety, the Sages legislate that they are divorced even if there were extenuating circumstance preventing the husband from returning.Let us consider a woman whose husband gave her a divorce with the proviso that it is effective only if he does not return within twelve months. Tosfos said that if he does not return we may assume that he consciously decided not to return. We need not consider the possibility that he was constrained. But his modest wife may refrain from marrying because of the possibility that he died in which case she would not be allowed to marry, because there is no divorcing after death.We must now wonder why the same does not apply in the Mishna on 76b when the husband does not return because he died. The Sages should legislate that even if he dies she is divorced, because otherwise his modest wife will never feel comfortable enough to remarry. If you ask: When a husband dies within twelve months after giving his wife a divorce with the condition that it is effective only if he does not return within twelve months, his wife should also be divorced, for this reason. For sometimes he will not die and the divorce is legally effective and she will assume because of her piety that he died and she will sit unmarried as an agunoh and wait till the issue is clarified, which may never happen? One can answer: That when one dies there are public reports and there is no concern that his wife would assume that he may have died when there were no such reports. It is therefore not necessary to legislate that even when he actually did die that she should be permitted to remarry. 
  
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  [He] betroths [her contingent] upon the agreement of the Sages. The Gemara says that when one betroths a woman, he does so with the implied condition that the Rabonon agree to his acquiring of this woman. He is giving them the right to annul this marriage if they see fit to do so.1<i class="footnote">See Rashi who says that the basis of the Rabonon’s right to control Kiddushin is the husband’s voluntary submission of that right when he betroths his wife. We will see later in תוס' ד"ה תינח that there is an alternative approach.</i>It is for this reason that we say at the time of betrothal – in accordance with the laws of Moshe and Yisro’ail. The laws of Moshe refer to the laws of the Torah and the laws of Yisro’ail refer to the Rabbinical legislated laws.
  The Sages invalidated his betrothal. At the beginning of Perek HaSholai’ach (Gittin 33a) I have explained this issue.
  
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  [That] works out well [if] he betrothed [her] with money. See Artscroll note 8. According to Rashi, Ravina’s query is not questioning the authority of the Rabonon to undo the Kiddushin; rather, he is concerned about how the Rabonon will deal with the act of cohabitation. Presumably, the Rabonon would not want to reduce what was an act of cohabitation for the sake of Kiddushin to a promiscuous act. Ultimately, the Gemara retracts and concludes that the act of cohabitation does in fact retroactively become a promiscuous act. See Artscroll note 9.Tosfos seems to understand Ravina’s question as an attack on the authority of the Rabonon to undo the Kiddushin when it was performed by an act of cohabitation. But why should the act of cohabitation be less susceptible to the control of the Rabonon than betrothing with money or a ring? At this point in the Gemara according to Tosfos, the rule that one betroths according to the mindset of the Rabonon is not based on one’s voluntary wish to do so, but on the authority of the Rabonon to govern the affairs of the individual. But what is the source of this power? Tosfos explains: For the rendering of one’s possessions as ownerless by the courts does make them ownerless. The courts have the ultimate control over anyone’s property. They can render those assets ownerless and anything that he attempts to accomplish by using those assets is null and void because the Rabonon have rendered those assets ownerless. He cannot acquire a wife if the Rabonon decide to render his assets as ownerless. The Rabonon can thus say that if one day he will give his wife a conditional divorce, even if the reason that he did not fulfill the condition was because he was constrained, we are retroactively rendering the ring that he used to acquire his wife as ownerless. And as a result of the Rabonon rendering the ring he used to acquire her as ownerless, automatically, all acts of cohabitation with his wife will have been promiscuous, because retroactively, she was never married to him.We have discovered the source of the Rabonon’s power to govern the validity of one’s Kiddushin when money or a ring is used to affect the Kiddushin. However, if he acquired his wife by cohabitation, what can be said? How can [the Rabonon] extricate a cohabitation of Kiddushin? What is the source of their authority to undo this act of Kiddushin?1<i class="footnote">Tosfos seems to be saying that we do not find an independent source for the authority to render the Kiddushin of cohabitation as invalid. It is only according to Rav Chisdo who holds that the Rabonon can arbitrarily change any legal status when they feel it is necessary to do so, that the Gemara ultimately explains that the Rabonon will do this even if the act of cohabitation must be rendered a promiscuous act. See Ramban however who says that Rav Ashi is answering that the power to change the status of Kiddushin is based on one’s voluntary submission to the will of the Rabonon as is indicated when one says: I am betrothing you according to the laws of Moshe and Yisroel. Perhaps Tosfos feels that when the Gemara ultimately says: they rendered his act of cohabitation a promiscuous act, without informing us of the source of their authority, the Gemara is saying that we hold like Rav Chisdo who says that the Rabonon can change any legal status when there is a need to do so. It is not dependent on any other source of authority as Tosfos initially proposed that the power to extricate the Kiddushin of currency is predicated on the Rabonon’s power to render one’s possessions ownerless or as Ramban explains Rav Ashi’s position. Albeit, in the previous Tosfos ד"ה אדעתא Tosfos does say that it is our custom to say at the time of Kiddushin that it is in accordance with the laws of Moshe and Yisroel, this may not necessarily mean that we are voluntarily submitting to the will of the Rabonon. It may mean that we are simply stating a fact that the Kiddushin is in accordance with the laws of Yisroel. This may be because we have no choice in the matter according to Rav Chisdo. See Tosfos in Bava Basro 48b, who does in fact say that the Gemara there when asking this question is asking it according to Rav Chisdo.</i>Tosfos now introduces a Gemara in Yevamot 87b, where Rav Chisdo says that the Rabonon do have the ultimate authority to change any legal status when they feel it is necessary to do so. For example: The Gemara there quotes a Mishna that says: if one designated produce which is tomay as terumah for produce which is tahor, he did not accomplish anything, i.e. the terumah that he separated is invalid.Rav Chisdo says that the Mishna means that even the produce that was designated as terumah is no longer terumah and may be mixed together with other produce that has not yet been tithed and when it is eventually re - tithed, it will be permitted to eat that produce which was initially designated as terumah as regular chulin produce. The Gemara there says that Rav Chisdo holds that the Rabonon have the authority to undo the designation of the terumah when they feel it is necessary.Tosfos holds that Ravina’s question here does not contradict Rav Chisdo’s expressly stated opinion that the Rabonon do have the authority to change legalities as they deem necessary. And even according to [Rav Chisdo] who says in Ho’Eeshah Rabah (Yevamot 89b) that the Sages do have the authority to undo [legal statuses] from the Torah, and they can render that which is by Torah law legally terumah as un-tithed, so too, they can undo the status of a married woman and render her unmarried, that is when it is a situation where there is no transgression of Torah law by changing the status,2<i class="footnote">See מהרש'ל who raises the question that undoing the status of the terumah will in fact involve a transgression. A non – Kohain will be allowed to eat that which was terumah by Torah law because of this change of status. He answers that the initial change of status renders the terumah as un-tithed produce, which is prohibited even to Kohanim. It is only eventually when the produce is re-tithed that what was initially terumah will be permitted for a non-Kohain. This is similar to the case that Tosfos spoke of earlier that when the Kiddushin ring is rendered ownerless the subsequent acts of cohabitation then become promiscuous acts, but the Gemara is not concerned with that which is an outgrowth of their changing of the status. So too, initially when they change the status of the terumah, there is no transgression because it remains prohibited. Eventually, when it is re-tithed the former terumah will be permitted for non-Kohanim. That change is acceptable.</i> as in that case in Ho’Eeshah Rabah, where the designated terumah reverted to its un-tithed status. There is no transgression of Torah law when this change of status takes place, ut when there is a transgression when that status is changed, for she was to be acquired by cohabitation, which is a permissible act of cohabitation and if we change the status of that cohabitation, it will of necessity be a promiscuous act, what can be said? We do not find that the Rabonon change a legal status in this type of situation.And the Gemara answers: even so, the Rabonon rendered3<i class="footnote">See note 1.</i> his cohabitation of Kiddushin a promiscuous cohabitation and there is no betrothal.
  
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  Some say [that] Rava said: the same is true with regard to the matter of bills of divorce. In this second version of Rava’s opinion, he holds that when a husband does not return because of extenuating circumstances, the divorce is invalid.Rabbeinu Chananel ruled in accordance with the first version of Rava that there is no legitimacy to the claim of constraint when dealing with divorce. And he cites proof from the fact that the anonymous Gemara1<i class="footnote">When the Gemara assumes a position in an issue that is debated elsewhere, without mentioning that this matter is the subject of a dispute, it is an indication that this position is accepted as halacha.</i> says in the beginning of HaSholai’ach (Gitin34a), in regard to that person who betrothed a woman, then handed her a divorce and said: if I do not marry you within thirty days the divorce should be effective etc. [After thirty days he claimed that he tried to arrange the wedding feast but was unable to do so]. The anonymous Gemara analyzes why the divorce might be invalid and says: And if we would want to render the divorce invalid because he was unable to arrange a wedding because of constraint, we rule that there is no legitimacy to the claim of constraint when dealing with divorce. We see that the anonymous Gemara assumes that the established ruling is the first version of Rava who holds that there is no legitimacy to the claim of constraint when dealing with divorce.Tosfos now offers an analysis of why we should rule in favor of the first version of Rava. And so it appears that this is the correct halachic ruling, for according to the alternate version of Rava, that holds the claim of constraint is legitimate even as far as Gittin are concerned, all the sources cited as proof to the first version that holds there is no legitimacy to the claim of constraint in regard to Gitin, are refutations of the second version, and even though the Gemara deflected all these refutations, the answers are awkward and we do not rely on awkward answers when determining the correct halachic ruling.Tosfos has established that the halacha should follow the first version because the anonymous Gemara in Gittin 34a assumes that position. If we find a Gemara elsewhere where it seems that there is legitimacy to the claim of constraint, it is necessarily a contradiction to the halacha. If not for the Gemara in Gittin 34a, when faced with one Gemara that holds like the first version of Rava and another that holds like the second version, we could say that they are each following a different version of Rava and there is no inherent difficulty in the contradiction. But now that Rabbeinu Chananel views the Gemara in Gittin 34a as a halachic ruling in favor of the first version, we cannot tolerate a Gemara that contradicts this ruling. R’I has a difficulty with Rabbeinu Chananel’s ruling, because the Gemara in Perek Mi She’Achazo (Gittin 73a) concludes that no matter whether a husband who is divorcing his wife said: this is your divorce if I die from this illness or if he said this is your divorce if I do not recover from this sickness, and a house collapsed on him or a snake bit him or a lion ate him, the divorce is invalid.Apparently, that Gemara holds that there is legitimacy to the claim of constraint in regard to Gitin. This is clearly a contradiction to Rabbeinu Chananel’s ruling. Here we have a situation where a husband says: If I die from this illness the divorce should be valid. If we rule that when he dies because of a house collapse or being mauled by a lion, the divorce is invalid; his modest wife may never feel comfortable remarrying because she will be concerned that perhaps he died in a house collapse. Even though there certainly is ample reason to say that the husband never thought about the possibility of dying in a house collapse and did not intend that the divorce should be effective under those circumstances, according to Rava we should legislate that even if he does die in a house collapse or is mauled by a lion, that the divorce is effective. Since the Gemara in Gittin 73a clearly rules that if he died in a house collapse, she is not divorced because her husband never thought of that possibility, the Gemara obviously does not hold of Rava’s rule that we must legislate that a woman is permitted to remarry even when the divorce is technically invalid.Tosfos now investigates the possibility that there may be some other reason for the ruling in Gittin 73a that the divorce is invalid, which would not contradict the ruling based on Gittin 34a. The Gemara on 73a is discussing a situation where he mentioned that the divorce should be valid if he dies from his illness or does not recover from it. He then died in a house collapse or by a snake bite. We must be aware that we do believe that the husband never intended that the divorce be effective in this situation because he never anticipated the possibility, but that according to Rava the divorce should be valid in any case because otherwise modest women will refuse to marry even when they are permitted to do so. There are two possible reasons that the divorce might be invalid:A) There is legitimacy to the claim of constraint even as far as Gittin are concerned. We therefore do not rule when the divorce is technically invalid, such as when the husband died in a house collapse, that it should be valid because modest women will refuse to marry even when their husband die from the illness that they were suffering, because of fear that they might have died in an unanticipated manner.B) The divorce was conditional on his dying from this specific illness. Ultimately, this did not happen and that may be ample reason to invalidate the divorce. See Rashi there ד"ה אינו גט.And it cannot be said that there in Gittin 73a it is not because there is legitimacy to the claim of constraint (reason A) that [the Gemara] says that the divorce is invalid. Rather, because no matter whether he said if I die from this illness or he said if I do not recover from this illness, it is to be understood that he must die from this illness. (Reason B). And when the house collapsed on him or a snake bit him, the divorce is invalid, because this does not fulfill his condition that he must die from this illness.2<i class="footnote">See Me’iri here, who does adopt this approach to reconcile the Gemara here with the Gemara in Gittin 73a.</i>Tosfos rejects this explanation of the Gemara in Gittin 73a. For it is clearly evident there in Gittin 73a that the reason for the Gemara’s ruling is because there is legitimacy to the claim of constraint even in regard to Gitin, when the Gemara says in regard to that man who sold land to his associate and [the seller] accepted upon himself that he would be compensate the buyer for any disaster that might come to pass that would affect the buyer’s ability to use the field. [Eventually the local government diverted a river into that field. The buyer claimed that the seller accepted responsibility for any eventuality and must reimburse him for the loss of the field.]Rava said that even though the seller accepted responsibility for any disaster, diverting the river is a disaster that is unlikely to happen, and the seller did not accept responsibility for this type of mishap. And Rava cites proof from this ruling that if one gave his wife a divorce with the condition that he does not recover from this illness and he is eaten by a lion, we do not have a tradition that the divorce is valid. It is clear that Rava is judging the validity of the divorce with the relevant rules of constraint. He is not saying that the divorce is invalid because the husband did not die from the specific illness from which he was suffering. If that was the basis of the Baraisa’s ruling, he could not draw a parallel to the disaster of the diverted river.What emerges from Rava’s ruling is that the issue is whether the husband ever anticipated that he might die in such an unusual way. The answer is a resounding no, and therefore the divorce is invalid. Apparently, in regard to constraint that is unlikely to happen, Rava rules that there is legitimacy to the claim that that the husband was constrained, and that is why when the husband is eaten by a lion the divorce is invalid. We do not legislate that the divorce should be valid because modest women will refuse to marry for fear that their husband’s may have died in an unusual way.And here in Kesubos 2b &amp; 3a Rava himself says in the first version, which is the prime version of Rava’s opinion, that there is no legitimacy to the claim of constraint in matters that pertain to Gitin, even when the constraint is unlikely to happen, as is evident from the flow of the Gemara. The Gemara said earlier that if the unavoidable circumstances are likely to happen, such as when one misses a ferry, all agree that there is no legitimacy to the claim of constraint, because the husband should have clearly stated that if he is delayed because of missing a ferry the divorce is invalid. Rava adds that this is true even for unavoidable circumstances that are unlikely to occur. If so, Rava’s ruling here contradicts his ruling in Gittin 73a.We are now aware of two levels of constraint, those that are fairly likely to happen such as missing a ferry and those that are unlikely to happen such as not being able to return because of illness or death. In order to reconcile the Gemara in Gittin 73a, Tosfos is compelled to say that there is a third level of constraint.Says R’I: There are three categories of constraint:A)For constraint that is extremely unusual, such as the case of Mi She’Achazo (Gittin 73a), where the husband was killed in a house collapse or mauled by a lion, even according to the first version of Rava here in Kesubos, there is legitimacy to the claim of constraint. Since this tragedy was totally unanticipated we cannot say that the husband meant to divorce even in such circumstances.We would still have the option of saying that although the husband never intended to divorce under these highly unlikely circumstances, perhaps we should legislate that the divorce is effective in order to avoid the problems of the “modest” and “brazen” women. Tosfos must explain that the legislation for the benefit of “modest” and “brazen” women is not applicable to these highly unlikely situations.We will first consider the needs of the “modest” woman who might not marry when her husband does not return for fear that perhaps he died in a highly unlikely accident and her divorce is not valid. For it is not possible to institute that the divorce should be valid even when the husband dies in a highly unlikely manner because of “modest” women and because of “brazen” women, because even “modest” women will never consider the possibility that the house collapsed on [her husband] or that he was bitten by a snake since it is extremely unlikely. She will not refrain from marrying because of that possibility and there is no need to legislate that even if it truly does happen she should be divorced.But what about the “brazen” woman who might say that her husband died in an usual manner even though she heard reports that he died in an unusual manner or perhaps even knows that he died in an unusual manner and will try to hide the facts in order to be permitted to marry? And because of a “brazen” woman who might misrepresent the facts of her husband’s death in order to be permitted to marry, there is also no concern that would cause the Rabonon to legislate that she should be divorced even if he died in a highly unlikely situation, since it is unlikely that this unusual death will happen. The decrees of our Rabonon are made to deal with common occurrences, not with highly unusual ones. The general rule is that for a situation which is unlikely to happen, the Rabonon did not institute decrees or legislation.This was the highest level of unlikelihood. There are two others:B)Constraint that is likely to happen such as that incident where the husband was stopped by the river crossing, even according to the alternate version of Rava that holds there is legitimacy to the claim of constraint, in the situation of the missed ferry they also hold that there is no legitimacy to the claim of constraint, because [the husband] should have mentioned that the divorce is conditional on his not missing the ferry, since it is a likely occurrence.The two previously mentioned categories of constraint are the two extremes, the most and the least likely. The third category is somewhere in between the two extremes.C)But constraint that is somewhere between very likely and highly unlikely, is the point that the two versions of Rava argue about. The first version holds that there is no legitimacy to the claim of constraint in these situations and the alternate version holds that there is legitimacy to the claim of constraint in these situations. And the ruling is like the first version of Rava as we have explained.Thus we have no contradiction between Rava in our Gemara in Kesubos who rules that there is no legitimacy to the claim of constraint in a situation that is somewhere between the two extremes and Rava in Gittin 73a who rules that in a highly unlikely situation there is legitimacy to the claim of constraint.
  
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   When courts [were in] regular [session] every day. Rav Shmuel bar Yitzchok says that the ordinance that one must marry a betulah on Wednesday afternoon is in effect only since Ezra instituted that the courts must convene on Mondays and Thursdays. Prior to that, when the courts convened every day, the ordinance for marrying on Wednesday afternoon was not in effect. Rashi when explaining the phrase that “the courts convened every day” says that he means that the court schedule was equal on all days. Rav Shmuel bar Yitzchok does not mean that the courts regularly convened every day.Tosfos will analyze Rav Shmuel bar Yitzchak’s statement and at least in one approach will reach the same conclusion as Rashi. Tosfos will also cite R’I’s opinion on this matter. If you will ask: Since Rav Shmuel bar Yitzchak says that prior to Ezra the courts convened every day, did Ezra institute that the courts should not convene every day but only on Mondays and Thursdays thus reducing the schedule of the courts? A simple reading of the Gemara in Bava Kama 82a seems to say that Ezra improved the court system by making the courts more available to people. A cursory reading of Rav Shmuel bar Yitzchok says that he actually reduced the schedule of the courts.Furthermore, there is another difficulty. [The Gemara] says in Shabbos (129b): Whoever has meritorious fathers may let blood on Mondays and Thursdays. See Rashi there who explains that since both the courts of the higher world and the courts of this lower world are in session, one’s sins are being reviewed. At such a time he should not risk placing himself in a dangerous situation, because he may not have enough merit to warrant being saved from the risks of blood-letting. The phrase “whoever has meritorious fathers” implies that only one who is very sure of his meritorious standing should risk blood-letting on days when the courts are in session.But according to Rav Shmuel bar Yitzchak, prior to Ezra’s legislation the courts convened every day, is it so, that prior to the Ezra’s decree when the courts convened every day, they never let blood at all because blood-letting was always dangerous since the courts convened every day?1<i class="footnote">See Maharam Schiff who suggests that one who lets blood an a day when the courts are in session, when he has the option of letting blood on some other day is stating that he has nothing to fear from the heavenly review of his sins. This haughtiness causes the heavenly court to take a closer look at his standing. However, when one has no option but to let blood on days when the court is in session, because the court is always in session, his behavior is not an indication of his haughtiness, because he has no choice. Thus in pre – Ezra times, it is permitted to let blood even when the courts are in session.</i>Tosfos first solution to this question, by Rabbeinu Tam, seems to agree with Rashi. Says Rabbeinu Tam: That prior to Ezra’s decree they did not regularly convene each day. Rather, when they were needed for a trial they would convene each and every day. And Ezra instituted that they should convene regularly on Mondays and Thursdays and whoever wanted a trial could come and be tried and there was a court waiting for him and he did not need to gather a court. Ezra thus improved the court system by making the judges available at a regular time so that people knew they would always find a court ready to deal with their problems on Mondays and Thursdays.But what about the difficulty that Tosfos raised from the Gemara in Shabbos about blood-letting? And they were allowed to let blood every day before Ezra’s decree, since the courts were not regularly convened each and every day.Tosfos cites another solution by R’I to his original question. R’I answered: That initially prior to Ezra’s decree they only convened regularly in one city,2<i class="footnote">I have explained Tosfos as saying that there was a central city which was the seat of the courts. All citizens of neighboring cities would have to travel to the central city for justice. Ezra improved the system by having the courts in session in all cities on Monday and Thursdays. Ritvo has a slightly different explanation of R’I’s answer. He says that in the pre - Ezra period the courts traveled from city to city and each day they were in a different city so that each city had court sessions once a week. Ezra established that each city should have court session twice a week on Mondays and Thursdays.</i> and Ezra instituted that they should convene in each and every city on Mondays and Thursdays. Thus prior to Ezra’s decree the courts in some cities were available each and every day. Ezra increased the availability of the courts by having them convene in all cities on Mondays and Thursdays. Prior to Ezra’s decree, one could let blood in all the cities where the courts did not regularly convene.
  A woman can be married on all days [of the week]. In the pre – Ezra and post – Ezra periods when there are no regular court sessions on Monday and Thursday, there is no point in marrying a betulah on Wednesday afternoon, because there will be no court waiting for him to file his complaint on Thursday morning. One who has a complaint will have to put together a court as was the case in the pre – Ezra period. There is no advantage of marrying on a specific day of the week. But aren’t there other reasons for marrying on a specific day as is discussed in the Gemara later on 5a?Rashbo has a difficulty: Why is it permitted to marry a betulah on all days of the week?1<i class="footnote">See Shulchan Aruch E.H. 64, 3, where it appears that even nowadays the custom of our Sages is that a widow is married on Thursday.</i> She should be like a widow, and be married on Thursday afternoon, and she will have first relations with her husband that night which is Friday according to the Torah calendar because on Friday a blessing that man should be fruitful and multiply was said to Adam.We can answer: That because of the benefit of a blessing, [the Rabonon] would not establish an ordinance specifying a special day for marrying, as we have explained earlier (2a תוס' ד"ה ותנשא).But why did the Rabonon establish Thursday as the day for marrying widows, if the y do not legislate a specific day in order to access the blessing of that day? And for a widow as well, [the Rabonon] did not establish that she should have first relations on Thursday night, which is Friday according to the Torah calendar, only because of the benefit of the blessing.Rather, because [the Rabonon] were diligent to ensure the happiness of the bride, that [her husband] should rejoice with her for three days, Thursday, Friday and Shabbos as [the Gemara] says later (5a). Since the wedding is on Thursday, he will remain with her on Friday and not go to work the morning after the wedding, because Friday is a short workday anyway. If he married on Sunday, he may set out to work Monday morning and not spend any time with his new wife.But why is a betulah permitted to be married on any day of the week? Shouldn’t we be concerned that her husband will set out to work the morning after the wedding? Whereas for a betulah that reason to marry on Thursday so that he will not leave to work the next morning is irrelevant, for it cannot be said that he might rise early and set out for his trade, because there are seven days of feasting,2<i class="footnote">See Shulchan Aruch E.H. 64, 1, where he rules that bit is prohibited for a husband to work or be involved in business during the seven days of feasting.</i> when the new husband is not permitted to work. Therefore, since all other reasons for marrying on Thursday are irrelevant for a betulah, because of the benefit of the blessing alone, [the Rabonon] would not establish a specific day for marrying. 
  
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  And on Monday one may not marry. The Gemara cites a Braiso that discusses the rules about marrying on Wednesday afternoon and the exceptions to that rule. The Braiso says:A) That during the period of ‘danger’ the people became accustomed to marry on Tuesday afternoon and the Rabonon did not protest.B) The very next sentence in the Braiso is: “and on Monday one should not marry,C) but if because of unavoidable circumstances it is permissible”.This Tosfos will focus on the meaning of the second sentence (B) of the Braiso. Rashi as we will now see, understands that the sentence “and on Mondays etc.”, is a continuation of the previous subject. The Braiso in sentence A) was speaking about marrying on Tuesday because of the danger of marrying on Wednesday. The next sentence “and on Mondays” is a continuation of the same thought. Rashi explained sentence B): Even in times of danger when people marry on Tuesday, one should not marry on Monday, for because of [the danger] involved in marrying on Wednesday we may only rescind the ordinance of the Rabonon for one day and marry on Tuesday but not on Monday.1<i class="footnote">See Rashi ד"ה ובשני לא יכנוס who explains that even though when marrying on Tuesday the groom will not be able to provide a banquet of three days preparation, he should at least provide a banquet of two days preparation. See מאירי and פני יהושע who both quote Yerushalmi that agrees with Rashi’s ruling but not for his reason. Yerushalmi says that even though when one marries Tuesday afternoon he will not be able to file his complaint about his bride not being a betulah to the courts immediately on Thursday morning, it is still required to have him marry at the time closest to Thursday morning. It is more likely that his anger will cool off if he marries on Monday than if he marries on Tuesday.</i>Soon the Gemara will define the difference between ‘danger’ and ‘unavoidable circumstances’ that the Braiso discussed. Initially the Gemara says that ‘danger’ refers to the decree that every betulah married on Wednesday must first have relations with the Hegmon. The Gemara then asks: What are the ‘unavoidable circumstances’ that the Braiso speaks of in sentence C)? It cannot refer to the decree subjecting the betulah to having relations with the Hegmon, because initially we referred to that as ‘danger’ and in the next sentence the Braiso is referring to it as ‘unavoidable circumstances’? The Gemara deduces from this question that ‘danger’ and ‘unavoidable circumstances’ in sentences A) and C) of the Braiso are not one and the same.Now according to Rashi’s explanation that sentence B) beginning with “and on Mondays one should not marry” is a ruling about what one may not do even when there is ‘danger’, there is an even greater difficulty than the different expression used to describe these events. The very ruling of the Braiso is contradictory, because we first say in sentence B) that one may not marry on Monday because of the ‘danger’ and we then say in sentence C) that one may marry on Monday because of the ‘unavoidable circumstances’. If the ‘danger’ and ‘unavoidable circumstances’ are one and the same we have not only a problem of a confusion of terms but a more substantial problem - a contradictory ruling, which should be of greater concern to the Gemara.And this is difficult to R’I: For [the Gemara] says later: What are the ‘unavoidable circumstances’ that the Braiso speaks of in sentence C)? If we should say that it is [‘the danger’] that we spoke of in sentence A), how come there in sentence A) he calls it ‘danger’ etc. [and in sentence C) he refers to them as ‘unavoidable circumstances’]?But why does the Gemara ask only about the confusion of terms? [The Gemara] should have asked the more important question, that there is a contradiction between the beginning of the Braiso (sentence B) and the end of the Braiso (sentence C). For in the beginning (sentence B) [the Braiso] taught: and on Monday he should not marry even in times of ‘danger’, and in Sentence C) the Braiso teaches that one may marry even on Monday during times of ‘unavoidable circumstances’. If ‘danger’ and ‘unavoidable circumstances’ are one and the same there is a conflicting ruling between sentences B) and C).Tosfos will explain that there is not necessarily a contradictory ruling. Ritzvo explains: That it is for this reason that [the Gemara] does not ask [this question], that there is a contradictory ruling between sentences B) and C), because we can explain sentence C) as follows: and if because of ‘unavoidable circumstances’, this means: That if there is ‘danger’ even when marrying on Tuesday, it is permitted to marry her on Monday. Thus there is no conflicting ruling between sentences B) and C), but there definitely is a confusion of terms used to describe the same events.R’I disagrees with Rashi’s explanation that sentence B) in the Braiso is a continuation of the same subject matter as sentence A) and is also speaking of when there was some element of danger. He holds that sentence B) is a continuation of the initial discussion of the Braiso which taught that one must marry a betulah on Wednesday and sentence B) is saying : but not on other days. And it appears to R’I that sentence B) “and one should not marry on Monday” is an independent sentence, and is not speaking of times of ‘danger’. During times of danger there is no limitation to how many days the wedding may be moved. One may marry on any day of the week even if there is imminent ‘danger’ only on Wednesdays.2<i class="footnote">According to Tosfos when there is danger on Wednesday, one may marry on any other day of the week. Tosfos opinion is definitely in opposition to Yerushalmi.</i>Sentence B) is speaking about ordinary times when one is required to marry on Wednesday and it is teaching us: And on Monday one should not bring his wife to the Chuppah during ordinary times and the same is true about Tuesday, or any other day of the week. However, [the Braiso] mentioned Monday, because he wants to teach us that if because of ‘unavoidable circumstances’ he wants to switch the date to Monday, it is permissible to do so.
  
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  A virgin who is married on a Wednesday [is forced to] cohabit [with the governor]. The Gemara is in the process of determining the exact nature of the ‘danger’ that the Baraisa is discussing. First the Gemara considered that we might be discussing a government decree that any betulah who is married on Wednesday would be killed. This was rejected because if that was the case the Rabonon would totally eradicate the Rabbinic ordinance that a betulah must be married on Wednesday. Why would the Romans kill any betulah married on Wednesday? What would they gain from it? Obviously, their goal was to force the Jews to give up their religion.The Gemara then says that the ‘danger’ the Baraisa is discussing is the decree that any betulah married on Wednesday must first cohabit with the governor. This decree was obviously intended to satisfy the lust of the governor. Why was it limited to those who married on Wednesday? Tosfos explains that in fact it was not limited to those who married on Wednesday, as is evident in the Gemara. But why does the Gemara mention that the decree was for those who married on Wednesday?The decree was not specifically for those who married on Wednesday. This can be seen from [the Gemara’s] question later: On Tuesday [the governor] will also come and cohabit with a betulah who is about to be married? For [the governor’s] intention with this decree, was only for his own pleasure. He can satisfy his physical desire on Tuesdays as well.But why did the Gemara mention a betulah who is married on Wednesday as the target of this decree? However, since [the Gemara] earlier specifically mentioned that a betulah who is married on Wednesday will be killed, because there when decreeing that a betulah who marries on Wednesday will be killed, they were particular about the religious significance of a fixed day for marrying and the intent of the decree was in order to cause them to transgress their religion. Since the Gemara mentioned Wednesday when discussing the first decree, it also mentions Wednesday here, when discussing the decree that a betulah who marries must first cohabit with the governor. 
  
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  And let [the Sages] instruct that [in cases of] coercion [it is] permitted. The Gemara refers to the government decree that any betulah marrying on Wednesday must first cohabit with the governor as ‘danger’, which implies that this is a life threatening situation. The Gemara asks: This is rape, why is it called ‘danger’? The Gemara answers: modest women may believe that if they are raped, they are prohibited to remain living with their husbands and will therefore resist the governor and place themselves in mortal danger.Finally the Gemara asks: Let us teach these modest women that if they are raped they are still permitted to remain living with their husbands. They will not resist and not be killed. Why is this situation called ‘danger’?Tosfos analyzes the Gemara’s question. The Gemara is discussing a woman who is a rape victim and saying that she remains permissible to her husband. This may be true after the fact, but isn’t there an obligation not to submit to the rapist? Isn’t this a situation of participating in illicit relations for which she is obligated to give up her life? How can we encourage women to do the exact opposite and submit to the governor – rapist? This is the subject of Tosfos discussion.Tosfos will present to us:A) The Gemara in Sanhedrin that seems to contradict our Gemara.B) Rabbeinu Tam’s solution to this problem.C) Two sources that prove Rabbeinu Tam’s hypotheses is correct.D) Rivom’s refutation of Rabbeinu Tam’s position.E) Three sources that prove Rivom’s position.F) Rivom’s answer to the original contradiction.G) Tosfos raise what appears to be a contradiction to Rivom from the Gemara that speaks about Yael’s heroics.H) An answer to that question.A)If you ask: But [the Gemara] says in Perek Ben Sorer U’moreh (Sanhedrin 74a): For all prohibitions of the Torah, such as eating non-kosher food, when faced with a life threatening situation,1<i class="footnote">This includes two cases:A) When somebody is forcing a Jew to eat pork and threatens to kill him if he resists.B) When one needs the pork for a cure of a life threatening sickness.</i> one may transgress the prohibition and not be killed, except for idolatry, illicit relations and murder. When faced with one of these cardinal sins one must not violate them even upon pain of death. If so, how can we tell a modest woman that she should submit to being raped by the governor?Tosfos must find a reason to distinguish between the general rule requiring that one must choose to be martyred rather than cohabit with a forbidden partner and the case at hand - cohabiting with the idolater - governor. B)Rabbeinu Tam answered: That one is not liable for capital punishment for cohabiting with an idolater, and thus would not have to allow herself to be killed in order to avoid cohabiting with an idolater,C1)for the Merciful One voided [the idolater’s] paternity, his seed is as it were unrelated to the idolater, as it is written (Yechezkel 23, 20): and the seed of horses is their seed.  It is as if a woman is forced to submit to bestiality for which she is not required to allow herself to be killed.Rabbeinu Tam cites another Gemara in Sanhedrin 74b as proof to his conclusion that the seed of an idolater is of no consequence and does not require that one submit to martyrdom in order to avoid illicit relations with an idolater.The Gemara is discussing the situations wherein one is required to give up his life in order to avoid violating a commandment of the Torah.A) When one is forced to violate the three cardinal sins, he must allow himself to be killed rather than violate them.B) If he is forced to violate any commandment in public, he must allow himself to be killed even for transgressions other than the three cardinal sins.The Gemara then asks: But wasn’t the case of Queen Esther one of public knowledge. Jewish people were well aware that she was a Jewess living with an idolater. Why was she allowed to submit to cohabiting with King Achashverosh?A close analysis of the Gemara in Sanhedrin 74b reveals that the Gemara was only asking about how Esther was allowed to submit to Achashverosh since it was publicly known that she was cohabiting with him. The Gemara did not ask this question about the first ruling – that one must allow himself to be killed and not violate the prohibition of illicit relations. Why was Esther’s cohabiting with Achashverosh not a case of illicit relations, which requires allowing oneself to be killed even if the sin is not a matter of public knowledge?C2)And [Rabbeinu Tam] cites proof that cohabitation with an idolater is not considered a violation of the prohibition of illicit relations because [the Gemara] asks in Perek Ben Sorer U’moreh (Sanhedrin 74b): But Esther’s cohabiting with Achashverosh was public knowledge and she should have been required to allow herself to be killed? However [the Gemara] does not ask: But Esther was a case of illicit relations and she should have given her life in order not to avoid violating one of the three cardinal sins?It is to be understood that because of the prohibition of illicit relations, she was not obligated to give up her life. It was only because this relationship was one of public knowledge that the Gemara asked that she should be required to allow herself to be killed. This proves Rabbeinu Tam’s hypotheses that cohabiting with an idolater is not considered a violation of illicit relations. It is however forbidden and she is required to allow herself to be killed if it is a public matter.Rabbeinu Tam ruled in accordance with his conclusion that cohabiting with an idolater has no legal significance insofar as causing a woman to be prohibited to the adulterer. And because of this understanding, that cohabitation with an idolater does not cause a woman to be prohibited to the adulterer, Rabbeinu Tam permitted a Jewish daughter who had converted and cohabited with an idolater, to be retained as a wife by that idolater when [the idolater] converted to Judaism. Generally speaking when a woman commits adultery she is no longer allowed to cohabit with her husband even if he is willing to forgive her and she may also not live with the adulterer. Rabbeinu Tam ruled that the prohibition to the adulterer was not in effect, since at the time of cohabitation he was an idolater.For it is not possible to say that she should be prohibited both to her husband and to the adulterer when she cohabited with an idolater, because cohabiting with an idolater is comparable to cohabitation with an animal. Even though bestiality is certainly prohibited, it is not treated as if one cohabited with a person, as Tosfos will soon quote from a Gemara in Yevamot 59b.D)Rivom disputes Rabbeinu Tam’s hypotheses that cohabitation with an idolater does not cause a prohibition to the husband or to the adulterer. He cites three sources as proof that a woman who cohabits with an idolater is prohibited to her husband. Subsequently, Rivom must explain why the Gemara in Sanhedrin 74b does not ask: how was Esther allowed to violate the prohibition against illicit relations in order to save her life?E1)The first source: And [Rabbeinu Tam’s] explanation does not appeal to Rivom, for a woman does become prohibited to her husband via cohabitation with an idolater, as [the Gemara] says here that we cannot inform women that they are not prohibited to their husband when raped, because there are brazen women who will willingly have relations with the governor and they will be prohibited to their husbands, since they are not rape victims. It is evident that when a woman willingly cohabits with an idolater she is prohibited to her husband. We see that the idolater is not equivalent to an animal in this matter. Rivom holds that just as she is prohibited to her husband she is also prohibited to the adulterer.E2) The second source: And in Perek Ho’Eshoh Shenisarmloh (later 26b) in regard to a woman who was captured by idolaters, [the Gemara] says that if she cohabited with her captors willingly, she is prohibited to her husband. Once again we see that that cohabitation with an idolater prohibits a woman to her husband. By extension Rivom says that she is also prohibited to the adulterer.E3)The third source:  And [the Gemara] also says in Megilah (15a) that Esther said (Esther 4, 16) when she was about to cohabit with Achashverosh willingly, and if I am lost, I am lost. The Gemara understands that up until this time Esther was forced to cohabit with Achashverosh upon pain of death, and thus was not prohibited to her husband. She submitted to him, but never encouraged him to cohabit with her. This time she was asked by Mordechai to cohabit with Achashverosh willingly, in order to gain favor in his eyes and save the Jewish people from annihilation. As a result of this cohabitation she would become prohibited to her husband – Mordechai. She said: As I am lost from my father’s family, I will now be lost from you. Apparently, in regard to her husband, cohabiting with an idolater is not like cohabiting with an animal where she does not become prohibited to her husband, rather when cohabiting with an idolater she is prohibited to her husband. And the same is true that she is prohibited to the adulterer.Even though, there is no promiscuity2<i class="footnote">The Gemara in Yevamot 59b says that when a woman cohabits with an animal she remains permissible to a Kohain, even though a Kohain may not marry a Zonah. Obviously cohabitation with an animal although prohibited is not considered promiscuity.</i> when a woman cohabits with an animal and cohabitation with an animal does not disqualify and prohibit a woman from marrying a Kohain or remaining married to her husband, as [the Gemara] says in Perek Habo al Yevimto (Yevamot 59b). However, cohabitation with an idolater has all the ramifications of any illicit cohabitation. An unmarried woman who cohabits with an idolater may not marry a Kohain and a married woman who willingly cohabited with an idolater is forbidden to her husband.But the Gemara in Yevamot 98a does say that the Merciful One voided the seed of idolaters? And that the Gemara says the Merciful One voided [an idolater’s] seed, that was said as far as [the idolater] not having paternity - his seed is considered like the seed of an animal, as the Gemara there says that even his twin sons, when there is no doubt that they may have physically had different fathers, are not considered brothers because the idolater’s paternity is voided by the Torah.Rivom has presented three sources that show that when a married woman cohabits with an idolater, she is prohibited to her husband. By extension,3<i class="footnote">See פני יהושע who suggests that Rabbeinu Tam may hold that even though cohabitation with an idolater may prohibit a woman to her husband as we see from Rivom’s sources, this does not necessarily prove that she is also prohibited to the adulterer.</i> he argues that she is also prohibited to the idolater – adulterer, thus rejecting Rabbeinu Tam’s solution to the contradiction between our Gemara, which suggests that we tell modest women to submit to the governor in order to save their lives and the Gemara in Sanhedrin 74a which says that one is obligated to sacrifice his or her life in order to avoid committing one of the three cardinal sins. How will Rivom reconcile these conflicting passages of Gemara?F)We can answer: That this is [our Gemara’s] question: Let us announce to [the modest women] that it is permissible for her to submit to rape and she need not sacrifice her life to avoid rape, because a woman is comparable to the soil of the earth,4<i class="footnote">There are two explanations why being passive like the soil of the earth negates the requirement to sacrifice one’s life. Rosh says that the source from which we derive that one is obligated to sacrifice one’s life in order to avoid illicit relations is from the prohibition of murder, where the Sages tell us that one must give up his life and not murder another person, because what makes you conclude that your blood is redder than your fellow’s blood. This logic applies only when you are asked to actively kill someone but not when passively participating in a murder. So too, when actively participating in illicit relations one is obligated to give up his life, but not when being forced to participate in such relations passively. Ritvo says that the reason a woman is not required to sacrifice her life to avoid being raped is because it is ultimately beyond her control. The rapist can overpower her and rape her even if she is willing to be killed. There is therefore no obligation to endanger one’s life to avoid being raped.</i> during cohabitation she is passive, and she is not actively participating in a forbidden relationship.There is a source for the concept of a woman being comparable to the soil of the earth. As [the Gemara] answers in Perek Ben Sorer U’moreh (Sanhedrin 74b), in regard to the question – why didn't Esther give up her live to avoid cohabitation with Achashverosh, after all, it was public knowledge that she was living with him? The Gemara answers: Esther was comparable to the soil of the earth and did not actively participate in the cohabitation. She was therefore not obligated to accept martyrdom to avoid being raped.As we pointed out earlier the Gemara only asks about Esther after stating that when a transgression is public one must give up his life for any transgression. The Gemara does not ask this question when it stated that one must sacrifice his life in order to avoid illicit relations. And the reason that [the Gemara] there does not ask: But Esther was a case of illicit relations? That is because it was plain to [the Gemara] that in regard to the prohibition of illicit relations we can answer that [Esther] is comparable to the soil of the earth and since she is totally passive she need not give up her life to avoid being raped, but as far as the issue of desecration of Hashem’s name when faced with transgressing a commandment in public, it did not appeal to [the Gemara] that the explanation that Esther was passive and comparable to the soil of the earth would be an effective answer. [The Gemara] answers: Esther was comparable to the soil of the earth, she was totally passive and there isn’t even an issue of desecration of Hashem’s name.G)The Gemara in Yevamot 103a is discussing the heroics of Yael who seduced Sisera in order to weaken and then kill him in order to save the Jewish nation from his oppression. The Gemara there poses a question about her behavior and does not answer that it was permissible because she was passive and comparable to the soil of the earth. Tosfos wants to know why the Gemara there does not use this reasoning. And in Perek Mitzvas Chalitzoh (Yevamot 103a) where [the Gemara] asks about Yael: But she derived pleasure from the transgression of cohabiting with Sisera – an idolater? And [the Gemara] answers: all benefit to be had from the wicked, is bad for the righteous, for he cast impurity into her.5<i class="footnote">The Gemara there says that when the snake cohabited with Chava he cast an impurity into her. Yisroel who stood at Mt. Sinai were purified. Idolaters who did not stand at Sinai were not purified. When Sisera – an idolater – cohabited with Yael, he re-introduced impurity into her body.</i> Thus Yael did not derive pleasure from cohabiting with Sisera. And [the Gemara] does not answer that [Yael] was passive and comparable to the soil of the earth.Why doesn't the Gemara in Yevamot 103a use the same answer that it used in Sanhedrin 74b? We must distinguish between the two cases and we will then understand that the Gemara’s question in Yevamot 103a is not the same as in Sanhedrin 74b.H)Because [the Gemara] there in Yevamot 103a is not asking – why didn't she give up her life to avoid illicit relation with Sisera, for he did not want to kill her, on the contrary he needed her to guard him from those who were chasing him. She actually seduced him in order to weaken him so that she could kill him as she eventually did. This was not a situation of rape at all. She actively encouraged him to cohabit with her so that she would be able to kill him. This is not in the category of rape and therefore the logic of being comparable to the soil of the earth does not apply.Rather, this is the explanation of the Gemara’s question in Yevamot 103a: Why does the verse praise her as it is written (Shoftim 5, 24) she is blessed more so than the women in tents, for her contribution to the security of the Jewish nation. And the Gemara expounds this verse in Nozir (23b) as follows: a transgression of a commandment that is done for the sake of Hashem is greater as Yael cohabited with Sisera in order to save Yisroel, than a mitzvah that is not performed for the sake of Hashem, this refers to the matriarchs who cohabited with the patriarchs and also derived physical pleasure.  The Gemara there is saying that Yael who transgressed the Torah by cohabiting with Sisera is greater than the matriarchs in their tents who derived pleasure from the mitzvah of cohabiting with their husbands.And [the Gemara] now asks: That Yael’s cohabitation with Sisera should also be thought of as a transgression not for the sake of Hashem because she derived pleasure from the transgression of cohabiting with Sisera. And [the Gemara] answers that she did not derive pleasure from cohabiting with Sisera because he cast impurity into her. Ultimately, cohabiting with Sisera was not pleasurable for Yael. And she transgressed a commandment for the sake of Hashem because she did not derive pleasure from cohabiting with Sisera, in order to rescue Yisroel from oppression.
  And let [the Sages] instruct that [in cases of] coercion [it is] permitted. The Baraisa says: And from the time of the danger and onward, they customarily married on Tuesday and the Rabonon did not protest this deviation from the rule that a betulah must be married on Wednesday. The Gemara defines this ‘danger’ as the Roman decree that any betulah marrying on Wednesday must first cohabit with the governor.The Gemara then asks: But this is not mortal ‘danger’; it is rape. The Gemara answers: There are modest women who believe that if they submit to the governor they will be prohibited for their husbands and they will resist, which may sometimes, costs them their lives. Finally, the Gemara asks: We should announce to them that if they are rape victims they are permitted to their husbands?Tosfos struggles to understand the Gemara’s question. What exactly does the Gemara mean to ask? There are two possible approaches:A) That the question is one of semantics. Since we can avoid a mortal danger by teaching modest women that if raped they are permitted to their husbands, why does the Baraisa refer to this as a case of mortal danger? We can avoid the danger by informing these modest women of the rule that they are permitted to their husbands. The Gemara does not have any problem with the leniency of marrying on Tuesdays to avoid the rape; it is merely questioning why the issue is referred to as ‘danger’ when the mortal danger can be averted by a simple announcement of the correct Halacha.B) That the question is one of substance. Why should we allow a breach of the rule that a betulah must marry on Wednesdays, when we can avoid any mortal danger by announcing that if they are raped they are permitted to their husbands? Once they are aware that they are permitted to their husbands they will not resist the governor and there is no danger. We should insist on upholding the ordinance of the Rabonon that a betulah must be married on Wednesday despite the discomfort of possibly having to submit to the governor.1<i class="footnote">See שיטה מקובצת who quotes many Rishonim who disagree with this premise. They argue that the Rabonon would certainly allow women to marry on Tuesdays in order to avoid being raped.</i>Tosfos rejects the first approach and argues in favor of the second approach. The solution will depend on proper analysis of the Gemara’s answer to this question. When we understand the answer, we will appreciate what the Gemara was asking. We should not explain that the Gemara is asking as follows: We should announce etc. [that if they are raped they are permitted to their husbands,] so that there will not be any mortal danger, but a rape.Why does [the Gemara] say: And from the decree of ‘danger’ and onward? [The Baraisa] should have said and from the decree of rape and onward they customarily married on Tuesdays. The danger could have been avoided by an announcement that rape victims are permitted to their husbands. This issue is not one of danger at all.The answer to the question: but this is not a case of danger it is a case of rape, should be that it is in fact a case of danger, but is this the Gemara’s answer? For if it was so, that the Gemara is explaining why this decree is called ‘danger’ as opposed to ‘rape’, what is the Gemara’s answering when it says, because of brazen women? Why will there be any danger for the brazen women if we announce that when raped a woman is permitted to her husband. There never was any danger for the brazen women to begin with, for even if we do not announce that when raped a woman is permitted to her husband, [brazen women] do not give up their lives by resisting the efforts of the governor, for it is only about modest women that [the Gemara] says: they will give up their lives, f they believe that they will be prohibited for their husbands. How is there any danger to brazen women if we announce that women who are raped are permitted to their husbands? The Gemara’s question that this is not a case of danger but of rape remains unanswered.Rashi explained that when the Gemara says we cannot make that announcement because of brazen women it does not mean that there will be danger for brazen women. It means that as long as brazen women believe that they are prohibited to their husband as a result of cohabitation with the governor, they submit to him unwillingly. Since they are unhappy about being prohibited to their husbands, even if they do enjoy the attention of the governor, they are permitted to their husbands, because they do not want to cohabit with the governor when it causes the loss of their husbands. However, if they know that they will be permitted to their husbands, they will indeed be pleased with the attention of the governor, because they will not be losing their husbands. This change of perception changes the very same act from rape to willing participation. It is no longer rape, but willing participation and they are forbidden to their husbands. An announcement that when raped, women are permitted to their husbands, will cause that brazen women will become prohibited to their husbands. The announcement which is beneficial for the modest women, because it will save their lives, is at the same time damaging to brazen women, because it will cause them to be prohibited to their husbands. It is for this reason that the Gemara says we cannot make such an announcement.Should we announce that when raped, women are permitted to their husbands? Tosfos holds that if our only choice was whether to make the announcement to save the lives of modest women or not to make the announcement so that brazen women will be permitted to their husbands, there is no question that we would make the announcement. Therefore Tosfos holds that if the Gemara’s question is (A) why is this called ‘danger’ as opposed to rape, the Gemara isn’t answering the question by saying that it is because of the harm to brazen women that we could not make this announcement, for if that was our only choice, we would definitely make the announcement and rescue the modest women. Thus there is no true ‘danger’.However, if the Gemara’s question is one of substance (B) why don't we announce that when raped, women are permitted to their husbands and insist that they continue to marry on Wednesdays even if they will be raped, the Gemara’s answer does make sense. We could save the lives of modest women by making this announcement and insisting that they marry on Wednesdays, but this will be harmful to brazen women who will be prohibited for their husbands. We will therefore not insist that a betulah must be married on Wednesday.Furthermore, if our refusal to announce that when raped women are permitted to their husbands is because of Rashi’s explanation that the Gemara is expressing its concern that when we make an announcement that if a woman is raped she is permitted to her husband, this will cause that brazen women will then be prohibited to their husbands, as explained earlier, would we in fact because of the detriment of brazen women not make the announcement and allow modest women to be killed? Certainly, we would not refrain from making that announcement.Thus, if the question was (A) why do we refer to the situation as one of ‘danger’ and not rape, the Gemara is not answering the question. Rather, this is the explanation of [the Gemara’s] question: And we should announce to them, that when raped, they are permitted to their husbands, And since there will be no danger of modest women resisting at the risk of their lives, why didn't the Rabonon protest when they began marrying on Tuesdays. As long as there will be no mortal danger, we should insist on maintaining the Rabbinic rule that a betulah must be married, even if they will be subject to rape by the governor.The Gemara answers: we cannot announce that when raped, women are permitted to their husbands, because of brazen women who will then want to enjoy the attention of the governor, because they believe that they will not lose their husbands, and will then actually be prohibited to their husbands, therefore [the Rabonon] did not protest when they began marrying on Tuesdays.Alternatively, the Gemara says that we cannot salvage the situation by announcing that women who are raped are permitted to their husbands in order to encourage them not to resist, because of the wives of Kohanim, who are prohibited for their husbands when raped, and they will continue to resist and thus place their lives in danger. Therefore the Rabonon did not protest when they began marrying on Tuesdays. 
  
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  We do not uproot an enactment of the Rabbis on account of a decree. A short review of the Gemara is in order. At the beginning of the current dialogue when considering proposal A), that the decree of the Romans was that a betulah marrying on Wednesday will be killed, the Gemara said that we would entirely rescind the Rabbinic regulation in order to avoid a life threatening situation. The Gemara does not seem to have a problem with the fact that the Rabbinic regulation will no longer be in effect.Whereas, when the Gemara discusses proposal B), the ‘danger’ inherent in the decree that a betulah married on Wednesday must first cohabit with the governor, the Gemara says that we cannot rescind the Rabbinic regulation in the face of a governmental decree. Within a few lines, the Gemara seems to be contradicting itself. What is the difference between these two governmental decrees? Why could the Gemara tolerate rescinding proposal A) but cannot accept rescinding proposal B)?Tosfos explains: When [the Gemara] earlier asked in reference to proposal A) that the ‘danger’ was the government decree that a betulah marring on Wednesday will be killed, let us rescind the regulation that a betulah must marry on Wednesday, [the Gemara] does not answer that we do not rescind a Rabbinic regulation because of a government decree etc. as [the Gemara] answers here when discussing proposal B) that the decree was that a betulah must first cohabit with the governor. That is because when [the Gemara] earlier asked: let us rescind [the Rabbinic regulation] the intent of the question was and let [the Rabonon] set another day for marrying. Since the government’s intention is only to force them to transgress their religion, they will be satisfied that Jews are not marrying on Wednesdays, which was their original marriage day, and  when [the Rabonon] will set another day for marrying, the government will not be troubled since they feel that they were successful in causing them to violate their religion, and this is not in reality rescinding a Rabbinic regulation since there will be one set day for marrying.However, here when discussing proposal B) that the Roman decree is that a betulah marrying on Wednesday must first cohabit with the governor and [the Gemara] asks: let us rescind the Rabbinic decree requiring marriages to take place on Wednesday, the intent is, and there will be no set day for marrying, for if they would set a day for marrying, [the governor] would come and cohabit on that day. As mentioned earlier the governor is concerned only with his personal lust and does not care whether the marriage is on Wednesday or any other day. Thus, there will be no set day for marrying. And it is for this reason that [the Gemara] answers: because of a governmental decree we do not rescind a Rabbinic regulation, and allow a situation where there will be no set day for marrying. We will not insist that they marry on Wednesdays, but we will only allow them to marry on Tuesdays.
  If so, he will also come and cohabit on Tuesday. Whenever the Gemara introduces a question with the words “if so” it indicates that the question is relevant only to the new idea just introduced, but it is not a problem for the original idea. For example in our Gemara we were just introduced to proposal B). When the Gemara now asks: “if so” it indicates that this is not a problem with proposal A). Tosfos will now explain why this question “if so, the governor will come on Tuesdays” is only problematic to proposal B) and not to proposal A).The explanation of the Gemara’s question is as follows: it is perfectly logical if you say as the Gemara initially said, that the decree of the Romans was, that a betulah marrying on Wednesday will be killed, and their intention was only to force the Jews to transgress their religion, [the Romans] would not be troubled if [the Rabonon] set a new date to marry on Tuesdays, because they would feel that they were successful in causing the Jews to violate their religion by forcing them to switch from Wednesday to Tuesday. However, if you say that the decree of the Romans was so that the governor would cohabit with the b’sulos, since their sole intention was their physical pleasure, on Tuesday, [the governor] will also come and cohabit with the b’sulos. There is no benefit to switching from Wednesday to Tuesday.
  
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  And furthermore, there [it says]. The Gemara is telling us a second reason why sentence A) of the Braiso which speaks of ‘danger’ and sentence C) which speaks of extenuating circumstances cannot be referring to the same state of affairs. That is because of a conflicting ruling. Sentence A) speaks of ‘they customarily married on Wednesdays’, while sentence C) says it is permissible. Tosfos explains the difference between these rulings and why they are contradictory: Sentence A) tells us that from the period of ‘danger’ onward, they customarily married on Tuesday.What is the exact meaning of the term ‘customarily’? Tosfos cites a Gemara in Taanis that discusses the various terms used to describe different levels of acceptance of a Halacha. The topic discussed in the Gemara there is about when the priestly blessing is recited on Yom Kipur. R’ Yochanan says that the people customarily follow R’ Mayer who says that the blessing is recited at all prayers, shacharis, musaf, mincha and n’ilah.[The Gemara] says in the last Perek of Taanis (26b): [R’ Yochanan] who says that [the people] customarily followed R’ Mayer, holds that if someone comes and asks us we do not rule that one should follow R’ Mayer, but we do not protest when people act in accordance with R’ Mayer. The same applies to the custom of marrying on Tuesdays. The Rabonon do not protest against the custom, but they would not initially permit it if asked. Whereas, here in sentence C) the ruling is that marrying on Monday, is initially permitted. This is not the same ruling as in sentence A), which proves that the circumstances of sentence A) and sentence C) are not the same.However, Rashi’s explanation who said that the contradiction is as follows: sentence A) is teaching us that it became the custom, which implies that the majority of people behaved this way, and the Rabonon did not protest and allowed them to continue, whereas, here in sentence C) the ruling is, it is permitted implies that it is only permitted for an individual who asks us if he can marry on Monday, but the Rabonon would not allow this to become a common custom, and we do not have the text that it is initially permissible,1<i class="footnote">We cannot say that something is perfectly permissible and at the same time hold that we would not allow it to become a common custom. If it is perfectly permissible without any reservations, why should it not become the common custom?</i> does not sit well.2<i class="footnote">See תוספות הרא"ש and ריטב"א who defend Rashi as follows: We cannot say that the leniency implied by the word מותר is greater than the leniency implied by the word נהגו because ultimately the Gemara says that sentence C) is referring to when an army general is coming to town and will most likely appropriate the wedding banquet for his soldiers. It cannot be that we are more lenient when faced with a general stealing the wedding feast than when we are faced with the possibility of the bride being raped by the governor. Therefore the term נהגו which is used in reference to the decree that the bride will be raped must be more lenient than the term מותר which is used when faced with the general stealing the wedding feast.</i>
  
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  If [the general] comes and passes through, let [them] postpone [the wedding]. The Gemara said that the extenuating circumstances that the Baraisa speaks of in sentence C) is a visit from the local army general who is likely to appropriate the wedding feast for his soldiers. The Gemara asks: if he is coming and will soon leave, let us wait until he leaves. The Gemara responds: We are speaking of when he will remain. The Gemara does not offer a time frame. It simply speaks of the general coming and leaving or coming and remaining, but it does not define the length of time that is considered ‘remaining’ which would allow us to marry on Tuesday instead of Wednesday.Rashi does give us a time frame. Tosfos will quote Rashi, disagree with him and give us his own explanation of the time involved.  Rashi explained: when the Gemara speaks of the general coming and leaving it means that he will leave after Wednesday, and the Gemara is asking: let [the groom] wait until Wednesday of the coming week and marry his wife then? Why are we allowing the couple to violate the rule requiring that marriages take place on Wednesdays?According to Rashi, the Gemara is saying that one would have to postpone the wedding in order to avoid violating the Rabbinic ordinance that a betulah must be married on Wednesdays. The Gemara responds that the general will be staying for some time and postponing the wedding for one week will be insufficient. When the Gemara agrees with the question “let us postpone the wedding till next week” it is a statement that we do have to postpone a wedding in order to fulfill the ruling that a betulah is to be married on Wednesday. However, the Gemara’s answer is problematic. The Gemara answers that he will remain for more than a week. If we do have to postpone a wedding, perhaps we have to postpone it indefinitely. How do we know that if the wedding must be postponed for more than a week, it is permitted to marry on Tuesdays?And R’I has a difficulty with Rashi’s explanation: For if so, that the Gemara agrees that a wedding must be postponed beyond the originally planned Wednesday, what is the Gemara’s answer when it says “no the Baraisa needs to teach us that one may marry on Tuesday when [the general] comes and remains in town for some time”. Still, even if the general will remain for more than one week, let [the couple] wait a month or even two months until [the general] leaves and marry on a Wednesday.If we accept the idea that we must even postpone a wedding in order to marry on Wednesday, how do we know that we are only required to postpone it for one week? Perhaps we must wait indefinitely in order to fulfill the ordinance of the Rabonon to marry on Wednesday? Therefore, it appears to R’I that if [the general] will remain in the town all of Wednesday, [the groom] need not wait till another Wednesday in order to fulfill the Rabbinic requirement to marry on Wednesday, rather he should bring her to the Chuppah on Tuesday.[The Gemara’s] question is as follows: If [the general] will come and leave on Wednesday, [the groom] should wait until he leaves. Why should he be allowed to marry on Tuesday? [The Gemara] answers: it is speaking of when [the general] is coming and will remain for all of Wednesday. We are not required to postpone the wedding beyond the original date at all. If the wedding will have to be postponed because of the appearance of the general we may allow the couple to be married on Monday or Tuesday. 
  Let him, in any case, marry on Tuesday. The Gemara asks: Even if the general is coming on Wednesday, why should we allow the couple to marry on Monday? They should marry on Tuesday. The Gemara responds: That when the general comes on Wednesday his quartermaster usually precedes him on Tuesday and they will appropriate the wedding feast. In order to have the feast we must allow them to marry on Monday.[The Gemara] does not want to say that the reason they are permitted to marry on Monday is because we are speaking of when the general is coming on Tuesday, for if that were so he could bring his bride to the Chuppah on Wednesday.As we have seen in the previous Tosfos, he holds that the general may be staying for only a very short period such as half a day. Thus if the general is coming on Tuesday it is likely that he will be gone by Wednesday.
  His entourage arrives on Tuesday. The Gemara answers: When the general is arriving on Wednesday, his quartermaster precedes him on Tuesday. In order to avoid having the banquet appropriated by the general we must allow the couple to marry on Monday. Ultimately, we permit the marriage to be held two days earlier than usual.We should not be bewildered with the seemingly odd ruling in sentence C) that because of the possible loss of the feast we rescind the regulation of the Rabonon and allow them to marry two days earlier, and because of the ‘danger’ associated with the decree that a betulah who marries on Wednesday must first cohabit with the governor in sentence A), we rescind the regulation of the Rabonon for only one day.1<i class="footnote">See Maharsho. Tosfos argument that we only rescind the regulation for marrying on Wednesday for only one day is problematic. See the first Tosfos on this page 3i, where Tosfos says that according to Rashi we may only marry one day earlier, but according to R’I we may marry even two days earlier. There are those who say that even though this specific question is only a problem according to Rashi, there is a difficulty even according to R’I. For according to Tosfos’ explanation ד"ה ותו 3m, the leniency for sentence C) that it is perfectly permissible which is speaking about the loss of a meal is greater than the leniency of sentence A) that we only allow the custom of marrying on Tuesdays, which is speaking of a possible rape. Thus even according to R’I we must reconcile the incongruity of the two rulings as Tosfos answers here. See Tosfos 3m, note 2.</i> It would seem that we should be more lenient with the decree that might cause mortal danger than for the decree that might cause the loss of the wedding feast.Tosfos explains: For the governor to cohabit with a betulah is common, because he regularly comes to cohabit with women who marry on Wednesday, and if we would rescind the regulation of the Rabonon for two days and allow a betulah to marry on Monday, with the passage of time the regulation that one must marry on Wednesday will eventually2<i class="footnote">Literally: come to be forgotten.</i> be forgotten, but the ‘extenuating circumstances’ of a general coming to town and appropriating the wedding feast is merely an occurrence that happens only occasionally and allowing one to marry even two days earlier will not cause the original regulation that one must marry on Wednesday to be forgotten.
  
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  And [the groom] cohabits [with the bride to fulfill the] mitzva, and [then he] separates [from her]. When the father of the groom or the mother of the bride suddenly passes away on the day before a wedding is scheduled, the corpse is placed in a room and the couple proceeds to the Chuppah. The Chosson then performs the mitzvoh cohabitation and immediately separates from her.In order to understand this Tosfos properly we must be aware of some general principles about the laws of mourning. See Artscroll 3b, notes 31 – 33. When a parent or any of the seven relatives dies, one immediately becomes an onain. This is the period preceding mourning. He may wear shoes and do anything else usually forbidden during the shivah, because the shivah has not yet begun, with the exception of cohabitation. During the period of onain one is exempt and prohibited from performing all positive mitzvot of the Torah. He must involve himself with the needs of the departed.Once the departed is laid to rest, the period of mourning begins. One may not engage in marital relations during the seven days commonly known as shivah.If a close relative dies during one of the holidays the shivah is postponed until after the holiday. The same rule applies when a relative dies during the week following a wedding. It is a personal holiday for the bride and groom and they will postpone their mourning until after their holiday. If the relative of the groom or bride dies during the week before the wedding and the period of mourning has already started when the wedding was to take place, the wedding will be postponed until after the shivah.The situation our Gemara is discussing is one where the mourning has not yet begun because the departed has not yet been buried. Due to the financial loss involved with postponing the wedding, the Rabonon permitted one to start the period of rejoicing for the marriage before the period of mourning. The Gemara says that the bride should be brought to the Chuppah before the burial, thus officially starting the week of rejoicing. When the relative is buried later, which usually ushers in the period of mourning, the personal holiday has already begun and the mourning is postponed until after the holiday of the bride and groom.The Baraisa also says that prior to the funeral the Chosson cohabits with the Kallah and then separates from her. This is a special leniency because of the situation, for usually cohabitation is prohibited during the onain period. Tosfos will examine the exact meaning of these words in the context of how they are analyzed later in the Gemara.Tosfos explains that the mitzvoh cohabitation must take place, before the deceased is buried, but not after the deceased is buried, as [the Gemara] will soon say that although the laws regarding public displays of mourning are not in effect during the week of rejoicing, the prohibition of private matters, i.e. marital relations, is in effect. Hence, if the mitzvah cohabitation was not performed before the burial, it could not be performed after the burial when the laws of mourning for private matters go into effect.The Baraisa later says that after the burial seven days of rejoicing are followed by seven days of mourning and during all those days the Chosson sleeps among men and the Kallah sleeps among ladies. They are not allowed to cohabit after the mitzvoh cohabitation and special arrangements are made to avoid the possibility of a violation.[The Gemara] deduces this from the Baraisa’s teaching: all of those days of rejoicing and mourning, [the Chosson] sleeps among the men etc. [and the Kallah sleeps among the ladies]. This precaution is taken in order to avoid a possible violation of the ban on cohabitation during this period. In any case we see that even during the week of rejoicing when public displays of mourning are suspended, cohabitation is forbidden.Tosfos will now scrutinize the sentence we are presently discussing “and he performs the mitzvoh cohabitation and separates” and see why a ban on cohabitation cannot be deduced from this sentence, which appears earlier in the Baraisa. However, from this first sentence of the Baraisa that says we place the deceased in a chamber and the Chosson performs the mitzvoh cohabitation, [the Gemara] could not have deduced that it is exclusively when the deceased is in a chamber, and not yet buried, that mitzvoh cohabitation is permitted but not after the burial. For [the Gemara] could have deflected this deduction by saying that the intent of the Baraisa is that [the Chosson] may perform the mitzvoh cohabitation even after the mourning period is in effect.1<i class="footnote">See Tosfos HoRosh who explains that our Baraisa does not clearly say when the burial takes place. One can say that the intent of the Baraisa is that the decease is buried and then the Chosson performs the Mitzvah cohabitation even though the period of mourning has already begun.</i>This deflection is valid when we are analyzing the first part of the sentence, which says that the Chosson performs the mitzvoh cohabitation. However when considering the last ruling in this sentence: “and he separates”, it seems evident that it is forbidden for him to have relations with his wife after the mitzvah cohabitation. However, Rashbo finds this point difficult! Why doesn't [the Gemara] deduce that cohabitation is forbidden for the new couple from the statement of the Baraisa “and he separates”? Since the Baraisa only permitted the mitzvah cohabitation, it is inferring that the ban on private matters, i.e. cohabitation, is in effect. If so, why doesn't the Gemara deduce from this ruling that private matter such as cohabitation are usually forbidden even during a holiday? Why is the Gemara quoting the next sentence of the Baraisa as proof that private matters are forbidden when this can be deduced from the earlier sentence of the Baraisa?Tosfos will now inform us that there may be another reason why the Chosson must separate from the Kallah after the mitzvah cohabitation which is unrelated to mourning. This reason would explain the separation in the earlier sentence but not the extensive precautions required by the next sentence.The Gemara in Masechet Niddah 65b discusses whether one is permitted to remain with his wife when she bleeds as a result of their first relations. The virginity blood is inherently unrelated to menstrual blood, but there is a possibility that perhaps there is menstrual blood mixed with the blood of the ruptured hymen. The Mishna in Niddah 64b unequivocally rules that one may continue to have relations with his newlywed wife throughout the entire first night. However, the Gemara there introduces a Baraisa that teaches that after the mitzvah cohabitation one must separate from his wife because of the remote possibility that she might be bleeding menstrual blood in addition to the blood of the hymen.R’I says: That [the Gemara] could have said that the reason the Chosson must separate from his new wife is because of virginity blood that may be covering menstrual blood, as [the Gemara] says in Perek HaTinokes (Niddah 65b). Thus there is no indication that there is a prohibition on cohabitation during the week of rejoicing or on any other holiday.But perhaps the ban that the Baraisa speaks of in the next sentence for “all those days” is also because of the virginity blood? However, from the ruling that [the Chosson] must sleep among the men, [the Gemara] correctly deduces that the ban on cohabitation is because of mourning, for if the separation is required because of menstruation, as soon as he cohabits with her, the rule is that his wife may sleep secluded with him and there is no concern that one may violate the ban on cohabitation with a Niddah as R’ Yosef will soon say. Ordinarily, after mitzvoh cohabitation one may seclude himself with his wife and there is no concern that they might violate the ban on cohabitation. It is only forbidden to seclude oneself with one’s wife when no mitzvah cohabitation has been performed. If we find in this Baraisa, that the ban on seclusion is in effect even after mitzvah cohabitation, it must be because of mourning. 2<i class="footnote">Tosfos is saying that when dealing with a possibility of menstrual blood mixed in with the blood of the ruptured hymen, the prohibition is treated severely and there is no concern that the newly married couple might violate the Rabbinic prohibition of cohabiting at this time. However, if the prohibition is because of mourning, precautions must be taken to avoid a possible infraction of the law. The Rabonon require that the new couple not be secluded together and that he sleep among the men and she sleep among the ladies. Maharsho raises a very strong question. According to Tosfos explanation that the first sentence requiring separation might be because of the virginity blood, in which case the couple may be secluded, why is the next sentence requiring separate sleeping quarters? We have just learned that when there is a possibility of menstruation, the Chosson and Kallah can be secluded together. Even though they might be suspected of violating the laws of mourning, at this time she has just had first relations and there is the possibility of her having menstruated. They are not suspected of violating the menstrual blood prohibition and there is no need to separate the couple. Maharsho suggest two approaches, the first of these he rejects:A) The second sentence that requires separation is true only when the bride was a widow or did not bleed for whatever reason. Thus the sole prohibition would be because of mourning and there is concern that they might violate that transgression and separate sleeping arrangements are in order. Maharsho finds this solution difficult because it involves saying tat he two sentences of the Baraisa are not speaking about the same circumstances.B) Maharsho writes that he understood from Rabbeinu Meir Halevi that our Baraisa follows the opinion of the Mishna in Niddah 64b which holds that one need not separate from his wife after the mitzvoh cohabitation and may remain with her the entire first night. If so, in the case of our Baraisa there is only the prohibition of cohabitation because of mourning and there is concern that the newlywed couple might violate it. You may ask: But Tosfos just said that the reason for the separation in the first sentence may be because of the virginity blood that might be covering menstrual blood. According to Tosfos this Baraisa is following the opinion that one may ordinarily not cohabit with his wife after the mitzvah cohabitation. How can we turn around and say that the Baraisa in the next sentence does not hold of this prohibition? After a close analysis you will see that Tosfos is saying that the first sentence could be understood as holding that there is a prohibition due to virginity blood. Thus there is no proof from the first sentence which requires separation that the reason for the prohibition is that private matters, i.e. cohabitation are prohibited during holidays. However, the next sentence which tells us of the requirement of separate sleeping quarters is proof that the reason for the prohibition in this Baraisa is because of mourning and it does not hold that ordinarily after mitzvah cohabitation one must separate from his newly married wife. Thus, the proof that private matters are prohibited during holidays is evident only from the second sentence but not from the first.</i>Furthermore, by using the words “all those days” to describe the period of rejoicing followed by mourning, it is to be understood that the reason for the ban on cohabitation during both periods is the same, which is because of mourning and not because of menstruation. She could be free from the menstruation by immersing in a mikvah after one week. During the second week cohabitation would be forbidden only because of mourning. So too, Tosfos holds the ban of the first week of rejoicing is due to mourning because this is a private matter and not because of menstruation.According to Tosfos understanding we will reach an extraordinary conclusion. During the onain period which is to some degree one of Torah law,3<i class="footnote">See Zevachim 101a where the period of Onain is discussed in reference to eating the flesh of sacrifices and performing the service in the Holy Temple. These prohibition are derived from a verse in Vevorim 26, 14, where in reference to מעשר שני the torah says: לא אכלתי באוני ממנו I did not eat of [the מעשר שני] while I was an onain.</i> it is permitted to perform the mitzvah cohabitation, but during the period of mourning, which is Rabbinic,4<i class="footnote">It is Tosfos opinion that there are no Torah laws for mourning. Even though the Torah does tell us of how Yosef mourned for his father, Yacov, for seven days, the Torah never specifically commands us to have a period of mourning. The Gemara in Moed Koton 20a does quote a verse in Amos 8, 10, that is used as a source for a period of mourning for seven days, this is not the equivalent of a derivation from the Torah and does not have the status of Torah law.</i> performing the mitzvah cohabitation is prohibited. And now according to Tosfos explanation we are more lenient during the onain period which is prescribed by Torah law than in the mourning period which is fundamentally Rabbinic law.There is however a precedent for being more lenient during the onain period than in the mourning period. As is the case with wearing shoes, covering the head and overturning the beds.5<i class="footnote">The practice of overturning beds and sleeping on the floor during shivah, while common during the era of the Mishna and Gemara, is no longer in practice. See the various Halachic authorities for the reason.</i> All these demonstrations of mourning are permitted while an onain, but prohibited during mourning.
  Mitzvah cohabitation. The first cohabitation of the Chosson and Kallah is called – mitzvah cohabitation. Why? [The Baraisa] refers to [first relations] as mitzvah cohabitation, because it is written in Yeshaya 54, 5, for he who cohabits with you fashions1<i class="footnote">Literally – makes you. The verse is speaking of the relationship of Hashem with the Jewish people when Moshiach comes. It is describing the intimacy of Hashem with his people. By using this simile of a husband cohabiting with his newlywed wife, we see that this intimacy results in a very special relationship.</i> you.2<i class="footnote">Immediately prior to this explanation, the Gemara there compares a virgin to an unfinished utensil. By cohabitation her husband makes her a finished utensil.</i> [The Gemara] says as an explanation of this verse in (Sanhedrin 22b): a woman makes a covenant only with he who fashions1<i class="footnote">Literally – makes you. The verse is speaking of the relationship of Hashem with the Jewish people when Moshiach comes. It is describing the intimacy of Hashem with his people. By using this simile of a husband cohabiting with his newlywed wife, we see that this intimacy results in a very special relationship.</i> her into a utensil. As a result of [this covenant with her husband], he cleaves to her and they come to the fulfillment of the commandment of being fruitful and multiplying. For this reason [the Baraisa] refers to first cohabitation as mitzvah cohabitation. 
  
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  But not the reverse. The Gemara says that this special leniency of allowing the wedding to proceed despite the loss of a close relative for which one is obligated to mourn is in effect only when the father of the Chosson or the mother of the Kallah passes away. The Chosson’s father usually provides the meal and if the meal is ruined because of the postponement of the wedding, there will be nobody to provide a second meal. The Kallah’s mother usually provides the adornments needed for the Kallah and if the wedding is postponed there will be nobody to supply the Kallah’s needs.However, if the mother of the Chosson or the father of the Kallah passes away, shivah will be observed before the wedding. Tosfos assumes that the same is true for any other relative who passes away at this time. First shivah will be observed and then the wedding. It appears that Tosfos sees in our Gemara that the wedding may take place immediately after the shivah.Tosfos will compare our Gemara to all other sources that discuss this subject and will establish some important rulings about these situations. The primary Gemara that is discussed in this Tosfos is in Moed Katan 23a. We will first quote that Gemara in its entirety and translate it, so that you will be thoroughly familiar with it. The Rabonon taught in a Baraisa: For thirty days after the death of a relative it is prohibited to marry. If his wife died – it is forbidden for him to marry another woman until three holidays Pesach, Shavuos and Sukos will pass. (See Tosfos there for the reason for this ruling.)R’ Yehuda says: the first and second holidays it is forbidden for him to marry. For the third holiday he may marry. And if he has no children – it is permissible for a widower to marry immediately, because of the non – fulfillment of the mitzvoh to be fruitful and multiply. Since the widower has not yet fulfilled this mitzvah, he need not wait for three holidays to pass and may marry immediately. Exactly what immediately means is one of the subjects that will be discussed in this Tosfos. Initially Tosfos assumes that immediately means even during the shivah.If she left him with young children – it is permitted for him to marry immediately because of the [children’s] needs. Obviously, young children need to be taken care of immediately and the Rabonon suspended the prohibition of marrying while in mourning to meet the very pressing needs of the young widower. It happened that the wife of Yosef HaKohain died and he said to her sister in the cemetery go and take care of the needs of your sister’s children. He was marrying her because she was most suitable to take care of her sister’s children. And even so he did not cohabit with her only after a long time. What is a long time? Rav Popo said: thirty days. Even though it is permitted to marry immediately, cohabitation must be postponed for thirty days. This is the conclusion of the quotation from Moed Katan 23a.This Tosfos can be divided into four section:Section A) discusses the reconciliation of what appears to be a contradiction between our Gemara and Moed Katan 23a.Section B) discusses the differences between a widower who has small children A), and one who has no children B) according to R’I and Rabbeinu Tam.Section C) discusses marrying a woman who is in mourning when he needs someone to care for his young children.Section D) discusses when one is permitted to marry when in mourning for a parent.Section A):Tosfos teaches us that the mourning period must precede the wedding feast not only when the father of the Kallah and the mother of the Chosson suddenly pass away, rather the same rule applies if the Chosson or the Kallah are mourners for other relatives such as a brother or a sister or for their children if they were previously married. The wedding will be postponed until after the period of mourning. This is bewildering! For the Gemara says in the third Perek of Moed Katan 23a: If his wife died, he may not marry until three holidays pass. And if he has no children he may marry immediately, because he needs to fulfill the mitzvah of being fruitful and multiplying. If [his departed wife] left him with young children, it is permissible for him to marry immediately because of [the children’s] needs. Tosfos assumes that the word immediately is to be understood literally and that the young widower may marry even during the shivah. And here [the Gemara] says that if it was the opposite that the father of the Kallah or the mother of the Chosson passed away, they may not marry during the shivah. But why not, The Chosson is a young man who has not fulfilled the mitzvah of procreation and in Moed Katan 23a we learned that when one has not fulfilled the Mitzvah he may even marry during the shivah? And it is to be understood that we are speaking of when [the Chosson] has no children. From that which the Gemara says that when his father passes away there will be no one who will bother to prepare a second wedding feast for them. It is to be understood that we are speaking of an unmarried Chosson. When a man marries his second wife, he usually is financially able to supply the wedding feast himself. If we are speaking of a previously unmarried Chosson, he does not have any children as of yet. If so, one may marry even during the shivah in order to fulfill the mitzvah of procreating as is indicated in the Gemara in Moed Katan 23a. Why is the Gemara here saying that when the Chosson or Kallah are in mourning for relatives other than his father or her mother they may not marry during the Shivah? According to the Gemara in Moed Katan if one has not yet fulfilled the mitzvah of procreation he may marry immediately - even during the shivah.We can answer: that when the Gemara in Moed Katan says that one who has not fulfilled the mitzvah of procreating may marry immediately, the expression is imprecise, but rather it means that he is permitted to marry after seven days and he need not wait till three holidays pass. However, even when it is permitted to marry immediately after shivah it is forbidden to cohabit until after thirty days, as is evident a bit later in the Gemara, when the Gemara tells us of the story of Yosef HaKohain’s wife who died and he said to her sister in the cemetery: go and take care of the needs of your sister’s children. And even so, he did not cohabit with her until a long time passed.The Gemara asks: What is a long time? And answers: thirty days. It is to be deduced that he married her within thirty days of his wife’s passing but they did not cohabit until after thirty days. And to marry within seven days is certainly forbidden as is evident herea<i class="footnote">See R’ Akiva Eiger who says that it is unclear to him how Tosfos sees from our Gemara that in the special case of a widower who was left with small children it is forbidden to marry her during the shivah.</i> in our Gemara that for relatives other than the Chosson’s father and the Kallah’s mother one must first mourn and then later marry.But from the way the story is related it appears that Yosef HaKohain married his widow’s sister in the cemetery? And that which he told her in the cemetery: go and take care of the needs of your sister’s children, this is not an indication that he was bringing her to the Chuppah; rather it was merely a proposal to marry.Section B):We have now learned that even in those cases where it is permitted to marry within thirty days, cohabitation is forbidden until after thirty days. We must now examine both cases:A) When the widower has young children.B) When the widower has no children.In case A) it is logical that he is permitted to marry within thirty days even though he cannot cohabit, because his most pressing need is to have someone who can care for his children. He already has children and has fulfilled the mitzvah of procreation; thus postponing cohabitation would not be contrary to the purpose of their early marriage.However, in case B) where the leniency of marrying within thirty days is because he has no children and has not fulfilled the mitzvah of procreation, marrying without cohabitation will not solve the problem.  And it appears to R’I that certainly [the widower] who has young children is permitted to marry within thirty days, as is understood from the story of Yosef HaKohain. However, [a widower] who has no children at all is not permitted to marry until after thirty days, since he cannot cohabit within thirty days there is no reason to marry earlier.1<i class="footnote">At this point Tosfos is assuming that when the Gemara says in Moed Katan that a widower may not cohabit within thirty days, it refers equally to the widower who has young children and a widower without any children. If so Tosfos concludes there is no point in the widower without children marrying before thirty days since he cannot cohabit during that time. A close analysis of the terms used in Moed Katan reveals that at this point Tosfos holds that even though the Gemara uses the same term for bot widowers – that they may marry immediately – the meaning is not the same for both. A widower with young children m ay marry after shivah and a widower without children may marry only after thirty days. The term immediately must mean that he does not have to wait till three holidays pass.</i>And so it is to be understood from Masechet Semachos (Perek 7), as the Baraisa taught, when has it been said: that one must wait till three holidays pass, when he has mature children who do not need a mother’s care, but if he has no children (case B) or if he has young children (case A), it is permitted to marry another woman after thirty days. It is understood that it is forbidden even to marry within thirty days.On the surface it appears that for both widowers’, case A) and case B), it is forbidden to marry for thirty days. But we have learned earlier that a widower with young children may marry immediately after the shivah? Why is the Baraisa in Masechet Semachos saying that both widowers may not marry for thirty days? And even though [a widower] who has young children may marry within thirty days, even so, [the Baraisa] mentioned, that they may marry after thirty days which seems to refer to both widowers, because of case B) [a widower] without children, who must wait until after thirty days according to R’I’s explanation.2<i class="footnote">The primary thrust of the Baraisa is to point out that neither of these widowers need wait till three holidays pass. The Baraisa when saying that they need to wait thirty days means that the maximum wait is thirty days and not till three holidays pass. It does not mean to say that even a widower with children must wait thirty days. He may marry after the shivah.</i>R’I assumed that when the Gemara in Moed Katan 23a says that a widower who is permitted to marry within thirty days may not cohabit till after thirty days, it is referring to both case A) when the widower has young children and case B) when the widower has no children. The actual case that the Gemara discusses is case A) when the widower has young children. Obviously there is a great difference between the two cases, as we mentioned earlier. In case B) where we are speaking of marrying early because one has no children, there is no benefit in marrying without cohabitation. As a result of this explanation R’I must eventually hold that in case B) the widower without children may not even marry within thirty days since there is no benefit by marrying without cohabitation.Rabbeinu Tam has a different approach to the Gemara in Moed Katan 23a. He understands that the Gemara there is saying that only in case A) when the widower has young children and has already fulfilled the mitzvah of procreation, he is not allowed to cohabit until thirty days pass. However, in case B) when the widower has no children at all, he is not only allowed to marry before thirty days but he is even permitted to cohabit. According to this approach both widowers, in case A and case B) are permitted to marry within thirty days. The sole difference is cohabitation which is permitted in case B) and forbidden in case A).And Rabbeinu Tam wants to say that in case B) when [a widower] has no children even cohabitation is permissible within thirty days from the death, but after shivah, because he needs to fulfill the mitzvah of being fruitful and multiplying. Thus in any the two cases A) or B), there is no limitation to marrying before thirty days, it is only cohabitation that is forbidden for case A) a widower with young children, who has already fulfilled the mitzvah of procreation.This position however, presents a problem with the Baraisa of Masechet Semachos that says in both cases A) and B), one may not marry before thirty days. And that [Baraisa] of Masechet Semachos does not sit well according to [Rabbeinu Tam’s] explanation.3<i class="footnote">The Baraisa is in fact saying that one must wait thirty days before marrying. According to R’I we explained that it actually only in case B) that the widower must wait thirty days but not in case A). Thus the Baraisa is saying that in both case A) and case B) there is no need to wait longer than thirty days. But according to Rabbeinu Tam in both case A) and case B) it is permitted to marry before thirty days, if so, why does the Baraisa mention thirty days at all? See רא"ש Yevamot Perek 4, 27, who offers an explanation of this Baraisa according to Rabbeinu Tam.</i> 4<i class="footnote">See Shulchan Aruch Yoreh Daioh 392, 2, who rules in favor of Rabbeinu Tam, that when one has not fulfilled the mitzvah of procreation he may marry and cohabit even within thirty days of the death of his relative.</i>Section C):We have learned that when a widower needs a wife to care for his young children he may marry immediately after the shivah, even though he is in mourning. It is reasonable that we are lenient with the general rule prohibiting marrying within thirty days because of his special needs. But what if his intended bride is also in mourning? Does the special leniency extend to such a case as well? After all, she does not need to marry in order to care for her own children at this point. She is only marrying to take care of the widower’s children. It is justifiable to be lenient with his period of mourning because of his special needs, but is it justifiable to be lenient with his intended wife’s period of mourning when she does not share those needs?Tosfos will discuss this issue by referring to the Gemara in Moed Katan 23a and then by introducing a Mishna in Yevamot 41a. And it appears that in case A) where he has young children, it is permitted to marry even if she is also in mourning, because she will care for the needs of his children, even though it is possible to marry another woman who is not in mourning,5<i class="footnote">See Shulchan Aruch Y.D. 392, 3.</i> as is evident in the story of Yosef HaKohain who married his deceased wife’s sister who was in mourning for her sister, Yosef’s wife. However, the proof cited from the story of Yosef HaKohain is not so incisive, because perhaps that case was different because he was marrying his wife’s sister and she would have more pity on her sister’s children than another woman, but when the choice is between two woman who are not related to the orphans and one is in mourning for one of her relatives, a widower might not be allowed to marry her.5<i class="footnote">See Shulchan Aruch Y.D. 392, 3.</i> And even though we learned in a Mishna in Perek HaCholaitz (Yevamot 41a): All women may be betrothed immediately after being divorced, although they may not marry for ninety days till we are sure that they are not pregnant from their previous husbands, except a widow who may not be betrothed because she is in mourning. The Mishna there does not distinguish between a widow who is marrying a person who does not have small children and a widow who is marrying a widower with small children. It is to be understood that since the Mishna does not distinguish between a widower who has small children and a husband who does not have small children, that she is prohibited even to [a widower] who has small children, when she is in mourning for her deceased husband. This contradicts Rabbeinu Tam’s ruling that the need to marry when one has small children overrides not only the widower’s mourning period, but even the potential wife’s mourning period.Tosfos tells us that the Mishna of Yevamot 41a is no contradiction to Rabbeinu Tam. There in Yevamot 41a, the reason the Mishna does not say that a widow may marry a widower who has small children is because aside from the prohibition of marrying while in mourning, she is prohibited to marry during this period because she needs to wait three months in order to determine that she is not pregnant from her deceased husband. This is in effect only when she is in mourning for her husband, but when she is mourning for other relatives she may be permitted to marry a widower with small children.Section D):Generally, what is prohibited for all mourners who are mourning brothers, sisters, sons, daughters and wives is permissible after thirty days. However, when one is in mourning for his parents the prohibitions are is in effect for twelve months. Rabbeinu Tam will now say that the ban on marrying is an exception. Even when mourning for parents it is permissible to marry after thirty days. Let us keep in mind that the Gemara in Moed Katan 23a says that the ban on marrying is for thirty days. Rabbeinu Tam says that even when one’s father and mother passed away, he may bring his bride to the Chuppah after thirty days and he need not postpone the wedding for twelve months.6<i class="footnote">See Shulchan Aruch Y.D. 392, 1, who rules in accordance with Rabbeinu Tam.</i> And that which [the Gemara] says in Moed Katan (22b): For all deceased for whom one is required to mourn one may enter into a banquet hall after thirty days, but for his father and for his mother he may enter a banquet hall only after twelve months, which implies that he may not marry for twelve months after his parents pass away because it seems as if we are speaking of entering a banquet hall in order to marry. Tosfos tells us that this understanding is incorrect.That ruling was said about attending other joyous occasions, such as celebrating another couple’s wedding, but marrying a woman which is a very great mitzvah, is permitted after thirty days even when in mourning for parents and even when he already has children, and does not need to fulfill the mitzvah of procreation, because it is written (Koheles 11, 6): In the morning, during your younger years, plant your seed, have children, and in the evening, in your later years, do not relax your hand, continue to have more children.7<i class="footnote">See Yevamot 62b, where the Gemara offers this interpretation of the verse in Koheles.</i>And [Rabbeinu Tam] brought proof from the Baraisa quoted in Moed Katan 23a, where the Baraisa states plainly: All thirty days following the death of a relative it is forbidden to marry, and [the Baraisa] does not distinguish between when one’s father and mother died or other relatives. The Baraisa is saying that in all cases it is permitted to marry after thirty days, except of course when one is mourning for his wife and his children are already grown, when he must wait until three holidays pass. It is to be understood that when in mourning for all relatives even a father and mother, it is permitted to marry after thirty days.And HoRav R' Yosef cited proof to [Rabbeinu Tam's] position, that the Mishna in Masechet Semachos (Perek 9) clearly taught: When in mourning for all deceased relatives, it is forbidden to go to a banquet hall to participate in the festivities until the completion of thirty days, and for his father and mother it is forbidden to attend for all twelve months, unless it was a feast of mitzvah. Apparently it is permitted for him to attend in any feast of mitzvah. Certainly his own wedding is a banquet of mitzvah and the mourner is permitted to attend. And intense study is required to determine if this leniency of attending a feast of mitzvah also refers to the earlier part of the Baraisa and is permitting attendance at a banquet of mitzvah even within thirty days or perhaps the leniency is only for the additional eleven months that one is required to mourn for his father and mother.
  
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  Like [his city of] Mata Mechasyia. In order to understand this Tosfos correctly, it is necessary to review each step of the Gemara.A) The Baraisa says that the meat for the wedding was slaughtered and there is a likely loss if the wedding were to be postponed; we are therefore allowed to proceed with the wedding.B) Rafram in the name of Rav Chisdo says that this is only true when water has already been placed on the meat to prepare it for cooking. However, if water has not been placed on the meat, it will be possible to sell it and there will be no loss; the wedding must be postponed.C) Rava modifies this ruling by saying that if the wedding is to take place in a city where there are many potential customers for the meat, even if water was already placed on the meat, there will be no loss and the wedding must be postponed.D) Rav Popo then adds that in a village even if water was not placed on the meat, there are not enough potential customers to buy the meat and it is likely that there will be a loss, thus the wedding need not be postponed.E) The Gemara then asks: if Rava (C) is correct that in a city even when water was placed on the meat there will be no loss and Rav Popo (D) is also correct that in a village even when water was not placed on the meat there is likely to be a loss, when did Rav Chisdo say that there is a difference between when water was placed on the meat and when it was not?F) Rav Ashi answers: Rav Chisdo is speaking about a town such as Masa Mechasya, which is more populous than a village but less populous than a city. It is in such a town that there is a difference between when water was placed on the meat and when it was not.As a general rule when a Baraisa makes a statement it is best if we can take the statement at face value. For example: in our Baraisa we are saying that if the meat was slaughtered one need not postpone the wedding. There is no indication in the Baraisa that there is a difference whether water was placed on the meat or not. Even so Rav Chisdo says that it is speaking of when water was placed on the meat, otherwise there will be no loss and there is no reason to proceed with the wedding. Rav Chisdo must have a strong reason to interpret the Baraisa as speaking of only when water was placed on the meat, since there certainly is no indication in the Baraisa that such is the case. To the contrary, the Baraisa seems to be speaking of all cases even when water was not placed on the meat.At times it is necessary to say that the Baraisa is limited to a specific case in order to avoid a contradiction. We must say that the Baraisa is not speaking of all cases as it seems, but it is speaking only of a specific case. This is referred to as an “אוקימתא - interpretation” of the Baraisa. It is in effect saying that the Baraisa is not to be taken at face value. This of course is not the preferred way of understanding a Baraisa. When we have a choice of understanding the Baraisa at face value or by an “interpretation” we will almost always choose to understand the Baraisa at face value.This is bewildering! What compelled Rav Chisdo to interpret the Baraisa as speaking of when water was placed on the meat thus forcing us to say that the Baraisa is not to be taken at face value? Let [Rav Chisdo] interpret [the Baraisa] as speaking about a village and even when he did not place water on the meat the wedding will proceed because there is likely to be a loss. Since we have the option of saying that the Baraisa can be taken at face value and there is no difference between when water was placed on the meat or it was not, why did Rav Chisdo choose to “interpret” the Baraisa as speaking only of when the water was placed on the meat? It is far better to interpret the Baraisa as speaking about a village so that we can the say that in any case if the meat was slaughtered, there is likely to be a loss if one tries to sell it and the wedding may proceed.We must find an overriding reason that tells us to “interpret” the Baraisa as speaking of only a specific case and not to explain it in a way that it can be taken at face value.We can answer: That Rav Chisdo is more comfortable with interpreting [the Baraisa] as speaking about the majority of towns that are in between cities and villages as far as population is concerned. And this is what [Rav Ashi] meant to say, when asked where is the place that there is a difference between placing water on meat or not placing water on the meat? For example: Masa Mechasya and most towns whose population is somewhere between cities and villages. And it is for this reason that the Baraisa that he cited as support also mentioned “and he placed water on the meat”, because it is speaking of the majority of towns where the population is such that there is a difference between trying to sell meat that had water placed on it and selling meat that had no water placed on it. 
  
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  [This] supports [the opinion] of Rabbi Yohanan. The Gemara is citing this Baraisa that speaks of a prohibition on cohabitation during the week of festivities celebrating the wedding, even though mourning has been postponed, as proof to R’ Yochanan who says that during a holiday as well when one loses a relative and postpones the mourning until after the holiday, cohabitation is prohibited.Tosfos cites another area where we find that the laws governing a Chosson during the week of festivity are the same that govern all Jews during a holiday:The laws governing all Jews during a holiday and a Chosson during his week of festivity are comparable in many areas. When speaking about a tzoraas in Parshas Tazria (Vayikra 13, 14) the Torah says: וביום הראות בו בשר חי יטמא -- and on the day that live flesh will be seen in him, he will become tomay. This expression וביום הראות בו and on the day that it will be seen - indicates that there are days when the Kohain examines the affliction of tzoraas and there are days when he does not. There are times that in honor of a special occasion, the Kohain does not examine the affliction of tzoraas so that he will not have to declare the person tomay. As in that Baraisa that we have learned in Moed Katan (7b): A Chosson who developed an affliction of tzoraas, we give him seven days of festivity for an affliction in his person, in his cloak and in his garment. The Kohain does not examine the affliction during the week of festivity so that he will not have to declare him or his garments tomay during this festive period.  So too, during a holiday, by not examining the affliction of tzoraas, we give him all the days of the holiday, so that he will be able to enjoy the holiday. We see that in regard to not examining an affliction of tzoraas the holiday is comparable to the week of festivity of a Chosson. So too here, our Gemara holds that the week of festivities is comparable to a holiday in regard to the laws of mourning, and just as cohabitation is forbidden during the week of festivities it is prohibited during a holiday.
  Yet one observes matters of privacy. R’ Yochanan ruled that although public displays of mourning are forbidden on holidays, private matters i.e. cohabitation are in effect. The word נוהג is used. This can be a bit confusing because the term נוהג might mean that it is a custom, but not binding. Tosfos proves that in this instance, it is compulsory even though the word נוהג is used.Tosfos explains: It is an obligation to do so, to abstain from cohabitation and it does not mean that one is permitted to abstain. This can be seen from the fact that the Gemara cites proof from the Baraisa that speaks about the Chosson abstaining which is definitely compulsory. Just as the Chosson is required to abstain, so too, all people when mourning during a holiday must abstain from cohabitation.The issue of whether one is required to abstain from cohabitation is actually discussed in Moed Katan 24a about the Shabbos of the shivah. Rav and Shmuel hold that one is permitted to abstain, which means that if one chooses to abstain it is not considered a display of mourning, which is prohibited on Shabbos. R’ Yochanan is quoted later in the Gemara there as holding that it is obligatory to abstain. It is important that we be aware that this is not a one-sided issue. Shabbos and holidays are mandated as days of rest and enjoyment. Mourning by definition contradicts the spirit of Shabbos and holidays. What may be viewed as a leniency in the laws of mourning might at the same time be a stringency in the laws of the Shabbos and holidays.The Baraisa says that during “all of those days” which include the weeks of festivity and mourning, the Chosson sleeps among men and the Kallah sleeps among ladies. This is tantamount to saying that cohabitation is prohibited even during the Chosson’s private holiday. By extension our Gemara says that the same is also true when a person loses a relative during a holiday. Even though public mourning is postponed till after the holiday, private matters are prohibited even during the holiday. This supports the position of R’ Yochanan. But how will Rav and Shmuel who hold that cohabitation is permitted on Shabbos during the shivah deal with this Baraisa?If you ask: Rav and Shmuel who say in the last Perk of Moed Katan (24a) that abstention from cohabitation on the Shabbos of the seven days of mourning is permissible but not compulsory, are contradicted by this Baraisa?Perhaps one might distinguish between a holiday and Shabbos?It is not logical to differentiate between holidays which are the subject R’ Yochanan is discussing and Shabbos which is what Rav and Shmuel are discussing and to be more lenient on Shabbos by permitting cohabitation, more so than on the holiday when it is forbidden. To the contrary, the day of Shabbos is counted as one of the days of the shivah, it is logical to say, that even though public displays of mourning are prohibited on Shabbos, it counts as one of the days of shivah because private matters are prohibited and at least some of the laws of mourning are in force. Whereas when one loses a relative during the holidays, the days of the holiday do not count towards the seven days of mourning, it is therefore logical to say that even private matters are permitted and that is why those days do not count as days of mourning..Rather, it appeals to R’I that Rav and Shmuel make a distinction between a Chosson during the week of festivity and mourning on a holiday or Shabbos. The festivities for a Chosson are a private joyous occasion. When in mourning we are more stringent and he must at least observe private matters. Shabbos and holidays however are public joyous occasions and are not subject to even a prohibition of private matters such as cohabitation. This distinction is not without difficulty. But this approach is difficult, for the phrase used by the Baraisa that “all those days of festivity and mourning [the Chosson] sleeps among the men” which teaches us that cohabitation is forbidden, implies that even on Shabbos of those two weeks, cohabitation is forbidden. This is clearly a contradiction to Rav and Shmuel that cannot be deflected. We are now without an answer to our original question: How do Rav and Shmuel deal with this Baraisa? Tosfos offers no solution.1<i class="footnote">See Rashash who suggests that the words “all those days” may be understood as excluding Shabbos as is evident from the Gemara in Yoma 8b.</i>Halachos Gedolos ruled in accordance with R’ Yochanan that cohabitation on Shabbos during mourning and on a holiday when the public mourning has been postponed is forbidden, even though it is established to us that the halacha follows the more lenient opinion in the laws of mourning, that has been said in regard to a dispute among Tannaim but as far as a dispute of amoroim is concerned that is not so.2<i class="footnote">See שיטה מקובצת who wonders why Halachos Gedolos must differentiate between a dispute of Tannaim and a dispute of amoroim. Perhaps we rule in accordance with the lenient opinion even when the dispute is among amoroim, however in this case the Baraisa is proof that R’ Yochanan is correct, because the Baraisa does in fact tell us that even on the Shabbos during “all those days” cohabitation is prohibited? (This may in fact be the position of R’I soon to be quoted in Tosfos. See next note.) שיטה מקובצת seems to suggest that the proof from the Baraisa is not ironclad. One might deflect that proof by saying that the period of “all those days” excludes Shabbos as we mentioned in note 1, in the name of Rashash. However, our Gemara considers this support to R’ Yochanan’s opinion because the Baraisa on the surface seems to be in agreement with his position. Since the proof is not ironclad, Halochos Gedolos could not say that we rule like R’ Yochanan because the Baraisa supports him. If we must rule like the lenient opinion this Baraisa could not be used to prove that this case was an exception and we would then rule like Rav and Shmuel. Halachos Gedolos must therefore say that we are not required to rule like the lenient opinion when the dispute is between amoroim.</i> R’I says that it appears that the Halacha follows R’ Yochanan because the Gemara here says that the Baraisa is supportive of R’ Yochanan.3<i class="footnote">A superficial reading of R’I’s opinion seems to indicate that he is not agreeing with Halochos Gedolos’ ruling that we need not follow the lenient opinion when the dispute is among amoroim. However, in this case we follow R’ Yochanan because the Baraisa supports his position. See previous note. However, see Tosfos Moed Katan 24a ד"ה הכי אמר ר' יוחנן where it seems that R’I is in agreement with Halachos Gedolos.</i> Obviously the Gemara holds that this is reason to rule like R’ Yochanan even though his opinion is more stringent in this matter.
  
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  Making [his] bed. Tosfos informs us that there are two distinct definitions of the term והצעת המטה and that our Gemara which prohibits a niddah making a bed for her husband is discussing only that type which is of a personal nature.It appears to R’I that the act of ‘making his bed’ [the Gemara] is discussing here, which is prohibited when she is a Niddah, that is specifically spreading out the sheets which is an act1<i class="footnote">דבר -Literally a thing.</i> of fondness that a wife performs for her husband, but making the bed by arranging pillows and cushions, which is not an act of fondness, is permitted for a Niddah to do for her husband.2<i class="footnote">This	opinion	is	accepted	as	Halacha	in	Shulchan	Aruch Yoreh Deah 195, 11. See Beur HaGra 16.</i>The Mishna in 59b discusses the various chores that a wife must perform for her husband. When she is wealthy and brings maidservants into the marriage she is obligated to do less chores since the maidservants will be doing them.  He cites support from a Mishna that teaches in Perek Af Al Pi (Later 59b): If she brought him three maidservants, she need not make the bed for him and she need not work with wool.3<i class="footnote">The Mishna there discusses the amount of wool that she is required to spin in return for being supported by her husband.</i> If she brought four maidservants she sits in an easy chair and does nothing in the form of household chores.And the Gemara says: Even though [the sages of the Mishna] said when she brings four maidservants she may sit in an easy chair and does not have to do any household chores,  but she should mix a cup of wine for him and makes his bed, and wash his face, hands and feet.In the Mishna on 59b we learned that when a wife brings three maidservants into the marriage she need not make his bed, and the Gemara on 61a says that even if she brought four maidservants she should make his bed. There must be a difference between the type of bed making in the Mishna on 59b and the type of bed making in the Gemara on 61a.And Rashi explained: That which we learned in the Mishna on 59b, that when she brings three maidservants she does not make his bed, that means arranging pillows and cushions which is an activity1<i class="footnote">דבר -Literally a thing.</i> that is bothersome labor, but making his bed of the Gemara on 61a, that means spreading out the sheets and mats which is an act of fondness so that he should be fond of her and that is not bothersome labor. And it appears that it is that type of making the bed in the Gemara on 61a, which is an act of fondness that is exclusively forbidden for a Niddah to do for her husband, but not the arrangement of pillows and cushions, which involves labor and is not an act of fondness.Tosfos offers support of his solution. The Gemara on 61a when discussing that which a woman should do for her husband as an act of fondness groups making his bed together with mixing his cup of wine and washing his face, hands and feet.And so is it to be understood, because it is mentioned here in our Gemara together with mixing a cup of wine and washing his face, hands and feet as it is there on 61a. It is evident that only spreading out sheets which is an act of fondness is forbidden, as are mixing the husband’s cup of wine and washing his face, hand and feet.According to the way we have reconciled the Mishna on 59b and the Gemara on 61a, we now have an explanation that says that only spreading sheets which is an act of fondness is forbidden for a niddah to do for her husband. However, there is an alternative solution to the contradiction between the Mishna on 59b and the Gemara on 61a. The alternative resolution is based on amending the text of the Mishna on 59b.However, according to the manuscripts that have in their text of the Mishna only the words “and she does not make the bed” and they do not have the word - "לו - for him”, the Mishna is not speaking about making his bed, it is discussing the chore of arranging all the beds in the house,and in the Gemara (61a) the text does include the word - "לו - for him”, which implies that the subject is his personal bed. The Gemara is recommending that she make his personal bed as a sign of her affection, there is no proof that there are two types of bed making and that only spreading out the sheets is forbidden and arranging the pillows and cushions is permitted, for the Mishna is speaking about other beds in the house which are part of her household chores and the Gemara on 61a is discussing making only his bed. The Gemara is differentiating between making all the beds in the house, which she is not required to do when she brings three maidservants into the marriage and making his personal bed which she should do as an act of affection for her husband.According to this resolution of the contradiction between the Mishna on 59b and the Gemara on 61a there is no basis for a distinction between arranging pillows and cushions and spreading out the sheets. The difference between the two is simply that the Mishna is speaking about making all the beds in the house and the Gemara is speaking about making his bed.
  [She] applies blush.Rashi explains: She applies blush to her face.And this explanation is not appealing, because [the Gemara] says later in the second Perek, (17a) in reference to the praises sung to a Kallah, she needs “no שרק and no פירכוס”. It is apparent that שרק, which is to apply blush, and פירכוס are two different things.For the word פוקסת used here, that is the same as פירכוס, as the Gemara soon says that the word - וכן - and so too, that appears in the Baraisa and is comparing the relationship of the couple when he is in mourning as opposed to when she is in mourning refers to כיחול and פירכוס . You will notice that the word פרכוס per se does not appear in the Baraisa. It is used by the Gemara in place of the word פוקסת of the Baraisa. It is evident that פוקסת must be the same as פירכוס.פוקסת = פירכוסIf so when the Gemara on 17a speaks of שרק and פירכוס, it is obvious that פירכוס which is the same as פוקסת is not the same as the application of שרק which is blush. We must therefore conclude, thatשרק - applying blush, does not =  פוקסתTosfos offers another reason to reject Rashi’s explanation that  פוקסת means the application of blush. And at the end of Hamatznia (Shabbos 95a) the Mishna speaks of פוקסת and “she applies blush to her face”. Once again it is evident that פוקסת does not mean applying blush.Perhaps we can discover the meaning of פוקסת by identifying פירכוס which we have learned is the same as פוקסת? And later in the second Perek Rashi explains that פירכוס is braiding hair.And R’I has a difficulty with Rashi’s explanation, because in the end of Hamatznia (Shabbos 94b) we It was taught in a Baraisa “that she braids her hair and פוקסת”. How can פוקסת be braiding one’s hair when it is listed together with גודלת which means braiding one’s hair? Rather, it appears that it is one of the beautifications of women other than applying blush and braiding hair.1<i class="footnote">See Rashi Shabbos 94b ד"ה וכן הפוקסת who offers two possible definitions that he does not mention here:a) Hair combing.b) Applying dough to the face in order to redden the skin.</i>
  
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  And do [the Sages] distinguish between his mourning and her mourning? A short step by step review of the Gemara is needed in order to fully understand this Tosfos:A) The Gemara on 4a presents a Baraisa that says that after the tragic passing of the Chosson’s father or Kallah’s mother, even though mitzvah cohabitation is permitted and the week of festivity precedes the week of mourning, the Chosson and Kallah are not allowed to seclude themselves together. Rather, he must sleep among men and she among ladies.B) Rav Yosef says that this is true only when they are forbidden to cohabit because one of them is mourning. It is then that we are concerned that the Chosson might be overwhelmed with desire and violate the prohibition of cohabitation while in mourning. However, in ordinary circumstances, when there is no mourning and one already cohabited with his newlywed wife and she then became a niddah, the couple is permitted to seclude themselves in one room. The Gemara concludes from this ruling that one usually is not suspected of violating the prohibition of niddah, which is very stringent as it is subject to the penalty of korais but is suspected of possibly violating the ban on cohabitation while in mourning, which is more lenient as it is a Rabbinic decree.C) The Gemara challenges this from the rule prohibiting a niddah from performing certain personal needs for her husband, whereas, we see in a Baraisa that while in mourning those very same personal needs may be performed by one’s wife, which proves that we are more concerned that a person might violate the prohibition of niddah than that he might violate the ban of cohabitation during mourning.D) The Gemara answers: There is a difference between when he is in mourning or she is in mourning. When it is the husband that is in morning we are concerned that he might violate the ban on cohabitation while in mourning, but when she is in mourning there is no such concern. She will not allow herself to be seduced while in mourning.E) The Gemara challenges this conclusion (D), which distinguishes between when she is in mourning or he is in mourning from a Baraisa that seems to equate the two and does not mention that when either he or she is in mourning that they must have separate sleeping accommodations. According to Rav Yosef’s conclusion whenever a man is in mourning he cannot seclude himself with his wife.This is bewildering! For without the ruling1<i class="footnote"> מילתא - literally - a thing.</i> of Rav Yosef, [the Gemara] could have asked that the two Beraitot contradict each other. The contradiction between the Beraitot is not a result of Rav Yosef’s ruling. The Baraisa quoted in step (A) definitely says that separate sleeping arrangements are required while the Baraisa quoted in step (E) does not require such arrangements.Tosfos must search for a resolution of the contradiction between the two Beraitot that we might say if not for the ruling of Rav Yosef. We can answer: That if it were not for the ruling of Rav Yosef, which compels us to say that whenever a husband is in mourning he may not seclude himself with his wife, we could resolve the contradiction by differentiating between when one is in mourning or his wife menstruates at the time of his Chuppah and when one is in mourning or his wife menstruates not at the time of the Chuppah, later in his marriage. We would say that in Baraisa (A) at the time of the Chuppah his desire might overwhelm him because of his excitement with his newlywed wife even though he already cohabited with her prior to the burial. Whereas, after one has been married for some time the Baraisa quoted in (E) is informing us that there is no need to separate a couple during a period of mourning. This would be an excellent resolution of the two Beraitot, if not for Rav Yosef’s ruling.However, according to Rav Yosef we cannot make this distinction in order to reconcile the two Beraitot. For when he already cohabited, [Rav Yosef] considers her as a long married wife, for even at the time of the Chuppah his wife may sleep secluded with him while she is a niddah and when she is in mourning, we see that according to Rav Yosef once they have cohabited she is treated like a long married wife even when they are relatively newly married, and even so, when he is in mourning the Baraisa teaches us that he must sleep among the men and she among the ladies. According to Rav Yosef it is evident that there must be a difference between when she is in mourning as in the Baraisa quoted in step (C) and when he is in mourning as in the Baraisa quoted in step (A) even when this happens later in life. Therefore [the Gemara] is correctly asking that only according to Rav Yosef there is a contradiction.Tosfos offers a second answer to his original question: Why is the contradiction of the two Beraitot only a problem according to Rav Yosef, even without Rav Yosef there is a contradiction? And to Rashba it appears that if not for Rav Yosef there would be no contradiction whatsoever.The Gemara’s question revolves around the words עמו and עמה that appear in the Baraisa quoted in step (E). for the term she observes mourning <u>with him</u> and he observes mourning <u>with her</u> that are taught in the Baraisa, do not necessarily mean that she may be secluded with him when sleeping, but rather that he need only observe mourning when he is with her in the house, but not outside of the house. There is no indication at all from the text of the Baraisa per se that they may be secluded while sleeping and thus there is no contradiction whatsoever to the Baraisa quoted in step (A) that does require separate sleeping arrangements.According to Rav Yosef there is perforce another interpretation of these terms: However, according to Rav Yosef who holds that when she is in mourning, one’s wife may sleep secluded together <u>with him</u>, if so, the Baraisa that teaches when she is in mourning he observes mourning <u>with her</u> actually means that he sleeps secluded together  <u>with her</u>,2<i class="footnote">The term עמו במטה literally means that she may even sleep together with him in one bed when she is in mourning as long as they are both wearing their night garments, and there is no concern that they might cohabit. There are many Rishonim who hold that when cohabitation is forbidden, sleeping together in one bed even if clothed is also prohibited. They are of the opinion that the words עמו במטה are to be understood as they may sleep secluded together. We have followed this understanding in our translation of the Tosfos. See Shulchan Aruch Y.D. 383, 1, who rules that although by law when in mourning a husband and wife may sleep together in one bed if both are dressed, as a precautionary measure it should be avoided.</i> because that is in fact the Halacha according to Rav Yosef and the term <u>with her</u> in the Baraisa takes on a different meaning than before Rav Yosef’s ruling.Similarly when the Baraisa here speaks of her observing mourning together with him when he is in mourning this term must also mean sleeping secluded together <u>with him</u>. Now that we translate the term <u>with him</u> as meaning that she sleeps secluded together with him, we have a contradiction with the Baraisa quoted in step (A). And that which the Gemara answers: teach in the Baraisa that speaks of when he is in mourning: he sleeps among men and she sleeps among ladies.[The Gemara] does not mean that we should amend the Baraisa, rather, it is explaining that the word עמו that is taught in the Baraisa does in fact mean this, that she must only observe mourning in their house to empathize with him, but not when she is not in the house.If we take the Gemara literally that we are amending the Baraisa to read that he must sleep among men and she must sleep among ladies, the Gemara’s next question is illogical. After amending the Baraisa, it clearly states that he may not sleep secluded with her. How can the Gemara ask: but the Baraisa uses the term עמו? The connotation of the term עמו cannot possibly be contradicting that which is clearly stated in the Baraisa. The Baraisa states that they cannot sleep secluded together and the term עמו must conform to that ruling. It must mean that she is only required to act as if in mourning in her husband’s presence. Therefore Tosfos is forced to say that the Gemara never intended to amend the Baraisa. Rather it was giving us a different way of understanding the term עמו. The Gemara challenges that explanation because we find that the word עמה used in the same Baraisa about when she is in mourning does in fact mean that they can sleep secluded together.And [the Gemara] asks: but it does say עמו in the Baraisa, doesn't this mean that she can sleep secluded together with him? The explanation of the basis of this question is that the term<u> with him</u> is similar in meaning to the word <u>with her</u>. Just as the term <u>with her</u> means that he is permitted to sleep secluded with her, so too, the term <u>with him</u> means that she is permitted to sleep secluded with him when he is in mourning.And [the Gemara] answers: No, while the term with her may mean that he is permitted to be secluded with her, the term with him has a different connotation, that she is required to act as if in mourning only when she is in the house with him, when she leaves the house she need not act as she is in mourning.
  
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  Until the lid of the coffin is sealed. The Gemara here is discussing the exact time that the shivah period begins. R’ Eliezer holds that it starts as soon as the coffin is carried out of the house. R’ Yehoshua holds that it starts when the גולל is set in place for burial. What exactly is the גולל? That is the subject of a dispute between Rashi and Rabbeinu Tam. This Tosfos will cite Rashi’s opinion, Rabbeinu Tam’s objections and R’I’s defense of Rashi.The term גולל is actually used in Masechet Chulin 72a in reference to the ruling that the גולל is a source of tumoh. When discussing the various sources of tumoh related to a corpse, the Torah in Parshas Chukas Bamidbar 19, 16, says: וְכֹ֨ל אֲשֶׁר־יִגַּ֜ע עַל־פְּנֵ֣י הַשָּׂדֶ֗ה --- and whoever will touch that which is on the surface of the field etc. will become tomay. What is meant by that which is on the face of the earth? The Gemara explains: this includes the גולל and דופק as sources of corpse tumoh. We are now setting out on a search for the meaning of these two words.In many places Rashi explained that the גולל is the lid of the casket, and דופק are the wall planks on the side of the casket. And [the side planks] are called דופק which means to beat or strike, because the lid is slammed on [the walls].The Gemara in Berachos 19b is discussing Kohanim skipping over coffins in order to participate in a parade honoring a king. The Gemara there says that the basis of this leniency is because most coffins have a space of a tefach between the corpse and the lid. The lid then becomes an ohel-tent1<i class="footnote">The Torah in Bamidbar 19, 14 says: This is the teaching regarding a person who dies in a tent - anything that comes into the tent and anything that is in the tent will be tomay seven days. We learn from this verse that when a person is in a tent or under one roof with a corpse he becomes tomay even though there is no direct physical contact with the corpse. This can be viewed as if the tumoh emanating from the corpse rises to the ceiling and when stopped by the ceiling spreads throughout the room. By using this paradigm we can understand that the ceiling also serves as a barrier to prevent the tumoh from passing through it. Thus, conversely there is a leniency to a ceiling above a corpse as there is a stringency. One may be directly above the corpse, but if there is a roof or tent between him and the corpse, he does not become tomay. It is this aspect of ohel-tent that we are referring to here. The ohel actually serves as a protector from the corpse beneath it. If there is a space of at least one tefach, approximately four inches, between the corpse and the lid of the coffin, the lid serves as an ohel above the corpse and prevents tumoh from passing through the lid. Otherwise, a person standing above a corpse would become tomay even if he has no contact with the corpse because he is מאהיל - in the airspace above the corpse and the tumoh emanating from the corpse reaches him. It may be assumed that there is usually a tefach between the corpse and the lid.</i> above the tumoh and confines the tumoh to area of the tent. The tumoh does not penetrate the lid and the area above the lid is tumoh free. Thus even Kohanim are allowed to be in the air-space above a coffin. This explanation assumes that the only source of tumoh that must be dealt with is the corpse itself. The air-space above the coffin is in fact protected from tumoh by the lid. However, according to Rashi’s explanation there is are other sources of tumoh to be dealt with: the lid of the coffin and its walls.And Rabbeinu Tam has a difficulty with Rashi’s explanation: because [the Gemara] says in Perek Mi Shemaiso (Berachos 19b): R’ Elozor Bar Zadok who was a Kohain said, we used to skip over over coffins in order to participate in a parade to honor the King. How could they jump over the coffins, even though the lid protects them from the tumoh of the corpse itself, but the lid and the walls generate tumoh of ohel-tent as [the Gemara] says in Perek Ho’or veharotev (Chulin 126b)2<i class="footnote">The Gemara there reads: a lid and walls of a coffin generate tumoh by contact and by ohel, but not when being carried or moved. See end of Tosfos where he cites a Tosefta that men who pulled a דופק into position do not become tomay.</i> and a person becomes tomay by being above them?And furthermore, in Perek Behaimoh Hamekasheh (Chulin 72b) the Gemara expounds the verse עַל־פְּנֵ֣י הַשָּׂדֶ֗ה - upon the surface of the field, to expand the sources of tumoh to include גולל and דופק, but according to Rashi that these are the lid and walls of a coffin, how can they be derived from the superfluous phrase - upon the surface of the field, but a coffin is not usually on the surface of the field? It is usually buried in the ground below the surface of the field.There are two questions against Rashi’s explanation:a) How can Kohanim skip over coffins? Even though the corpse will not cause tumoh, the lid and the walls of the coffin generate their own tumoh.b) How can these sources of tumoh be derived from the phrase - upon the surface of the field - they generally are buried below the surface?Tosfos will attempt to give one answer for both questions. And HoRav Dovid of Nazenburg says that according to Rashi [the Gemara] expounds that the lid and walls are included as sources of tumoh. He explained that we only include from the words עַל־פְּנֵ֣י הַשָּׂדֶ֗ה- upon the surface of the field, that they generate tumoh only when they are separated from the coffin, as they are when they are upon the surface of the field, but while [the coffin] is still buried in the ground, it becomes part3<i class="footnote"> בטל - literally nullified, as if it does not exist. When we say that the lid and walls of the coffin are nullified to the ground, it means that we think of them as becoming part of the ground.</i> of the ground and is not thought of as an entity in itself and does not generate ohel - tent tumoh. And now, according to HoRav Dovid’s explanation, the case of R’ Elozor bar Zadok saying we skipped over the coffins also comes out well. There, R’ Elozor bar Zadok is speaking about skipping over coffins that were buried in the ground. The lid serves as a barrier for the tumoh generated by the corpse, but not as a source of tumoh in its own right.When a nozir comes in contact with corpse generated tumoh he is required to shave his head and begin his count anew as it is written in Bamidbar 6, 9: and if a person should die near him with quick suddenness and contaminate his nazarite head, and he must shave his head on the day that he becomes purified, on the seventh day shall he shave it. In verse 12 we read:  and the first days (that he already counted towards his nezirus) shall fall aside because he contaminated his nazarite head.There are certain sources of tumoh that although initially associated with corpse tumoh, they do not compel the nozir to shave his head and begin the count once again. The tumoh generated by the lid of a coffin does not compel the nozir to shave his head (Mishna Nozir 54a). If so, the Kohain may come in contact with that tumoh as will be deduced from a Baraisa in Masechet Semachos. Furthermore, some explain that even though a lid generates ohel-tent tumoh, even so [Kohanim] may skip over coffins and allow themselves to become tomay via a lid, because we learned in a Baraisa in Masechet Semachos (Perek4): any source of tumoh for which a nozir is not required to shave his head, a Kohain is not prohibited from coming in contact with it.Rabbeinu Tam says that [the Baraisa in Masechet Semachos] is an error. For we find that a quarter log of blood from a corpse does generate ohel-tent tumoh and a nozir need not shave his head when becoming tomay from the quarter log of blood as we learned in a Mishna in Nozir (54a) and even so a Kohain is prohibited4<i class="footnote">Tosfos in Berachos 19b points to Chulin 72a where the Gemara says that R’ Akiva holds that a quarter log blood from two corpses generates tumoh. This is derived from a verse in Vayikra 21, 11: ועל כל נפשת מת לא יבא -- which is in the section dealing with the tumoh of Kohanim.</i> from coming in contact with the quarter log of blood.Here, Tosfos does not offer a response to Rabbeinu Tam conclusion that the Baraisa in Masechet Semachos must be an error.5<i class="footnote">Tosfos in Berachos 19b suggests that perhaps there is a difference between a quarter log of blood and the lid and walls of a coffin. In regard to blood of a corpse we find that the nozir does have to shave his head when coming in contact with a half log. Therefore the Kohain may be prohibited from coming in contact with even a quarter log. However, in regard to a lid and walls of a coffin, there is no requirement whatsoever for a nozir to shave his head and a Kohain is therefore not prohibited from becoming tomay via a lid and walls of a coffin.</i> Rabbeinu Tam now asks a third question: And Rabbeinu Tam also asked from a Baraisa that we learned in Eruvin (15b): Anything that has a life spirit cannot be made into a גולל for a grave etc. But according to Rashi’s explanation that a גולל is a lid is it usual to make a lid for a coffin from a live animal?Tosfos does offer a defense for Rashi’s explanation from this third question of Rabbeinu Tam. We can answer: Even though it is unusual to make a lid for a coffin from live animals, even so there are some things that we find that are unusual and the Gemara speaks about them so that we will learn and receive reward for learning even though the cases discussed are highly unlikely to happen.Tosfos offers some glaring examples of situation that will never happen that are discussed in the Gemara in Masechet Chulin. The Gemara there is discussing the rule that the sanctity of a firstborn is dependent on passing through the womb of the mother. The Gemara discusses some very odd cases when illustrating this rule,as the Gemara says in Perek Hamekasheh (Chulin 70a): If a rat entered the womb of an animal, which was about to give birth to a firstborn and swallowed [the fetus] and brought it out from the womb, and the re-entered the womb and brought [the swallowed fetus] back into the mother’s womb and regurgitated [the fetus] and the fetus then passed through the womb by itself, what is the rule? Was it sanctified as a firstborn when it went out through the womb on its own after it had previously been taken from the womb inside the rat? Certainly, this is very unlikely to happen. Or, he attached two wombs of two cows together, and [the fetus] passed from this womb of its natural mother to that womb of the surrogate mother. What is the rule? Is the second cow considered as if it gave birth to a firstborn, since a firstborn did in fact exit via its womb, even though it was not its own calf? This too, is highly unlikely to ever happen6<i class="footnote">Nowadays, with the perfection of a system of removing a viable fetus from its natural mother and implanting it into the womb of a surrogate mother, this case is not so far fetched.</i> and even so the Gemara discusses the possibility.We see that the Gemara does discuss unlikely cases. So too, the Gemara is discussing the unlikely case of designating a live animal as a cover for a coffin.Tosfos now presents Rabbeinu Tam’s explanation of גולל: Rabbeinu Tam explains that גולל is a monument which is a large stone place on a grave as a gravesite marker. The term גולל is used for a stone as it is written (Bereshit 29, 3): and they will roll the stone etc. We see that the verb ukkdu which is of the same root as גולל is used in reference to a stone. So too, the word גולל is referring to a large stone used as a monument. And דופק are two stones one at the head and one at the foot of the monument.Rabbeinu Tam has now answered the second questions that he asked about Rashi’s explanation: b) How can these sources of tumoh be derived from the phrase - upon the surface of the field - they generally are buried below the surface?The monument and accompanying stones are usually found on the surface of the field and can be included from the verse עַל־פְּנֵ֣י הַשָּׂדֶ֗ה.Rabbeinu Tam will now explain why the third question is not a problem according to his explanation: And sometimes when a monument is not available an animal or some other item is temporarily placed on the grave as a marker. It is in such cases that the Mishna in Eruvin tells us that an animal does not have the characteristics of a גולל and does not generate tumoh even as it is being used as a temporary grave marker.Finally, Tosfos explains how the very first question of Rabbeinu Tam is answered according to his explanation. The question: a) How can Kohanim skip over coffins? Even though the corpse will not cause tumoh, the lid and the walls of the coffin generate their own tumoh. And in that case of skipping over the coffins (Berachos 19b), which was permissible according to the testimony of R’ Elozor bar Zadok there was no monument that could generate tumoh and as for the corpse buried in the casket they did not become tomay, because the majority of caskets have a space of a tefach7<i class="footnote">See Maharsho. This is true not only according to Rabbeinu Tam, but according to Rashi as well.</i> between the corpse and the lid of the coffin. This space serves as an ohel-tent and contains the tumoh within the casket.Now according to Rashi our Gemara that says that mourning begins when the lid is placed on the coffin makes perfect sense, because we always do place a lid on the coffin before burying the deceased, but according to Rabbeinu Tam we have a bit of a problem, because we don't always place a monument on the grave immediately after burial. If so, when does mourning commence in such cases? And you should not pose a question to R’ Yehoshua who says that mourning starts when the monument is placed on the grave, when does mourning commence when there is no monument? For we can say: that when those who bury the deceased turn their faces away from the grave the period of mourning begins.As [the Gemara] says in Moed Katan (22a) when discussing the beginning of mourning for those who do not accompany the coffin to Eretz Yisroel: that those who do not go after the coffin on the extended trip to Eretz Yisroel , commence their mourning when they turn their faces away from those carrying and accompanying the coffin. So too, when no monument is immediately available after burial, when the mourners turn away from the grave to go home the period of mourning commences.R’I will present two difficulties with Rabbeinu Tam’s explanation. He will eventually rule in favor of Rashi’s explanation. And R’I has the following difficulties with Rabbeinu Tam’s explanation: We learned a Baraisa in Tosefta of Oholos in the fourth Perek:8<i class="footnote">In our version of the Tosefta this appears at the end of the third Perek, but not in the name of R’ Yehudah. The third Perek begins with – אמר רב יהודה. See Rashash.</i> R’ Yehudah said: When there are two large stones, each one four tefachim that have been designated to act together as a גולל for a grave, one who is in the air-space above both [stones] is tomay. If one of them was taken away, [anything] that is in the air-space above the second one is tahor9<i class="footnote">See בית יעקב who explains that a גולל is only a source of tumoh when it is capable of functioning as a lid for a coffin. If one of the two stones that functioned collectively as a גולל is taken away, neither can function as a גולל and there is no longer any גולל generated tumoh. The text of the Baraisa “because the tumoh has a path by which to leave” requires some study according to this explanation.</i> because the tumoh has a path by which to leave. This presents a difficulty to Rabbeinu Tam who says that a גולל is a monument. When discussing a monument, how is it possible to speak about a path for the tumoh to leave according to Rabbeinu Tam? The monument is not a cover that prevents tumoh from leaving. But according to Rashi the גולל is the lid of the coffin, and it can be said that when one of the two stones designated as a lid is removed, the remaining stone does not serve the purpose of a lid, which is to contain the tumoh and thus does not generate the tumoh of גולל.Another difficulty that R’I has with Rabbeinu Tam’s explanation of גולל: And in Tosefta of Oholos at the end of the third Perek we learned: It happened with one person who died on the day before Pesach and they did not want to bury him because they would not be able to participate in the Pesach sacrifice if they became tomay. Women were able to bury the body, but could not move the heavy stones of the גולל into position. And the women entered10<i class="footnote">It seems that the burial was in a place that was covered and whoever entered into the area of the grave would become tomay via ohel - tent.</i> and tied the rope to the גולל. The men pulled the rope from outside and the women were able to bury him. The men went and made their Pesach sacrifice in the evening. It is understood from this story that the women could not bury him because they were not strong enough to move the גולל into position, until the men pulled the גולל from outside into the proper position.And if גולל is a monument as it is according to Rabbeinu Tam, why didn't they bury him without a monument and leave the grave unmarked until after Pesach? Rather, it is certain that [גולל] is the lid of a coffin as Rashi explained, and because it was of stone it was so very heavy that the women were incapable of moving it, but it needed to be placed on the casket, because one needs to place a lid on a coffin before burial. 
  
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  Lest one slaughter a young bird. The Gemara concludes that one may not have mitzvah cohabitation immediately after Shabbos, because there was usually a banquet and there is concern that because of the upcoming feast one might slaughter a bird on Shabbos for the post - Shabbos evening celebration.The text of our Gemara is that he might slaughter a young bird. There is another text that reads - in place of בן - young, בו - on him referring to the Shabbos day with the masculine בו. Tosfos defends both texts. Some have the text שמא ישחוט בו עוף – he might slaughter on  him, with the word him referring to the Shabbos day, even though Shabbos is a feminine term as it is written (Shemot 31, 14) - those who desecrate her will surely be put to death. We see that Shabbos is referred to as “her”.However, this verse is not the only verse that discusses Shabbos and we find others that speak of Shabbos in the masculine. So too, we find that it is a masculine word, as in (Shemot 35, 2): Whoever performs labor בו - on him, the Shabbos, etc. Here we see that Shabbos is spoken of in the masculine term. Also in, one who guards Shabbos from desecrating him (Yeshaya 56, 2). Here again the reference to Shabbos is with a masculine term. It would be entirely correct to speak of the Shabbos as ישחוט בו -  slaughtering on him, the Shabbos, because we do find that we refer to Shabbos in the masculine.Tosfos now presents a variant text: And the variant text בן עוף - a young bird is also correct. For it is also common for people to slaughter tender young birds as it is written in (Vayikra 5, 7) when discussing the birds that are offered as sacrifices two <u>young</u> pigeons.1<i class="footnote">Tosfos does not mean that only young birds are slaughtered as sacrifices of for food. Tosfos means that young birds are also slaughtered. This can be seen from the fact that the Torah mandates that young pigeons be used as a sacrifice. If it was unusual to slaughter young birds for food, the Torah would not ask that they be used as a sacrifice.</i>Tosfos offers further proof that birds are referred to as <u>young</u> birds: In the first Perek of Kiddushin (36b) the Gemara derives that the sprinkling of a bird’s blood must be done by a Kohain from the ruling that a sheep’s blood is to be sprinkled by a Kohain. In the discussion the Gemara says: this can be derived from2<i class="footnote">The text of Tosfos implies that we are deriving this rule from a young bird. A reading of the Gemara in Kiddushin will show that we are deriving the rule of a Kohain sprinkling the blood from sheep where it is stated specifically to birds where it is not clearly mentioned in the Torah. See Rashash who insists that the text of our Tosfos must be amended in order to be reconciled with the Gemara in Kiddushin.</i> a young bird, just as a young sheep the Torah required etc. a Kohain to sprinkle its blood, even though a Kohain is not required to slaughter it, certainly a young bird where it is required that a Kohain slaughter it, it is required that a Kohain do the sprinkling. Throughout the conversation of the Gemara we find that it speaks of a young bird. 
  If so, Yom Kippur that occurs on Monday should be postponed. The Torah tells us in Vayikra 22, 28: וְשׁ֖וֹר אוֹ־שֶׂ֑ה אֹת֣וֹ וְאֶת־בְּנ֔וֹ לֹ֥א תִשְׁחֲט֖וּ בְּי֥וֹם אֶחָֽד - But an ox and a sheep, you may not slaughter it and its offspring on the same day. In order to avoid a violation of this commandment the Mishna in Chulin 83a tells us that there are four times during the year, the seventh day of Sukos, the day before Pesach, the day before Shavuos and the day before Rosh Hashanah, that it is very common to slaughter cattle and sheep. During those times when a dealer sells a cow or sheep, he must inform the buyer that I sold its mother or its offspring today so that the buyer will not slaughter the animal he just purchased on the same day as its mother or son.R’ Yosee Ha’Gleelee says that on the day before Yom Kipur one is also obligated to inform the buyer of the status of its mother or son. The Rabonon obviously disagree with R’ Yosee and hold that on the day before Yom Kipur it is not so common to slaughter animals.Our Gemara has asked that if we are concerned that one might slaughter a young bird on Shabbos if he is going to have a banquet after Shabbos, when Yom Kipur is on Monday and it is a mitzvah to eat on Sunday, we should also be concerned that one might slaughter an animal on Shabbos. We should therefore re-arrange the calendar so that Yom Kipur will not be on a Monday.In view of what we have just learned about the days that there are heavy meat consumption, it would seem that this question might apply to some of the other days mentioned in the Mishna in Chulin, more so than to Yom Kipur eve. This is bewildering! Why does [the Gemara] mention Yom Kipur which is a heavy meat consumption day only according to R’ Yosee Ha’Gleelee, as we learned in a Mishna (Chulin 83a): During four periods in the year, one who sells an animal to his associate must inform him, I sold its mother to be slaughtered etc. Those are the seventh day of Sukos, the eve of Pesach, the eve of Shavuos and the eve of Rosh Hashanah. And according to R’ Yosee Ha’Gleelee also the eve of Yom Kipur, why doesn't [the Gemara] mention one of the four periods, about which there is general agreement that they are times of excessive meat consumption? The Gemara should have asked that if the seventh day of Sukos would come out on Shabbos the calendar should be rearranged because of the concern that one might slaughter on Shabbos in preparation for the holiday?We can answer: That on erev Yom Kipur it was customary to eat a lot of chicken and fish, as is evident in Breishis Raboh (Perek 11) in regard to that tailor who purchased fish1<i class="footnote">The Midrash relates that a Jewish tailor spent an exorbitant sum for a fish. He was bidding for the fish against the servant of the Governor. When questioned by the Governor about why he spent so much money for a fish, he explained that it was to honor the day upon which all sins are forgiven.</i> etc. because it is a day of atonement and forgiveness. We see from this story that it was not the custom to eat meat on erev Yom Kipur, rather lighter foods such as fish and poultry.2<i class="footnote"> See Shulchan Aruch Orach Chayim 608, 2: On erev Yom Kipur one should eat only food that it is easily digested etc.</i> And during those four periods it was common to eat a lot of animals, where the decree that one might forget that it is Shabbos and will perhaps slaughter an animal is inapplicable. Slaughtering an animal such as cattle or sheep requires much effort and preparation. One is likely to remind himself or to be reminded before he actually slaughters an animal that today is Shabbos and it is forbidden, whereas slaughtering a bird is fairly simple and can easily be done before he reminds himself that today is Shabbos. Therefore when one of the “four periods” is on Shabbos, when it is usual to slaughter animals there is no concern that one might forget himself and slaughter on Shabbos. However, when erev Yom Kipur is on Sunday when most people slaughter birds, it is fairly likely that one might forget himself and slaughter a bird before he is reminded that today is Shabbos.
  
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  If so, a widow should also cohabit on Thursday. See introduction to Tosfos 3r. Whenever the Gemara introduces a question with the words “אי הכי - if so” it is indicating that there is an alternative approach to understanding this ruling that would not be subject to this question. It is only because of the present approach that this becomes a problem.In this Gemara we have an additional problem. The Gemara does not clearly state that there are two viable ways of understanding this issue, which would then lead it to say that if the second approach is correct we have a problem. The Baraisa clearly stated that the reason for cohabitation Wednesday night is in order to access the blessing of the fish. No other approach is mentioned.Tosfos must tell us that there is in fact another approach mentioned in the Gemara. Once we understand where the first approach is mentioned in the Gemara, Tosfos will show us why only the second explanation that one must marry on Wednesday and cohabit on the fifth day (Wednesday night) because of the blessing to the fish, is subject to this question.There are two possible explanations for ruling that mitzvah cohabitation must be on Wednesday night and not Wednesday afternoon:A) Because we are concerned that if he discovers that she is not a betulah on Wednesday afternoon his anger may cool off by Thursday morning.B) Because Hashem blessed the fish on Thursday.Tosfos first explains why the alternate explanation A) would make more sense. The explanation of the words אי הכי is: if the Baraisa would have taught that the reason one must cohabit with a b‘suloh on Wednesday evening and not Wednesday afternoon, is because of the concern that his anger might cool off by Thursday morning as [the Gemara] initially suggested in its question,1<i class="footnote">This is where we find the ‘first approach’ to understanding why cohabitation must be on Wednesday night.</i> but not because of the blessing of the fish, because that is not important enough to warrant that cohabitation take place on Wednesday evening, it would be easy for us to understand that one must cohabit with a widow on Thursday evening because of the blessing for man, which is important enough to warrant that mitzvah cohabitation be performed on calendar Friday.If we accept the second explanation B), there is a difficulty. But now that the reason for cohabitation with a betulah wednesday evening is because of the blessing of the fish that was on calendar Thursday. We see that the blessing of the fish is truly significant even for man,2<i class="footnote">See ריטב"א who explains that there is a special value in the blessing of the fish because they are not subject to עין הרע - an evil eye. This is equally important for b’sulos and widows.</i> then cohabitation with a widow should also be on calendar Thursday, which is Wednesday evening, so that all mitzvah cohabitation will be on the same day.3<i class="footnote">רא"ש says that in the absence of an overriding reason it is preferable that all women to marry on the same day. See Artscroll notes 18 and 20.</i>
  
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  Alternatively, due to the diligence [of the Sages]. The Gemara in this second version is saying that as far as the blessing is concerned, Thursday is preferable because of the blessing for fish. See previous Tosfos note 2. However, the reason that Friday is mandated as the day for cohabitation with a widow is because of the ‘diligence’ of our sages to ensure that even a widow’s new husband will rejoice with her for a minimum of three days.Although this explanation is quite logical, Tosfos wonders how it can possibly be reconciled with the text of the Baraisa which specifically says that the reason for cohabitation on Friday is because of the blessing to people. If you ask: How can [the Gemara] say that the reason for cohabitation on calendar Friday is because [the Rabonon] were diligent to ensure that even a widow’s husband will rejoice with her for three days, but the Baraisa clearly teaches that the reason for cohabitation is because of the blessing for people?We must find a reasonable explanation why the Gemara says that the primary reason of the Baraisa is because of the Rabonon’s diligence to ensure the happiness of a widow, which is not even mentioned at all in the Baraisa and not because of the blessing for humans, which is clearly stated in the Baraisa.We can answer: That according to this answer, the explanation of the Baraisa is as follows: A widow is married on Thursday and cohabits on Friday. The reason is because of the diligence of the Rabonon to ensure her happiness as is explained in another Baraisa, which will soon be quoted in the Gemara. That is the prime reason for mitzvah cohabitation on calendar Friday. The reason mentioned in the Baraisa is secondary, as Tosfos will soon explain. This is a reasonable explanation of our Baraisa because we are saying that the Tano of the Baraisa is referring to a reason that has already been mentioned in another Baraisa. It is acceptable to say that even though the Tano did not mention the reason of ‘diligence’ in this Baraisa, he is referring to it since it is specifically mentioned in another Baraisa. The purpose of this Baraisa is to clear up a secondary problem that remains even after the reason of ‘diligence’ is stated as Tosfos will now explain.The answer the Baraisa does give is to an underlying question that is not spelled out in the Baraisa. If you ask: Because of the importance of the blessing to fish that was said on calendar Thursday, they should have put aside the ordinance of their ‘diligence’ to ensure that a widow’s husband would rejoice with her for three days?The Baraisa answers that underlying question: [The Rabonon] were not concerned with that matter, because on Friday as well a blessing was said for people. Even though the blessing for fish may be more significant than the blessing for people, (see previous Tosfos note 1),since mitzvah cohabitation on calendar Friday serves two purposes,a) it ensures that a widow’s new husband will rejoice with her for three days, and b) they access the blessing for people that was said on Friday, the Rabonon preferred that cohabitation should be on calendar Friday.Our Baraisa is coming to answer a question about why the ordinance of ‘diligence’ takes precedence over the significant blessing for fish. It doesn't even have to mention the reason of ‘diligence’.
  
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  What [difference] is there between [the reasons of] blessing and diligence? Earlier in Tosfos Kesubos 2h ד"ה ותנשא we learned that if one does not wish to benefit from the blessing that was said to fish or people he is not considered a transgressor of rabbinic law. If so, why is the Gemara’s asking - “what is the difference between the reason of ‘diligence’ and the reason of accessing the blessing?” It is quite obvious that for violating an ordinance based on the reason of ‘diligence’ one is a transgressor, while when not accessing the blessing one is not a transgressor.Even though we have learned that because of not wanting to benefit from a blessing one is not called a transgressor, while one who violates an ordinance based on ‘diligence’ is definitely a transgressor and that is certainly a difference between the two reasons given for cohabitation on calendar Friday, even so [the Gemara] is asking - why do we need the reason that there is a blessing? Since the Gemara does in fact hold of the reason of ‘diligence’ there seems to be no practical difference that emerges from the reason of accessing the blessing. Why then does the Baraisa mention this reason at all?1<i class="footnote">See Maharsho. This question addresses the first version in the Gemara that the reason mentioned in the Baraisa that cohabitation should be on calendar Friday because of the blessing for people, stands alone and overrides the significance of the blessing for fish. It need not be combined with the reason of ‘diligence’. If so, why is it mentioned at all? It seems as if there is no need for knowing that there is blessing for people on Friday once we have the reason of ‘diligence’. Ultimately, they are both saying that cohabitation should first be made on calendar Friday. However, according to the version in the Gemara that the reason of blessing of people is an auxiliary reason needed to counteract the blessing of the fish on calendar Thursday, otherwise we would override the dictates of ‘diligence’ and mandate first cohabitation on calendar Thursday because of the blessing of fish, it is obvious that the explanation of the blessing for people is necessary.</i>Alternatively, the Gemara’s question is: What is the difference between the first version that answered that the blessing for man is preferable [to the author of the Baraisa], and stands alone as a reason for cohabiting on calendar Friday and the alternate version, that the primary reason for cohabitation on Friday is because of ‘diligence’ and the blessing for people is only an auxiliary reason to counter the argument that the blessing for fish should even override ‘diligence’, as explained in the previous Tosfos?[The Gemara] answers: The difference between them is an idle person, who will not be going off to work, and will spend his time rejoicing with his newly married wife, or if Yom Tov is on Friday, when work is forbidden and the newly married couple will spend the day rejoicing together.According to the second version that the reason for the Baraisa’s ruling is because of ‘diligence’ and not because of the blessing which is only an auxiliary reason, in these cases where there is no need for ‘diligence’ because the new husband will not be going to work since he is an idle person or it is a Yom Tov, if he desires, he may cohabit on Thursday afternoon, the reason for the Baraisa’s ruling that first cohabitation for a widow is on calendar Friday is because of the blessing of man, as is understood from the literal explanation of the Baraisa, even an idle person or on Yom Tov that is on Friday, when there is no need for ‘diligence’ because the newlywed husband will not be going to work in any case, even so, because of the blessing of man he should cohabit with her on calendar Friday, in order to benefit from the blessing.Tosfos has now concluded that according to the first version in the Gemara, even when ‘diligence’ is not applicable, because the new husband will not be going to work anyway, accessing the blessing for man is so important that cohabitation on calendar Friday is obligatory. It would seem that this reason for cohabitation on Friday is so strong that it stands alone without the reason of ‘diligence’.Tosfos tells us that this is not so. Accessing the blessing is not sufficient reason in itself to require cohabitation on calendar Friday. It is only that once the ordinance requiring cohabitation on calendar Friday is in place that accessing the blessing takes on its significance.And even according to this first version that cohabitation must be on Friday because of the blessing of man even when ‘diligence’ is not applicable, if [the Rabonon] had not instituted that cohabitation must be on Friday because of ‘diligence’, for the benefit of the blessing alone [the Rabonon] would not have fixed a day for marrying as explained earlier (2a, תוס' ד"ה ותנשא) in regard to the Gemara’s question “and she should be married on Sunday?” The Gemara there does not answer that she cannot marry on Sunday because the blessings of fish and mankind were said on Thursday and Friday. Obviously, accessing the blessing is not sufficient reason to fix a specific day for marriages. It is only after the Rabonon have fixed a special day for marriages because of ‘diligence’ that we say that even when 'diligence’ does not apply one must marry on a widow on Thursday and cohabit on Friday because of the blessing of man on Friday.
  
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  With regard to [the creation] of heaven and earth it is written: “My hand, etc. In order to show that the handiwork of the righteous is more significant than the handiwork of Hashem, Bar Kaporo compares verses that discuss the handiwork of Hashem and the handiwork of the righteous. About Hashem it is written (Yeshayah 48, 13): אף־ידי יסדה ארץ וימיני טפחה שמים - also My hand laid the foundation of the earth, and My right hand measured out the heavens. The word ידי - My hand is used, which means one hand, showing that Hashem created the earth with only one hand.Even though the verse concludes with “and My right hand measured out the heavens”, and [the Gemara] says in the end of HaKomaitz Raboh (Menachos 36b) that the term ‘hand’ at the beginning of the verse refers to Hashem’s left hand, if so two hands are written in this verse. How can Bar Kaporo derive from this verse that Hashem created heaven and earth with only one hand?Even so, for one activity there is only one hand. The verse specifically states that the foundation of earth was only with the left hand and the heavens were measured with only the right hand, each facet of creation was accomplished with only one hand even though collectively for heaven and earth both were used. But in regard to the activities of the righteous for one activity such as building the holy Temple, both hand are written in the verse that describes this building. There is a greater significance attached to the building of the Temple by the righteous, than to the creation of heaven and earth by Hashem.
  
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  This [is the] thumb. R’ Elozor is explaining the functions of five separate fingers, even in areas of service to Hashem. He says that the thumb is the גודל. What function of the thumb is he referring to?The Torah in Parshas Metzora (Vayikra 14, 14) dictates that some of the blood of the metzora’s Ashom sacrifice be placed on the right thumb. Rashi explains that [R’ Elozor] is referring to the placing of sacrificial blood on the בהן - thumb on the hand of a metzora.Tosfos disagrees for two reasons. The first: This is not appealing, for if so, [R’ Elozor] should have said: this is the בהן using the Biblical term for this procedure. Why would he use the word גודל, which is not used in the verse that speaks of this function?Secondly: The Gemara at this point is explaining why the fingers are separate and not webbed together. Furthermore, even if the fingers were not separate, he could place the blood of the sacrifice on the בהן - thumb, which is the shortest of all the fingers. It need not be a separate digit for the blood to be placed on it. It is easily identifiable because of its size.Tosfos offers his own explanation: It appears that [R’Elozor] is speaking about the procedure of Kemitzah - taking a fistful of the dough of a Minchah offering, as we learned in a Mishna (Menachos 11a): The Kohain wipes away with his גודל - thumb the excess flour that is on top of his fist after he removes a fistful from the vessel containing the flour.However, he cannot wipe away the excess with his other hand, because it is required that all Temple service be done with the right hand.1<i class="footnote">Since R’ Elozor is showing how each of the fingers serves a specific function in the Temple service, this function must be a part of the service and not merely a method of cleaning one’s hand. Tosfos therefore says that the Mishna is mandating that the wiping be done with the thumb because the Kohain cannot use his left hand to wipe away the excess since this is part of the kemitzah service, which must be done with the right hand.</i>
  
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  What is [the halakha regarding] cohabitation on Shabbat? The Gemara now introduces the question of whether mitzvah cohabitation may be performed on Shabbos. There will be a lengthy discussion about all the legal issues involved in mitzvah cohabitation on Shabbos.A superficial reading of the Gemara implies that this issue has not been discussed yet. But it has been discussed in our Mishna which legislates that a betulah is married on Wednesday, so that mitzvah cohabitation will be on Wednesday night. Furthermore, there are two Braisos that explain the various rules of mitzvah cohabitation and specifically say that mitzvah cohabitation should not be on Friday night.Why does the Gemara seem to ignore what has already been discussed? Rashi is first to ask this question. Tosfos will quote Rashi and elaborate on his explanation and eventually add his own opinion on this matter.The first issue that Tosfos deals with is that the ruling requiring one to marry a betulah on Wednesday afternoon and cohabit Wednesday night seems to preclude cohabitation on Friday night. Even though [the Rabonon] instituted that a betulah should be married on Wednesday so that cohabitation will be on Wednesday night and if there are claims to be made about her lack of virginity they will be made Thursday morning, thus precluding Friday night mitzvah cohabitation, even so, if it happened that they did not cohabit on the night of the fifth (Wednesday evening), [the Rabonon] did not require him to wait until the next Thursday (Wednesday evening) or till Monday (Sunday evening) to perform mitzvah cohabitation and he may cohabit on any night following the wedding.That is why the Gemara asks if it is permissible to cohabit the first time on Shabbos or not. We must now deal with Braisos that we have already learned that clearly say that mitzvah cohabitation is prohibited on Shabbos. Even though we learned in a Baraisa earlier (3b): We separate the Chosson from the Kallah Friday evening if this is the first cohabitation, because during the first cohabitation he makes a woundAnd we also learned in another Baraisa (4a): In any case1<i class="footnote">Literally - whether this or that is the case.</i> [the Chosson] should not cohabit on Friday evening etc. Here too, we see that it is forbidden to have first cohabitation on Friday night. Why then is the Gemara now asking this question and ignoring all of the previous discussions of this subject? Rashi explained: That [the questioner] did not know [these Braisos].2<i class="footnote">An Amora of the Gemara does not necessarily know all Beraitot on any given subject. See Tosfos Bava Kama 18b ד"ה אלא הא דבעי רבא. He must know all Mishnayos. When we find an Amora contradicting a Mishna, we must conclude that there is another Tano who agrees with him or that he has a different understanding of the Mishna. Obviously, Tosfos holds that it is possible for the Gemara to introduce a question by an Amora who was not aware of Beraitot that already appear in the Gemara.</i>Alternatively, [the questioner] did know [these Braisos] and he asked: What is the halacha? For it can be said that this is the subject of a dispute between R’ Yehudah and R’ Shimon as the Gemara will soon explain. Thus even in the face of Beraitot that clearly rule that mitzvah cohabitation is forbidden on Shabbos, there is still room for the question. It is possible that those Beraitot follow the opinion of R’ Yehudah who rules stringently in this matter, but the halacha may be in favor of R’ Shimon who is lenient on this issue.Tosfos decides in favor of Rashi’s first answer; that the questioner was not aware of all of the Beraitot that had previously been discussed in our Gemara. However, we are compelled to say, that it appears that [the questioner] did not know the Baraisa that rules that cohabitation may not take place on Shabbos because we are concerned that he may slaughter a young bird (5a) while preoccupied with the preparations of the banquet that usually accompanied mitzvah cohabitation.For if [the questioner] knew of [this Baraisa], what is he asking? We cannot say that this Baraisa might follow only the opinion of R’ Yehudah who is stringent in regard to unintentional acts, because in this issue of decreeing that it is forbidden to have mitzvah cohabitation on Shabbos, because one might forget and slaughter a chicken there is no dispute between R’ Yehudah and R’ Shimon. This ruling is in agreement with both R’ Yehudah and R’ Shimon and there is no reason to question it, if the questioner did in fact know of this Baraisa. We are forced to conclude that he was not aware of it.But why doesn't the Gemara cite this Baraisa as definitive and rule that mitzvah cohabitation is forbidden on Shabbos? And the reason that [the Gemara] does not ultimately resolve this issue from [this Baraisa] is because the Gemara finds Tannaim who disagree with [this Baraisa] and rule that mitzvah cohabitation is permissible on Shabbos. Once we know of Tannaim who disagree with this Baraisa, the Baraisa is no longer authoritative and we need not rule in accordance with it. There was no point in introducing it as proof that mitzvah cohabitation is forbidden on Shabbos.
  [Is it that] the blood is pooled, or [that it flows through] attached [vessels]? Tosfos is searching for the exact melacha of the thirty nine melachos of Shabbos that one violates when wounding a person or an animal. He will first quote an opinion mentioned by Rashi in Shabbos 107a that the melacha is dyeing. Rashi does in fact mention this as a second opinion on the Mishna there 107a ד"ה והחובל בהם חייב. Tosfos strongly disagrees with Rashi’s second explanation and decides in favor of Rashi’s first explanation there that the reason for liability is because wounding is a derivative of ‘taking life’. He also offers some suggestions about the nature of the melacha for which one is liable.The reason one is liable for wounding is not as Rashi explains in Perek Shemoneh Sheratzim (Shabbos 107a) in regard to the eight rodents that have a thick hide, that we learned in a Baraisa there: If one bruises any of those rodents and the blood collected under the skin, and the hide is discolored, even if [the blood] did not emerge, he is liable for dyeing.1<i class="footnote">Based on what we will learn during the course of this Tosfos we will see that he is liable only if he needs the hide to be dyed. Otherwise this would be a melacha performed not for its defined purpose.</i>Tosfos now presents four difficulties that he has with Rashi’s explanation. First: R’I has the following difficulties with Rashi’s explanation: For in Ailu Teraisos (Chulin 46b) in the Gemara that discusses the abnormalities of a lung, we learned in a Baraisa:2<i class="footnote">The Mishna in Masechet Shabbos does not say if and when one is liable for wounding one of the rodents that has no hide. Tosfos must therefore quote a Baraisa in Masechet Chulin that does deal with this subject.</i> and for all other rodents and reptiles that do not have a thick hide one is not liable until blood emerges from their bodies. Apparently, there is liability for wounding those rodents even though they have no hide that is discolored when wounded. Now, if the melacha of wounding is dyeing, there in Chulin 46b, how can the emergence of the blood be dyeing, but [those other rodents] have no hide to be dyed? It cannot be that the liability is because of the melacha of dyeing.The second Gemara that is difficult according to Rashi: And here as well in our Gemara how can this wound of rupturing the hymen be construed as dyeing? When deflowering a betulah, there is no dyeing.3<i class="footnote">Some ask that there is definitely a need for dyeing, because the Kallah wants the bloodstained bed sheets as proof of her virginity. Some Rishonim explain that the staining of the sheets is not considered dyeing, because the Gemara’s present discussion is all centered around the possibility that the virginity blood is part of the circulatory system. If the staining of the sheets is considered dyeing, there is no difference whether the virginity blood is part of the circulatory system or if it is stored. In either case the bed sheets are colored by the blood. (Tosfos HoRosh) Obviously, staining the bed sheets is soiling not dyeing.</i>The third difficulty: And so too, in regard to wounding when circumcising, dyeing is irrelevant. The Gemara says in Shabbos 106a that circumcising is wounding. But if the reason one is liable for wounding is because something is dyed as in the case of rodents that have a thick hide, how can that be applicable when circumcising?The fourth difficulty:4<i class="footnote">The Gemara in Shabbos 75a cites a dispute about the liability of slaughtering. Rav says it is because of dyeing and Shmuel says that it is because of taking life. The Gemara there concludes that Rav meant that one is liable not only for taking life but for dyeing as well, because the butcher wants the meat to have the color of fresh blood as an indication of its freshness.</i> Furthermore, we are compelled to say that according to Shmuel who disagrees with the explanation that slaughtering is liable for dyeing, there must be another reason for the liability of wounding. For in Perek Kelal Godol (Shabbos 75a) [Shmuel] says that one who slaughters is not liable for dyeing, rather because of taking life.Apparently, the reason that wounding is liable is because it is taking life as Shmuel says there.5<i class="footnote">This conclusion is a bit difficult to understand. The Gemara there is definite proof that Shmuel does not hold of liability for dyeing when slaughtering an animal, but there certainly is no indication that he holds wounding is liable for ‘taking life’. It is conceivable that Shmuel might hold that there is liability for coloring the hide of a rodent as Rashi explains. He disagrees with Rav who holds that leaving the blood on the neck of a freshly slaughtered animal is considered dyeing. It is noteworthy that Tosfos HoRosh in his version of this Tosfos does not mention this point.</i> 6<i class="footnote">We must also understand how the difference between those rodents that have a thick hide and those that do not, makes sense according to this explanation. The Rishonim explain that when a rodent has a thick hide and the blood of a bruise collects under the hide and discolors it, this is in effect wounding it, because the blood has moved out of the circulatory system of the rodent. It cannot emerge from its body because of the thick hide blocking its way. However when the rodent does not have a thick hide and the blood collects under its skin and does not emerge, this is a sign that the blood never left the circulatory system and the discoloration is much like the way the skin of a person reddens for a few moments when slapped. If the blood had detached from the circulatory system it would have come out because there is no hide to block its passage. Therefore one is only liable in the case of rodents that have no thick hide when the blood actually leaves the body. It is then that we know that it has been detached from its circulatory system.</i> And Rav who says there that the reason slaughtering is forbidden because it is the melacha of dyeing, means that one is also liable for dyeing in addition to taking life. He does not hold that there is no liability for taking life.Tosfos concludes that the reason wounding is forbidden is because it is taking life. This conclusion begs of us a precise definition of what is meant by saying that wounding is ‘taking life’. Obviously, a person or an animal does not die when wounded. Defining wounding as ‘taking life’ must mean that it is taking some life if not all of it. In what way is it ‘taking some life’?Tosfos discusses two possibilities:A) Taking some blood weakens a person even if it does not kill him. This weakness that is inflicted on the wounded party - is ‘taking some life’, and that is the reason for liability.B) The blood is referred to in Devarim 12, 23, as the נפש - life. Taking some of the נפש is ‘taking some life’.Tosfos explains why he disagrees with the first explanation (A) that it refers to the weakening of the person or animal by removing some of the blood. And one should not explain that the reason that wounding is ‘taking some life’, is because it weakens the victim for he weakens him and thus takes some of his life forces, because that definition is untenable here when causing a wound while cohabiting because the husband has no need for the weakness inflicted on the woman. Presumably one is liable only when he accomplishes that which he intended to do. Even if it is prohibited to engage in an act that will produce a result that he does not desire, there would be no Torah liability. If so, why would one be liable for wounding his wife and causing her weakness, when he certainly has no desire to do so.Tosfos proof that ‘taking life’ does not mean weakening the victim from the case of first cohabitation, because he does not need that she be weakened is not absolute. However, it can be said that the ban [the Gemara] is discussing here is Rabbinic and the Gemara does not mean that there is a violation of Torah law. Thus it is quite possible that ‘taking life’ does refer to the weakness inflicted on the victim and even thought that is not the desired goal during mitzvah cohabitation, since it does occur it is prohibited by Rabbinic law, if not by Torah law.Although Tosfos does not have conclusive proof from our Gemara that weakening the victim is not the definition of ‘taking life’, he does find proof of his position in a Gemara that discusses the wound of a child during circumcision. However, in regard to circumcision it appears that there is a Torah prohibition when removing blood, for [Rav Papa] says in Perek R’ Eliezer (Shabbos 133b): This expert surgeon who does not suck the blood of the circumcised area, is creating a danger for the life of the person being circumcised and we dismiss him from his profession. The Gemara then asks: That is obvious! Since we desecrate the Shabbos [by sucking] the blood on Shabbos, it must be that not sucking the blood would be endangering the life of the child, otherwise we would not be permitted to do so on Shabbos.The Gemara answers: Without Rav Papa’s teaching what is it that you would have said? That this blood is stored in the area of the tip of the member as if in a vessel and is not attached to the circulatory system, thus its removal is not a violation of ‘taking life’, and that is why it is permitted on Shabbos. [Rav Papa] therefore informs us that it is connected to the circulatory system and removing it is ‘taking life’ and would be prohibited if it was not needed to prevent a life threatening situation.And if the liability of wounding is because of weakening the victim, there is no Torah desecration of Shabbos, for this is a melacha that is not needed for its defined purpose,7<i class="footnote">See Artscroll general introduction to Masechet Shabbos, paragraph D. Defined purpose is the purpose for which this melacha is generally done. The classic example is digging a hole because I need the earth of the hole. Digging is forbidden either because the hole is an improvement in one’s house and is a derivative of building or it is an improvement in one’s field and it is a derivative of plowing. In either case, the defined purpose is to have the hole where I need it. Digging the hole because I need the earth is exactly the same action but it is not being done for its defined purpose. Whether one is liable or not for digging that hole is a dispute between R’ Yehudah and R’ Shimon.</i> for there is no need to weaken the infant and although it is prohibited by Torah law when done for its defined purpose, when it is not done for that purpose it is only prohibited by Rabbinic law.Tosfos presents Rabbeinu Tam’s opinion about the melacha of ‘taking life’ by wounding. It appeals to Rabbeinu Tam to explain that the removal of blood is considered ‘taking life’ - because the blood is the life (Devarim 12, 23), and when taking some of [the blood] it is taking some of the soul.R’I finds a contradiction to Rabbeinu Tam’s hypothesis: R’I has the following difficulty with Rabbeinu Tam’s explanation: For [the Gemara] says in Perek Kelal Godol (Shabbos 75a) in regard to one who catches a chilazon fish8<i class="footnote">This is a fish that has the special bluish techeiles dye needed for the construction of the Mishkon, the clothes of the Kohanim and for Tzizis.</i> and squeezes it to remove the bluish techeiles dye that is needed for tzizis, is liable for capturing. The Gemara then asks: and he should also be liable for taking life?[The Gemara] answers: he is considered preoccupied9<i class="footnote">See Rashi and Tosfos Shabbos 75a who both say that the Gemara there is referring to the concept of דבר שאינו מתכוין an unintended action. While one is squeezing the chilazon to remove its dye, he is unintentionally killing the chilazon. The killing of the chilazon is an unintentional action.</i> with removing the dye vis-a-vis the melacha of taking a life, because the longer it stays alive he the more he is pleased, etc. in that his dye will be clearer.But according to [Rabbeinu Tam’s] explanation that removal of blood is inherently‘taking life’ , there is no need to kill the fish in order to be liable for taking life, even if it is completely alive, there is liability for ‘taking of life’ by removing its blood. How can the Gemara say that he does not want to ‘take life’ because the dye will be clearer as long as the fish is alive? The very act of removing the blood, which he definitely wants to do is in essence taking life according to Rabbeinu Tam’s definition of ‘taking life’.Rabbeinu Tam must explain that the removal of the bluish t’cheiles dye which is the desired accomplishment does not constitute ‘taking life’. Rabbeinu Tam says: That the blood of the chilazon that is used for dyeing is stored within a sac in the fish, and for removal of [that bluish blood] one is not liable for ‘taking life’. However, while he is squeezing the chilazon to remove the dye it will die because of loss of its regular blood which is being squeezed simultaneously with the bluish dye. And for the remainder of the blood that is part of the circulatory system and causes the chilazon to die, [the Gemara] considers him to be preoccupied, because he definitely does not want the chilazon to die, he would much prefer that it remain alive, so that the dye will be as clear as possible.
  
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  He needs the blood [so] it is permitted. Two things happen during mitzvah cohabitation:A) The hymen ruptures and blood flows.B) An ‘entrance’ is opened into her body. Prior to the rupturing of the hymen it is difficult to enter and afterwards it is relatively easy.The Gemara is presently analyzing the needs of the husband in mitzvah cohabitation in order to determine whether it is permissible on Shabbos or not. At this juncture the Gemara is working with the supposition that the virginity blood is stored behind the hymen and is not connected to the circulatory system, thus the blood flow is not considered a wound. But an entrance is in fact created by this cohabitation even if it is unintentional. How can we ignore this reality especially since it seems to be inevitable?If you ask: Even though he needs the blood and is not intending that an entrance be made, but it is inevitable1<i class="footnote">The words רישיה פסיק literally mean: Can you cut off its head and reasonably expect it to live. These words have become a euphemism for saying that something is inevitable.</i> insofar as creating the entrance is concerned, that when he cohabits with her an entrance will automatically be created. If so, how can it be permitted to have mitzvah cohabitation on Shabbos? Even if his prime intention is the removal of the virginity blood, which is permissible since it is considered as stored and not part of the circulatory system, the unintended creation of an entrance will inevitably happen.We must answer that it is possible that one can remove the blood without forming an entrance.2<i class="footnote">See Rashi ד"ה או כר'ש, who seems to be asking this question. Why would Tosfos ignore what Rashi has already clarified? See Maharsho who explains that Rashi is explaining the second version in the Gemara that holds that virginity blood is connected to the circulatory system but the removal of the blood is a secondary unintended result of mitzvah cohabitation. Rashi clearly says that according to the Gemara he cites both the bleeding and creation of an entrance can be avoided. Our Tosfos is explaining the view in the Gemara that the blood is stored and thus it is permitted to remove this blood on Shabbos. Tosfos is asking that the unintended inevitable result of creating an entrance should be reason to prohibit mitzvah cohabitation on Shabbos. He answers that it is possible to remove the blood without creating an entrance. This possibility is not discussed in Rashi. Rashi said that it is possible to cohabit without removing blood and also without creating an entrance. The idea that these two results can be separated is not mentioned. Maharsho’s explanation is a bit difficult because Rashi seems to be citing the Gemara on 6b in reference to the first version in the Gemara, that blood is stored.</i>The Gemara at this point holds that virginity blood is not connected to the circulatory system and thus when that blood is removed it is not a wound. According to a second way of viewing it, this blood as well is connected to the circulatory system and removing it is in fact a wound, which is prohibited on Shabbos. But what is the purpose of removing the blood? Does it accord with the defined purpose3<i class="footnote">See previous Tosfos note 6, for an explanation of ‘defined purpose’.</i> of the melacha of wounding?Rabbeinu Tam explained that one needs to take out the blood so that he will not be soiled when he cohabits a second time. According to Rabbeinu Tam the ban that the Gemara is discussing must be Rabbinic, because removing blood so that it will not soil the husband in the future is a melacha that is not being performed for it defined purpose. The purpose of the melacha of wounding is to obtain the blood one needs. In this instance the husband does not need the blood. He needs that the blood should not be where it presently is because it can soil him. This is not the defined purpose of removing blood. This has ramifications later in the Gemara, as Tosfos will now explain.According to [Rabbeinu Tam’s] explanation, later when the Gemara says that virginity blood is connected to the circulatory system and if [the husband’s] need is to remove the blood it is forbidden to have mitzvah cohabitation on Shabbos, even though this is a melacha that is not being done for its defined purpose, which is permissible when confronted with pain later in the Gemara 6b, in regard to lancing a boil, where the Gemara says that if one needs to lance a boil on Shabbos in order to avoid pain, it is permitted to do so, because the removal of the fluid is a melacha that is not being done for its defined purpose. Apparently, we are lenient with this Rabbinic ban, when one suffers pain, but here, in regard to mitzvah cohabitation on Shabbos, it is forbidden, even though the ban is only Rabbinic, since it is a melacha that is not being done for its defined purpose. Later 6b Tosfos ד"ה אם לעשות לה פה, we will explain the Gemara’s question from the case of lancing a boil according to Rabbeinu Tam’s explanation that even when one needs the virginity blood it is only a Rabbinic ban, because it is melacha not needed for its defined purpose.R’I offers an explanation of ‘he needs the blood’, which will be a melacha needed for its defined purpose and the violation will be of Torah law. R’I explains that that he needs the blood during mitzvah cohabitation means that he needs to see if she is a betulah, thus it is a melacha that is needed for its defined purpose, because he needs the blood in order to know her status. The violation will then be of Torah law.
  
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  And even if you say that the halakha is in accordance with Rabbi Yehuda, it is destructive of the opening, and [therefore] is permitted. The Gemara now introduces a new concept into the discussion. It is possible that we rule in favor of R’ Yehudah that when an act will produce an unintended result that is a melacha, it is initially forbidden to engage in that act. However, the case of mitzvah cohabitation may be different, because the unintended melacha is creating an entrance and this entrance may actually be inherently destructive, because she will no longer be a virgin.Tosfos has a difficulty with this proposal. Generally when we apply the criterion of whether a melacha is constructive or destructive, it is to determine whether the transgressor is liable for doing this melacha post facto. However, it is initially forbidden to engage even in destructive melacha. Here, the Gemara seems to be applying the leniency of destructive melacha even to initially permitting mitzvah cohabitation.The explanation of our Gemara’s proposal is that R’ Yehudah holds that when one wounds1<i class="footnote">See Maharsho. The text of the Tosfos as it appears in our Gemara presents a major difficulty. The heading of the Tosfos is clearly discussing the view in the Gemara that virginity blood is stored and not connected to the circulatory system and thus not subject to the concept of wounding. The Gemara’s concern at this point is that the entrance created at the same time, although unintended may be prohibited. The Gemara suggests that this entrance might be inherently destructive and thus permitted. It is clear that the topic of discussion is that the entrance created may be destructive. Tosfos however, begins a discussion about one who is destructive while making a wound, this topic is first discussed later in the second version of the Gemara where assumes the view that virginity blood is connected to the circulatory system. Maharsho suggests that although the heading of our Tosfos is discussing the concept of destructive melacha in connection with the entrance made during mitzvah cohabitation, Tosfos begins the discussion of wounding in a destructive manner because the same guidelines are applicable.</i> in a destructive way, he is exempt and will therefore hold that mitzvah cohabitation is permitted on Shabbos.Tosfos asks: even though destructive melacha is generally exempt from punishment but nevertheless forbidden, however, here in the case of mitzvah cohabitation it is initially permitted, because there are two reasons for leniency,A) wounding in a destructive manner andB) it is an unintended action.When the Gemara discusses this issue later it is assuming that the primary purpose of Mitzvah cohabitation is the pleasure of the Chosson, wounding is an unintended side effect.However, Tosfos cites two instances where according to R’ Yehudah even though there are two leniencies the activity is in initially forbidden. The first: [This explanation] is difficult, for in the case of dragging chairs or couches along the ground,2<i class="footnote">This is the classic case of דבר שאינו מתכוין – unintended action. While dragging a chair from point A to point B, a furrow is formed in the ground. His intention is clearly to move the chair from point A to point B, but in the process he unintentionally digs a furrow. This issue is the subject of a dispute between R’ Yehudah, who prohibits dragging the chair because of the unintended result and R’ Shimon who is lenient.</i> R’ Yehudah prohibits, even though there are two reasons for leniency,A) that the resulting furrow in the ground is unintended andB) it is also destructive,as [the Gemara] says in the end of the first Perek of Chagigah (10a), where [the Gemara] interprets the ruling that one who digs a hole and only needs the soil, but not the hole itself, is exempt, even according to R’ Yehudah who holds that one is liable for a melacha that is done not for its defined purpose.And the reason one is exempt when digging a hole for its earth is because it is destructive. The hole is not needed in his house or field and digging it there is inherently destructive. So too, Tosfos assumes that the furrow created when dragging a chair is destructive, and even though there are two leniencies, that the digging was intentional and was also destructive, it is still initially forbidden.The second Gemara where R’ Yehudah initially prohibits in a situation where there are two leniencies: In Perek Yom Tov (Beitzah 23a) R’ Yehudah prohibits currying the hide of an animal with a metal comb that has thin teeth that can cause bleeding, even though there are two reasons for leniency,A) the bleeding is unintended andB) destructive.It is evident that even two leniencies are not sufficient to initially permit an activity that may result in a melacha. We must once again ask: why then would mitzvah cohabitation be permitted? We can answer: That here in the case of mitzvah cohabitation there is more reason for leniency, because there is also a mitzvah involved. As we have seen this cohabitation is called - mitzvah cohabitation.Tosfos now considers the possibility that even when there is no mitzvah involved, two leniencies may be sufficient reason to permit such activity even initially, but the leniencies must be absolute. Alternatively, even when there is no mitzvah involved, when there are two leniencies, such activity is initially permitted.But we have seen that in the case of dragging chairs and currying the hide of an animal, even though there are two leniencies it is still initially prohibited? However, in regard to digging a furrow while dragging a chair, the reason it is initially forbidden is because we can say that it is speaking about3<i class="footnote footnote">יש להעמיד literally translated means that we can set up or interpret the circumstances.</i> when the furrow is not absolutely destructive, rather in one aspect it is constructive because it is leveling holes in the surface of the earth even as it is making a destructive furrow. Even though when viewed in its entirety the result is destructive, there is however a constructive result as well and that is why it is initially forbidden.And in regard to currying the hide of an animal which is also initially forbidden even though there are two reason for leniency, that is also because causing it to bleed is also somewhat beneficial as it slightly relieves the animal’s blood pressure just as when one lets blood in order to relieve the animal’s blood pressure and it is therefore not totally destructive. However, when an activity is totally destructive and is also unintended it is even initially permissible.
  
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  And if you say that the halakha is in accordance with Rabbi Yehudah, [is one] destructive [in causing] the wound, etc. The Gemara is discussing the view that virginity blood is connected to the circulatory system and removal of this blood is the melacha of wounding. However, the Gemara is now considering the possibility that the intended purpose of mitzvah cohabitation is the Chosson’s pleasure and the bleeding is an unintended side result. If we accept this hypothesis, we then ask whether the halacha is in accordance with R’ Shimon who is lenient in the area of unintended action or is the halacha in favor of his opponent R’ Yehudah.After reaching this point in its analysis, the Gemara says that even according to R’ Yehudah mitzvah cohabitation may be permitted because the wound may be destructive and one is liable for performing melacha on Shabbos only when the melacha is constructive. (We will eventually see that R’ Shimon disagrees in the case of wounding and holds that when wounding even if destructive one is liable.)It is to be understood from the Gemara that brings up the issue of whether the wound is constructive or destructive only after discussing that the halacha may favor R’ Yehudah, that if the halacha is in accordance with R’ Shimon, even if [the wound] is constructive, it is permissible to have mitzvah cohabitation on Shabbos, since [the wound] is unintentional. Apparently, the exemption for unintended action is in effect even in the case of wounding. Tosfos will now ask that the Gemara in Kereisos seems to indicate otherwise.The Gemara there on 19b is discussing the exemption of מתעסק - doing melacha while preoccupied, which Tosfos assumes in his question is similar to an unintended action. The Gemara concludes that since R’ Shimon holds that when one wounds in a destructive manner he is liable and that wounding is not subject to the guidelines of other melachos, so too, when one violates the melacha of wounding while preoccupied, he is also liable. It seems that the general criteria for liability on the melachos of Shabbos are suspended in the case of wounding. If so, the same should apply to the rule of דבר שאינו מתכוין - unintended melacha. Why is our Gemara saying that R’ Shimon holds that when wounding during cohabitation the rule of unintended action does apply and it is permitted.The Gemara in Kereisos discusses the exemption of מתעסק - preoccupation, while our Gemara discusses the exemption of דבר שאינו מתכוין - unintended melacha, what is the difference between the two? The classic case of unintended melacha is dragging a chair along the ground - my intention is to move the chair from point A to point B. During the course of dragging the chair, I might dig a furrow in the ground. The creation of that furrow is unintended melacha.The case of מתעסק discussed there is as follows: There were two uncircumcised infants. One was eight days old and should be circumcised on Shabbos and the other was only seven days old and it is forbidden to circumcise him on Shabbos. The mohel stretches out his hand to take the eight day old baby and by error takes the seven day old baby and circumcises him. This is a case of מתעסק - preoccupation. He is fully aware that today is Shabbos and that one is not allowed to circumcise a seven day old baby, but he believes the baby he is circumcising is the eight day old baby. The Gemara there eventually says that even though the mohel was preoccupied, he is liable because the criteria of מתעסק - preoccupation is suspended in regard to wounding.This is difficult! For in the end of Perek Sofek Achal (Kereisos 19a) [the Gemara says] that according to R’ Shimon who holds that when one wounds in a destructive way he is liable because wounding is an exception to the general rule that one is liable only when engaging in constructive melacha, since wounding in a destructive way is liable, when one does melacha while being preoccupied he is also liable. The Gemara is seemingly saying that the general criteria for liability do not apply to wounding. If so, why is the criteria of unintended action different, that R’ Shimon holds that this exemption is in effect even in the case of wounding, more so than the criteria of preoccupation which R’ Shimon holds is not in effect in the case of wounding?Tosfos will explain that the difference between the exemption for מתעסק - preoccupation and דבר שאינו מתכוין - unintended melacha is the source of the exemption. We can answer: That in the case of מתעסק-preoccupation where one intends to do melacha as in the case of the mohel who circumcised the seven day old baby, who definitely intended to do what he did, but was unaware that he had the wrong baby, he is exempt on Shabbos only because this does not satisfy the criteria of מלאכת מחשבת-calculated labor,1<i class="footnote">The Torah tells us in Parshas VaYakhel Shemot 35, 33:ובחרשת אבן למלאת ובחרשת עץ לעשות בכל־מלאכת מחשבתThe Torah defines the labor of constructing the Tabernacle as “calculated labor”. This excludes two categories of labor:A) מתעסק - When one does not fulfill his objective. He planned to accomplish A and then did B. For example in the case under discussion, he intended to circumcise infant A, but did not fulfill his intention, because he circumcised infant B. Although, he was aware that it is Shabbos and that circumcising a seven day old baby is prohibited, his preoccupation with the eight day old baby misled him into believing that the act he was doing was permissible. He is exempt from liability, not only from capital punishment for an intentional violation, but even from a sacrifice for unintentional violation.B) מקלקל - Destructive activity - the labor for the Tabernacle was constructive by definition - the calculation was to produce a constructive result. When one engages in melacha for a destructive purpose he is exempt even though it is initially forbidden. If we find that the exemption of destructive labor which is derived from מלאכת מחשבת-calculated labor does not apply to wounding, then the exemption of מתעסק-preoccupation also does not apply to wounding, since they are both derived from the same source.</i> and it is because of this, that the exemption of מלאכת מחשבת- calculated labor does not apply to wounding, that R’ Shimon holds doing melacha while מתעסק-preoccupied is liable just as when wounding in a destructive manner, where R’ Shimon holds that one is liable, even though it does not satisfy the criteria of מלאכת מחשבת -calculated labor.The reason that the exemption of [preoccupation] is dependent on the exemption of being destructive is because the source for both exemptions from other melachos is the same, that is because calculated labor is required for liability. Since we find that one is liable when wounding in a destructive manner, we see that the criteria of מלאכת מחשבת-calculated labor does not apply to wounding. So too the exemption of preoccupation which is also derived from מלאכת מחשבת - calculated labor, also does not apply to wounding.The exemption of דבר שאינו מתכוין - unintended action is different. However, when one has no intention at all to perform melacha as in the case of dragging a chair where one has no intention whatsoever to dig a furrow in the ground, the exemption is not because מלאכת מחשבת - calculated labor is required for liability, for in other areas of halacha besides the laws of Shabbos where there is no requirement of מלאכת מחשבת-calculated labor, unintended action is also exempt even though the verse requiring מלאכת מלשבת - calculated labor is specifically related to Shabbos.2<i class="footnote">Tosfos position is that the exemptions of a) being destructive and b) preoccupation are derived from מלאכת מחשבת and are in effect only insofar as Shabbos is concerned. For an alternative opinion, see ריטב"א in Masechet Yoma 34b.</i>For example, in regard to kilayim, where the Mishna tells us that clothing salesmen may sell as they ordinarily do, by modeling the garments for their customers even though the garments may be of a mixture of wool and linen, as long as they do not intend etc. to benefit by being protected from the heat or cold. (Kilayim 9, 5). Apparently, the exemption for unintended activities is not limited to Shabbos and it is not derived from the verse requiring מלאכת מחשבת-calculated labor, which is exclusively related to Shabbos.Tosfos offers a second proof that the exemption of unintended action is not exclusive to Shabbos. We also learned in a Mishna: A nozir may shampoo and rub etc. (Nozir 42a) [his hair] and he need not be concerned that some of his hair will come out as a result of the shampooing, because even if it did this would be an unintended action. His intention is to wash his hair, the hair coming out is an unintended side effect. We see that the exemption of unintended action applies to the prohibition of removing the hair of a nozir as well and it is not exclusively related to the laws of Shabbos. As such it is not derived from the verse that requires מלאכת מחשבת -calculated labor, therefore for the melacha of wounding - unintended melacha is also permitted, because the source of this exemption is not from מלאכת מחשבת-calculated labor.
  
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  It is forbidden to insert this barrel stopper tightly, etc. The Gemara is proving that Rav holds that it is forbidden to engage in an act that will unintentionally produce a melacha. He says that one may not stuff a rag into the opening of a barrel. His intention is to prevent the wine or beer from coming out of the barrel, but as he tightens the rag in the hole he is unintentionally squeezing out some of the liquid. Even though the squeezing is unintentional Rav says it is forbidden to stuff the rag into the hole. Tosfos will discuss the melacha that one violates when he squeezes the rag.Rashi explains and so does Rabbeinu Chananel, the Aruch in one version and so too in the Seder of Tannaim and Amoroim that the reason it is forbidden to tighten the rag in the hole is because it is a violation of the derivative melacha ‘squeezing out’.Rabbeinu Tam will now present his case against this reason. As we will see he believes that the ban on squeezing is because it is a derivative of the melacha of ליבון-bleaching or whitening. As one squeezes a wet cloth, the cloth becomes cleaner during the process and this is a derivative of ליבון-whitening or bleaching. This, argues Rabbeinu Tam is only true when water is absorbed in the cloth but not when other liquids such as wine or oil are absorbed in the cloth, as he will attempt to prove during the course of this Tosfos.Rabbeinu Tam finds [Rashi’s explanation] difficult! For the reason that squeezing is prohibited is because it is a derivative of ליבון-whitening, and this is irrelevant to liquids other than water.For anything that soils the cloth in which it is absorbed, for example: wine, beer or oil the melacha of whitening as it is squeezed out is inapplicable, because the stain will remain in the cloth and the removal of the wine or beer does nothing to cleanse the cloth, except for water which carries out some dirt as it is squeezed from the cloth.Rabbeinu Tam’s distinction between water and other liquids is not clearly stated in the Gemara. Rabbeinu Tam sets out to prove that there is an inherent difference between squeezing water or wine and oil from a cloth. Rabbeinu Tam’s proof is based on the following premise: If squeezing a garment or cloth absorbed with wine or oil is forbidden, we should prohibit even permissible activities that might lead one to squeeze the wine or oil absorbed garment as we do in the case of garments or rags that might be soaked in water.Tosfos will first cite three sources as proof that we do prohibit permissible activity when it can lead to squeezing water from one’s garments. The first: Proof of this is from the fact that we do not decree that one may not engage in a permitted activity because one might squeeze a cloth when it is wet from wine and oil as we do in regard to clothing or rags that have absorbed water.The Gemara in Shabbos 113b is discussing how one’s walking on Shabbos must be different than his walking during the weekdays. To this end the Gemara speaks about how one must walk when encountering a canal as he is walking on Shabbos. After dismissing some suggestions about how he should act, the Gemara suggests that perhaps he should just walk through the canal even though he will become wet.As [the Gemara] says in Elu Kesharim (Shabbos 113b): If one was walking on Shabbos and encountered a water canal etc. The Gemara there speculates about how he might pass the canal without transgressing the laws of Shabbos. What should he do? Should he walk through the water, this will lead to squeezing out the water from his garments. Apparently the Gemara prohibits walking through the water and becoming wet, because this can lead to a violation of squeezing water from his wet garments.A second source that permissible activity is forbidden because it might lead to squeezing water from a cloth. We also learned in a Baraisa in Perek Hachovis (Shabbos 147b): One may dry himself with a towel but he should not bring it home while carrying it in his hand. The Gemara explains that this is because carrying it home in his hand may lead to squeezing. Once again we see that the Rabonon were very concerned that one might squeeze out a towel soaked with water.The third source that indicates the Rabonon’s concern about squeezing out water from garments on Shabbos: In the second Perek of Beitzah (18a) [the Gemara] says that according to all opinion we are not permitted to immerse garments on Shabbos and Yom Tov, and the Gemara1<i class="footnote">This is Rav Yosef’s explanation of this ruling. The Gemara there cites other explanations for the banning of immersing clothing on Shabbos and Yom Tov.</i> explains that this is a Rabbinic decree because of the concern that one might squeeze the garments and thus violate the melacha of ‘whitening’.Rabbeinu Tam has now cited three sources that indicate that there is a Rabbinic decree prohibiting garments or cloth from being soaked with water because this will lead one to squeeze out the water. He will now show us two sources that indicate that there is no such concern when wine or oil come in contact with cloth or garments. The first: However, by contrast, in Perek Tolin (Shabbos 139b) we learned in a Mishna that we may strain wine through a scarf even though the scarf will obviously be soaked by the wine that is strained through it. Why are we not concerned that he might squeeze out the wine from the scarf? Apparently, in regard to wine we do not decree that the permissible act of straining the wine should be forbidden because it might lead one to squeeze out the scarf. Tosfos assumes that the reason there is no Rabbinic decree is because even if the one did squeeze the scarf this would not be a violation of the melacha of ‘whitening’, since the scarf would remain soiled from the wine.A second source that proves that there is no concern for ‘squeezing out’ for other liquids: At the beginning of Perek Hamavi (Baitzah 30a) [the Gemara] also says in regard to one who is carrying jugs of wine or oil and needs to do it in a different way in order to avoid violating the spirit of the Yom Tov: Let him spread a scarf on [the jugs]?2<i class="footnote">See Tosfos in Beitzah there ד"ה זימנין, who says that the jugs may have been covered in such a way where the scarf would not get wet while carrying them.</i> [The Gemara] does not say that this cannot be done because it will lead him to squeezing the scarf when it gets wet. That is because ‘ליבון-whitening’ is applicable only in regard to when the absorbed liquid is water.Rabbeinu Tam has concluded his arguments showing that when cloth becomes wet from water we are concerned that this may lead to squeezing, but when it is wet from wine or oil, we are not concerned that this may lead to squeezing. His interpretation is that when squeezing water from a cloth one is cleaning the cloth and thus is doing the melacha of ליבון-whitening. However, when squeezing wine or oil from a wet cloth there is no cleansing effect since a stain and odor of the wine or oil remains in the cloth and this is not the melacha of ‘whitening’.But there are cases in the Gemara where we see that even in the case of wine and oil the prohibition of ‘squeezing’ is in effect. How does Rabbeinu Tam deal with those cases? The Gemara in Shabbos 128b is discussing a woman in labor and the various transgressions that may be done on Shabbos to assist her. And that which [the Gemara] says in Perek Mefanin (Shabbos 128b): If [a woman in labor] needs oil, her friend may bring the oil to her in her hair. She soaks her hair with oil and then walks through the street with the oil in her hair.[The Gemara] asks: But [her friend] will come to squeeze the oil out of her hair so that it can be used by the expectant mother. Why is this preferred to carrying the oil in a jug through the street? [The Gemara] answers: There is no biblical violation when squeezing out hair, because the oil is not absorbed in the hair fibers but between them. It is apparent that the melacha of squeezing out is applicable to oil, since the Gemara does not answer that there is no melacha of squeezing when the liquid is oil. So too, in Perek Notel (Shabbos 143a) the Mishna says: Regarding a sponge, if it has a leather handle, we may wipe a table with it even if it is damp, if it does not have a leather handle, we may not wipe a table with it, because this will lead to squeezing out the oil3<i class="footnote">See Rashash who wonders why Tosfos assumes that the liquid squeezed from the sponge is oil, perhaps it is water?</i> absorbed in it. Here too, we see that there is a violation of melacha when squeezing out oil.Rabbeinu Tam must differentiate between the cases where it seems that there is no violation when squeezing out oil and the cases where we find that there is a violation when squeezing out oil. That squeezing that the Gemara in Mefanin and Notel is discussing, says Rabbeinu Tam is not a derivative of ‘ליבון-whitening’ which is in effect only when squeezing out water, but it is forbidden because it is extracting, which is a derivative of threshing just as the squeezing out of olives and grapes, which is a violation of מפרק-extracting, a derivative of דש-threshing. Just as threshing removes the wanted kernels of wheat from the unwanted husks, so too, extracting the juice from grapes or olives is removing the wanted juice from the unwanted pulp of the olives or grapes.But why doesn't the melacha of מפרק-extracting apply when tightening a rag in the hole of a barrel? But here says Rabbeinu Tam that we cannot say that [stuffing a rag into the hole of a barrel] is forbidden because it is a derivative of מפרק-extracting, since the squeezed liquid is lost as it falls to the ground. The purpose of מפרק-extracting is to obtain the liquid, but when the liquid is lost it is not accomplishing the purpose of the melacha. Even though it is inevitable4<i class="footnote">See Gilyon on the gloss and Rashash. Tosfos at this point seems to hold that when stuffing rag into the hole of a beer barrel one would be liable for extracting the liquid from the rag if not for the fact that he is displeased with the result. This is very similar to the exemption of melacha that is done not for its defined purpose. There too, one is clearly doing the melacha such as digging a hole, but only for the soil. However, since he does not want the hole per se, he is not doing that melacha for the purpose that it was done in the construction of the Tabernacle and is therefore exempt. Even so, it is initially forbidden. If so why in the case of squeezing the rag, but not for its liquid, is it even permitted initially? Rashash explains that when digging a hole he intends to do the melacha of digging and therefore it is initially forbidden. However, when one stuffs a rag into a hole his intention is clearly not to do the melacha of squeezing. Even if it is inevitable, it still was not his actual intention. We may view it <u>as if</u> it is intended since it is inevitable and say that he is liable for transgressing the melacha of squeezing when he is pleased with the results, but when he is displeased with the results it is even initially permissible, since we have two reasons for leniency: a) he did not actually intend to squeeze out the rag, and b) he was not pleased with the results. Rashba and Ritva have a different interpretation of Rabbeinu Tam’s position in this matter. They see Rabbeinu Tam as holding that when the liquid is lost it is more than a situation where the melacha was not done for its defined purpose. Rather, they view it as if the melacha of extracting was not done at all. The melacha of extracting is the production of juice and when the juice is lost, there is no melacha of extracting at all. According to this opinion the entire discussion of whether when one is displeased by the result it is permissible to do the melacha, even if it is inevitable is moot, because in this instance the melacha was not done at all. Our Tosfos obviously holds that the melacha is the extraction itself, the production of juice is the purpose of the melacha and therefore he views it as if a melacha was done, but not for its defined purpose. Rashba and Ritva see the melacha of extraction as the production of juice and when the juice is lost there is no melacha at all. See Shulchan Aruch O.C. 320, 18, Mogen Avrohom 23.</i> that the wine or oil will be squeezed out of the rag and when an unintended result is inevitable it is usually forbidden even according to R’ Shimon, in this case it would be permitted to stuff the rag into the hole, because he is dissatisfied with the result of that squeezing. So too, did the Aruch explain: That any inevitable result that is not pleasing to the perpetrator is permissible. The Gemara in Zevachim 91b is discussing the prohibition of extinguishing the fire of the altar5<i class="footnote">The verse is in Vayikra 6, 6: אש תמיד תוקד על־המזבח לא תכבה – A fire shall burn constantly on the altar, it shall     not be extinguished.</i> and says that R’ Shimon permits one to sprinkle wine on the fire. His primary proof is from Perek Kol Hatadir (Zevachim 91b) where the Gemara says that according to R’ Shimon we may sprinkle wine on the fire of the altar, even though it is inevitable that it will extinguish some of the fire, since he is displeased with the consequence that this fire is extinguished, it is permissible.The Gemara in Sukkah 33b tells us that if there are more berries than leaves on the הדס-myrtle branch, it is not qualified for the mitzvah of ‘four species’. If however they are removed, the myrtle branch is qualified for the mitzvah. R’ Elozor ben R’ Shimon says that it is even permissible to remove the berries on Yom Tov, thus rendering the disqualified myrtle branch qualified. Furthermore, he cites proof from Lulav Hagazul (Sukkah 33b) where R’ Elozor son of R’ Shimon says that we may remove the grape-like berries from a myrtle branch on Yom Tov, thus rendering the myrtle branch qualified for the mitzvah. The explanation of grapes: the grapes of a myrtle branch, which are not actually grapes but berries.[The Gemara] asks: But by removing the berries, he is fixing a utensil by rendering the previously disqualified myrtle as qualified for the mitzvah of the ‘four species’? [The Gemara] interprets [this ruling] of R’ Shimon ben Elozor, as speaking of when he intends to eat the berries, thus restoring the myrtle branch as usable for the mitzvah is unintentional.[The Gemara] then asks: But R’ Shimon admits that when the result is inevitable, etc. even though unintended it is forbidden? Therefore, removing the berries even for the purpose of eating them should be forbidden, because he is inevitably fixing a utensil? And [the Gemara] answers: No, it is not as you are thinking, it is necessary to inform us that it is permitted to remove the berries when he has another myrtle branch.6<i class="footnote">הושענא - sometimes refers to the willow branch. Here it refers to the cluster of the lulav, myrtle branch and the willow branch. I have translated it as the myrtle branch, because the Gemara there is referring primarily to the myrtle branch in the cluster.</i> Since he has another myrtle branch, the fact that he is restoring this myrtle to being qualified is not considered an improvement, because he does not really need this improvement.Apparently, since he is not pleased and is not concerned that this myrtle branch be restored to qualification, it is permitted to remove the berries, even though it is inevitable that the myrtle branch will be restored to qualification by the removal of the berries. So too, in the case of the barrel-stopper, where he is not necessarily pleased but even displeased by the squeezing out of the rag, because he will lose some of the wine or beer, even though this result is inevitable it is permitted to stuff the rag into the hole according to R’ Shimon.Tosfos will now attempt to deal with all the problems raised by Rabbeinu Tam: We must be aware that Rabbeinu Tam’s essential argument is that we cannot be discussing ‘squeezing out’ that is forbidden because it is a derivative of ‘whitening’, since we find that this type of squeezing applies only to water. Whereas Tosfos quotes two cases where the Gemara is not concerned that soaking a cloth in wine or oil might lead one to ‘squeezing out’. Rabbeinu Tam assumes that this is because there is no ‘ליבון-whitening’ when squeezing wine or oil from a rag. R’I will suggest that this is not absolute proof that if one actually does ‘squeeze out’ the scarf that he is not liable. It is only proof that we are not concerned that he might ‘squeeze out’ the scarf or cloth.Rabbeinu Tam adds that the squeezing out of the beer-stopper rag cannot be forbidden as a derivative of ‘מפרק-extracting’, because one is displeased with the result when he loses the liquid as it falls to the ground. Such squeezing should be permissible according to R’ Shimon since the result is unintentional and one is dissatisfied with the result.First, R’I will deal with the possibility that in the case of the beer-stopper the ‘squeezing out’ may be a derivative of ‘whitening’. It appears to R’I that there is no difficulty whatsoever with Rashi’s explanation, because it can be said that it is forbidden to ‘squeeze out’ other liquids such as wine or oil, because that too is ‘whitening’ as it is with ‘squeezing out’ water, even though the cloth is not being cleansed when squeezing out wine or oil to the same degree as it is when squeezing out water, there is however some overall improvement in the status of the rag or cloth even when squeezing out wine or oil and one may be liable for effecting that improvement. But even so, we are not concerned that when a cloth is soaked in wine or oil that one might squeeze out the wine or oil, since the taste and odor remain in the garments and the benefit of ‘squeezing out’ is minimal. Therefore it is permitted to strain wine through a scarf or cover jugs of wine and oil with a cloth, because even if they do become soaked with these liquids there is no concern that one might squeeze them out. This does not however indicate that if he did squeeze them out he would not be liable. Rather, he definitely would be liable when squeezing for even the minimal benefit, but we are not concerned that he might forget himself and do it for the minimal benefit that he might gain.Accordingly, when stuffing a rag into a beer barrel hole the resulting squeezing out of beer or wine is a violation of the melacha of ‘squeezing out’ - a derivative of ‘ליבון-whitening’.Now R’I will deal with the possibility that the ‘squeezing out’ in our Gemara may even be a derivative of מפרק-extracting. Rabbeinu Tam’s conclusion that stuffing the beer-stopper into the barrel cannot be forbidden as a derivative of מפרק-extracting, is because the liquid is lost. Thus, even though it is inevitable that the liquid will be squeezed out of the rag, it is permissible because of the ruling of Aruch that even when an unintended action yields inevitable results, if they are displeasing it is not forbidden. R’I will disagree with the premise of Aruch.We can also say that stuffing the rag into the hole is forbidden because it is ‘מפרק-extracting’, and even though the inevitable result is displeasing, it is initially forbidden according to R’ Shimon, as is the case with a melacha that is not done for its defined purpose. According to R’ Shimon when one digs a hole for its soil he is not liable, because the melacha was not done for its defined purpose, which is either to improve one’s field or building, even so it is initially forbidden. So too, in the case of extracting the liquid from a rag, even though there is no liability because he is displeased with the result, it is still initially forbidden.But the Aruch cited two cases as proof of his hypothesis that one may engage in an act which will inevitably result in a melacha, if the resulting melacha is displeasing? How will R’I deal with those cases? The proofs of the Aruch are not proofs. For that case which he cited where R’ Shimon permits sprinkling wine on the fire of the altar, which is generally forbidden because this violates the negative commandment against extinguishing the fireof the altar, but is permitted in this case, presumably because one is displeased with the result of his sprinkling it can be said that this case is different because the sprinkler is engaged in a mitzvah of offering wine on the altar. That is why it is even initially permitted, but in the case of the beer-stopper, even though one is displeased with the loss of beer, it is initially forbidden.So too, that case of permitting the removal of the berries on a myrtle branch because he has another myrtle branch, which the Aruch understands is permitted because one is not necessarily pleased with the result of now having a qualified myrtle since he already has one, it can also be said that it is permitted there because it is a mitzvah, but without the element of mitzvah it would be initially forbidden.The Aruch’s proof from the case of the myrtle branch is based on his understanding that the Gemara is conceding that although the result of fixing a utensil is inevitable because he will definitely now have a qualified myrtle branch, it is initially permitted because he may not be pleased with this result since he already has a qualified myrtle branch. Tosfos will now suggest an explanation of the Gemara which says that since he already has a qualified myrtle branch it is no longer inevitable that a utensil will be created by the removal of the berries.R’I assumes in this explanation that restoring a qualified myrtle branch is only to be considered fixing a utensil if the myrtle branch is ultimately needed. Otherwise, even a qualified myrtle branch is inherently not a utensil. It attains the status of a utensil, only when needed and used for the mitzvah, but if it is never needed it cannot be considered a utensil. See Rashi Sukkah 33b ד"ה לא צריכא. Alternatively, this is the explanation of the Gemara that discusses making a utensil when removing the berries from a myrtle branch. But it is inevitable that it will become qualified when the berries are removed? The Gemara answers: That he has another qualified myrtle branch and since this is so, it is permissible according to R’ Shimon to remove the berries, because perhaps he will not need [the myrtle branch] and it will turn out that he never fixed a utensil, because a myrtle branch is considered a utensil only when it is in fact needed and used.Therefore, the result that one will have created a utensil is not inevitable, because it may turn out that this myrtle branch will never attain the status of ‘utensil’, if it is never needed. However, according to R’ Yehudah it is forbidden to remove the berries from the myrtle branch because he might need it and it will be revealed retroactively that he made a utensil. R’ Yehudah never allows one to engage in a permissible act even if there is only a possibility that it might result in an unintended melacha. For example: R’ Yehudah prohibits dragging a chair across an earthen floor, even though it is not certain that the dragging will result in a furrow. So too, when there is a possibility that in the future it will turn out that the removal of the berries resulted in the creation of a utensil, it is initially prohibited to remove those berries.R’I refuted the proofs of the Aruch. He will now present two cases that are especially difficult according to Aruch’s ruling that when an inevitable result is displeasing it is permitted to engage in such action. There is the following difficulty with the explanation of the Aruch: We learned in a Mishna in Perek Shemonah Sheratzim7<i class="footnote">The Mishna is actually in Eduyos 2, 5. It is quoted in Shabbos 107a.</i> (Shabbos 107a): One who lances a boil on Shabbos, if his intention is to create an opening so that the puss will run out and air will come in he is liable, but if his intention is to remove the puss from the boil he is exempt. And it is only because of the pain8<i class="footnote">See פני יהושע who questions where Tosfos saw that this is permitted only to avoid pain and suffering. It is certainly not clearly mentioned in the Gemara.</i> that he is exempt and even initially permitted, but if not for the pain it would be initially forbidden, even though he is not at all pleased with the opening, for if he was pleased with the opening, even if he did not intend to make that opening he would also be liable.9<i class="footnote">Tosfos here holds that when an unintended result is inevitable it is considered as if one intended for that result to happen. In most instances the result will be a melacha not done for its defined purpose since in fact there was no intention to perform that melacha, the perpetrator most probably does not need the result. For example, when dragging a heavy chair across an earthen floor. Presumably, when one is dragging the chair in order to move it from point A to point B, even if the furrow was inevitable, he usually does not need that furrow and it is a melacha done not for its defined purpose. However, when one does happen to need the unintended result and is even pleased that it happened he can be liable for the unintended inevitable result, since that inevitable result is something that pleases him, such as in the case of the lanced boil. Although he did not intend to make an opening, he is pleased that it happened. The unintended result is then considered a melacha that was done for it defined purpose and one is liable.</i>The Gemara in Shabbos 107a compares the ruling of lancing a boil to a Mishna about using a needle to remove a splinter. Removing a splinter results in unwanted bleeding, even so it is permitted to remove a splinter. Tosfos assumes that it is permitted only to avoid pain. Tosfos uses this comparison to contradict the Aruch’s ruling. So too, the Mishna on 122b says that a hand needle10<i class="footnote">A hand needle is an ordinary sewing needle. It is called a hand needle - to distinguish it from a heavy pick like needle used for sewing sacks.</i> may be moved on Shabbos to take out a splinter, which is permissible because of the pain of leaving the splinter in place, even though this will result in bleeding, but if not for [the pain] it is forbidden to remove the splinter, even though he is not at all pleased with the bleeding. It is evident that his displeasure with the bleeding is not sufficient grounds to permit the removal of the splinter.Tosfos introduces a Gemara that seems to bolster the ruling of the Aruch that engaging in a melacha that yields an inevitable result, which is displeasing, is even initially permissible.The Gemara in Shabbos 145a is discussing squeezing out pickled vegetables. Rav says that if one’s intention is to eat the vegetables without the liquid, it is permitted. On the surface this seems to agree with the Aruch’s opinion that since the liquid is lost and he is displeased with this result, it is initially permitted even though this result is inevitable.But there is a bit of a difficulty, if engaging in an activity where there will be inevitable results that are displeasing is forbidden, why does Rav say in Perek Chavis (Shabbos 145a): Regarding pickled vegetables that one squeezed for themselves in order to eat the vegetables without the pickling brine, he is exempt and it is initially permissible, since he does not need the water that is extracted? If we say that the Aruch is correct that when one is not pleased by the inevitable result it is permissible to engage in such activity, we understand that this is a case where the loss of the pickling brine extracted is an inevitable result which is not pleasing, but now that we say that even if displeased by the result it is forbidden to initially engage in such activity, even though he does not need the pickling brine and is not pleased by its loss, it should still be forbidden.We must find another reason why squeezing the pickled vegetables to remove the brine is initially permissible. The melacha of extracting juice from olives and grapes is by definition extracting a liquid from a solid. When we remove one solid food from another, that is not a derivative of squeezing the juice of grapes and olives. How do we view the pickling brine that is extracted from pickles. On the one hand it is definitely a liquid and not a solid. But on the other hand, it is definitely not something that I am about to drink.R’I says: That we can say that only in the case of pickled vegetables, is it initially permitted to extract the brine in order to eat the vegetables themselves, because [the brine] which is extracted from them is similar to a food that comes apart and is not viewed as a liquid being separated from a food, and it is not called a drink, as [the Gemara] there says that even when one squeezes them in order to use the pickling brine, he is exempt but it is initially forbidden. Tosfos understands that the reason for the exemption is because the liquid extracted is not considered a drink and thus by Torah law the melacha of extracting liquid from solid has not been performed. By extension when the intent was not for the liquid at all, it is even initially permissible.R’I now offers another explanation for not being concerned about squeezing out wine from a scarf, other than Rabbeinu Tam’s explanation that there is no ban on squeezing out wine and oil from a rag or clothing. Furthermore, it can be said that when a person does anything intentionally, such as soaking a cloth in wine or oil, it is not reasonable to say that it should be forbidden because he might squeeze out the cloth, because logic dictates that since he is intentionally soaking that cloth, he is aware of what he is doing and he will not forget himself and then squeeze out the cloth. It is only when one is engaged in activity where the cloth might get wet unintentionally that it is reasonable to say, he may forget himself and squeeze out the cloth.For this reason in regard to to straining wine11<i class="footnote">See Gra Shulchan Aruch O.C. 319, 10, who rejects this argument of R’I because this is contradicted by the very first Gemara Shabbos 113b, quoted earlier in this Tosfos. The Gemara when discussing a person who encounters a canal in his path, says: Let him walk through it? His clothing will get wet and he will come to squeeze them out. In this case he would be getting wet intentionally, fully knowing what he was doing and even so the Gemara says that it is forbidden because he might come to squeeze out his wet garments. Perhaps the Gra’s question can be answered as follows: The Gemara there is speaking of when the water in the canal is not very deep. It is possible that he might walk through with only soaking his shoes but not his clothing, as the Gemara says: <u>Sometimes</u> his clothing might become wet. This expression indicates that it is not certain that they will become wet. Since it is not certain that his clothing will become wet, we cannot say that he is fully aware that he is soaking his garments and will not come to squeeze them. However, in the case of the student who is going to visit his teacher on Yom Kippur the Gemara is discussing neck-high water. There he certainly knows that his clothing will become wet and we do not suspect that he will forget himself and squeeze out the clothing. So too, in the case of the Niddah who is immersing on Shabbos or Yom Tov. She is certainly aware that her garments will definitely be soaked. Indeed, it is her intention to immerse them so that they will be tahor. Since she is doing this intentionally, there is no concern that she might forget herself and squeeze out the clothing.</i> through a scarf we are not concerned that he might forget what he is doing and squeeze out the scarf, because he is fully aware of the reality that he is soaking his scarf and that he must be careful not to squeeze out the wine.The Gemara in Beitzah 18a says that a niddah may immerse herself on Shabbos while wearing her clothing when she does not have tahor clothing to wear after the immersion. In this way, as she is immersing herself the clothing become tahor as well. But how can this be permitted? Why are we not concerned that she might squeeze out the wet clothing? It also comes out well that [Gemara] (Beitzah 18a) that a niddah may resort to subterfuge and immerse with her clothing. Since she is intentionally soaking the clothing there is no concern that she might forget herself and squeeze out the water from her garments.So too, in the eighth Perek of Yoma (77b) the Gemara says: One who is going to visit his teacher on Yom Kippur, when it is forbidden to wash one’s person, may pass through neck-high water, and we do not decree that this should be forbidden because perhaps he will ‘squeeze out’ his wet clothing, because it is with his full knowledge that his clothing will become wet that he is doing this. Since he is aware that his garments will become wet, there is no concern that he might forget himself and squeeze them out.Furthermore, it can be said that there in the case of one who is visiting his teacher and the niddah who is immersing that it is different, becausewe are more lenient when one is involved in a mitzvah.12<i class="footnote">Maharsho asks: If there is a difference between when one is doing a mitzvah or doing a permissible act, what is our Gemara’s question from Rav’s statement that one may not stuff a rag into a hole in a beer barrel? That is not a mitzvah, whereas mitzvah cohabitation definitely is a mitzvah. See Maharsho for his solution and also Rashash.</i>Tosfos presents a second explanation by the Aruch about the nature of the ban against using a beer bottle-stopper on Yom Tov. Rabbeinu Tam who rejects the explanation that the ban is because of ‘squeezing out’ seems to accept this second explanation of the Aruch. In Aruch there is another version. A hole of a beer barrel: the wood (Rashba and Ritva) used as a stopper of a beer barrel may not be tightened in the hole because the wooden stuffing might become part of the barrel and a utensil will be made in Shabbos.13<i class="footnote">For example: if the hole is half-way along the height of the barrel, when permanently sealing the barrel with the wood stopper, one now has a barrel that can hold twice as much as it previously held. Making this extension is creating a utensil on Shabbos and prohibited. There is a general dispute among the Rishonim whether the melacha of ‘building’ is applicable to utensils. Tosfos here obviously holds that although the Gemara rules (Beitzah 22a) that there is no ‘building’ for utensils, this is true only for minor corrections to an already existing utensil. This is in contrast to adding even the smallest improvement to a building where one is liable even for the smallest improvement. That is not true of utensils. However, when one builds a utensil from scratch or even adds a significant part of a utensil, one is liable for building.</i> This explanation is not appealing to R’I. For how is it possible for this to happen? If it is his mind-set to permanently leave14<i class="footnote">לבטל - literally means to nullify. In the sense that it is used here it is nullifying the existence of the wooden stopper as an independent entity by permanently leaving it in the hole to become a part of the barrel, thus expanding the barrel’s capability to contain liquid.</i> the wood stopper there as he puts it into the hole, how is the term inevitability, which indicates that the result is not an immediate but secondary result relevant here? He is directly making a utensil because it is his intention to do so. If it is not his mind-set to permanently leave the wood stopper there, it is not inevitable that it will be made into a utensil. He may decide not to leave the wooden stopper in the hole. Where is the inevitability?We can answer, if however awkward, that we are speaking of when he intends to permanently leave the wooden stopper in the hole, but he does not intend that it should become a utensil. It can be said that the unintended result of creating a utensil is an inevitable secondary result of stuffing the hole, since it was not at all his intention to create a utensil, but only to leave the wooden stopper in that place. The primary intent is to leave the wooden stopper in the hole, the unintended secondary result is that the wooden stopper will become a utensil, that is unintended but inevitable.Summary:There are two reasons to prohibit ‘squeezing out’.A) ‘ליבון-whitening’ - cleaning the cloth in which the liquid is absorbed.B) ‘מפרק-extracting’ - as in squeezing juice out of grapes and olives. This melacha is a derivative of as-threshing. When squeezing a wet rag or garment the liquid produced is similar to the juice extracted from fruits.Rabbeinu Tam holds that neither type of squeezing out is relevant to stuffing a rag into the hole of a barrel. A) whitening is not an issue because the liquid leaves a stain and odor in the rag or garment. B) extracting is not an issue because the liquid is lost.Consequently, he must hold that even though it is inevitable that the liquid will be squeezed it is not forbidden because he is dissatisfied with the results. This accords with the opinion of the Aruch that whenever an inevitable result is not pleasing to the perpetrator, it is permitted.R’I disagrees with Rabbeinu Tam on all three points. He holds that A) whitening may apply because there is some improvement in the cleanliness of the rag or cloth, even if it is only minimal. B) extracting may apply even if the liquid is lost, because he disagrees with the Rabbeinu Tam and the Aruch on the third point and holds that an inevitable result is forbidden even if the result is not pleasing.Rabbeinu Tam seems to accept a second explanation of Aruch that we are discussing tightening a wooden stopper in the hole of a barrel with the intention of leaving it there permanently. This is forbidden because inevitably by stuffing the hole one is adding a significant part to the utensil and is liable for ‘building’.
  
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  Actually, Rav holds in accordance with Rabbi Yehuda. In Rav’s academy it was taught that Rav ruled that mitzvah cohabitation may be performed on Shabbos and that Shmuel ruled that it may not. The Gemara then showed that Rav is generally stringent as far as a permissible activity that yield an unintended result that is a melacha. The Gemara reconciles Rav’s lenient ruling in the issue of mitzvah cohabitation on Shabbos with his generally stringent ruling. The Gemara seems to overlook Shmuel. After all Shmuel also seems to be on the wrong side of his generally lenient ruling. Tosfos reconciles Shmuel’s opinion as well.According to Shmuel also we can answer that actually he holds like R’ Shimon and is usually lenient as far as unintended results are concerned and even so he is stringent about mitzvah cohabitation on Shabbos	for the following reasons: According to that version that says virginity blood is stored and therefore its removal presents no problem on Shabbos, the purpose of mitzvah cohabitation is that [the Chosson] needs an entrance into her body. That is an intentional improvement and therefore forbidden on Shabbos.According to that version that says that virginity blood is attached to the circulatory system and thus its removal during cohabitation is subject to the prohibition of wounding, Shmuel will hold that the purpose of mitzvah cohabitation is because [the Chosson] needs the blood. Thus the wound is intentional and therefore prohibited.Summary:Based on all the previous analysis of what occurs during mitzvah cohabitation, it is relatively easy to find a way where the intended result is forbidden and that is why Shmuel will hold that mitzvah cohabitation is forbidden on Shabbos. This is unrelated to his position that even when permissible activity yields unintended melacha it is permissible to engage in such activity.
  
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  What, is it not [referring to a case] where if he did not [yet] engage in cohabitation, he may cohabit [even on Shabbat]? The Gemara quotes a Mishna in Masechet Niddah 64b that is discussing the length of time after mitzvah cohabitation that the Kallah’s bleeding may be attributed to the wound of mitzvah cohabitation and there is no concern that it might be menstrual blood. The Mishna mentions different periods in a young girl’s life and allots a specific time for each of these periods.Our Gemara quotes a section of the Mishna that discusses a girl who is of age to have her first period, but it has not yet arrived. The Mishna informs us that Bais Hillel holds that we may attribute any bleeding she experiences during the first four nights of her marriage which include Wednesday, Thursday, Friday and Saturday nights to the rupturing of her hymen.A cursory reading of the Mishna says nothing about whether mitzvah cohabitation is permissible on Friday night. The Mishna is clearly discussing a situation where mitzvah cohabitation was performed on Wednesday night and she continued to bleed during cohabitation on the following nights. Yet our Gemara introduces this Mishna as proof that mitzvah cohabitation is permitted on Friday night. This is very strange, since the Mishna does not seem to be speaking about this subject at all. Tosfos will explain why the Gemara initially thought that the Mishna is teaching us about the permissibility of mitzvah cohabitation on Friday night.Tosfos explains that the Gemara is convinced that there is a message here about mitzvah cohabitation on Friday night because otherwise, for what reason did [the Mishna] mention that he may continue to have relations with her till Saturday night, if it is not that he is coming to inform us that he may cohabit initially even on Shabbos, even though he will be removing virginity blood.A simple alternative is to say that the Mishna is teaching us that the four nights during which we attribute any bleeding to the rupturing of the hymen and not to menstruation must be consecutive nights, Wednesday, Thursday, Friday and Saturday nights. After Saturday night one may no longer attribute any bleeding to the rupturing of the hymen and if she does bleed we must be concerned that it may be menstruation. Tosfos rejects this alternative.For it cannot be said that [the Mishna] mentioned “until Saturday night” in order to inform us that it is required that the four nights that the Mishna speaks of in Niddah 64b must be consecutive nights,for in reality it is not required that the four nights be consecutive nights, as we learned in a Baraisa in the last Perek of Niddah (64b): it happened that [R’ Nosson] allowed [a young lady who had not yet had her period] to have relations with her newly married Chosson for four nights within a twelve month period, even though she continued to bleed each time they cohabited. It is quite evident that those four nights do not need to be consecutive nights.And this is the explanation of the Mishna in Niddah 64b that speaks of allowing four nights: We allow her to have relations with her newlywed husband for four nights until Saturday night, that he may cohabit each night including Friday night, and he will remove some of the virginity blood each and every night until and including Saturday night. The Mishna is thus informing us that it is permitted to remove virginity blood on Shabbos.1<i class="footnote">See Rashi 6b ד"ה מאי לאו who explains that there are times that even though we know that the first cohabitation was already performed, we are still quite certain that the following cohabitations will also draw blood. See Maharsho who explains that these subsequent cohabitations are exactly the same as the very first since they definitely will produce blood. If the third such cohabitation is permitted on a Friday night, so is the very first.</i>Tosfos now explains the give and take between the defender of the proof from the Mishna in Niddah 64b and his challenger: [The challenger’s] answer to this proof from the Mishna is: No, that is not the correct explanation of “until Saturday night”, rather the intent of the Mishna is that Friday night is excluded from mitzvah cohabitation which may result in her bleeding. The reason “until Saturday night” is mentioned in the Mishna is to inform us that in order to attribute her bleeding to the rupturing of the hymen, the four nights need to be consecutive nights.At this point [the defender] could have contradicted this explanation of the four nights from the Baraisa in the last Perek of Niddah quoted earlier where it is evident that the four night in which we attribute all bleeding to the rupturing of the hymen may even be non-consecutive.However, [the defender] contradicts [this challenge] from the very Mishna2<i class="footnote">See Rashash who says that this quotation is from the Mishna in Niddah 67b and not from a Baraisa. See his notes to Nedarim 26a ר"ן ד"ה איתיביה for an explanation of why Tosfos refers to this Mishna as a Baraisa.</i> that was initially quoted to prove that cohabitation is permitted on Friday night: But the Mishna does in fact say that he may cohabit with her until Saturday night for four nights. It is clear that the Mishna is speaking of consecutive nights. The Mishna cannot mean that the bleeding is attributed to the rupturing of the hymen only on consecutive nights, because that is untrue as we learned in the Baraisa in Niddah 64b. It must mean that for four nights one may perform mitzvah cohabitation including Friday night and it is specifically telling us that mitzvah cohabitation is permissible on Shabbos.Tosfos now attempts to get a better understanding of the challenger in the Gemara who is insisting that the Mishna in Niddah is not discussing mitzvah cohabitation on Friday night. If you ask: Initially when [the challenger] answered  that the Mishna in Niddah that speaks of four nights excludes Shabbos, what was was on his mind? But the Mishna clearly states - four nights until Saturday night? How can this be interpreted any other way?We can answer: That it entered upon [the challenger’s] mind that this is the meaning of these words in the Mishna: We allow her to have relations until and including Saturday night, but excluding Friday night, which between all of the nights mentioned, including three when cohabitation is permitted and Friday night when cohabitation is not permitted, totals four nights.[The defender] asks: that this is a departure from the simple meaning of the Mishna, which is that he cohabits on four nights.The challenger] answers in defense of his position that there is no proof from the Mishna in Niddah 64b that mitzvah cohabitation is initially permitted on Friday night: [The Mishna] that does allow cohabitation on Friday night is speaking of when he already cohabited3<i class="footnote">See Note 1. Here we are speaking of when it is not expected that the subsequent cohabitation will bring about bleeding. It is reasonable to expect that there may not be any further bleeding, but of course there is always the possibility of further bleeding. The challenger contends that it is necessary for the Mishna to teach us that cohabitation is permitted on Friday night, if there is a likelihood that the Kallah might bleed, just as Shmuel found it necessary to teach that one may walk through a tight door even though he might dislodge some pebbles. There is no proof that when we are certain that cohabitation will definitely produce bleeding that it is permitted on Friday night.</i> on Wednesday and Thursday nights.But if mitzvah cohabitation was already performed on the previous nights, why does the Mishna need to teach us that it is permitted to cohabit on Friday night? How could it possibly be forbidden?[The Mishna] is informing us, as the Gemara will soon explain afterwards, that even though relations with her at this point are comparable to entering a narrow doorway, where there is a likelihood that some pebbles in the doorway will be dislodged. So too, when cohabiting Friday night with his newly married wife, even though the initial mitzvah cohabitation has been performed, there is a possibility that he may draw more blood. We see that there is a likelihood that he may draw more blood because if she does in fact see blood we will assume that it is definitely virginity blood. Obviously, even prior to Friday night cohabitation we are aware of the possibility that he may draw blood and even so it is permissible. However, initial mitzvah cohabitation when she will definitely bleed is forbidden.
  
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  What is [the tanna] teaching us? The defender’s argument seems to be that if there was already mitzvah cohabitation before Friday night, what novelty is the Mishna teaching us by saying that one may cohabit Friday night? But there definitely is a novelty and that is that even though she bled, there is no concern that this is menstrual blood? How can the defender argue that there is only a reasonable novelty if the Mishna is speaking of when there was no mitzvah cohabitation as of yet?We have seen in the previous Tosfos that there are two possible reasons that the Tano might say that is allowed to cohabit for four nights until Saturday night:A) To indicate that the four nights must be consecutive nights and if they are not consecutive we must be concerned that the bleeding was menstrual.B) To indicate that cohabitation is permitted even on Friday night.Tosfos explains that the Gemara means that there is no novelty, with [the Tano] specifying that cohabitation is permitted “until and including Saturday night”. For it cannot be said that the purpose of mentioning till “after Saturday” is to tell us (A) that it is required that the four night be consecutive, because that is simply not true as we explained1<i class="footnote">See Maharsho. He is dissatisfied with the dialogue of the Gemara according to Tosfos. He offers an alternative explanation of the Gemara.</i> in the previous Tosfos. It must be that the reason for mentioning ‘four nights till Saturday night’ is to inform us (B) that mitzvah cohabitation may take place even on Shabbos.
  
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  Is it not so, that he is preoccupied for he needs to cohabitate? etc. The Gemara quotes a Mishna in Masechet Berachos 16a, where the Mishna says that if the Chosson has not performed mitzvah cohabitation Wednesday night after the wedding, as long as he has not yet performed mitzvah cohabitation he is exempt from reciting Shema Thursday, Friday and Saturday nights. The Gemara assumes that he is exempt Friday night, because he is preoccupied with the mitzvah of cohabitation on Friday night as well. This proves that mitzvah cohabitation may be performed on Shabbos. Otherwise, he should not be exempt from reciting Shema Friday night when he cannot perform mitzvah cohabitation and is not preoccupied with the mitzvah.The Gemara proceeds to offer an explanation for why a Chosson might be exempt from reciting Shema even if he may not perform mitzvah cohabitation on Shabbos. It never dawns on the participants in this dialogue that perhaps when the Mishna states he is exempt till Saturday night, that perhaps Friday night may be excluded. The Gemara is quite certain that one is exempt even Friday night and retains this position throughout the entire dialogue. The only question is why.Earlier when the Gemara quoted a Mishna from Masechet Niddah 64b, which seems to indicate that one may perform mitzvah cohabitation on Friday night, the Gemara suggests that perhaps Friday night is excluded. Why is it that the Gemara that discusses the Mishna in Berachos 16a never considers the possibility that the Mishna is not speaking about Friday night and that the Chosson truly is required to recite Shema on Friday night?Here, when discussing the Mishna of Berachos 16a, which says that a Chosson is exempt from Shema from the first night (Wednesday) till Saturday night, [the Gemara] cannot answer that Shabbos is excluded, as it did earlier when asked from the Mishna in Niddah 64b that says one is permitted to cohabit until and including Saturday night. The Gemara suggests: Perhaps Friday night is excluded? Why doesn't the Gemara suggest the same for the Mishna in Berachos 16a: Perhaps Friday night is excluded?For if so, that Friday night is excluded, [the Chosson] is not exempt until Saturday night, because he must recite Shema on Friday night, and if that suggestion is correct you are saying the Tano erred, when he exempted him from reciting Shema until Saturday night, because the statement that he is exempt until Saturday night is inherently untrue if he is obligated to recite Shema on Friday night.The Mishna in Niddah 64b is primarily discussing the issue of :A) how long after mitzvah cohabitation we may assume that any bleeding is virginity blood. It is also indicating according to our GemaraB) that one may perform mitzvah cohabitation Friday night.However, earlier when discussing the Mishna in Niddah 64b, which says that we allow her four nights until Saturday night, during which time we will attribute any bleeding to the rupturing of the hymen, and not to menstruation, even if we say that (B) is not true and Friday night is excluded and the Chosson may not perform mitzvah cohabitation on Shabbos, even so, it is with good reason that the Tano specifically mentioned that cohabitation is permitted until and including Saturday night, because until Saturday night we may take for granted (A) that any bleeding is from virginity blood, even if he violated the prohibition against mitzvah cohabitation Friday night and cohabited with her anyway. Post facto we will rule that the blood was virginity blood and not menstrual blood. In order to stress this point the Mishna can say “and we give her four nights till Saturday night”, even though it is initially forbidden to cohabit Friday night, because in regard to whether the bleeding is virginity blood or menstrual blood, we will rule that any bleeding was virginity blood.
  
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  Rav Abba said: A mourner is obligated in all the mitzvoth, etc. The Gemara is searching for proof that when one is preoccupied with a non-mitzvah matter he is not exempt from mitzvah performance. To this end the Gemara introduces R’ Abba’s opinion that even a mourner is obligated to perform all mitzvot, even though he is definitely preoccupied with the loss of his close relative. The preoccupation with the loss of a relative is not a mitzvah. Only the physical manifestations of mourning are a mitzvah. See Rashi Sukkah 25a ד"ה טירדא דרשות, Artscroll here note 16.It is evident that one is not exempt from a mitzvah merely because he is preoccupied, rather it is only when the preoccupation is about the performance of a mitzvah that one is exempt.The Gemara does not tell us how Abaye deals with R’ Abba’s statement. Tosfos supplies this information. Abaye holds that when one is preoccupied with a matter where there is absolutely no mitzvah at all such as the grief of losing a relative, he is obligated to perform mitzvot, but the preoccupation that stems from not being allowed to cohabit because it is Friday night is considered preoccupation with a mitzvah, since he is preoccupied with the fact that he cannot perform a mitzvah. However, preoccupation with the loss of a relative is totally unrelated to a mitzvah and a mourner must therefore perform all mitzvot.
  Except for tefillin; as it is said of them, "splendor." A mourner is obligated to perform all mitzvot with the exception of tefillin, because the word ‘glory’ is used to describe tefillin. Rashi explains that a mourner who is soiled with dust of mourning is unfit to wear that which is described as ‘glory’. He is not in the proper frame of mind to be wearing tefillin of ‘glory’.A cursory reading of Rashi leads us to believe that this is the reason that a mourner does not wear tefillin. However, Tosfos quotes a Gemara in Moed Katan 15a where it appears otherwise. Rashi in Sukkah 25b ד"ה מדאמר also quotes that Gemara. We must reconcile Rashi’s explanation here with the Gemara in Moed Katan 15a and with his own explanation in Sukkah 25b.After quoting the statement of R’ Abba who says that tefillin are called ‘glory’ Tosfos explains: And [the Gemara] says in the last Perek of Moed Katan (15a): Since the Merciful One said to Yechezkel “You must don your glory”, it is understood that for everyone else it is forbidden to wear tefillin. It is clear from the Gemara in Moed Katan that the source of this prohibition is that the Merciful speaks to Yechezkel and tells him to wear tefillin during his period of mourning because he is an exception, all others however are not permitted to wear tefillin.This seems to contradict Rashi who says that the reason all mourners do not wear tefillin is because the tefillin are called ’glory’ and a mourner's mental state is anything but glorious. How can Rashi’s explanation of the exemption of tefillin be reconciled wit the simple reading of the Gemara in Moed Katan?And Rashi who explained - that it is written in regard [to tefillin] ‘glory’, and a mourner’s radiance1<i class="footnote">קרנו - literally means his horn. People do not have horns. In Parhas Ki Sisa Shemot 34, 29, the Torah speaks of the radiance of Moshe’s face when he descended from Mount Sinai. Perhaps the word קרן used here by Rashi is related to that radiance.</i> and head are soiled with the dust of mourning. He is unfit to wear the Tefillin of glory. But why did Rashi need to offer this explanation, it is clear from the Gemara in Moed Katan that the derivation is from the fact that the Prophet Yechezkel was told to wear tefillin to the exclusion of all others?Tosfos explains Rashi’s thinking: That explanation of why tefillin are especially inappropriate for a mourner is to convey the reason why we cannot learn that a mourner is exempt from all other mitzvot just as he is exempt from tefillin. Generally, we would say that just as a mourner is exempt from donning tefillin, he is also exempt from all other mitzvot. But that is not true here. R’ Abba clearly says that a mourner is obligated in all other mitzvot. Why don't we learn from tefillin that he is exempt? Rashi needed to explain that tefillin are especially inappropriate for a mourner, because the ‘glory’ of tefillin does not conform with the mourner’s head that is soiled with the dust of mourning. Therefore we cannot derive that a mourner is exempt from other mitzvot as he is exempt from tefillin.2<i class="footnote">Perhaps Rashi is reading this explanation into the text of our Gemara. The Gemara in Moed Katan 15a says that a mourner is exempt from tefillin because Hashem said to Yechezkel “You must don your glory” - which indicates that only Yechezkel must wear his tefillin while a mourner. Other mourners do not wear tefillin. The Gemara there quotes the verse. R’ Abba here in Kesubos says that tefillin is an exception to all other mitzvot because the word ‘glory’ is used to describe tefillin. He does not quote the verse. It appears that R’ Abba is explaining why tefillin is different than other mitzvot. It is because they are described as ‘glory’ and a mourner is anything but glorious.</i>The Gemara in Moed Katan 15a derives many of the laws of mourning from Yechezkel 24, where he was told how to act when he would soon be in mourning for the passing of his wife. In reference to Torah study, the Gemara says that just as Yechezkel was told not to study Torah all other mourners may also not study Torah. However, in reference to tefillin the Gemara concludes that only Yechezkel; was told to don tefillin. He is an exception. All other mourners may not wear tefillin.If you ask: How come in regard to tefillin [the Gemara] says that it was specifically said to Yechezkel that he should wear tefillin but not all other mourners? R’ Abba rules that all other mourners do not follow Yechezkel’s example and may not wear tefillin. Whereas, in regard to Torah study we derive that all other mourners may not learn Torah from Yechezkel. For [the Gemara] says (Moed Katan 15a): a mourner is forbidden to study Torah, which is derived from the Merciful One saying to Yechezkel “you are to be silent”.3<i class="footnote">The exact derivation that Torah study is forbidden for mourners from the words האנק דום is somewhat obscure. See ר"ן in Moed Katan who discusses this issue.</i> Just as Yechezkel is to be silent and not study Torah, so too, all other mourners are forbidden to study Torah. Why is it that we do follow Yechezkel’s behavior in regard to Torah study but not in regard to donning tefillin?A careful review of the passage in Yechezkel will show that Hashem was telling Yechezkel not to behave as a mourner ordinarily behaves. We can therefore derive from these verses that an ordinary mourner must do the opposite of what was told to Yechezkel. It is only in reference to Torah study that we say we are to follow Yechezkel.See Tosfos Moed Katan 15a ד"ה אסור who explains that it was necessary for Yechezkel to act in some ways as a mourner. Those exceptions were Torah study and greeting people. Therefore we can learn from the ways that Yechezkel did behave as a mourner that all other mourners must follow suit. From the ways that Yechezkel did not act as a mourner, we learn that a mourner must do the opposite of Yechezkel.We can answer: That as far as prohibiting Torah study we learn that since the Merciful one prohibited Yechezkel from Torah study, it is also forbidden for everyone else. Obviously, Torah study is permitted and required of all who are not in mourning. When Hashem tells Yechezkel not to study Torah, he must be telling him that in regard to Torah study you are to act as a mourner. We can therefore derive from Yechezkel that an ordinary mourner may not study Torah.But in regard to being lenient and permitting donning tefillin, we do not derive from Yechezkel that it is permitted for all other mourners, because the verse comes to permit tefillin only for [Yechezkel]. As we explained earlier Hashem is telling Yechezkel that in general he is not to act as a mourner. When telling him to wear tefillin, which is ordinary behavior for any Jew, Hashem is telling him that in this matter you are not to act as a mourner. You - must wear tefillin. We derive from this that an ordinary mourner is not allowed to don tefillin.
  
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  And [the dispute between] these tanna’im [is] parallel to the dispute between [these tanna’im]. We have two instances in the Gemara where Abaye went out of his way to defend Shmuel’s position that it is forbidden to perform mitzvah cohabitation on Shabbos.A) The Gemara quoted a Mishna in Masechet Beracos 16a where it is stated that a Chosson is exempt from reciting Shema even Friday night. Abaye countered that it is because he is preoccupied with his failure to perform mitzvah cohabitation on the previous nights. The exemption is not because he is preoccupied with performing mitzvah cohabitation Friday night.B) So too, when Rava introduced a Baraisa that specifically exempts a Chosson from Shema on Friday night, Abaye insists that it is because he is preoccupied with his failure. It is not an indication that mitzvah cohabitation is permitted on Shabbos.Ultimately, Rava presents a Baraisa that clearly says that mitzvah cohabitation is permitted on Shabbos and we must accept the existence of a Tano who is of that opinion. Rabah identifies him as R’ Shimon. If so, we may ask: why was Abaye so adamant in defending Shmuel’s opinion to the extent that he was forced to say that preoccupation with the failure to perform a mitzvah exempts one from reciting Shema? In the final analysis he must agree that there is a Tano who disagrees with Shmuel and the Mishna in Berachos and the Baraisa that exempts a Chosson from Shema on Friday night are obviously following the opinion of that Tano. Tosfos explains:Even though Tannaim clearly argue about this subject and we are compelled to accept the existence of a Tano who holds that mitzvah cohabitation is permissible on Shabbos. If so, why is Abaye defending Shmuel’s position so adamantly? Even so, Abaye forces himself earlier1<i class="footnote">Tosfos seems to assume that when Abaye answered that one who is preoccupied with his failure to perform mitzvah cohabitation he is exempt from reciting Shema, he was already aware of the Baraisa that the Sages permit mitzvah cohabitation on Shabbos. This is a bit puzzling. In the chronology of the Gemara this Baraisa is introduced at the end of the dialogue. It seems that initially when Abaye defended Shmuel he was unaware of the Baraisa. Perhaps when Abaye heard of the Baraisa that says the Sages permit mitzvah cohabitation he retracted. This seems to be the opinion of Ritva and others who say that the Gemara’s introduction that “these Tannaim argue like these Tannaim” is the equivalent of saying that the Baraisa is proof that Rava is correct. We can assume that Abaye then recanted. Tosfos may hold that since Abaye’s defense of Shmuel entails a major novelty - that one who is preoccupied with the failure to perform a mitzvah is exempt from reciting Shema, the Gemara should have specifically stated that Abaye retracted his position. Since the Gemara does not say this, it is apparent that Abaye continues to hold of this novelty, because that is how Shmuel understood the Mishna in Berachos 16a. Heard from Sender Dolgin.</i> to say that it is even considered mitzvah preoccupation when he cannot cohabit on Shabbos, because he is upset with his failure to perform the mitzvah on the previous nights, because he prefers to interpret the anonymous Mishna in Berachos 16a like Shmuel who forbids mitzvah cohabitation on Shabbos.2<i class="footnote">Abaye is unwilling to tolerate that there is an anonymous Mishna that disagrees with Shmuel. He is more comfortable with the idea that preoccupation with the failure to fulfill a mitzvah exempts one from reciting Shema then to say that the anonymous Mishna disagrees with Shmuel.</i> He is therefore willing to go so far as to say that preoccupation with the failure to perform a mitzvah exempts the Chosson from reciting Shema on Friday night.But Abaye also says the same for the Baraisa that Rava first introduced which says that a Chosson is exempt from Shema on Friday night? He also interprets the disagreement in the Baraisa that Rava quoted as an argument about whether his preoccupation with not being able to cohabit on Shabbos is considered preoccupation that exempts him from reciting Shema, in order to interpret as many Mishnayos and Baraiso as is possible in accordance with Shmuel.
  
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  Unlike these Babylonians, who are not experts in diverting. Abaye argued that it is inevitable that when cohabiting on Shabbos that some virginity blood will be removed and that an entrance will be created. How can this be permitted as an ‘unintended result’ when it is in fact inevitable? The Gemara answers: we are not speaking of Babylonians who are non-experts at penetrating at an angle. We are speaking of all others who are experts and can have relations with a betulah without removing blood or creating an entrance. This statement is offered as an answer to the question: But it is inevitable that the Kallah will bleed and that an entrance will be created? Tosfos explains how this answers the Gemara’s question:The explanation is: It is not inevitable that there will be bleeding or that an entrance will be made, because not everyone is like the Babylonians who are not proficient at penetrating at an angle, rather [the non-Babylonians] are proficient and are able to avoid causing the Kallah to bleed or creating an entrance. Therefore, it is permissible for them to cohabit on Shabbos as long as they do not intend to do a complete coitus that must necessarily cause bleeding and the creation of an entrance.The Mishna is Berachos 16a quoted earlier exempts a Chosson from reciting Shema because he is preoccupied. Rambam says that he is preoccupied with whether he will indeed find that she is a betulah. When he intends to do a complete coitus that will remove the virginity blood, this concern is legitimate. However, when he is intentionally avoiding removing the virginity blood, he should not be preoccupied with the concern about whether she is a betulah or not. He knows full well that on Friday night he is intentionally avoiding ordinary cohabitation that would yield this information.The Gemara asks: If so, that most men are experts and can avoid causing the Kallah to bleed and making an entrance, why is the Chosson considered to be preoccupied? The explanation of this question is: why does the Gemara earlier exempt him from reciting Shema even on Shabbos? Since [non- Babylonian men] are experts and are intent on cohabiting without a complete penetration so that there will be no bleeding or creation of an entrance, there should be no preoccupation with whether she is a betulah or not.It is perfectly understood that during the weekdays there is preoccupation because [the Chosson] intends to do a complete coitus that will cause bleeding and create an entrance, and he is concerned that she may not be a betulah, and even for experts there is preoccupation when they are doing a complete coitus, because they are concerned with whether the Kallah is a betulah or not, as [the Gemara] says in the second Perek of Berachos (16a) that Rabban Gamliel was exempt from reciting Shema, but he was stringent upon himself and did recite the Shema when he was a Chosson. We see that even though he was an expert for he was not Babylonian and our Gemara says that non-Babylonians are experts, he was exempt from reciting Shema. Obviously even an expert is preoccupied when intending to do a complete coitus that will yield the truth about the Kallah’s status. However, on Shabbos when [the Chosson] is not intending to do a complete coitus, why is he preoccupied? He is intentionally avoiding a coitus that would tell him if she is a betulah or not.[The Gemara] answers: That is for a non-expert. The explanation of why he is referred to as a non-expert1<i class="footnote">See Maharsho who wonders why Tosfos needed to explain that when the Gemara uses the term “for a non-expert” it is referring to the same person about whom we just said is an expert, but he is unaware when reciting Shema that he has the necessary expertise and is therefore preoccupied when reciting Shema? Why doesn't it simply mean that non-experts are preoccupied even on Shabbos, because they know that they do not have the expertise to penetrate at an angle? Why is it necessary that we interpret the Gemara in somewhat of a far-fetched way? Perhaps the answer is as follows: If we should say that when the Gemara says that the one who is in fact exempt on Friday night is one who knows that he is not an expert, the next question must be understood as follows: The Rabonon should say that a non-expert may not cohabit on Shabbos since he will definitely remove the virginity blood or create an entrance? If so, the Gemara’s answer that the majority are experts does not answer the question. The question was not about the majority who are experts, it was about those who are not experts and the Gemara does not provide us with any reason to permit the non-experts to cohabit on Shabbos. If however, we adopt Tosfos explanation that when the Gemara says we are speaking about the non-experts it is referring to all men who believe they are not experts in this matter, but they truly are because the Rabonon knew that even though they think of themselves as non-experts, they will in fact be able to penetrate at an angle and avoid removal of virginity blood and creation of an entrance, then the ensuing question and answer in the Gemara makes sense. The Gemara is not speaking about two defined groups of men, one which is the experts and the second which is not the experts. It is speaking of all men and among them there are those who are experts and those who are not. It is not however known who are the experts and who are not. The Gemara asks: although many of the men who believe that they lack the expertise are truly experts, there are certainly among them those who definitely do no have the expertise to cohabit in a manner that there will be no virginity blood. If so, it should be permitted only for those who know that they have the expertise to cohabit, all others who are in doubt should not be allowed to cohabit on Shabbos, since those who are truly non-experts will definitely remove virginity blood or create an entrance. The Gemara then responds: The Rabonon know that most men are experts even if they are not aware of this fact. Since the majority are experts, each individual may assume that he is of the majority and cohabit on Shabbos.</i> when we have just said that all non-Babylonians are experts is: Because in his mind while he is reciting Shema, he is not an expert. At that time he is as of yet unaware that he has the expertise of penetrating on an angle and is therefore preoccupied about whether his attempt will be successful or not. For even those who are ultimately experts at the time [of cohabitation], prior to the time of cohabitation they fear that they will not be experts, therefore they are all preoccupied even on Shabbos when their plan is not to do a complete coitus.
  
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  The majority are experts. The Gemara asked that only those who know they are experts should be permitted to engage in mitzvah cohabitation on Shabbos? In the previous Tosfos we learned that the Gemara answers: the majority of men are experts. Tosfos explains that the Gemara is addressing all men in general and is saying that even among those who believe they are incapable of penetrating at an angle, the majority are in fact capable.And for each and every individual who is is not certain as to whether he is capable or not, we may assume that he is of the majority who are capable and they are all permitted to engage in mitzvah cohabitation. Since we may initially assume that any man is capable of performing cohabitation without violating the Shabbos, even if it turns out that he was incapable and did remove virginity blood there is no culpability because initially he was allowed to assume that he was in fact an expert.1<i class="footnote">Even though he was unable to cohabit without removing blood there is no culpability, since he was allowed to assume that he was capable. This is similar to one who drags a chair across an earthen floor and it turns out that he dug a furrow. Since the furrow is an unintended result that was not inevitable, even if it did happen there is no violation of Shabbos. So too, when a Chosson is allowed to assume that he is capable of cohabiting without causing his Kallah to bleed, even if it turns out that she does bleed, there is no culpability.</i> It is to be understood from [this Gemara] that the majority of men are experts [at penetrating] at an angle, since we allow all men to engage in mitzvah cohabitation on Shabbos when it is required that they penetrate at an angle in order to avoid removing virginity blood and creating an entrance.The Gemara in Chagigah 14b is discussing whether a young lady who is pregnant but known to have her virginity intact is permitted to marry a Kohain Gadol or not. The Torah stipulates that a Kohain Gadol must marry only a betulah. Obviously, virgin birth is not an everyday occurrence and something extraordinary must have happened. The Gemara considers two possibilities:A) She cohabited with someone who was capable of penetrating at an angle. Since she did cohabit even though her hymen has not been ruptured she is no longer a betulah as far as marrying a Kohain Gadol is concerned.B) While bathing she may have become artificially inseminated from semen ejaculated by a man who used the bath before she did. Since coitus did not take place, even if she is pregnant she is still a betulah and permitted to the Kohain Gadol.The Gemara must consider which of these unlikely scenarios is more likely than the other. Ultimately, the Gemara determines that it is more likely that she was impregnated while bathing, because cohabitation that does not deflower the young lady is even more unlikely. This seems to contradict our Gemara that says: the majority of men are experts at penetrating at an angle and can cohabit without deflowering the Kallah. If you ask: [The Gemara] says in the second Perek of Chagigah (14b), regarding a betulah who became pregnant, what is her status as far as marrying a Kohain Gadol2<i class="footnote">Tosfos quotation is “what is her status as far as Kehunah is concerned”. Usually this refers to whether she is allowed to marry any Kohain. If a woman had relations with any man that she is not permitted to marry, she is disqualified from marrying a Kohain. We could read Tosfos as referring to this general prohibition for all Kohanim. However, the Gemara there in Chagigah 14b says clearly that its question is whether a Kohain Gadol may marry a betulah who is pregnant. It seems that the Gemara is discussing a situation where it is known that she did not become disqualified by virtue of having relations with one who might disqualify her. The issue is strictly whether she qualifies as a betulah or not. If she cohabited, even though her virginity is intact she may not marry a Kohain Gadol. If however her pregnancy is the result of artificial insemination while bathing, even though she is pregnant the Kohain Gadol may marry her.</i> is concerned?But how can we know that a pregnant woman is still a virgin? The Gemara in Yevamot 60b and in Kesubos 10b suggests: In a case where they tested her by having her sit on the opening of a barrel of wine and her odor did not spread. There was no odor of wine emanating from her. This proves that she is still a betulah.We must now consider how she became pregnant. The Gemara there says: Must we consider the possibility that she became pregnant as the result of cohabitation along the lines of Shmuel’s statement, who said that I have the ability to cohabit many times without causing any bleeding. If so, she is no longer a betulah even though her virginity is physically intact. Or, perhaps she became pregnant in a bath from semen ejaculated by a male who used the bath before she did. If so, she is a betulah even though she is pregnant.[The Gemara] concludes that coitus in the manner that Shmuel was capable of performing it without deflowering the young lady is unusual and we would rule that she became pregnant in a bath and is therefore permitted to be married to a Kohain Gadol. This conclusion suggests that penetrating at an angle is highly unusual and even a less likely scenario than becoming pregnant in a bath.The Gemara in Masechet Niddah 64b is discussing a young Kallah who did not bleed during the mitzvah cohabitation, but did bleed during the second cohabitation. Do we say that since she did not bleed during the mitzvah cohabitation she was not a betulah and the bleeding during the second cohabitation is menstrual blood? Or perhaps she actually was a betulah and the reason that she did not bleed during mitzvah cohabitation is because it just happened that the Chosson penetrated at an angle as Shmuel was capable of doing and the bleeding during the second cohabitation is virginity and not menstrual blood.In the last Perek of Masechet Niddah (64b) as well [the Gemara] says that we will not attribute the lack of blood during mitzvah cohabitation to the possibility that the Chosson may have penetrated at an angle even though Shmuel said that he was capable of doing so, because Shmuel is different, because he was extremely proficient, but the average man is incapable of simulating him.Once again it is evident that penetrating at an angle is highly unusual. Tosfos asks: But [the Gemara] here says that the majority of men are experts at penetrating at an angle? There must be an integral difference between our Gemara that discusses penetrating at an angle which most men are capable of doing and the coitus that Shmuel was capable of performing which is very rare.We can answer: That Shmuel was capable of conducting a complete coitus that could impregnate a woman without removing any blood. That is highly unusual and the Gemara concludes that there is a greater likelihood that a betulah became pregnant in a bath, but when penetrating at an angle that is discussed here, which most men are capable of doing, a woman cannot be impregnated. Therefore, that Gemara in Chagigah which is discussing a betulah that was impregnated we need not be concerned with the possibility of penetration at an angle because that type of cohabitation cannot impregnate a woman. Rather, it discusses cohabitation similar to that of Shmuel,3<i class="footnote">Tosfos has adequately explained how the Gemara in Chagigah 14b is discussing a form of cohabitation that is highly unusual in that it can impregnate a woman without disturbing her virginity. This is why the Gemara in Chagigah 14b is not a contradiction to our Gemara which says that most men are experts at penetrating at an angle and can cohabit without removing virginity blood. Although most men are capable of such penetration, they are not capable of impregnating a woman without removing virginity blood. The Gemara in Chagigah is speaking of a betulah who was impregnated and that is something that only very few men can do. However, Tosfos has failed to explain the Gemara in Niddah 64b which is discussing a woman who did not bleed during mitzvah cohabitation and says that it is unlikely that the Chosson performed cohabitation in the manner that Shmuel did and that she remained a betulah despite cohabiting with the Chosson. In the Gemara in Niddah 64b it is sufficient to say that the mitzvah cohabitation was in a manner that did not produce bleeding. There is no need to say that it was in a manner that could impregnate her. The Gemara there is not speaking about a betulah who was impregnated. It is only concerned with why she did not bleed. According to our Gemara cohabitation without bleeding is something that the majority of men are capable of doing. Why does the Gemara in Niddah 64b say that “Shmuel is different because he was extremely proficient”? According to Tosfos’ explanation the Gemara there need not be speaking about cohabitation such as Shmuel’s. See Tosfos there ד"ה שאני שמואל who explains the Gemara in Chagigah as Tosfos does here, but also seems to neglect explaining how the Gemara in Niddah 64b is to be understood. See שיטה מקובצת here who gives the following explanation based on Tosfos’ approach: We have seen that the majority of men are capable of penetrating at an angle and not disturbing the virginity, but that this type of penetration cannot impregnate a woman. Shmuel’s method was not to penetrate at an angle rather to enter in a direct manner so that this could impregnate and even so he was able to avoid disturbing her virginity. The Gemara in Niddah 64b is discussing a situation where the Chosson did not penetrate at an angle. He was not attempting to avoid removing her virginity blood. To the contrary he was intending to deflower her. In this case, where he was not penetrating at an angle and did not deflower her, there are two possible explanations as to why she did not bleed: a) She was not a betulah and therefore if she bleeds during the second cohabitation it is menstrual blood. b) The Chosson unintentionally performed such cohabitation as Shmuel was capable of doing. The Gemara rules that b) is highly unlikely and that most probably a) is true: she was initially not a betulah.</i> who was capable of even impregnating a woman without removing any virginity blood. It is only that type of cohabitation that could impregnate her while remaining physically intact. It is in reference to Shmuel’s cohabitation that the Gemara concludes in Chagigah that “Shmuel is different for he was extremely proficient”.
  
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  If that is so, why the attendants, why the sheet? Our Gemara concluded that most men are experts at penetrating at an angle and can cohabit on Shabbos without causing any bleeding. The Gemara then asks: If so, why is it necessary to have attendants1<i class="footnote">See Artscroll note 16.</i> and a clean sheet to protect against fraud by the Chosson or Kallah. The Chosson can intentionally penetrate at an angle and there will be no bleeding?Rashi explained the Gemara’s question as follows: Since [men] are experts at cohabiting without causing the Kallah to bleed, perhaps he will penetrate at an angle and there will be no bleeding. He will then falsely claim that she was not a betulah and that he wants to divorce her without paying her kesubah. The validity of this question is however dependent on one crucial point: that it will not enter upon her mind that he penetrated at an angle2<i class="footnote">See Maharshal who points out that this part of Tosfos quotation of Rashi does not appear in our text of Rashi.</i> and she will be defenseless to the claims of the Chosson. Thus any Chosson can defraud the Kallah if he so desires. What is gained from preparing a clean sheet to prove that there was virginity blood when most Chassanim can defraud the Kallah anyway?[The Gemara] answers: That the attendants and clean sheet are needed for when he will not penetrate at an angle and he will perform a complete coitus and she will bleed and stain the sheets and the sheet might then be lost and she will have no way of proving that she was a betulah. We therefore have a special clean sheet and attendants to ascertain that she did bleed and was a betulah. And if he will penetrate at an angle and will say that he did not find her to be a betulah, she can argue that I am still a betulah, because she is aware of the difference between penetration at an angle and complete coitus.A careful analysis of the dialogue of the Gemara according to Rashi’s explanation is that initially the Gemara held that he can defraud the Kallah by penetrating at an angle and then answering that he cannot fool her because she is aware of the difference between regular cohabitation and penetrating at an angle. But this crucial point is not specifically mentioned in the Gemara’s answer.The R’I finds Rashi’s explanation difficult. For [the responder] does not answer the question that was asked of him. Since the original question was: He can deceive her by penetrating at an angle and she will be unaware of it, [the responder] should have answered that it does enter upon the mind of [the Kallah] to claim that I am still a betulah and she will be able to defend herself if the Chosson attempts to defraud her. The primary answer of the Gemara that she can in fact defend herself is omitted from [the Gemara’s] response. The Gemara’s statement that the attendant and clean sheets prevent the Chosson from defrauding the Kallah when he did a complete coitus, does not at all answer the question that he can defraud her by penetrating at an angle, even though it is saying that there is some benefit from the attendant and the clean sheets in that he cannot defraud when he did make a complete coitus, the primary question remains unanswered.In order to solve the R’I’s objection we perforce must say that the Gemara’s question is totally different than explained by Rashi. Rabbeinu Tam’s explanation appeals to R’I. That the Gemara’s question is specifically about Shabbos. Why are an attendant and clean sheets needed on Shabbos? Since he may only cohabit by penetrating at an angle there will be no bleeding, there is no point in having attendants and clean sheets.Is there any source that we must have a shushvin and clean sheets even on Shabbos? For it is a daily occurrence that we do designate attendants even on Shabbos. Why is this necessary? There will be no bleeding.[The Gemara] answers: Perhaps it may occur that [the Chosson] will not penetrate at an angle and he will perform a complete coitus and the virginity blood will be lost if there is no attendant and clean sheets available to prevent such deception from happening.There is an additional benefit with Rabbeinu Tam’s explanation that the Gemara’s question is specifically about Shabbos. And this question is similar to the Gemara’s previous question, where he asked “why is the Chosson preoccupied?” which is also a question about Shabbos as explained earlier in Tosfos ד"ה לא כהללו בבליים.According to Rabbeinu Tam’s explanation we are avoiding the difficulty with Rashi’s explanation. The Gemara is asking a question specifically about why it is necessary to have an attendant and clean sheets on Shabbos and the Gemara is explaining why these are necessary even on Shabbos.
  
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  If [his intent is] to create an opening, he is liable. If his intent is to make an opening for the boil, he is liable. As Rashi points out the concept of בנין applies to the human body as we find in the verse describing the creation of Chava – ויבן את הצלע - and he built the rib. Tosfos needs to inform us that lancing a boil with intent to make an opening satisfies the criteria of making an entrance.The Gemara later 146a says - any opening whose purpose is not for bringing in and carrying out is not an entrance. How does the opening of a boil satisfy this criteria? For this opening is made to bring in and to take out, to bring in air and to take out puss. Thus it satisfies the criteria of an opening.
  
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  Since [it] was permitted for the purpose. The Gemara is now working with the hypothesis that mitzvah cohabitation is in fact forbidden on Shabbos because the removal of virginity blood is subject to the prohibition of wounding. However, on Yom Tov it is permitted because the melacha of wounding, which is a derivative of ‘slaughtering’ or ‘taking life’ is permissible on Yom Tov, i.e. one may slaughter an animal or a bird for the Yom Tov meal. Even though cohabitation does not satisfy the criteria of אוכל נפש - ‘food for any soul’, it is still permitted because of the principle of מתוך - since the melacha of taking life is permitted when needed for food, it is also permitted when it is not needed.This ruling is based on how we understand the verse that discusses the prohibition of melacha on the holidays in Shemot 12, 16 -- כל־מלאכה לא־יעשה בהם אך אשר יאכל לכל־נפש הוא לבדו יעשה לכם -- any work shall not be done on them except what must be eaten for any soul - it alone may be done for you.There are two explanation of the intent of the Torah in this verse:A) The limited view held by Bais Shammai: That the Torah is permitting melacha only when it is being done specifically for food preparation. That very same melacha when done for other purposes than food preparation is forbidden.B) The expansive view held by Bais Hillel: That the Torah is permitting all those melachos that are needed for food preparation even when the actual purpose of the melacha is not for food preparation. Food preparation is merely the guideline of which melachos are permitted on Yom Tov.If we accept the expansive view, we must reach the following conclusion: Since taking life is permitted for food preparation, such as when slaughtering an animal for the Yom Tov meal, so too, the melacha of wounding which is a derivative of taking life, is permitted in order to perform mitzvah cohabitation. It is not the specific purpose of the melacha that is permitted on Yom Tov, but rather, any melacha which is needed for food preparation is permissible, even for other purposes.Tosfos will now lead us through a discussion of the finer details of the principle of מתוך. When the Gemara says that that melacha is permitted when needed, the explanation of the word ‘needed’ is that it is needed for food preparation. Subsequently, it was also permitted for non-food preparation needs.This is not a blanket ruling, there are some limitations: However, there must be some need for this melacha from which we benefit on the day of Yom Tov, such as carrying a handkerchief or a key ring, which are needed on Yom Tov. There is a need for this melacha on the day of Yom Tov, even though it is not food preparation, or for the need of fulfilling a mitzvah, such as carrying an infant to be circumcised, a Torah for reading or a lulav in order to fulfill one’s obligation (Beitzah 12a). In all these cases one is carrying in order to fulfill a mitzvah.However, when there is no need at all for the performance of a melacha, on the day of Yom Tov, it is not permitted, such as if one carries out stones from a private to a public domain - when there is no need for them, he is liable.Tosfos offers another example of one who performs a melacha that is usually permitted for food preparation on Yom Tov, but when there is no need at all for it on the Yom Tov he is liable according to Rav Chisda’s opinion. And one who bakes on Yom Tov for weekday consumption, when he has no need for the melacha on Yom Tov, but needs it for the weekdays, according to Rav Chisda he receives lashes (Beitzah 21a), which indicates that this is a Torah violation of the holiday, because he does not hold of the principal of - since it is conceivable that guests may come and the freshly baked bread will be usable today, it is already considered as usable today, even though he does not as of yet have any guests and he initially planned to use the bread tomorrow. Rav Chisda does not consider the bread usable today since he had no plans for such use. Rather, we follow his intention which was to use the bread tomorrow. The baking of the bread is therefore a Torah violation, since there is totally no need for the bread on Yom Tov. Raboh disagrees with Rav Chisda. He holds that even though one did not plan to use the bread today, since it is conceivable that one may use it, such as if guests suddenly arrive, it is considered as if the bread was baked for Yom Tov and he is not liable.Both Rav Chisda and Raboh agree that there must be some need for the melacha on Yom Tov. They disagree about whether a hypothetical need is sufficient to consider the melacha as needed on Yom Tov. When there is absolutely no possibility of using the bread on Yom Tov, such as when he baked it almost immediately before the end of Yom Tov all agree that he is liable.Tosfos has concluded that in order for melacha to be permitted on Yom Tov via the rule of מתוך, there must be:A) Some need for this melacha on Yom Tov, orB) the need to fulfill a mitzvah.Tosfos will now examine three Gemaros that need to be explained in light of Tosfos’ rules of מתוך .First, Tosfos analyzes a Gemara where there does not appear to be a need for the melacha and even so it is permitted. The slaughtering of a donated olah,1<i class="footnote">This refers to an olah that was donated and is not the olah that each and every Jew is required to offer on Yom Tov. Since it is an olah, the flesh of the animal is burned in its entirety of the altar and there is no human benefit from slaughtering the animal. Even so, there are those who hold that one is permitted to slaughter the olah on Yom Tov. Tosfos must explain why this olah is an exception to the rule that he established that there must be some need for the melacha on Yom Tov.</i> which is permissible on Yom Tov according to Bais Hillel (Beitzah 20b) even though nobody will actually benefit from it on Yom Tov,2<i class="footnote">See Rashash who wonders about Tosfos’ question from a donated olah. It would seem that slaughtering an olah is the fulfillment of a mitzvah and should be permissible because it satisfies the requirement that there is a need for slaughtering the olah to fulfill a mitzvah. Rashash suggests that perhaps Tosfos holds that even the mitzvah fulfillment must be relevant to the holiday. The slaughtering of a donated olah is unrelated to the holiday and thus should be prohibited if there isn’t any other need.</i> since the olah is entirely consumed on the altar, the reason that is permitted is also because it is considered a need - so that your private table should not be bountiful while the table of your Master, the altar is empty. The need to offer something to Hashem when enjoying a bountiful Yom Tov meal is also thought of as a legitimate need.Tosfos examines a second Gemara that seems to contradict Tosfos’ guidelines of מתוך. In this Gemara it seems that there is a need to perform the melacha for fulfillment of a mitzvah and even so it is forbidden. One who finds chametz in his house during the Pesach holiday, where [the Gemara] says in the first Perek of Pesachim (6a) that he must turn over a dish on [the chametz], and we do not allow him to burn it on the holiday via the principal of מתוך, which says that since it is permitted to burn fuel for food preparation, it is also permitted to burn the chametz which is a mitzvah. This seems to contradict the law of מתוך as explained by Tosfos, that is because it is forbidden to burn [the chametz] by rabbinic law, because [the chametz] is muktzah, for it is prohibited to move it. Torah law would in fact allow burning the chametz via the rule of מתוך as explained earlier, however the Rabbinc law of muktzah prevent us from burning the chametz on Yom Tov.3<i class="footnote">See בית יעקב who is puzzled at Tosfos assumption that the prohibition of muktzah presents no contradiction to his position that when there is any need for the performance of a melacha that is usable for food preparation it is always permitted even for non-food preparation. The ban on muktzah has its roots in the melacha of carrying as is indicated in Beitzah 12a (see Rashi ליפלגו ד"ה). If so, the ban on muktzah should also be removed by the rule of מתוך.</i>Tosfos considers another explanation of the ruling that prohibits burning chametz on Yom Tov and then rejects it. By Torah law, one who nullifies chametz prior to the holiday by renouncing ownership of the chametz has fulfilled his Torah obligation to rid his house of chametz. It is only by rabbinic law that one is required to remove even chametz that has already been nullified.Tosfos considers the possibility that if the chametz had not been nullified, and the chametz would then need to be burned because there is a Torah violation if it is not burned, it is permitted to burn it on Yom Tov. However, the Gemara in Pesachim 6a is discussing chametz that was nullified before the Yom Tov, where the requirement to burn it is not Torah but Rabbinicv law. It is in reference to this rabbinic requirement that we say it is forbidden to burn the chametz, because the need to fulfill a rabbinic law is not considered a ‘need’ for which we may perform melacha on Yom Tov.However, we cannot say that [the Gemara in Pesachim 6a] is speaking of when [the owner] nullified [the chametz] and one will not be in violation of Torah law when keeping nullified chametz in his possession, because in any case it is a rabbinic mitzvah to burn [the chametz] and that is also considered a ‘need of the day’, for in order to fulfill a rabbinic mitzvah4<i class="footnote">See אילת השחר by Horav Ahron Leib Shteinman שליט"א for a complete discussion of this issue. Horav Shteinman discusses two possible approaches: A) The fact that the Rabonon want me do the mitzvah causes that I need the mitzvah to be performed and it is therefore equivalent to a personal need, since I need to listen to the Rabonon. B) Even though the requirement per se of performing the mitzvah could be postponed, but once I do perform the mitzvah I have the merit of listening to the Rabonon, it is considered a personal need to achieve that merit.</i> we also permit the performance of melacha when the principal of מתוך can be applied.A third Gemara that needs to be explained according to Tosfos’ rules on מתוך. That which Bais Shammai and Bais Hillel argue in (Beitzah 12b) about one who cooks a gid hanasheh, the sciatic nerve which one is forbidden to eat, on Yom Tov and ate it, that according to Bais Shammai who do not hold of the principal of מתוך, one receives lashes and according to Bais Hillel who do hold of the principal of מתוך, one does not receive lashes, requires explanation. If the consumption of the gid hanasheh is considered ‘food for any soul’ even though it is forbidden to eat it, all should agree that this falls into the category of permissible melacha on Yom Tov. If cooking the gid hanasheh is not considered ‘food for any soul’ because it is prohibited for consumption, all should agree that cooking it is forbidden by Torah law, since there is no need on Yom Tov to cook something that is forbidden to be eaten. Why does the Gemara say that this dispute is dependent on whether one holds of the principal of מתוך or not?We must say that even though cooking the gid hanasheh is not considered doing melacha for ‘אוכל נפש - food for any soul’ because of the ban that is upon it, and that is why Bais Shammai rules that one receives lashes for cooking it on Yom Tov, even so, it is considered a ‘need of the day’, since he ate it and that is why Bais Hillel who hold מתוך free him from lashes. The melacha was in fact performed for a ‘need of the day’, albeit a prohibited need.5<i class="footnote">A gid hanasheh cannot be considered אוכל נפש since it is forbidden to eat the food. The title of אוכל נפש is reserved only for food that may be eaten. Thus, Bais Shammai holds that one is liable for cooking a gid hanasheh since it cannot be considered אוכל נפש when it is for bidden to eat it. However, the ‘need of the day’ requirement for מתוך is satisfied by the fact that the perpetrator of this violation does in fact need it for his pleasure, even though it is forbidden. Bais Hillel who hold of מתוך, exempt the perpetrator from lashes. אילת השחר.</i>Tosfos has clarified all the relevant Gemara concerning the principal of מתוך.Tosfos will now issue some rulings based on this principal. It appears to R’I that carrying out an infant when one wants to take a walk on Yom Tov, is considered a ‘need of the day’.However, it would appear that carrying for the needs of an idolater is forbidden. And that which is now common to carry for the needs of an idolater, it appears to the Rashbo that the reason for the leniency is because our public domains nowadays are only a karmelis,6<i class="footnote">By Torah law it is forbidden to carry from a public domain to a private domain, and to carry four cubits within a public domain. The public domain must be at least sixteen cubits wide. If it is narrower, it does not satisfy the criteria of a public domain and is called a karmelis. The karmelis is considered as a public domain, but only by rabbinic law. Thus it is forbidden to carry from a private domain or a public domain to and from a karmelis. It is also forbidden by rabbinic law to carry four cubits in a karmelis.</i> because they are not sixteen cubits wide.But there is a rabbinic prohibition to carry in a karmelis?And in regard to Yom Tov the Rabonon did not decree that it is forbidden to carry in a karmelis. Thus, even though theoretically it should be forbidden to carry for an idolater on Yom Tov, practically speaking there is no ban because the prohibition would be only rabbinic law even on Shabbos and the Rabonon did not put that decree into effect on Yom Tov.A case in point for the leniency of not prohibiting carrying in a karmelis on Yom Tov. Just as the Rabonon did not institute the courtyard eruv for Yom Tov,7<i class="footnote">As explained in note 6, the Torah only forbids carrying from a public domain to and from a private domain. A courtyard that is shared by many dwellers is in some way similar to a public domain since it is used by many people. The Rabonon instituted a ban on carrying in a courtyard and between courtyards. This ban can be circumvented by an eruv, which joins all the residents of the courtyard together as one family.</i> as it is to be understood in the beginning of the second Perek of Beitzah (16b), where [the Gemara] says: On a Yom Tov that falls on the eve of Shabbos etc. Rebbe says we may make a courtyard eruv to permit carrying in courtyards on Shabbos, but we may not make a boundary eruv8<i class="footnote">By rabbinic law one may not walk beyond two thousand cubits in all directions on Shabbos and Yom Tov. By making an eruv one can sacrifice the two thousand cubits that he would have been able to walk to the east and extend his boundary to the west by two thousand cubits.</i> in order to permit walking beyond the two thousand cubit boundary. Why is there a difference between a courtyard eruv and a boundary eruv? Because we can prohibit someone from making an eruv on Yom Tov that would permit him to walk on Shabbos where he is prohibited from going on Yom Tov, i.e. beyond the two thousand cubit boundary, but you cannot prohibit someone from making a courtyard eruv, which would permit him to carry in a courtyard on Shabbos, which is something that he is permitted to do on Yom Tov.The Gemara is saying that the restrictions of boundaries are in effect on Yom Tov and that is why making a boundary eruv on a holiday Friday is referred to as rectifying for Shabbos something which he is forbidden to do on Yom Tov, whereas the restrictions on carrying in a courtyard are not in effect on Yom Tov and that is why the Gemara refers to making a courtyard eruv as rectifying for Shabbos something that he is permitted to do on Yom Tov, i.e. there are no restrictions whatsoever on carrying in a courtyard on Yom Tov, even when such carrying cannot be justified by the rule of מתוך. Apparently, the Rabonon did not institute a requirement for a courtyard eruv on Yom Tov. Tosfos deduces that the same is true in regard to a karmelis, that they did not decree any rabbinic restrictions in a karmelis even when such carrying cannot be justified via the principal of מתוך, as in the case of carrying for an idolater.Tosfos will soonA) question the comparison of the rabbinic restriction of a karmelis to the rabbinic restrictions of a courtyard and eventually concludeB) that even the restriction of courtyard carrying is in effect when such carrying cannot be justified by the principal of מתוך.There does seem to be a Gemara that clearly says that the rules of eruv are in effect on Yom Tov. And the ruling which is known to us in Perek Omru Lo (Kreisos 14a) and in the first Perek of Beitzah 12a) that the laws of eruv and carrying are in effect on Yom Tov, it appears that [the Gemara] is speaking about a boundary eruv, as Tosfos explained earlier that the restriction of boundaries is in effect on Yom Tov, one is not allowed to walk beyond two thousand cubits and if he needs to do so, he must make a boundary eruv to permit it. However, a courtyard eruv is never needed on Yom Tov.A retraction of Rashbo’s position: Rashbo concluded:A) That since we find that the rabbinic laws governing carrying in a courtyard are relaxed on Yom Tov, so too, the rabbinic law prohibiting carrying in a karmelis is relaxed on Yom Tov. Rashbo now rejects this comparison.B) He will also eventually conclude that the need for a courtyard eruv is also in effect on Yom Tov.Retraction A): Later [Rashbo] retracted this position that the rabbinic ruling governing a karmelis can be derived from the rabbinic ruling governing a courtyard, because we cannot derive from a courtyard that does not have an eruv, where the rabbinic ban is relaxed on Yom Tov, that the same applies to a karmelis, for the ban in a karmelis is more stringent than the ban in a courtyard as I have explained in Masechet Shabbos (117a). See Tosfos there ד"ה שלש מחיצות.Retraction B): Rashbo also retracts his position that a courtyard eruv is not needed on Yom Tov.Previously, Tosfos suggested that when the Gemara in Beitzah 12a and Kreisos 14a say that the laws of eruv and carrying are in effect on Yom Tov, the eruv discussed was a boundary eruv. The restrictions governing limiting one’s movement to two thousand cubits in each direction are in effect on Yom Tov and an eruv is needed to circumvent those restrictions.Upon further analysis of the Gemara in Beitzah and Kreisos, Rashbo concludes that it is actually speaking about a courtyard eruv. This conclusion is based on the Gemara’s initial attempt to prove that the laws of eruv and carrying are not in effect on Yom Kippur.The Mishna in Kreisos is discussing how many sin offerings one might be liable for eating the volume of one olive of food. The first Tano speaks of eating on Yom Kippur in his count. R’ Meir adds that if it was also Shabbos and he walked out of his house into a public domain while eating the olive size food, he would also be liable for carrying on Shabbos.Why does R’ Meir say that ‘if it was also Shabbos’ he is liable for carrying on Shabbos, why is he not liable for carrying on Yom Kippur? The Gemara concludes that this is proof that the laws of eruv and carrying are not in effect on Yom Kippur. Note that the Gemara speaks of the laws of eruv and carrying.Which type of eruv can the Gemara mean? A boundary eruv has nothing at all to do with the ban on carrying or the lack of it. It is only the courtyard eruv that is related to the ban on carrying. Since the Gemara says that we see that the eruv as well is not in effect on Yom Kipur, because R’ Meir said that one is liable for carrying only on Shabbos, we are obviously discussing a courtyard eruv, which is in effect only when there is a ban on carrying.Furthermore, it appears to Rashbo that the ruling which is known to us, that there is a need for an eruv and there is a prohibition of carrying on Yom Tov, is speaking about a courtyard eruv, not only about a boundary eruv as Tosfos suggested earlier. This can be seen from [the Gemara’s] attempt to say in Perek Omru Lo (Kreisos 14a) that the laws of eruv and carrying are not in effect on Yom Kippur from that which was taught in a Mishna there by R’ Meir: If [Yom Kippur] was Shabbos and he carried the food in his mouth he is also liable for carrying on Shabbos. Tosfos will soon explain how this is proof that the eruv we are discussing is a courtyard eruv.There is a similar Gemara in Beitzah 12a that discusses whether the laws of eruv and carrying are in effect on Yom Tov. There too, the Gemara seems to deduce that the laws of eruv are not in effect from the law of carrying. And so too in Beitzah 12a [the Gemara] attempts to deduce that the laws of eruv and carrying are not applicable to Yom Tov, from the ruling of Bais Hillel that permits carrying an infant to fulfill the mitzvah of circumcision and a lulav for the mitzvah of the four species, and that is definitely discussing a courtyard eruv, because the courtyard eruv is a derivative of the prohibition of carrying. The boundary eruv is unrelated to the prohibition of carrying.The proof that eruv is not in effect from the ruling permitting carrying is logical only if we are discussing a courtyard eruv which is needed to circumvent the rabbinic restriction of carrying in and between courtyards.For now that the topic of discussion is the courtyard eruv, [the Gemara] is correctly proving that since carrying from a public to a private domain is permitted, so too, there is no restriction on carrying in a courtyard and no eruv is needed to circumvent the ban, because the Rabonon only decreed that it is forbidden to carry in and between courtyards because this might lead one to violate the Torah prohibition of carrying from a public to a private domain. Once we know that there is no Torah prohibition of carrying on Yom Tov, we know that there is no rabbinic restriction on carrying in a courtyard.However, if the Gemara is discussing a boundary eruv, the fact that one may carry on Yom Kippur or Yom Tov is irrelevant to the ban of not traveling beyond the two thousand cubit boundary. The Gemara must be speaking about a courtyard eruv when it attempts to deduce that the rules of eruv and carrying do not apply on Yom Tov. Eventually when the Gemara concludes that eruv and carrying are in effect on Yom Tov, it is also speaking of a courtyard eruv.Upon concluding that the eruv that is in effect on Yom Tov is a courtyard eruv, we must now reconcile the Gemara of Beitzah 16b, which we initially understood as indicating that carrying in a courtyard on Yom Tov is referred to a something which is permitted to him, because there are no restrictions on carrying in a courtyard. Now that we have concluded otherwise we must explain why carrying in a courtyard is called - something that is permissible for him.That which [the Gemara] says in Beitzah 16b: and you cannot prohibit him from making an eruv on Friday Yom Tov in order to rectify something that is permitted to him such as carrying in a courtyard, which we initially understood as indicating that there are no restrictions at all on carrying in a courtyard on Yom Tov, that reference is used because it is permitted to carry in a courtyard for a need. The issue Tosfos has been discussing is whether one may carry in a courtyard when there is no legitimate need that might be justified by the rule of מתוך such as carrying for an idolater. Carrying in a courtyard is definitely permitted when it can be justified by the rule of מתוך, thus the courtyard eruv is legitimately called - something that is permitted to him, as opposed to walking beyond the boundary, which is never permitted at all.According to Tosfos present conclusion, we have not adequately explained why we commonly carry even for an idolater on Yom Tov.
  If that is so, [it would be] permitted to prepare incense on a Festival. Rav Papi seems to be arguing with the principal of מתוך .According to what we have learned in the previous Tosfos, the principle of מתוך is the subject of a dispute between Bais Shammai and Bais Hillel. As always we rule in favor of Bais Hillel who do hold of מתוך . Why is Rav Papi questioning Rav Popo’s application of this ruling?If you ask: Why is Rav Papi asking this question to Rav Popo, he should have this question himself even if Rav Popo did not rule that mitzvah cohabitation is permitted on Yom Tov via the rule of מתוך, does he not hold that we utilize the principle of מתוך? But this is the reasoning of Bais Hillel who rule that one is allowed to carry an infant, Torah scroll and a lulav in a public domain on Yom Tov? We certainly follow Bais Hillel’s ruling in this matter. Why is Rav Papi addressing his question to Rav Popo’s ruling about mitzvah cohabitation on Yom Tov, he himself must have an answer to this question even if not for Rav Popo’s ruling?The Gemara in Baitzah 12a does consider another explanation of the dispute between Bais Shammai and Bais Hillel. The Gemara entertains the thought that perhaps Bais Hillel holds that there is absolutely no melacha of carrying on Yom Tov at all, while Bais Shammai holds that carrying is as like all other melachos and permitted only for food preparation. Eventually the Gemara there rejects this proposal.We can answer: That Rav Papi thought that the reason for Bais Hillel’s lenient ruling about carrying an infant, Torah and lulav is because they hold that the laws of eruv and the prohibition of carrying are not in effect on Yom Tov as [the Gemara] initially thought in Masechet Beitzah 12a.1<i class="footnote">See Maharsho, who points out that according to Rav Papi’s thinking the conclusion that cooking a gid hanasheh on Yom Tov, centers about whether we say מתוך or not, is not true, because according to Rav Papi nobody holds of מתוך. This is in reality not a problem, because there is no Baraisa that tells us of a dispute between Bais Shammai and Bais Hillel about cooking a gid hanasheh on Yom Tov. The Gemara there quotes a Baraisa that says one is liable for cooking a gid hanasheh on Yom Tov and concludes that this must be the position of Bais Shammai, because Bais Hillel who hold of מתוך would not hold that one is liable for cooking a gid hanasheh on Yom Tov. Rav Papi who holds that Bais Hillel does not subscribe to מתוך can easily hold that the Baraisa that says one is liable for cooking gid hanasheh is acceptable according to Bais Hillel as well.</i> Even though [the Gemara] there rejects [that explanation], perhaps Rav Papi did not hear about [the Gemara’s] conclusion there and that we revert to the explanation that the dispute between Bais Shammai and Bais Hillel centers around מתוך and we follow Bais Hillel who does hold of מתוך.Tosfos offers a second answer to his question: We can also answer: that [Rav Papi] held that all melachos that are needed for food preparation are permitted for non-food preparation needs, providing that the need is fairly common as is the need for food. This would exclude wounding during mitzvah cohabitation, which is not a very common need on Yom Tov and burning incense to perfume clothing as well. Rav Popo however ruled that even wounding for mitzvah cohabitation is permitted on Yom Tov. He obviously holds that מתוך is applicable even when the need is not very common, therefore [Rav Papi] asks that since [mitzvah cohabitation] is not any more common than burning incense to perfume clothing, then just as mitzvah cohabitation is permissible, so too, burning incense to perfume clothing should be permissible. However, according to Rav Papi’s understanding that we apply מתוך only to very common needs it is understandable that we may not burn incense to perfume clothing on Yom Tov.
  
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  [He] said to him: I said a matter that is a need for every person, and deer [meat] is a matter that [is] a need for every person. Rav Ashi said to Rav Acha son of Rava: I said that the criteria for allowing the performance of melachos that are used for food preparation is that the ‘need’ be something that all people enjoy and eating venison is something all people enjoy, even if they cannot afford it. Whereas, burning incense to perfume clothing is something that only fastidious people enjoy. See Artscroll note 8 and 9.So too, mitzvah cohabitation although it is not common on Yom Tov is something that anyone might enjoy. Therefore the principal of מתוך applies to the wounding that occurs during mitzvah cohabitation. The Gemara in Beitzah 22a discusses whether it is permitted to extinguish a lamp in order to cohabit on Yom Tov. The conclusion is that it is forbidden to put out a lamp. This seems to contradict our Gemara that ultimately permits the melacha of wounding that occurs during mitzvah cohabitation.R’I has a difficulty with our Gemara’s conclusion that mitzvah cohabitation is something that all people might enjoy and it is therefore permitted to violate the melacha of wounding in order to enjoy mitzvah cohabitation. [The Gemara] says in the end of the second Perek of Beitzah (22a): What is the rule in regard to extinguishing a lamp in order to cohabit on Yom Tov?1<i class="footnote">It is forbidden to cohabit in front of a lit lantern. See Niddah 17a and Pesachim 112b. Also Shulchan Aruch O.C. 240, 11.</i> [The Gemara] concludes that it is forbidden. This seems to indicate that cohabitation is not a pleasure for which one may transgress a melacha on Yom Tov, but here [the Gemara] permits the melacha of wounding on Yom Tov, because [cohabitation] is something that all can enjoy and the principal of מתוך may be applied.We must find some inherent difference between our Gemara which permits melacha for the benefit of mitzvah cohabitation and the Gemara in Beitzah 22a that prohibits melacha for the sake of cohabitation. We can answer: That here the Gemara permits wounding in order to cohabit, specifically for the first cohabitation which is a mitzvah2<i class="footnote">See Tosfos 4a בעילת ד"ה where he discusses the reason that the first cohabitation is called mitzvah cohabitation. Here it seems that Tosfos holds that the first cohabitation is called a mitzvah cohabitation to the exclusion of all others. See שיטה מקובצת who vehemently disagrees with this first answer of Tosfos. His argument is that ordinary cohabitation can produce children and is thus a fulfillment of the mitzvah of procreation. The first cohabitation cannot produce children because of the blockage of the hymen and is less mitzvah. His understanding is that it is not mitzvah cohabitation exclusively that is a mitzvah, but rather it is also a mitzvah even though one does not fulfill the mitzvah of procreation, he is preparing his wife for a life of procreation as explained by Tosfos there. Perhaps Tosfos here holds that in order to achieve the desired results of mitzvah cohabitation it is imperative to do so as soon as possible. It is therefore considered a ‘need of the day’. Other cohabitation need not be done immediately and may be postponed. They are therefore not considered a ‘need of the day’ and one may not perform melacha in order to benefit from this enjoyment. See also the gloss of R’ Yacov of Emden who is dissatisfied with this answer of Tosfos. See also אילת השחר who wrestles with this solution of Tosfos.</i> and thus becomes a ‘need of mitzvah for the day’ of Yom Tov. It is therefore permitted to wound for the performance of this mitzvah of the day, but as for all other cohabitations are concerned, they are not such a great need for the day of Yom Tov and we may not extinguish a lantern in order to cohabit.The Gemara in Masechet Beitzah 28b cites a dispute between the Rabonon and R’ Yehudah about doing melacha for preliminary food preparation on Yom Tov. For example: repairing the point of a spit needed to roast meat. This is a preliminary melacha needed for preparation of meat. Slaughtering the animal and cooking its flesh are melachos of actual food preparation. Preparing the utensils for slaughtering and cooking are preliminaries. The Rabonon hold that only melachos of food preparation proper are permitted. R’ Yehudah holds that even preliminaries such as repairing the utensils needed for slaughtering and cooking are also permitted on Yom Tov.Let us now examine the two ‘contradicting’ Gemaros. Our Gemara in Kesubos is speaking about doing a melacha as one cohabits, by wounding the Kallah. This is similar to melacha that is done during actual food preparation. The Gemara in Beitzah 22a is speaking of doing the melacha of extinguishing a lantern so that I will then use the room for cohabitation. That is similar to preliminaries such as repairing the utensils needed for food preparation.We can also answer: That extinguishing a lamp in order to cohabit is similar to preliminaries of food preparation, which is forbidden even when preparing food according to the Rabonon. So too, doing melacha to prepare the room for cohabitation is also forbidden. Wounding the Kallah during cohabitation is comparable to the actual food preparation and is therefore permitted. So too, is it evident there in Beitzah 22a that extinguishing a lamp is a preliminary, where [the Gemara] contradicts [the ruling] that extinguishing a lantern is forbidden from a Baraisa that says: we may extinguish a log so that the house will not be smoky. Apparently, it is permitted to do melacha in order to prepare the room in which I will eat, so too, it should be permitted to do melacha in order to prepare the room for cohabitation. The Gemara answers: That Baraisa is the opinion of R’ Yehudah who permits preliminary food preparation. That is why it is permitted to put out a smoking log so that I will have a pleasant room in which to eat my Yom Tov meal. According to his position I may also extinguish a lantern to prepare a room for cohabitation. That which I said that it is forbidden to extinguish a lantern in order to cohabit, was said according to the Rabonon, who disagree with R’ Yehudah. It is clear that the Gemara in Beitzah 22a is speaking about preliminaries.There is no longer any contradiction between our Gemara and Beitzah 22a. Our Gemara that permits wounding for mitzvah cohabitation is discussing what happens during cohabitation, which is similar to the actual food preparation. The Gemara in Beitzah 22a is discussing the preliminaries of cohabitation and rules that it is forbidden according to the Rabonon.
  
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  <i>Bais Hillel</i> ruled for her. The Gemara introduces a Baraisa to show that the word הורה may be used even when the ruling is stringent. The Baraisa speaks of the ruling of Hillel’s academy about the Nazarite vow of Queen Hilni. Tosfos examines the historic accuracy of this story.This Baraisa is speaking about Queen Hilni. When did she live? Even though she was the queen of one of the house of the Chashmonaim,1<i class="footnote">See Rashi Bava Basra 11a ד"ה מונבז who agrees with Tosfos that Munvaz was a king who was descended for the Chashmonaim. See however, R’ Yacov of Emden and Rashash, who say that he was actually a gentile king who converted to Judaism approximately twenty five years before the destruction of the second Bais Hamikdosh. According to this opinion during the period of Munvaz and his mother Queen Hilni the academies of Hillel and Shammai were at their prime.</i> the priestly family of kings who came to power after the events of Chanukah, for she was the mother of King Munvaz, who was a descendant of that family, as [the Gemara] says in Yoma (37a).2<i class="footnote">The Gemara there says that Munvaz was the son of Hilni. It does not say that they were of the Cashmonaim family.</i>We do not know the exact date of her son’s reign, but we do know when the period of the Chasmonaim ended. The reign of Herod, who overthrew the Chasmonaim started one hundred three years before the  destruction of the second Bais Hamikdosh. We now know that King Munvaz’ reign ended sometime prior to one hundred three years before the destruction of the second Bais Hamikdosh.When was Hillel the Prince of the Sanhedrin? Hillel was not actively a Prince of the Sanhedrin until three years after the beginning of Herod’s reign, as [the Gemara] says in Shabbos (15a): Hillel who was the first in this line of Princes of the Sanhedrin and his son Shimon and Shimon’s son Gamliel and Gamliel’s son Shimon began their reign as Princes of the Sanhedrin one hundred years before the destruction of the second Bais Hamikdosh. If so, when Hilni was queen which was definitely prior to Herod’s reign, Hillel had not yet ascended to leadership of the Sanhedrin? How is it that the academy of Hillel ruled about Hilni’s nazarite vow?Even so, before he became leader of the Sanhedrin he already had students who were capable of ruling about whether Hilni was required to be a Nezirah for another seven years in Eretz Yisroel. The academy of Hillel actually preceded Hillel’s reign as Prince of the Sanhedrin and they were fully active well before Hillel ascended to the Princedom.
  
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  And the halacha is [that it is] permitted to engage in intercourse on Shabbat. The Halacha is that it is permitted to cohabit for the first time on Shabbos. We are not concerned that one might slaughter a young bird as the Gemara suggested earlier on 5a. It is upon this ruling that we rely, when making a banquet in honor of a marriage on Shabbos and on Saturday night as well.
  
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  A widow who is married to a bachelor. The Gemara concludes that even when a widow is married to a previously unmarried man sheva berachos are observed for seven days. Since both were not previously married, only the bride, a beracha is to be recited for seven days.
  
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  And Boaz was a widower, marrying a widow. The Gemara attempts to prove that even a widower who marries a widow is required to recite a beracha. The proof is that Boaz who had previously been married (see Rashi ז. ד"ה בועז  אלמון הוה) was reciting a beracha upon marrying Rus who had been widowed from Machlon. Tosfos questions Rus’ status as a widow. Since she had not converted to Judaism when she was married to her first husband Machlon, her marriage was actually invalid and she did not have the status of a previously married person.The use of the word widow to describe Rus is imprecise. For when she was married to Machlon she was a gentile.1<i class="footnote">See R’ Yacov of Emden who disagrees with Tosfos. He argues that the verse refers to her as אשת מחלון - the wife of Machlon, which indicates that there was a valid marriage and that she must have been converted prior to her marriage to Machlon. He also cites מדרש רות רבה and Bava Basro 91a as proof that there was a valid marriage. However, in our version of the מדרש פרק ב' ט' we find that the מדרש clearly says that Rus and Orpah were not converted when they married Machlon and Chilyon. I have also not found the Gemara in Bava Basra 91a that says that Rus converted before marrying Machlon. See Yevamot 47b, where it appears that the Gemara derives many of the laws of conversion from the conversation of naomi and Rus. This indicates that Rus had not previously converted. See R’ Yacov of Emden for his somewhat forced understanding of this Gemara.</i> The marriage was invalid and she does not have the status of a previously married person. Technically, she was not a widow.2<i class="footnote">For example if one vowed not to benefit from a widow, one would be allowed to benefit from a convert such as Rus, who although she acted as a wife to Machlon was not actually his wife according to Torah law. She is therefore not a widow. But she definitely is no longer a betulah, since she did have relations with Machlon.</i>Rather, The Gemara means as follows: Since she was not a betulah because she definitely had lived with Machlon, in regard to the need of reciting a beracha for the marriage, she is considered like a widow.
  
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  “And Boaz1<i class="footnote">The word בועז does not appear in our Gemara nor in the verse.</i> took ten men…” The Gemara proves that a beracha is recited even when a widower is marrying a widow from the verse in Rus that describes how Boaz gathered a minyan. Our Gemara initially assumes that the purpose of gathering a minyan must have been to recite the beracha for marrying. Tosfos cites another source for this beracha and attempts to reconcile what appears to be a contradiction.Nowadays, when we marry at the Chuppah, we actually perform two ceremonies at one time.A) Airusin - is the procedure of consecrating the Kallah as belonging to her Chosson and thus forbidden to marry any other man. This we do when we give a ring to the Kallah. A special beracha is recited at that time immediately before giving the ring to the Kallah. That is the beracha of Airusin.B) Nisuin - is the process that allows the Chosson and Kallah to live together as a married couple. This we do by reciting the seven berachos. They are called the berachos of Nisuin. During Mishnaic times there were usually one to twelve months between these two ceremonies.The Baraisa in Masechet Kallah offers another verse as proof that a beracha is required when marrying. In Bereshit 24, the verse discusses the meeting of Eliezer servant of Avrohom and the family of Rivkah. After all the pertinent negotiations about the marriage, when Rivkah is about to leave with Eliezer, verse 60 tells us that “They blessed Rivkah”. What was the nature of that blessing?In Masechet Kallah,2<i class="footnote">See Rashi in קידושין מט': ד"ה ואפילו דמסכת דכלה who describes Masechet Kallah as a Baraisa. It is usually printed in the Vilna Shas together with Masechet Avodah Zarah.</i> the Baraisa cites the verse in (Bereshit 24, 60): “and they blessed Rivkah” as the source for the requirement that a beracha must be recited when marrying. This contradicts our Gemara which cites the verse in Rus 4, 2, as the source for this beracha.Tosfos seeks to reconcile the contradiction. It can be said that there in Masechet Kallah the Baraisa is speaking about the beracha one recites for Airusin when consecrating the Kallah as the Chosson’s wife as he gives her a ring. Here, we are discussing the seven berachos recited for Nisuin which permit the Chosson and Kallah to live together as a married couple.The beracha for Rivkah was the beracha of Airusin, because that is the procedure that was done at that time. Airusin can be performed via an agent. Eliezer acted as Yitzchok’s agent in performing Airusin and recited the beracha as he did the mitzvah. We can learn from [that episode] that one is to recite a beracha of Airusin for a woman who is betrothed via an agent, for Eliezer was an agent of Yitchok to perform the Airusin to consecrate Rivkah as Yitzchok’s wife.Tosfos retracts from his explanation that the beracha of Bereshit 24, 60, was the beracha of Airusin. It appears that the Baraisa of Masechet Kallah is merely offering scriptural allusion to a rabbinic law. For that we need ten people on order to recite that beracha cannot be understood3<i class="footnote">A simple reading of Tosfos seems to be saying that it is in fact required that ten people be present when reciting the beracha for Airusin. Since this cannot be derived from the beracha of Rivkah in Bereishis 24, 60, that is obviously not the source of this beracha and it was offered in Masechet Kallah merely as an allusion, but not as a source. See Rosh 12, in our Perek and in Tosfos HoRosh who mentions that there are opinions among the Geonim who hold that it is not really required that there be ten people when reciting the beracha of Airusin. Ten people are required only when reciting the seven berachos of Nisuin. See Shulchan Aruch Even Hoezer 34, 4, who rules that preferably there must be ten people.</i> from the verse in Bereshit. Obviously, this verse is not offered as a source, but rather as an allusion of the existence of this beracha.Another reason why Tosfos holds the verse in Bereshit is merely an allusion. The simple meaning of the verse is not speaking about the beracha of Airusin, rather it is telling us about the personal wishes for a successful marriage that Rivka’s family were wishing her.
  Bless the Lord, in the assemblies. The Gemara derives from this verse that the beracha concerning the womb of Yisroel - marriages - must be recited in an assemblage of ten people. See Rashi ד"ה במקהלות who explains how we know that the word קהל indicates ten men. Literally the word במקהלות is a plural of the word קהל. This should be an indication that two assemblages are needed and that we must have twenty men present when reciting the marriage blessings.Even though, the word מקהלות is to be understood as two gatherings and we should require that twenty people be present when reciting the marriage berachos, there is no logic to distinguish between ten and twenty men for anything. We never find that a quorum of twenty men is needed for anything and we therefore assume that even though the verse is clearly using the plural, it does not mean that we must have twenty people to recite the marriage berachos.If so, what is the meaning of the plural במקהלות? The verse means to say that many assemblages of ten that are in the world at large, can each recite the marriage blessings, not that two such assemblages of twenty people are needed to recite the beracha.There is an opposing opinion: However, in Yerushalmi [the Gemara] expounds the verse as follows: the word is written במקהלת without a ו'. This indicates that the verse is referring to one assemblage of ten people.1<i class="footnote">See the gloss, who notes that in our editions of Tehillim the word is spelled with a ו'.</i>
  
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  He who confers ownership to a fetus... the fetus acquires ownership. Generally when one wants to give or sell something to his fellow a ‘קנין - legal transfer’ must be made. Usually this is done directly from the seller/giver to the purchaser/recipient. When the recipient is not available to accept, an agent can be designated even by the giver/seller to act in behalf of the recipient. The giver gives to the agent, who accepts the gift on behalf of the recipient.This procedure is referred to as זכייה, which means that the agent is doing something beneficial in behalf of the recipient, thus he need not even be appointed for this agency by the recipient. Even if the recipient has no knowledge of this process, the gift is effective and the recipient becomes the legal owner of the gift. This process is effective even for a minor who cannot appoint an agent. Since the receipt of a gift is a definite benefit for the minor the agent can actually automatically work in behalf of the minor.Shmuel takes this process a step further. He holds that even when the recipient is a fetus and to some extent a non-existent entity, the gift is effective. As our Gemara concludes, this view is not accepted in halacha.Tosfos will draw some comparisons between conferring ownership to a fetus who is someone who has not yet come to this world - he is as of now a non-existent entity, and giving or selling a non-existent item. Tosfos will show that there is definitely an opinion that holds that one can more readily transfer an item that is as of yet non - existent to an existing person, than to transfer an existing item to a non-existent person.Eventually Tosfos will prove that the opposite is also true. There are those who hold that one can more readily transfer ownership to a non-existent person than to transfer ownership of a non-existent item.Later on 58b the Gemara speaks of a dispute that centers about one’s ability to sanctify that which is not yet in existence. R’ Meir says one can sanctify such an object. R’ Yochanan Hasandler says one cannot. Shmuel rules according to R’ Yochanan Hasandler. Thus Shmuel clearly holds that one cannot transfer ownership of a non-existent item. Is this a contradiction with Shmuel’s ruling here that one can transfer ownership to a non-existent person? Let us see how Tosfos views this.Even though Shmuel himself rules in accordance with R’ Yochanan Hasandler (Later 58b) who says that when one sanctifies the excess1<i class="footnote">A woman is obligated to work and produce income for her husband. We will later learn about how much she is required to produce. Even when she produces beyond the mandatory income, her husband becomes the owner of that excess. He repays her by giving her a silver m’ah for spending money. When a husband sanctifies the excess income that she will produce, he is sanctifying something that is not yet in existence. R’ Yochanan ben Nuri holds that the consecration of those funds is ineffective precisely for this reason, they were non-existent when consecrated, thus the sanctification is invalid. Shmuel rules in accordance with R’ Yochanan ben Nuri. As Tosfos points out this seems to contradict Shmuel’s ruling here about conferring ownership on a fetus.</i> of the income produced by his wife’s work, that excess is not sanctified, because one cannot sanctify something that is not yet existent. We may assume that just as one cannot consecrate that which is not yet existent such as the excess of his wife’s production, so too he cannot transfer ownership of that excess because it does not yet exist.Most certainly via kal v’chomer one cannot confer ownership of an existent object to somebody who is not yet in existence such as a fetus, which is less likely2<i class="footnote"> גרע טפי- literally - much worse. I have translated it in context of the sentence in which it is used.</i> than conferring ownership of a non-existent item, as [the Gemara] says in the first Perek of Gittin (13b), where [the Gemara]says3<i class="footnote">The Gemara there is speaking about conferring ownership on children that as of yet have not been conceived.</i> that even according to R’ Meir who says that a person can transfer ownership of something that is not yet existent, this was said only if the recipient is somebody who is already existent, but to transfer ownership to somebody who is not yet existent, [R’ Meir] did not say that it is possible to transfer to an as of yet non-existent recipient. Apparently the Gemara holds that it is more likely that one can transfer ownership of a non-existent item than to transfer ownership to a non-existent recipient. If so, Shmuel who holds that one cannot transfer ownership of a non-existent item certainly must hold that one cannot transfer ownership to a not yet existing recipient, how can he say here that one can confer ownership to a fetus?Tosfos offers two approaches to solving this problem. The first:Tosfos’ question presumes that a fetus is as of yet a non-existent entity, Shmuel need not agree with this presumption. Even so, Shmuel considers a fetus as somebody who is already existent. Therefore one can confer ownership to a fetus even though one cannot transfer ownership of an as of yet non-existent item. Perforce Shmuel would agree that one could not confer ownership to children who are not yet conceived.The second approach:Tosfos question assumes that all agree with the Gemara in Gittin 13b that one can more readily transfer ownership of an as of yet non-existent item, than to transfer ownership to an as of yet non-existent recipient. Although it is evident that the Gemara in Gittin 13b does maintain this position, Tosfos will demonstrate that there are clearly those who think exactly the opposite. That it is more likely that one can confer ownership to a non-existent recipient than to transfer ownership of a not yet existent item. We may then say that Shmuel is in agreement with the dissenters as opposed to the Gemara in Gittin 13b.Alternatively, Shmuel is of the opinion that it is more reasonable that a person can confer ownership to a not yet existing recipient, than that one can transfer ownership of a non-existent object. But the Gemara in Gittin 13b clearly says otherwise, that R’ Meir who holds that one can transfer ownership of a not yet existing item, holds that one cannot confer ownership to a non-existent recipient?That discussion in the first Perek of Gittin (13b) comes out according to Rav Huna. Tosfos will soon demonstrate that he takes that position in opposition to Rav Nachman who concurs with Shmuel. So too, we find that Rav Nachman’s logic is directly opposed to Rav Huna.The Gemara in Yevamot 93a cites a dispute about one who sells the fruit of his palm tree, when the fruit is as of yet non-existent. Rav Huna holds that once the fruit grows, it belongs to the purchaser and the seller cannot renege on the sale. Rav Nachman holds that even after the fruit grows the seller can retract.In Bava Basra 142a we find a slight reversal. Rav Huna says that even if one confers ownership on a fetus to be effective after the birth of the fetus, the gift is invalid. Rav Nachman disagrees and holds that one can confer ownership on a fetus to be effective when the fetus will be born.Tosfos will now say that Shmuel obviously follows Rav Nachman, whereas the Gemara in Gittin 13b follows the opinion of Rav Huna. For Rav Huna holds that when one sells the fruit of the palm before the fruit has blossomed, eventually, when they are grown and in existence, [the seller] cannot retract. He obviously holds that even though the transfer was made when the fruits were non-existent the sale is effective for when the fruit does come into existence, however, in regard to a fetus he says in Bava Basra 142a, that when one confers ownership on a fetus, even after the mother gives birth, the transfer is invalid. Rav Huna holds as the Gemara in Gittin says that it is more likely to transfer ownership of a non-existent item that to confer ownership on a non-existent recipient.Whereas, Rav Nachman holds that when conferring ownership on a fetus, when the mother gives birth the transfer is effective, and in the case of selling the palm fruit even when the fruit is in existence the seller can retract. He holds that a transfer is more readily effective for a non-existent recipient than than for a non-existent item. Shmuel in our Gemara, concurs with Rav Nachman.In Summation: Shmuel holds either,A) That a fetus is considered an existing recipient. OrB) That it is more likely that one can transfer ownership to a non-existent recipient than transfer ownership of a non-existing item. Rav Nachman agrees with Shmuel. Rav Huna disagrees, which is the position of the Gemara in Gittin 13a.
  
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  R’ Yehudah says: Even in the place of Airusin, [where the Kallah is consecrated to be the wife of the Chosson and forbidden to all other men], we recite the berachos of Nisuin – [whose function is to permit Chosson and Kallah to live together as man and wife], because [the custom in Judea was that the Chosson] secludes himself with the Kallah. The people of Judea believed that it was advantageous that the Chosson and Kallah be comfortable with each other even before the Chuppah, it was therefore their custom to seclude the Chosson and Kallah.If the Chosson and Kallah are secluded together we must consider the possibility that they may cohabit with each other. [Masechet Kallah] teaches us that a Kallah upon whom no beracha was recited is forbidden by rabbinic decree to her husband as is a Niddah. And since sometimes [the Chosson] cohabits with [the Kallah] without intending that this cohabitation be for Chuppah,1<i class="footnote">These words seem to indicate that if the cohabitation would be for the purpose of Nisuin, there would be no need for a beracha. It is only because we are concerned that the Chosson might cohabit without intending that the cohabitation be for Nisuin that the people of Judea required that as soon as the Airusin took place the seven berachos of Nisuin must be said. Rashash does not see the rationale of this position and therefore deletes the words שלא לשם חופה from the text. According to this correction there is no difference whether the Chosson cohabited with the intention that this cohabitation should be the Chuppah or not. In either case he is in violation of the ruling that a Kallah without a beracha is forbidden to her husband as is a Niddah. מו"ר הרב יחזקאל קליין שליט"אsuggests a simple understanding to the words of Tosfos. If the Chosson was to cohabit for Nisuin, he would recite the beracha at that time, there is no need to recite the beracha for Nisuin in anticipation of such cohabitation. It is only because we are concerned that the cohabitation might not be for the purpose of Nisuin that we must recite the beracha in advance. See פשט ועיון by HoRav HaGeon R’ Moshe Sternbuch for a lengthy discussion of why the beracha at the time of Airusin is effective even when the cohabitation was not for the purpose of Nisuin.</i> we initially make a beracha at the time of Airusin so that if they do cohabit she should be a Kallah upon whom a beracha was recited.
  
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  The one who does not conclude [the benediction, but instead recites it] just as [the formula is] in the blessing [recited over] fruits. Tosfos quotes Rashi’s explanation a bit further on in the Tosfos. We will follow Tosfos’ lead and first explain his understanding of the Gemara and then explain Rashi’s understanding of the difference between the berachos recited on food and the beracha of Kiddush.There are two types of berachos:A) Short berachos such as the berachos we recite on food, i.e.ברוך אתה ד' אלקינו מלך העולם בורא פרי העץor when we perform mitzvot, i.e.ברוך אתה ד' אלקינו מלך העולם אשר קדשנו במצותיו וצונו על המילהברוך אתה ד' אלקינו מלך העולם אשר קדשנו במצותיו וצונו להניח תפיליןB) Long Berachos such as the berachos recited for Kiddush:ברוך אתה ה' אלהינו מלך העולם אשר קדשנו במצותיו ורצה בנו ושבת קדשו באהבה וברצון הנחילנו זכרון למעשה בראשית כי הוא יום תחלה למקראי קדש זכר ליציאת מצרים כי בנו בחרת ואותנו קדשת מכל העמים ושבת קדשך באהבה וברצון הנחלתנו <u>ברוך אתה ה' מקדש השבת </u>When we recite the shorter berachos we begin the beracha withברוך אתה ד' אלקינו מלך העולםand we conclude the beracha almost immediately by saying a few words about the food we are eating or the mitzvah we are about to perform.When we recite the longer berachos, we also begin withברוך אתה ד' אלקינו מלך העולםbut we say a much longer beracha and at the end we once again say ברוך אתה ד' and then on Shabbos we add מקדש השבת, or on Yom Tov מקדש ישראל והזמנים. This is called a conclusion - חתימה - to the beracha.The beracha of Airusinבא"י אמ"ה אשר קדשנו במצותיו וצונו על העריות, ואסר לנו את הארוסות, והתיר לנו את הנשואות אל ידי חופה וקדושיןis a bit longer than most of the berachos for food and mitzvot. It is also shorter than the berachos of Kiddush. There is a dispute about the beracha of Airusin. Ravin and Rabbah sons of Rav Adda say in the name of Rav Yehudah that we do not add a conclusion - חתימה - to the beracha, because it is similar to the beracha of food, which does not have a conclusion - חתימה - because it is not lengthy, and this beracha of Airusin as well is not long. It is not similar to Kiddush which is much longer as can be seen from the texts that we have quoted.Rav Acha son of Rava says in the name of Rav Yehudah that we do add a conclusion - חתימה - when reciting the beracha of Airusin. And the one who does add a conclusion does so because it is like Kiddush where one recites a conclusion because it is lengthy, and this beracha of Airusin is also considered lengthy, albeit not as long as the berachos of Kiddush.Rashi differs with Tosfos on two points:A) Rashi hold that when the Gemara explains that the beracha for Airusin is similar to the berachos of food and mitzvot the similarity is not the length of the berachos, rather the focus on one topic. Thus the berachos for food and mitzvot have only one topic and so too the beracha of Airusin although it is a bit longer the focus is on one topic, the women with whom one may or may not live.B) Rashi also holds that when the Gemara says that the beracha of Airusin is similar to Kiddush, it is also not the length of the beracha that is under discussion, rather the text of the beracha. Rashi says that the text of the beracha of Airusin is similar to the text of the beracha of Kiddush and that is why Rav Acha son of Rava said a conclusion to the beracha.Tosfos will now disagree with Rashi’s explanation that there is a similarity between the text of Kiddush and the text of the Airusin beracha. And Rashi’s explanation that because [the beracha of Airusin] has the same text as Kiddush, we add a conclusion to the beracha of Airusin as we do when reciting Kiddush, is not appealing.1<i class="footnote">Rashi says that the לשון of the berachos are similar. If we take this literally Tosfos seems to have a very strong argument. There is nothing about the text of these berachos that are especially alike. See Artscroll note 26, who explains that Rashi’s intent is that the very beracha speaks about the holiness of Yisroel in that they are commanded to observe the mitzvot of forbidden relation - which is the ultimate in holiness. That is why the beracha of Airusin is one of “קדושה -holiness” and should have a conclusion as do the berachos of Kiddush. See שיטה מקובצת in the name of שיטה ישנה who also refers to the similarity of the concept of קדושה and not to the similarity of text.</i>Tosfos explanation that the question of whether we add a conclusion to the beracha of Airusin is because the length of the beracha is between the shorter berachos for food and mitzvot and the longer beracha recited for Kiddush is not without difficulty: There is a bit of difficulty2<i class="footnote">It is only according to Tosfos explanation that we have this problem. The length of the beracha on the Torah is even somewhat shorter than the the beracha of Airusin. Why should the beracha of the Torah have a conclusion and not the beracha of Airusin? However, according to Rashi’s explanation that the determining factor is the focus on one or more topics, there is no problem. The beracha of Airusin focuses on only one topic while the beracha for the Torah speaks of two topics - that Hashem took us as his people and that he then gave us his Torah. When there are many topics in a beracha, it does have a conclusion.</i> with this explanation. According to the one who does not add a conclusion - חתימה, why is [the beracha of Airusin] different than the beracha of the Torah - אשר בחר בנו, where we do conclude with ברוך אתה ה' נותן התורה, even though the beracha of Airusin is longer than [the beracha of אשר בחר בנו].This question presumes that Ravin and Rabbah the sons of Rav Adda did add a conclusion to the beracha of the Torah but not to the beracha of Airusin. This may not necessarily be true. But perhaps he did not add a conclusion to the beracha of the Torah and there is truly no contradiction in his practice. 
  
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  And that is [the case only] when new faces come. Rav Yehudah teaches us that we are to recite the seven berachos of Nisuin for seven days only when there is a ‘new face’ at the banquet. If the participants in Thursday’s feast are all people who attended the wedding on Wednesday, the sheva berachos of Nisuin are not recited. Who qualifies as a ‘new face’?R’I says that a ‘new face’ is only a person of importance for whom the festivities are increased more1<i class="footnote">See Shulchan Aruch E.H. 62, 7, who says in the first opinion that anyone who heard the berachos at the Chuppah even if he did not participate in the wedding meal cannot be considered a ‘new face’. In the second opinion he cites those who hold that even if they heard the berachos of the Chuppah, as long as they did not eat at a previous meal, they qualify as a ‘new face’. See Paragraph 8, where the Shulchan Aruch cites the opinions mentioned in our Tosfos about the rules of a ‘new face’.</i> than if they were not in attendance. Since there is an increased level of joy because of the new guests, there is reason to recite the berachos once again. When the level of joy remains the same there is no need for berachos.We find that the holy Shabbos is considered a ‘new face’ and we recite the berachos on Shabbos even when there are no new attendees. And Shabbos which we consider as a ‘new face’ as we say in the Agadah - “A song for the Shabbos day” - The Holy one Blessed be He says upon the arrival of Shabbos: a ‘new face’ has come - let us sing in honor of the occasion.Why is Shabbos considered a ‘new face’ according to Tosfos criteria that the ‘new face’ must bring a higher level of joy? There too, on Shabbos we increase the joy and the meal in honor of the Shabbos. Since there is an increase in the level of joy we recite the sheva berochos once again.
  
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  "Who has created all for His glory," and "Creator of mankind. There are certain times that we recite a series of berachos and each beracha begins with the word ברוך אתה ד' אלקינו מלך העולם, such as when we recite every morning the long series that begins with הנותן לשכוי בינה להבחין בין יום ובין לילה. Other times, when we recite a series of berachos only the first beracha begins with ברוך אתה ד' אלקינו , for example when we recite the berachos of Shemona Esrei in prayer, the very first beracha begins with ברוך אתה ד' אלקינו. All subsequent berachos do not begin with ברוך אתה ד' אלקינו, such as אתה גבור and אתה קדוש and so on.The same is true of the first three berachos recited after meals: The first beracha begins with ברוך. The second beracha begins with נודה לך and the third with רחם. See Berachos 49a about the last beracha and why it does begin with ברוך.See Berachos 46b and Pesachim 104b where the Gemara establishes the following rules. When one beracha immediately follows another beracha in a series of berachos such as in Shemona Esrei or in the berachos after a meal, the very first beracha begins with ברוך, all subsequent berachos do not begin with ברוך. It is as if the very first ברוך acts as an introduction to all the following berachos. These are referred to as ברכה הסמוכה לחבירתה - a beracha that is adjacent to another beracha.The same is true of the first three berachos recited after a meal. The very first begins with ברוך while the next two do not. Once again the first ברוך is an introduction for all subsequent berachos. The second beracha immediately follows the first beracha and the third immediately follows the second.The berachos of Nisuin present a bit of a difficulty. The first three berachos begin with ברוך and the following two berachos - שוש תשיש and שמח תשמח - do not begin with ברוך .Finally, the last beracha - אשר ברא - also begins with ברוך. This requires some explanation.Tosfos will first present his own explanation of why the berachos of Nisuin have a peculiar arrangement in regard to those that begin with ברוך and those that do not. He will then tell us of how Rashi disagrees with his explanation. Finally, he will tell us of Rabbeinu Chananel’s explanation. Tosfos will then show us that his explanation compels us to emend the text of the Gemara in Berachos 11b, which discusses the berachos that we recite on the Torah each morning.The first two berachos:1<i class="footnote">I have explained that Tosfos’ question is about both of the first berachos. This is based on Tosfos in Pesachim 104b, where Rabbeinu Tam clearly says this explanation about both the first beracha שהכל – ברא לכבודו and the second beracha - יוצר האדם. See Maharsho there who explains that Tosfos question assumes that since we first begin with the beracha on wine – בורא פרי הגפן - the beracha of שהכל ברא לכבודו is also adjacent to a preceding beracha and should not begin with ברוך. However, a careful analysis of the text of Tosfos here might yield that Tosfos is asking only why the second beracha יוצר האדם begins with ברוך. He did not seem to have a problem with the first beracha שהכל ברא לכבודו, because it is actually the first of the series of berachos pertaining to marriage. In fact, when we recite the berachos after the wedding feast and after the meals during the week of festivity, we begin with שהכל ברא לכבודו and it is not preceded by בורא פרי הגפן.</i> שהכל ברא לכבודו and יוצר האדם each begin with ברוך, even though each of them2<i class="footnote">See note 1. This expression “each of them” seems to say that Tosfos’ question is about both the first and second berachos as he clearly says in Pesachim 104b.</i> is adjacent to the beracha preceding it, and according to the Gemara in Berachos 46b and Pesachim104b as berachos that are adjacent to another beracha they should not need to begin with ברוך, but since both of these berachos are brief, if they did not each begin with ברוך, it would appear as if they are all one long beracha. If one would first recite ברוך אתה ד' אלקינו מלך העולם שהכל ברא לכבודו and would then just add יוצר האדם, it would appear as if the words יוצר האדם were a continuation of the preceding beracha. It is therefore necessary to begin the second beracha as well with ברוך in order to establish its own identity.So too, with the third beracha אשר יצר. If it would not begin with ברוך it would appear as if it was a continuation of the previous beracha that starts with ברוך א'ד'א'מ'ה' יוצר האדם  and continues with אשר יצר, it is therefore necessary to begin the third beracha - אשר יצר - with its own ברוך.This is not true of the fourth and fifth berachos שוש תשיש and שמח תשמח. However, for שוש תשיש which follows a long beracha - אשר יצר - it is not necessary to begin with ברוך since each beracha has its distinct identity.According to what we have learned in Berachos  46b, the sixth and last beracha אשר ברא should definitely not need to begin with ברוך, since it is adjacent to שמח תשמח and there is no way of thinking that it might be part of the previous beracha. Why does it begin with ברוך? The reason that אשר ברא - the final beracha - begins with ברוך is because it is sometimes recited independently, not as one of a series of berachos, when there is no ‘new face’, as Rashi explained. Since it is sometimes recited alone, it has the status of an independent beracha even when recited in a series.Tosfos now mentions that Rashi has an alternative explanation of why שהכל ברא לכבודו and יוצר האדם each begin with ברוך and are not treated as part of a series of berachos. Rashi’s approach will also explain why the third beracha - אשר יצר - must begin with ברוך. For the reason that שהכל ברא לכבודו and יוצר האדם begin with ברוך, Rashi said a different rationale.Rashi says that שהכל ברא לכבודו is not about the marriage at all. It is a beracha about the assemblage of people who have come together to perform a mitzvah. It is not truly the beginning of a series of berachos about marriage and is an independent beracha , not a part of the marriage berachos, as we find when we say the berachos of the morning. We say many berachos but each begins with ברוך because they are essentially different berachos. We happen to say them at one time. Indeed in Talmudic times many of them were said when the event took place, such as saying המכין מצעדי גבר when one takes his first steps in the morning. The fact that we say them together does not necessarily make them a ‘series’ of berachos.The same applies for יוצר האדם. That too is not about marriage. It is a beracha about the creation of man. As we are about to recite berachos about marriage we also recite a beracha about the very creation of man, the step that preceded the creation of woman. This beracha as well is not part of the ‘series’ of marriage berachos. The marriage berachos begin with the beracha of אשר יצר which specifically mentions that Hashem created a mate for man. For the next two berachos שוש תשיש and שמח תשמח we do not begin the beracha with ברוך because they do follow the first beracha of the marriage berachos - אשר יצר.The final beracha אשר ברא does begin with ברוך because of the reason explained earlier in this Tosfos. Sometimes it is recited independently, specifically when there is no ‘new face’ attending the banquet. At such times it must be opened with ברוך because there is no beracha preceding it and we therefore always recite it the same way, opening with ברוך.Finally Tosfos cites Rabbeinu Chananel who offers yet another reason for beginning יוצר האדם with ברוך. Rabbeinu Chananel does not subscribe to the idea that the brevity of the beracha is an adequate reason for it to begin with ברוך. He seems to be concerned only about the second beracha - יוצר האדם. That could be recited without an opening ברוך because it is adjacent to the first beracha - שהכל ברא לכבודו. Obviously, he must hold that the first beracha - שהכל ברא לכבודו - is the beginning of the series and must begin with ברוך. However, the second beracha - יוצר האדם - should not need a ברוך. Why does it begin with ברוך?The Gemara will soon tell us that there is a dispute between Levi and Rav Asi about whether this beracha - יוצר האדם - should be recited at all. Levi holds that we do not recite יוצר האדם and Rav Asi holds that we do. Rabbeinu Chananel explained that יוצר האדם begins with ברוך because there were some who did not recite it at all as [the Gemara] will soon say. Since we find that Levi did not say this beracha, it would seem that initially when the Sages instituted the berachos, יוצר האדם was not included. It was at some later time that there was a rabbinic decision to include this beracha in order to praise Hashem for the original creation of man. There was not general agreement on this new beracha and many continued to omit it from the marriage berachos. They all agree that this beracha is not a beracha about marriage, but rather about the original creation of man. Their dispute was whether a beracha about the initial creation of man needs to be included in the marriage berachos. In any case even Rav Asi who insists on reciting it holds that it is not about marriage and it is not to be treated as one of the ‘series’. We therefore must begin this beracha with its own ברוך.3<i class="footnote">Tosfos explained why the second beracha - יוצר האדם - begins with ברוך according to Rabbeinu Chananel, but he has not explained why the third beracha - אשר יצר - begins with ברוך. It seems that the third beracha is legitimately a bracha adjacent to another beracha and should not require an opening with ברוך. See רשב"א who quotes some who say that since the second beracha - יוצר האדם - speaks of the creation of man and the third beracha - אשר יצר - also speaks of the creation of man, if there was no ברוך separating them they would seem like one long beracha. Rabbeinu Chananel holds that the rule of a beracha that is adjacent to another beracha does not require an opening with ברוך applies even for short berachos, but only when each beracha maintains its own identity. When the identities of the beracha will be compromised, we must separate them with ברוך. An interesting observation about this explanation of Rabbeinu Chananel is that Levi who did not say the second beracha - יוצר האדם - did not need to begin the beracha אשר יצר with ברוך. He would first say: שהכל ברא לכבודו בא"י אמ"ה and then begin his second beracha: אשר יצר את האדם בצלמו בצלם דמות תבניתו, והתקין לו ממנה בנין עדי עד, ברוך אתה ה' יוצר האדם. It is only according to Rav Asi who inserts the beracha יוצר האדם that an opening is required for אשר יצר. There are some other explanations to be found in רשב"א.</i>According to Tosfos’ explanation the reason that אשר יצר begins with ברוך is because the beracha preceding it - יוצר האדם - is a short beracha. The rule that we do not begin with ברוך when reciting a series of berachos is only true if the first beracha is a long beracha such as אשר יצר which begins with ברוך and also has a conclusion. If so, the second beracha of the berachos we recite on the Torah each morning presents a problem. The very first beracha is a short beracha that does not have a conclusion we simply say - that Hashem commanded us to study Torah. Why does the next beracha הערב נא not begin with ברוך? Just as אשר יצר begins with ברוך because יוצר האדם which precedes it is a short beracha, so too, הערב נא which follows a short beracha should also begin with ברוך.The potency of this question forces Rabbeinu Tam to emend the text of the Gemara in Masechet Berachos 11b that discusses the berachos recited upon the Torah. Rabbeinu Tam says that in the first Perek of Masechet Berachos (11b) in regard to the Berachos recited upon the Torah, we emend the text  as follows: R’ Yochanan concluded the  recital of the beracha of the torah as follows: והערב נא - and please sweeten etc. with a connecting 'ו, because the beginning of the beracha that Hashem commanded us to toil in Torah and the ensuing ‘please sweeten’ are one long beracha. For if they were two independent berachos the second beracha beginning with ‘please sweeten’ should begin with ברוך, even though it is adjacent to the previous beracha since the preceding beracha that you commanded us to toil in Torah, is a short beracha and Tosfos’ has concluded that when the first beracha is a short beracha the following beracha must begin with ברוך. It follows that if הערב נא is a separate beracha it must also begin with ברוך. We must therefore emend the text of the Gemara in Masechet Berachos 11b to read  והערב נא with a connecting 'ו, which makes והערב נא a continuation of the previous beracha and not a beracha in its own right and that is why it does not begin with ברוך. All that is mentioned in the text of the lengthy beracha follows the ברוך at the very beginning of the beracha.Eventually the Gemara there mentions that Rav Hamnuna said a different beracha on the Torah - Rav Hamnuna then concludes that we should say all the suggested berachos - as we in fact do. The text of our Gemara in Berachos 11b is - we should say all the berachos. This implies that there are more than two. But Tosfos said that there are only two berachos for the Torah? Why does the Gemara speak of ‘all the berachos’ if Tosfos is correct and there are only two? We must therefore emend the text of Rav Hamnuna’s statement.Afterwards, in Rav Hamnuna’s concluding statement that we should say all the berachos mentioned about the Torah, we must emend the text to read as follows: that we should say both berachos, and we do not have the text that we should say all the berachos, for if so, that the text is “all” - it would imply that there are three berachos, but since Tosfos’ holds that there are only two berachos we cannot endure the word “all” and must replace it with “both”, which refers to the two berachos of the Torah.
  
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  It was one [act of] creation. See Eiruvin 18a. The Gemara there cites a dispute about the original creation of man.A) One is of the opinion that man and woman were initially created as a double person - one body with two faces - male and female, which was later split into two sections.B) A second opinion is that man was originally created with an appendage and that Hashem later took the appendage and fashioned it into a woman.The Gemara there raises the following question: The verse in Bereishis 5, 2, says about the original creation of man: He created them male and female. This makes sense according to the one who says that the original creation was one body with two faces (A). Male and female were created together and later split apart. But according to the one who says that first Hashem created man with an appendage and then fashioned the appendage into a woman (B), how can the verse say that the initial creation was male and female?The Gemara answers that the verse comes to teach us the lesson of R’ Abohu who put forward a seeming contradiction. One verse (Bereishis 5, 2,) says that - Hashem created male and female, whereas another verse (Bereishis 1, 27) says - He created him, indicating that the first creation was exclusively male. R’ Abohu resolves this contradiction by answering that the initial plan was to create man and woman together (A) as indicated in the verse in Bereishis 5,2. Ultimately, Hashem decided to create man alone and later fashioned his appendage into a woman (B). Note that the Gemara says this answer only according to the opinion that the original creation was male alone. It is clear in the Gemara in Eiruvin that the opinion that holds that Hashem created male and female at one time (A) need not hold of R’ Abohu’s resolution of the contradiction of the verses.Our Gemara also speaks of two opinions about creation.A) One holds there was one creation warranting only one beracha about the creation of man andB) the other holds there were two creations, which warrants two berachos about the creation of humanity. How do the two opinions of our Gemara concur with the two opinions mentioned in Eiruvin 18a?Rashi says that the opinion in our Gemara that says there was one creation (Kesubos A) coincides with the opinion in Eiruvin that man and woman were initially created as one body with two faces (Eiruvin A).The opinion who holds that there were two creations (Kesubos B) concurs with the opinion in Eiruvin that man was first created as a male and had an appendage, which was later converted into a female (Eiruvin B).According to Rashi’s explanation Levi who holds there was one creation of a double person who was both male and female, says that we need recite only one beracha about creation. Rav Asi who holds that there were two creations, because man was first created alone and later his appendage was fashioned into a woman, says that we must recite two berachos about creation. Thus, if one holds there was only one creation, he recites only one beracha. If he holds that there were two creations he recites two berachos.<u>Levi</u>Eiruvin A) - one double figure of male and femaleKesubos A) one creationone beracha for creation is sufficient.<u>Rav Asi</u>Eiruvin B) man created with an appendage that is later fashioned into a womanKesubos B) two creationstwo berachos are recited for creation.Rashi’s explanation works very well up until this point in the Gemara. At the next step in our Gemara we face a very severe difficulty with Rashi’s explanation.Our Gemara concludes that both of the opinions mentioned in our Gemara may hold that there was only one creation. According to Rashi this means that man and woman were created as one body with two faces and seemingly we should recite only one beracha for creation. If everybody agrees on this point, what then is the dispute between Rav Asi who holds that we recite two berachos for creation and Levi who says we recite only one?Our Gemara then goes on to say that the dispute is whether the beracha is recited in accordance with the way Hashem actually created man - a double person both male and female - or according to Hashem’s plan that this double figure would be separated and become two independent people. (See Artscroll note 20.) The Gemara cites R’ Abohu’s resolution of the contradiction between the two verses to show that Hashem actually created a double person with two faces, but had planned that this double figure would eventually be separated. Levi holds that we say the marriage berachos in accordance with the actual creation, which was one creation of man and woman - thus only one beracha is recited for creation. Rav Asi holds that we recite the berachos in accordance with Hashem’s plan that ultimately there would be two independent people - thus two berachos are recited for creation.Now according to Rashi who says that when our Gemara speaks of one creation it means that Hashem created one being who was both male and female (Eiruvin A), we have a major difficulty understanding how our Gemara cites R’ Abohu as proof that there was an original plan for creation that differed from the actual creation. As we noted earlier (paragraph 3), the Gemara in Eiruvin 18a introduces R’ Abohu’s exposition only to explain the position of the one who holds that man was created alone (Eiruvin B). The Gemara never had a problem with the opinion that holds that Hashem created a double person (Eiruvin A). It was only according to the opinion who says that man was created with a tail that was later fashioned into a woman (Eiruvin B) that the Gemara asked how do you explain the verse that says - Hashem initially created male and female. The Gemara then introduced R’ Abohu who said that Hashem planned to create a double person but then created man alone. The opinion that holds Hashem initially created a double person (Eiruvin A) has no contradiction to resolve. Yet our Gemara is introducing R’ Abohu’s resolution in order to explain the one who says that the initial creation was a double person both male and female (Eiruvin A).Due to the intensity of this question Tosfos offers a different explanation of the term “there was one creation”. We must say that the term one creation follows the opinion of the one who says that man was created with one face of a male and later his appendage was fashioned into a female. Tosfos is disagreeing with Rashi’s position that the one who holds that there was one creation - is the one who holds that the initial creation was one double person which was both male and female. According to Tosfos the one who says - there was one creation (Kesubos A) - holds that man was first created alone (Eiruvin B). The opinion that holds - there were two creations (Kesubos B) - holds that man and woman were created together as one double person (Eiruvin A).1<i class="footnote">See שיטה מקובצת ד"ה לימא who explains that although Tosfos interprets the terms one creation and two creations the opposite of Rashi, Tosfos agrees that the one who holds that man and woman were created as one recites only one beracha for creation and the one who holds that man was created alone and that his tail was later fashioned into a woman, recites two berachos for creation.Levi holds:Eiruvin A - double figure of man and womanKesubos B - refers to this as two creationsone beracha recited for creation.Rav Asi holds:Eiruvin B - man created aloneKesubos A - refers to this as onecreation two berachos are recited for creation.</i>What compels us to disagree with Rashi? Since [the Gemara] says afterwards when rejecting the hypothesis that Levi and Rav Asi argue about whether there was one creation or two creations of man, that all agree that there was only one creation, however, one master holds that the berachos are recited according to Hashem’s original plan and the other master holds that we recite the marriage berachos according to what actually happened.The Gemara is using R’ Abohu’s resolution of the contradiction between the two verses as an explanation of the two opinions about how many berachos are to be recited. But in the beginning of the second Perek of Eiruvin (18b) it is clearly stated that only according to the one who says that the original creation was a male with one face the Gemara says that it was the original plan to create the human being as one body with two faces - male and female combined, but he was actually created as a single male, but the one who says there in Eiruvin 18a, that man was created as a double person with two faces, does not hold that2<i class="footnote">See שיטה מקובצת (ibid.) who explains that although the Gemara introduced R’ Abohu according to (Eiruvin B) and it is clearly stated that according to (Eiruvin A) the verse - he created them male and female was understandable even before R’ Abohu’s explanation, Rashi holds that ultimately, even (Eiruvin A) accepts R’ Abohu’s resolution of the contradiction and believes it to be true. However, the explanation of the original plan versus what actually happened must be different. See Artscroll note 20 for the explanation of original plan and what actually happened according to this opinion.</i> there was a difference between the original plan of creation and the way that it actually happened. So does Rashbam explain our Gemara.Since our Gemara says that the difference between Rav Asi and Levi is that Levi who recited only one beracha holds that we follow the original plan of creation, which was to create one double person, and we therefore recite only one beracha for creation. Rav Asi holds that the beracha is recited according to the way creation actually occurred, which was that Hashem first created man alone and then fashioned his tail into a woman, it must be that our Gemara is following the opinion in Eiruvin that man was in fact created as a male alone and later a female was added. Our Gemara says clearly that this is the opinion of the one who holds that there was one creation. It compels us to say that the term - one creation – means that man was created as a male alone. This is diametrically opposed to Rashi’s explanation which says that the term one creation means that Hashem created a double person which had two faces one male and one female.
  
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  Rav himself was a tanna and [could therefore] disagree. Rav Nachman said in the name of Rav that when the special berachos for mourners are recited, the mourner cannot be counted for the minyan. The Gemara then refutes this from a Baraisa that clearly states that the mourner can be counted as one of the ten. The Gemara answers that there definitely is a contradiction, but Rav is a Tano and can argue with a Baraisa.Immediately afterwards the Gemara cites R’ Yochanan who holds exactly the same as Rav and again refutes his position from the same Baraisa. The Gemara answers that the Baraisa is speaking of the post-meal berachos, while R’ Yochanan is speaking about the quorum of ten needed when the mourners walk past a row of men who comfort them. It is for the ‘row’ of comforters that ten non-mourners are needed.Tosfos wonders why the Gemara could not have resolved the contradiction of Rav and the Baraisa in the same way: that Rav was speaking about the ‘row’ of comforters and the Baraisa is speaking about the berachos recited after meals. [The Gemara] does not want to answer: That Baraisa, which includes the mourners in the count is speaking about the post-meal berachos, while Rav was speaking about the minyan needed for the ‘row’ of comforters as [the Gemara] answers according to R’ Yochanan, because it appears to [the Gemara] as awkward to interpret the difference between Rav and the Baraisa this way. [The Gemara] is more comfortable with saying that Rav disagrees with the Baraisa.The Gemara does not seem to have that option when dealing with the contradiction between R’ Yochanan and the Baraisa. Since [the Gemara] does not say when attempting to resolve the contradiction between R’ Yochanan and the same Baraisa, that R’ Yochanan is a Tano and argues with the Baraisa, we can prove that R’ Yochanan was an Amora, thus not capable of arguing with a Baraisa, for if he was a Tano, [the Gemara] would have resolved the contradiction between R’ Yochanan and the Baraisa as it answered according to Rav, that R’ Yochanan is a Tano and may argue with a Baraisa.But once we have established that Rav is a Tano and can argue with a Baraisa, there is no need to say that R’ Yochanan and the Baraisa are speaking of different situations, we can say that R’ Yochanan is following the opinion of the Tano Rav? We should not ask: Why doesn't [the Gemara] answer that R’ Yochanan could say: I follow the opinion of Rav who is a Tano and holds that mourners are not to be included in the minyan, because R’ Yochanan did not think of Rav as a Tano, for we find that he argues with him in many areas. If R’ Yochanan thought of Rav as a Tano he would not argue with him.However, there is a R’ Yochanan who was a Tano, as we learned in a Baraisa at the end of Masechet Nazir (65a) where the Gemara is discussing how much of the earth surrounding a corpse must be removed together with a corpse: How much is the measure of surrounding earth that must be removed together with a corpse? R’ Yochanan explained etc. We see that there was also a Tano by the name of R’ Yochanan. As Tosfos Nazir rnts tuv vws, points out that Tano is R’ Yochanan ben Nuri, not the R’ Yochanan mentioned here who is an Amora.See מהרש"ם quoted in the digest of commentators in the ש"ס נהרדעא, who discusses differing opinions on this issue.
  
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  When that is taught, [it is] with regard [to] Grace after Meals. We are dealing with three teachings about whether mourners are included in the minyan:A) R’ Yochanan’s first statement that mourners cannot be included in the minyan. This statement does not clearly say what the purpose of this minyan is.B) A Baraisa that says mourners can be included in the minyan.C) The second statement of R’ Yochanan where he clearly says that the mourners’ berachos require a minyan and the mourners are not included in the count.When the Gemara presents the contradiction between (A) and (B), the Gemara resolves the contradiction as follows:(A) R’ Yochanan who says that we must have a minyan besides the mourners is speaking of the ‘row’ of comforters.(B) The Baraisa that says the mourners may be included in the count is speaking about the berachos recited after meals.What exactly is meant when the Gemara says that the Baraisa is speaking about the berachos recited after meals? Rashi explained that the mourner can unite with two others in order to recite the beracha of zimun, as we usually do when three people eat together. One invites the others to recite a special beracha to Hashem as an introduction to the post-meal berachos. Even though one is a mourner this can be done, because he is obligated to fulfill all mitzvot as we learned earlier on 6b. Since he is obligated to fulfill the mitzvah of post-meal berachos, he is treated like any other person and can unite with two others for the fulfillment of the zimun beracha.It emerges according to Rashi’s explanation that (B) the Baraisa is only telling us that a mourner is obligated to perform all mitzvot. Why is the Baraisa using the beracha of zimun as a vehicle to bring out this ruling? R’I does not find Rashi’s explanation appealing. For if so, then the intent of the Baraisa is only to inform us that a mourner is obligated to perform all mitzvot.1<i class="footnote">See ריטב"א who defends Rashi as follows: There is a custom to begin the zimun beracha in a mourner’s home with the words – ברוך מנחם אבלים - Blessed is he who comforts mourners. One might argue that this is said as a way of comforting the mourner and the mourner should therefore not be included in the count needed to recite the zimun. Only those who are comforting the mourner should be included in this zimun beracha. The Baraisa teaches us that this beracha is not directed at this specific mourner, rather it is a general beracha stating that Hashem comforts mourners and the mourner may therefore participate. Thus, the Baraisa is teaching us a rule related specifically to the beracha of zimun. It is not a general statement that a mourner is obligated in all mitzvot.</i> [The Baraisa] should have openly stated that a mourner is obligated to do all mitzvot. The Baraisa does not need to illustrate this point by telling us that the mourner can unite with others for the beracha of zimun.Tosfos will now raise a second difficulty with Rashi’s explanation from the next step in the dialogue of the Gemara. According to Rashi the Gemara explained that (B) the Baraisa that says mourners are included in the count is not referring to the special mourners’ berachos recited together with the regular post-meal berachos, but rather to the introductory beracha of zimun. It is only in reference to the beracha of zimun that the Baraisa has stated that mourners are included in the count of three. Nothing has been said in regard to the mourners’ berachos added to the regular post-meal berachos.In the next step of the dialogue (that begins with but R’ Yitzchok said in the name of R’ Yochanan) the Gemara asks: But (C) R’ Yochanan has said that the mourners’ berachos are to be recited with ten and the mourners are not included in the count? In order to emphasize its point the Gemara adds: You cannot answer that this statement (C) of R’ Yochanan is also speaking about the ‘row’ of comforters, because there is no beracha recited at that time. He must be speaking about the mourners’ berachos added to the post-meal berachos.The logical conclusion of the Gemara’s question is that we are compelled to say that the second statement (C) of R’ Yochanan is clearly saying that the mourners cannot be included in the minyan for the special mourners’ berachos added to the regular post-meal berachos. This is in direct conflict with (B) the Baraisa that says mourners may be included in the minyan.We must now ask: But according to Rashi, there is no such Baraisa that says mourners may be included in the count for the special mourners’ berachos added to the regular post-meal berachos. The Baraisa only said that mourners may participate in the beracha of zimun. Furthermore, if it were so that (B) the Baraisa is only saying that the mourners are included in the count for the zimun beracha, what is the Gemara’s question from (C) R’ Yochanan’s second statement that the mourners’ berachos must be said with ten and the mourners are not included in the minyan, and in order to show that this statement cannot be understood as speaking about when the comforters are standing in a ‘row’, [the Gemara] says: Is there a beracha recited at the ‘row’ of comforters? We cannot deflect the question by saying that (C) R’ Yochanan’s second statement is also speaking about the comforters in the ‘row’ because it speaks of a beracha and no beracha is recited at the ‘row’ of comforters. Tosfos continues his explanation of the Gemara that it is intending to show that there is a contradiction between (B) the Baraisa and (C) the second statement of R’ Yochanan:Rather, we are compelled to say that this second statement of R’ Yochanan is speaking about the special mourners’ berachos added to the regular post-meal berachos and he is clearly saying that the mourners are not included in the minyan for these special mourners’ berachos, and the original question is back in place, because (B) the Baraisa taught that mourners are included in the minyan and we interpreted this Baraisa as speaking about a minyan for mourner’s berachos to be added to the post-meal berachos. According to this approach we understand the Gemara’s question in the second step of the dialogue, that there is a contradiction between (B) the Baraisa that is speaking of the mourners’ berachos and saying that the mourners can be included in the minyan and (C) the second statement of R’ Yochanan which is saying that the mourners cannot be included in the minyan for mourners’ berachos.However, according to Rashi’s explanation that the Baraisa (B) is speaking only about the zimun beracha, there is no difficulty at all, for (B) the Baraisa that teaches, mourners are included in the minyan is speaking about uniting to a count of three in order to say: We will praise Him from whom we have eaten. The Baraisa (B) and R’ Yochanan’s second statement do not contradict each other at all. The Baraisa (B) is speaking about the zimun beracha, while R’ Yochanan’s second statement is speaking about the special mourner’s berachos added to the regular post-meal berachos.Therefore we must explain that when the Gemara initially says: when did (B) the Baraisa say that mourners are included in the minyan, for the post-meal berachos, that means the special mourners’ berachos added to the regular post-meal berachos. The Gemara is resolving its first contradiction as follows: (A) R’ Yochanan’s first statement that mourners are not included in the minyan is about the ‘row’ of comforters. (B) The Baraisa that says mourners are included in the minyan is speaking about the special mourner’s berachos added after the regular post-meal berachos.The Gemara then goes on to ask: But (C) R’ Yochanan’s second statement clearly says that mourners are also not included in the minyan for mourners berachos, which contradicts the Baraisa (B), which says that mourners are included in the minyan for mourners’ berachos. According to Tosfos explanation of the phrase: that Baraisa is speaking about the mourners’ berachos added to the post-meal berachos, the second step in the Gemara’s dialogue makes perfect sense.2<i class="footnote">See שיטה מקובצת ד"ה עוד בקשו בתוספות who offers the following answer to Tosfos second question on Rashi: Tosfos assumes that the intention of the questioner in the second step of the dialogue is to disprove the resolution of the first step. The resolution was that (A) R’ Yochanan’s first statement is speaking about the ‘row’ of comforters, while (B) the Baraiso is speaking about the zimun beracha. If the intent of the Gemara in the second step is to disprove the first resolution, Tosfos argument that according to Rashi there is no contradiction between (B) and (C) is indeed a very strong argument. However, Rashi has an entirely different approach to the Gemara’s second step. It is not to disprove the resolution of the first step. The Gemara is satisfied that (B) the Baraisa is speaking about the zimun beracha. Rather, the Gemara is still searching for R’ Yochanan’s original intention when he said that the mourners cannot be included in the minyan. The present answer that he was speaking about the ‘row’ of comforters is not tenable, because we find that R’ Yochanan was speaking about a beracha and no beracha was recited at the ‘row’. The Gemara then suggests that (C) R’ Yochanan is speaking about the beracha recited at the town square. According to Rashi, there never was a point in the dialogue where the Gemara suggested that there is anything wrong with the way (B) the Baraisa was explained, it was only searching for a greater clarification of R’ Yochanan’s statement.</i>Do we have any clear source that a minyan of ten is required for reciting the mourners’ berachos together with the post-meal berachos? A careful examination of the three sources quoted in our Gemara will reveal that we do not have a clear statement that a minyan is required for the mourners’ berachos.Let us examine the three sources:(A) R’ Yochanan’s first statement is speaking about the ‘row’ of comforters.(B) The Baraisa is speaking about the mourners’ berachos but does not mention that a minyan is required. (According to Rashi the Baraisa is speaking only about the zimun beracha.)(C) The second statement of R’ Yochanan that does require a minyan is speaking about the mourner’s berachos recited in the town square.There is no clear source requiring a minyan for the mourner’s berachos recited after post-meal berachos in the mourner’s home. However, Tosfos now concludes that it is evident from the dialogue of the Gemara that a minyan is required for mourners’ berachos after the meal, even though we have no clear source.From this discussion it can be understood that mourner’s berachos recited after the regular post-meal berachos, are only to be said when there is a minyan of ten. This can be seen from the dialogue of our Gemara, because the questioner thought that (C) R’ Yochanan’s second statement is speaking about the mourners’ berachos that are recited together with the regular post-meal berachos and [R’ Yochanan] is saying that a minyan of ten is required.But how can we present this as proof that a minyan is required for the mourner’s berachos of the post-meal berachos, eventually the Gemara says that this (C) second statement of R’ Yochanan is discussing the berachos recited at the town square and not about the mourners’ berachos recited with post-meal berachos? [The Gemara] would have been pleased with this resolution that R’ Yochanan is speaking about mourner’s berachos of post-meal berachos, if not for the fact that (B) the Baraisa taught us earlier that mourners are to be included in the minyan, whereas in R’ Yochanan’s second statement he is saying that the mourners are not to be included in the minyan. The subject of whether the mourner is included in the minyan is presented as a contradiction between (B) and (C). The Gemara does not attack the original understanding of (C) R’ Yochanan’s second statement because he has introduced a new ruling: that the mourner’s berachos added to the post-meal berachos requires a minyan. It is obvious that the Gemara believes that it is in fact required to have a minyan present for the recital of these berachos. If so, a minyan of ten is required.3<i class="footnote">See Rashah who quotes Tosfos in Megillah 23b ד"ה ואמר ר' יצחק, who disagrees and says that mourners’ berachos recited with post-meal berachos do not require a minyan. Rashash points to Mordechai there 814, who says that the dispute centers about this point: Can we present what the Gemara seems to hold at one point in the dialogue as proof of the halacha, in absence of a definite statement of this ruling? Our Tosfos obviously holds that a conclusion based on our understanding of the dialogue is sufficient. Tosfos there holds otherwise. According to Rashi (see note 2) there never was a point in the dialogue where the Gemara held that a minyan was required for mourners’ berachos when recited post-meal, the Gemara was merely searching for an application of R’ Yochanan’s rule that mourners cannot be included in the minyan.</i>
  
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  Rather, when Rabbi Yoḥanan said [that, it was with regard to the blessing recited] in the square. The Gemara quotes three statements of R’ Yitzchok in the name of R’ Yochanan:A) ...mourners are not included in the minyan.B) the mourners’ berachos are recited with a minyan of ten and the mourners are not included in the minyan.B) ... we recite mourners’ berachos with a minayn of ten all seven days and the mourners are not included.Tosfos will clarify why all three statements are needed and how they are different. To some degree this depends on the text of our Gemara. We have explained many times that when the word אלא is used at the beginning of an answer it is an indication of a retraction of a previously held position. In our text of the Gemara after the second step in the dialogue the Gemara does use the word אלא. This indicates that the Gemara no longer holds of its initial conclusion that the first statement of R’ Yochanan is speaking about the row of comforters and is telling us that ten are needed, but the mourners are not included.Tosfos is now referring to the text of the Gemara at the conclusion of the second step of the dialogue, where the Gemara suggests that the second statement of R’ Yochanan requiring ten, but not including the mourners is speaking about the berachos recited in the town square after the funeral. If we have the word אלא-rather in our text, it implies that the earlier statement of R’ Yochanan is also interpreted as speaking about the town square. If we remain with the position that the first statement of R’ Yochanan is speaking about the comforters ‘row’ there is no need for the word אלא. It is only if we are retracting that position that the word אלא needs to be used.This is bewildering! Why is it necessary to have two statements (A) the earlier one and (B) this one. Nothing is to be learned from the first statement if it is also discussing the very same mourners’ berachos that (B) the second statement is discussing. We must say that one, was deduced from the other. That earlier statement (A) from this statement (B). It was taught in a slightly shorter version, not specifically mentioning the need for ten, but assuming that it was understood that ten are needed for the berachos in the town square. What emerges that there are only two statements by R’ Yochanan (B) and (C). (B) discusses the berachos recited in the town square and (C) discusses those very same berachos when recited in the presence of a ‘new face’. Statement (A) was just a shortened version of statement (B). The need for statements (B) and (C) will be discussed later in the Tosfos.Tosfos will now show us the advantage of the text that does not have the word אלא. We will now have three statements by R’ Yochanan that are all speaking of a different situation and we will see why they are all necessary. However, if we do not have the word אלא in our text, it is easier to explain the need for all three statements:Statement (A): The earlier statement (A) is speaking about the comforters ‘row’, as was initially explained. It is saying that the comforters ‘row’ must consist of ten non-mourners.Here in statement (B) we are speaking about the berachos recited in the town square when there is no ‘new face’. These berachos are recited only once and that is why no mention is made of seven days.Statement (C): The third statement of R’ Yochanan is needed to inform us that when there is a ‘new face’ and the berachos of the town square will be recited in the mourners’ home for seven days, if there is a ‘new face’ each day, the mourners are not included in the minyan of ten.But why is it necessary to have both statement (B) and (C), wouldn’t it be sufficient to have just statement (C) which informs us that the mourners are not included in the minyan for the berachos of the town square even when they continue for seven days because of the presence of a ‘new face’? We would then know that for the berachos of the town square the mourners cannot be included in the count.Tosfos explains why this is not so. If he mentioned only that third statement (C), I would think the opposite is true, only after the first day and onward when the town square berachos are recited because of the presence of a ‘new face’ are the mourners not to be included in the Minyan, but on the first day when they recite these berachos upon returning from the burial [the mourners] are more relevant to the proceedings and [these berachos] may be recited even without ten.1<i class="footnote">See gloss on the side of the Gemara who explains in the name of Maharshal that when Tosfos says “these berachos may be recited without ten”, it means that there aren’t ten non-mourners and that the mourners may be included in the minyan, but of course there must be a total of ten as is explicitly stated in the third statement of R’ Yochanan.</i> It is therefore necessary to have statement (B) to inform us that even on the very first day at the recital of the berachos in the town square the mourners cannot be included in the minyan.
  
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  Daf 9a
  
  
  
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  [A groom] who says: I encountered an unobstructed entrance. In order to understand this Tosfos properly, we will first need to become familiar with a Gemara on 36a and in Yevamot 59a. The Gemara quotes a Baraisa that says: concerning a bogeress, a young lady who is older than twelve and a half, when her husband marries her he cannot claim that she was not a betulah. In other words it is expected that because of her age the usual signs of a betulah are no longer all intact. Some change in her body has already occurred.The usual characteristics of a betulah are:A) Bleeding during the first cohabitation.B) The hymen obstructing one’s way into her body.The Gemara asks: But Rav said that when one marries a bogeress and she bleeds during the mitzvah cohabitation, he may continue to cohabit with her during the entire first night. As Rashi there points out, obviously, it is expected that she would bleed as she is deflowered, otherwise we would not assume that the bleeding is virginal and not menstrual.The Gemara answers: If he claims (A) that there was no bleeding, he has a legitimate claim. The Baraisa that says he has no claim, is referring to when he claims (B) that there was an open entrance without any obstruction. Rashi explains that as the young lady matures into a bogeress her private parts are not as narrow as they once were and her husband may not feel an obstruction, even though she is a betulah. His claim that she was not a betulah because the entrance was open is not acceptable.We can conclude from this Gemara that:A) A bogeress is expected to bleed during mitzvah cohabitation.B) She is not expected to have a closed entrance.The Gemara elsewhere in Yevamot 59a also discusses a bogeress. The Baraisa is discussing the status of a bogeress in regard to marrying a Kohain Gadol, who may only marry a betulah. The Baraisa says: And he shall take a woman in her state of virginity (Vayikra 21, 13) - this excludes a bogeress whose virginity has dissipated. This Baraisa also indicates that there is some physical change that occurs in a bogeress. It is not clearly defined in the Gemara. We will soon see Tosfos’ explanation of this Baraisa.R’ Elozor in our Gemara says that if a husband claims that “I found an open entrance” i.e. there was no obstruction, we believe his claim that she was not a betulah and he is not allowed to remain married to her. The Gemara will proceed to qualify this statement. Rashi asks: Why does he not mention that she didn't bleed? Rashi explains: That he did not claim that she did not bleed to prove that she was not a betulah, because we are speaking of a case where for example, the sheet designated to prove that she bled was lost. He does not know whether she bled or not and cannot claim that she did not bleed, but he is certain that there was no obstruction. Or, she is from a Durakti family1<i class="footnote">See Gemara later 10b for a discussion of this phenomena.</i> that does not bleed as a matter of course. The lack of blood isn’t proof that she was not a betulah, but the lack of an obstruction does prove that she was not a betulah.Tosfos presents an alternate explanation by Rabbeinu Chananel of why his claim that she did not bleed is unacceptable, whereas, his claim that there was no obstruction is valid. Rabbeinu Chananel explains that a bogeress and a young lady injured by a piece of wood, that entered her vagina, have no blood and if the husband complains that they did not bleed, his claim is unacceptable, because it is expected that they will not bleed, but their entrance is not open, and the husband can claim that the entrance was open as proof that the Kallah was not a betulah. This can be presented as proof that she had relations with another man. Had she only been a bogeress or injured by wood, the entrance would be obstructed.This explanation of Rabbeinu Chananel directly contradicts the Gemara on 36a, where we concluded that:1) A bogeress is expected to bleed during mitzvah cohabitation.2) She is not expected to have a closed entrance.There is a difficulty with Rabbeinu Chananel’s explanation. For [the Gemara] says in Eilu Ne’aros (later 36a): is it so that one cannot claim that a bogeress was not a betulah? i.e. he must assume that she is not a betulah when marrying her. But Rav said that when a bogeress marries, we allow her to cohabit with her new husband the first night. We are not concerned that she is seeing menstrual blood. Rather, we assume that she is seeing virginity blood. Obviously, we assume that a bogeress should have virginity blood and a claim by her husband that she did not have virginity blood should be proof that she was not a betulah.[The Gemara] answers: If he was claiming that she did not bleed, it is indeed so, this can be presented as a legitimate claim that she was not a betulah, because it is expected that she will bleed. Here, in the Baraisa, what are we discussing is when he claims that the entrance was open. It is then that we say that this is not a valid proof that she was not a betulah.The conclusion of the Gemara seems to be exactly the opposite of Rabbeinu Chananel. He says that a bogeress is not expected to bleed, whereas the Gemara on 36a is clearly saying that a bogeress is expected to bleed.There seems to be only one way of reconciling Rabbeinu Chananel’s explanation, and that is to emend the text of the Gemara on 36a. See Tosfos there ד"ה אי דקא טעין. Rashi there also indicates that there was an earlier text that differed from the one he uses.We can answer: That Rabbeinu Chananel’s text was like the original text that was found in the manuscripts, which Rashi amended to read as we have learned that Gemara. The original text reads as follows: If he claimed that there was an open entrance, it is indeed so, this can be presented as a claim that she was not a betulah, what are we speaking about here when the Baraisa says that his claim that she was not a betulah is unacceptable? When he claims that she did not bleed. It is then that the Baraisa rules his claim is unacceptable, because it is to be expected that she might not bleed.This text seems to be very difficult. Rav says that it is expected that a bogeress will bleed the entire first night and the Gemara then says that if he claims that she did not bleed, he does not have a legitimate claim. But you just said that Rav holds that a bogeress is expected to bleed?This is the explanation of this difficult text: The Gemara asked: But Rav said that we allow a bogeres the first night to cohabit with her husband even though she is bleeding. We assume that the blood is virginal. Since we may assume that throughout the entire night the blood is virginal blood, it seems that there is a bogeress who has excessive virginal blood.Tosfos draws a correlation between the fact that some bogeress women have an excessive amount of blood and the entrance of all bogeress women. If so, that there exists a bogeress who has such an excess of virginity blood that we will assume that the bleeding of an entire night was virginal, it is impossible that there is any bogeress whose entrance is not closed, even if she does not have any blood. The excessive blood of some bogeress women proves that all bogeress women must at least have a closed entrance, if so, there is a legitimate claim that she was not a betulah if he claims that there was an open entrance.Although a bogeress might not have any blood at all, all bogeress women should have a closed entrance. [The Gemara] then answers: You are correct, if he claims that the entrance was open, it is indeed so that he has a legitimate claim against her lack of virginity. What is the Baraisa speaking about when it says that there is no legitimate claim of lack of virginity against her? When he claims that she did not bleed. That is an unacceptable claim because there are bogeress women whose virginal blood has dissipated.  Since there are some bogeress women who do not bleed, her husband cannot claim she was not a betulah because she failed to bleed. However, if she does bleed we may attribute the bleeding to virginal blood and for the first night she may continue to cohabit with her new husband.We now have a dispute of diametrically opposite positions. According to Rashi’s text:A) A bogeress is expected to bleed during mitzvah cohabitation.B) She is not expected to have a closed entrance.According to Rabbeinu Chananel the exact opposite is true:A) A bogeress might not bleed during mitzvah cohabitation.B) She is expected to have a closed entrance.Tosfos	now	presents	Yerushalmi	that	seems	to	favor	Rashi’s explanation. However, in Yerushalmi it seems not like Rabbeinu Chananel. For [Yerushalmi] says there: R’ Yonah said in the name of R’ Krispa: A bogeress is comparable to an open barrel of wine. The simple understanding of R’ Krispa’s words are that the bogeres’ entrance is open and that there is blood to be found as in an open barrel of wine. This concurs with Rashi’s explanation that a bogeress is expected to bleed but not expected to have a closed entrance.Tosfos attempts to show that Rabbeinu Chananel may be compatible with the simile of Yerushalmi. Our understanding is that Yerushalmi is discussing both aspects of a betulah, the closed entrance and the bleeding. The simile is saying that a bogeres is like an open barrel of wine, she does not have a closed entrance, but does have blood as the open barrel contains wine. According to Rabbeinu Chananel the simile of Yerushalmi is only about whether the bogeress is expected to bleed.We can resolve Rabbeinu Chananel’s explanation with Yerushalmi as follows: That Yerushalmi is speaking only about whether a bogeress is expected to bleed or not. Because, ordinarily a sealed barrel always contains wine, for it is not usual to seal an empty barrel, so too, a younger girl is comparable to a sealed barrel and is always expected to bleed.However, an open barrel may sometimes contain wine and sometimes not contain wine. So too, a bogeress sometimes she does not have blood and sometimes she does have blood.2<i class="footnote">See Maharsho who points out that despite the possibility that she might not have virginal blood, when she does bleed the first night we assume that it is virginal blood and she may remain with her husband for the entire night. This is because seeing menstrual blood when it is not the time for her period is unlikely. When weighing the probability that she does not have virginal blood and is seeing menstrual blood, against the likelihood that she is experiencing virginal bleeding, the odds are greatly in favor of virginal bleeding.</i> In this way there is a fair comparison between an open barrel and a bogeress. Yerushalmi is not discussing whether a bogeress is expected to have an open or closed entrance. The euphemism of an open barrel of wine was not meant to indicate anything about the bogeress’ entrance. It is only a way of expressing the doubt about whether she will be bleed or not.Because of this that she may or may not bleed, there is no legitimate claim against her if she fails to bleed as Rabbeinu Chanananel explained, and as [the Gemara] says in Perek Haba al Yevimto (Yevamot 59a) when discussing the word בתולה this excludes a bogeress whose virginity has dissipated. Tosfos here understands that this refers to the dissipation of virginity blood that occurs when a young lady is twelve and a half years old.3<i class="footnote">See Artscroll there, note 32, for an alternative explanation of dissipating virginity that concurs with Rashi’s understanding of bogeress.</i>
  
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  No, it is necessary [only] in [the case of] the wife of a priest. The Gemara argues with R’ Elozor’s ruling that a husband who claims that he found the entrance open, may not continue to live with her because she is a suspected adulteress. Assuming that he is capable of determining that there was in fact an open entrance, she may still be permitted to her husband because of the rule of a double doubt.The possibilities are as follows:A) She may have been raped and if so she is not prohibited to her husband.B) Even if she intentionally cohabited with another man, it is possible that this occurred before she was betrothed to her husband. She is only considered an adulteress if she cohabited while married. Betrothal is equivalent to marriage in regard to adultery.The Gemara answers: R’ Elozor is speaking about a Kohain’s wife. She is forbidden to her husband even if she was raped. There is only one doubt. Was she betrothed when she had relations with another man or did it happen before the betrothal. Since we have no way of determining the truth, we have only one doubt and must rule that she is prohibited.But there are ways of ruling when there is a doubt about any given situation. There is the rule of חזקה - following the status quo. When we have a doubt about any occurrence, we can always assume the status quo. If there is a doubt about whether this young lady became prohibited to her Kohain husband, we should say that since she was initially permitted to a Kohain the status quo remains in force and she remains permitted to her Kohain husband.If you ask: in order to decide whether she is permitted or prohibited to her husband let us place her the legal chazakah, for she was initially permitted to marry a Kohain and we should therefore say that she did not commit adultery while she was married to him but rather she lost her virginity before her betrothal and she is therefore permitted to her Kohain husband. Her legal chazakah – that she is permissible to a Kohain says that she lost her virginity before she was betrothed and thus remains permitted to a Kohain.The chazakah that says she remains permitted to her Kohain husband can be counteracted by a chazakah that says she is forbidden to her husband: In addition to the status quo that says she was permitted to her husband because she lost her virginity before she was betrothed, there is an opposing physical chazakah saying that she remained a betulah till most recently and that this change in her body, from virgin to non-virgin happened recently. When we want to determine whether she was a betulah at the time she married, the physical chazakah that she was definitely a betulah at birth says she was a betulah when she married and the change in her body from virgin to non-virgin happened some time later.We can answer: To the contrary, we should say that she recently lost her virginity, because when in doubt about whether she was a virgin at the time she was married or not, we should place her on the physical chazakah of her body that she was definitely once a virgin. The physical chazakah that says she was a virgin at the time she was betrothed and lost her virginity after her betrothal, thus prohibiting her to her husband, counteracts the legal chazakah that says she was initially permitted to a Kohain husband and she remains permitted to him because she lost her virginity before she married. The issue remains in doubt because of the conflicting legal and physical chazakos. We remain with only one doubt, therefore she is forbidden to live with her Kohain husband.
  And if you wish, say [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. The Gemara is defending R’ Elozor’s ruling that a husband’s claim that he found an open entrance, is sufficient reason to prohibit his wife to him. In response to the argument that there is a double doubt in her favor which says that she is permitted to him, the Gemara says that we are speaking of situations where there is only one doubt.The second situation is speaking of even when the husband is a Yisroel and his wife would be permitted to him if she was raped, but there is no doubt that she was betrothed to him when the incident happened. Her father betrothed her to her husband before she was three years old. The cohabitation necessarily occurred after the betrothal, otherwise the virginity would have regenerated. It is certain that she cohabited after her betrothal. The only doubt is whether she was seduced or raped.Tosfos argues that even so there is a double doubt. If you ask: There is still a double doubt in favor of permissibility. The first doubt:A) maybe she was raped or maybe she willfully committed adultery. And even if you will say that she willfully committed adultery,B) there is another doubt, perhaps she was a minor when she willfully consented to cohabit with another man, but the seduction of a minor is considered as rape, since she is too young to make an intelligent decision about what she is about to do, as [the Gemara] says in Perek Haba Al Yevimto (61b).We can answer: The second doubt, (B) perhaps she was seduced as a minor, in a legal sense adds nothing to the equation, because the reason that she would be permitted to her husband is because that too is considered rape. That legality is already considered in the equation when we say that perhaps she was raped and perhaps she committed adultery, the additional doubt that she might have been seduced as a minor is nothing more than another way that she may have been raped, but the appellation of rape is one, whether she was raped as an adult or seduced as a minor.In the previous Tosfos we established that the rule of following the status quo says that she should be permitted to her husband. If you ask: let us place her on the chazakah that she is permitted to her husband. She was once definitely permitted to her husband, there is a possibility that she later became prohibited by being seduced. Chazakah says that she remains permitted to her husband.Tosfos cannot answer as he did earlier that there is a physical chazakah that rules she became a non-virgin most recently, because that does not contradict the legal chazakah that she should remain permissible. Even if her physical status changed most recently, she may have been raped and is permitted to her husband.Tosfos concludes that the nature of this doubt, whether she was seduced or raped leans in favor of seduction. We can answer: That  when a woman is raped it is  usually well-known,1<i class="footnote"> קלא - literally a voice informing us about this fact.</i> as Yerushalmi says [a rape is well-known]. Now that we are in doubt whether she was raped or seduced and it is not well-known, the likelihood that she willfully committed adultery is a majority2<i class="footnote">Had she been raped, it would usually be well-known. When analyzing the likelihood of rape versus seduction it seems more likely that because of the absence of publicity, that she was seduced. This greater likelihood is referred to as a ‘majority’. The lesser likelihood that she was raped is called a ‘minority’ by comparison.</i> and the likelihood that she was raped is a minority. We now have a contradiction between the majority that says she was not raped and is therefore forbidden to her husband and the chazakah that says she was raped and remains permissible to her husband. The rule is that when there is a conflict between a majority and a chazakah, the majority is stronger and we follow the majority.But earlier the Gemara does say that there is a legitimate double doubt. Included in the double doubt is the question of whether she was raped or seduced. If you ask: If so, that the question of rape or seduction is determined by a majority that says she was seduced, when there is a double doubt she should also be forbidden, because the doubt that she might have been raped is as if it is non-existent, and there remains only one doubt, whether she was seduced while betrothed or before betrothal. In regard to this doubt it is not possible to rule with the chazakah of permissibility as I explained earlier in the previous Tosfos that the legal chazakah of permissibility is contradicted by the physical chazakah that she remained a betulah until most recently and the change to non-virgin occurred after her betrothal.Says R’I: That the majority that says she willfully cohabited is not an absolute majority. It cannot be said that on the Torah level the majority is saying that she willfully cohabited, rather, it is only rabbinic, the Rabonon ruled that even though on a Torah level the question of rape or seduction is of equal probability, there seems to be a greater likelihood of seduction. Therefore, when we are dealing with a double doubt, perhaps she was seduced or perhaps she was raped and even if she was seduced perhaps she was not yet betrothed, she is permitted. However, when there is only one doubt, whether she was raped or seduced, but she was definitely betrothed at the time and the rationale to permit her is because of the chazakah of permissibility,the Rabonon consider the likelihood of seduction as compared to rape to have the force of a majority and she is forbidden to her husband not by Torah law but by rabbinic law. The conclusion that the majority that she was seduced and the minority that she was raped is rabbinic has a precedent.The Gemara in Kiddushin 80a is discussing the following situation: A young child is found playing near a dough of terumah and has a bit of dough in his hand. Did the terumah dough become tomay because the child touched it? The Gemara says that according to the Rabonon the majority of children poke about in the trash. (Rashi says they play near the garbage bins and often become tomay from dead rodents.)3<i class="footnote">See Tosfos there for an alternative approach.</i> It is presumed that the majority of children are tomay and when they touch the dough it is considered to be tomay. However, R’ Yochanan eventually says that even though the dough is assumed tomay because of the majority, the dough is nevertheless not to be burned as terumah that is tomay. But if there is a majority saying that the terumah became tomay, why is the terumah not burned?We find a similar situation where we are compelled to say that even though the Gemara speaks of a majority, it is only rabbinic, in regard to a young child who was found near a terumah dough (Kiddushin 80a). Although the Gemara says that the majority of children are tomay because they poke about in trash bins, the ‘majority’ that children are tomay is only rabbinic and we cannot rule that by Torah law the dough is tomay, and it is for this reason that R’ Yochanan says that we may not burn the terumah. If the ‘majority’ was of Torah level, we would be required to burn the terumah. However, if the terumah is not truly tomay one is not permitted to destroy it. R’ Yochanan’s ruling that we may not burn the terumah is a statement that we are not truly convinced that the terumah is tomay. The only logical explanation is that the ‘majority’ that children are tomay is only a rabbinic concern. We are therefore not allowed to eat the terumah, but we cannot apply that ‘majority’ to rule leniently in regard to destroying the terumah. So too, Tosfos understands that the ‘majority’ that when women are raped it is well-known is not a true ‘majority’ that can be used to decide the doubt by Torah law. It appears to the Rabonon that this is a logical approach. When there is only one doubt, by rabbinic law we cannot rule that a woman is permitted to her husband because of the chazakah since we do have this fairly logical estimation as a deciding factor. However, when faced with a double doubt, we do consider the likelihood of rape as a reasonable doubt and coupled with the doubt as to whether she was betrothed or not when she willfully cohabited with another man, she remains permitted to her husband.We have considered the various possibilities about how this young lady lost her virginity. Was she raped or seduced? Was it before or after betrothal? But there is another possibility, she may have been injured in the vaginal area by a piece of wood and lost her virginity. Why doesn't the Gemara consider that possibility? This would give us a double doubt in both instances: when she is betrothed to a Kohain and when she was betrothed prior to three years of age. If you ask: Even if we are discussing a Kohain’s wife or when a Yisroel’s wife was betrothed by her father before she was three years old, there is still another question to consider that would create a double doubt. For it is possible that she was injured by a piece of wood or perhaps she she had relations with a man.Tosfos will now explain in detail how the double doubt would work in each of the cases:A) [In the case of the Kohain’s wife where there is no difference whether she was raped or seduced, we should say: even if you will assume the more stringent side of the doubt and say that she was not injured by wood, even so there is another question to consider, perhaps she cohabited while betrothed or perhaps she cohabited when she was not betrothed to the Kohain. There is a legitimate double doubt in favor of permitting her to her Kohain husband.B) In the case of a Yisroel’s wife who was betrothed before three years of age and we are certain that whatever happened occurred after betrothal there is still a double doubt. She may have had relations with a man or may have been injured by a piece of wood, even if you assume that she was not injured by a piece of wood but cohabited with a man, there is a possibility that it happened against her will and a possibility that it happened willfully. Once again there is a legitimate double doubt in favor of permitting her to her husband.]Perhaps we do not consider the possibility that she was injured by a piece of wood, because it is a rather unlikely scenario? It is not considered a reasonable doubt and is therefore cannot serve as part of a double doubt. Tosfos sets out to prove that injury by a piece of wood that upsets her virginity is in fact common.It cannot be said that injury by a piece of wood is unusual, because [the Gemara] says in Eilu Ne’aros (36b) in regard to a blind girl that her husband cannot claim she was not a betulah. In other words her husband must assume that there is a likelihood that she does not have the physical characteristics of a virgin, because it is likely that as she was growing up she was injured by falling to the ground as she fell or was pushed by her playmates. The Gemara asks: but all girls are injured by falling to the ground? If so, we see from the Gemara’s expression “all girls are injured” that loss of virginity by injury is common.4<i class="footnote">See ריטב"א who explains that the Gemara there is saying that since all girls at times are injured by falling to the ground and even so they are expected to be besulos, it is obvious that those falls do not cause them to lose their virginity. A girl who actually does lose her virginity by injury is truly uncommon and we therefore do not consider this possibility as a legitimate doubt.</i>In the previous Tosfos we discussed the opinion of Rabbeinu Chananel who holds that when injured by a piece of wood, a betulah will lose her virginal blood, but her entrance remains closed. According to the explanation of Rabbeinu Chananel that when injured by wood, a young lady’s entrance remains closed, [the Gemara] comes out well. Injury by a piece of wood does not explain why her entrance was open. We can therefore not consider the possibility of injury by wood as a reasonable explanation of why her entrance was open. We are certain that she cohabited with a man. The only viable questions are if it happened before or after betrothal or whether she was raped or seduced.According to those who disagree with Rabbeinu Chananel and hold that injury by wood does cause an open entrance, we must find another reason why we do not consider the possibility of such injury which would permit her via the rule of double doubt. Up until this point in the Tosfos we have discussed the various possibilities of how this young lady might have lost her virginity. Was it before or after betrothal? Was it by rape or seduction? The Gemara or Tosfos does not even mention anything about what she is says when confronted with her husband’s claim that she was not a betulah. It seems that she is either saying nothing or denying that her entrance was open. Shouldn’t she be expected to claim that she was raped or that it happened before betrothal? Can we reach any conclusions because of her silence? Should we say that since she doesn't claim that she was raped, we assume that she was not raped? A cursory look at the Gemara seems to tell us that even if she does not claim that she was raped, we may consider the possibility.We can answer: If it were so that she was injured by a piece of wood, she would have claimed that this was the case, because there is no shame if that is what happened, as there is embarrassment when she is a rape victim. Although it is certainly not her fault that she was raped, women are embarrassed to admit that this was the case. She would prefer to deny that her entrance was open or remain silent. Her silence is no indication that he was not raped. In jury by a piece of wood carries no embarrassment whatsoever and since she did not claim that she lost her virginity by injury, we do not consider that possibility as a reasonable doubt.5<i class="footnote">For a lengthy discussion of how we would rule if she did claim that she was raped or that she was seduced before betrothal see Rosh and other Rishonim.</i>
  
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  And did Rabbi Elazar say that? But didn't Rabbi Elazar say, etc.? Our Gemara has quoted R’ Elozor as saying that if a newlywed husband claims that his wife had an open entrance, when there is only one doubt as to whether she is permitted to him or not we must rule that she is forbidden. A husband’s claim according to R’ Elozor has no validity other than what relates to himself. The concept behind this ruling is called - שווי' אנפשי' חתיכה דאיסורא - he renders [his wife] forbidden to himself. See Rashi ד"ה נאמן.We believe him as relates to himself that she committed adultery and he is not allowed to live with her.The Gemara now presents another statement of R’ Elozor as a contradiction. R’ Elozor said that a woman can become forbidden to her husband only by the process of:A) קינוי - Her husband must first warn her not to seclude herself with the suspected adulterer.B) סתירה - She does seclude herself with the suspected adulterer and there are two witnesses who testify that this did in fact happen.At that point she is suspected of committing adultery and may no longer live with her husband until the suspicion is cleared up.Another function of warning and seclusion is that if afterwards, a single witness will testify that she did commit adultery, we will accept his testimony and she will be forbidden to live with her husband forever. As you proceed through the Gemara, you will learn that in the absence of a warning and seclusion a woman will be forbidden to her husband only if two witnesses testify that she committed adultery.Tosfos first impression of R’ Elozor’s second statement is that even if one says that I found the entrance open we do not believe him, since he does not qualify as a witness. This is in effect saying that even as far as rendering her forbidden to himself is concerned, we cannot rely on him and he cannot establish a prohibition for himself. Tosfos challenges this point by showing that it is clear from the Mishna in Kiddushin 65a quoted in this passage of Gemara that a person does have the power to render a prohibition for himself, even though his testimony is unusable as far as others are concerned. If so, the problem with R’ Elozor’s second statement is not only that it conflicts with his first statement but that it contradicts the Mishna in Kiddushin!This is bewildering! Now that [the Gemara] attempts to say that R’ Elozor holds that [the husband] is not believed even in regard to establishing upon himself that [his wife] is a forbidden item, the Mishna in Kiddushin 65a that says: one who says to a woman “I have betrothed you” is forbidden to marry her relatives, because by his own declaration they are the mother, sister or daughters of his wife, contradicts [R’ Elozor]. The Mishna is clearly saying that in regard to himself one is believed when declaring that he married this woman. According to his own testimony, these women are relatives of his wife and he is not allowed to marry them, even though the woman he declares as his wife is permitted to marry his father, brother or son. How could the Gemara possibly accept the second statement of R’ Elozor even if it did not contradict his first statement?We must find an alternative explanation of R’ Elozor’s second statement that does not contradict the Mishna in Kiddushin 65a, but does contradict his first statement. We can answer: That the questioner who sees a contradiction between R’ Elozor’s first and second statements, but not with the Mishna in Kiddushin 65a, holds R’ Elozor’s second statement is saying that there is no validity to anything that effects forbidden relationships unless there are two witnesses present, and even if a person actually saw his wife commit adultery, but there weren’t two witnesses present, she would not become forbidden to him. According to this hypothesis it is not the act of immorality alone that produces the the result that an adulteress is forbidden to her husband, rather it is the fact that an immoral act was done in the presence of witnesses that produces the result that she is forbidden to him.1<i class="footnote">The concept behind this theory of Tosfos is an actual ruling. When one betroths his wife privately, i.e. he gives her a ring and declares his intention that this ring is given to her so that she should become his wife, even if they both admit that this was the case, there is no marriage whatsoever, because there were no witnesses present when the betrothal was to happen. We see that the witnesses are an essential part of the betrothal, not merely people sources of verification. Even when no verification is needed because both parties agree that she was betrothed by her husband the marriage is null and void. So too, Tosfos now entertains the idea that as far as creating a prohibition upon her, witnesses are an inherent part of the process and if there are no witnesses that she committed adultery she is not forbidden to her husband.</i>Therefore, the Mishna in Kiddushin 65a is no contradiction at all to [R’ Elozor’s] second statement, because in that Mishna [the husband] is saying that I betrothed you in the presence of two witnesses, for even if one betrothed in the presence of one witness we are not concerned that this might legally be a betrothal, she is not his wife, another person may marry her and he may marry her relatives. Therefore, if one is saying to a woman “I have betrothed you, he must be saying that it was done before witnesses. Otherwise, there would be no validity to the betrothal.However, in reference to that which R’ Elozor said in his first statement that [a husband] is believed without witnesses to say that he found an open entrance, [the Gemara’s] question that this contradicts his second statement, is sound.
  
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  [By means of] jealous warning and seclusion, yes, [by means of two] witnesses, no? The Gemara is emphasizing that R’ Elozor’s second statement that a woman becomes forbidden only through the process of warning and seclusion cannot be taken literally, because we certainly cannot say that she does not become forbidden if two witnesses actually saw her commit adultery. Just as the statement does not exclude testimony by two witnesses, so too, [R’ Elozor’s second statement] does not come to exclude when he has the knowledge that she is an adulteress by himself, which is the equivalent of knowledge that she committed adultery through witnesses, since he does have the expertise to determine that her entrance was open.
  
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  Why did they not forbid her? The Gemara concluded that there are three ways that a woman can be prohibited to her husband as an adulteress:A) Two witnesses testify that she committed adultery.B) After warning and seclusion, even if one witness testifies that she committed adultery.C) the Chosson is aware that she committed adultery because he found her entrance open.The Gemara now asks a question attacking this conclusion: In the ‘story that happened’ why was she not prohibited? ‘The story that happened’ is the story of King David and Bas Sheva (Shmuel 2, 11). Which of the three ways of becoming forbidden to a husband is the Gemara attacking? It cannot be (B) - the method of warning and seclusion followed by a single witness testifying that she committed adultery, because there was no warning and seclusion in that story as the Gemara has already established. Rashi says that the Gemara is questioning (A) - two witnesses who testify that she committed adultery, because there were many in the King’s household who knew of King David’s relations with Bas Sheva. Tosfos disagrees as we will now see and concludes that the Gemara is questioning (C) - when the Chosson knows that she committed adultery because the entrance was open.Whenever a woman commits adultery, she is forbidden not only to her husband, but to the adulterer as well. In this case where King David was the adulterer, she should have been forbidden to him. In fact, we know that King David continued living with her even after he repented, why was he permitted to do so? Rashi explains that the Gemara’s question is: But that story of King David's relationship with Bas Sheva was known by witnesses and Bas Sheva should have been prohibited to her husband Uriah, and by extension to King David who was the adulterer?Tosfos does not agree that there was adequate information known to witnesses that could prohibit her to King David. The witnesses in such cases have to have very specific knowledge that adultery occurred. Mere knowledge of circumstances surrounding a likely adultery is insufficient. This explanation is not appealing. Granted that it was known to many that [King David] brought [Bas Sheva] into his house, however they did not see the cohabitation as a mascara brush in a tube,1<i class="footnote">Although Tosfos uses the expression that the witnesses must see like a mascara brush in a tube, Tosfos does not mean that it is actually required that the witnesses see the adulterous act so clearly. Shmuel says in Masechet Makos 7a that when the witnesses see the couple behaving the way of adulterers they can testify that adultery was committed. Rashi says: this means they were lying together with their flesh touching each other. Rambam הלכות איסורי ביאה פ"א ה"א adds that they were attached to each others as an adulterous couple would be. When Tosfos quotes the phrase “like a mascara brush etc.” he means that they do have to be quite intimate. It is highly unlikely that King David was so intimate with Bas Sheva in the presence of witnesses.</i> because [King David] certainly did not cohabit with her in front of people. Non-specific testimony such as - he brought her into his bedroom is not sufficient to establish that she committed adultery and is forbidden to her husband. There certainly was not specific evidence in the case of King David. Why is the Gemara saying that Bas Sheva was prohibited to King David?Tosfos will say that the Gemara’s question is not against conclusion (A) - that when witnesses know that a woman committed adultery she is forbidden to her husband. As Tosfos demonstrated, it is highly unlikely that witnesses had such specific evidence that would prohibit Bas Sheva to her husband. The Gemara’s question is against the conclusion that when a husband says that he found an open entrance it is equivalent to the testimony of witnesses and she is forbidden to her husband.It appeals to R’I to explain that the Gemara’s question about King David is as follows: If you say that saying there was an open entrance is the equivalent of two witnesses and one’s wife is forbidden to her husband based on this testimony by her husband, why did they not prohibit her to King David? For King David definitely knew that she had cohabited since he was the adulterer himself. We find though that even though King David repented, even so he kept her as his wife. If she would have been forbidden to him, that righteous person would not have taken her as his wife. Since he did take her as his wife, we know that she was definitely permitted to him. How can this be reconciled with our conclusion that when one has personal knowledge of an adultery, his wife is forbidden to him?
  
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  Anyone who goes to a war [of the] house of David writes a bill of divorce to his wife. Tosfos initially quotes Rashi and understands that the text of Rashi is strict. This strict interpretation will present certain difficulties with Rashi. Eventually, Tosfos will adopt a liberal explanation of Rashi and most of the difficulties will be resolved. (See Artscroll note 1, for an abbreviated explanation of Tosfos.)Rashi explained: That the purpose of this divorce is that if [the husband] will die in the war, the divorce would be effective retroactively from the time of its writing.We must ask: Exactly who will benefit from the writing of this divorce? It seems that we would have to know that the husband died in order to permit his wife to marry. If that is so, why do we need the divorce at all if the husband is known to have died?There is one instance where this divorce would be useful. When the couple had no children and the husband has a brother, a yavam, who is required to marry his brother’s widow. When the husband dies, his widow will not yet be free, she will have to contend with the yavam. The husband may want to free his wife from the difficulty of dealing with his brother and write a divorce for her, which would be effective retroactively from the time it was written. In this way his wife would not need to deal with the yavam. Rabbeinu Tam assumes that this is the case Rashi is discussing.Tosfos asks two questions about Rashi’s explanation, the first: Rabbeinu Tam find this difficult! For if so that this divorce benefits only for one who does not have children, but has a brother, what is meant when saying whoever goes out to the wars of the House of David writes a divorce to his wife, if it is only beneficial for one who has no children but has a brother? Only one who finds himself in that situation should write a divorce for his wife, it should not be universal, if nothing is accomplished for the vast majority of men.Tosfos’ second question: The Mishna in Gittin 72a discusses a similar case: If one says to his wife - “this is your divorce from today, if I die”, the divorce is effective. The following Mishna on 73a elaborates on this ruling and says: What is her status during the interim - between the day that the divorce is given and when the husband actually dies? R’ Yehudah says she is a married woman in regard to all matters. If she should commit adultery before the husband dies, she will be liable for capital punishment.We must infer that even though the divorce was given some time before the husband’s death the effective time of the divorce is not retroactive to the time it was given, but rather to the last moment of the husband’s life. The same should apply in Rashi’s case when he gives his wife a divorce on the day it was written with the proviso that it should be effective if he dies. Here too, we should say that the divorce is not effective retroactively to the time of writing, but only to the last moment of the husband’s life.Furthermore, we learned in a Mishna in Perek Mi She’achazo (Gittin 73a): What is she in those days between the giving of the divorce and the death of her husband? R’ Yehudah says: She is similar to a married woman in regard to all matters. And this question refers to that which was taught in the previous Mishna 72a: A husband who says “this is your divorce from today if I die”, and so it is implied in the Tosefta that the Mishna on 73a is referring to this case in the Mishna on 72a.1<i class="footnote">There is a major dispute between Rashi and Tosfos in Masechet Gittin 73b about this point. Rashi says clearly that when the divorce was given “from today” it is retroactively effective from the time it was given. The Gemara’s discussion that explains the term “from the moment that I am in this world” to mean that the effective date is not from the time the divorce was given, rather from the last moment of the husband’s life, is speaking only of when the husband did not say “from today”. He merely said the words מעת שאני בעולם - from the moment that I am in this world. The Gemara there is informing us that when only those words were used and he did not say “from today”, his intent is the last moment that he is alive. According to Rashi’s understanding of that Gemara, there is no contradiction whatsoever to his explanation of our Gemara that the divorce was written to be effective from the time of writing. If he did in fact write “from today” according to Rashi in Gittin 73b, the divorce would be effective retroactively from the time it was written. See Shulchan Aruch E.H. 145, 2, who rules like Tosfos.</i>Apparently, even though he said when he gave her the divorce “from the day”, she is categorically a married woman until her husband dies. As the Gemara there explains that when one says “from the day” it is the equivalent of saying “from the last day that I am in this world.2<i class="footnote">The word היום has a double meaning. Most often it means today. Literally it means “the day”. If we interpret the word as “today” the phrase “from today” must mean that the effective date of the divorce is today - the day it was given or written. On the other hand if we understand the word היום as meaning “the day”, it refers to the last day of one’s life.</i> The intention of the husband in these cases is that the divorce should be effective at the latest possible moment, the moment immediately before he dies.The explanation of the Gemara in Gittin 73b is as follows: That [the husband] who says “from the day” does not mean that it should be effective immediately, rather it is his intention that it should be effective one moment before he dies, which is the last moment that he is in this world. He only said “from the day” to indicate that the effective date is not after his death - the meaning of “from the day” is from that last day that I am in this world, the divorce should be effective. So too, in Rashi’s case, when one writes a divorce so that it should be effective from the day of its writing, we should say that the husband’s intention was that the effective date is the last moment of his life. If so, the divorce did nothing to prevent David from sin, because Uriah lived well beyond the time that David had relations with Bas Sheva.This was Tosfos’ second question against Rashi. Tosfos now concedes that even if his explanation of the Gemara in Gittin 73b is correct and the Gemara there is saying that when one said “from the day”, the effective date if the divorce is one moment before the husband passes away, it is still possible that Rashi’s explanation of the divorce written for soldiers in King David’s the wars is correct.However, we can differentiate between when one said “from the day” as in the Mishna in Gittin 72a, and when one specifically stated that the divorce should be effective from the time of writing as in Rashi’s explanation, for in the latter situation we are compelled to say that [the husband] is saying that from the time it was written the divorce should be effective. Whereas the term “from the day” lends itself to two explanations (see note 2), the term “from its writing” used by Rashi can only mean from the time it was written, not from the husband’s last moment on this earth.Tosfos will now attempt to answer his first question on Rashi’s explanation. Rashi says that when the husband dies, the divorce would be effective retroactively from the time it was written. This implies that we would have to know that the husband died. Tosfos argued that this would only be helpful in avoiding a situation of yibum. It would be useless in regard to a soldier who did not return from the wars. If we did not know that he actually died this divorce would be useless in releasing his wife from their marriage. Tosfos’ resolution of the first question on Rashi’s explanation will also serve as a basis for answering the second question.Furthermore, it appears that even if [the husband] said “from the day”, we can resolve the difficulties of Rashi’s explanation. For Rashi did not strictly mean that [the husband] wrote that only if he died in the war should the divorce be effective, rather, the condition was that if he would not return from the war3<i class="footnote">See Rashi in Masechet Shabbos 56a ד"ה שבקש where Rashi clearly states או שמא יהרג ואין מעיד עליו, ותתעגן אשתו, או שמא יהא שבוי or he might be killed and there will be no one to testify and his wife will be an agunah, or he might be captured. Rashi is saying that the purpose of the divorce was not only to solve the dilemma of yibum, but for problems that might arise if he did not return and remained alive. See however Rashi there ד"ה גט כריתות where Rashi once again discusses only the possibility of death.</i> the divorce should be effective. But why did Rashi say - if he dies - because ordinarily one who does not return from the war, does not return because he died, but the rule is the same if he was captured - the divorce would be valid.Now that we say the divorce is effective even if the husband did not die, but even when he does not return from the war, the phrase “from the day” that is used here cannot be interpreted as meaning “from the last moment” that I am in this world, as it is interpreted in the Gemara in Mi She’achazo because the Gemara there is truly discussing a divorce that would be effective only upon the death of the husband. The connotation of “from the day” can be the last day of his life, but here we are discussing a divorce that would be effective even if the husband remained alive, if he did not return from the war. The meaning of “from the day” cannot possibly be from the last moment of my life, rather, when the husband uses the phrase “from the day”, he must be speaking about the day it was written and means that the effective date is the time the divorce was written. Another difficulty with Rashi’s explanation: If you ask: How can the divorce Uriah gave to his wife effectively have prevented King David’s relations with Bas Sheva from being adulterous, but Uriah did return from the war and the divorce was null and void?We can answer: The stipulation was that the divorce would be effective if he did not return at the end of the war, and ultimately he did not return at the end, he fell in battle.Tosfos points out that there is a specific advantage in his explanation of Rashi. It is easier according to this explanation to understand that which [the Gemara] says in Perek Hazahav (Bava Metzia 59a): It is preferable for a person to cohabit with a woman whose marital status is dubious, rather than to cause his fellow’s face to pale by embarrassing him in public. [The Gemara] derives [this lesson] from this story of Bas Sheva, for she was a woman whose marital status was dubious because her husband might return from the war in which case she would be a married woman or he might not return in which case she would be divorced retroactively. Thus, the expression - a dubious married woman - is accurate according to Rashi.Rabbeinu Tam has a different approach to the divorce that was written by King David’s soldiers. Rabbeinu Tam explains that when the Gemara says: he writes a divorce for his wife, it means unconditionally, without any stipulation. Eventually, those soldiers that did return would remarry their wives.According to [Rabbeinu Tam’s] explanation we have the following difficulty: Why is [the wife] called a married woman whose status is dubious, she is absolutely divorced? There is no question about her status according to Rabbeinu Tam.Says Rabbeinu Tam: That she is called a dubious married woman because they used to divorce secretly, so that it should not be known that they were divorced, for people would be anxious to marry them if they would have divorced publicly. Since it was not well-known that they were divorced, the Gemara refers to them as married women whose status is dubious.Rashi’s explanation also has its difficulty. According to Rashi’s explanation that the divorce was conditional, there is also a slight difficulty. How did King David cohabit with her? Why didn't he fear that Uriah might return from the war, which would render the divorce useless.
  
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  *<i class="footnote">This Tosfos is oft-quoted by many of the latter day poskim and commentators. There are many halachic ramifications of both the questions and answers that Tosfos asks and answers. As usual, my intention is to present what Tosfos is saying in the most lucid manner without getting involved with those who disagree with Tosfos. In some of the footnotes I have pointed out some of the dissenters to Tosfos’ conclusions, but please be aware that what I have written is less than the tip of the iceberg.</i>If [it is] to give her the kesubah payment. The Gemara is speculating about why our Mishna insists that marriages must take place on Wednesday so that a young husband who discovers that his Kallah is not a betulah should immediately have the opportunity to come to bais din the very next morning. Otherwise, if he had to wait a day or two, he may calm down and make peace with the situation. What is it that the bais din will do for him that they want him to come as early as possible?There are two possibilities:A) The bais din will rule that she is not entitled to a kesubah.B) The bais din will rule that she is forbidden to him.Eventually the Gemara says that the Rabonon are concerned that the husband should come to bais din in order to decree that his Kallah is forbidden to him. There is no need to enact a law requiring that one marry on Wednesday so that he will come the next morning to claim that he need not pay the kesubah of a betulah. If he calms down and does not claim that he is exempt from kesubah payment, that is not the concern of the Rabonon. The Rabonon are only concerned that he might calm down and not pursue his claim that she is forbidden to him.From the flow of our Gemara we can deduce as follows:A) If the concern of the Rabonon would have been that the Chosson come to bais din to complain that he is not obligated to pay her the kesubah of a betulah, his claim would be accepted, but we would have no proof that he is in fact an expert at determining that she had an open entrance.B) It is only because we conclude that the Rabonon wanted him to come and claim that his Kallah is not a betulah so that we should declare that she is forbidden to him that we can prove that he is an expert about determining that the entrance was open.We may deduce from this analysis that in regard to(A) non-payment of kesubah his complaint would be accepted even if we are not certain that he is an expert in this matter. It is only if we accept his claim and declare(B) that his wife is forbidden to him, that we have proof of his expertise in this matter.Tosfos needs to explain why there is a difference between the two issues that for(A) non-payment of kesubah we accept his claim	even if he is not an expert, but for(B) rendering his wife forbidden to him, we accept his claim only if he is an expert.It is understood from our Gemara that if [the husband] would come to bais din and claim that she was not a betulah, he would be believed and she would lose her kesubah. The Gemara does say that we could tolerate the assumption that a husband’s claim that his wife is not a betulah would relieve him from paying the kesubah of a betulah. It is only because we see no reason for the Rabonon to legislate that one must marry on Wednesday to achieve this goal, that the Gemara rejected this proposal for our Mishna. Even though his testimony is not accepted to forbid her to him, that is because perhaps he is not an expert at determining that the entrance was open. Since we have a doubt about his expertise we should place her on the chazakah that she is permitted to her husband. When in doubt whether she remains permitted to her husband or became forbidden to him, we should follow the chazakah that says since she definitely was once permitted him we must follow the status quo. (See Tosfos 9a ד"ה לא צריכא.)However, in any case she loses her kesubah, even though we might say that he is erring about the open entrance and she truly was a betulah, but since there is a doubt if she is entitled to her kesubah or not, we should say place the money that is in doubt in the possession of its present owner. When dealing with the question of whether she is permitted or forbidden to her husband, the chazakah was that she was definitely once permitted. The rule of chazakah says we must place her on that chazakah. However, when considering whether he is obligated to pay her the full betulah kesubah, the chazakah says that the funds belongs to him and we are trying to extract those funds from him, we must therefore rule in his favor.Tosfos will now ask that even though there is a chazakah that the money belongs to the husband as was just explained, there is however a double doubt in favor of the Kallah actually being entitled to the full kesubah. We should therefore rule in favor of the Kallah despite the husband’s chazakah on the money. After establishing that there is a double doubt, Tosfos will also need to prove that we rule in favor of the double doubt, even against the Chosson’s chazakah that the money in doubt belongs to him.There is a difficulty! Why does she lose her kesubah, there is a1<i class="footnote">See the gloss. There are Rishonim who hold that a double doubt is effective only when you have a double doubt no matter how you choose to approach it. For example in the classic double doubt of 9a we say that the first doubt is that perhaps she became a non-virgin after betrothal or possibly before betrothal and she is permissible to her husband. Even if you assume the stringent side that she became a non-virgin after betrothal there is a possibility that it was the result of seduction and she is prohibited or perhaps she was raped and is permitted. In this classic double doubt we will also have a double doubt if we approach the situation from the opposite direction. We can say that there is one doubt whether she lost her virginity as a result of seduction or rape. Even if you assume that she was seduced, it may have happened before betrothal. The double doubt is workable no matter which doubt we start with. In the case of Tosfos’ double doubt, this is simply not true. We may begin the double doubt by saying: he may or may not be an expert about an open entrance. Even if we assume he is an expert, it is possible that she was raped and is permitted to her husband. We cannot, however, start the double doubt with the question of whether she was raped or seduced and then say, even if she was seduced perhaps he is not an expert. Initially saying that she was either raped or seduced automatically assumes that she was in fact not a betulah. We cannot then say: maybe she was a betulah. Tosfos obviously holds that it is not required that a double doubt must be able to start in either direction.</i>2<i class="footnote">Tosfos assumes that a double doubt is effective even in money matters as is the case here. He is claiming that she is not entitled to a kesubah while she argues that she is. Tosfos suggests that since there is a double doubt in her favor she should win and be paid her kesubah. See פני יהושע) who argues with Tosfos’ assumption. It is not clearly mentioned in any Gemara that a double doubt can be used to extract money. In fact פני יהושע) argues, based on רשב"א that the reason a double doubt is effective is because it is equivalent to a רוב -‘majority’. This is effective in deciding cases of prohibitions, but is definitely not valid in deciding money matters. In financial matters the rule is ‘we do not rule according to a majority’. See פני יהושע) who disproves Tosfos’ conclusion from the Gemara later on 12b that a double doubt is effective in kesubah related matters.</i> double doubt in favor of her being entitled to collect the full betulah kesubah?The first doubt is: Perhaps he is an expert who can truly determine that the entrance was open or perhaps he is not competent enough to make that determination and she was truly a betulah, who is entitled to kesubah.The second doubt is: Even if you will assume that he is an expert and the entrance was open, there is another doubt. Perhaps she was raped after betrothal and is entitled to a full kesubah or perhaps she willfully committed adultery. Even though the Gemara concluded earlier that R’ Elozor is speaking about a Kohain’s wife who is forbidden to him even when raped, this does not affect her right to collect her kesubah, for even a Kohain’s wife who is raped does not lose her kesubah.There is a legitimate double doubt:A) Perhaps the husband does not have the needed expertise and she was a betulah and is of course entitled to collect her full kesubah.B) Perhaps she was not a betulah during mitzvah cohabitation, but she was raped after betrothal and is entitled to a full kesubah.Tosfos must now prove that when there is a double doubt in favor of the Kallah who is attempting to extract her kesubah from her Chosson who has the chazakah of the money in his favor, the double doubt wins.The Mishna later on 12b discusses a young lady who was found not to be a betulah. In that case all parties are in agreement that she was in fact at the time of the Chuppah not a betulah. Their disagreement is about when she lost her virginity. She says that at the time of betrothal she was a betulah, but she was raped afterwards. According to her argument she is entitled to a full two hundred zuz kesubah, since she was a betulah at the time of betrothal. Her husband argues: No, you were raped before betrothal and my acquisition of you as a wife was in error. I was not told the truth about your condition. R’ Yehoshua rules in favor of the Chosson and he definitely does not have to pay a full two hundred zuz kesubah of a betulah.There is a dispute in the Gemara about whether he has to pay any kesubah at all. After all, his argument is that if I had known the truth that she was raped before betrothal, I would never have married her. I was misled and do not want to pay any kesubah at all. There is an opinion in the Gemara that even so, he does have to pay one hundred zuz, the amount one pays when he knowingly marries a woman who is not a betulah. Tosfos will analyze the logic of this position and will conclude that the reason the Kallah is entitled to even one hundred zuz is because there is a double doubt in her favor. Tosfos will use this as proof that a double doubt in favor of the Kallah wins against the chazakah of the Chosson.Tosfos asks: But perhaps the chazakah of money ownership overrides even a double doubt? It should not be said that even when there is a double doubt [the Kallah] loses her kesubah, because we place the money that is in doubt in the chazakah of the husband for later (12b) in regard to a Kallah who in her own defense says upon the discovery that she is not a betulah: I was a betulah when betrothed, but after my betrothal, I was raped, while her Chosson says: not so, rather before your betrothal you were raped and my acquisition of you was in error. We must be aware that in reality, the bais din has no way of determining the truth. The bais din must apply the rules that prevail when there is a doubt.There is one opinion later (11b) who explains that when we rule that it was a acquisition in error, in accordance with the claim of the Chosson, the meaning of that ruling is that it was a purchase in error in regard to her collecting two hundred zuz, but she does receive one hundred zuz. This opinion holds that even if she was in fact not a betulah, she is entitled to the one hundred zuz kesubah of a non-virgin. We do not say that since she was not a betulah as she was expected to be, she is entitled to nothing. If we are now certain that she was not a betulah at the time of betrothal, we could understand why she is entitled to at least one hundred zuz.But there is still the possibility that she committed adultery after betrothal and is entitled to no kesubah at all because she is an adulteress. Why, does she in fact receive the minimum one hundred zuz? Tosfos will explain that the only reason she is entitled to one hundred zuz is because there is a double doubt in her favor, thus proving that a double doubt wins against a chazakah. Apparently, because in regard to that hundred zuz, which she is entitled to collect even if she was not a betulah, there is a double doubt in her favor, she does not lose her kesubah. The double doubt is as follows:A) Perhaps she became a non-virgin before she was betrothed and is therefore not an adulteress and entitled to at least one hundred zuz, or perhaps she lost her virginity after betrothal. Even if you assume that she lost her virginity after betrothal,B) I can say that it was the result of a rape not seduction and she is entitled to at least one hundred zuz.For if you say that even when there is a double doubt in her favor she loses her kesubah, why does she collect even one hundred zuz? There is a chazakah that the money belongs to her husband, there is a doubt as to whether she is entitled to any money at all and we should rule that the one hundred zuz should remain with her husband. The only possible reason that she receives even one hundred zuz is because there is a double doubt in her favor as far as the one hundred zuz is concerned.We must now understand why our Gemara does not award the Kallah a kesubah because of the double doubt:A) Perhaps the husband does not have the needed expertise and she was a betulah and is of course entitled to collect her full kesubah.B) Perhaps she truly was not a betulah during mitzvah cohabitation, but she was raped after betrothal and is entitled to a full kesubah.Before we proceed to Tosfos’ answer we must be aware that our Gemara does not hold that when a woman is found not to be a betulah that she is entitled to at least one hundred zuz. Our Gemara holds that if a woman is found not to be a betulah she is entitled to nothing.There is also a need to analyze each of the doubts that were presented in our Gemara on 9a as legitimate facets of the double doubt. There the Gemara says that even if a woman is found not to be a betulah, there is a double doubt that permits her to her husband. The first doubt is that it is possible that she lost her virginity before betrothal. This facet of the doubt says absolutely that she is permitted to her husband. Whatever happened before marriage could not possibly affect her permissibility to her husband.The second doubt as well, that even if she lost her virginity after betrothal because of a rape she is permitted to her husband, is also an absolute statement. If it is true that she was raped and her husband is not a Kohain, she is unequivocally permitted to him.We have now discovered that when the Gemara presents us with a double doubt, the facets of the doubts that argue in her favor must be absolute - if this facet is true, she is definitely permitted to her husband. If however, one of the facets of the double doubt is not absolute, it cannot serve as one of the facets of a double doubt.3<i class="footnote">See שב שמעתתא, שמעתתא א' פרק י"ח, י"ט. See פני יהושע and רש"ש for a slightly different approach.</i> In a hypothetical example: If we would argue in the classic double doubt of the Gemara, that even if she was raped there is a possibility that she would be forbidden to her husband, this could not serve as one of the facets of a double doubt. It is only because when we say that she might have been raped, it is unequivocally true that she is permitted to her husband that it is an acceptable facet of the double doubt.Tosfos will now show us that in the double doubt he has presented in favor of the Kallah collecting her kesubah, the fact that she was raped does not absolutely say that she is entitled to her kesubah. We can answer: That this situation is not considered a proper double doubt, because the facet of the doubt that perhaps she was raped is not considered an absolute facet that says we must give her the kesubah, because I can say that she may have been raped before her betrothal. If that is what actually happened, she is definitely not entitled to even a one hundred zuz kesubah according to our Gemara which holds that when a young lady is found not to be a betulah she is entitled to no kesubah at all. The argument that if she was raped she is entitled to her kesubah is true only if she was raped after betrothal, thus it is not absolutely true that if she was a rape victim she is entitled to her kesubah. Whereas, in the Gemara’s classic example of a double doubt, when we say that she may have been raped, it is absolutely true that she is permissible to her non-Kohain husband. It makes no difference whether she was raped before or after betrothal, in either case she is permitted to her husband. This is not so when considering if she is entitled to her kesubah. She is entitled to her kesubah if she was raped after betrothal, but not if she was raped before betrothal.In the double doubt of 11b that served as the basis of Tosfos question, both facets of the double doubt say that she is entitled to at least one hundred zuz. If she lost her virginity before her betrothal she is definitely entitled to one hundred zuz according to the opinion that whenever a young lady is found not to be a betulah she receives a kesubah of one hundred zuz. It makes no difference if she was raped or seduced. The facet of the doubt, that she may have been raped is also absolute. There is no difference whether the rape occurred before or after betrothal, in either case she does receive at least one hundred zuz.Tosfos will now show that there is another Mishna that is now easier to understand because of his novel approach - that each facet of the double doubt must be absolute. The Mishna on 13a also discusses a case where the Kallah was found not to be a betulah. All parties agree that this was so, but they disagree about how she lost her virginity. She defends herself by saying that she was injured by a piece of wood, but she did not cohabit with a man, neither by seduction or rape. He argues that she was deflowered by a man.In the Gemara on 13a there is a dispute about what the the Chosson and the Kallah are each claiming.A) R’ Yochanan says that she is claiming a full kesubah of two hundred zuz and the Chosson argues that she is entitled to only one hundred zuz.B) R’ Elozor says that she is claiming one hundred zuz and the Chosson argues that she is entitled to nothing.We will wait with the particulars of that dispute for 13a.Tosfos is concerned with why the Gemara there does not say that there is a double doubt in her favor. However, according to Tosfos’ novel approach we will see that it is not an acceptable double doubt. Now that we have our novel approach that the facets of a double doubt must be absolute, that which we learned in a Mishna (below 13a) comes out well. Concerning a Kallah who was found not to be a betulah,the Mishna says: She says I was struck by a piece of wood and he says not so, you were deflowered by a man. R’ Yehoshua says that she is not believed and she loses her kesubah. The Gemara there says that according to R’ Yochanan she loses one hundred zuz of the two hundred zuz kesubah and according to R’ Elozor she receives nothing of her kesubah.But why she should lose any at all, there is a double doubt in her favor? Even though there is a double doubt in her favor that says she is entitled to a complete two hundred zuz kesubah. How so?A) Perhaps she was struck by a piece of wood and is entitled to receive a kesubah. Even if you assume that she was deflowered by a man, I can say -B) perhaps she was raped after betrothal and it is his field that was eroded4<i class="footnote">Euphemistically, his wife is referred to as his field. If she was raped after betrothal, it is his field that was eroded and she carries no responsibility.</i> and she is entitled to a kesubah.Why doesn't the Mishna consider this double doubt in her favor and allow her to collect her complete kesubah? Rather, it is certain that the facet that she may have been raped is not considered a legitimate facet for the double doubt, because it does not absolutely say that she is entitled to a kesubah, because I can say that she may have been raped before betrothal and if so, is not entitled to a complete two hundred zuz kesubah.Tosfos said that this Mishna can be more easily understood according to his criteria for the facets of a double doubt. Why doesn't Tosfos present this as proof of his hypothesis? However, this Mishna cannot be presented as proof of Tosfos approach that each facet of the double doubt must be absolute, because there is an alternative explanation of why it is not considered a double doubt. Furthermore, Rabeinu Yitchok says that the reason there is no double doubt in the Mishna on 13a is because losing virginity via being struck by a piece of wood is unusual and cannot be considered a legitimate facet of a double doubt. The facets of a double doubt must be fairly equal. For that which [the Gemara] says (below 36b): All [young girls] can fall and strike the ground, which seems to say that losing virginity by falling is fairly common, that is true only according to Rabban Gamliel, but R’ Yehoshua does not hold of the rationale that all girls fall and strike the ground, because he says there (36a) that when one marries a deaf mute or an idiot he can have a claim of lost virginity against them. But if we say that it is common for them to fall and strike themselves against the ground and lose their virginity, how can any Chosson claim that they were not virgins? He should have expected that they might not be virgins. That is because [R’ Yehoshua] holds that falling and striking the ground that might cause a loss of virginity is unusual. Since it is unusual, it cannot be considered a facet in a double doubt.
  
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  [He is considered] credible [in regards to her] losing her kesubah. On 9a R’ Elozor said that a husband who claims “I found an open entrance” is believed to render his Kallah forbidden to himself. Rashi ד"ה נאמן לאוסרה עליו says that R’ Elozor does not hold that she loses her kesubah based on his claim. Shmuel is now disagreeing with R’ Elozor and saying that she loses her kesubah as well.According to Rashi, Shmuel who says that we believe the husband that she was not a virgin and he does not pay her kesubah, certainly holds that she is forbidden to him. (See Artscroll note 12.)Tosfos will now present his opinion that R’ Elozor may agree with Shmuel that when a husband claims that the entrance was open, she loses her kesubah in addition to being forbidden to him. The reason that R’ Elozor spoke of becoming forbidden to her husband and not about losing her kesubah, because he sees becoming forbidden to her husband as the greater novelty.R’I says that Shmuel surely acknowledges that [the husband] is believed to render his Kallah forbidden to him, since he is in fact saying that he believes she is an adulteress, she therefore becomes a forbidden item to him.If so, why is Shmuel teaching us about the loss of her kesubah? Shmuel speaks of the husband’s credibility to deprive her of her kesubah, because that is a greater novelty and that is what he needs to communicate to us, that we should not say that he is not believed to deprive her of her kesubah, even though he is an expert about an open entrance, because we can say that he is intentionally lying to deprive her of her kesubah.1<i class="footnote">The Gemara later on 10a will tell us that the reason a husband is believed to deprive his Kallah of her kesubah is based on logic. If he did not care for her, he would have simply divorced her before the Chuppah and he would not have incurred the expense of the wedding feast. Since he did go through the effort of making a wedding, he obviously liked her and intended that she should be his wife. His claim now that he found her not to be a betulah must be the truth.</i> Shmuel felt that it was important to convey this message, because we might conclude that the husband’s credibility is relevant only as it relates to his personal prohibition of living with an adulteress, not to depriving his Kallah of her kesubah.Rashi also holds that while Shmuel definitely agrees with R’ Elozor that when a husband claims the entrance was open, she is forbidden to him, R’ Elozor however, does not agree with Shmuel and holds that the husband’s testimony is not credible enough to deprive the Kallah of her kesubah. Tosfos disagrees on this point. R’ Elozor may also hold that [the husband] is believed to deprive her of her kesubah, but he specifically mentioned that he is believed to render her forbidden to him, because that is a greater novelty, and via kal v’chomer we understand that he is certainly believed to deprive her of her kesubah, as is evident in the previous dialogue2<i class="footnote">As explained in the text, we see in the previous Gemara that there is a greater likelihood that he would be believed to deprive her of her kesubah than to render her forbidden because of the conflict of the chazakos. The chazakah of permissibility renders her permissible, whereas the chazakah of ownership of the money in question rules that the money of the kesubah should remain with the husband. See Maharsho who defends Rashi. Tosfos’ proof is based on the previous Gemara as we explained. Maharsho argues that the previous dialogue is contingent on the hypothesis that the Chosson is not an expert about an open entrance. It is then that we have a doubt whether he knows what he is talking about and we must rule on the basis of chazakah. In that case the chazakah of ownership favors the Chosson and the chazakah of permissibility favors the Kallah. In reality both R’ Elozor and Shmuel believe that the husband is an expert. The only question is whether we believe what he is saying or not. Rashi’s reasoning is very simple. We may believe the Chosson insofar as rendering the Kallah prohibited to himself because his testimony is essentially effecting himself not others, but we might not believe him as far as depriving the Kallah of her kesubah, just as any debtor is not believed to say that I no longer owe the money. There is absolutely no logic to say the reverse, that I believe the Chosson insofar as depriving the Kallah of her kesubah, but not as relates to her being prohibited to himself. Since R’ Elozor speaks only about rendering the Kallah prohibited to himself, he obviously does not hold that he can deprive her of her kesubah. Shmuel who speaks of believing the Chosson to deprive the Kallah of her kesubah, definitely holds that he is certainly believed to render the Kallah forbidden to himself.</i> of the Gemara, where Tosfos explained that even when one is believed to deprive his Kallah of her kesubah, he may not be believed to render her forbidden to himself, because the chazakah of permissibility to her husband favors the Kallah remaining permitted to her husband, whereas the chazakah of the money favors the husband remaining in possession of the money. Apparently, that the Kallah is forbidden to her husband in spite of the chazakah that she had previously been permitted to him, is a greater novelty than her losing the kesubah, where the chazakah of ownership favors the husband retaining possession.[However, in Yerushalmi it is to be understood that according to R’ Elozor, [the husband] is not believed to deprive [his Kallah] of her kesubah] as Rashi explained.
  But in the Galilee, he can claim. The Gemara is attempting to prove that it is evident from the Mishna later on 12a that in Galilee we believe a husband when he says that he found the entrance open and the Kallah loses her kesubah.The Mishna there says that when a Chosson spent some time with his Kallah in Judea, he cannot claim that she was not a betulah, because it is the custom in Judea that the Chosson and Kallah are secluded together and it is entirely conceivable that they cohabited during the period of betrothal. The Gemara deduces that in Galilee however, we do believe him when he claims she was not a betulah.Furthermore, the Gemara says that the Mishna must be discussing whether she receives her kesubah or not. The Mishna cannot be discussing whether she is forbidden to him or not, because even in Judea we would believe the Chosson who says that she was not a betulah and I was not the one who deflowered her, since this is something that affects only himself - and he is rendering her a forbidden item to himself.At the conclusion of this analysis, the Gemara is at the point where we now knowA) that in Galilee a Chosson can claim that his Kallah was not a betulah andB) that she would lose her kesubah.Finally, the Gemara suggests that the claim he is making is most likely that he found the entrance open. Eventually, the Gemara dismisses this suggestion and says that the Mishna may be speaking only of when he was able to verify by the attendants that she did not bleed.Be that as it may, the Gemara seems to accept the analysis that the Mishna on 12a is saying that in Galilee we believe the Chosson when he says that his Kallah was not a betulah. But perhaps the Mishna is not saying that at all? There are two possible counterclaims that the Kallah may use in face of the Chosson’s claim that she was not a betulah. She may say:A) It is not true. I was a betulah and the Chosson is either lying or does not know what he is talking about.B) I was truly not a betulah, but this was because I was deflowered by the Chosson during the period of betrothal.The Mishna may be simply saying that if she claims (B) that at the time of the Chuppah I was truly not a betulah, but this was the result of my Chosson cohabiting with me, in Judea he cannot claim otherwise, since it is the custom that the Chosson and Kallah are secluded, whereas in Galilee, he can claim that it is not true. In Galilee we believe him when he says that he never had relations with her and she was not a betulah and she is therefore not entitled to a kesubah, but only when she admits that she was not a betulah.The Mishna may not be addressing the issue of when he says that she was not a betulah and (A) she claims that she was. It is possible that we believe her even in Judea when she says that she was in fact a betulah and we do not believe the Chosson at all about this matter. It is only in reference to claim (B) when the Kallah admits that I was not a betulah, but it was because I cohabited with you, that we do not believe her in Galilee, since it is not the custom to seclude the Chosson and Kallah together, but we do believe her in Judea.If you ask: How does [the Gemara] know that we believe the Chosson when he says that her entrance was open? Perhaps the Mishna on 12a is saying that we believe her in Judea when she says (B) that he cohabited with her during the period of betrothal because it is the custom to seclude the Chosson and Kallah together, but we do not believe her in Galilee when she uses the very same counterclaim and says that the Chosson cohabited with her, because it is not the custom to seclude the Chosson and Kallah together in Galilee, but, when she claims (A) that I was a betulah and he is either lying or not an expert in these matters, we believe her in Galilee as well. The Mishna that says we believe her in Judea but not in Galilee may be discussing only the counter claim(B) - he deflowered me - but not the counter claim(A) - I truly was a betulah.Thus, there is no proof at all that a we believe a Chosson who claims that his Kallah was not a betulah when she denies his claim.It is evident that Tosfos holds that in Galilee we believe her when she says (A) I was a betulah, but not when she says (B) I cohabited with my Chosson, even though her claim is supported by a migo1<i class="footnote">The word מיגו literally means because or since. This word has come to be used as a noun that refers to a certain type of claim. We will use the two claims of the Kallah as an illustration of this principle. The Kallah can win her kesubah, by counterclaiming that (B) she was indeed not a betulah at the Chuppah, but she was deflowered by her Chosson between the betrothal and Chuppah, when they were secluded together. This is a reasonable counterclaim and she would win. The rule of migo says: Since she can always use this second claim to win her kesubah, even when she uses another claim, such as, (A) my entrance was sealed and my Chosson is either lying or does not know what he is talking about, even though we have no reason to accept her claim per se, we say that she is telling the truth, because if she was lying, she would simply say that it was the Chosson who deflowered her. Her claim that her entrance was sealed was said only because she wants to be truthful. This type of claim - where we have no compelling reason to believe (A) the present claim she is making, but she could have won her case by using a second claim (B) is referred to as a migo. It is generally accepted that a person can win in bais din via a migo. There are exceptions as we will soon discover in an upcoming Tosfos.</i> that she could have said (A) I was a betulah. Chazon Ish explains that in Galilee we would not believe claim (B) that the Chosson deflowered her via a migo that she could have claimed (A) I was a betulah, because this is in effect a migo to extract the kesubah funds from the Chosson.Tosfos ד"ה דקא טעין will soon say that our Gemara may hold that a migo is not effective for a plaintiff to extract funds from a defendant Chosson who is in possession of the disputed funds. It is only effective when one is protecting the funds in his possession. Thus Tosfos’ position in this matter is in agreement with his position elsewhere.(In the very next step in this Tosfos there seems to be a contradiction to this rule and Tosfos seems to be saying that the Kallah would win her kesubah with a migo. We will soon discuss this contradiction.) We can answer: That it appears to [the Gemara] that when the Mishna says - in Judea one cannot claim that she was not a betulah - it means that in all instances he has no claim to deprive her from collecting her kesubah, no matter, whether her response is (B) that my entrance was open but it was [the Chosson] who cohabited with her after betrothal, hence, even though she was not a betulah, she is entitled to her kesubah, or whether she says his claim that the entrance was open is untrue, (A) he found the entrance sealed. In either of these cases we believe her and do not accept his claim that she was not a betulah and thus is not entitled to a kesubah.We can easily understand that when she claims the Chosson cohabited with her, we accept her claim. Since it was customary for the Chosson and Kallah to be secluded together in Judea, her claim that they cohabited when secluded is highly credible, but why do we believe her that her entrance was truly sealed, when she is not claiming that she was deflowered by the Chosson? It must be that in Judea she is believed when she says (A) that her entrance was sealed with a migo1<i class="footnote">The word מיגו literally means because or since. This word has come to be used as a noun that refers to a certain type of claim. We will use the two claims of the Kallah as an illustration of this principle. The Kallah can win her kesubah, by counterclaiming that (B) she was indeed not a betulah at the Chuppah, but she was deflowered by her Chosson between the betrothal and Chuppah, when they were secluded together. This is a reasonable counterclaim and she would win. The rule of migo says: Since she can always use this second claim to win her kesubah, even when she uses another claim, such as, (A) my entrance was sealed and my Chosson is either lying or does not know what he is talking about, even though we have no reason to accept her claim per se, we say that she is telling the truth, because if she was lying, she would simply say that it was the Chosson who deflowered her. Her claim that her entrance was sealed was said only because she wants to be truthful. This type of claim - where we have no compelling reason to believe (A) the present claim she is making, but she could have won her case by using a second claim (B) is referred to as a migo. It is generally accepted that a person can win in bais din via a migo. There are exceptions as we will soon discover in an upcoming Tosfos.</i> that she could have said - (B) after betrothal [the Chosson] cohabited with her.2<i class="footnote">This answer of Tosfos contradicts what we just explained earlier. The Chazon Ish explained that although a woman would be believed when she claimed (A) that I was a betulah, we would not believe her if she said (B) the Chosson deflowered me because it is a migo to extract funds and a migo cannot be used for the extraction of funds. It is effective only for protecting a defendant. But Tosfos is clearly saying that in Judea we do believe a Kallah who says that (A) I was a betulah via a migo that she could have claimed (B) the Chosson deflowered me. This seems to be a direct contradiction! Chazon Ish explains that there is a major difference between the two migos. In Tosfos question he says that a migo would not work to extract funds when she says that (B) the Chosson deflowered me, even though she could have claimed (A) I was a betulah, and she would have won with claim (A). This is an ordinary migo and is effective only for the protection of one’s assets but not for extracting funds from a defendant. In the migo that Tosfos mention in his answer, the Kallah's present claim is I was a betulah. In Judea she could have claimed (B) the Chosson deflowered me. In this case she wins even when she is extracting the kesubah funds from her husband, because the migo is much stronger. When her Chosson claimed that she was not a betulah, she did not have to respond at all and she would win her kesubah. Her silence would be construed as an admission that she was indeed not a betulah, but in Judea she is still entitled to her kesubah because we would assume that it was the Chosson who deflowered her. This is a much stronger migo, because she would win even if she did not respond to his claim at all. We therefore believe her when she says (A) I was truly a betulah, because she would have won with no response at all. The rule that migo is ineffective for extracting funds is true only when she would have to respond to the claims of the Chosson, but she could have used an effective counterclaim. When she doesn't need to respond at all, a migo is effective even for extracting funds. Thus, Tosfos’ statement that in Judea when she says (A) that she was a betulah, we believe her via a migo, is no contradiction at all to his position that we generally do not allow the extraction of funds via a migo. That is true only of an ordinary migo, but not when the respondent had the option of remaining silent. The text of Tosfos במגו דאי בעיא אמרה באירוסין בה עליה via a migo that she could have said (B) he deflowered me during the Eirusin period is slightly difficult according to Chazon Ish who holds that she would win if she did not respond at all. See מלא הרועים quoted in the digest in ש"ס שיטה מקובצת ד"ה ובקונטריסין מצאתי ,נהרדעא and פני יהושע who suggest alternative approaches in dealing with this question.</i> However, in Galilee she is not believed to say (A) that her entrance was closed because she has no migo, since we would not believe her if she claimed (B) that her Chosson deflowered her.We are now satisfied with how the Gemara deduced from the Mishna on 12a that a Chosson can claim that his Kallah was not a betulah. This lengthy analysis of the Mishna on 12a in order to reach this conclusion, begs another question: The ruling that a husband can claim that his Kallah was not a betulah is clearly stated earlier in a Mishna on 10b. Why does the Gemara attempt to prove its point from an analytical deduction from 12a when it is clearly stated on 10b?However, there is a difficulty with the Gemara’s question: That [the Gemara] cites a deduction from the Mishna on 12a, and he should have cited proof from the beginning of the Mishna, that teaches us (10b): concerning a betulah who was widowed after betrothal and never lived together with her Chosson as a married woman, etc. [her Kesubah is two hundred zuz as is the kesubah of a betulah] and he can claim against her that she was not a betulah.3<i class="footnote">See מהר"ם שי"ף who suggests the following solution to Tosfos question: The Mishna on 12a uses the phrase “he cannot claim that she was not a betulah”, the implication is that in Galilee he can claim that she was not a betulah. The emphasis is on he, which implies that it is his personal claim - something that is not verifiable by witnesses, because witnesses cannot know whether her entrance was open or not. The Mishna on 10b however, uses the phrase “they are subject to the claim that they were not virgins”. That he is making that claim is not mentioned. The Mishna can easily be understood as referring to the claim that she did not bleed, which is verifiable by the attendants who testify that there was no blood on the sheet designated for that purpose. Thus, there is no proof from the Mishna on 10b that the Chosson can claim that the entrance was open, which is not verifiable by witnesses.</i> She did not live with her first husband as a married woman. Her second husband is entitled to expect that she is a betulah. If she is found not to be a betulah, she is not entitled to a kesubah from the second husband. When the Mishna says that her Chosson may claim against her that she was not a betulah, the Mishna is in fact stating that we believe the Chosson’s claim. This should be presented as proof that a Chosson can claim that his Kallah was not a betulah and he will not have to pay her kesubah.But perhaps the Mishna is saying that we believe him only insofar as rendering her forbidden to him? It is conceivable that the Mishna is not addressing the issue of whether she collects her kesubah or not. We are compelled to say that the Mishna is speaking about her inability to collects her kesubah and not about her becoming prohibited to her husband. For in regard to rendering her forbidden to him, even if there already was nisuin via Chuppah with her first husband, her Chosson can claim against her that she was not a betulah and she is forbidden to him, since he married her with the expectation that she was a betulah as it is evident later (12a) where the Gemara asks in reference to a Kallah who had nisuin but lost her husband prior to cohabitation and she was found not to be a betulah: Perhaps she committed adultery when she was already betrothed to [the second husband]? The Gemara answers that he married her immediately after betrothal as we usually do nowadays and it was impossible that she committed adultery while betrothed to her second husband. We see that since he expected her to be a betulah even though she already was married to her first husband, when he discovers that she was not a betulah, she would be forbidden to him, if he had not married her immediately after betrothal. Tosfos leaves this question unanswered.3<i class="footnote">See מהר"ם שי"ף who suggests the following solution to Tosfos question: The Mishna on 12a uses the phrase “he cannot claim that she was not a betulah”, the implication is that in Galilee he can claim that she was not a betulah. The emphasis is on he, which implies that it is his personal claim - something that is not verifiable by witnesses, because witnesses cannot know whether her entrance was open or not. The Mishna on 10b however, uses the phrase “they are subject to the claim that they were not virgins”. That he is making that claim is not mentioned. The Mishna can easily be understood as referring to the claim that she did not bleed, which is verifiable by the attendants who testify that there was no blood on the sheet designated for that purpose. Thus, there is no proof from the Mishna on 10b that the Chosson can claim that the entrance was open, which is not verifiable by witnesses.</i>
  
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  What, is it not that he makes the claim of an open entrance? The Gemara is in the process of attempting to prove from the Mishna on 12a that when a Chosson in Galilee claims “I found the entrance open” we believe him and his Kallah loses her Kesubah. Why do we believe the Chosson and not the Kallah who counterclaims either that I was a betulah or it was the Chosson himself who deflowered me? Rashi explains that there is a chazakah - a presumed truth, that the Chosson would not go through the difficulties involved in preparing a marriage feast and then destroy the marriage by saying she was not a betulah, if it was not true. If he is lying and simply wants to deprive her of her kesubah, he would have just divorced her before the Chuppah. The preparation of a lavish banquet is proof that he fully intended to live with her and that his present claim - that she was not a betulah must be true.This presumption that the Chosson is telling the truth explains why we believe him in Galilee, where it was not the custom to allow the Chosson and Kallah to seclude themselves, but it does not adequately explain why this same presumption of honesty should not be invoked when he makes the identical claim in Judea. We should say that since the Chosson went through the trouble and expense of preparing a banquet, it is proof that he fully expected to live with the Kallah as his wife and we should believe him when he says that he did not find her to be a betulah and he was not the one who deflowered her.We must find a reason why the presumption of honesty is not invoked in Judea. We must factor into the equation that in Judea it was the custom that the Chosson and Kallah were secluded together and that there is a likelihood that he deflowered her between betrothal and the Chuppah. In Judea, even though there is a chazakah that he must be telling the truth because he would not prepare a marriage feast and then destroy it, he is not believed when he says that she was not a betulah as Rashi explained.Rashi ד"ה מאי לאו gives two reasons for not believing the Chosson:A) Although we do not suspect him of lying, he may have forgotten in the interim that he deflowered her.B) He may believe that he had only a partial cohabitation with her. At the time he was attempting to preserve her virginity for mitzvah cohabitation. He never knew that he actually deflowered her.The common denominator of Rashi’s explanations is that although we would believe him in Galilee where we know that he did not interact with the Kallah, in Judea where he did interact with her, we assume that even though he would not lie, he may be unaware of the complete truth.Tosfos will suggest that even though we believe the Chosson in Galilee, in Judea there is a compelling reason to believe that he is not telling the truth and we can therefore not accept his word that she was not a betulah and that he was not the one who deflowered her. Alternatively we can answer, since he secluded himself with [the Kallah] he surely cohabited with her, because he could not overcome his natural desire to do so.Tosfos has concluded that when a Chosson claims that I did not cohabit with my Kallah when I was secluded with her, we do not believe him. His natural desire will overcome any reservations that he has about cohabiting with her. The Gemara in Yevamot 111b seems to say otherwise. The Mishna there is discussing a Yevamah who claims that the Yavam did not cohabit with her, while the Yavam claims that he did. The Mishna rules that during the first thirty days we believe the Yevamah and we will force the Yavam to give chalitzah in order to free the Yevamah from him. After thirty days we believe the Yavam who says that I did cohabit with her. Apparently, during the first thirty days, even though they were secluded together for the purpose of cohabitation it is conceivable that he did not cohabit with her, whereas here Tosfos unequivocally says that we do not believe the Chosson who says that even though we were secluded, I did not cohabit with her.Even though in regard to a Yevamah [the Gemara] says (Yevamot 111b) that until thirty days [the Yavam] can overcome his natural desire and refrain from cohabitation, despite having been secluded with her, the majority of times, he cannot overcome his desire even for one moment, for it is with this mindset, to become friendly and intimate with his Kallah that he secludes himself with her, and the presumption that he would not prepare a lavish banquet and then destroy it by falsely claiming that she was not a betulah is invalidated.
  No, for he makes the claim [that there was no] blood. The Gemara deflects the proof from the Mishna on 12a which indicates that we believe a Chosson who says that my Kallah was not a betulah. The Gemara assumed that his claim was “I found the entrance open”. The Gemara answers that his claim was that there was no bleeding, which is verifiable by the lack of stained sheets. But what was the Kallah’s response to his claims? Is there perhaps some counterclaim that she could have used to win her case? If so, why doesn't she win with her claim via the principle of migo? Tosfos will deal with all these issues.What is the advantage of the Chosson claiming “there was no bleeding” as opposed to claiming that “the entrance was open”? “There was no bleeding” is a stronger claim because it is a verifiable claim, since we can see that the sheets are not stained with blood.What is the Kallah’s counterclaim? It appears that in our Gemara when the Chosson claims “I found the entrance open” or he claims “there was no bleeding”, it is speaking of when she counterclaims that [the Chosson] cohabited with her during the period of betrothal or she says that she was in fact a betulah and the Chosson is either lying or is incompetent to determine that her entrance was open. It is when she uses one of these counterclaims that she loses her Kesubah. There are however, counterclaims that she could use and defend her right to collect her Kesubah.Tosfos will now examine the counterclaims that are effective and also explain why the above mentioned counterclaims cannot win via a migo that she could have used one of the effective counterclaims. We will refer to her actual claim as the present claim and to what she could have claimed as the second claim.The two effective counterclaims that a Kallah can use are:A) I was raped after betrothal. Tosfos will soon demonstrate that this is an effective counterclaim.B) I was injured by a piece of wood that upset my virginity.The Mishna on 12b discusses a case where the Kallah was found not to be a betulah. She claims that she was raped after betrothal and is entitled to her full kesubah, while her Chosson claims that she was raped prior to betrothal and his purchase1<i class="footnote">A euphemism for being misled. He was led to believe that she was a betulah and he married her with the understanding and expectation that such was the case. When it turns out that she is not a betulah, it is similar to buying an object that was not what it was touted to be.</i> was an acquisition in error, because he had assumed that she was a betulah. Rabon Gamliel rules in favor of the Kallah. The Gemara there rules in accordance with Rabon Gamliel.In our Gemara as well, when the Chosson claims that “I found the entrance open”, we would definitely believe the Kallah if she said the second claim - that I was raped after betrothal. If you ask: Let us believe her when she claims “he cohabited with me after betrothal” or “I was in fact a betulah” via a migo that if she wanted to lie she could have said “I was raped after you betrothed me”. For we believe her when that is her counterclaim according to Rabon Gamliel and we rule (below 13a) in accordance with [Rabon Gamliel]. Since she could have an effective counterclaim - I was raped after betrothal - she should win with her present claim - you deflowered me or I was in fact a betulah - via the rule of migo, since she could have used an effective counterclaim.Tosfos must now explain that although there is an effective counterclaim, the rule of migo cannot be applied. There is a reason that prevents her from counterclaiming that she was raped after betrothal. We can answer: That she will not willfully admit that she cohabited with another man even if it is true. It is a source of embarrassment for her and she would choose to conceal this event. Her husband may find her unappealing, if she had relations with another man, even if by rape. Therefore, it cannot be said that she could have claimed that she was raped after betrothal, because she is ashamed to admit that fact.A migo is only usable when the second claim she could have used is as beneficial to her as the claim she is presently using. When the second claim she could have used definitely has a negative aspect, we cannot say that she could have used that second claim, since she would have to suffer the negative effects of that second claim. Furthermore, this is not a usable migo, because if she would claim that she was raped after betrothal she would be disqualified from marrying a Kohain. Any woman involved in an illicit relationship, even if raped, may not marry a Kohain. Admitting that she was raped as a married woman, would prevent her from marrying a Kohain in the future. Her present claim that she was deflowered by the Chosson after betrothal or that she was in fact a betulah, would allow her to marry a Kohain in the future and thus is a healthier counterclaim. We cannot apply the rule of migo when the present claim is even in only some ways better than the second claim. It is not logical to say that she could have used the second claim that she was raped after betrothal, when that claim would prevent her from marrying a Kohain, while the present claim allows her to marry a Kohain.Tosfos will now discuss counterclaim (B) that she could have claimed that I was injured by a piece of wood that upset my virginity. The Mishna later on 11a cites a dispute about a Kallah who was in fact injured by a piece of wood. R’ Maier holds that she is entitled to a complete two hundred zuz kesubah. The Rabonon hold that she is entitled only to one hundred zuz.According to R’ Maier it seems that there is a migo, because she would lose nothing if she claimed - I was injured by a piece of wood. We would believe her and she would lose nothing with that second claim. According to the Rabonon however, the second claim - I was injured by a piece of wood is inherently weaker than her present claim. Her present clam - the Chosson deflowered me, or - I was a betulah - entitles her to a complete kesubah. The second claim would give her only one hundred zuz.However, this is a difficulty! For we should believer her with her present counterclaim that the Chosson deflowered her or that she was a betulah, with a migo that if she wanted to lie she could have said a second counterclaim - that I was injured by a piece of wood and that is how I lost my virginity.This is logical according to R’ Maier who holds that when injured by a piece of wood, she is entitled to a complete two hundred zuz kesubah. But according to the Rabonon who say that when injured by wood, she is entitled to only one hundred zuz, her present claim is stronger than her second claim. Says Tosfos: even according to the Rabonon (below 11a) who say: concerning a woman injured by wood, her kesubah is only one hundred zuz, which would render that there is no migo, since she does not want to lose anything of her kesubah, thus her present claim is better than the second claim because the present claim entitles her to a full kesubah, whereas the second claim would entitle her to only half her kesubah, in any case, she should be believed with her present claim that she was deflowered by the Chosson or that she was a betulah, with a migo - if she wanted to lie she could have said that I was injured by a piece of wood, while betrothed to you and it is [the Chosson’s] field2<i class="footnote">See Tosfos earlier 2b ד"ה מציא אמרה for an explanation of נסתחפה שדהו.</i> that eroded. I was a complete betulah at the time of betrothal and was injured by wood only after the betrothal. Thus she is entitled to a complete kesubah since she was a betulah at the time of betrothal and she is permitted to marry a Kohain since she never participated in an illicit relationship. There is nothing that she loses by using this counterclaim. Why the does she not have a migo?We must now search for a reason why we do not believe the Kallah who claims my Chosson deflowered me or that I was a betulah with a migo that she could have counterclaimed - I was injured by wood after betrothal, even though the second claim is as good as the present claim in every way.We must remember that the reason we believe the Chosson who says that his Kallah was not a betulah is because of the chazakah - the presumption that he is telling the truth, because he would not have prepared a lavish wedding banquet if he intended to falsely claim that she was not a betulah. He would have simply divorced her before the Chuppah. We now know that her migo, which says that we should believe the Kallah is contradicted by the chazakah that says we should believe the Chosson. We are now faced with a conflict: migo versus chazakah.Therefore it appears that the reason the migo is ineffective is because it is a migo in conflict with a chazakah - the presumption that he is telling the truth - because a person does not go through the trouble of preparing a lavish wedding banquet and then ruin it by falsely claiming that his Kallah was not a betulah. If he disliked her, he would have divorced her before the Chuppah. By going through with the Chuppah and the banquet, he demonstrated that he truly wanted to have her as his wife. He is claiming that she was not a betulah and does not want to continue living with her only because that is the truth.The Gemara in Bava Basra 5b discusses whether a migo that is in conflict with a chazakah is valid or not. The question remains unresolved. It would seem that our Gemara is definitely saying that a migo in conflict with a chazakah is ineffective. Why is this ignored by the Gemara in Bava Basra 5b? Even though this is a query in the first Perek of Bava Basra (5b), whether we say that a migo is effective when it is in conflict with a chazakah or not and the Gemara should have presented the Mishna on 12a as proof that a migo in conflict with a chazakah does not win, perhaps the chazakah here in our Gemara is stronger and cannot be presented as proof that in general a migo cannot win against a chazakah.There is another inherent difficulty with the migo of our Gemara. It is a migo to extract money from the husband who claims that his Kallah is not entitled to her kesubah. Elsewhere3<i class="footnote">See Tosfos Bava Metzia 2a ד"ה זה נוטל רביע also Tosfos Bava Basra 32b ד"ה אמאי קא סמכה and 52b ד"ה דברים העשיוון.</i> Tosfos says that we do not use migo to extract money from one who is presently in possession of those funds. If we do not say that migo is effective even to extract money, it also comes out well that there is no migo for the Kallah to prove that her counterclaims are true.
  
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  Rav Naḥman said [that] Shmuel said: The Sages instituted. The Gemara will soon cite a dispute of Tannaim about whether the obligation of Kesubah is Torah or rabbinic law. The statement in Tosfos heading seems to say that Rav Nachman in the name of Shmuel follows the opinion that kesubah is rabbinic law, since he clearly says that the Sages declared that a Kallah should receive a Kesubah. It is to be understood from Shmuel’s terminology - the Sages instituted - that the obligation to pay a kesubah is rabbinic, not Torah law.There is another Gemara in Yevamot 89a that would lead us to this conclusion: The Mishna there is teaching us about the penalties instituted for a woman who was informed that her husband was no longer alive by one witness. She is permitted to marry, because the Sages felt that she would be very careful to verify the accuracy of the witness’ testimony. If she was indeed misled and did not do a proper investigation, she is subject to many penalties. These too, serve as an impetus to properly investigate the reported facts surrounding her husband’s death. Among those mentioned in the Mishna is that she loses her kesubah. The Gemara there explains why.So too, in Ha’eshah Rabah (Yevamot 89a), concerning a woman who married a second husband based on the testimony of one witness who testified that her first husband died, and the first husband was in fact alive, in regard to the reason that she does not receive her kesubah [the Gemara] explains: What is the reason that the Rabonon instituted the obligation to pay of a kesubah? So that [one’s wife] should not be easy in his eyes to send her away etc.1<i class="footnote">The financial burden of paying a kesubah, which is equivalent to a year’s sustenance is a deterrent to frivolous divorce.</i> [In this case when her husband was found to be alive, it emerges that she married illegally. We do want the husband to divorce her and we do want to make it as convenient as possible for him to do so. We therefore rule that he does not have to pay her kesubah.] Apparently, since the Gemara there also uses the phrase “the Rabonon instituted the payment of Kesubah”, the anonymous2<i class="footnote">When the Gemara quotes a ruling in the name of any specific amora, it is not necessarily proof that the Gemara accepts this ruling as halacha. It is possible that there are others who disagree with this opinion and the halachic ruling might favor the opposition. Thus, if we find a dissenting opinion, we have the right to follow that dissenting opinion. However, when the Gemara anonymously quotes a ruling, it is a statement that there is a consensus that this ruling is correct and it is to be followed in halacha.</i> Gemara holds that the obligation to pay kesubah is rabbinic.Tosfos has a difficulty with this conclusion. This is difficult! For it is standard procedure to write in a betulah’s kesubah, when enumerating the amount to be paid: two hundred silver zuz, that you are eligible to be paid by Torah law. It is clear that our kesubah documents state that the kesubah payment is required by Torah law,3<i class="footnote">Tosfos’ interpretation of these words is extremely literal. We write to the Kallah that you are eligible to receive this money by Torah law. This indicates that the obligation is Torah law. See Rosh 18, who offers a slightly different explanation of the words “that you are eligible to receive by Torah law”. Generally, when we say that a person has a Torah obligation of any number of shekalim, the coinage is that of Tyre. When we say that the obligation is rabbinic, the coinage is of Medina, which is one eighth the value of Tyre. If we say that the kesubah obligation is Torah law, it must be paid with coins of Tyre that are worth eight times as much as the coins of Medina. If we say that the obligation is rabbinic, it could be said that the kesubah can be paid with the less valuable Medina coins. The Rabonon who instituted the payment of kesubah wanted the payment to be enough for a year’s expenses. In this case, even if the obligation is initially rabbinic, the Rabonon’s intention was that it should be paid with Tyre coinage, so that a woman would have enough to survive for a year. Thus, even though the obligation is inherently rabbinic, it must be paid with the more valuable Tyre coinage. In France and Germany they wrote into the kesubah document that “you are eligible to receive by Torah law” not as a declaration that the initial obligation is Torah law, but simply to emphasize that the payment of kesubah is to be made as if it is Torah law and the more valuable Tyre coinage is to be used.</i> whereas Rav Nachman in the name of Shmuel and the anonymous Gemara in Yevamot 89a state that the obligation is rabbinic law.This contradiction cannot be resolved. Our custom is obviously in conflict with Rav Nachman in the name of Shmuel. However, Tosfos must show that there is in fact a dissenting opinion. Says Rabbeinu Tam: That we rely on Rabon Shimon ben Gamliel of the Mishna in the last Perek (110b) which will soon be cited in our Gemara, who says that when a woman was married in Cappadocia where the coins are worth more than those of Eretz Yisroel, even if he divorced her in Eretz Yisroel he must pay her with the coins of Cappadocia, which are of greater value, because he holds that the payment of kesubah is Torah law,4<i class="footnote">Those who hold that kesubah is a rabbinic obligation, hold that when the divorce takes place in Eretz Yisroel the kesubah may be paid with the less valuable Eretz Yisroel coins, as will soon be explained in our Gemara.</i> and we rule in accordance with Rabon Shimon ben Gamliel whenever his opinion is mentioned in our Mishna.Rashi ד"ה חכמים תקנו explained that Rav Nachman’s ruling that we believe a Chosson who says that he found the entrance open is because the kesubah is rabbinic law. If it was Torah law, the presumption that he is telling the truth, otherwise he would not have made such a lavish banquet, is not strong enough to free him from a Torah obligation. If so, Rav Nacmon’s ruling that we do believe a Chosson is dependent upon the kesubah being rabbinic law.Tosfos will now show us that there are those who disagree with Rav Nachman’s ruling. They are obviously of the opinion that kesubah payment is Torah law and we cannot believe the Chosson who wishes to free himself from this obligation. According to this opinion, the text of our kesubah makes perfect sense.Furthermore, R’I says that we do not rule in accordance with Rav Nachman who says that we believe a Chosson’s claim that his Kallah was not a betulah, because we find that Rav Ashi who was a latter authority argues with [Rav Nachman], as [Rav Ashi] adjusts the text of a Baraisa later (12a): Rav Ashi says, we must emend the text of the Baraisa as follows: Any [Chosson] who was not examined by the Kallah’s attendant to ascertain that he did not destroy the bloodstained sheets cannot claim that his Kallah was not a betulah. We are concerned that the Chosson may cheat and destroy any evidence that his Kallah was a betulah. Apparently, [Rav Ashi] is concerned that [the Chosson] might lie and falsely claim that the Kallah was not a betulah, and we do not say that there is a chazakah that a person would not trouble himself to prepare a lavish wedding banquet and then ruin it by falsely accusing his Kallah of not being a betulah. Rav Ashi clearly holds that there is no presumption that the Chosson is telling the truth. As explained, that is because Rav Ashi believes that the kesubah is a Torah obligation. This is in opposition to Rav Nachman who holds that it is only a rabbinic obligation. Since Rav Ashi is a latter authority, we rule in favor of Rav Ashi that the kesubah obligation is Torah law and we cannot believe a Chosson who wants to free himself of his Torah obligation. We therefore write in the text of our kesubos that the Kallah is eligible for this payment by Torah law.So too, did Rabbeinu Yitzchok ben Rabbeinu Meir comment that Rav Ashi disagrees with Rav Nachman, and we rule in favor of Rav Ashi.We have now demonstrated that Rav Nachman’s ruling which is based upon his belief that payment of kesubah is rabbinic law, is not universally accepted. Rav Ashi holds that we rule in favor of Rabon Shimon ben Gamliel who holds that payment of kesubah is Torah law. But the anonymous Gemara in Yevamot 89a seems to rule in favor of Rav Nachman who holds that payment of kesubah is rabbinic law?Tosfos offers an alternate approach to that Gemara. Let us remind ourselves that the Gemara in Yevamot 89a seems to say that kesubah is a rabbinic institution devised to be a deterrent to frivolous divorce. “Why did the Rabonon institute the payment of kesubah?” which definitely implies that the kesubah payment is rabbinic, the intent of that Gemara is not that all kesubah payment is rabbinic law, rather it means that where [the Rabonon] did institute kesubah payment, for example for a widow who is certainly not entitled to kesubah by Torah law, they instituted a rabbinic kesubah so that should not be easy in his eyes to send [one’s wife] away.5<i class="footnote">We see that when the Rabonon wanted to discourage frivolous divorce, they legislated the financial burden of paying a kesubah. It follows that when we want to encourage a divorce, such as when a woman married while her first husband was still alive, we must remove the deterrent of paying a kesubah.</i>6<i class="footnote">Those who hold that kesubah payment is Torah law, derive it from the verse כמהר הבתולות. The Torah is specifically discussing a betulah. Any other kesubah payment is of rabbinic origin.</i>So too, when a woman married illegally, based on the false testimony of a witness who said her husband died, they instituted that she should not have a kesubah, so that it should be easy in his eyes to send her away and he need not be concerned about the financial burden of paying her kesubah.
  
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  The presumption [that] a person does not exert [himself]. The Gemara tells us that the reason that we believe a Chosson who says that the entrance was open is because, a person would not trouble himself to make a wedding banquet and then ruin it by lying that his Kallah was not a betulah. As Rashi ד"ה חזקה says: if he detested her, he would have divorced her before the Chuppah. He obviously did like her and fully intended to take her as his wife, but was disappointed with her because she was truly not a betulah.The proof of his good intentions is that he made a wedding feast and according to his present declaration that the Kallah was not a betulah, he would lose the feast. Tosfos will analyze when and why he loses the feast, and what would we rule when he does not lose the feast?1<i class="footnote">Tosfos’ understanding of the term “one does not trouble himself to make a wedding feast and then ruin it” is extremely literal. Tosfos is constantly searching for how the lying Chosson might lose the feast. In the instance that despite his lying, she legally remains his wife, we will not believe his claim that she was not a betulah. Ramban is not concerned with the legality of the situation. He argues that a person who claims that his wife was not a betulah is not intending to remain married to her even if he is legally allowed to do so. In the words of Ramban - one does not spit into a cup and then drink from it. By accusing his wife of not being a betulah, he is destroying his marriage and we therefore believe him, even when he legally remains married to her.</i>There are two cases where it is evident that by claiming his Kallah was not a betulah, he will lose her. This is bewildering! It is logical that he stands to take a loss when he is a Kohain and his Kallah is the wife of a Kohain who is forbidden to her husband when he claims that she was not a betulah as mentioned earlier on 9a, because there is only one doubt to consider - did she cohabit with another man before or after betrothal. Since there is only one doubt, we must be stringent in a case where the prohibition to continue living with her is Torah law.Or if he was not a Kohain, but was betrothed to him when she was less than three years of age, when we are certain that she cohabited with another man after betrothal and our only doubt is whether she was seduced or raped. In this case as well, since there is only one doubt she is forbidden to [her husband]. Therefore, since he does lose [his wife] as a result of his claim that she was not a betulah he is believed to say that she was not a betulah.There is a third scenario in which the Chosson will lose his wife because of his claim, even though she is not forbidden to him. The Gemara later on 11b discusses the case of a woman who was found not to be a betulah. Let us assume that she lost her virginity before betrothal and she is definitely not forbidden to her husband, since she did not commit adultery. There are those who hold that she receives a kesubah of one hundred zuz, which is the kesubah for a non-virgin. Others hold that her Chosson may claim that if he had known that she was not a betulah, he would not have married her at all. His marriage to her was in error and she is not entitled to any kesubah whatsoever.Tosfos discusses the ramifications of the presumption that one would not trouble himself to make a wedding feast and then ruin it by lying that the Kallah was not a betulah, according to both opinions. And according to the one who says later in the Gemara if one married a woman under the presumption that she was a betulah but she was found not to be a betulah, she receives no kesubah at all, it is soundly understood that now as well [the Chosson] loses his feast because the marriage was an acquisition made in error and his Kallah is not married to him at all. By claiming that she was not a betulah, he is essentially saying that she is not my wife. I intended to marry a betulah and she was not what I expected. The marriage is null and void. Thus, he in fact loses the marriage feast because he has no marriage.However, according to the one who says that she receives a kesubah of a maneh, one hundred zuz, and she remains married to him, he is losing nothing at all by claiming that she was not a betulah. Rather, he is causing her to lose a maneh from her kesubah because she was not a betulah as expected, but he is not losing the feast since she does remain married to him. If so, why is he believed to say that she was not a betulah? He is losing absolutely nothing by his false claim that she was not a betulah. He is only benefiting by reducing his kesubah liability from two hundred zuz to one hundred zuz.It appears that he is not believed to say that she was not a betulah when he will not actually lose the wedding feast as in the case that Tosfos described, when he claims that she was not a betulah and she is therefore only entitled to a kesubah of one hundred zuz. 
  
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  Since it is rabbinic law, she does not collect. The Gemara is saying that the reason kesubah payment is to be paid from inferior quality property is because the payment is mandated by rabbinic law. We can infer that if the payment was mandated by Torah law, the kesubah payment would be subject to all the requirements of Torah payments.Tosfos will discuss two rules of Torah payments:A) Torah payments are to be paid from the עידית - finest properties of the payer.B) All possessions of the payer, movable and real, are subject to collection in order to satisfy the debt.Tosfos will now show that it appears that even those who hold that kesubah payment is mandated by Torah law do not hold that payment is to be madeA) from the finest property of the payer norB) from all possessions, even movable ones.First, Tosfos will show that even R’ Meir who holds that the kesubah payment is mandated by Torah law, does not hold that payment is to be made from the husband’s finest property. This is bewildering! For R’ Meir holds later in Perek Af Al Pi (56b) that kesubah payment is mandated by Torah law, and in Perek Hanizokin (Gittin 48b*<i class="footnote">The Gemara is actually on 49b.</i>) [the Gemara] says that R’ Meir holds that a woman’s kesubah is to be paid from intermediate quality property so that women will find favor1<i class="footnote">See Tosfos Gittin 49b who discusses two explanations of the concept of חינא. Eventually, Tosfos concludes that the concern of חינא is to make the payment to the divorced or widowed women of a quality that would make their overall financial position attractive to a potential second husband. It appears that Tosfos here is working with that explanation of חינא and I have translated accordingly.</i> in the eyes of men and the men will be anxious to marry them. They were concerned that if payment was to be with the poorest quality fields, the future husband of this woman would find the financial situation too burdensome, since her assets are of poor quality. They therefore instituted that payment should be with middle quality property in order to sweeten the financial attraction for the next husband. It appears that if not for the special legislation of the Rabonon, the payment of kesubah would be with the poorest quality, even though R’ Meir holds that the kesubah obligation is Torah law. But we have just learned that if the obligation to pay kesubah is Torah law, the payment must be made with the finest?Tosfos must first prove that Torah mandated payments must be paid from the finest property. And since the [kesubah payment] is Torah law according to R’ Meir, the rule is that it is to be paid from the finest properties of the husband as [the Gemara] deduces in the beginning of Bava Kama (5a): and all payments required by Torah law are like the primary damagers that must pay from the finest properties of the damager. This is derived from a textual comparison using four words – תחת, נתינה, ישלם and כסף.2<i class="footnote">See Bava Kama 5a, where the Gemara says that all payment are derived from the fact that one of these four words appears in the verse that discusses the obligation to pay. According to our Gemara as well, that the biblical obligation to pay kesubah is derived from כסף ישקול כמוהר הבתולות, the payments must be made from the finest, since the word כסף appears in the verse.</i> Why did the Rabonon revoke the ruling that she should collect from the finest property of her husband? It seems that the Gemara in Gittin 49b is explaining why she need not collect from the most inferior quality, but what happened to her inherent right to collect from the finest properties?Secondly, Tosfos will now show that almost all Tannaim agree that kesubah payment is to be made only from real property and not from movable possessions. If the kesubah payment is mandated by Torah law, this is problematic. Furthermore, there is another difficulty with the inference of our Gemara that if the kesubah would be Torah law the laws governing payment would be different, for we have not found any Tano in any place in a Mishna or a Baraisa, who holds that a woman’s kesubah is to be paid from movable possessions, but R’ Meir, as [the Gemara] says in many places, when faced with a source that says a woman’s kesubah can be collected from movable possessions: this follows R’ Meir who says that movable possessions are collectible for a woman’s kesubah. We do not find that this position is attributed to any other Tano, even though there are other Tannaim who hold that kesubah payment is Torah law, as we can see in our Gemara, that Rabon Shimon ben Gamliel also holds that kesubah payment is Torah law.But according to the one who says that kesubah payment is mandated by Torah law, why can [a woman] not collect from movable possessions just as damages can be collected from movable possessions, since the payment of kesubah is derived from the payment of damages, as the Gemara derives this ruling there in Bava Kama 5a?It seems that the inherent kesubah payment has been changed, even if we hold that kesubah payment is Torah law. But why? In conclusion Tosfos is compelled to say that even if kesubah payment is mandated by Torah law, the Rabonon changed details of the payment for practical considerations. The initial step was to insure that the kesubah payment should not be an overly difficult financial burden. If it was, young men might try to avoid marrying besulos, in order to avoid the overly restrictive financial obligations.We can answer: That the reason the Rabonon amended the Torah laws of payment and were more lenient than the Torah law of payment would require is so that, people will not refrain from marrying [besulos] which might happen if they would have to sell their finest properties or their movable objects in order to pay a kesubah,3<i class="footnote">It is for this reason that the Rabonon did not want to leave the Torah law in place. They saw that making the financial burden so difficult would make besulos less attractive for their potential husbands.</i> [the Rabonon] were concerned that the financial burden should not be too difficult so that people should be desirous of marrying them.4<i class="footnote">Accordingly, they would have reduced the payment to the poorest quality. However, they did want the financial package to be attractive to a potential second husband and therefore did not reduce payment to the most inferior quality, but rather left it at the medium quality fields.</i>
  
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  He gives her from the money of Cappodicia. Tosfos initial assumption is that even if the Cappodician coinage is of greater value than Eretz Yisroel coinage, the actual amount of the payment of the kesubah is the same. We must calculate how much the fifty shekalim of the Torah equals in present day coinage and we give her that amount of money for her kesubah. If for example 40 Cappodician sela’im are worth the same as fifty Eretz Yisroel sela’im, which is the amount required by Torah law for kesubah, the payment will be forty Cappodician sela’im. Ultimately, there will be no difference in the amount of money received for her kesubah. It is with this understanding that Tosfos asks:This is bewildering! What benefit is it to her that he pays her [Cappodician] coinage? In any case, he will only give her the value of fifty shekalim, the amount required by the Torah. However, if we would say that one must always give her the shekalim of the place where they presently are, for example when they are in Cappodicia one must pay with fifty Cappodician shekalim, and when in Eretz Yisroel one must pay with fifty shekalim of Eretz Yisroel, it would make sense that she would gain when paid in Eretz Yisroel with Cappodician shekalim.Tosfos offers a precedent for paying a Torah obligation with the coinage of a particular time and place. as [the Gemara] says in regard to the five sela’im of redemption of the firstborn son in Perek Yesh B’chor (B’choros 50a): Rav Ashi sent Rav Acha son of Ravina seventeen zuz, which according to his calculation was a two gerah more than the one hundred gerah required by Torah law and he asked for a third of a zuz () change. Rav Acha sent Rav Ashi a message that the Rabonon had added to the required payment of one hundred gerah and it is now one hundred twenty gerah, which equals twenty zuz. He said: The Master should send us three zuz more, for [the Rabonon] have increased the required payment. Tosfos’ text in that Gemara is: Rav Ashi sent them. It appears that when there is an increase in the amount of a payment because of a change of currency, it is added to the payment required by the Torah. So too, if the shekalim of Cappodicia are of greater value than Eretz Yisroel shekalim, when in Cappodicia one must pay with Cappodician shekalim.However, this explanation, that one is always required to pay fifty of the shekalim of the place where he is located regardless of their value is not appealing. For there in B’choros 50a when they added eighteen gerah to the required payment of the redemption of the firstborn, it was added everywhere, but when it is added in one specific place, it does not appear that because the Cappodicians increased the value of their coins, that the measure of the Torah should change because of this.
  
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  Prostitutes were lying before him. Rav Nachman ruled that a man who claimed that his Kallah’s entrance was open must be flogged. He follows with the words - מברכתא חביטא ליה - literally, the prostitutes of this city Mevorachta were lying before him. There are two possible interpretations of these words.A) It is a rhetorical question. How did he become so knowledgeable about this subject? Did he visit all the prostitutes of the city? Certainly not. He is definitely not competent in this matter and must be flogged for defaming a Jewish daughter.B) It is an explanatory statement - his expertise must come from visiting prostitutes. He must be flogged for visiting so many prostitutes.The Gemara will speak of two seemingly conflicting rulings of Rav Nachman. We will refer to this ruling - that insists that the Chosson be flogged - as the first ruling. We will refer to the ruling where Rav Nachman says we believe him and does not speak of flogging as the second ruling. (Actually, the second ruling is quoted earlier at the beginning of the page, however, in the present dialogue it is second.)Tosfos will give us two explanations of this dialogue in the Gemara. The dialogue consists of four steps:1) Rav Nachman’s first ruling.2) A contradiction from his second ruling.3) An answer.4) Rav Acha’s alternative answer.In Tosfos’ first explanation the meaning of the words -  מברכתא חביטא ליה - change from one step to the next. In the second explanation these words will retain their meaning as an explanatory statement in all steps of the dialogue.Step 1):The Gemara’s initial understanding of Rav Nachman’s first ruling was that it is a rhetorical question: The explanation of Rav Nachman’s first ruling: Flog him because he is slandering a Jewish daughter, for he is lying - he definitely is incapable of determining that her entrance was open, since he is inexperienced in these matters. Rav Nachman asks rhetorically: Were the prostitutes lying before him so that he became an expert to determine that her entrance was open? Certainly that was not the case. Therefore, we do not believe him. Since we do not believe him, he is merely defaming a Jewish daughter and should be flogged.Step 2):The Gemara now attempts to disprove this ruling: But Rav Nachman said in a second ruling: We believe a husband who says that he found the entrance open. Obviously, he must have the expertise necessary to determine that her entrance was open.Step 3):[The Gemara] answers: We believe him that her entrance was open, but even so we give him lashes.But if the reason for flogging him is as we initially understood, that he is not competent to determine that her entrance was in fact open, why do we believe him? There must be a different explanation of Rav Nachman’s ruling that the young husband is flogged. At this point in the dialogue the statement -  מברכתא חביטא ליה- changes, it must be an explanatory statement, not a rhetorical question. Rav Nachman who said “flog him” said so not because he did not believe him for lack of expertise, but rather he did believe him and he said that he should be flogged because he was suspected of promiscuity. The statement - מברכתא חביטא ליה - is now explanatory: He must have visited the city’s prostitutes in order to develop his expertise.Step 4):The Gemara offers another interpretation of Rav Nachman’s position: Rav Acha answers that Rav Nachman’s ruling is to be understood as we initially thought that the reason he is flogged is because he is slandering a Jewish daughter and he is not an expert, the words  מברכתא חביטא ליה  - are a rhetorical question: Did he gain his expertise from visiting prostitutes? Certainly, he did not, therefore, we do not believe him. [Rav Nachman] in his first ruling is speaking about a single man who does not have any experience and we therefore consider him a slanderer. Rav Nachman’s second ruling that we do believe him is speaking about a man who was previously married.1<i class="footnote">See Maharam Schiff who explains that this first explanation of Tosfos first assumes that מברכתא חביטא ליה is a rhetorical question (step 1), then in the Gemara’s first explanation (step 3) it is an explanatory sentence and finally (step 4) Rav Acha explains it as a rhetorical question. This inconsistency causes Tosfos to offer a second explanation of the Gemara’s dialogue.</i>Tosfos now suggests an alternative explanation of the Gemara’s dialogue. In this approach the words -  מברכתא חביטא ליה - are an explanatory sentence. There is no need to change the basic understanding of the words -  מברכתא חביטא ליה- from step to step, they are consistently an explanatory statement.We can also say that [the words -  מברכתא חביטא ליה] are not a rhetorical question, rather explanatory.2<i class="footnote"> בניחותא - literally - calmly. It is not said with the intonation of a question. It is explanatory. I have translated the word according to the context in which it is used by Tosfos.</i>Step 1):Rav Nachman is explaining his ruling: The prostitutes of this city Mevorachta were lying before him. That is how he developed his expertise. Even though we do believe him that his kallah was not a betulah, flog him because he is suspected of promiscuity. His expertise must be the result of his promiscuous ways.Step 2):The Gemara now asks: But Rav Nachman said in a second statement we believe him and did not specify that we must flog him? It seems that all men even without having visited prostitutes have the needed expertise to determine that the entrance was open.Step 3):[The Gemara] answers: Rav Nachman in his second statement also meant: We believe him that her entrance was open and we flog him. However, Rav Nachman in his second statement was not discussing the flogging. In this second approach as well, Rav Acha offers another explanation of the seeming contradiction of Rav Nachman’s statements. Rav Acha simply says that the two statements of Rav Nachman are speaking about different people.Step 4):Rav Acha says: Actually when Rav Nachman in his second statement said that3<i class="footnote">See note 1. According to Maharam Schiff the benefit of Tosfos’ second explanation is that the words מברכתא חביטא ליה are consistently throughout the four steps of the Gemara (step 1, the question, step 3, the first answer and step 4, Rav Acha’s answer) an explanatory statement. If so, Rav Nachman’s first ruling according to Rav Acha is that if he is single, we believe him and flog him because he developed his expertise by visiting prostitutes. Rav Nachman’s second ruling is that if he is married, we believe him and he is not flogged. An argument can be made that Rav Acha is saying that we do not believe a single man at all as Rashi says, however it is difficult to explain Tosfos this way. My explanation of Tosfos second approach follows Rosh and Maharshal.</i> we believe [a husband who claims the entrance was open] that means there is no need to flog him and it is speaking of when he is a married man. Since he is married, he has the expertise to determine that her entrance was open from his personal life. If he is single, he could have only become an expert by visiting prostitutes and he is flogged.
  
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  A virgin, a widow, a divorcee, a <i>chalutzah.</i> The Mishna is enumerating a series of women who were betrothed and thus had the status of married women, but never lived with their betrothed as husbands and wife. This is referred to as a widow or divorcee from the  אירוסין-betrothal. They are presumed to be besulos. The Mishna adds a third woman who was also betrothed to her first husband, but was widowed and eventually received chalitzah from her brother-in-law. She too is presumed to be a betulah since she never lived with her husband as man and wife. Tosfos wonders why the Mishna includes a chalutzah in this list? After all, she is also a widow from betrothal, which has already been mentioned in the Mishna. Why should the chalitzah procedure make us think that perhaps she is not presumed to be a betulah?It is appealing to explain that chalutzah is mentioned because there is a novelty in this ruling. There is good reason to believe that perhaps we should not assume that she is a betulah as we do in the case of the women who were widowed or divorced from 1hxurht-betrothal. Since these women were not brought to the Chuppah, their husbands never had a legal right to live with them. This is not true of a chalutzah. The Yovom did have the right to cohabit with her. Once this right existed, perhaps we should no longer consider her a betulah, even though we believe that cohabitation did not take place.For it might enter upon our minds to say that since for a widow who is awaiting yibum it is not obligatory that she be brought to a Chuppah and consent to be married, for the rule is that her yovom may cohabit with her even against her will.And I might say that she is the equivalent of a married woman who was widowed after the Chuppah, where the woman is entitled to only one maneh for her kesubah. Even though we believe that cohabitation did not take place, since her husband had the right to live with her, we no longer assume that she is a betulah. So too a chalutzah, since her brother-in-law had the undisputed right to cohabit with her it is as if she was already brought to the Chuppah, and she might be entitled to only one maneh, therefore the Mishna must inform us that she is still assumed to be a betulah.Lexicon for this Tosfos:Chalitzah - procedure of the widow of a childless man removing her brother-in-law’s shoe and becoming free to marry whomever she pleases. In Talmudic times this was generally performed when the brother-in-law refused to take his brother’s widow as his wife.Chalutzah - is the widow who performs the chalitzah.Yibum - the procedure of the brother-in-law cohabiting with his brother’s widow.Yovo - is the brother-in-law.Maneh - one hundred zuz is the kesubah for a previously married woman, who is assumed not to be a betulah. The kesubah of a betulah is two hundred zuz.
  
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  The widow that is written in the Torah, what is there to say? The Gemara says that the etymology of the word אלמנה-widow is that she receives only one maneh for her kesubah. The Gemara asks: this makes sense during Talmudic times when the Rabonon instituted kesubah for a widow, but the word אלמנה already appears in the Torah prior to the rabbinic enactment of kesubah? If the etymology of the word is based on the maneh she receives for kesubah by rabbinic decree, why does the Torah refer to a widow as an אלמנה?Tosfos is perplexed that the Gemara acknowledges this argument as a reasonable question. Perhaps we should view the usage of the word אלמנה as proof that a widow is entitled to a kesubah by Torah law? But this cannot be said: that we should resolve from this question that the kesubah of a widow is a maneh by Torah law. Since we do find that the Torah uses this word and we have no explanation other than that it is a reference to the amount she receives for kesubah, we should conclude that this kesubah is in fact Torah law. But why not? Because the term maneh was non-existent in the days of Moshe, for the Torah only mentions the word ככר-kikar.1<i class="footnote">See Shemot 38, 24 - 29.</i> Since the word אלמנה is based on the word maneh, it could not have been referring to a coinage of biblical times.There seems to be a contradiction from a Gemara in Bechoros 5a. The Gemara there is discussing a perceived discrepancy in the Torah’s computation of the money collected for the Tabernacle by Moshe Rabbeinu. In the Gemara’s resolution of this discrepancy, it refers to a maneh, which according to Tosfos did not exist in biblical times. That which the Gemara says in Bechoros (5a)2<i class="footnote">See Artscroll Bechoros 5a2,3, notes 18-22 for the exact calculations.</i> when resolving the discrepancy in the Torah’s computation, Moshe Rabbeinu was both trustworthy and expert in calculations. If so, how do we explain the discrepancy? But the maneh coin used in the calculations of the holy temple was double the value of a regular maneh coin. This resolves the discrepancy, as is evident in the Gemara there, but we do see that the Gemara refers to a maneh as the coinage of biblical times. Tosfos has stated that there was no maneh in biblical times.This does not mean that there was a maneh coin in the days of Moshe, rather it is saying that just as the maneh coin of the holy temple was double the regular maneh coin in the times of Yechezkel as the Gemara demonstrates there in Bechoros, so too, the kikar coin of the holy temple was double the regular kikar coin in the days of Moshe.
  And Rav Yosef taught: Ashur, that is Seleucia. But did [that city] exist [then]? The Gemara demonstrates that we do find a verse in the Torah that uses a word that could not have been in use during the period the Torah is discussing. We must therefore conclude that the Torah uses words that would first make sense in the future. So too, the word אלמנה, even though its etymology is based on events that would first take place after the Torah was written, is used by the Torah.The word cited as proof is אשור -which usually refers to Assyria. The Gemara demonstrates that when the Torah uses this word, that place could not have possibly been called אשור, and even so the Torah uses that name because it would be called אשור in the future.Rav Yosef said that the place אשור discussed in the Torah is the city of Seleucia. The Gemara points out: Rashi explains: could this name, Ashur for the city Seleucia have been in existence when the world was created? Obviously not, there were no cities at the very beginning of creation. We must therefore conclude that words of the Torah, Ashur for the city Seleucia in Bereshit 2, 14, are used because they will eventually be called by that name in the future.Tosfos wonders why the Gemara must introduce Rav Yosef’s statement that the place אשור that the Torah is referring to is Seleucia. It would seem that the name אשור itself used in Bereishis 2, 14, which is the name of a person mentioned in Bereishis 10, 11, is sufficient proof that the Torah uses words and names of the future. Presumably, the land אשור was named for the person אשור, obviously the person אשור did not yet exist at the very beginning of Creation, which the verse is discussing in Bereshit 2, 14. Why does the Gemara refer to the Baraisa taught by Rav Yosef that אשור refers to Seleucia, when the name of the land אשור also proves that the Torah uses names of the future?But if not for Rav Yosef, who identified Ashur in Bereishis 2, 14, as the city Seleucia, from the word Ashur per se, and so too, from the word Kush (Bereishis 2, 13) which is presumably named after the person Kush, (Bereishis 10, 6) [the Gemara] could not have asked its question to prove that the Torah uses names of the future from the fact that the lands are called Ashur and Kush, because we could say that Ashur and Kush are names of regions and not the names of cities and those regions had those names from the beginning of the world. It is only because Rav Yosef identifies Ashur of Bereishis 2, 14, as the city Seleucia, which definitely did not exist at the time of creation that we see the Torah uses words that would first be relevant in the future.Tosfos will now present his difficulty with Rashi’s explanation of the Gemara. According to Rashi, the Gemara is arguing that the name Ashur for the city Seleucia, could not have been in use at the time of creation, because there were no cities at that time. This is definitely true, but it really does not adequately bring out the point the Gemara trying to make.Although the time period the Torah is discussing is the period of creation, the Torah was not written at that time. The Torah was written during the life of Moshe Rabbeinu. At that time the city of Seleucia was already in existence and could have been called Ashur. How does this prove that the Torah uses a word of the future? When the Torah was actually written those events were past, not future.But this is difficult! What is [the Gemara] proving from the use of the word Ashur? For although the city Seleucia which the Torah calls Ashur did not exist when the world was created, since it did exist in the times of Moshe, it is justifiably written in the Torah as a description of that city, but the word maneh, as the root of אלמנה because she receives only a maneh of one hundred zuz as kesubah, should not have been written, since it was not yet a coin in his generation?In order to answer Tosfos question, we must say that the Torah is speaking of events that had not yet happened when the Torah was written during Moshe Rabbeinu’s life and even so the Torah uses those words. It is appealing to R’I to explain that that the Gemara is asking - Was there a city by the name of Seleucia in the days of Moshe? This proves that the Torah uses words that are relevant only in the future, for it was known to [the Gemara] that the city Seleucia did not exist during the times of Moshe. Since that city did not yet exist during Moshe’s lifetime, his use of that word is based on what would eventually occur in the future. So too, the word אלמנה is used even though it would be relevant only in the future.But if the region known as Ashur did exist during Moshe’s lifetime, perhaps he was referring to the region and not to the city Seleucia? Tosfos rejects this hypothesis. Because it is around Seleucia that the Tigris flows and not near the region Ashur that existed in the times of Moshe. Since this is a geographical fact known to the Gemara, the use of the word Ashur as a description of the area where the Tigris flows must be based on facts that would occur in the future. So too, the word אלמנה used in the Torah, is based on the future.
  
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  Rav said: [if] one ate dates, he should not issue [halakhic] rulings. In parshas Shemini (Vaikra 10, 9) the Torah discusses various activities that are forbidden after one drinks wine. In that verse the Torah speaks of a Kohain doing the service in the Bais Hamikdosh. In verse 11, the Torah speaks of ruling in matters of Torah law and says that it is prohibited to do so after drinking wine. The exact expression of the Torah is יין ושכר אל-תשת - do not drink wine and שכר before doing the Temple service or ruling in matters of Torah. What exactly does the word שכר mean? The Gemara in Kereisus 13b cites a dispute of Tannaim about the meaning of this word.A) R’ Yehudah holds that שכר includes other means of becoming drunk, i.e. very sweet figs or dates can also cause a drunken stupor (especially for diabetics). By adding the word שכר we know that even when one is drunk not as a result of drinking wine, but because of ingesting other intoxicants, he is not permitted to do the service in the Bais Hamikdosh or to rule in matters of Torah.B) R’ Elozor holds that the word שכר does not come to include other intoxicants, rather it is qualifying the drinking of wine and saying that only when one drinks wine in the manner that it causes drunkenness is he liable. If he interrupts the drinking of the required amount or dilutes the required amount with a drop of wine, he is not liable.It emerges that there is a dispute among the Tannaim about whether the Torah prohibits one to rule when he is in a stupor caused by other intoxicants. R’ Yehudah prohibits, while R’ Elozor permits. Rav, who in our Gemara rules that one may not rule after eating dates seems to agree with R’ Yehudah. However, Tosfos finds that Rav rules like R’ Elozor in Kereisos 13b who holds that the Torah is not including other forms of becoming drunk. There seems to be a contradiction in Rav’s position.If you ask: but in the third Perek of Kereisos (13b) Rav says that we rule like R’ Elozor who holds that one is not liable for serving in the Bais Hamikdosh when intoxicated because of ingesting other intoxicants, rather one is liable for serving only after drinking wine. This contradicts Rav’s ruling here that one may not rule after eating dates.We can answer: even though R’ Elozor holds that one is not liable for the death punishment1<i class="footnote">The punishment for performing service while intoxicated is death by heavenly decree.</i> for entering the Temple, he is forbidden to rule in matters of Torah.2<i class="footnote">Tosfos in Kereisos 13b says that according to R’ Elozor the prohibition to rule when intoxicated by other intoxicants is rabbinic. The gloss both here and in Kereisos holds that Tosfos here disagrees and holds that even according to R’ Elozor, the prohibition of ruling when under the influence of other intoxicants is by Torah law. If so, we need to understand how Tosfos distinguishes between the prohibition of ruling and the liability for performing the temple service while intoxicated. See רמב"ם פ"א הלכות ביאת מקדש ה"ב who does in fact rule that one who performs the service when under the influence of other intoxicants is not liable for the death punishment but is liable for lashes. So too, the Rambam there rules in ה"ג that one may not rule in matters of Torah when under the influence of other intoxicants. See כסף משנה there who explains that the position of the Rambam is based on ruling in accordance with R’ Elozor. It emerges that according to Rambam there is a Torah prohibition against performing Temple service while under the influence of other intoxicants as it is forbidden to rule in Torah matters. Tosfos here may subscribe to the opinion of the Rambam.</i>Tosfos cites a Gemara in Bechoros 45b where it is evident that only R’ Yehudah holds that one is even liable for doing the Temple service while under the influence of other intoxicants, but even those who disagree with R’ Yehudah, hold that it is initially forbidden for a person under the influence of other intoxicants to perform the Temple service.The Mishna there lists a drunkard as one who is not allowed to perform the service, but does not disqualify the service post facto. The Gemara says that according to R’ Yehudah who holds that one is liable even for performing the service while under the influence of other intoxicant, the service should be disqualified as well. The Gemara there concludes that the Mishna follows the opinion of R’ Elozor who holds that one is not liable for performing the service while under the influence of other intoxicants, but even so it is initially forbidden to do so.So too, it is to be understood at the end of Perek Ailu Mumin (Bechoros 45b), that one is initially disqualified from performing the Temple service even according to the one who holds that one is not liable for death punishment when performing the service while under the influence of other intoxicants, even though he holds that post facto the service performed is not disqualified. So too, the rule is the same in regard to ruling in matters of Torah, even though R’ Elozor holds that the service is not disqualified post facto, initially one must not rule in matters of Torah.
  
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  [One] immerses him with the consent of the court because it is a benefit to him. Rav Huna tells us that the bais din will immerse a minor gentile for conversion, even though he does not have sufficient intelligence to make the choice to become Jewish himself. It is ultimately to his benefit to be a Jew and bais din acts in his behalf as a self-appointed agent to convert him since it is a benefit for him.Tosfos views the relationship between the minor and the bais din as a principal and an agent.1<i class="footnote">See Tosfos Sanhedrin 68b ד"ה קטן אי אתה צריך who offers an entirely different approach to our Gemara.</i> The bais din becomes the agent of the minor to perform the conversion for him. Thus we must view this agency of the bais din in the terms of any other type of agency and see if this agency satisfies the requirements needed to establish this relationship.In an analysis of how one’s courtyard can acquire movable objects for him, Rav Ashi concludes in Bava Metzia 12a, that the courtyard is considered an extension of one’s person when one is in close proximity to it. In such cases even when the acquisition is not beneficial to the recipient, such as a woman acquiring a divorce document, the courtyard will acquire the divorce document for a woman. However, when the owner is not in close proximity to the courtyard, it can acquire for him only if the acquisition is to his benefit.The Gemara there explains this phenomenon with almost the identical words that it uses here: דזכות הוא לו – זכין לאדם שלא בפניו - it is beneficial for [the recipient] and we may act in his behalf even in his absence. Earlier, the Gemara refers to this system of acquisition as שליחות - agency. Tosfos assumes that whenever the term זכייה - acting in his behalf is used, it is a form of agency and the rules governing agency are applicable.Tosfos examines the many regulations governing agency and finds that in this situation the requirements for agency are not satisfied.There are two requirements of agency that are not satisfied in our Gemara:A) One cannot be an agent for a minor.B) One cannot be an agent for a gentile.Tosfos first addresses the issue of agency for a minor: This is bewildering! For the process of zechiya is effective because the acquirer is considered an agent2<i class="footnote">Many Rishonim disagree with Tosfos and hold that zechiyah – to take possession of an object for the benefit of another person, is beyond the concept of agency and the limitations governing agency do not apply to zechiyah. See שיטה מקובצת.</i> of the beneficiary. For since it is beneficial to [the recipient] to acquire an object, we can bear witness3<i class="footnote"> אנן סהדי- literally - we are witnesses - a phrase commonly used throughout the ש"ס to indicate that a given idea is self understood.</i> that the recipient would have definitely designated the acquirer as his agent and the self-appointed agent can therefore act in his behalf, as is evident in the first Perek of Bava Metzia (12a), where the Gemara says concerning a courtyard, that it is included as a way of acquiring for its owner because it is similar to his hand when the owner is in close proximity to the courtyard, but it is not worse than an agent and even when a courtyard cannot function as a hand, i.e. when the owner is not in close proximity to the courtyard, it can function as his agent and acquire that which is beneficial to the owner. Since the Gemara refers to this process of acquiring via a courtyard as זכין, we see that this term is used when one is acting as a self-appointed agent of a beneficiary.If so, that the legal mechanism behind acquiring for the benefit of an absent beneficiary is because it is an extended form of agency, the rules governing agency should apply to acquiring, how can the bais din act for the benefit of a minor, but there is no agency for a minor, as [the Gemara] says in Aizehu Neshech (Bava Metzia 71b)?4<i class="footnote">The Gemara there clearly says that a minor cannot designate an agent to act in his behalf. The concept of agency is derived in the chapter of the Torah that deals with terumah. Terumah can be designated only by an adult as the verse says (Shemot 25, 2): From any man whose heart will cause him to donate - the word איש - a man connotes an adult. (See Rashi there ד"ה קטן).</i>It is evident that a minor cannot designate an agent. If zechiyah is an extension of the concept of agency, how can zechiyah be effective for a minor? How can the bais din act as self-appointed agents of the minor who is to be converted?Tosfos will now address the issue of agency for a gentile: Furthermore, the child being converted is still an idolater at the outset of the conversion process, and [the Gemara] says there in Bava Metzia 71b, a minor, who will eventually become eligible to have an agent, has zechiya - he can acquire via a self-appointed agent by rabbinic law. However, an idolater, who will never become eligible to have an agent does not have zechiya - even by rabbinic law.From the very same Gemara it is evident that an idolater cannot have an agent. Since Tosfos assumes that zechiya is an extension of the concept of שליחות - agency, the zechiya of our Gemara is extremely problematic, because it is being applied to a minor and an idolater. It is appealing to R’I that here as well the bais din is acting in behalf of the gentile minor by rabbinic law, as[the Gemara] says there - a minor has zechiya by rabbinic law. Here in regard to the gentile minor, his conversion will be valid only on a rabbinic level, but not for Torah matters.This resolves the issue of the convert being a minor, but what about the fact that he is a gentile? Even though he is still an idolater who does not even have zechiya by rabbinic law, because he will ordinarily never be eligible to have an agent, but in this case where we are about to convert him, he will eventually be eligible to have an agent and the rabbinic level of agency can be applied to him in this situation.Alternatively, since as a result of this zechiya he will become Jewish, it is as if he is an absolute Jew, insofar as zechiya is concerned.Tosfos’ conclusion that the conversion of a minor by bais din is only valid on a rabbinic level, engenders many difficulties. If you ask: How can he be a convert by rabbinic law and be permitted to marry a Jewish woman and his betrothal of her will legally be considered a valid betrothal, but by Torah law he is an idolater and he cannot acquire a wife since the bais din could not act as his agent to perform the conversion for him?At this point Tosfos sees no way that the conversion might be considered valid on a Torah level. We are compelled to say that even though the conversion is essentially rabbinic, it can override Torah law. How is this possible?There is general agreement that the Rabonon can tell us to violate Torah law passively. For example, when Rosh Hashanah is Shabbos, the Rabonon tell us to refrain from performing the mitzvah of blowing shofar. We are then passively violating the Torah, but the Rabonon are empowered to establish such a restriction. However, when the violation of the Torah would be an active violation, such as in this case where the Rabonon are recognizing the conversion, even though it does not satisfy Torah requirements and even so the convert may marry a Jewish daughter which is an active violation of Torah law, there is a dispute in Yevamot 89b. Some hold that the Rabonon are empowered even to legislate an active violation of Torah law and some disagree. According to their thinking, the Rabonon may only legislate a passive violation of Torah law.We can answer: that [Rav Huna] the author of this ruling holds like the one who says in Ho’eeshah Rabah (Yevamot 89b) that the Rabonon do have the power to uproot a Torah law by an active violation, such as in this case, where by recognizing the conversion, the convert will eventually do things that are prohibited for a non-Jew, such as marrying a Jewish girl, which is inherently a violation of Torah law.The legal machinery exists for recognizing this rabbinic level conversion. But the Gemara asked: what is Rav Huna teaching us with this ruling? Isn’t this ruling a novelty because it is based on the opinion of those who hold that the Rabonon are empowered to legislate even an active violation of Torah law? When [the Gemara] asked: what is [Rav Huna] teaching us? [The Gemara] could have answered that [Rav Huna] is informing us that the Rabonon are empowered to legislate laws that even actively uproot matters from the Torah such as an idolater marrying a Jewish woman. But why didn't the Gemara use this answer instead of the answer that Rav Huna is teaching us that it is a benefit for the minor idolater to become a Jew? [The Gemara] answered only one of the two answers that could be answered. The Gemara doesn't need to give every conceivable answer to a question. The Gemara is often satisfied with the one answer it actually uses.According to the Gemara in Sanhedrin 68b, the verse in Bamidar 5, 8, speaks of a young convert who is considered a convert by Torah law. Tosfos has taught us that the conversion of our Gemara is inherently rabbinic. If so, how is it possible that there is a Torah level conversion of a minor? That which [the Gemara] says at the beginning of Ben Sorer Umoreh (Sanhedrin 68b) in regard to objects stolen from a convert that are to be given to the Kohanim when the convert has passed away without leaving any heirs, The Gemara explains the verse (Bamidbar 5, 5) that discusses this issue as follows: If the man has no heirs - if he is an adult man, you must investigate him to determine if he has an heir, since he is an adult male, even though he has no blood relatives, it is possible that he fathered children who are his heirs, but if he is a minor, it is not required to investigate whether he has any heirs. He definitely does not have any heirs, because he has no blood relatives and as a minor he could not have possibly fathered any children.We see from this Gemara that a minor convert who possessed wealth that was stolen from him does in fact exist. But Tosfos has concluded that conversion of a minor is only possible on a rabbinic but not Torah level, what type of minor convert is the verse discussing? It is possible that there is a Torah level minor convert, via a pregnant idolater who converted, as [the Gemara] says in Perek He’orel (Yevamot 78a) - a pregnant idolater who converted, her son who was a fetus at the time of conversion does not require immersion to become Jewish. His mother’s immersion is effective for him, because he is comparable to the leg of his mother that was immersed in the mikvah as part of the mother. So too, the fetus is a part of the mother and has already been immersed. He is a convert through his mother’s conversion.He is a Torah level convert, for he is absolutely Jewish, and he may possess property by Torah law, for example when he inherits his mother. Even though as a minor he cannot acquire property by Torah law, he can acquire property via inheritance, and you need not investigate to determine whether he has heirs, because he has no heirs. Since he is a minor, he cannot father children.But his mother may have other children, who might inherit him? His brothers via his mother do not inherit him.We now have a situation that satisfies the conditions of the verse in Bamidbar 5, 8.A) A convert via his mother’s immersion is a convert by Torah law.B) He may possess assets by inheriting his mother. These assets may have been stolen from him.C) There is no need to investigate whether he has heirs, because as a minor, he cannot father children. His maternal brothers do not inherit him.Tosfos now revisits the Gemara in Bava Metzia 71b where he deduced that zechiya for a minor is rabbinic and not Torah law. It is because of that Gemara that Tosfos was compelled to conclude that the conversion of our Gemara is merely rabbinic. This engendered many difficulties as we learned earlier. Tosfos now concedes that there is a variant text of that Gemara, which indicates that zechiya for a minor is in fact Torah law. This, of course, relieves us of the need to state many rather cumbersome solutions.According to the manuscripts who have the text in Bava Metzia (71b) in regard to a minor, even though he cannot have an agent, however zechiya, he does have and they do not have the text “by rabbinic law”, it is easier to understand the mechanism of our Gemara. For we can say that [a minor] has zechiya by Torah law and a minor idolater since he comes to convert, we consider him like a Jewish minor. Since a Jewish minor has zechiya by Torah law according to this text in the Gemara of Bava Metzia 71b, a minor idolater who is comparable to Jewish minor, who is presently about to become a Jew as mentioned earlier, also has zechiya by Torah law and his conversion is of a Torah level. We will not be compelled to say that the conversion is rabbinic and that the Rabonon are empowered to override Torah laws by active violations.Tosfos still maintains that zechiya is an extension of the power of designating an agent. How does that concur with the conclusion of the variant text of Bava Metzia 71b? Even though zechiya is an extension of the concept of agency and [an idolater] does not have agency by Torah law, that is so only in matters where there is some slight negative involved by the self-appointed agent such as when the self-appointed agent is designating terumah for the benefit of the owner of the produce without the owner’s knowledge, because perhaps [the owner] of the produce that is being tithed would have wanted to relieve his obligation to designate terumah with only one kernel of wheat or perhaps he would have wanted to designate superior produce as the terumah, but here, in the case of converting a minor, which is an absolute benefit for him, he can have an agent work in his behalf.
  
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  Lest you say: [with regard to] a gentile, licentiousness is preferable for him. The Gemara suggests that the novelty of Rav Huna’s ruling is that we might think that becoming a Jew is not truly a great benefit, because as an idolater he may lead an immoral lifestyle, whereas as a Jew he is bound to many inhibiting laws. Rav Huna needs to inform us that even so, it is a benefit to be a Jew and the bais din may act in behalf of a minor and convert him.The subject of whether becoming a full fledged Jew and leaving an immoral lifestyle is beneficial to a person or not, is actually discussed in a Mishna in Gittin 11b. The issue discussed in the Mishna there is whether a third party can accept a bill of emancipation for a slave. The slave will become a free man, but he will also be obligated to keep all mitzvot, including those inhibiting ones that relate to family life. It is the subject of a dispute between R’ Meir and the Rabonon. The Rabonon are of the opinion that it is a benefit for a slave to be freed and therefore a third party can accept the bill of emancipation for the benefit of the slave. R’ Meir disagrees. He holds that it is detrimental for the slave to be freed, because he can no longer lead an immoral lifestyle.It seems that the Gemara’s suggestion about the novelty of Rav Huna’s ruling is the subject of a dispute between R’ Meir and the Rabonon. According to the Rabonon, there is no novelty in Rav Huna’s ruling, because they believe that one can accept a bill of emancipation for a slave. They obviously hold that even though one is presently leading an immoral lifestyle, it is still a benefit to be come a law-abiding Jew. If so, what is the novelty of Rav Huna’s ruling?Even though the Rabonon disagree with R’ Meir in the first Perek of Gittin (13a) and do not hold of the rationale that a slave prefers an immoral lifestyle, because they hold that one can accept a bill of emancipation for a slave. They obviously hold that becoming a law abiding Jew is a total benefit despite the fact that the slave can no longer lead an immoral lifestyle. If so, what is the novelty of Rav Huna’s ruling?Tosfos will distinguish between a slave and an idolater. That opinion of the Rabonon has been said in regard to a slave, who is not concerned with the loss of his immoral lifestyle, because on the other hand he is being freed from bondage. His freedom is worth the price of giving up his immoral lifestyle.However, concerning an idolater who is not in bondage, he may prefer an immoral lifestyle as opposed to the many restrictions of Jewish family life. Since he is not gaining any personal freedom by the conversion, it is not beneficial for him, even according to the Rabonon. Rav Huna must inform us that even so, it is decidedly a great benefit to become Jewish and the bais din may act on behalf of a minor idolater who has not yet experienced an immoral lifestyle.The Gemara will soon cite proof to Rav Huna’s ruling that the bais din may act in behalf of a minor who is an idolater. Our Mishna speaks of a young girl who became a convert before she was three years old. How did she become a convert at that age? It must be that Rav Huna’s ruling is correct and bais din may act in behalf of a minor idolater.However, if we should say that according to the Rabonon of Gittin 11a, it is always beneficial for an idolater to become Jewish even though he is losing his right to an immoral lifestyle, how can this Mishna be cited as proof to Rav Huna? The Baraisa may hold like the Rabonon who say that even for an adult it is a benefit to become Jewish. There is no proof that even if we hold that it is not beneficial for an adult to be converted, it is beneficial for a youngster. Obviously, the Gemara does not even consider the possibility that the Rabonon hold that it is beneficial for an adult to be converted. Even the Rabonon who hold that it is beneficial for a slave to be freed, do not hold that it is beneficial for a free idolater to be converted.And so it appears, that even according to the Rabonon of Gittin 11a, it is not beneficial for an adult idolater to become Jewish. For if you would say otherwise, that the Rabonon hold that for all adults, even those who are free, it is beneficial to become Jewish, how can [the Gemara] cite the Mishna about the young convert as proof that a youngster can be converted, perhaps that Baraisa follows the opinion of the Rabonon who do not hold that even an adult idolater prefers an immoral lifestyle, thus, a minor can certainly be converted.However, according to R’ Meir who holds that it is detrimental for an adult slave to be converted, perhaps that extends even to a minor. Since the Gemara does consider the Mishna that speaks of the conversion of a youngster as valid proof that a minor can be converted, obviously there is no opinion at all that holds that for an adult it is also beneficial to become Jewish. Even the Rabonon agree that for an adult idolater it is detrimental to become Jewish. The Mishna is speaking specifically of a minor and is saying that for a minor who is not yet accustomed to an immoral lifestyle, it is definitely beneficial to become a Jew.
  
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  However [for] a minor, it is a benefit. Our Gemara has stated there is general agreement that for a minor it is definitely a pure benefit for him to become a law-abiding Jew. We must revisit the Mishna in Gittin 11b, where it seems that R’ Meir holds that becoming a Jew is not entirely a benefit and that the system of zechiyah is invalid for freeing a slave, because he will be obligated to abide by all of the mitzvot. Tosfos needs to explain that R’ Meir’s opinion is only true in regard to a grown slave, but not for a minor.But that which we learned in a Mishna in the first Perek of Gittin (11b) - concerning a man who says: Give this bill of divorce to my wife and/or this bill of emancipation to my slave, and before the divorce or the bill of emancipation were delivered he wants to retract both or either of them, he may retract. These are the words of R’ Meir. The agent does not automatically take possession of the divorce or the bill of emancipation for the benefit of the woman or the slave via the process of zechiyah, because R’ Meir does not consider a divorce or a bill of emancipation to be a definite benefit for the recipients. The documents are not effective until they reach the hands of the woman or slave. That Mishna is speaking about a grown slave, who already has sampled sin in his life, it is difficult for him to give up the physical pleasures of a sinful life, but in the case of a minor, R’ Meir acknowledges that becoming a Jew is a benefit for him, for he does not prefer an immoral lifestyle as the Gemara says here, because he has not yet sampled a life of sin.According to this first explanation, we must say that when R’ Meir speaks of a slave, he is not referring to all slaves, because for minors it is definitely beneficial to become free and Jewish. Tosfos searches for an explanation where the word “slaves” is applicable to all slaves, even minors. Alternatively, that Mishna is speaking even about a slave who is a minor, and when for example he belongs to a Kohain, for it is a detriment to him that he goes out free, because he loses the right to eat terumah. As the slave of a Kohain he may eat terumah, which would increase his chances of survival during hunger years, since he may eat things that others may not. When freed, he is no longer the property of a Kohain and may not eat terumah, thus reducing to some extent the food supply previously available to him.
  
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  When she becomes an adult. In response to the question - if the minor convert can protest his or her conversion, how can one be forced to pay a fine to a convert, she may protest her conversion and she will use that money when she is an idolater, the Gemara answers: we will give her the money only when she becomes an adult and has not protested. She will then not be allowed to protest her conversion any longer.The simple understanding of these words seems to be that the rape or seduction occurred earlier and we will postpone the payment until she becomes an adult, as it is in the case of the kesubah, where one may divorce his wife while she is yet a minor and we will postpone payment of the kesubah until she becomes an adult.Tosfos will show that this is impossible, because she is entitled to collect the fine only when the rape or seduction occurs after she already has become a na’arah. If you ask: How can the Gemara say that we will give her the penalty money only when she becomes an adult, but she must already be a na’arah since she is eligible to collect the fine? She must already be twelve years old, otherwise, she would not be entitled to collect a fine. The fines of seduction and rape are paid only to a na’arah and not to a minor or a bogeres. If she is entitled to the fine, she must already be a na’arah, how can the Gemara say that she will be paid when she becomes an adult, she must already be an adult?R’I explains: although the rape or seduction must take place after she is twelve years old, the payment will be postponed till she has become an adult and practiced Judaism. If she was seduced or raped immediately upon becoming twelve years old, before she had the opportunity to actively practice Judaism, she will not be allowed to collect the fine until she actually fulfills a mitzvah or avoids a negative commandment. When the Gemara uses the phrase - when she becomes an adult- it means that she passes the point when she can no longer protest her conversion.<u>Lexicon</u> -נערה - a young lady between the age of twelve and twelve and a half years. At the age of twelve a young lady is an adult as far as all mitzvot of the Torah are concerned. In regard to physical development there is yet another stage, at twelve and a half years of age she becomes a bogeres.
  
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  Abaye did not state as [did] Rava; so that the sinner should not benefit. Rav Yosef ruled that a minor who was converted may protest upon becoming an adult, and revert to being a non-Jew. Abaye and Rava both objected to Rav Yosef’s ruling by citing Mishnayos that indicate that financial payments are to be made to such young converts.Abaye asked his question from the Mishna that says a kesubah is to be paid to a young convert. Rava asked his question from the Mishna that says a young convert is to be paid the fines for seduction or rape. The Gemara eventually says that Abaye did not consider the Mishna that rules that the penalties for rape and seduction are to be paid to young converts as a contradiction to Rav Yosef, because the Rabonon would want the violator to pay even if the victim eventually reverts to non-Judaism, because we do not want the sinner, who raped or seduced a young lady, to benefit from her reversion to her previous faith. Even though he is technically not liable to pay if it turns out that she reverts to her previous faith, the Rabonon would want him to pay anyway.It is to be understood that Rava who did base his question on the Mishna that rules that a young convert must be paid the fines for rape or seduction, does not hold of the rationale that the Rabonon would insist that the rapist or seducer must pay even when technically not liable, so that the sinner should not benefit from the reversion of the young convert to being a non-Jew.Tosfos will now show that this rationale is employed elsewhere. If so, how will Rava, who does not subscribe to this rationale, resolve the issues where the Gemara does use this logic?Tosfos cites a Gemara in Bava kama 38b, where the Gemara uses the reasoning - that a sinner should not benefit - according to R’ Meir. The Gemara there is discussing the legal status of the Cuthean people who were brought to Eretz Yisroel by the Assyrian king.Some are of the opinion that although they converted outwardly, they are not truly converts because they did so not out of conviction but because they feared the lions that were attacking them as mentioned in Melachim 2, 17, 24 - 41. R’ Meir holds that their conversion was a true conversion and technically they are Jews. Even so, R’ Meir rules that when a Jew damages a Cuthean he is not obligated to pay. The Gemara says that this was legislated in order to prevent Jews from intermingling with the Cutheans.This is difficult! For [the Gemara] says in Perek Shor Shenogach Arba’ah v’Chamishah (Bava Kama 38b): R’ Meir holds that Cutheans are true converts and thus should be entitled to be paid when damaged by a Jew, however R’ Meir instituted a penalty upon their money and treated them as idolaters insofar as a Jewish owned ox that gored a Cuthean owned ox is concerned. They insisted that when a Jew damages a Cuthean, he is entirely exempt from payment and when a Cuthean damages a Jew, even if his ox is a tam and by right should only need to pay half damages, he is required to pay full damages. Why were they treated so? So that [the Jews] should not intermingle with [the Cutheans], since the Cutheans did in fact practice idolatry.[The Gemara] raises a contradiction from a Mishna in Kesubos 29a: These are the ne’aros who are eligible to receive penalties when raped and seduced: included among them are, one who cohabits with a Cuthean na’arah. But if R’ Meir placed a penalty upon their money, so too, he should penalize the Cuthean woman, and the rapist or seducer should not have to pay the fine?[The Gemara] there answers: that here in the case of the Cuthean woman who was raped or seduced, [R’ Meir] did not want to penalize the Cuthean woman and free the rapist or seducer from paying, so that the sinner should not benefit. Even though there generally is a penalty imposed on the Cuthean people, that they are treated as idolaters insofar as damages are concerned, R’ Meir does not impose this penalty on victims of rape or seduction so that the perpetrator will not benefit from the penalty imposed against the Cutheans.The conclusion of the dialogue in Bava Kama 38b, presents difficulties to Rava’s position here. Now, according to Rava who does not hold here in Kesubos 11a, of the rationale that a perpetrator should not benefit from the possible retraction of a young lady from her conversion, how will he resolve the difficulty raised in the Gemara there in Bava Kama 38b. Why does one who rapes or seduces a Cuthean woman have to pay the penalty if we do not subscribe to the principle - that a perpetrator should not benefit?In order to resolve this difficulty, Tosfos must now examine the true status of each of the required payments that are under discussion. We are now concerned withA) the payment of fines by a rapist or seducer to a Cuthean womanB) the payment of damages to a Cuthean and the obligation of a Cuthean to pay a Jew,C) the payment of fines for seduction and rape to a young lady who reverts to her non-Jewish status.Tosfos demonstrates that there is an inherent difference between the financial payments due to Cutheans and the obligation to a convert who reverts to idolatry. As mentioned in Bava Kama 38b, R’ Meir’s opinion is that the Cutheans are truly Jews and are to be treated as equals in all financial matters. It is because of their behavior, practicing idolatry, that R’ Meir imposes a penalty on their money and treats them not as Jews, but as idolaters. This is of course a rabbinic ruling that invalidates their Torah status.However, a young convert who renounces her Judaism is not entitled to collect the fines by Torah law at all. Thus there is a huge difference between the two cases. We can answer: There in the case of the payment for rape and seduction of Cuthean women Rava correctly holds this reasoning that a perpetrator should not benefit, since by letter of the law they should receive the fines for they are truly converts, but the Rabonon wanted to penalize them since they practice idolatry and treated them as idolaters, in this case it is logical that because of the reasoning of “a perpetrator should not benefit” we reinstate the original status of the Cutheans and they collect the penalties when raped or seduced.However, here in the case of the young convert who might revert to her idolatry, Rava holds that we should not pay her the fines, because of the logic that “a perpetrator should not benefit”, since by letter of the Torah law she is not entitled to it because she will absolutely be an idolater if she protests her conversion. Whereas when one pays the fines for rape and seduction to a Cuthean woman, he is paying them what they are entitled to receive by Torah law, when paying the young convert those very same fines, he is paying her what she is not entitled to receive by Torah law. We use the rationale “that a sinner should not benefit” to pay the Cuthean what she is truly entitled by Torah law, but not to pay a young convert, what she is not entitled to receive by Torah law.Tosfos cites another Gemara in Perek Eilu Ne’aros 36b, where it seems that Rava agrees with the logic that “a perpetrator should not benefit”. The Gemara there discusses the opinion of R’ Yehudah who says that even when a young girl was captured by idolaters and there is a doubt about whether she was raped by her captors or not, she is to be paid the fines for rape and seduction. If she was raped by her captors, she is not a betulah and thus not entitled to the fines for rape and seduction. It seems that we may assume that she was not raped.R’ Yochanan says that R’ Yehudah is of the same opinion as R’ Dosa who holds that if a young daughter of a Kohain, was captured by idolaters she is permitted to eat terumah. If she was raped, she would be disqualified from eating terumah. We assume that she was not raped by an idolater captor. So too, R’ Yehudah who holds that she is entitled to collect penalties assumes that she was not raped by an idolater and she should be permitted to eat terumah.Rava disagrees with R’ Yochanan. He says that R’ Yehudah might agree that there is a reasonable doubt that the captured girl might have been raped and she should not be allowed to eat terumah. R’ Yehudah who insists that she be paid the penalties for rape and seduction, says so only so that “the perpetrator who raped or seduced the young lady should not benefit”. Rava clearly seems to hold of this rationale and it seems to contradict his position in our Gemara, where he holds that the reasoning “that the perpetrator should not benefit” does not apply when the victim might revert to idolatry.In Perek Eilu Na’aros (below 36b) where Rava holds that R’ Yehudah requires the rapist or seducer of a na’arah who had previously been captured by idolaters to pay the fines, even though there is a reasonable doubt that she may no longer be a betulah and thus not entitled to these fines, Rava subscribes to the reason, “so that the perpetrator should not benefit”, which seems to contradict Rava’s position here?Once again we must look at her status by strict Torah law: That is because by Torah law we place her on the chazakah of her sanctity. She definitely was once a betulah and eligible to collect fines, there is a possibility that her status changed. The rule of chazakah says that she has maintained her sanctity and is still eligible to collect fines, and we must therefore pay her those fines. As far as allowing her to eat terumah is concerned, we might be more stringent and impose a rabbinic prohibition on her to prohibit her from eating terumah. We will not impose a similar rabbinic ban to prevent her from collecting fines, so that the perpetrator, who seduced or raped her, should not benefit.
  
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  Shmuel said: [A woman is] not [like one] injured by wood [through] flesh. Our Mishna discusses three cases where a woman is no longer fully a betulah. We are presently discussing the second case. A woman had relations with a young boy less than nine years old. According to Torah law, such physical relations are not considered relations at all. Even if she was a married woman or a prohibited relative of the young boy, she would not be liable for any punishment. This does not mean that the physicality of relations did not occur. They definitely did occur, but they have no legal status.The question in our Gemara is whether the physical relations she had with the young boy affect her status as a betulah. Rav says that even though they have no validity as far as punishing her are concerned, she is treated as a woman who was ‘injured by wood’ since she did have relations with the young boy. Rashi says that this has two repercussions:A) She is entitled only to a kesubah of one hundred zuz according to the Rabonon who disagree with R’ Meir in our Mishna.B) A Kohain Gadol may not marry her, just as he is not allowed to marry a woman who was ‘injured by wood’ in her private parts.Shmuel disagrees with Rav. He says that one does not attain the status of ‘injured by wood’ via flesh. She was not ‘injured by wood’. She had relations with a young boy. She is either a non-virgin or a betulah, but not ‘injured by wood’.Tosfos insists that Shmuel’s ruling is true only when there was no physical change in her body as a result of cohabiting with the young boy. However, if she was physically affected, for example her hymen was ruptured, she definitely has the status of ‘injured by wood’. [The Gemara] is speaking of when the young boy did not rupture her virginity. Her physical condition remained intact after her relations with the young boy, but if he did rupture her virginity, why should her status be worse than a girl who was ‘injured by wood’?
  
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  [According] to the Rabbis, [if] he was aware of her [condition she receives her] portion; [if] he was not aware of her [condition she receives] nothing. The Gemara refuted Rami bar Chama’s opinion that both R’ Meir and the Rabonon agree that if the Chosson was unaware that his Kallah was ‘injured by wood’, it is an acquisition in error and he owes her nothing. The Gemara presented a Mishna which clearly indicates that if the Kallah was found not to be a betulah but ‘injured by wood’, she is entitled to some kesubah.Rava says that according to R’ Meir there is absolutely no reduction of the kesubah of a young lady ‘injured by wood’. Whether the Chosson knew of her condition or not she is entitled to collect two hundred zuz - the kesubah of a betulah. The Rabonon hold that she is equivalent to a non-virgin. If the Chosson was told that she was ‘injured by wood’ she receives one hundred zuz. If he was unaware of her condition, she receives nothing, because this was an acquisition in error.Eventually, Rava will change his position and say that no matter whether the Chosson was aware or unaware of her condition she is entitled to receive one hundred zuz. Tosfos needs to explain why the Gemara initially assumed that it is more logical that when unaware of her condition she receives nothing because it is an acquisition in error and why ultimately Rava holds that even when unaware of her condition she is entitled to one hundred zuz.If we should accept the first version of Rava, that when the Chosson was unaware of her condition that she was injured by wood, she is entitled to nothing, the Mishna quoted to indicate that even when the Chosson was unaware, she is entitled to kesubah cannot follow the opinion of the Rabonon. The Mishna that indicates that even when the Chosson was unaware of her condition, she is entitled to kesubah follows the opinion of R’ Meir and not the Rabonon. According to Rava’s original statement the Rabonon hold that when the Chosson was unaware of the Kallah’s condition, she is entitled to nothing.We now have an additional motivation to say that according to the Rabonon, even when unaware of her condition she is entitled to at least one hundred zuz, so that the Mishna which indicates that she is entitled to receive kesubah may follow the Rabonon as well. If you ask: Why does [the Gemara] at the outset of this conversation not say that according to the Rabonon, whether he was aware or unaware of her being ‘injured by wood’ she receives one hundred zuz as [the Gemara] does say at the conclusion of this discussion, and the Mishna that indicates that even when the Chosson was unaware of her condition she still collects, will come out according to all opinions. Both R’ Meir and the Rabonon would then hold that even when unaware of her condition she is entitled to the same kesubah as if he had been aware.We can answer: Rava is uncomfortable with saying so. For since the Rabonon treat her as a non-virgin when he is aware of her condition, when he is unaware of her condition it is as if he brought her to the Chuppah assuming that she was a betulah and she was found to be a non-virgin. He holds that she would receive nothing in that case. Since he holds that a young lady ‘injured by wood’ is the same as a non-virgin, logic dictates that when he was unaware of her condition, she is entitled to nothing, just as she would be entitled to nothing if she was found to be a non-virgin.In the conclusion of our discussion the Gemara retracts and says that Rava does hold according to the Rabonon as well that even when the Chosson was unaware of her status, she is entitled to one hundred zuz. What changed?In the conclusion of our discussion when the Gemara is compelled to say that Rava holds even according to the Rabonon that when the Chosson was unaware of her condition she is entitled to one hundred zuz, the thinking is that the comparison to a non-virgin is only insofar as one hundred zuz is concerned, but it is not considered an acquisition in error as a non-virgin is, because the Chosson is not so particular about his Kallah being ‘injured by wood’ as he is when she is a non-virgin that it should be an acquisition in error.
  
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  Rava retracted that [statement]. The Gemara concludes that Rava retracted his original statement that the Rabonon hold that when the Chosson was unaware of the Kallah’s condition, she is entitled to nothing. Ultimately, Rava says that even when the Chosson was unaware of her condition she receives a kesubah of one hundred zuz.A proper analysis of the Gemara shows that Rava did not retract because of a logical argument that convinced him that his thinking was incorrect. Rather, his new position is the result of an apparent conflict between a Baraisa and a Mishna. In order to resolve the conflict, Rava was compelled to say that the Baraisa ruled that a young lady who was ‘injured by wood’ is entitled to one hundred zuz even when the Chosson was unaware of her condition.Let us review the Baraisa in question: The Baraisa does not clearly say that one ‘injured by wood’ collects one hundred zuz. The Baraisa as initially introduced said that when a woman was found not to be a betulah and witnesses testified that she had committed adultery after betrothal she is entitled to a kesubah of one hundred zuz. The Gemara argued that this is impossible because in that case she is put to death and certainly does not receive any kesubah at all. The Baraisa was emended to read that there are two cases:A) If she committed adultery after betrothal, she is put to death.B) If it was discovered that she had been promiscuous before betrothal, she receives a kesubah of one hundred zuz.The Gemara comments: According to this understanding of the Baraisa, if one married a woman believing that she was a betulah and then discovered that she was not a betulah, she receives one hundred zuz.The Gemara then introduces a Mishna that refers to this very same situation as an ‘acquisition in error’. This seems to mean that she is entitled to no kesubah at all. Some argue that ‘acquisition in error’ can mean that she is not entitled to two hundred zuz, but she does collect one hundred zuz. Rava disagrees vehemently. He maintains that ‘acquisition in error’ definitely implies that she is entitled to no kesubah at all. But if so, how are we to understand the Baraisa that after emended says that she is entitled to one hundred zuz? Rava resorts to a second correction of the Baraisa. The Baraisa is to read:A) If she committed adultery after betrothal, she is put to death.B) If she was promiscuous before betrothal, she receives no kesubah at all.C) If she was found to be ‘injured by wood’ she receives one hundred zuz.This third case (C) was added to the Baraisa because the Baraisa does indicate that there is at least one instance where a Kallah will receive one hundred zuz when she was discovered not to be in perfect condition. Initially the Gemara thought that it refers to when a supposed betulah was found to have been promiscuous. This was refuted from the Mishna which refers to the case of a betulah found to be a non-virgin as an ‘acquisition in error’.In order to reconcile the Baraisa with the Mishna that refers to finding an assumed betulah to be a non-virgin as an ‘acquisition in error’, Rava is compelled to make a second correction of the Baraisa and say that there is a third case in the Baraisa, C) one ‘injured by wood’ is entitled to one hundred zuz.This conclusion is not the only option. As mentioned earlier, there are those who hold that the term ‘acquisition in error’ might mean that she loses one hundred of the two hundred zuz kesubah. According to them, we are not compelled to say that there is a third case in the Baraisa. The Baraisa may contain only two cases:A) That of the woman who committed adultery after betrothal andB) one who was promiscuous before betrothal.C) One ‘injured by wood’ is not mentioned at all.We must understand why the Gemara is certain that Rava retracted his position that an assumed betulah who was found to be ‘injured by wood’ collects nothing. Perhaps he retracted his understanding of the Mishna which says that when an assumed betulah is found to have been promiscuous she is entitled to nothing and agree with those who say that it means she loses one hundred of the two hundred zuz? Why is the Gemara so certain that Rava retracted his first statement?However, [the Gemara] does not attempt to say that he retracted from this second statement that one assumed to be a betulah who was found to be a non-virgin receives nothing, because the phrase used in the Mishna to describe this situation ‘acquisition in error’ is to be understood as absolute.1<i class="footnote">See מהרש"ל who introduces his question on Tosfos as “a great question”. A simple reading of Tosfos seems to be saying that if Rava retracted from his position about an assumed betulah who was found to be promiscuous and ruled that she collects one hundred zuz, we could then say that Rava need not retract from his first statement that one ‘injured by wood’ is entitled to nothing. This, argues מהרש"ל is impossible, for if Rava was to hold that a young lady who was not a betulah because she was promiscuous is still entitled to one hundred zuz, even when the Chosson was unaware of her condition, how could Rava possibly hold that if she was found to be ‘injured by wood’ she is entitled to nothing? Certainly, one ‘injured by wood’ is entitled to receive at least as much as a young lady who lost her virginity promiscuously? Almost all major commentators deal with this question. All agree that there is no simple solution. מהרש"ל suggests that Tosfos does not mean that all young ladies who lost their virginity promiscuously would be entitled to one hundred zuz even if the Chosson was unaware of their condition. If there was evidence that they were promiscuous prior to betrothal they would certainly not be entitled to one hundred zuz. Tosfos is saying that the Mishna might be referring to isolated situations where the Chosson says that she was promiscuous and the Kallah denies it and claims that she was not, since the bais din is unsure about who is telling the truth, we might rule that she collects one hundred zuz. This would not contradict Rava’s ruling that one ‘injured by wood’ collects nothing if the Chosson was unaware of her condition. See  מהרש"א, מהר"ם, מהר"ם שי"ף and פני יהושע for their answers to this question. It is interesting to note that תוספות הרא"ש begins his notes with the exact same words as Tosfos. He then adds “and furthermore even if Rava was to hold that when he married her assuming she was a betulah and then discovered that she had been promiscuous, she is entitled to one hundred zuz, he could not possibly hold that when it was discovered that she was ‘injured by wood’ she receives nothing. For people are certainly more repulsed by one who had promiscuous relations with a man, than by one ‘injured by wood’. It is evident that רא"ש was aware of the difficulty of Tosfos’ proposal that Rava might emend his position about a promiscuous woman and dealt with it accordingly. It is not clear whether רא"ש is explaining our Tosfos or disagreeing with it.</i> In Rava’s mind there is no room for the interpretation that she loses only one hundred of the two hundred zuz.Tosfos examines another option that would have resolved the contradiction between the Mishna and Baraisa without requiring Rava to change his opinion that the Rabonon hold that a young lady ‘injured by wood’ collects nothing. If you ask: How do we know that Rava retracted from his statement that according to the Rabonon, if the Chosson was unaware of her being ‘injured by wood’ she receives nothing. Perhaps we should say that he retracted from his statement that when [the Chosson] was unaware that she was ‘injured by wood’, according to R’ Meir she receives two hundred zuz?Rather, we could explain that Rava’s retraction was that R’ Meir holds if [the Chosson] was unaware of her condition she receives one hundred zuz and we would construe statement (C) of the emended the Baraisa as the opinion of R’ Meir. Rava could then continue to hold that according to the Rabonon a young lady ‘injured by wood’ receives nothing. Why are we so sure that Rava retracted his understanding of the Rabonon that one ‘injured by wood is entitled to nothing, perhaps he retracted his explanation of R’ Meir that she is entitled to two hundred zuz?At this point we must examine which one of Rava’s two statements, his explanation of R’ Meir or of the Rabonon, is more likely to be retracted. Upon proper analysis we will see that his opinion of the Rabonon is more readily retractable. At the end of the previous Tosfos we concluded that although one ‘injured by wood’ may be entitled to only one hundred zuz, when the Chosson was unaware of her condition it is not an ‘acquisition in error’, because people are not so repulsed by a young lady who lost her virginity by an injury. We see that logically there is room for flexibility about the opinion of the Rabonon. Not so, about the opinion of R’ Meir as Tosfos now explains.We can answer as Rashi explained earlier ד"ה לא הכיר בה: That it is not logical to say that according to R’ Meir when the Chosson was unaware of her condition he must pay one hundred zuz. For if R’ Meir considers this an ‘acquisition in error’ she should receive nothing, and if he does not consider this an ‘acquisition in error’ because the flaw of being ‘injured by wood’ is not of great consequence, since R’ Meir compared her to a bogeres, why should she not receive two hundred zuz? Do we reduce the kesubah of a Bogeres because her virginity is not entirely intact? Just as we do not decrease the kesubah of a bogeres, so too, we do not reduce the kesubah of one ‘injured by wood’ according to R’ Meir. It therefore is more logical that Rava retracted from his statement that according to the Rabonon, when the Chosson was unaware of her condition she receives nothing. He holds that even if the Chosson was unaware of her condition she receives one hundred zuz.
  
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  Rabah says, this [Baraisa] says: if you find a presumed betulah to be a beulah - non-virgin she receives a kesubah of one hundred zuz.The last amora to be mentioned in the Gemara was Rava therefore it would be more likely for the next statement to be from Rava as opposed to Rabah. Therefore Tosfos is compelled to explain the correct text is Rabah as opposed to Rava. It seems that we have the following text: “Rabah” as opposed to “Rava”. For Rava said above when he explained the Mishna, that a mistaken sale implies that it is totally mistaken and she collects no kesubah at all.And if we would have the text here as Rava. If so you will have a contradiction within the Mishna from the earlier section on 11a to the latter section of the Mishna on 12b.Rabah’s statement was extrapolated from the Baraisa and not the Mishna, perhaps the Mishna and the Baraisa are of two different  opinions and therefore there isn’t a contradiction within Rava because he was just explaining two different sources of information that don't agree with each other. Tosfos comes to explain why it doesn't make a difference if it was a Baraisa and not the Mishna. For the conclusion ‘this says’ that a presumed betulah who was found to be a non-virgin” can also be deduced from our Mishna, as [the Gemara] will soon say.f this statement ‘the Baraisa says’ is credited to Rava, then according to him the first part of the Mishna is saying that her kesubah will be reduced from two hundred to one hundred, whereas the latter part of the Mishna is teaching that a presumed betulah who was discovered to be a non-virgin will not receive a kesubah at all. Rather it certainly seems that here the correct text is Rabah.Rava who holds that a presumed betulah who turns out to be a non-virgin is entitled to no kesubah at all, must have a different explanation of this Baraisa. For Rava who said above that the sale was a total mistake will explain the Baraisa like Rav Ashi that in general a woman won’t receive a kesubah must explain that this case is different because she was already married.
  
  If one married [his wife] assuming that she was a betulah and she was found to be a beulah she has [a kesubah of] one hundred zuz.The Baraisa in the Gemara says that a woman who was previously married and witnesses say she is still a betulah, has a kesubah of one hundred zuz. If the husband finds that she is a beulah, he cannot claim that she was not a betulah. Rabah derives from this that if one marries with the expectation that his wife is a betulah and finds out that his wife is a beulah, she receives a kesubah of one hundred zuz. Tosfos wants to know how Rabah derived from the Baraisa that speaks of a woman who was once married, that any single woman who was found to be a beulah also receives a kesubah of one hundred zuz.See Rashi 11b ד"ה שהרי כנסה ראשון, who explains that the second husband should have expected that she might not be a virgin, since she was married to the first husband. It seems that this case is the exception, where even though she was assumed to be a betulah when he discovers that she is not, we say that he should have realized that she may not be betulah. This is in no proves that any woman who is marrying for the first time is also entitled to a kesubah of one hundred zuz when found not to be a betulah. To the contrary, we should say that only in this exceptional case is she entitled to a kesubah of one hundred zuz. Ordinarily, she should receive nothing.Rabah must have a different explanation of the phrase שהרי כנסה ראשון. The Rivam explains that Rabah understands the phrase we learned in the Baraisa “that the first husband married her”, is understood by [Rabah] as follows: that the second husband doesn't have the right to claim that she was not a betulah in order to reduce her kesubah, because her first husband married her, thereby causing her subsequent kesubah to be only one hundred zuz. The phrase hrva iuatr vxbf is saying that it is the very fact that she was previously married that causes the reduction in her kesubah, not the assumption that she cohabited with her first husband. There is no such assumption at all, in view of the fact that witnesses testified that she was never secluded with her first husband.And he is unable to deduct anything from that one hundred zuz, because a claim that she was not a betulah is only capable of deducting the additional one hundred zuz of a betulah, which in this case has already been deducted because she was previously married to her first husband.Rabah understands that the reason the husband doesn't have a legitimate claim that she was not a betulah, is because to begin with she only receives a kesubah of one hundred zuz. His subsequent claim is ineffective, because claiming that she was not a betulah is only effective in reducing the kesubah from two hundred of a betulah to one hundred of a beulah. Since she was initially only to receive one hundred zuz, because she was previously married to her first husband, even though it was discovered that she was a non-virgin, she is still entitled to the minimal one hundred zuz. According to Rabah’s understanding, the previously married woman in the Baraisa is no different than any other woman who was previously single. Both are expected to be virgins. When it is discovered that they are not, both are entitled to collect one hundred zuz.The previously married woman in the Baraisa receives only one hundred zuz, not because she is expected to be a non-virgin, but because she was previously married. Even so, when it is discovered that the previously married woman is not a betulah, she still receives a kesubah of one hundred zuz. So too, a single girl who was expected to be a betulah, when found to be a non-virgin is also entitled to at least one hundred zuz. Apparently, the fact that she was not a betulah even though he expected her to be so, does not diminish her kesubah below one hundred zuz. So too, when a woman is married for the first time, even if it is discovered that she is not a betulah, the kesubah is not decreased below one hundred zuz.
  
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   And let us be concerned that perhaps she committed adultery [while she was] betrothed to him? The simple understanding of the Gemara’s question is that it is referring to the case of a Kohain. Perhaps the woman who he married and unexpectedly found to be a beulah is forbidden to him? When a married woman deliberately commits adultery she is forbidden to her husband. However, when a man marries and finds his wife to be a beulah, there is a double doubt that would permit her to her husband.A) It is possible that she was not yet married when she was promiscuous. But it is also possible that she had relations when she was already betrothed to him.B) Even if she lost her virginity after betrothal, perhaps she was forced and a woman who is forced is permitted to her husband.Cases of double doubts are treated leniently and she is therefore permitted to her husband. See 9a.But in the case of a Kohain even if his wife was forced she would still not be permitted to him. It is therefore a case of only one doubt, did she have relations before or after betrothal? Cases of single doubt are treated stringently and she wouldn’t be permitted to her husband.Our Gemara seems to be proposing that it should be required that a Kohain come to bais din to complain that his Kallah was not a betulah even she was previously married but expected to be a betulah, because she would then be rendered forbidden to him since there is only a single doubt. Perhaps she cohabited with her first husband or perhaps she was adulterous after betrothal to her second husband.Tosfos rejects this explanation of the Gemara. We should not say that [the Gemara] is questioning why the husband isn’t able to make a claim that his wife was not a betulah in order to render her forbidden to him.The question would be: In the case of a Kohain’s wife we should suspect that she was adulterous while she was betrothed to him, for there is only one doubt to permit her, perhaps she committed adultery when she was already betrothed to him or perhaps she was promiscuous when she wasn’t yet betrothed to him? Since there is only one doubt, she would be prohibited to her husband, as opposed to a Yisroel’s wife, where there is a double doubt. Even if she lost her virginity while betrothed, perhaps she was seduced or perhaps she was raped. Since there is a double doubt, she is permitted to remain with her husband.It seems that even though this would be a plausible question, Tosfos must reject this explanation. For in response to this question, [the Gemara] could have answered that the Mishna’s statement “that [the husband] cannot claim that she was not a betulah” means that he cannot deprive her of her kesubah by claiming she was unfaithful to him. This claim is ineffective because there is a double doubt in her favor, for even if you say that she had relations while she was betrothed to him, I can say she was raped and she wasn’t unfaithful to him and is still entitled to her kesubah. She is forbidden to him when there is only one doubt, but that does not mean that she loses her Kesubah. If she was raped, even though she is forbidden to him, she collects her full Kesubah. The ruling of the Mishna that her husband cannot claim that she was not a betulah may simply mean that he cannot cause her the loss of her Kesubah. It does not mean that he cannot render her forbidden to him. If so, the Gemara’s question as explained by Tosfos is irrelevant. The reality may be that he can claim that she was not a betulah to render her forbidden to him. The Baraisa is only saying that she would still be entitled to her Kesubah even if she was found not to be a betulah.Tosfos is going to cite support for his explanation that the Mishna could be speaking only about the futility of his claim in regard to her kesubah. It need not mean that he could not render her forbidden to him. and this explanation, that the Gemara could have answered that the Mishna is referring to only one aspect of the claim that she was not a betulah, the loss of her kesubah, is not awkward. For above 9b in the case of the fiance who dined at his father in-law’s house [the Gemara] also explained the phrase “that he is unable to claim that she was not a betulah” this way, that the Mishna is saying that his claim is ineffective to deprive her of her kesubah, but he can definitely render his Kallah prohibited to him.The Gemara earlier on 9b is discussing the Mishna on our page 12a, which says that a Chosson who eats in his father-in-law’s home cannot claim that his Kallah was not a betulah. The Gemara is analyzing the essence of his claim, and reasons: [The Mishna] that said he cannot claim that she was not a betulah - what was the purpose of that claim? If the purpose of his claim is to prohibit her upon him, in Yehudah why shouldn’t he be able to claim that she was not a betulah in order to prohibit his Kallah to him. Certainly, if the Kohain Chosson knows that he did not cohabit with his Kallah while betrothed, when he finds her to be a non-virgin, she is forbidden to him.It seems that the fiance should be able to make a claim in order to prohibit her to him. We must therefore conclude that the claim he isn’t able to make, is to deprive her of kesubah. Just as the Mishna on 12a is saying that he cannot claim she was not a betulah to deprive her of kesubah, even though she is forbidden to him, so too, the Baraisa on 11b may also be saying that he cannot claim that she was not a betulah to deprive her of her kesubah, even though she is forbidden to him.Now that Tosfos moves away from the simple meaning of the Gemara, he has to explain what is the connection to worrying about her infidelities and her receiving her kesubah.At the very least the Baraisa must be stating that the Chosson cannot deprive the Kallah of her one hundred zuz kesubah. Tosfos will explain that the Gemara is wondering why the Baraisa rules that she must be allowed to collect her kesubah. There is ample reason to rule that despite the double doubt in her favor, she should be deprived of her kesubah. Rather the Gemara is asking about the kesubah: Why can’t he deprive his Kallah of [her kesubah]?But Tosfos has already explained that the reason she is entitled to her kesubah is because there is a double doubt in her favor.A) It is possible that she lost her virginity as a result of having relations with her first husband.B) Even if she lost her virginity after betrothal to her second husband, it is possible that she was raped and is still entitled to her kesubah?If so, what is the basis for the Gemara’s question now? It appears to Ri that the Gemara is asking this question to Rav Ashi, who says that this case of a previously married woman, who was expected to be a betulah receives her one hundred zuz kesubah is an exception. Ordinarily, when a young lady is expected to be a betulah and found to be a non-virgin, she receives nothing. Since in every other case when a wife is discovered to be a beulah, he holds that she doesn't receive any kesubah at all, and here she has a kesubah because the first husband married her. If so, ruling that she is entitled to collect her kesubah will lead him to violate a prohibition.In the case of a Kohain, whose wife is prohibited to him if he discovers that she wasn’t a betulah, because there is only one doubt: Whether she had relations before or after betrothal, and we must treat one doubt strictly. According to Rav Ashi it is likely that this Kohain will be confused, when we rule that his wife is entitled to her kesubah. For this man reasons that since this woman receives a kesubah, even though ordinarily when a man marries a betulah and discovers that she is a beulah, she doesn't receive any kesubah. If so, it must be because we assume that she definitely cohabited with her first husband and we do not consider the possibility that she had relations after betrothal.Furthermore, And because of this assumption the Rabonon are saying: I married her with the expectation that she is not a betulah. If so, my troubling myself to go to bais din is for naught, because they certainly will not forbid her to me since they do not suspect that she had relations after she was betrothed to me. He will conclude that she isn’t prohibited to him because there isn’t any suspicion that she had relations with another man while she was betrothed to him. And because of this potential mistake we have good cause to decree that she should lose her kesubah; so that he will go to bais din, file his complaint, and he will not mistakenly say that she is permitted to him.Tosfos understands that there should be a rabbinic decree that the wife of a Kohain should lose her Kesubah, so that her husband will not mistakenly conclude that she is permitted to him. But why should the wife of a Yisroel lose her kesubah, she is permitted to her husband because there is a double doubt? Even in the case of the wife of a Yisraelwho isn’t prohibited since there is a double doubt in her favor, we should deprive her of her kesubah, as a rabbinic decree, because a Kohain will see that this wife of a Yisrael doesn't lose her kesubah and he will mistakenly conclude that even for [his wife] this will be so that she doesn't lose her kesubah and he will not go to bais din because he is convinced that we always assume that she lost her virginity by cohabiting with her first husband.But according to the opinion of Rabah, there is no question to be asked. There is no reason to institute a rabbinic decree that a wife of a Kohain should lose her kesubah, since ordinarily, when it is discovered that even when previously unmarried, she was not a betulah she receives [a kesubah], even though she is forbidden to her Kohain husband, there isn’t any reason for error. The fact that she was previously married doesn't especially weigh in her favor, for all women even those who were previously unmarried receive at least one hundred zuz. There is no exceptional ruling here because she was previously married. Just as a woman who was previously unmarried and discovered to be a non-virgin receives a kesubah of one hundred zuz and is forbidden to her Kohain husband, so too, a woman who was previously married and expected to be a betulah but was not, receives a kesubah of one hundred zuz and is forbidden to her Kohain husband.
   An example [of the case] is that the [husband] married her and immediately had relations [with her]. The Gemara in response to the question: let us be concerned that she lost her virginity after betrothal to her second husband, says that in this case she is permitted to her husband because she could not have strayed from her husband, because there simply was no time between betrothal and mitzvah cohabitation. The simple understanding is that the second husband married her and consummated the marriage immediately, thereby removing any suspicion that she strayed while betrothed to him.According to Tosfos who understood that the previous question of the Gemara was about the wife of a Kohain this answer doesn't resolve all the concerns raised by the previous question. If in fact she had adulterous relations while married to her first husband, she would also be forbidden to her present Kohain husband. We must be certain that she did not commit adultery while married to her first husband.The statement “that he betrothed and immediately consummated” must be expanded to include the first marriage as well. And similarly you also need to set up the Baraisa as speaking of when the first husband after he betrothed her, brought her to the Chuppah straight away and then died immediately and witnesses testify that she didn't stray while she was under his domain. Because if she had relations with another man while she was in the first husband’s domain, behold she had relations with someone who is not permitted to her thereby becoming forbidden to the kehunah.1<i class="footnote">Any woman who once participated in illicit relations is forever disqualified from marrying a Kohain. If during her first marriage she had committed adultery, she is forbidden to her new Kohain husband.</i>
  
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  The bais din of the Kohanim would collect [four hundred zuz for the kesubah of a betulah] and the sages didn't protest. Tosfos is searching for the novelty of this Mishna. If the husband agreed to give her four hundred zuz why should the Rabonon protest? The Mishna must be teaching that even when the Chosson does not willingly choose to add the extra two hundred zuz to the kesubah, he is obligated to pay that amount. Even though they didn't write the kesubah with the term “an additional” two hundred zuz, which would imply that the Chosson is adding two hundred zuz of his own accord, rather, they wrote four hundred which are appropriate for you.The term written in the kesubah implies that her kesubah is four hundred because that is what her intrinsic value is and not that this is something additional that her husband wants to give her. It might enter your mind, that she doesn't collect the additional two hundred because [four hundred zuz] isn’t appropriate for her, since the Rabonon did not legislate that she should receive four hundred zuz, and [the additional two hundred zuz] weren’t identified as ‘additional’, which would indicate that he is adding this amount as a gift of his own accord.The novelty of the Mishna is that since all other besulos receive only two hundred zuz, you might think that only two hundred are suitable for her and since it was written as ‘four hundred zuz that are appropriate for you’ the kesubah is invalid. The Mishna informs us that since she is the daughter of a Kohain, she is suitable for four hundred zuz, and the term that “is appropriate for you” is correct even though it was not legislated by the Rabonon that she must receive four hundred zuz. Therefore, the kesubah is valid.The Mishna informs us that it is a very good custom and the Rabonon treated it as if it was a law, and it can be said about [four hundred zuz] that they are appropriate for you the daughter of a Kohain to receive. It is worthy that this custom be instituted for Kohanim and families of noble lineage.Now that the Mishna establishes four hundred as appropriate and a proper custom for the daughter of a Kohain, it follows that this should work like any other kesubah. And even though the husband didn't write her a kesubah document, she nevertheless collects four hundred as a stipulation1<i class="footnote">The bais din controls all financial matters and thus has the right to ‘stipulate’ conditions in any contract or business arrangement. In this case, even though the Rabonon did not rule that a betulah daughter of a Kohain must have a kesubah of four hundred zuz, they recognized the worthiness of this custom and stipulated that where it is customary, it should have the force of law.</i> of the bais din, just as the daughters of a Yisrael collect two hundred zuz, for it is an absolute decree of the Rabonon, that where it is customary to give a daughter of a Kohain or of a noble family four hundred zuz, it has the force of law.
  
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  There were two ordinances. The previous Tosfos explained that only once the Rabonon instituted four hundred for the betulah’s kesubah, did they find it necessary to fix two hundred for a widowed daughter of a Kohain because only then were they treated lowly. Tosfos now questions how the status of the widow was affected by the status of the betulah.Rashi explains that the widows were in their eyes easy to divorce because their kesubah were small. And this is difficult to understand, because also originally before the kesubah of the betulah was increased they knew the kesubah of the widow was one hundred, therefore originally they were in their eyes easy to divorce since one hundred in itself is considered a small thing.Tosfos understands that if the widow’s status is caused by the low cost of her kesubah and the price was never changed the price of the kesubah of the betulah shouldn’t have made a difference. And according to the Ri it seems correct to explain the phrase “that they treated them lowly” in the following way: that some men would hold off from marrying them because they were light in their eyes based on the fact that she only had a kesubah worth a quarter of what a betulah had.The Ri understands that the problem was not in the ease of divorcing them but rather it was in the desire to marry them in the first place. Because the kesubah was now cheap compared to a betulah, the men began to look at them as if they were undesirable. Therefore they fixed for a widow a kesubah of two hundred in order that the higher cost would make them appear more desirable. Since they saw that men would totally separate from them, and they would first jump upon the chance to marry a betulah yisrael for the same price and there were no men that would jump upon the chance to marry them the rabbanim returned the kesuvah to its original state and said they should only receive one hundred.Tosfos now brings support for this explanation based on the language that the gemara uses. This is why the gemara mentions from the beginning they were treated lightly, that they “withheld” from marrying them and they didn't completely separate from them. And after this that they raised the kesuvah to two hundred the gemara mentions “and they separated from them which implies completely. 
  
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  Since they saw that they were treating them lightly. Tosfos needs to identify the exact meaning of the phrase - they were treating them lightly. Why were they being treated lightly? Why didn't the Rabonon anticipate this problem when instituting the original kesubah?Tosfos quotes Rashi’s explanation, rejects it and the offers his own. Rashi explains that the widowed daughters of Kohanim were easy to divorce in their [husband’s] eyes because their kesubos were little. And this is difficult to understand, because originally they also must have known they would be easy to divorce in their [husband’s] eyes since one hundred in itself is considered a small amount that would not present a major financial problem for men who wanted to divorce their wives.Tosfos understands that the problem of the Kohain’s daughter being relatively easy to divorce, because of the low price of her kesubah, should have been anticipated. And to R’i it appears correct to explain the phrase “that they treated them lightly” in the following way: that some men would refrain from marrying them because they were trivial in their eyes, because of the fact that she only had a kesubah worth a quarter of what a betulah had. The great discrepancy between a betulah and a non-virgin appears to emphasize that the non-virgin is a person of lesser value.R’i understands that the problem was not the ease of divorcing them, but rather the lack of desire to marry them in the first place that was generated by their relatively insignificant kesubah. Since the kesubah was now relatively inexpensive compared to a betulah, the men began to see them as undesirable. Therefore they enacted for a widow a kesubah of two hundred so that the higher cost would bolster their image and make them more desirable.When [the Rabonon] saw that men totally refrained from marrying [a Kohain’s widowed daughter], and they would sooner jump at the chance to marry a betulah daughter of a Yisrael for the same price and that there were no men that would jump at the chance to marry [the widowed daughters of a Kohain], the Rabonon returned [the widowed daughters of Kohanim] to their original state and said they should receive only one hundred zuz.Tosfos now cites support for this explanation based on the different terminology that the Gemara uses to describe these two situations. This is why the Gemara initially mentions ‘they were treated lightly’, that they ‘withheld’ from marrying them but they didn't completely separate from them. After this when they raised the kesubah to two hundred zuz the Gemara mentions “and [the men] separated from them”, which implies complete separation. The increase from one hundred to two hundred zuz actually made matters worse and was rescinded.1<i class="footnote">See מהרש"א Tosfos is compelled to say that matters were worse after the revision to two hundred zuz. If matters had remained the same, there would be no point in returning to the earlier kesubah of one hundred zuz. This Tosfos is explaining the Mishna on 12a.</i>
  
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  He says not so! Rather it happened before I betrothed you.The Mishna discusses a case where a husband discovers after marrying his wife that she isn’t a betulah, and she claims that she was raped after betrothal. He counters and says “not so!” your virginity was lost before I betrothed you.Usually the word "לא כי" is used for a definite claim, but in this case it is impossible for the husband to know definitely that she was raped before betrothal. Even though in the end of Perek Hamainee’ach in Bava Kama 35b, the Gemara deduces from the fact that the Mishna uses the term “not so!” that it is talking about a definite claim, here in our Mishna where there is no room to err, since it is impossible that he is claiming that she definitely was raped before betrothal, the Mishna used the term “not so!” even though we are talking about a claim of ‘perhaps’ since there is no possibility for the husband to be definite in his claim.
  
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  [One person says to the another] you owe me one hundred [zuz] and the other says I don't know. There are two possible ways to understand the counterclaim - I don't know. Either,A) I don't know if I ever borrowed money from you, orB) I borrowed money from you but I don't know if I paid you back.Tosfos needs to explain which one of the two it is. The explanation is that the claim of “I don't know” is referring to “if you ever lent me one hundred zuz” at all. But if he claims that you lent me one hundred zuz, but I don't know if I paid you, we already explicitly learned in a Mishna at the the end of Perek Hagozel the latter in Bava Kama (118a) that he is obligated to pay him back.
  Rav Huna and Rav Yehudah say he is obligated [to pay]. In the course of learning this Tosfos we will come across many passages of Gemara that are located elsewhere in Shas. We will explain each one and how it affects the issues of this Tosfos as we learn the Tosfos.In Shavuos 47a the Gemara discusses the principle of R’ Aba, who taught that when a defendant is faced with the obligation to swear in order to be exempt from payment, and he is unable to swear for whatever reason, he must pay. The basis of his teaching is a verse in Parshas Mishpatim (Shemot  22, 10) where the Torah says: שבעת יהוה תהיה בין שניהם - an oath of Hashem shall be between the two of them, i.e. the defendant must swear to prove his innocence. The Gemara analyzes the use of the phrase  שבעת יהוה תהיה בין שניהם - between the two of them. A Baraisa explains that this phrase teaches us that the oath is used when the litigation is between the two litigants, but not when their heirs are involved in the litigation. But what possible difference is there between when the litigants themselves are present at the proceedings or if they have passed on and their children are involved in the proceedings?The Gemara explains that the verse is speaking of a situation where the plaintiff says: You owe me one hundred zuz. The defendant answers: I owe you fifty zuz, but I do not know about the other fifty. It is in this case that there is a difference between when the litigants themselves are present or if their heirs are conducting the court case.If the litigants themselves are present, the defendant will have to pay, because he is in a position where he is required to swear the oath of מודה במקצת - one who admits partial liability, but he can’t swear that he doesn't owe the additional fifty, because he is uncertain. Thus, according to R’ Aba the defendant must pay. However, if the case is conducted by their heirs, the son of the defendant does not have to pay, because he isn’t really expected to know whether his father borrowed fifty or one hundred zuz. This exegesis of the verse makes sense according to R’ Aba’s principle. The father who should know whether he owes one hundred or fifty zuz, is required to swear that he owes only fifty zuz and since he cannot take an oath, he must pay. His son who is not expected to know the extent of his father’s liability, will be exempt when he enters his plea, that he owes fifty zuz and is unaware of the other fifty.It is precisely because this verse differentiates between the litigant and his son, who both say: I owe fifty and am not sure about the other fifty, that R’ Aba deduces his principle. However, if we hold that whenever a defendant enters a plea of - I don't know, he is automatically liable as Rav Yehuda and Rav Huna are saying in our Gemara, R’ Aba’s deduction of his rule is untenable. A plea of I don't know is not the basis for an obligation to swear, it is rather the basis for liability to pay. According to this opinion, we have no source for the principle of R’ Aba.Upon proper analysis it appears that [Rav Huna and Rav Yehudah] do not hold of the principle of R' Aba who says: “because [a defendant] is unable to able to swear he must pay”.Tosfos demonstrates that R' Aba’s principle is based on an exegesis that Rav Huna and Rav Yehudah cannot make.The Gemara in Shavuous 47a explains R' Aba: For the reason of R' Aba is because he expounds the verse, “an oath of Hashem should be between the two litigants” and “not between the two heirs of the litigants”.The verse tells us that onlyA) the litigants have the obligation of an oathB) but not those who inherit the litigants.There must be some reason for obligating the defendant to swear, but not the heir of the defendant. The reason must be that ifA) the litigants can’t take the oath that they are obligated to take, they are obligated to pay instead. However,B) the defendant’s heir who is not expected to know the extent of his father’s financial dealings and liabilities, will not have to pay when entering a plea that he does not know about the additional fifty zuz.Therefore, we can derive from this verse that if one can’t take an oath to defend himself, he must pay. The sole difference between when the litigants themselves participate in the proceedings or when the heirs of the litigants participate can only be this point. The defendant is expected to swear to defend his claim, whereas his heir cannot be expected to take an oath.The Gemara in Shavuous searches for a suitable case where the defendant himself would need to take an oath but his heir would not, in order to apply this case to the verse. R’ Aba then derives the principle “if he is unable to swear he must pay” from this explanation of the verse. For example a plaintiff claims your father owed my father one hundred zuz.[The defendant] says: I know of fifty, but the other fifty I don't know about, B) the heir of the defendant who says I don't know about the other fifty zuz, would not be obligated to take an oath. But in the same scenario involving A) his father, since he said he doesn't know, he is unable to swear and is obligated to pay. However, B) the son of the defendant doesn't inherit the obligation to take an oath and therefore, he doesn't have to pay.The basis of R’ Aba’s principle is because his ruling satisfies the difference between whether the litigants themselves are present at the proceeding or their heirs. R’ Aba must hold that the plea - I don't know - doesn't automatically result in an obligation to pay. When the defendant says - I owe fifty, but I am not sure about the other fifty, he is not automatically liable to pay. He is required to take an oath. Since he cannot take the necessary oath, he is liable to pay. His heir is not required to take an oath and is therefore exempt from payment.However, according to Rav Huna and Rav Yehudah who hold that when a plaintiff claims you owe me one hundred zuz and the [defendant] says I don't know, he is obligated to pay, there is no issue of an oath here in the case that is quoted in Shavuos 47a when he admits half, for even if he says he doesn't know about the whole amount he is obligated to pay and there is no discussion of an oath.R’ Aba’s solution of the verse that differentiates between whenA) the litigants themselves are in bais din orB) it is their heirs who are involved in the proceedings,presumes that the specific case that the verse is discussing is when the defendant or his son admits half and says he does not know about the other half. Since there is a partial admission, we have the basis for an oath. However, if we hold that a plea of - I don't know, automatically loses, there is no basis for an oath at all. This scenario cannot be used to explain the verse.Now that it has been established that Rav Huna and R’ Yehudah cannot agree with the case that the Gemara applied to the verse according to R’ Aba, it follows that they wouldn’t agree with R' Aba’s principle either, because they don't have the ability to derive that principle from the verse.This conclusion, that Rav Yehudah and Rav Huna disagree with R’ Aba does not present a problem per se. As is evident in Shavuos 47a, there are others as well who disagree with R’ Aba. However, what is problematic is that Abaye seems to hold both positions, that of R’ Aba and that of Rav Yehudah and Rav Huna.The Gemara in Bava Basra 135a is discussing a situation where one of a family of brothers, Chaim, identifies another person, Ruvain, as being a heretofore unknown brother and entitled to share in the estate of their father. The Mishna rules that if the other brothers say we do not know if Ruvain is a brother or not, Ruvain does not receive a share of their inheritance. The Gemara initially assumes that Ruvain is claiming that he is a brother. The brothers say they do not know whether Ruvain is a brother or not. We rule that they do not have to give Ruvain a share in their father’s estate.Rava deduces from this ruling of the Mishna that if one says - you owe me money and another answers - I don't know, the defendant is exempt. Abaye disagrees. He says that in the case of the Mishna, Ruvain is not the one who is claiming that he is a brother. It is Chaim who identifies Ruvain as a brother. It is only then that we rule that Ruvain is not entitled to a share. However, if Ruvain himself claims that he is certainly their brother and the others say - we do not know, Ruvain, who is certain that he is a brother, is entitled to share in the estate.It seems that Abaye holds like Rav Yehudah and Rav Huna, when the plaintiff claims that he is definitely owed money and the defendant is unsure, the defendant must pay. According to our previous analysis of R’ Aba’s principle and how it was derived from the verse, Abaye cannot agree with R’ Aba’s principle. This is bewildering! For in Perek Yesh Nochalin (Bava Basra 135a) in regard to the case of, “one who says this is my brother”, the Gemara implies that Abaye holds that if the plaintiff claims you owe me one hundred zuz, and the [defendant] says I don't know, he is obligated to pay. It should follow that he doesn't agree with R’ Aba’s principle.In Bava Basra 34a, the Gemara is comparing the case of R’ Aba to where a defendant claimed that he had purchased property from the plaintiff and had already used the property for three years. However, he could furnish only one witness to verify his claim. Abaye disagrees with the comparison. He says that it would be comparable to R’ Aba only if he had a witness who testified that he had used the property for two years. From the discussion of whether one or the other scenario is comparable to the case of R’ Aba, it is fairly obvious that Abaye does agree with R’ Aba’s ruling. And in Perek Chezkas Habatim (Bava Basra 34a) it is to be understood that Abaye holds of R’ Aba’s principle.It seems that according to Abaye one may hold both positions, that of R’ Aba who says that when one is unable to swear he must pay and that of Rav Huna and Rav Yehuda who say that when a plaintiff is certain and the defendant is in doubt, the defendant must pay. We have demonstrated earlier that R’ Aba is only able to derive his principle if we hold that when the plaintiff is certain and the defendant is in doubt, the defendant is exempt. It is only then that we can have a satisfactory explanation of the verse שבעת יהוה תהיה בין שניהם  and the logical implication that there is no oath required when the heirs are involved in the court proceedings.Tosfos must now demonstrate that there is an alternative way of deriving from the verse that one who is unable to swear must pay.The Gemara in Shavuos 47a explains the verse שבעת יהוה תהיה בין שניהם  with an illustration that assumes that the initial basis for the obligation to swear is partial admission of guilt. This is in fact one of the cases where a defendant is obligated to swear by Torah law. There are however, others. A second requirement for an oath is when the plaintiff’s claim is verified by a single witness. Tosfos will now show us a case where the original oath is required because there is a single witness testifying in behalf of the plaintiff, but when this very same case is tried for the litigants’ heirs, the ruling will be that the defendant’s son is exempt.We are searching for a scenario that will have one ruling when the proceeding are conducted by the original litigants and a different conclusion when the case is tried for the heirs of the litigants. In summation we can say that in the case ofA) שבעת יהוה תהיה בין שניהם -- the ruling will be that in absence of  taking an oath the defendant must pay, butB) ולא בין היורשים -- when the same case is tried for their heirs, the defendant’s heir will not have to pay.We can answer: Even according to the one who says if a defendant claims he doesn't know he is obligated to pay, it is possible to expound the verseA) “an oath of Hashem should be between the two litigants”, andB) the logical implication, “but not between the heirs  of the litigants.”The following case can be substituted in order to derive the principle “if the defendant is unable to take an oath he is obligated to pay”. That both the plaintiff and the defendant do not know whether the defendant is liable or not, but a single witness testifies that [the defendant] owes [the plaintiff] one hundred zuz.1<i class="footnote">Tosfos here clearly states that even when a plaintiff claims “perhaps you owe me money” and he is not certain of his claim, if a single witness testifies that the defendant does owe him the money, the defendant is required to swear in his own defense. The Shulchan Aruch in Choshen Mishpat 75, 23, rules accordingly. See Beur HaG’ra there who mentions that there are many who disagree with this ruling. They hold that an oath is only required when the plaintiff is certain of his claim. When his claim is based on the information that he received from the single witness, the defendant is not required to swear. See Tosfos Kiddushin 28a ד"ה ספק where it is evident that Tosfos there disagrees with Tosfos’ ruling here.</i>Since one witness has the ability to obligate the litigant to take an oath, that when the defendant isA) the father who doesn't know whether he is liable or not, since he isn’t able to swear he must pay. However, when the case is tried between their heirs,B) the heir of the defendant would not be obligated to take this oath, since it cannot be expected that he is aware of all his father’s dealings. Thus, he will not be obligated to pay.The verse that speaks ofA) שבעת יהוה תהיה בין שניהם and the logical implicationB)  ולא בין היורשים, can be satisfied with the case of one witness testifying in behalf of the plaintiff, when both the plaintiff and defendant are unaware of the debt.We can now see that even according to R’ Huna and R’ Yehudah it is possible to hold that when one is obligated to take an oath, but is unable to do so he must pay.Tosfos continues with a question regarding Rav Yehudah who clearly holds that the defendant is obligated to pay when he says he doesn't know. However, in Bava Kamma 46a, he specifically says that even in a case where the plaintiff’s claim is definite and the defendant’s response is - I don't know, the defendant is not liable.The Mishna in Bava Kama 46a is discussing a situation where there is a doubt whether an ox killed a calf or not. The Mishna rules that when there is a doubt about money matters, the money in question is to be divided between the plaintiff and the defendant. Rav Yehudah in the name of Shmuel comments: This Mishna is the opinion of Sumchus, but the Rabonon hold: This is a ‘great rule’ of the Torah: one who is attempting to extract money from his co-litigant must prove his case. We cannot extract money from one who is in possession of those funds without adequate proof. Thus in the case under discussion in the Mishna on Bava Kama 46a, where there is a doubt whether the damaging ox did in fact kill the victim calf, the ox owner is exempt.The Gemara there asks why did Rav Yehudah in the name of Shmuel use the expression: This is a “great rule” of the Torah. It would be sufficient for him to say: This is the rule of the Torah etc. The Gemara answers: He is teaching us that even if the owner of the victim calf claims that he is certain that the ox killed his calf and the ox’s owner says - I don't know, he is not liable. This is a direct contradiction to Rav Yehudah’s position here in Kesubos 12b, where Rav Yehudah rules that a plaintiff’s ‘definite’ claim wins against a defendant’s ‘perhaps’ counterclaim. This is bewildering! For R’ Yehudah himself holds in the beginning of Perek Haporoh (Bava Kama 46a) that even if the owner of the victim calf says a ‘definite’ claim, and the owner of the damaging ox says a ‘perhaps’ claim, the ruling is: the burden of proof is on the one who is extracting the money from his litigant. The defendant is exempt even though he claimed - I don't know.Tosfos first suggests a possible resolution of this contradiction between the two statements of Rav Yehudah and then rejects it. In Bava Kama 46a there are two major opinions of how to deal with a doubt in financial matters. The Rabonon say the burden of proof is on the plaintiff and Sumchus says the money is divided between the two parties. The simple understanding of the Gemara in Bava Kama is that Rav Yehudah there follows the opinion of the Rabonon who rule in favor of the defendant who is in possession of the funds.On the other hand Sumchus does not rule in favor of the defendant. He obviously holds that possession is not so powerful a factor. Rav Yehudah’s ruling in our Gemara might be following Sumchus’ opinion that possession is not the ultimate factor and therefore when a defendant is defending his money by claiming that he doesn't know if he is liable, he loses the case. It cannot be said that Rav Yehudah here in Kesubos 12b follows Sumchus, who says that money whose ownership is in doubt is divided between the litigants, and we don't rule in favor of the defendant who has ‘possession’ of the funds. Obviously, Sumchus does not hold that possession is the ultimate deciding factor when the courts are in doubt.Tosfos needs to point out that according to Sumchus it is reasonable that a claim of definite can be enough to win the case even though normally they split, in order to be able to suggest that Rav Yehudah follows Sumchus. For this reason when there is a definite claim by the plaintiff and the response of the defendant is ‘perhaps’, which is far from convincing, logic dictates that we rule in favor of the plaintiff, who is certain about his claim and he takes all.According to Sumchus ordinarily when the ownership of money is in doubt, the money is divided between the litigants, but in the case of a ‘definite’ claim versus a ‘perhaps’ claim the ‘definite’ claim wins. There in Bava Kama 46a where Rav Yehudah says in the name of Shmuel that these are the words of Sumchus, but the Rabonon say this is “the great principle in judgment” etc. which seems to be saying that Rav Yehudah holds that when the plaintiff’s claim is definite and the defendant’s response is - I don't know, we rule in favor of the defendant, that was said according to the Rabonon, who do rule in favor of the defendant who has ‘possession’, but Rav Yehudah does not personally hold of [this ruling]. He subscribes to Sumchus’ opinion, who does not rule in favor of the defendant who has ‘possession’. Thus, in our case of a ‘definite’ claim by the plaintiff, versus a ‘perhaps’ claim by the defendant, he rules in favor of the plaintiff.Tosfos explains that when Rav Yehudah says “the great principle” is according to the Rabonon, he is just explaining who the author of this statement is, however he doesn't agree with that ruling.Tosfos now rejects this hypothesis:The Gemara in Bava Kama is discussing an ox that was sold and it was discovered that it has a tendency to gore. Does the seller have to return the money to the buyer? Is this a case of ‘acquisition in error’ or not? Most people who purchase an ox expect to use it for plowing. If the ox gores, it cannot be used for plowing. There are however some who buy an ox to slaughter it for its meat. Rav rules that this is an ‘acquisition in error’ because the majority of people buy oxen to use them for plowing. Shmuel rules that this is not an ‘acquisition in error’ and the seller may keep the money, because he is in possession of the disputed funds. Shmuel holds that the ‘majority’ that says the ox was purchased for plowing does not win against the ‘possession’ of the seller, who can say: I sold it to you for its meat.For there in Bava Basra 92b2<i class="footnote">See רש"ש who disagrees with the annotation about where this is located.</i> in regard to the case of one who sells an ox to his friend and it was later found to have a tendency to gore, it is understood that [Shmuel] holds like the Rabonon who rule in favor of the defendant who has ‘possession’. Thus it cannot be argued that Rav Yehudah personally holds like Sumchus who disagrees with the Rabonon. As we will soon see in our Gemara, Rav Yehudah here in Kesubos 12b is based on the teaching of his mentor Shmuel. Since Shmuel holds in regard to an ox that was found to gore that we rule in favor of the seller who has ‘possession’, Rav Yehudah’s ruling here must also follow the opinion of the Rabonon who favor ‘possession’.Since we find in Bava Kama 46a that Shmuel rules in favor of the defendant who has ‘possession’, he obviously favors the opinion of the Rabonon as opposed to Sumchus. Rav Yehudah, both in Bava  Kama 46a and here in Kesubos 12b is following the opinion of Shmuel, as is evident a bit later in our Gemara.Tosfos cites another Mishna in Bava Metzia 97a to support his point that Rav Yehudah’s opinion about ‘definite’ claims versus ‘perhaps’ claims is based on the Rabonon and not a result of ruling in favor of Sumchus. The Mishna there, discusses a case in which one animal was leased to his associate and a second animal was borrowed by the same associate. A borrower must pay if the animal dies but a renter does not. One of the animals died. Is the renter/borrower required to make restitution or not? Furthermore, we learned in a Mishna in Perek Ha’shoel (Bava Metzia 97a) about one who rented one ox and borrowed a second ox. Subsequently, one of the oxen died. The lender says: it was the borrowed ox that died and you are required to pay, whereas [the defendant] says: I don't know which of the two oxen died, [the defendant] is liable.The Mishna seems to be ruling that in a case where the plaintiff’s claim is ‘certain’ and the defendant’s claim is ‘perhaps’ we rule in favor of the plaintiff. The Gemara says: let us say this Mishna is a refutation of Rav Nachman and R’ Yochanan who say that if the plaintiff’s claim is ‘definite’ and the defendant’s claim is ‘perhaps’, the one with the definite claim doesn't necessarily win, but rather the burden of proof is on the plaintiff and the defendant need not pay.In view of Tosfos’ hypothesis that Rav Yehudah’s ruling here in regard to a ‘definite’ versus a ‘perhaps’ claim is based on his ruling  like Sumchus as opposed to the Rabonon, we are faced with a very difficult question. What is [the Gemara’s] question against Rav Yochanan and Rav Nachman? For you are compelled to say that even according to Rav Yehudah, this Mishna in Bava Metzia 97a follows Sumchus, who holds that we do not necessarily rule in favor of a defendant who has ‘possession’, and therefore when the plaintiff has a ‘definite’ claim versus the defendant’s ‘perhaps’ claim, we rule in favor of the plaintiff.For according to the Rabonon, even R’ Yehudah admits that the one whose claim is ‘perhaps’ is exempt. It is only according to Sumchus that Rav Yehudah rules that a ‘definite’ versus a ‘perhaps’ claim wins. But according to the Rabonon, Tosfos suggested earlier, even Rav Yehudah agrees that a ‘definite’ claim does not win against a defendant who has ‘possession’. The Mishna in Bava Metzia 97a must be following the opinion of Sumchus according to Rav Yehudah, and Rav Nachman and R’ Yochanan are compelled to hold like the Rabonon who always rule in favor of the defendant who has ‘possession’. Thus there is no contradiction from the Mishna that follows Sumchus to Rav Nachman and R’ Yochanan whose ruling is based on the opinion of the Rabonon.Tosfos argued that Rav Nachman and R’ Yochanan are compelled to hold like the Rabonon, who rule in favor of a defendant who has ‘possession’. But why? Perhaps their ruling that a ‘definite’ claim is not better than a ‘perhaps’ claim holds true even according to Sumchus? For if Rav Nachman and R’ Yochon were ruling according to Sumchus, at the very least the ruling should be that the funds are divided between the plaintiff and defendant. According to Sumchus when both are entering ‘definite’ claims the funds in dispute are divided. Even if we should say that Rav Nachman and R’ Yochanan hold like Sumchus, but also hold that a ‘definite’ claim is not stronger than a ‘perhaps’ claim, the position of the plaintiff cannot be worse than if the defendant entered a ‘definite’ claim. Had the defendant entered a ‘definite’ claim, the plaintiff would be awarded half. Certainly, when the defendant enters a ‘perhaps’ claim, the plaintiff should be awarded at least half. Rav Nachman and R’ Yochanan who say that even when the defendant enters a ‘perhaps’ claim, the plaintiff receives nothing, must be ruling like the Rabonon who disagree with Sumchus.According to Tosfos hypothesis, it seems that the Gemara is seeking to refute Rav Nachman and Rav Yochanan who hold like the Rabonon, from a Mishna which follows the opinion of Sumchus. This of course is unacceptable. But if R’ Nachman and R’ Yochanan are arguing with Rav Yehudah and Rav Huna according to the Rabonon who generally rule in favor of the defendant who has ‘possession’, but according to Sumchus money in dispute is always divided even in a case of claims of ‘definite’ and ‘perhaps’ and therefore the Mishna in Bava Metzia 97a, which rules that when the plaintiff enters a ‘definite’ claim that the ox which died was the borrowed ox, and the defendant enters a ‘perhaps’ plea, we rule in favor of the plaintiff, must be the opinion of the Rabonon and not Sumchus, then [the Gemara] is asking a valid question against Rav Nachman and R’ Yochanan from the Mishna in Bava matzia 97a, which follows the opinion of the Rabonon.Why are we so convinced that the Mishna is the opinion of the Rabonon? For according to Sumchus in all cases  mentioned in the Mishna there we would rule that the money in dispute is divided.3<i class="footnote">See מהרש"א who points out that it is evident in the Gemara in Bava Metzia that the Mishna does in fact follow the opinion of Sumchus.</i> The Mishna there rules in some cases in favor of the plaintiff and in others in favor of the defendant. This cannot be the opinion of Sumchus.Tosfos now goes on to suggests an answer based on different qualitative levels of ‘definite’ claims and ‘perhaps’ counterclaims. We can answer: that there in the case of the doubt as to whether the ox killed the calf or not, we are dealing with a claim that is a qualitatively weak ‘definite’, and a ‘perhaps’ that is qualitatively good. For since the owner of the damaging ox was not there to see what happened, [the owner of the victim ox] enters a ‘definite’ claim, because he knows that he can’t be refuted. And the ‘perhaps’ of the damaging ox owner is considered to be qualitatively strong, because he is not expected to know what happened. It is only in that case in Bava Kama 46a where we rule in favor of the damaging ox owner who has ‘possession’.The case in our Gemara is radically different: However, in the case of the plaintiff who claims: you owe me one hundred zuz, where [the defendant] should know whether he is liable or not, the ‘definite’ claim of the plaintiff is qualitatively strong, because he has the courage to make a ‘definite’ claim even  though it could be refuted, and the ‘perhaps’ claim of the defendant is qualitatively weak, because he should know whether he owes money to the plaintiff or not. Thus, here in Kesubos 12b, we rule in favor of the plaintiff’s ‘definite’ claim.It emerges from Tosfos that when the plaintiff’s claim is a high quality ‘definite’ versus the defendant’s low quality ‘perhaps’, the plaintiff’s ‘definite’ wins, but a damage victim’s low quality ‘definite’ versus the damaging ox owner’s high quality ‘perhaps’, does not win.This new solution of Tosfos is not without its difficulties. The Gemara will soon quote Abaye who said to Rav Yosef that Rav Yehudah’s ruling that the ‘definite’ versus a ‘perhaps’ claim wins, was derived from his mentor Shmuel’s ruling. In view of Tosfos’ present approach that there is a difference between a high quality ‘definite’ versus a low quality ‘perhaps’ and a low quality ‘definite’ versus a high quality ‘perhaps’, the comparison to Shmuel’s ruling in accordance with Rabban Gamliel is untenable.But there still is a difficulty: because [the Gemara] here attempts to say that Rav Yehudah’s ruling that the plaintiff’s ‘definite’ wins against the defendant’s ‘perhaps’ is derived from his mentor Shmuel, who ruled like Rabban Gamliel. Rav Nachman and R’ Yochanan who rule that the ‘definite’ claim does not win, cannot agree with Shmuel’s ruling in favor of Rabban Gamliel. The Gemara eventually deflects Abaye’s statement and shows that Rav Nachman and R’ Yochanan can agree with Shmuel’s ruling in favor of Rabban Gamliel.The Mishna on 12b discusses a Chosson who finds his wife to be a beulah. She claims that she was raped after she was betrothed and he claims that she had relations before betrothal. Her claim is a weak ‘definite’, because she knows that her Chosson does not know  the truth. His ‘perhaps’ claim is high quality, because he cannot possibly know how she lost her virginity. And there in the Mishna we are discussing it is a case of a low quality ‘definite’ and high quality ‘perhaps’, because the husband doesn't truly know when his Kallah had relations. This parallels the case in Bava Kamma 46a, where Rav Yehudah in the name of Shmuel ruled in favor of the defendant, yet here Shmuel rules like Rabban Gamliel in favor of the plaintiff.If so, there is a contradiction from that which Shmuel rules here that even a low quality ‘definite’ claim wins against a high quality ‘perhaps’ claim, against that which Shmuel ruled in Perek Haporoh (Bava Kama 46a) that in the case of a low quality ‘definite’ versus a high quality ‘perhaps’, we do not rule in favor of the ‘definite’, because Shmuel ruled in the case of the doubt about whether the ox killed the calf, which is a low quality ‘definite’ versus a high quality ‘perhaps’, that the defendant does not have to pay.4<i class="footnote">See מלא הרועים and פורת יוסף quoted in the digest in ש"ס נהרדעא, who suggest that Shmuel’s ruling here like Rabban Gamliel even in the case of a weak ‘definite’ is because it is supported by the migo and/or chazakah as discussed in the Gemara. The combination of these legal mechanisms converts the weak ‘definite’ to a strong ‘definite. Thus, Shmuel’s rulings are consistent. A) The case in our Gemara - ‘you owe me one hundred zuz’ is a strong ‘definite’. B) Rabban Gamliel’s ruling in favor of the wife who claims - I was raped after betrothal, although it is essentially a weak ‘definite’, it is supported by a migo and/or a chazakah, which gives it the status of a strong ‘definite’. C) The case in Bava Kama 46a, about the doubt of whether the ox killed the calf, is a weak ‘definite’ and we therefore rule in favor of the defendant who has ‘possession’.</i>We can answer: that when the Gemara presented this statement that Rav Yehudah here follows the opinion of Shmuel, [the Gemara] could have countered by saying - but even according to your reasoning is it truly so that Rav Yehudah here is following Shmuel’s ruling? After all the rulings are not the same, Shmuel is ruling here, that even in the case of a weak ‘definite’ the plaintiff wins, whereas Rav Yehudah holds that only a strong ‘definite’ wins. Elsewhere, Tosfos says that many times the Gemara could counter a hypotheses by saying “and according to your reasoning”, but does not choose to do so.Tosfos’ initial question was that there is a direct contradiction between Rav Yehudah’s ruling here in Kesubos 12b that a ‘definite’ claim wins against a ‘perhaps’ claim, and his explanation of the position of the Rabonon in Bava Kama 46a, where he says that the Rabonon used the phrase “great rule” to emphasize that even when the plaintiff’s claim is ‘definite’ and the defendant’s claim is ‘perhaps’, the defendant need not pay. First Tosfos attempted to distinguish between the two cases. This attempt has some difficulties as we have seen. Tosfos will now attempt an alternate approach. This new approach acknowledges that there is in fact a direct contradiction between the Gemara here and the Gemara in Bava Kama 46a that says the “great rule” comes to inform us that even in the case of ‘definite’ versus’ ‘perhaps’, the defendant wins.However, the Gemara there offers a second explanation of the “great rule” of the Rabonon. The Gemara there says: Alternatively, the “great rule” comes to inform us that even when there is a majority on the side of the plaintiff, such as the fact that most people buy an ox for plowing, and the sellers claim that he sold it to the buyer to be slaughtered and eaten is viable only for a minority of people, the seller who is the defendant and has ‘possession’ wins.According to this alternate answer in the Gemara there, Rav Yehudah never said that in a case of ‘definite’ versus ‘perhaps’ the ‘definite’ wins. There is no contradiction in Rav Yehudah’s rulings. Our Gemara follows the alternate answer in Bava Kama. The first answer in Bava Kama 46a truly does contradict our Gemara. Furthermore, we can answer Tosfos’ original question, that the Gemara here holds that the phrase “this is a great rule in judging” claims and counter claims, does not come to teach us that when the [owner of] the victim ox says he is certain that the ox killed his calf and the [owner of] the damaging ox says ‘perhaps’ it did not, that the defendant need not pay. Rav Yehudah there is not addressing this situation at all. Rather, as [the Gemara] says there: Alternatively, the phrase “great rule” comes to inform us of this, that Shmuel says even in a case that the ox was found to has a history of goring and the purchaser claims it was an acquisition in error, because I purchased this ox in order to plow with it, the seller has the right to say that I sold this ox to be slaughtered and eaten. But in the case of where the damaged one enters a ‘definite’ claim and the damaging ox owner says ‘perhaps’, the Rabonon would agree that the ‘definite’ claim of the plaintiff wins. Thus, there is no contradiction between our Gemara and the alternative approach in Bava Kama 46a. Our Gemara accords with the alternative approach. It definitely is in contradiction with the first approach of Bava kama 46a.This second answer of Tosfos also has its difficulties. And there is a difficulty with this second answer. For even according to the alternative answer there in Bava Kamma 46a, [the resolution of the contradiction] doesn't come out well.This second answer of Tosfos holds that even though the Rabonon rule in favor of the defendant who has ‘possession’ when the majority favors the plaintiff, they may hold that in a case of ‘definite’ versus ‘perhaps’ we do not rule in favor of the defendant. Tosfos will now show us that the Rabonon who say that the burden of proof is upon the plaintiff who is attempting to extract money from the defendant, hold that in case of ‘definite’ versus ‘perhaps’ we also rule in favor of the defendant. For in the end of Perek Hamainee’ach (Bava Kama 35b) the Rabonon clearly hold that even when the [owner of the] victim calf claims that the ox ‘definitely’ killed his calf, and the owner of the damaging ox claims ‘perhaps’, we rule in favor of the defendant.It is clear that the Rabonon always rule in favor of the defendant who has ‘possession’, even if the phrase “great rule” did not come to inform us of this. And Shmuel holds like the Rabonon as is apparent in the case of the one who sell his ox to his friend and it was found to have a tendency to gore. Since he rules like the Rabonon in this case, he obviously accepts the principle of the burden of proof being on the plaintiff even when his claim is ‘definite’ versus the defendant’s ‘perhaps’ claim.5<i class="footnote">See Tosfos Bava Metzia 97b ד"ה רב הונא wheter Tosfos does not mention this difficulty.</i>The contradiction between Rav Yehudah of our Gemara and Shmuel’s ruling like the Rabonon who always rule in favor of the ‘defendant’ who enters a ‘perhaps’ claim, remains in full force. Tosfos is compelled to accept the answer mentioned earlier, that the Gemara could have countered “and according to your reasoning”, but chose not to do so. See note 4.
  
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  Rav Asi said: if she cohabitated. Zeiri understood that the phrase  מדברת in the Mishna means that the young lady was secluded with an unknown man. According to R’ Yehoshua, since we are not aware of his lineage, we must be concerned that he may be a mamzer or a nosin who disqualifies anyone with whom he cohabits from marrying a Kohain. Since they were secluded together, we must consider the possibility that the couple cohabited together while secluded and that he rendered her unfit for a Kohain.Rav Asi explains that the intent of the Mishna when using the phrase  מדברת - she was speaking, is that she actually was seen having relations with an unknown man. It is only then that R’ Yehoshua rules that we cannot accept her word that her unknown partner was of pure lineage and did not disqualify her from marrying a Kohain. However, if she was merely secluded with an unknown man and we have no evidence that she had relations with him, R’ Yehoshua admits that we believe her when she says: The man with whom I had relations1<i class="footnote">See מהרש"א who explains why Tosfos is so certain that we actually believe the young lady that her partner was of pure lineage. Perhaps Rav Asi is saying that we believe her only when she denies having relations with her unknown partner?(See Tosfos ד"ה ואין אוסרין.) See also מהר"ם שי"ף.</i> is of pure lineage and she may marry a Kohain. The reason that we believe her is because she has the strength of a migo behind her claim, because she could have claimed: I did not have relations at all. We have no evidence of any physical relations between the couple and we would accept her denial of having cohabited with the unknown man. Now that she admits that she had relation, but insists that he was of pure lineage, we must accept her claim, because she could have used a better winning claim - that she had no relations at all.If you ask: But R’ Yehoshua does not accept utilizing a migo as we learned in the Mishna on 12b in regard to a woman who claims: I was raped after betrothal2<i class="footnote">See הגהת יעב"ץ who argues that there is a simple distinction between the two cases. In the previous Mishna the dispute is about money. The Kallah wants to be paid two hundred zuz, because she has a migo. That is a migo to extract funds and R’ Yehoshua may not subscribe to the power of migo when it comes to extracting funds. In the Mishna we are presently discussing, the young lady is using the migo to defend her status of permissibility to a Kohain. It is entirely possible that R’ Yehoshua accepts the logic of migo in this case when she is not attempting to extract funds. See however רש"ש, who points out that the Gemara on 16a does not seem to have a problem with using a migo to extract funds according to R’ Yehoshua.</i> and I am entitled to the kesubah of a betulah. R’ Yehoshua rules that we do not believe her even though her claim is supported by a migo - because she could have claimed a better claim: I was ‘injured by wood’.We can answer: There in the Mishna on 12b, when she claims I was raped after betrothal, her claim does not have the strength of an absolute migo, for even if she had said the better claim that I was ‘injured by wood’, we would not believe her according to R’ Yehoshua, as we learned in our Mishna, where R’ Yehoshua specifically says that we do not believe a woman who claims she was ‘injured by wood’. However, when a woman claims that she had no relations at all, we do believe her, since we have no evidence that she was intimate with the unknown man. Therefore, even if she admits having relations with the unknown man, but claims that he is of pure lineage, we must also believe her, because she could have used a winning defense - that she was not intimate with him.But why does the Gemara say when referring to the ruling of Rabban Gamliel, that the Kallah has a migo in her favor, when there actually is no migo, since we would not believe her even if she claimed - I was ‘injured by wood’? It is only called a migo, because it is a much better claim, since she would not be rendering herself forbidden to a Kohain. According to her actual claim that she was raped after betrothal she may never marry a Kohain in the future, whereas if she had claimed that she was ‘injured by wood’, she would be permitted to marry a Kohain. It is therefore a healthier claim for her to say - I was ‘injured by wood’. Rabban Gamliel considers this a migo even though it would not be a winning claim. R’ Yehoshua holds that the concept of migo is in effect only when the second claim is a winning claim.
  
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  One [part of the Mishna is needed to tell us that the mother] is fit [to marry a Kohain], and one [part of the Mishna is needed to inform us that the fetus], her daughter, [is also] fit [to marry a Kohain]. According to Rav Asi who says that in the first part of our Mishna when using the phrase  מדברת the Mishna means that we have evidence that she cohabited with an unknown man, it seems that the second part of this Mishna which speaks of a young lady who was pregnant, is redundant. In both instances we are certain that cohabitation occurred. Why did the Mishna repeat this twice.The Gemara answers: That the first part of the Mishna comes to teach us that the young lady is permitted to marry a Kohain. The second part of the Mishna is teaching us that her fetus, if a female, is also considered to be of pure lineage and may marry a Kohain.. We are not concerned that it may be the product of a union that produces a child that may not be married to a Kohain.But once we know that the daughter of the unknown man is permitted to marry a Kohain, it seems obvious that her mother may marry a Kohain, even when we are certain that cohabitation occurred. Why did the Mishna have to mention the first part at all?Both parts of the Mishna are needed.A) One, the second part is needed to inform you of the strength of Rabban Gamliel who permits even the daughter to marry a Kohain, even though the daughter does not have a chazakah that she was born permissible to a Kohain. The doubt about her lineage is about her very conception, thus there is no chazakah that at birth she was permitted to a Kohain.B) One, the first part of the Mishna is needed to inform you of the strength of R’ Yehoshua who says that even the mother who was born with a chazakah that she was permissible to a Kohain, is disqualified because of the doubt that she may have had relations with a man that could disqualify her.
  
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  According to the one who says: [with regard] to the statement of the one who deems her permissible, he [nevertheless] deems her daughter forbidden. The Gemara speaks of an opinion that holds that even though the mother who has a chazakah of having been born permissible to a Kohain, remains permissible when there is a doubt that she may have become disqualified, her daughter, whose very conception was with a doubt about her lineage, is forbidden to a Kohain. But according to that opinion, why does the second part of the Mishna speak about a woman who is pregnant, the Mishna could have spoken about a woman who was seen cohabiting with an unknown man?The reason that [the Mishna] mentions that she was pregnant, is because [the Mishna] prefers to use a refined expression. As opposed to speaking of a woman who was seen cohabiting, the Mishna prefers to speak of a woman who we can see is pregnant. This is a more refined way of bringing out the same point. We know that she cohabited with an unknown man.
  
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   We do not prohibit [a wife to her husband] for seclusion [with a man]. Let us say that this does not concur with R’ Yehoshua? The Gemara seems to assume that according to Zeiri who says that the word  מדברת in the Mishna means that we have evidence that she was secluded with an unknown man, and even though we have no evidence of cohabitation, R’ Yehoshua rules that she is forbidden to her husband.If so, Rav’s ruling that we do not prohibit a married woman for seclusion is problematic, because according to Zeiri’s interpretation of the Mishna, R’ Yehoshua is saying that we do suspect a woman of having relations if she was secluded with an unknown man and she is declared unfit for a Kohain. So too, by extension we should prohibit a woman to her husband for secluding herself with another man.A proper analysis of the case in our Mishna will yield that there may not be any contradiction between R’ Yehoshua and Rav. There are two claims that a woman who was secluded with an unknown man might claim in her own defense:A) She did not have relations with him.B) She did have relations, but he was of pure lineage and she is still permitted to a Kohain.It is possible that Rav is saying that when a woman A) denies having relations with her partner in seclusion, we believe her and she remains permitted to her husband.This may in no way contradict R’ Yehoshua’s ruling at all. It is entirely possible that R’ Yehoshua says that when the secluded womanB) admits that she had relations with an unknown man, but claims that he was of pure lineage, we do not believe her. However, if A) she denies having relations with him, it is entirely feasible that R’ Yehoshua agrees that she is permitted to marry a Kohain.Thus, there may be no contradiction between R’ Yehoshua of our Mishna and Rav’s ruling that we do not prohibit a woman to her husband after seclusion with another man. Rav is speaking of whenA) she denies having relations with the suspected adulterer and R’ Yehoshua is speaking ofB) when she admits having relations with the unknown man, but insists that he was of pure lineage.Tosfos in his question will attempt to prove that R’ Yehoshua who rules that we do not accept the claim of the young woman is speaking only of when the suspected woman claims: B) I had relations with him, but he was of pure lineage. Rashba finds the Gemara’s question that there is a contradiction between R’ Yehoshua and Rav bewildering! For according to Zeiri who says that “she was speaking” means she was secluded with an unknown man, [the Mishna] must be speaking of when B) she admits that she cohabited with the unknown man, but she insists that he was of pure lineage.But if she took the alternate defense and said: A) I did not cohabit with him, if so, there is a double doubt in favor of her being permitted to marry a Kohain:a) It is possible that she did not cohabit with him, and even if she did,b) it is possible that he truly is of pure lineage.We do not consider the possibility that R’ Yehoshua forbids her, even when there is a double doubt because R’ Yehoshua rules her fit, as [the Gemara] says later on 14a says there, in regard to a widow whose husband was of uncertain status, it is a double doubt and R’ Yehoshua permits the widow to marry a Kohain. We must therefore conclude that R’ Yehoshua will not forbid a woman to marry a Kohain when there is a double doubt in favor of leniency. We are compelled to say that R’ Yehoshua forbade her to a Kohain when we know by her own admission that she did in fact have relations with the unknown man, but she argues that he was of pure lineage.Tosfos’ question assumes that when a young lady and an unknown man seclude themselves together, there is a double doubt. Since we know that R’ Yehoshua rules leniently when there is a double doubt, R’ Yehoshua’s ruling must be that when we are certain that there was cohabitation, because of her own admission, she is forbidden to a Kohain.However, when we have no knowledge of cohabitation, the double doubt remains in force and R’ Yehoshua holds that she is permitted to a Kohain. This is no contradiction whatsoever to Rav, who rules that when a married woman secludes herself with a stranger, she is permitted to her husband.Tosfos will first attempt to weaken the double doubt, but will eventually conclude that the double doubt remains in full force. We can answer: Actually [the Mishna] is speaking of when she says “I did not cohabit” with the unknown man. If so, why don't we permit her to a Kohain? Because it is considered as if there is only one doubt, because as the Gemara says on 13b there is no guarantor that can prevent illicit relations.1<i class="footnote">This rationale is ineffective in 13b, because the Gemara there is speaking about when the double doubt is about the status of her husband. There, we rule leniently. However, when one of the doubts is whether a couple secluded together cohabited or not, we do not consider the possibility that they did not cohabit as a legitimate doubt.</i> The temptation is so great that we do not consider the possibility that when secluded together, they overcame their desire. Thus, the only doubt is if he was of pure lineage and we must rule that she is forbidden to a Kohain. Rav obviously disagrees with this ruling, because he holds that we do not forbid a woman to her husband for seclusion. He must hold that the temptation can be overcome. However, this conclusion that R’ Yehoshua ruled that even when a woman denies having relations with an unknown man, she is forbidden to a Kohain despite the inherent double doubt in favor of leniency, is difficult. For it is to be clearly understood at the beginning of the second Perek (below 16a) that [R’ Yehoshua] is speaking about a woman who claimed that she cohabited with an unknown man, but that his lineage was pure. He was not speaking of when the woman denied having relations with the unknown man. The Gemara seems to hold that the double doubt is in full force and if she denied having relations, we would rule that she remains permitted to a Kohain. Thus, Tosfos’ original question remains unanswered: Why is the Gemara saying that there is a contradiction between Rav and R’ Yehoshua. R’ Yehoshua agrees that when a woman secludes herself with a stranger, she remains permitted to a Kohain. It is only when we know that she cohabited with that unknown man that we rule she is forbidden to a Kohain.The Gemara there is discussing an admission that R’ Yehoshua makes in the second Perek about one of his rulings in the first Perek. The Gemara suggests that R’ Yehoshua’s admission might be about his ruling in our Mishna, that we do not believe a young lady who says that the unknown man with whom she had relations was of pure lineage. [The Gemara] there says: This is logical according to Zeiri who says: What is meant by the phrase “she was speaking”? That she was secluded with an unknown man. For she has a migo that if she wanted to lie, she could have said: I did not have relations with the unknown man at all, we believe her etc. [even when she says that I did cohabit with him, but he is of pure lineage].It is evident that even according to Zeiri’s understanding of R’ Yehoshua, when a woman claims: I did not have relations, we do believe her. If so, where is the contradiction between R’ Yehoshua and Rav’s ruling that we do not prohibit a woman to her husband because of seclusion? R’ Yehoshua also agrees that when there was only seclusion and she claims: we did not cohabit, she is permitted to a Kohain.In order to understand Tosfos attempt to answer this question, we must review our understanding of the term “seclusion”. Tosfos has posited that just as Rav holds that when a married woman denies having relations with a suspected adulterer, with whom she was secluded, she remains permitted to her husband, so too, when a single woman denies having relations with an unknown man, she remains permitted to a Kohain. There seems to be no contradiction. What was the Gemara’s question? Tosfos refers to this analysis as: seclusion versus seclusion, and finds that there is no inherent contradiction between R’ Yehoshua’s ruling and Rav’s ruling.However if we take a deeper look into the mechanics of these two cases, we will see that there truly may be a contradiction. R’ Yehoshua rules that when a womanA) denies having relations with an unknown man, she remains permissible to her husband, because of a double doubt as Tosfos explained. However, whenB) she admits having relations with the unknown man, but claims that he is of pure lineage, she is forbidden to her husband, because there is only one doubt. Was he a mamzer/nosin or not?On the other hand, Rav who rules that when a married woman secludes herself with a man, she remains permitted to her husband, is saying that even when there is only one doubt, whether she cohabited with the man or not, she is permitted to her husband. When we view the two rulings from the vantage point of: one doubt versus one doubt, we find that there is indeed a contradiction between Rav and R’ Yehoshua. R’ Yehoshua rules that when there is only one doubt, she is forbidden to a Kohain, whereas Rav rules that even when there is only one doubt, a married woman remains permitted to her husband.Therefore, it appears that [the Gemara] asks its question to Zeiri, who holds that when there is only one doubt, whether the unknown man was a mamzer/nosin or not, we prohibit her to her husband. But when a married woman secludes herself with a man, where there is also only one doubt and even so, we do not prohibit her to her husband because she was secluded with another man?When we compare the two cases based on the aspect of one doubt versus one doubt, we see that there is a fair comparison between the two cases.There is however an inherent difficulty with Tosfos’ explanation of the Gemara’s question. According to Rav Asi, who says that the euphemism “she was speaking” is referring to evidence that she cohabited with the unknown man, there is also only one doubt about whether she is forbidden to a Kohain or not. Is the unknown man a mamzer/nosin or not? Rav Asi also rules that when there is only one doubt, the young woman is forbidden to a Kohain. His ruling as well contradicts Rav’s ruling that when there is even only one doubt as in the case of a married woman, she remains permitted to her husband. There is a bit of a difficulty. For upon proper analysis it appears that [the Gemara’s] question was that The contradiction between R’ Yehoshua and Rav was based on seclusion versus seclusion not one doubt versus one doubt, since the Gemara asks it question to Zeiri, who says that our Mishna is a case of seclusion and R’ Yehoshua is prohibiting the young lady to a Kohain because of that seclusion, but the Gemara does not address this question to Rav Asi. It seems that according to Rav Asi, there is no problem with Rav’s ruling. But if we say that the Gemara’s question was based on one doubt versus one doubt, the same question should be asked to Rav Asi as well, for he too, rules that when there is only one doubt about the lineage of the unknown man, the young lady is disqualified from marrying a Kohain. It must be that the basis of the Gemara’s question is seclusion versus seclusion, but that is difficult for the reasons that Tosfos mentioned earlier.
  
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  [The Rabonon] instituted a higher level [regarding matters of] lineage. We must keep in mind as we learn this Tosfos, that when we speak of forbidding a single woman, we mean that she is forbidden to marry a Kohain. Even if she did the worst of sins as a single girl, she will never be prohibited to marry a Yisrael. Eventually, Tosfos will present an explanation of Rav’s ruling ‘we do not prohibit a woman for secluding herself’, that may refer to an unmarried woman, and is speaking of a prohibition other than marrying a Kohain.Rav issued two rulings:A) We administer lashes to a woman for secluding herself with a man.B) A woman is not prohibited, for having secluded herself with a man.Usually, when two rulings are presented together, we may assume that both rulings apply to the same people. Tosfos will now demonstrate that it is impossible that both ruling are referring to the same people.The Gemara asks: Why according to Zeiri when a young lady secludes herself with an unknown man, she is forbidden to marry a Kohain, whereas, when a married woman secludes herself with a man, she is permitted to her husband?The Gemara answers: The Rabonon instituted a ‘higher level’ of precaution for marrying a Kohain than for other prohibitions. What emerges is that Rav’s second ruling: B) We do not prohibit a woman who secluded herself with another man, refers only to a married woman, but an unmarried woman definitely is forbidden to marry a Kohain after secluding herself with one who might disqualify her from marrying a Kohain by cohabiting with her.Tosfos will now demonstrate that Rav’s first ruling: A) We give lashes for seclusion, can refer only to an unmarried woman. The Gemara in Kiddushin 81a explains Rav’s ruling:Rav says:A) We administer lashes to a woman who secludes herself,B) but we do not forbid her for secluding herself.Rav Ashi says: It was only said about a single girl who secluded herself, that we administer lashes, but for a married woman, we do not administer lashes, so that you should not spread a rumor that her children are illegitimate. Mar Zutra administered lashes and circumvented the possibility of a rumor, by announcing that there was no concern about the legitimacy of her children.This is bewildering! For it is to be understood that Rav’ second ruling: B) we do not prohibit a woman for secluding herself with a man, must be speaking about a married woman and not about a single woman, for when a single woman secludes herself with a man whose cohabitation might disqualify her from marrying a Kohain, we do in fact prohibit her from marrying a Kohain, because of the higher level of precaution instituted for Kohanic marriages.Whereas, in the end of Kiddushin (81a) [the Gemara] interprets A) “we administer lashes to a woman for seclusion with a man” as speaking specifically about a single girl, but for a married woman we do not administer lashes, because by lashing her you are spreading a rumor about the legitimacy of her children. Administering lashes will give credence to rumors that she committed adultery and people will suspect that her children are not her husband’s. This of course, will cause undeserved suffering for her children.Thus, Rav’s first rulingA) about administering lashes for seclusion is speaking only about a single girl, whereas his rulingB) concerning not prohibiting her for secluding herself, must be speaking only about a married woman.Explaining Rav’s double ruling as speaking about two different people, is usually unacceptable.The problem is not limited to Rav Ashi’s explanation of Rav’s ruling. For even according to Mar Zutra’s interpretation of Rav’s ruling, there remains a difficulty. Even according to Mar Zutra who says thatA) we administer lashes to a married woman and then announce that her children are legitimate, admits that the ruling: A) We administer lashes for seclusion is also speaking about a single woman, whereas the ruling:B) We do not prohibit a woman who secluded herself with a man, is speaking only about a married woman. Although, A) ‘administering lashes’ may be speaking about both a married and unmarried woman, B) ‘not prohibiting a woman who secluded herself’ is definitely speaking only of a married woman.Once again, the subjects of Rav’s two rulings are not the same. The first ruling is referring to both married and unmarried women and the second ruling is referring only to a married woman.Tosfos concludes that we are compelled to accept this reality: Says Rabbeinu Tam: That even though Rav’s first rulingA) ‘we administer lashes to one who secluded herself’ with a man, must be speaking about an unmarried woman, because we do not administer lashes to a married woman, Rav’s second rulingB) ‘we do not prohibit a woman because she secluded herself’ is speaking only of a married woman, because we do prohibit an unmarried woman from marrying a Kohain if she was secluded with someone who might disqualify her from marrying a Kohain by cohabiting with her.Tosfos has concluded that Rav’s second ruling ‘we do not prohibit a woman who secluded herself’ is speaking exclusively about a married woman. There seems to be a contradiction. If you ask: But [the Gemara] says in the last Perek of Nedarim (91b): That adulterer who entered into the house of that woman and it was not known whether they had sinned together or not. The Gemara relates that her husband came home and the adulterer hid inside the house. The adulterer saw a snake tasting leek. The husband wanted to eat the remaining leek and the adulterer came forward. The adulterer said to the husband: Do not eat of [the leek], for a snake ate from them and may have left his venom in the leek and your life would be in danger.Rava said: The woman is permitted to her husband, for if it was so, that [the adulterer] had sinned with the wife, he would prefer that the husband die. By warning the husband and saving his life, he is demonstrating that he did not sin with her. It is to be understood that if not for this reason, she would have been prohibited to her husband, because they were secluded together. This contradicts Rav’s ruling that we do not prohibit a married woman who was secluded with a man.We can answer: That a reputed adulterer is different.1<i class="footnote">See Shulchan Aruch Even Hoezer 7,11, towards the end of the paragraph, where Rama rules that when an adulterer and adulteress secluded themselves with the intention of committing adultery, the adulteress is prohibited to her husband. See Gra there 40, who quotes our Tosfos as proof to Rama.</i> Rav’s ruling refers to an average person who is not known to be an adulterer. Even though his behavior in this instance is in violation of the laws prohibiting seclusion with a married woman, he is not suspected of actually committing adultery. Obviously a well known adulterer is more suspect of having committed adultery. In Nedarim 91b, it is only because the adulterer demonstrated his concern for the husband’s life, that we are certain that he did not sin with the wife and she is permitted to her husband. If we did not have this indication, we would rule that she is forbidden to her husband.As we mentioned at the very beginning of this Tosfos, we have spoken of an unmarried woman becoming prohibited only in terms of her eventually marrying a Kohain. Since our Gemara rules that ‘an additional level of precaution’ was instituted for those marrying a Kohain, when an unmarried woman is secluded with someone who might render her forbidden to a Kohain, we must rule that she is forbidden to marry a Kohain. This was the only possibility of understanding how an unmarried woman might become forbidden. As far as marrying a Yisrael is concerned, it would not matter at all who was the person with whom she had relations. Even in a worst case scenario, if she had relations with a mamzer or any other form of illicit relations, she may still marry a Yisrael.Rav Yosef of Shalitan finds another case where an unmarried woman becomes prohibited for having relation with a man. This prohibition follows the minority opinion of R’ Yehudah2<i class="footnote">See Tosfos HaRosh who suggests that the reason that Rabbeinu Tam does not use this answer is precisely because we do not rule like R’ Yehudah. One’s father’s rape victim is permitted to his son. According to Rav Yosef of Shalitan, Rav’s ruling is not in accordance with the accepted halacha.</i> who rules that when a woman is raped or seduced by a man, she may not marry the man’s son.If we accept R’ Yehudah’s ruling, we now have another explanation of ‘we do not prohibit because of seclusion’ that relates to an unmarried woman and is not referring to her being permitted to a Kohain. It is referring to an unmarried woman who was secluded with a father and Rav is saying that she is permitted to marry the man’s son. We do not assume that she cohabited with the father, because she was secluded with him. Rav Yosef of Shalitan answered: That Rav’s second ruling ‘we do not prohibit a woman because of seclusion’ is speaking about an unmarried woman, as is Rav’s first ruling that ‘we administer lashes because of seclusion’, but it is not speaking about prohibiting a single girl to a Kohain. Rather, Rav is saying that according to R’ Yehudah, who prohibits one from marrying his father’s rape or seduction victim (Yevamot 97a), we do not prohibit her to the son of the man with whom she was secluded, when she secluded herself with his father.Since we have a case, other than becoming forbidden to a Kohain, where a single woman might become forbidden to marry the son of her rapist or seducer, we may interpret Rav’s ruling that ‘we do not prohibit a woman because of seclusion’ as speaking about not prohibiting her to the son of the man with whom she was secluded. This allows us to say that the ruling about ‘not prohibiting because of seclusion’ is speaking about an unmarried woman as is Rav’s first ruling that ‘we administer lashes for seclusion’. We are not compelled to say that it is speaking only about a married woman, who does not become prohibited to her husband.
  
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  You answered us concerning the pregnant woman.Before learning this Tosfos, it would be best to review Tosfos ד"ה ואין אוסרין on 13a.The Gemara’s purpose in this dialogue is to prove that Zeiri’s explanation of the Mishna, that  מדברת means - there is evidence that the young lady secluded herself with an unknown man, but not that she cohabited with him, is correct. In the dialogue within the Baraisa, the Baraisa speaks of a מעוברת - a young lady who is pregnant and a  מדברת - a young lady who is not pregnant, but was seen together with an unknown man.The Gemara attempts to prove that there is an inherent difference between the two cases. מעוברת - a pregnant girl, obviously cohabited with an unknown man. However, the Gemara will show that from the context of the Baraisa it is evident that  מדברת - is a young lady about whom there is no evidence that she had relations with an unknown man.This is presented as proof that Zeiri’s interpretation of the term  מדברת - that she was seen secluding herself with her partner, but not that there is evidence that she cohabited with him, is the correct explanation. For the Baraisa is clearly speaking about two distinct cases:A) It is evident that she cohabited, as in the case of the pregnant girl.B) It is not evident that she cohabited, which is the case referred to in the Baraisa as  מדברת.In the course of the dialogue we find that1) R’ Yehoshua attacks his opponents by saying that the situation under discussion is comparable to a woman who was captured by idolaters, where all agree that she is prohibited to a Kohain.2) The Rabonon respond: There is evidence1<i class="footnote">This evidence is based on the assumption that idolater captors would definitely force her to submit to them.</i> that a captured girl cohabited with an idolater, but there is no evidence that a girl who secluded herself with an unknown man cohabited with him.3) R’ Yehoshua argues: But you disagree with me even when the girl is pregnant and there is evidence that she cohabited with an unknown man.4) The Rabonon respond: We accept your argument about a pregnant girl where there is evidence that she cohabited, but what can you say about a girl who secluded herself with an unknown man and there is no evidence of cohabitation?In the course of the dialogue, we will see that the Gemara proves that there is a discussion about a young lady who only secluded herself with an unknown man, but we have no evidence that they cohabited. The Gemara eventually accepts this as proof that Zeiri’s interpretation of  מדברת is correct.However, Tosfos needs to explain how the Rabonon in step 4) deal with R’ Yehoshua’s argument that they are lenient even when there is evidence of cohabitation as in case A), where the young lady is pregnant. In the course of the conversation, it seems that the Rabonon agree that R’ Yehoshua has a legitimate point, but they want to know how he explains his position when there is no evidence of cohabitation. In reality we must deal with the fact that the Rabonon do hold that even when there is evidence of cohabitation, she is permitted to marry a Kohain. Why is this different than a captive girl, where they agree that she is forbidden to a Kohain? Tosfos now addresses this question:The explanation of the Rabonon in step 4) is: According to us it is easy to explain the difference between a captured girl and a young lady who is now pregnant from an unknown man, because a woman who is promiscuous examines the lineage of her partner and then is promiscuous. Even though she wants to cohabit, she does not want to become forbidden to marry a Kohain. She is therefore particular about her partner in cohabitation. This is not comparable to a captive girl, who has no choice in the matter, she is totally controlled by her idolater captors and must submit to them. Thus, we assume that she was disqualified from marrying a Kohain.The Rabonon continue their attack on R’ Yehoshua: However, according to you, who does not hold of this thinking and you are therefore concerned that her partner was a nosin/mamzer, this is logical when she is pregnant and you are sure that she cohabited with her unknown partner, but when she secluded herself, even according to your opinion, there is a difference between the case of a captured girl and the young lady who willingly secluded herself with an unknown partner, for in the case of [the captive girl] there are witnesses that she cohabited1<i class="footnote">This evidence is based on the assumption that idolater captors would definitely force her to submit to them.</i> and in the case of the girl who secluded herself with an unknown partner there are no witnesses about cohabitation and even when she admits that she cohabited with him, but claims that he was of pure lineage, she has a migo that she could have denied cohabiting with him.R’ Yehoshua said to them: The מדברת - who secluded herself with an unknown partner is the same as a captive girl in regard to claiming that she did not cohabit with her partner, and just as we do not believe a captive girl who says I did not cohabit with my captor, so too, when a מדברת - young lady who secluded herself with an unknown partner claims that she did not cohabit with him, we do not believe her, as [the Gemara] concludes - because there is no guarantor that can prevent illicit relations. The certainty of cohabitation in both cases is equal. The captured young girl, because the idolaters who captured her are licentious when it involves their pleasure, and the young lady who secluded herself, because the temptation is too great to overcome. We may therefore assume that she cohabited with her unknown partner.Tosfos has now concluded that we would not believe a young lady who secluded herself with an unknown partner, even if she denied cohabiting with him. In Tosfos on 13a ד"ה ואין אוסרין, we learned otherwise. However, this explanation of the dialogue between R’ Yehoshua and the Rabonon is not viable according to our explanation earlier (Tosfos 13a ד"ה אין אוסרין), that according to R’ Yehoshua, we believe [the young lady who secluded herself] when she says “I did not cohabit” with my partner. The conclusion of the dialogue between R’ Yehoshua and the Rabonon is in direct contradiction to Tosfos’ earlier conclusion. The Gemara here would be saying that according to R’ Yehoshua we do not believe her when she denies cohabiting with her partner, whereas Tosfos concluded earlier that we definitely do believe her when she denies cohabitation.Due to Tosfos earlier conclusion that even according to R’ Yehoshua when the young lady denies cohabiting with the suspected unknown partner, we do believe her, we must find a way of reading our Gemara, so that it will concur with Tosfos’ ruling. Let us remember that Tosfos’ position was that we do not believe the young lady when she claims:A) I did have relations with the unknown man, but he was of pure lineage, even though she has a migo that could have claimed thatB) she did not have relations with him at all.Even though we would believe her denial, it cannot be used as a migo to prove her present claim, that he was of pure lineage. Why not?Tosfos suggests that our Gemara when explaining that מדברת היינו שבויה - the girl who was secluded is equal to a captive girl, because there is no guarantor that can prevent illicit relations, is explaining why the migo is not effective, even though we would believe her if B) she denied having relations with the unknown partner.R’I explains even though his explanation is admittedly awkward, that when R’ Yehoshua says: The young lady who secluded herself with an unknown partner is just as the captive girl, he means that just as the captive girl is assumed to have cohabited with her captors, so too, the girl who secluded herself is assumed to have cohabited with her unknown partner, but only insofar as if she says, the man with whom I cohabited was of pure lineage, we do not believe her with a migo that she could have denied having relations with him, because she is afraid to say: I did not cohabit with him, since she assumes that it is not likely that people will believe her, she is afraid to deny cohabitation. Thus, there is no migo that she could have denied having relations with her unknown partner. However, if she actually did deny cohabitation, we would believe her, but she feels that her denial would ring untrue.It is for this, to negate the migo, that the argument “there is no guarantor that can prevent illicit relations” is effective, because we do not consider her alternative, to claim that she did not cohabit with the unknown partner, a proper migo, even though we would believe her if she denied having relations with her unknown partner. 
  
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  [This supports] the opinion of Rabbi Yehoshua ben Levi.See introduction to the previous Tosfos, where I outlined four steps of the dialogue between R’ Yehoshua and the Rabonon. There is a fifth step which we will now discuss.5) R’ Yehoshua argues the a girl who secludes herself with a man is similar to a captive girl, because there is no guarantor that can prevent forbidden relations.The Gemara proves from this conversation that the meaning of  מדברת - she was speaking, is that she secluded herself with an unknown man, but not that there was evidence that she cohabited with him.The Gemara than asks: But let R’ Yehoshua derive a difference between the two cases, because in the case of the captive girl, the majority of her captors would disqualify her from marrying a Kohain because they are idolaters. Whereas, in the case of a girl secluding herself with an unknown man in a Jewish city, the majority of people who might have cohabited with her would not disqualify her from marrying a Kohain.The Gemara explains: This supports R’ Yehoshua ben Levi’s statement, that Rabban Gamliel is lenient even when the majority are those who would disqualify her and R’ Yehoshua is stringent even when the majority are those who would not disqualify her. The Gemara later on 14a will elaborate on this point. Thus, R’ Yehoshua’s argument to the Rabonon is: You are lenient even when the majority of men who might have cohabited with her would disqualify her. Why is this different than a captive girl, where you agree that she may not marry a Kohain?Tosfos points out that there still is a major difference between the two cases. In regard to the captive girl, all her captors are idolaters, who by cohabiting with her disqualify her from marrying a Kohain. In the case of the girl who secluded herself with an unknown man, even if it was in a ruin in the fields, where we must consider the possibility that her partner came from the general population of the world, there is still the possibility of a minority of would be partners who would not disqualify her?Rabbeinu Tam asks: Even if we accept R’ Yehoshua ben Levi’s statement that the Rabonon are lenient even when she secluded herself with an unknown partner in a ruin in the fields where the majority are men who would disqualify her, still, let [R’ Yehoshua] derive a difference between the captive girl and the girl who secluded herself with an unknown partner as follows: For there in the case of the captive girl, all men who might have cohabited with her would disqualify her, because they are all idolaters, but here in the case of seclusion in a ruin in the field, of all the men who might have cohabited with her there are only a majority that would render her unfit, but there is still a minority that would not disqualify her?[Rabbeinu Tam] answered: That insofar as rendering her unfit to marry a Kohain, a majority of men who would disqualify her is the same as if all men who might have cohabited with her are unfit.Tosfos will now suggest that perhaps there truly is a difference between when all those men that might have cohabited with her are unfit and when they are only a majority. This distinction is based on a Gemara in Kiddushin 80a.In order to understand the Tosfos further, we must be familiar with the Gemara that Tosfos quotes from Kiddushin 80a. Usually, when we learn an imported Gemara, I explain it according to Rashi. However, since this Tosfos is the opinion of Rabbeinu Tam I will explain it as he does in Kiddushin 80a ד"ה שדרכו.For we learned in a Mishna: A toddler who was found next to a dough, and there is a little piece of dough in his hand. The toddler is definitely tomay because he is constantly in contact with women who are niddos. But how did the dough get into his hand? Did he take it himself, thus making the entire dough tomay, or perhaps a tahor person took it from the pile and gave it to him, and the remaining dough is tahor? R’ Meir says that the pile of dough is tahor and the Rabonon say it is tomay, because it is the norm for a toddler to touch the dough himself and he most probably took the piece of dough himself and in the process made the rest of the dough tomay.We thought into this matter, what is R’ Meir’s reason? He holds: Most toddlers do touch the dough, but a minority do not touch the dough. The status quo of this dough is that it is tahor. There is a conflict between the majority that says the toddler touched the dough and the status quo that says the dough remained tahor. Put the minority of toddler who do not touch the dough, together with the status quo that the dough remained tahor, the majority that the dough became tomay is weakened.Thus, according to R’ Meir, the rule that we follow the majority is in effect only when there is no chazakah opposing it. However, when there is a chazakah that combines with the minority, they are equal to the majority.Minority + chazakah = majorityThe Rabonon who disagree with R’ Meir hold that in all cases we follow the majority, even when there is a chazakah opposing it.Tosfos will now suggest that perhaps there really should be a difference between a captive girl, where all of her captors would disqualify her and the girl who secluded herself, where although there is a majority of men who would disqualify her, there is however a minority of men who would not disqualify her. Perhaps we should put the chazakah together with the minority and annul the majority.Minority of men who would not disqualify her+ chazakah that she was fit for a Kohain till now= majority of men who would disqualify herIt cannot be said that in regard to a girl who secluded herself where there is only a majority of men who would disqualify her, but there is also a minority that would not disqualify her, we should say: put the minority of men who would not disqualify her, together with the status quo and the majority that says he was a man who would disqualify her is weakened. For even if Rabban Gamliel and R’ Yehoshua both hold1<i class="footnote">Obviously, according to the Rabonon who disagree with R’ Meir in Kiddushin 80a, we cannot entertain the idea that there may be a difference between when all would disqualify her and when only a majority would disqualify her. Tosfos is pointing out that even R’ Meir who is lenient in the case of an equal doubt in tumoh, is not lenient in a doubt of prohibitions.</i> that we do combine the minority of men who would not disqualify her, with the chazakah that she was permitted to a Kohain till now, and the combination invalidates the majority of men who would disqualify her, even so, the effect of the combination is to make the chances half and half, and by law she should be forbidden to her husband, because there remains an equal doubt and when there is an equal doubt in matters pertaining to prohibitions, we must be stringent. This is not similar to a toddler who was found beside a dough in Perek Asoroh Yuchsin (Kiddushin 80a) where we rule that the dough is tahor because we combine the minority with the chazakah and rule leniently.But why don't we compare this case of a doubt in matters of prohibitions to the case of a doubt in matters of tumoh? For if [the Rabonon] said in regard to a doubt about tumoh that we will be lenient when there is an equal doubt, would they say the same about a doubt in matters of prohibitions, that we should also be lenient? Certainly, not as [the Gemara] says in Perek Kisui Hadam (Chulin 86b). The Gemara there specifically addresses a question comparing the laws of a doubt in prohibition and a doubt in matters of tumoh and says that they are not comparable.2<i class="footnote">The basis of the difference between doubts of tumoh and doubts in prohibitions is discussed in Tosfos Chulin 86b ד"ה סמוך. The laws of doubts in matters of tumoh are derived from the laws governing a suspected adulteress. The Gemara explains that when there is a doubt in a matter of tumoh that comes about because of the involvement of “one who cannot be asked” whether the item became tomay or not, we are lenient. The toddler is considered “one who cannot be asked” and since the doubt came about because of his involvement, we rule leniently. This distinction between doubts of different natures, is in effect only for tumoh, but not for prohibitions, where we are always stringent.</i>
  He renders her fit [to marry a kohain], even where the majority [of the men in her proximity] are unfit. As we have seen in the previous Tosfos, R’ Yehoshua in the fifth step of the dialogue, argues that a captive girl and a girl who was secluded with an unknown partner are comparable. The Gemara then asked: But are they truly comparable! In the case of a captive girl, the majority that might cohabit with her are idolaters, who disqualify her from marrying a Kohain, whereas, in the case of the girl who was secluded, the majority of men who might have cohabited with her would not disqualify her.The Gemara responds, based on R’ Yehoshua ben Levi’s statement, that the Rabonon permit the girl who was secluded with an unknown man to marry a Kohain even when the majority would render her unfit, such as in a ruin in the fields where the majority of the world must be taken into account, and they are certainly mostly unfit. It is in reference to this case that R’ Yehoshua argued that it is comparable to a captive girl, where the Rabonon agree that she is prohibited to a Kohain.A simple reading of this Gemara yields that Rabban Gamliel rules the girl fit even when she was secluded when a majority of her would be partners would render her unfit, but Tosfos finds a Gemara in Kiddushin 74a, where it seems that Rabban Gamliel ruled that the girl who was secluded is permitted only when there was in fact a majority who would not render her unfit.In order to understand this Tosfos, we will need to acquaint ourselves with a Gemara in Kiddushin 74a. The Gemara refers to a statement by Abba Shaul who says that the class of people whom the Rabonon called שתוקי - the “silenced”, because their mothers would silence them when asked about their paternity, indicating that they are forbidden to inter-marry with regular Israelites, are truly called בדוקי - “examined”, because they are allowed to inter-marry not only with regular Israelites, but even with Kohanim, when their mother claims that her partner was of pure lineage.The Gemara there says that the dispute is about Rabban Gamliel’s ruling in our Mishna. Rabban Gamliel rules that we accept the testimony of the girl who was secluded and her children are permitted, whereas the Rabonon do not accept her testimony and their status remains in doubt. What does Abba Shaul mean with the word “examined”? If you say that it means that when we interrogate his mother and she says that I cohabited with one who is fit and I am still permitted to marry a Kohain, we believe her. According to whom is this so? According to Rabban Gamliel. The Gemara asks: But we already learned this once? As we learned in a Mishna: If she was pregnant and they said to her: What is the nature of this fetus? She said to them: From that person and he is a Kohain, i.e. his lineage is pure. Rabban Gamliel and R’ Eliezer say: We believe her. R’ Yehoshua says: It is not from her mouth that we live, i.e. we do not believe her and the status of her fetus is in doubt. Rav Yehudah said in the name of Shmuel: The halacha follows Rabban Gamliel.Rashi there explains that there was no need for Abba Shaul to express his opinion in the Mishna in Kiddushin, the Mishna in Kesubos after citing Rabban Gamliel should have just said that Abba Shaul holds the same as Rabban Gamliel.Eventually, the Gemara answers: The statement of Abba Shaul is stronger than that of Rabban Gamliel. For if we only had the statement of Rabban Gamliel there in Kesubos, I would say that his ruling is in effect only when there is a majority who are fit for her and do not render her unfit to a Kohain. However, when the majority is unfit for her - I would say that she may not marry a Kohain. Therefore, it was necessary for Abba Shaul to state his opinion in Kiddushin 74a to ascertain that even when the majority is unfit we accept her testimony that her unknown partner was fit.A simple reading of the Gemara in Kiddushin 74a says that Rabban Gamliel is t lenient only when there is a majority who are fit for her. It is only Abba Shaul who holds that even when the majority is unfit, we accept her testimony. Our Gemara in Kesubos 13b clearly says that Rabban Gamliel is lenient even when there is a majority of men who are unfit for her. But that which [the Gemara] says in Perek Asarah Yuchsin (Kiddushin 74a) in regard to Abba Shaul who called the class of “silenced” - “examined”. The Gemara explains that he is speaking of those whom when we investigate his mother about the paternity of her child. she says - “I cohabited with a man who is fit” and produced this child. We believe her and her child may marry whomever he or she pleases.[The Gemara] then asks: According to whom is it so? According to Rabban Gamliel. But we have already learned this once in our Mishna in Kesubos: If she was pregnant etc. [and we asked her: what is the status of this fetus? She responds: I cohabited with a man who is fit. Rabban Gamliel and R’ Eliezer say: we believe her. R’ Yehoshua says: We do not live from her mouth.] The explanation of the Gemara’s question is: The Mishna in Kesubos 13a should have taught: And so too, did Abba Shaul say, since he is in agreement with Rabban Gamliel. Why was this mentioned at all in the Mishna in Kiddushin? So too, Rashi explained the Gemara’s question there in Kiddushin 74a.[The Gemara] answers: That Abba Shaul’s ruling is stronger than Rabban Gamliel’s ruling. For if we only had Rabban Gamliel’s ruling in the Mishna there in Kesubos 13a, I would say that this leniency is in effect only when the majority of would be partners were fit for her etc. [but when they are mostly unfit, I might say, no!, we do not believe her]. It is quite clear that the Gemara in Kiddushin 74a is saying that from our Mishna we could only know that Rabban Gamliel’s lenient ruling is in effect when there is a majority of men who are fit for her. But our Gemara says that Rabban Gamliel’s ruling is in effect even when the majority are unfit for her? Even though [the Gemara] here says that Rabban Gamliel rules that she is fit even when there are a majority of unfit, if so, why does the Gemara in Kiddushin say that from our Mishna we would only know that Rabban Gamliel is lenient only when there is a majority of men who are fit for her?Tosfos explains: Abba Shaul is referring to what is clearly stated in our Mishna, and from our Mishna there is no indication at all that it is speaking of when the majority of her would be partners are unfit for her. The deduction that Rabban Gamliel permits her to a Kohain even when there is a majority of unfit partners, comes from the Baraisa in our Gemara, but not from the Mishna itself. Since Rabban Gamliel does not mention it specifically in the Mishna, it is fair to say that this was Abba Shaul’s addition to the ruling.However, upon further examination of the Gemara there in Kiddushin 74a, there seems to be a difficulty. Earlier in the Gemara in Kiddushin 74a, the Gemara responds to the question “what did Abba Shaul add?” as follows: Rabban Gamliel’s ruling comes to teach that she is fit to marry a Kohain. Abba Shaul’s ruling comes to teach us that even her daughter is fit to marry a Kohain.The Gemara asks: That is fine according to the one who says that [Rabban Gamliel] who rules that [the mother] is fit to marry a Kohain, prohibits her daughter from marrying a Kohain. It can then be said that Abba Shaul is adding that even the daughter is permitted to marry a Kohain. But according to the one who says that [Rabban Gamliel] who rules that she is fit to marry a Kohain also rules that her daughter is fit to marry a Kohain, what is Abba Shaul coming to teach us? The Gemara then says that Abba Shaul is adding that even when there is a majority of unfit, she is permitted to a Kohain.Even though the fact that Rabban Gamliel permits her daughter to marry a Kohain is not specifically mentioned in the Mishna, the Gemara considers it a valid rejection of the argument that Abba Shaul’s novelty is that even the daughter is permitted. But Tosfos has just said that since the ruling that Rabban Gamliel permits her even when there was a majority of unfit people is not specifically mentioned in the Mishna, we can answer that Abba Shaul’s novelty is that she is permitted even when there was a majority of unfit people, if so, why couldn’t the Gemara say that Abba Shaul’s novelty is that her daughter is also permitted, since it is not specifically mentioned in the Mishna?That which [the Gemara] asks earlier, there in Kiddushin 74a, when [the Gemara] attempts to say that Abba Shaul comes to add that her daughter is fit to marry a Kohain: That is fine according to the one who says that [Rabban Gamliel] who rules [the mother] fit to marry a Kohain, rules that her daughter is unfit to marry a Kohain. Since Rabban Gamliel holds that the daughter is unfit, it is logical to say that Abba Shaul is teaching us that even the daughter is fit to marry a Kohain. However, according to the one who says that [Rabban Gamliel] who rules that she is fit to marry a Kohain also rules that her daughter is fit, how can it be said that Abba Shaul comes to add that her daughter is also fit? Since Rabban Gamliel also holds that her daughter is fit, what is Abba Shaul adding?But according to Tosfos’ explanation earlier, since Rabban Gamliel’s leniency in regard to her daughter is not specifically mentioned in the Mishna, it can be said that Abba Shaul’s novelty is that her daughter is also fit? Just as we say that since Rabban Gamliel does not specifically mention in the Mishna that she is permitted to a Kohain even though there was a majority of those who would render her unfit, it is justifiable to say that Abba Shaul is adding this novelty, even though Rabban Gamliel concurs with Abba Shaul’s position, so too, since Rabban Gamliel did not specifically mention in the Mishna that her daughter is also fit, it is justifiable to say that this was Abba Shaul’s addition, even though Rabban Gamliel agrees?There in the earlier part of the dialogue in Kiddushin 74a, [the Gemara’s] question is fine, for even according to Zeiri,1<i class="footnote">The Gemara on 13a says that according to Rav Asi, the second part of the Mishna that speaks about a young unmarried lady who is pregnant, is teaching us that the Mishna’s intention is to teach us that Rabban Gamliel permits even the daughter to marry a Kohain. Tosfos is now adding that even though we are not compelled to say this according to Zeiri, the simple translation of the Mishna indicates that this is true even according to Zeiri.</i>2<i class="footnote">I have followed Maharshal’s emendation of our Tosfos as it is printed in our Gemaros. See מהרש"א for an alternate reading.</i> from the text of the Mishna which reads: “What is the status of this fetus?” it is to be understood that [Rabban Gamliel] is coming to rule that her daughter is fit to marry a Kohain. Otherwise, why is the Mishna discussing the fetus at all? This reference to the fetus is saying that Rabban Gamliel is also ruling that her daughter is fit. If so, what is Abba Shaul adding?
  
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   It is obvious [that we dismiss the claims of the ‘son’]. Do we know who fathered him?There is a similar Gemara in Kiddushin 75a: As we learned concerning a betrothed woman who became pregnant: Rav Says the child is a mamzer and Shmuel says the child is a “silenced one”.A bit later in the dialogue the Gemara asks: But what does Shmuel mean when he refers to the child as a “silenced one”? Does he perhaps mean that we silence his claim that he is an heir to his father’s estate?The Gemara then asks: That is obvious. Do we know who his father really is? Certainly not!The Gemara answers: It is only necessary to inform us that he is not entitled to a share in his father’s estate when he already seized the assets. Shmuel is teaching us that even though he is already in possession of what he claims is a share of his father’s estate, his claim is silenced.It seems that our Gemara could have used the same answer as Kiddushin 75a. That Shmuel is teaching us that even though the ‘son’ already took possession of the estate’s assests, he is silenced and his claim is useless. Here, [the Gemara] does not want to answer “it was only necessary for Shmuel to teach us that the 'son’ is silenced from his claim that he is an heir when he already seized the property in question”, as the Gemara answered to this very question in Perek Asoroh Yuchsin (Kiddushin 75a) in regard to a betrothed woman who was pregnant. For there in the case of a betrothed woman who was pregnant, there are grounds to believe that she was impregnated by her betrothed, and there is reason to assume that it was he who impregnated her more so than other men. It is therefore necessary for Shmuel to inform us that even so, and even when he already seized the property in dispute, we silence his claim.However, in our Gemara, where there is a one out of ten possibility that the deceased fathered this son and we have no special reason to believe that it was in fact the deceased who fathered him, there is no need for Shmuel to teach us that his claim is disregarded.
  We require that his seed be pedigreed after him. The Gemara concludes that even when we are certain that a person is definitely the offspring of a Kosher Kohain, we ‘silence’ him from his right to serve in the Bais Hamikdosh as a Kohain, because one of the prerequisites for service is that his lineage must be traceable. It is not enough to be certain that he was born of a Kosher Kohain. We must know that he is the son of a particular father. When we do not know who his father is, he cannot serve in the Bais Hamikdosh.It follows that whenever a Kohain’s paternity is in question, he cannot serve in the Bais Hamikdosh. There is a contradiction to this conclusion in Yevamot 37a. That which [the Gemara] says in Hacholetz (Yevamot 37a) in regard to the possibility that a Kohain is the child of a Kohain who passed away seemingly childless, whose brother then performed yibum and subsequently it was discovered that his mother was pregnant and there is a question that perhaps [the child] is the son of the first husband, and he was born after nine months of pregnancy or perhaps he is the child of his brother, the second husband, born after seven months of pregnancy and in either case the issue of a Kosher Kohain. The Baraisa rules that the first child of the second brother is suitable to be a Kohain Gadol, because we know that no matter whether he is the child of the first husband or the second husband, he is the son of a Kosher Kohain. It seems that even though we are unaware of exactly who his father is, he can serve in the Bais Hamikdosh. This contradicts our Gemara that says even though we know that all the Kohanim who might have cohabited with this lady were Kosher, the child cannot serve in the Bais Hamikdosh, because because his lineage is not traceable to his father.Tosfos explains: In Perek Nosin al Hanusah (Yevamot 100b) [the Gemara] asks this question and answers: the requirement that one’s seed must be traceable to [his father] is inherently Rabbinic, and the verse cited as proof of this requirement is merely offered as support of the Rabbinic decree, but is not truly a derivation from the verse. [The Rabonon] only instituted this decree when the child in question is the product of promiscuity as it is in our Gemara in Kesubos 13b, however, when the child is a product of a legitimate marriage as in Yevamot 37a, the Rabonon did not decree that the child should not be allowed to serve in the Bais Hamikdosh.
  
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  That Chosson and his Kallah. At the conclusion of our Gemara on 14a, the Gemara rules:A) That we are not concerned that the Kallah might have cohabited with another man who fathered this child, because the Chosson admitted that he had relations with her.B) Even if we did not have the admission of the Chosson,1<i class="footnote">This does not mean that the Chosson denied paternity. If he denied paternity, we would not believe the mother. The Gemara means that we did not discuss the issue with the Chosson and he is presently unavailable. We must rule based only on the information we receive from his mother. See Rosh here and Shulchan Aruch E.H. 4, 27 and Gra there 64 &amp; 67.</i> Rav Yehudah in the name of Shmuel ruled that we follow Rabban Gamliel who says that the we believe the Kallah who claims that the child is legitimate.Our Gemara is not the only Gemara that deals with this issue. The Gemara in Kiddushin 75a and in Yevamot 69b also speaks about similar situations. A superficial reading of all these Gemaros might lead one to believe that they are contradicting each other. Tosfos takes us by the hand and leads us through all these passages and ultimately shows us how they are not contradictory.I quote verbatim only the Gemara in Kiddushin 75a. As we learn the Tosfos we will becomes sufficiently aware of the Gemara in Yevamot 69b. The Gemara in Kiddushin 75a speaks about a similar situation, but the conclusion seems to differ with what we have concluded here in Kesubos 14a. As Tosfos says later, the text of the Gemara in Kiddushin that he is quoting is not the text that we have printed in our edition of the Gemara. The quote – הבא על ארוסתו בבית חמיו appears in our Gemara in Yevamot 69b (version 1).Tosfos will reconcile the differences between the two Gemaros. We learned concerning one who cohabited with his betrothed in the house of his father-in-law: Rav says the child is a mamzer and Shmuel says the child is a “silenced”one.At this point in the dialogue of the Gemara, both Rav and Shmuel hold that there is a serious question about the paternity of this child and he or she is not permitted to marry a Yisrael. Their dispute is only whether the child is a definite mamzer or whether there is only a doubt that he might be a mamzer.Eventually, the Gemara offers another interpretation of Shmuel’s opinion: If you want, I can say another explanation of Shmuel’s use of the word שתוקי - a silenced one. What did Shmuel mean when he used the word שתוקי? He meant that he has been - investigated! When we investigate his mother about the lineage of the child’s father, she responds: I cohabited with a kosher man, who did not render me unfit to marry a Kohain. We believe her and she and her child are allowed to be married to a Kohain.The Gemara continues: In accordance with whom did Shmuel rule that we believe the mother? In accordance with Rabban Gamliel.According to this text of the Gemara in Kiddushin, Shmuel initially ruled that when we know that a Chosson cohabited with his Kallah before the Chuppah, the child would be forbidden to marry a Yisrael because we are concerned that he is a mamzer. This definitely contradicts our Gemara, where it seems that the child is even permitted to marry a Kohain.Tosfos at this point assumes that when the Gemara in Kiddushin says: A Chosson cohabited with his Kallah in his father-in-law’s home, the implication is that we know of this cohabitation because he admits that this is so. Therefore, it is exactly the same as our Gemara, which speaks of a Chosson who admits that he fathered his Kallah’s child. We must therefore differentiate between the two cases. That which [the Gemara] says in Perek Asoroh Yuchsin (Kiddushin 75a): We learned: Concerning one who cohabited with his Kallah in his father-in-law’s home i.e. during the period of betrothal. Rav says: the child is a mamzer. Shmuel says: The child is a “silenced” one, which means that there is only a reasonable doubt that he might be a mamzer, but he is not definitely a mamzer.That Gemara is speaking of when they did not investigate his mother, for if they investigated his mother, and she insists that her child is her Chosson’s, there is a contradiction between Shmuel in Kiddushin 75a and Shmuel here in Kesubos 13b. For Shmuel says here in Kesubos 14a that we believe the Kallah because the halacha follows Rabban Gamliel that we believe her, and there in Kiddushin [the Gemara] says we must reverse the opinions and Shmuel says the child is a mamzer. Obviously, there must be some difference between the two cases, and Tosfos holds that the difference is that in Kesubos the mother was investigated and testified that the child is kosher, whereas in Kiddushin the mother was not investigated and we have no way of investigating her now. We are forced to rule without the testimony of the mother and the child is therefore declared a mamzer.So it seems that the initial ruling of the Gemara there is based on the lack of testimony from the mother, for at the conclusion of the exchange the Gemara answers: Actually we need not reverse etc. [the opinions of Rav and Shmuel] and the Gemara there explains Shmuel’s statement as follows: What did he mean when he referred to this child as שתוקי - a “silenced’ one? That we investigated his mother and she says that I cohabited with a kosher man and our child may even marry a Kohain. It definitely seems that in its initial understanding of the case, the Gemara assumed that the mother had not been investigated. Under those circumstances, it was understandable that that Shmuel ruled the child a mamzer. When the Gemara eventually concluded that Shmuel was speaking of when the mother had testified in favor of the legitimacy of her child, it concluded that the child is kosher. This concurs with Shmuel’s opinion here, that we rule in favor of Rabban Gamliel who says that we must believe the mother about the paternity of the child.As we mentioned earlier Tosfos understands that in the Gemara in Kiddushin we know of the Chosson cohabiting with his Kallah by his own admission, which is exactly the same situation as in our Gemara. If so, there is still a huge difference between the conclusion of both Gemaros.We must remain aware that our Gemara clearly states that there are two distinct reason for ruling that the Chosson is the father of the child:A) He admitted paternity.B) The Kallah as well insists that the Chosson is the father.It appears from our Gemara that each of these reason is independently sufficient to rule that the child is the son of the Chosson. If you ask: We have still not resolved the contradiction between the two Gemaras about Shmuel’s opinion, for there in Kiddushin 75a it appears that only when there are two factors:A) by his own admission the Chosson cohabited with his betrothed in his father-in-law’s home,B) investigating the Kallah, accomplishes that we rule the child is kosher. There must be a combination of both the Chosson’s admission and the Kallah’s testimony.However, here in Kesubos it seems that even when the Chosson does not admit1<i class="footnote">This does not mean that the Chosson denied paternity. If he denied paternity, we would not believe the mother. The Gemara means that we did not discuss the issue with the Chosson and he is presently unavailable. We must rule based only on the information we receive from his mother. See Rosh here and Shulchan Aruch E.H. 4, 27 and Gra there 64 &amp; 67.</i> that he is the father, Shmuel says that we believe the Kallah, in accordance with Rabban Gamliel who rules that we believe the mother even when we have not heard from the Chosson at all, such as in the case of the unknown partner, where we did not hear from the father.In order to reconcile Shmuel’s stated opinions, we must say that the case in Kiddushin, where both father and mother testify about the legitimacy of her child was not described that way to accommodate Shmuel. Shmuel would hold that even if we only have the testimony of the mother, the child is kosher. But why did the Gemara there create the scenario including the father’s admission as well?We can answer: That the reason [the Gemara] in Kiddushin mentioned that we know that the Chosson cohabited with his Kallah by his own admission, is because it is a greater novelty according to Rav that it was mentioned. That even so, that both Chosson and Kallah testify that the Chosson fathered this child, [Rav] says the child is a mamzer. However, according to Shmuel, even if we have only the testimony of the mother, the child is not only legitimate, but may even marry a Kohain.Tosfos now offers another distinction between the Gemara in Kiddushin and our Gemara in Kesubos, so that there should be no contradiction between the two positions of Shmuel. This distinction initially appears in Yevamot 69b, where the Gemara is dealing with a Mishna in Yevamot 69a that says: When a Kohain cohabited with an unmarried girl his child may eat Terumah. It is clear that even though she was not married to this Kohain, we believe her when she says that he is the father. This stands in contradiction to Rav and Shmuel’s ruling that even when Kallah and Chosson agree about the paternity of their child, his lineage is in doubt and he is declared unfit to marry even a Yisrael.Rava there suggests that Rav and Shmuel are speaking of when there are rumors that the Kallah cohabited with others and the Mishna is speaking of when there are no rumors that the single girl cohabited with other men. Tosfos will now use Rava’s explanation of Rav and Shmuel in Yevamot 69b to resolve the contradiction between Shmuel’s statements.Alternatively, there in Kiddushin 75av it is required that we know by his own admission that the Chosson cohabited with the Kallah, and only then will we believe the Kallah who says that the Chosson fathered this child, because [the Gemara in Kiddushin] is speaking of when there are rumors that she was promiscuous not only with her Chosson, but with others as well. Since there are rumors that she cohabited with others, it is necessary that both Chosson and Kallah testify that the child is legitimate as Rava says in Yevamot at the end of Perek Almanah L’Kohai Gadol (69b): It is reasonable that Rav’s statement is speaking of when there are rumors that she was generally promiscuous. However, here in Kesubos we are speaking of when there are no rumors that she was generally promiscuous and that is why Shmuel believes the testimony of the Kallah alone when she testifies that her unknown partner was of kosher lineage.Tosfos will now concede that this entire exercise was needed only according to a single manuscript in Kiddushin that speaks of one who cohabited with his betrothed. All other manuscripts tell a different story. Furthermore, in all manuscripts the text in Kiddushin (75a) reads: A betrothed Kallah who became pregnant. There is no mention of the Chosson admitting that he was the father of this child. We can now understand that it is specifically in that case, when we have not heard from the Chosson1<i class="footnote">This does not mean that the Chosson denied paternity. If he denied paternity, we would not believe the mother. The Gemara means that we did not discuss the issue with the Chosson and he is presently unavailable. We must rule based only on the information we receive from his mother. See Rosh here and Shulchan Aruch E.H. 4, 27 and Gra there 64 &amp; 67.</i> that [the Gemara] says that we must investigate the Kallah, but when we know that the Chosson cohabited with the Kallah by his own admission, investigating the Kallah is unnecessary. Thus, there is no contradiction between the two statements of Shmuel.Tosfos has spoken of two different texts about the dispute between Rav and Shmuel in Kiddushin. Actually both of these cases appear in Yevamot 69b as variant versions of the dispute between Rav and Shmuel. Abaye in Yevamot 69b holds that even when there are no rumors that the Kallah was promiscuous with other men, the child is prohibited even to a Yisrael. According to Abaye we cannot say that the difference between Yevamot (version 1) where Shmuel is stringent and Kesubos where Shmuel is lenient is because Yevamot (version 1) is speaking of when there were rumors about the Kallah’s activity with other men and Kesubos is speaking of when there were no rumors, because Abaye holds that in Yevamot (version 1) Shmuel rules stringently even when there are no rumors of activity with other men. How will Abaye resolve the two conflicting statements of Shmuel? In Kesubos Shmuel rules that either the Chosson’s admission or the Kallah’s testimony is sufficient to permit the child to marry even a Kohain, whereas in Yevamot 69b, Shmuel rules that even in the absence of rumors, even when Chosson and Kallah testify that the child was fathered by the Chosson, he is ruled illegitimate.However, there is a difficulty with the first version of Rav and Shmuel’s dispute in Yevamot 69b, at the end of Perek Almanah L’Kohain Gadol, where Rav and Shmuel argue when we know by his own admission that the Chosson cohabited with the Kallah. Abaye concludes there in Yevamot 69b that even though there were no rumors that [the Kallah] was generally promiscuous, Rav and Shmuel argue about the status of the child, but both agree that he may not marry a Yisrael, because perhaps just as she was promiscuous with her betrothed, so too she may have been promiscuous in general and we have no idea who the father really is. It emerges that according to Abaye even when the Kallah is not known to have been promiscuous with others, we are still concerned that she may have been with others besides her Chosson.But [the Gemara] here says: One reason that the child is kosher is because the father admits that it was he, who fathered the child. It seems that according to this reason the child is kosher even according to R’ Yehoshua.2<i class="footnote">The Gemara on 14a says that even without the father’s admission Shmuel rules like Rabban Gamliel that we must believe the mother. It seems that according to the first analysis that the father admitted his paternity, the child is kosher even according to R’ Yehoshua.</i> What is the difference between these two Gemaras according to Abaye?Tosfos’ question that there is a contradiction between the two Gemaros is dependent on the circumstance of each Gemara being the same. At this point Tosfos needs to ascertain that the cases are in fact similar. The Gemara in Yevamot (version 1) speaks of one who ‘cohabited’ with his betrothed. Our Gemara speaks of the Chosson ‘admitting’ that he fathered the child. And the expression ‘he cohabited’ used in Yevamot 69b, means the same as the expression ‘he admitted’ used here in Kesubos. For the expression ‘he admitted’ fathering the child used here, means only that he says he cohabited with her. It certainly does not mean that he was tailing her, to lie in wait for her in order to insure that she was not promiscuous with others.3<i class="footnote">See שיטה מקובצת who quotes other Rishonim who hold that the Chosson’s testimony about the paternity of the child is effective only if he says “her hand did not move from my hand” i.e. we were constantly together and she definitely did not cohabit with anybody else.</i> Tosfos assumes that the expression ‘he cohabited’ with her in Yevamot means that we know this by his own admission, not by testimony of witnesses. Ultimately Kesubos rules that when the Chosson admits that he fathered the child, we accept his testimony even according to R’ Yehoshua, but Yevamot seems to be saying otherwise, that according to both Rav and Shmuel, the child is forbidden to marry a Jewess by birth4<i class="footnote">A mamzer may not marry those who are Jewish by birth. He may however, marry converts to Judaism.</i> for the term “silenced” that Shmuel says, means that he is forbidden to marry a Jewess by birth according to all5<i class="footnote">The Gemara in Kiddushin in one version says that even according to Rav, who refers to the child as a mamzer, he is not permitted to marry a definite mamzeress, since it is not certain that he is a mamzer. If so, what does Shmuel mean when he refers to the child as a “shetuki - silenced” one? Usually that term is reserved for a dubious mamzer, whi is not permitted to marry a definite mamzer or a Jewess by birth. In what way is Shmuel differing with Rav? The Gemara offers a few suggestions of how Shmuel’s appellation - “shetuki - silenced” one is to be understood. According to all suggestions there, with the exception of the very last one, Shmuel holds that the child is a dubious mamzer and may not marry a Jewess by birth. Tosfos refers to those explanations of Shmuel as “all the versions”. The very last interpretation of Shmuel, is that if we investigate his mother and she testifies that he is kosher, we believe her. Tosfos refers to this last interpretation of Shmuel as - ‘the version that he was ‘investigated’.</i> versions of the Gemara mentioned in the last Perek of Kiddushin. And according to the version in Kiddushin 75a, that says Shmuel meant “an investigated” child, i.e. his mother was investigated about the lineage of her fetus and testified that he was kosher, there is also a great difficulty, for it is to be understood that even when the father has been investigated as evidenced by the Gemara’s use of the expression ‘he cohabited’, which we know by his own admission, the child is kosher only according to Rabban Gamliel, because the Gemara there specifically says that our investigation of the mother is effective only according to Rabban Gamliel, but according to R’ Yehoshua, we do not believe the mother. Whereas, here [the Gemara] says in its analysis of the case, that when [the Chosson] admitted that he fathered the child, he is kosher according to all opinions. It is only when the Gemara says that even if he did not admit paternity, we believe the mother, that the Gemara introduces Shmuel’s ruling in favor of Rabban Gamliel. It is a fair assumption that when the Gemara was ruling that the child is kosher based on the father’s admission, it means that he is kosher even according to R’ Yehoshua.According to Abaye, we are still faced with our original problem: What is the difference between Yevamot 69a (version 1), where Shmuel rules that despite the admission of the father, the child may not marry a Jewess by birth, and Kesubos 14a, where the Gemara rules that when the father admits paternity, the child is kosher even according to R’ Yehoshua? Perhaps we can distinguish between the two cases as follows: That the expression “he cohabited” used there in Yevamot 69b, means he admits that he cohabited with her once and could have fathered the child. However, the expression “he admitted” used here where he said the child was “from me”,6<i class="footnote">Some commentators say that the expression used by the Gemara – אין מינאי proves that the Chosson is saying that the child is definitely mine. The Gemara could have simply used the word אין to indicate the Chosson’s admission that he cohabited with her. The use of the word מינאי - from me, indicates that he is certain the child is his, because he lived with his Kallah regularly.</i> means that he is saying that he cohabited with her many times and that he was with her constantly, as [the Gemara] says when ruling that even though we know a married woman committed adultery, her child is kosher, because the majority of cohabitation is with her husband even though she may have cohabited with others. So too, here in Kesubos, we are speaking of a Chosson who is saying that he cohabited with his Kallah on a regular basis, as if he would be married to her. Here, we rule that the child is his, even according to R’ Yehoshua. There in Yevamot 69b (version 1) we are speaking of when the Chosson admits that he cohabited with her once and he could be the father. Abaye holds that even in the absence of rumors that she cohabited with others, we are concerned that she may have been with others and the child might be a mamzer. It is only according to Rabban Gamliel that we rule the child kosher, when his mother testifies that she was impregnated by her Chosson. 
  
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  First, he admits [that he is the father]. In version 1 in Yevamot 69b the Gemara relates that the dispute between Rav and Shmuel is about when we know (by the Chosson’s admission) that he cohabited with her. Rava rules that if there are no rumors that she might have cohabited with others, her child is kosher. Abaye as we have seen disagrees.In version 2 we have not heard from the Chosson. All we know is that she is presently pregnant. Rava rules that even if there are rumors that she was generally promiscuous, since there are also rumors that she cohabited with her Chosson, the child is kosher. Abaye holds that in face of rumors that she cohabited with others as well as teh Chosson, the child is not kosher.According to רש"ש1<i class="footnote">I followed רש"ש with the explanation of this Tosfos. It seems a bit odd that Tosfos would ignore the distinction that he just made in the previous Tosfos, between the relatively minor admission of one cohabitation in Yevamot and the major admission of regular cohabitations here in Kesubos.</i> our Tosfos is following the opinion of Rava there in Kesubos and is not taking into account the distinction that was made between the two different types of admission that was discussed at the conclusion of the previous Tosfos. According to the first version in Yevamot (69b) his admission is accepted only when there are no rumors that she was generally promiscuous. It is only then that Rava accepts the Chosson’s testimony about the paternity of the child, as is evident in the Gemara there. According to the other version, even if there are rumors that she was generally promiscuous, since the Chosson admits that he is the father, we attribute the child to him.
  First, he admits. When we discover that a betrothed Kallah is pregnant, we must deal with two issues:A) She obviously cohabited with a man and we do not know his identity. Did she become prohibited to her Chosson by cohabiting with another man?B) What is the status of the child? Is he kosher and permitted to marry a Jewess by birth or is the child perhaps a mamzer and excluded from the Congregation of Hashem?In Rav Yosef’s analysis of the question he says: what are we concerned about?1) The Chosson admits that he fathered the child.2) Even in the absence of his admission, we rule like Rabban Gamliel that we must believe the mother.What is unclear in the Gemara is whether Rav Yosef was dealing with issueA) whether the Chosson is permitted to live with his Kallah? or with issueB) the status of the child.Tosfos will examine both possibilities and conclude that Rav Yosef was dealing with the status of the child. We can explain that [the Gemara] is speaking about whether the Kallah is forbidden to the Chosson since she may have committed adultery during betrothal. The explanation is as follows: One reason for permitting the Kallah to the Chosson is that [the Chosson] admitted that he had relations with his Kallah and we know how she became pregnant. Therefore she does not become forbidden to him.The next sentence in our Gemara becomes difficult when we say that it is addressed to the issue of whether the Kallah is forbidden to the Chosson or not. The Gemara presents Shmuel’s ruling that we follow Rabban Gamliel who says that we believe the mother as far as the legitimacy of the child is concerned.But what is the Chosson saying? We do not have the option of saying that the Chosson is presently unavailable or has passed away as Tosfos will say in his second explanation of the Gemara, because we are dealing with issue A), whether the Kallah is permitted to him or not. He must be alive and available, otherwise there is no point in ruling on issue A). If so, what is he saying? Tosfos attempts to explain this sentence despite the inherent difficulties. And furthermore, even without the admission of the Chosson, Rav Yehudah etc. [said in the name of Shmuel that the halacha follows Rabban Gamliel]. [The Gemara] is not saying that even if the Chosson does not admit paternity, his Kallah will be permitted to him because we believe her, for if he does not admit paternity, and he is presently available, he must be saying that he did not cohabit with her,1<i class="footnote">It is noteworthy that Tosfos does not consider the option that the Chosson says nothing when questioned. Perhaps it is plain to Tosfos that even if the Chosson remains silent when asked if he fathered the child, it is tantamount to admitting that he did not.</i> if so, it is certain that she is forbidden to him. She is pregnant and obviously cohabited with someone. The Chosson says it was not him. This is tantamount to saying that she committed adultery and she is therefore forbidden to the Chosson. Even if the bais din does not necessarily believe his word against the Kallah’s, she is forbidden to him, because he has rendered her by his own word as forbidden to himself.Rather, what the Gemara means to say is that even when we cannot use his admission as proof of the paternity of the child, for example according to Abaye at the end of Perek Almanah (Yevamot 69b) who says: That since she was promiscuous in regard to the Chosson, she may have also been promiscuous in regard to others as well and his admission does not convince us that she cohabited only with her Chosson. According to this explanation, the Chosson is admitting paternity, however the bais din will not accept his admission as proof positive of paternity, because she may have cohabited with others.According to Abaye we disregard his admission because it does not say enough. If so, how can we rule that she is permitted to him? Even so, she is not forbidden to him, because we believe her as Rabban Gamliel ruled that we believe a mother about the legitimacy of her child. So too, we believe her that she is permitted to her husband. The Gemara is ruling that despite our inability to establish paternity based on the Chosson’s admission, we can establish paternity on the testimony of the mother. This same concept applies to her permissibility to her husband. The Gemara is effectively saying that Abaye’s concern that the Kallah may have committed adultery with others is true only in the absence of her testimony to the opposite. However, if she does testify that she was not adulterous with others, we do believe her.So did R’I explain the Gemara to us, but it is impossible to sustain [this explanation]. For according to [R’I’s] explanation, if this is correct, then that which Abaye said: That the Chosson’s admission does not convince us, for since she was promiscuous in regard to her Chosson she may have been promiscuous with others, that is so only when the mother was not investigated, because our Gemara is saying that when the Chosson’s admission is not sufficient to convince us, because of Abaye’s concern, we do rely on the testimony of the mother if available.But this is not so! For Abaye’s statement was originally said in reference to the dispute between Rav and Shmuel about a Chosson who cohabited with his Kallah, where the Gemara in Kiddushin 75a interprets Shmuel’s use of the term “שתוקי-silenced” as meaning “בדוקי-investigated” - his mother was investigated and said that she cohabited with a kosher man. Even so, Abaye rules that we do not accept the admission of the father as proof positive of the paternity of the child. The Gemara in Kiddushin is clearly saying that even when the mother has been investigated and testified as to the paternity of her child, we still do not accept the admission of the Chosson. This conclusion contradicts R’I’s explanation of our Gemara.The explanation of Shmuel’s use of the term “שתוקי” as “בדוקי-investigated” is mentioned in Kiddushin 75a. According to Tosfos text that Gemara is speaking about “one who cohabited with his betrothed”. It is known to us by his admission that he had relations with his Kallah. It is in reference to that case, that Abaye in Yevamot 69b voices his concern that the Chosson’s admission is insufficient evidence.Tosfos has shown that the Gemara there is speaking of when the mother has been investigated. We have both father and mother saying that the Chosson is the father and even so Abaye does not accept this as evidence. This of course contradicts R’I who says that when the father’s admission is insufficient because of Abaye’s concern, we will accept the testimony of the mother.However, as Tosfos mentioned earlier on 13b ד"ה חדא דקא מודה, most manuscripts of the Gemara in Kiddushin have an alternate text. Our Gemara in Kiddushin follows the alternate text. Tosfos will now concede, that his refutation of R’I is only valid according to his text. According to most manuscripts, the Gemara in Kiddushin 75a presents no problem to R’I.According to the texts in Kiddushin that read: A betrothed Kallah who became pregnant, there is no difficulty to R’I. The Gemara there which indicates that we do not accept the mother’s testimony according to Abaye is speaking of when we have not heard from the Chosson at all. All we know is that the Kallah had relations with someone, but we have no idea who it was. The Chosson is either deceased or unavailable. We are working exclusively with the mother’s testimony. It may very well be, that if both Chosson and Kallah testified that the Chosson was the father, we would believe them. There is no contradiction to R’I.Therefore, in order to understand how Tosfos’ text in the Gemara in Kiddushin can be reconciled with our Gemara, we must abandon R’I’s explanation, and we need to explain that here in Kesubos 14a, [the Gemara] is not speaking about whether [the Kallah] is forbidden to [the Chosson]. Rather, the issue discussed is about the legitimacy of the child. Saying that we are not discussing whether the Kallah is permissible to the Chosson or not, gives us the flexibility of saying that the Chosson is not present, as Tosfos will now say.The Chosson may make one of two statements:a) The child is mine.b) I did not cohabit with her and the child is not mine.There is a third option:c) The Chosson is saying nothing because he is either deceased or unavailable and the the bais din will have to rule on the legitimacy of the child without his input.And now, that we have explained that the issue in the Gemara is the legitimacy of the child, the “sugu-and furthermore” introducing a second reason for ruling that the child is legitimate, can be understood simply. The Gemara is saying: Furthermore, even if the father does not admit paternity, this does not mean that he said: b) the child is not his. For if this was so Rabban Gamliel would not rule that the child is kosher, since this would be a case of the mother claiming that she is certain that the child is her Chosson’s, versus the Chosson claiming that the child is certainly not his, as [the Gemara] says in the beginning of the second Perek, that Rabban Gamliel’s ruling that we believe the mother is only when the mother’s claim is certain and the opposition is uncertain.If so, what is the Chosson claiming? Rather, we are speaking of c) [the Chosson] passed away or he is not available for us to interrogate him.The Gemara says that in the situation under discussion we may rule leniently, because it is post facto. If as Tosfos originally thought, we are discussing whether the Kallah is permitted to the Chosson, we can understand that the question is post facto, because they are already betrothed. However, if we are discussing the legitimacy of the child, why is this considered ‘post facto’, the child is not yet in a marriage? That which [the Gemara] will soon consider this question of the legitimacy of the child as post facto, that is because the child will never be able to marry a Jewess by birth if we rule that we do not accept the mother’s testimony because a mamzer may not enter into the Congregation of Hashem. Furthermore, he would even be forbidden to marry a mamzeress, for by Torah law he is kosher and forbidden to marry a mamzeress.2<i class="footnote">By Torah law, we have no basis to declare the child a mamzer. There is absolutely no evidence that his mother was an adulterer and we would rule that he is kosher. All the concerns in our  Gemara about the paternity of the child are Rabbinic. Even if we are concerned that he might be a mamzer and Rabbincally forbid him from marrying a Jewess by birth, we cannot permit him to marry a mamzeress, for she is prohibited to him by Torah law.</i>(From 13Bf -  תוס' ד"ה ההוא ארוס, until here was missing from the Tosfos.)
  
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  A widow of uncertain status. עיסה - literally - dough. It is used in our Gemara as a description of an uncertain status. The widow of ‘eesa’ refers to a woman who married into this uncertain status and may possibly have become disqualified from marrying a Kohain. Tosfos will argue that the concept of עיסה - refers specifically to a family where there is a doubt about whether a chalal married into the family. Rashi translates עיסה as a doubt.Rashi offers of two explanations of אלמנת עיסה - literally, the widow of a doubt, which the Gemara refers to as double doubt:There was a divorce, whose results were in doubt. The husband threw a ‘get’ to his wife. It is uncertain whether it landed closer to her or closer to her husband. We are uncertain whether she is a divorcee or not. Subsequently, her first husband died and she then married a Kohain. Is her son by this second marriage a chalal or not. This depends on whether, she was a divorcee or not.A) The doubt happened to the mother of this dubious chalal, and she was forbidden to marry a Kohain only because of a doubt. This widow of her son who is now in doubt because of her son is referred to as a double doubt, because the original doubt did not happen to her. Her status is merely an extension of the original doubt.B) From the words of R’ Yosef Tuv Elem I found that the meaning of - widow of ‘eesa’ - is as follows: A woman whose deceased husband was himself a case of double doubt. For example: His mother’s divorce from her first husband was doubtful. Perhaps the thrown get landed closer to him, perhaps it landed closer to her. [The first husband] died within three months and she was married to a Kohain within those three months, and she gave birth to this son.The doubts are as follows:Perhaps he was a ninth month son of the first husband who was also a Kohain, and he is kosher, even if she was divorced, for 1) she conceived before the divorce. Or even 2) if she conceived after the divorce, but her first husband was a Yisrael and not a Kohain. In either of these cases [the son] is not a chalal. On the other hand, perhaps he was a seven month son of the last husband and he is the son of a Kohain and he is a dubious chalal. This is a double doubt: Perhaps he is not the son of a Kohain, and even if he is the son of a Kohain, perhaps his mother was not a divorcee, but a widow.Tosfos will first show why he rejects both explanations of Rashi. Rashi offered two explanation and both are awkward. Let us remember that in both of Rashi’s explanation, the halachic doubt about the person, is specifically about a known person. Our doubt is about his status. For [the Gemara] says later on 14b: Who is the widow of eesa? whoever was mixed in with a dubious chalal.But what is the relevance of the term ‘mixed in’, when discussing a woman who was married to a dubious chalal? There is no mixture. We know exactly to whom she was married. Our doubt is only about his satus. Furthermore, the expression ‘dough’ as a symbol of doubt, is not applicable to one person. Rather, it is applicable when speaking of a family, as [the Gemara] says (Kiddushin 69b): All lands are like ‘dough’ in comparison to Eretz Yisrael, and Eretz Yisrael is like ‘dough’ in comparison to Babylonia.
  
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  [The two opinions of] Rabbi Yehoshua are not contradictory. Abaye asked that there is a contradiction betweenA) R’ Yehoshua in our Mishna of Kesubos 13a where he does not accept the word of a pregnant young lady who insists that the father of her fetus is a man who does not disqualify her from Kehunah andB) the Mishna in Eduyos 8, 3, where R’ Yehoshua says that the widow of ‘עיסה-dough’ is permissible to a Kohain despite the fact that we are unaware of the status of her deceased husband.Abaye resolved the contradiction as follows:A) Our Mishna in Kesubos 13a is speaking of a young lady who had a promiscuous affair with the father of her fetus. In the midst of promiscuity, she does not investigate the status of her partner.B) The Mishna in Eduoyos 8, 3, is speaking of a woman who was legitimately married to her ‘עיסה-dough’ husband. We may assume that she investigated his status prior to her marriage.Rava disagreed with Abaye’s understanding of the contradiction between the Mishnayos of Kesubos and Eduyos. He points out that just as there is a contradiction between the two opinions of R’ Yehoshua, there is also a contradiction between the two opinions of Rabon Gamliel. In order to reconcile the contradiction between the two opinions of Rabon Gamliel, Rava said that in ourA) Mishna of Kesubos we are speaking of a woman who claims that she is certain that her partner was legitimate.B) The Mishna of Eduyos is speaking of a situation where the widow is uncertain about the status of her deceased husband.Rava also offers an alternative resolution of the contradiction between the two opinions of R’ Yehoshua:A) Our Mishna of Kesubos is speaking of when there is only one doubt about the legitimacy of the child’s father.B) The Mishna in Eduyos is speaking of when there was a double doubt.But why was it necessary for Rava to offer an alternative resolution for the contradiction between the two opinions of R’ Yehoshua? Does he disagree with Abaye’s explanation that when a woman marries she usually investigates the status of her husband? Now, [Rava] could not have answered that the reason for R’ Yehoshua’s leniency in Eduyos is because a woman who marries first investigates the status of her proposed husband’s legitimacy and then marries as [Abaye] answered earlier. Why not? Because now in order to resolve the contradiction between the two opinions of Rabon Gamliel we need to interpret the Mishna in Eduyos as speaking of when the widow is claiming ‘perhaps’, for she is also uncertain about the status of her deceased husband. We cannot say that we can rely on her investigation of her husband prior to her marriage when she herself is claiming that she doesn't truly know the status of her husband. Thus, it was necessary for Rava to find a resolution for R’ Yehoshua that conforms with the way the Mishna was interpreted to resolve the contradiction of Rabon Gamliel.Our Mishna in Kesubos 13a is speaking of when there is only one doubt about the status of the young lady’s partner and we must therefore be stringent.B) The Mishna in Eduyos 8, 3, is speaking of when there is a double doubt about the status of the deceased husband and that is why R’ Yehoshua is lenient.
  
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  The Rabbis taught: who is the 'widow of dough'? The Gemara earlier quoted a Mishna in Eduyos 8, 3, that discusses אלמנה עיסה literally the ‘widow of עיסה-dough’. According to Tosfos אלמנה עיסה the discussion is about a woman who married a member of a family among whom there are one or some dubious chalalim. According to Rashi, that Mishna is speaking of a woman who was married to an individual who is a dubious chalal. Since the translation of this term is somewhat ambiguous, I will always refer to her as ‘widow of עיסה-dough’ or as ‘widow of dough’.The Mishna spoke of the testimony of R’ Yehoshua that this woman is permitted to marry a Kohain. The Gemara now introduces a second Baraisa that according to our text also speaks of אלמנה עיסה. Towards the end of this Gemara we will learn that R’ Yose also agrees to the essential ruling of this Baraisa that a ‘widow of עיסה-dough’ is fit to marry a Kohain.Rabbeinu Tam cites a Gemara in Kiddushin 75a, where it appears that R’ Yose does not hold that אלמנה עיסה is permissible to a Kohain. We will soon quote that Gemara. Rabbeinu Tam suggests that the text of the present Gemara should not read “who is the widow of dough?”, but rather, “who is dough?”The term ‘עיסה-dough’ according to Rabbeinu Tam refers to the members of the family in question and not to a woman who was married to a member of the family. This member may be a male or a female. The issue is clearly whether the family has the disqualification of being mamzerin, nasinim, slaves, chalalim or not. Within this Tosfos, we sometimes refer to the individual as a female, she is called ‘daughter’ and sometimes in the context of Tosfos, we refer to ‘him’ a male. Essentially, there is no difference. I will always speak of the ‘daughter’ in a quotation mark as a reminder, that this is not necessarily a ruling that applies exclusively to the females of the family, but to the males as well.We must also keep in mind that when we speak of the ‘widow of עיסה-dough’, the intent is that she may have become disqualified because she had relations with the person in question. Usually, this is true of a widow married to that person. The same is however also true of a woman who was raped or seduced by the individual in question, even if they were not married.In summation: I will speak ofA) ‘widow of עיסה-dough’ which refers to a woman married to a dubious chalal,B) ‘עיסה-dough’, which refers to a family whose lineage is suspicious. This may be a male or a female. We will refer to the female as ‘daughter’.C) ‘Widow’ refers to any woman who had physical relations with a person whose lineage is in doubt, whether she was married to him or not.The Gemara says in Kiddushin 74b: The Rabonon taught a Baraisa: A boy who is nine years and a day old, who is an Amonite, Moabite, Egyptian or Edomite convert, or a Cuthean, nasin, chalal or mamzer, who cohabited with a woman who was either the daughter of a Kohain, Levi or Yisrael, disqualifies her. This is the opinion of the first Tanna. R’ Yose says: Anyone whose progeny is unfit such as an Amonite or Moabite convert renders [the woman with whom he cohabits] unfit. Anyone whose progeny is not unfit, such as a second generation Egyptian or Edomite, whose children may marry into the Jewish people, does not render [a woman with whom he cohabits] unfit.Rabon Shimon ben Gamliel says: Anyone whose daughter you may marry, such as an Amonite or Moabite convert, you may marry his widow. Anyone whose daughter you may not marry, you may not marry his widow.A bit later in Kiddushin 75a, Rav Chisda says: All, the first Tanna, R’ Yose and Rabon Shimon ben Gamliel, agree that a ‘widow of עיסה-dough’ is unfit to Kehunah. Who is the most lenient among these Tannaim? Rabon Shimon ben Gamliel. He says: Anyone, whose daughter you are allowed to marry, you are permitted to marry his widow. Anyone, whose daughter you are not allowed to marry, you may not marry his widow. What does this statement of Rav Chisda exclude? It excludes the ‘widow of עיסה-dough’, for she is unfit to Kehunah.It is very clear that all of the disputants in the Baraisa of 74b, including R’ Yose, hold that it is forbidden to marry the ‘widow of עיסה-dough’. This is definitely contradicts our Gemara where R’ Yose seems to say that a ‘widow of עיסה-dough’ is permitted. Rabbeinu Tam has a difficulty with the text of the manuscripts that read ‘widow of עיסה-dough’ as does the text in our Gemara. For if so, that the text is ‘widow of עיסה’, then R’ Yose holds that a ‘widow of עיסה-dough’ is fit to marry a Kohain, because he rules that a person who is silent when accused of being a mamzer is fit to marry into the Jewish people, despite the accusation that he is a mamzer, then certainly1<i class="footnote">See רש"ש. Also see Rashi יד: ד"ה כל שאין בה. Rashi is explaining the position of the first Tanna, who holds that any family that is accused of being mamzerim etc. and responds with silence is not kosher. But the Baraisa initially said - who is the ‘widow of עיסה-dough’ that R’ Yehoshua spoke of? The Baraisa certainly means that there is a ‘widow of עיסה-dough’ who is eligible. Yet the first Tanna speaks only of a family that is ineligible. Who is the ‘widow of עיסה-dough’ that is eligible. Rashi explains: But who is the ‘widow of עיסה-dough’ that was ruled fit? That is the wife of a dubious chalal, whose doubt we are aware of. His mother was the recipient of a doubtful divorce.But a family that we do not recognize and we hear that someone calls them unfit and the response is silence, they are unfit. Rashi understands that even the first Tanna who says that any response of silence renders the family unfit, holds that a woman whose husband was a dubious chalal is permissible to a Kohain. R’ Yose who is more lenient than the first Tanna, rules that even when one responds with silence to charges that his family are mamzerin, the family is ruled eligible certainly holds that the widow of a dubious chalal is permissible. However, according to Rabbeinu Tam’s explanation, our Baraisa is only discussing a family that is accused of being illegitimate. It is judged by the response of the accused. It is not discussing a woman who was married to a dubious chalal at all, and we have no indication whatsoever from this Baraisa about a woman who was married to a dubious chalal. See מהרש"א מהר"ם שיף and פני יהושע </i> he rules that a ‘widow of עיסה’ is fit, as is evident in the flow of [the Gemara]. Whereas, in Perek Asarah Yuchsin (ibid.) [the Gemara] clearly says that according to R’ Yose a ‘widow of עיסה-dough’ is unfit to marry a Kohain.There definitely is a contradiction between the Gemara in Kesubos 14a and Kiddushin 75a.2<i class="footnote">See שיטה מקובצת who quotes ריטב"א who answers that since R’ Yose is not mentioned within our Baraisa, but rather in some other Baraisa, it may be that he only stated that if a person is silent when accused of being a mamzer, he is ruled fit. This does not at all indicate his position about a woman who is a ‘widow of עיסה-dough’. The indication that a ‘widow of dough’ is permitted is only from those opinions mentioned within the Baraisa. See previous note.</i>  Therefore Rabbeinu Tam erases the word  אלמנה-widow of’ and emends the text as follows: Who is ‘עיסה-dough’? The Baraisa is addressing a ‘daughter’ of an עיסה family. It is not speaking about a woman who was married to a dubious chalal. This Baraisa refers to that Tosefta 3, 3, which we learned at the end of Eduyos: The ‘עיסה-dough’ is believed to establish that a family is pure or impure, to push away or draw near, to establish prohibition or admissibility. This is the explanation of the Tosefta: We believe a ‘daughter’ of this family to purify herself by protesting or remaining silent, according to one master as he holds and according to the other master as he holds. There is a difference of opinion within the Baraisa as to whom we believe when they do not protest and who is believed specifically when they do protest.Tosfos explains the six rulings mentioned in Tosefta: The expression: to render impure or pure is relevant insofar as illegitimacy and being a nasin is concerned, as we learned in a Mishna in Kiddushin (72b): Mamzerim and nasinim will eventually become pure in the future. We see that the word purity or impurity is used in reference to mamzerim and nasinim. The expression: to push away or draw near is relevant to being a chalal, as we learned in the Mishna in Eduyos 8, 3,: The Kohanim will listen to you to push away a family of questionable genealogy, but not to draw near a family whose lineage is questionable. So too, below (27a) we learned in reference to a young lady who pledged herself as security for a debt that was subsequently not paid and she became the property of the idolater creditors: the family members pushed her away. The phrase “push away” is used to describe a woman who is not permitted to marry a Kohain. The phrase: to render prohibited or admissible is relevant to those who might be slaves.Tosfos questions the use of the expression “to render pure or impure” in regard to the status of a family. His objection is based on the Gemara later on 28b. The Rabanan taught in a Baraisa: We believe a youngster who says: This is what my father said to me: This family is pure, that family is impure.Can it enter your mind that [the child] is saying: the family is pure or impure? Pure and impure is not usually used to describe a family’s status. The Gemara answers: Rather, what the Baraisa means is that the child is saying, this family is fit and that family is unfit. It is evident from this Gemara that pure and impure are not proper descriptions of a family’s status. This contradicts Tosfos’ explanation that pure and impure are descriptions of its status insofar as mamzerim and nasinim are concerned.That which [the Gemara] asks in the second Perek (below 28b) when discussing a family’s status, can it enter upon your mind that a child is saying: a family is impure or pure? It seems from the Gemara’s question that pure or impure is not an accurate description of a family’s status. That question was asked there because there the Baraisa is including all disqualifications in one phrase. He should have expressed it: This family is fit and that family is unfit. However, when the discussion is solely whether the family might be mamzerim of nasinim, the description pure or impure is truly relevant.Tosfos will now explain how the phrase “she is believed” is meant in this Baraisa that discusses the ‘עיסה-dough’ meaning a daughter of the family, as opposed to the ‘widow’ of this dough family. The expression “she is believed” is used because of the positive aspects of these issues which are to purify one suspected of being of a mamzer family, to draw near one suspected of being of a chalal family and to permit one suspected of being of a slave family.This expression “she is believed” is used even though in regard to the negative aspects of these issues which are: to render a family suspected of being mamzerim impure, to push away a family suspected of being chalalim and to prohibit a family suspected of being slaves, by the reaction to an accusation by protesting or silence, the term “she is believed” is irrelevant.3<i class="footnote">See אילת השחר by מו"ר רב אהרון ליב שטיינמאן who explains that when we rule that the family is unfit because of an improper response it is not a function of נאמנות-believing the ‘daughter’. It is the lack of response that causes us to believe that the family is unfit. Whereas, the proper response is נאמנות-believing her, because we are convinced by her active response. But why is this an issue only according to Rabbeinu Tam’s explanation? Why is it not a problem according to Rashi? We must keep in mind that the Tosefta in Eduyos 3, 3, uses only the wordנאמנת - she is believed. It does not at all mention exactly how she is believed. It may mean that she literally testified one way or the other. According to Rashi, the Baraisa we are currently discussing is explaining the Mishna in Eduyos 8, 3, which states that a ‘widow of עיסה- dough’ is permitted. The word נאמנת is not used in reference to any of the cases mentioned in that Mishna or our Baraisa. It is only according to Tosfos, that the word נאמנת is used in regard to the protestations or silence of the accused that it is necessary to explain that this refers only to a positive ruling in favor of the accused, but not to a negative ruling.</i>Tosfos now continues with his explanation of the Gemara according to his understanding that the Baraisa quoted in our Gemara is an explanation of the Tosefta at the end of Eduyos 3, 3, that is discussing the verification of a family accused of being mamzerim, chalalim or slaves and not about a woman who was married to a dubious chalal. It is in reference to that Tosefta in Eduyos 3,3, that this Baraisa quoted here explains: Who is the ‘עיסה-dough’ who we believe based on her reaction by protesting or silence? The issue is as Tosfos explained, to render the ‘daughter’ of this accused family pure, not a woman who was married to a member of this family.  So, it appears in Tosefta, for [Tosefta] teaches: The ‘עיסה-dough’ is believed to render as pure or impure, to prohibit or to permit, to push away or to draw near. The subject of a ‘widow of עיסה-dough is not touched.Tosfos now points out the advantages of his explanation that this Baraisa is discussing a ‘daughter’ of the suspected family and not the ‘widow’ who was married to a dubious chalal. Now, if we accept Rabbeinu Tam’s explanation, there is no contradiction from R’ Yose here in Kesubos 14b and R’ Yose in Kiddushin 75a. For R’ Yose who rules that the family in question is fit when reacting to an accusation of being a mamzer with silence is referring to ruling that the daughter of such a family is fit.However, where the ‘widow of ‘עיסה-dough’ is mentioned, the issue is to render the ‘widow’ fit and not the daughter, as is evident in Kiddushin 75a. There, R’ Yose definitely disqualifies even the ‘widow’, as is also evident in Kiddushin. It appears from Yerushalmi as Rabbeinu Tam has explained this Baraisa. For the Baraisa is taught there as follows: What is ‘עיסה-dough’? Any family that has no mamzer, no nasin and no slaves of kings. R’ Meir says: The daughter of any family that has none of these disqualifications, is fit for Kehunah. It is apparent that we are discussing the eligibility of the ‘daughter’ and not the eligibility of the ‘widow’.Tosfos raises a difficulty with Rabbeinu Tam’s explanation: However, Rashba has a difficulty with Rabbeinu Tam’s explanation: If this Baraisa is explaining [the Tosefta] at the end of Eduyos (Tosefta 3, 3), then how does R’ Meir, who holds that no matter whether the response to the accusation that the family are chalalim is protestation or silence the ‘daughter’ is ruled fit, explain that which is taught in the Baraisa that there is an option - to push away and rule that the family are chalalim? According to R’ Meir under all circumstance no matter whether the ‘daughter’ responds with protest or silence, she will be ruled eligible to Kehunah. Why does the Tosefta speak of the possibility of a negative ruling?Says R’I, that which R’ Meir rules that when the response to an accusation of chalal is silence he4<i class="footnote">Here Tosfos refers to the subject of the accusation as a male. See my introduction to this Tosfos.</i>  is ruled fit, that is when when we ask him afterwards if he is a chalal or not, and he protests and claims that he is not a chalal. However, if he is perpetually silent even when we ask him afterwards if he is a chalal or not, it is certain that he is ruled unfit. That which is taught in the Baraisa that ‘she’5<i class="footnote">Here Tosfos reverts to the female.</i> is believed to push away when accused of being a chalal is speaking of when ‘she’ is perpetually silent.
  
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  Neither due to <i>mamzer</i> status. The Baraisa is listing those that would render a woman disqualified from Kehunah by having relations with her. Why does the Baraisa not include a Moabite, Amonite, Egyptian or Edomite convert?  [The reason] the Tanna does not list an Amonite and Moabite among those who would render a woman with whom they cohabited unfit for a Kohain is because it is not definite1<i class="footnote">This explanation of Tosfos can be found in עיסה. He does have some difficulties with this approach. It is possible that Tosfos simply means that the Baraisa wants to avoid any dispute. In Yevamot 68a the Gemara cites a Baraisa where the first Tanna says that the Amonite, Moabite, Egyptian and Edomite do disqualify any women with whom they cohabit from Kehunah. R’ Yose says that a second generation Egyptian or Edomite does not disqualify from Kehunah, because his children will be permitted to marry into the Jewish people. R’ Shimon ben Gamliel says that an Amonite or Moabite does not disqualify a woman from Kehunah because his daughter is permitted to marry into the Jewish people. In order to avoid any disputes the Tanna of the Baraisa refrains from discussing the four converts that have some disqualification.</i> that if an Amonite or Moabite had married into a family, that all his descendants would disqualify women with whom they cohabited. For only the males are forbidden to marry into the Jewish nation, but the females are permitted. It is possible that one’s grandfather is a Moabite or Amonite and even so he is permitted to marry a Jewess. If his mother who was the daughter of the Amonite, he would be permitted to marry a Jewess and would not disqualify his wife from Kehunah. Since having an ancestor who was an Amonite or Moabite does not definitely disqualify a person from marrying a Jewess, the Baraisa does not list them among those who do disqualify a woman from Kehunah by cohabiting with them.There is a similar reason for not listing an Egyptian and an Edomite. An Egyptian and Edomite are not listed, because they are forbidden only till the third generation. If one’s grandfather was an Egyptian or Edomite, he would not be forbidden to marry a Jewess. It is only the original convert and his children that are forbidden to marry Jewesses. Since the disqualification is not forever, the Baraisa does not list it.2<i class="footnote">See שיטה מקובצת who says that the reason this Baraisa does not speak of the four converts is because they were not so common when the Baraisa was written. See Berachos 28a where the Gemara says that Sancheriv intermingled all the nations of the world and we do not know who originally was an Amonite etc.</i>
  
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  Furthermore, [the Baraisa says]: R’ Shimon ben Elozor says: Who is ‘dough-[of uncertain status’ whose widow may marry a Kohain? 1)] Anyone who became mixed up with a doubtful <i>challal</i>. [The Gemara asks]: But you said in the beginning [of the Baraisa, 2) if one was mixed up with] a <i>challal</i> [she is] fit. The text quoted in Tosfos’ heading differs from the text in our Gemara. It is also very difficult to understand the Gemara’s question. Both statements 1) and 2) seem to be saying that if there was involvement with a challal, she is fit to marry a Kohain. Where is the contradiction. Tosfos will explain the difference in texts, the difficulty with the this text and what the Gemara’s question is according to this text.In order to understand this Tosfos properly, we will have to review the text of our Gemara and the the text that Tosfos is quoting. The text of our Gemara according to Rashi:  Who is the widow of ‘dough-uncertain status’, who may marry a Kohain? 1) Whoever became mixed up with a doubtful challal.R’ Shimon ben Elozor seems to offer an explanation of his statement. The Jewish people recognize the mamzerim among them, 2) but do not know the challalim among them. Therefore, there is a distinct possibility that this person may truly be a challal and we are not aware of it. We would need to be concerned that his widow became forbidden to a Koahin because she had relations with a challal. But you said at the beginning of your statement that a doubtful 1) challal is fit?There is a contradiction between the beginning 1) of R’ Shimon ben Elozor’s statement and 2) the end of it. At the beginning 1) he says: that when involved with a doubtful challal, his widow is permitted to marry a Kohain, whereas, at the end of his statement he says 2) that if there is a doubtful challal involved, she is forbidden to marry a Kohain, because there is a possibility that her husband truly was a challal but we are not aware of it. This was presented by the Gemara as a seeming contradiction within the words of R’ Shimon ben Elozor according to Rashi’s text and explanation of the Gemara.The text of our Gemara according to Tosfos’ heading: Who is ‘dough-of uncertain status’, who disqualifies a woman by cohabiting with her? 1) Whoever became mixed up with a doubtful challal. But you said in the beginning of the Baraisa in the statement of the first Tanna, that if 2) one was mixed up with a challal, he is fit?The contradiction between statements 1) and 2) is not at all clear. Both seem to be saying that involvement with a challal does not create a situation where the widows of this family would be forbidden to Kohanim.As we learn the Tosfos, we will see how he explains the Gemara’s question.  This, text in the heading of Tosfos, is the text in all manuscripts and in the explanation of Rabbeinu Chananel. He explains the Gemara’s question as follows: 1) Whoever became mixed up with a doubtful challal remains fit to marry a Kohain, but if there was a definite challal, he is unfit. This can be deduced from R’ Shimon ben Elozor’s words in the Baraisa. Tosfos does not explain the logic behind these deductions, but rather the simple indications of the wording of R’ Shimon ben Elozor’s statement. The Gemara itself deals with the underlying logic of these statements.The Gemara attacks this conclusion that involvement with a definite challal, would disqualify one’s widow: But you say in 2) the beginning of the Baraisa, in the statement of the first Tanna, that even if there is involvement with a challal his widow remains fit to marry a Kohain, and [the first Tanna] is speaking about a definite challal?The contradiction is between R’ Shimon ben Elozor’s statement about a definite challal and the first Tanna’s statement about a definite challal. This explanation is not appealing, for how can [the Gemara] ask that there is a contradiction between the first Tanna and R’ Shimon ben Elazar? Perhaps the first Tanna who says that even in the case of a definite challal she is permitted, argues with [R’ Shimon ben Elazar] who says that when involved with a definite challal, she is forbidden. One cannot ask that two Tannaim contradict each other, it is not a fair question.The explanation of Rashi that there is a contradiction within the words of R’ Shimon ben Elazar, and his text is accurate. 
  
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  [A person who when called a] <i>mamzer</i> [responds by] [hollering, or [a person who when called a] <i>challal </i>is silent, is [the point of contention] between them. Tosfos’ explanation is a radical departure from Rashi. Some may not fully grasp the difference between Rashi and Tosfos. We must first review Rashi’s explanation of the Gemara and we will then be able to appreciate Tosfos’ dispute. A person who when called a mamzer, he hollers in response, and when [that very same person] is called a challal he is silent, is the point of contention between R’ Meir and the first Tanna of the Baraisa and also between the first Tanna of the Baraisa’s who presents R’ Meir’s opinion and R’ Shimon ben Elazar in the name of R’ Meir.It is clear that Rashi is speaking about one person. He reacts to the charge that he is a mamzer by hollering, but is silent when charged with being a challal. The Gemara will proceed to tell us exactly what each of the three opinions in the Baraisa holds.If a person is always silent when his lineage is challenged, there is no question that he is fit and may marry into the Jewish nation and he is also fit for Kohanim, i.e. his widow or daughter may marry a Kohain. To the contrary, a person who is always silent when his lineage is smeared is considered to be of perfect lineage. Silence in the face of such challenges is indeed a virtue. According to Tosfos, R’ Yochon is discussing at least three different people:A) One who hollers when his lineage is attacked with a charge of being a mamzer.B) One who is silent when charged with being a challal.c) In Tosfos we will see that if one is silent when called a mamzer, there is also a dispute.In the heading of our Tosfos we see that the Gemara speaks ofA) one who hollers when he is called a mamzer andB) one who is silent when called a challal. It does not specifically speak ofC) one who is silent when called a mamzer.This is bewildering! For [the Gemara] should have said three categories, A) a person who when called a mamzer hollers, C) a person who when called a mamzer is silent and B) a person who when called a challal is silent.  For about C) a person who when called a mamzer is silent, there is also a dispute. For R’ Shimon ben Elazar according to R’ Meir rules that he is fit and his widow or daughter may marry a Kohain, whereas according to the first Tanna’s opinion of R’ Meir one who responds with silence when called a mamzer is unfit. His widow may not marry a Kohain.
  
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  The Gemara is explaining the position of R’ Shimon ben Elazar in the name of R’ Meir. He says: But [a person who responds to the charge that he is a] <i>mamzer</i> by hollering and [to the charge that he is a] <i>challal</i> with silence is unfit.As we have explained in the introduction to the previous Tosfos, he holds that the Gemara is referring to two different individuals:A) A person who responds to a charge of being a mamzer by hollering andB) a person who responds to a charge that he is a challal with silence.This is in contrast to Rashi who holds that the Gemara is referring to one person who responds differently to each of the charges.Tosfos must now explain how the Gemara arrives at the conclusion that there is a dispute about a person who responds to the charge that he is a mamzer by hollering and that R’ Shimon ben Elazar holds that such a person A) who responds to charges that he is a mazer by hollering, is unfit. If you ask: How do we know that R’ Shimon ben Elazar disqualifies one who responds to charges of being a mamzer by hollering? Where do we see this in R’ Shimon ben Elazar’s words?Tosfos will now critically analyze the construction of R’ Shimon ben Elazar’s statement. Tosfos divides the statement into two parts:a) The lead statement: Who is dough-of uncertain status? Whoever became mixed up with a doubtful challal.b) The essence of his ruling: One needs to protest when called a challal but not when called a mamzer.Why is it necessary to have the lead sentence at all? That the subject of the Baraisa is “what is dough?” is already quite evident. The Baraisa does not give us any lead sentence about being mixed up with a mamzer.Says R’I: That R’ Shimon ben Elazar holds that one who responds to a charge of mamzer by hollering is unfit can be deduced from that which the Baraisa taught in [R’ Shimon ben Elazar’s] statement: a) What is ‘dough-of uncertain status’? Whoever became mixed up with a doubtful challal. Why was this sentence necessary? For in order to bring out his point that a charge of being a challal requires a strong response, he only needed to say “the Jewish people recognize the mamzerim among them, but do not recognize the challalim among them”. This sentence would adequately bring out R’ Shimon ben Elazar’s point that there is no need to protest a charge of mamzer with hollering, because one can rely on the fact that Jews are generally aware of who are mamzerim and who are not. Whereas, when charged with being a challal it is necessary to protest the charges, because not all people are aware of who is a challal and who is not. In order to protect one’s lineage he should respond strongly to the charge of challal. For from [this statement] “Jews are unaware of the challalim among them”, we understand that when after being called a challal one protests, he is fit because he should holler when his lineage is maligned and it is not common knowledge that he is not a challal.But perhaps the lead statement “whoever became mixed up with a doubtful challal” is needed to lead into the ruling that one must protest when charged with being a challal. Tosfos shows us that this is definitely not the case,  just as it was not necessary for [the Tanna] to lead with a sentence - “whoever became mixed up with a doubtful mamzer” in order to lead us into the ruling that if one is silent when called a mamzer, he is ruled to be fit. The sentence “Jews are aware of the mamzerim among them” is sufficient to inform us that one need not protest when called a mamzer. So too, the sentence “Jews are unaware of the challalim among them” is sufficient to instruct us that one does not need to protest when called a mamzer. If so, why did the Tanna lead with the sentence “whoever became mixed up with a doubtful challal?”Rather, [the use of this sentence] definitely comes to deduce that only when called a challal and one responds by hollering is he fit, but if when called a mamzer, he protests by hollering, he is ruled unfit. The use of a lead sentence when discussing the proper reaction of a challal, hollering, is used to tell us that this response is only proper for one being called a challal, but for one who is called a mamzer, it is the wrong response, and if he does respond by hollering, it is an indication that he truly is a mamzer.
  It is sufficient that they are not excluding him [i.e. me] from the nation. On the surface it appears that the Gemara is saying that the silence of the accused is because he is satisfied with allowing the accusation to stand ignored, since he is not accused of being a mamzer. A mamzer is restricted from marrying almost all Jewesses. A challal may marry whomever he pleases. The restrictions of being a challal are for his widow and daughters.1<i class="footnote">See Artscroll notes 11 and 12.</i> His silence is therefore understood as proof that he truly is a challal and he is silent because he is satisfied that he has not been excluded from marrying anybody. Eventually Tosfos will present a different explanation of this concept.For a proper understanding of this Tosfos, we must review the Gemara that discusses the reason of the first Tanna. The Gemara says that the first Tanna holds that when one responds with silence to any disqualifying accusation he is ruled unfit. Rashi explains:a) Because [his silence] is an admission. Tosfos assumes this explanation of the first Tanna’s opinion until almost the very end of this Tosfos. Accordingly, Tosfos sees the explanation of R’ Shimon -b) “it is sufficient that they are not excluding him [i.e. me] from the nation”, as a different rationale than the first Tanna’s.Ultimately, after Tosfos presents his understanding of “it is sufficient etc.”,Tosfos will say that R’ Shimon’s rationale is the same as the first Tanna’s. This will be explained in greater detail later. If you ask: Why is this second reason (b) needed to explain why when one is silent when called a challal he is deemed a challal, let us say that the reason he is silent is (a) because he is admitting to the charge of being a challal.  For one who is called a mamzer and is silent is disqualified according to the first Tanna, because his silence is the equivalent of an admission that he is a mamzer.2<i class="footnote">This understanding is not specifically mentioned in the Gemara. Rashi ד"ה תנא קמא סבר does offer this explanation. Tosfos at this point assumes that Rashi’s explanation of the first Tanna is correct and proceeds to argue that R’ Shimon could use the same rationale- that silence is the equivalent of an admission.</i> We cannot say that he is satisfied with not being called something worse than a mamzer, because there is nothing worse than being a mamzer. It must be that his silence in face of the charges convinces us that he is a mamzer.  The same should be true according to R’ Shimon, for one who is called a challal and responds with silence, that he is disqualified for this reason, that his silence is construed as an admission that he is a challal.But R’ Shimon holds that when one is silent when called a mamzer he is not ruled unfit! Perhaps he does not view silence as an admission and therefore needs another reason to rule him unfit?  Even though in regard to one who when called a mamzer responds with silence, according to [R’ Shimon], silence is not the equivalent of an admission, so too, perhaps R’ Shimon holds that when one is called a challal and responds with silence, it is not construed as an admission (a), and that is why the Gemara offers another reason (b) for ruling him a challal? That is because [the accused] holds that if one who was called a mamzer truly was a mamzer, there would be a rumor to that effect.Since there is no active rumor that he, the accused, is a mamzer, he relies on the lack of a rumor as proof that he is not a mamzer and sees no need to respond to the accusations. This is not true of one who is charged with being a challal. The Jewish people are not aware of the challolim among them and the lack of an accompanying rumor is no proof that the charges are not true. The accusation should generate a strong denial. Silence should be seen as an admission to the charges. Why does the Gemara need another reason (b) for ruling the accused a challal?Tosfos will now alter his understanding of the Gemara’s explanation that “it is sufficient that they are not excluding him [i.e. me] from the nation”. As explained in our introduction Tosfos initially held that the accused is willing to allow the charge of challal to go unanswered because he is pleased that he is not being called a mamzer and will still be able to marry anybody he pleases. Even though he will now have the limitations of challal, he accepts those limitations, as long as he is not accused of being a mamzer. Tosfos will now offer an entirely different understanding of this rationale.We can answer: This is the explanation of the Gemara’s rationale: [The accused] holds that it is sufficient that I will not be excluded from the congregation (of Kohanim). The explanation is: That he mistakenly believes that he will not even be excluded from the congregation of Kohanim and he will ultimately retain his status as a Kohen. Even though this accuser is disgracing him and calling him a challal, he feels that it is wiser to ignore the accusations than to respond to them.He mistakenly believes that he will not be excluded from the congregation of Kohanim. Despite the fact that he is suffering embarrassment, he believes that it is best to remain silent and he will be allowed to continue as a Kohen. But why doesn't he protest? He believes that if he protests, they will commence an investigation of this matter and they will disqualify him. It is therefore wiser to suffer the embarrassment and not upset the status quo, by insisting on an investigation, which may discover that he truly is unfit.But why doesn't the Gemara use the same rationale for one who is accused of being a mamzer and say that the reason for his silence is to forestall an investigation? Tosfos concludes that the rationale of the first Tanna and R’ Shimon are one and the same. This rationale is also applicable according to the first Tanna, in the case of one who is called a mamzer and is silent, where the first Tanna rules that the accused is disqualified when his response to accusations of being a mamzer is silence. We do not say that the first Tanna’s reason is because silence is the equivalent of an admission. The very same explanation Tosfos just said for R’ Shimon’s ruling about one who responds to charges of challal with silence, that he is attempting to forestall an investigation into his status, is true for the first Tanna’s ruling about one who is called a mamzer and responds with silence. It is not because his silence is considered an admission.3<i class="footnote">As long as Tosfos believed his initial explanation of “it is sufficient etc.”, one could not say that the first Tanna means the same as R’ Shimon. When one is called a mamzer, there is nothing worse that he could have been called. We cannot possibly say that he is pleased that he was not called something worse. It is only when one is called a challal that we can say that he is pleased that he was not called a mamzer. Therefore Tosfos is compelled to say that the rationale of the first Tanna and R’ Shimon ben Elazar is not the same. It must be that silence is equal to an admission. However, once Tosfos says that the intent of “it is sufficient etc.” is that he wants to forestall an investigation, we can say that the first Tanna also holds of this reason. Therefore, when one is called a mamzer he will not respond because he wants to avoid an investigation into his genealogy. But why does the Gemara spell out this rationale when discussing the opinion of R’ Shimon and not when explaining the opinion of the first Tanna? See מהרש"א.</i> So too, does Rashi explain the sentence “it is sufficient that they are not excluding him [i.e. me] from the nation”.4<i class="footnote">See רש"י ד"ה אי שמיע לך where he does explain “it is sufficient etc.” as Tosfos does - that the accused wants to forestall an investigation. There is however a severe difficulty with Tosfos using Rashi as support of his explanation of the Gemara. Tosfos says that according to his explanation, the first Tanna and R’ Shimon ben Elazar agree to the concept that when one is called a mamzer or a challal, he is silent because he wants to forestall an investigation. Rashi earlier ד"ה תנא קמא clearly says that the rationale of the first Tanna is because he holds that silence is the equivalent of an admission. It is only R’ Shimon ben Elazar who holds of the logic if “it is sufficient etc.” The first Tanna does not agree with this explanation.</i>
  
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  In accordance with whom, [did R’ Yochanan ben Nuri rule that we follow the majority of people who might have violated the young lady]? If [R’ Yochanan ben Nuri is following] Rabban Gamliel, [this presents a problem because he rules tha]t even if the majority [of potential rapists are] not of fit [lineage, the woman] is fit? Earlier on 13b, the Gemara said that Rabban Gamliel holds that even when the majority of potential men who might have seduced a woman are unfit, she remains fit and may marry a Kohen. Our Gemara seems to be saying that in the case of our Mishna as well, Rabban Gamliel would also rule that the woman remains fit, even though the majority of potential rapist would render her unfit. Tosfos feels that the Gemara’s comparison to Rabban Gamliel’s ruling is totally unjustified as he now proceeds to explain. If you ask: but Rabban Gamliel rules that one is fit even when the majority of people who might have raped her are unfit, only when [the victim] claims that I am certain that the man who violated me was fit and she has a migo that she could have said I was not violated? It is only when there is a combination ofa) a certain claim that the violator was fit, andb) she has a migo that she did not have to inform us of the rape or seduction at all, that Rabban Gamliel rules that the victim remains permissible to a Kohen. Presumably, in the story of our Mishna the young ladya) is not saying that she is certain that the rapist was fit.b) It also seems that we were aware of the rape without her admission and therefore she has no migo.There is another case where we may believe the victim: Or even when there is no migo, but it can be said thatc) even a woman who is promiscuous, first investigates the genealogy of her proposed partner and only when satisfied that he is fit, will she cohabit with him.But here, in our Mishna, even if she claimsa) with certainty that the rapist was fit,b) she has no migo, because it seems from the narrative of the Mishna that it was common knowledge that she had been violated.  It also cannot be saidc) that she investigated prior to being promiscuous, because she was raped and never made an active decision to have relations with this man.Tosfos now considers that possibility that the rape was not common knowledge and our information about it comes solely from the victim. After all, the Mishna does not clearly tell us of the exact source of information that we have of this incident. The Gemara mau be assuming that the circumstances in our Mishna are the same as in Rabban Gamliel’s ruling.Even if we should say that here, in the case of our Mishna, they did not see that she was violated. Rather, [the victim] herself said so, and is the source of information. So she does have a migo that she could have remained silent and that is why the Gemara introduces the ruling of Rabban Gamliel who says that even when the majority are unfit, we believe the victim who has a migo to substantiate her claim. Since according to this approach, Rabban Gamliel and R’ Yochanan ben Nuri are both speaking of a situation when the victim has a migo, there is a legitimate contradiction between R’ Yochanan ben Nuri who rules that we must follow the majority and Rabban Gamliel who rules that the woman is fit even if the majority of men are not fit.However, if we accept this approach in order to justify the Gemara’s comparison of Rabban Gamliel and R’ Yochanan ben Nuri, if so, there is a contradiction from one halachic ruling to another halachic ruling. We must keep in mind that our Gemara answers that R’ Yochanan ben Nuri follows R’ Yehoshua’s opinion as Rashi explains in ד"ה אמר ליה. The dialogue of the Gemara is stating that there is an irreconcilable difference between R’ Yochanan ben Nuri’s opinion and Rabban Gamliel’s opinion. That there is such a disagreement does not present a problem per se. However, what we must conclude from this dialogue that we cannot rule according to both. There is an inherent contradiction between their opinions. Tosfos will now show that the Gemara seems to hold that there is no contradiction between ruling like both Rabban Gamliel and R’ Yochanan ben Nuri.For below (15a) Rav rules that the halachah follows R’ Yose of our Mishna, who rules like R’ Yochanan ben Nuri that we must follow the majority in order to determine if the violator was fit or not. This ruling in favor of R’ Yose is based on following R’ Yehoshua in his disagreement with Rabban Gamliel, as Rashi explained in ד"ה אמר ליה, and earlier (12b) the very same Rav Yehudah said in the name of Shmuel that the halachah is in accordance with Rabban Gamliel who holds that even when the majority are unfit we rule that the woman remains fit. We now have a direct contradiction between Rav’s halachic ruling and Shmuel’s halachic ruling.This contradiction per se is also not disturbing. There are many differences of opinion between Rav and Shmuel in halachic matters. What is disturbing is the Gemara’s use of these rulings. Tosfos will show us that the Gemara earlier has used Shmuel’s ruling as if it is absolute and there is no room for disagreeing with it. If Rav does in fact argue with Shmuel, why does the Gemara present Shmuel’s ruling as definitive? It is not appealing to say that they, Rav and Shmuel, are arguing about this issue, whether we follow Rabban Gamliel or R’ Yehoshua, for if so, why does [the Gemara] cite the halachic ruling of Rav Yehudah in the name of Shmuel in reference to the story on 13b- 14a of a betrothed chassan and kallah who both admitted that her pregnancy was a result of her cohabiting with her chassan. The Gemara there ruled that despite the fact that the majority of men would render her unfit and her child a mamzer since she is a married woman, we believe her claim that the child is her chassan’s because of Rabban Gamliel’s ruling. It seems that Shmuel’s ruling in accordance with Rabban Gamliel is definitive.Earlier, on 12b, the Gemara suggested that Rav Nachman rules in accordance with R’ Yehoshua in his disagreement with Rabban Gamliel. The Gemara concludes that this cannot be so, because we generally rule like Rav Nachman in financial matters and in this case we must rule like Rabban Gamliel, because Shmuel rules in favor of Rabban Gamliel. The Gemara is compelled to reconcile Rav Nachman’s ruling with Shmuel’s ruling. But if we are now saying that Rav does not agree with Shmuel’s ruling, why is the Gemara there saying that there would be a contradiction of halachic rulings? It is very reasonable to say that Rav Nachman is in fact arguing with Shmuel’s ruling, because Rav disagrees with Shmuel.So too, earlier (13a) [the Gemara] asks that there is a contradiction between two halachic rulings, because we generally rule like Rav Nachman in financial matters etc. [who rules like R’ Yehoshua and we also generally rule like Shmuel who follows Rabban Gamliel in this issue]. But why is the Gemara so convinced that we must follow Shmuel in his ruling like Rabban Gamliel?To the contrary, Rav who rules like R’ Yose is effectively ruling in accordance with R’ Yehoshua, as Rashi explains in ד"ה אמר ליה, and we rule like Rav in matters of prohibitions. Whether the woman who was violated is permitted to marry a Kohen is a matter of prohibitions. If there is truly a disagreement between Rav and Shmuel about whether we rule like Rabban Gamliel or R’ Yehoshua, we should generally follow Rav who rules like R’ Yehoshua, not Shmuel who rules like Rabban Gamliel. Why is the Gemara presenting Shmuel’s ruling as definitive?We have explained that Rav’s ruling in accordance with Rav Yose is in effect a ruling in favor of R’ Yehoshua as Rashi explained in ד"ה אמר ליה. Due to the difficulty with understanding our Gemara, Tosfos now proposes an explanation wherein R’ Yose’s ruling like R’ Yochanan ben Nuri in the case of the woman who was violated near the well, is not necessarily a ruling in favor of R’ Yehoshua. Thus one can accept R’ Yose’s ruling and Rabban Gamliel’s ruling. We can answer: That this is the explanation of the Gemara’s question: In accordance with whom did R’ Yochanan ben Nuri rule that we follow the majority of men who might have violated the woman?The Gemara suggests: If this ruling is in accordance with Rabban Gamliel and the case of the rape near the well is speaking of whena) [the victim] claims with certainty that the man who violated her is fit, and it is also speaking of whenb) nobody saw that she was raped, where she does have a migo that she could have simply remained silent and not report the incident, if so, why is R’Yochanan ben Nuri insisting that there be a majority of people who are of fit genealogy,even when the majority are of people of unfit genealogy, [Rabban Gamliel] also rules that she is fit. There is another criterion that must be met in the Gemara’s present suggestion: It must also be speaking of when she was seen in seclusion1<i class="footnote">The Gemara earlier 13b concludes that the Mishna which spoke of a woman who was seen “speaking” with a strange man, had in fact been secluded with him. It is only when she was secluded tha R’ Yehoshua rules that she is forbidden to marry a Kohen.</i> with the violator, for if she was not seen in seclusion with the violator, how does [the Gemara] ask: If [R’ Yochanan ben Nuri] is following R’ Yehoshua, he rules that she is unfit even when the majority are of fit genealogy as we learned in the Gemara on 13b? This ruling of R’ Yehoshua is in effect only when we know that she was secluded with her partner. If we have no knowledge of any seclusion, even R’ Yehoshua agrees that she is not forbidden to a Kohen.In the Gemara’s initial proposal it is attempting to say that R’ Yochanan ben Nuri must follow either Rabban Gamliel or R’ Yehoshua. Tosfos has tailored the case of the Gemara in its question to accommodate the situation discussed in the dispute of Rabban Gamliel and R’ Yehoshua. Obviously the Gemara is unable to reconcile R’ Yochanan ben Nuri with either R’ Yehoshua or Rabban Gamliel. The Gemara, when now searching for an explanation of R’ Yochanan ben Nuri’s ruling in our Mishna, is no longer bound to the case it initially suggested. The Gemara will now suggest that the case of R’ Yochanan ben Nuri is different than the Gemara initially assumed and his ruling may be accurate according to both R’ Yehoshua and Rabban Gamliel.[The Gemara] answers: Rav says the story took place in the wagons of Zippori etc. The explanation of this new approach is: Actually, [the victim] is not claiming that she is certain that her violator was of fit genealogy. R’ Yochanan ben Nuri’s ruling is in accordance2<i class="footnote">See מהר"ם שי"ף and רש"ש who say that the word בתרוויהו must be emended to כתרוויהו.</i> with both R’ Yehoshua and Rabban Gamliel. The essence of his ruling is: that when she does not claim with certainty that her violator was fit, all agree that in order to rule that she is fit to marry a Kohen, there must be two majorities, the majority of the townspeople and the majority of the caravan traveling through the town must be of fit genealogy. Thus, R’ Yochanan ben Nuri’s ruling is not a ruling in favor of R’ Yehoshua in his disagreement with Rabban Gamliel. There is absolutely no contradiction in ruling like Rabban Gamliel when the victim claims with certainty that her violator was fit and ruling like R’ Yochanan be Nuri when she does not claim that her violator was fit.Usually when the Gemara modifies the case, there is an indication in the dialogue that a change is taking place. According to Tosfos present explanation of the Gemara’s dialogue, the Gemara was initially speaking of when the victim’s claim was with certainty. But ultimately the Gemara is now saying that it is speaking of when she was not certain. How come the Gemara does not inform us of this change in the story?The reason that [the Gemara] does not say: Actually, it is speaking of when she did not claim with certainty that her violator was of fit genealogy, is because in [the Gemara]’s original proposal that R’ Yochanan ben Nuri might be following Rabban Gamliel, [the Gemara] did not say: if her claim is with certainty etc. Although, the Gemara initially was speaking of when she claims that her violator was certainly fit, the Gemara did not specifically mention this fact. Since this condition was not originally mentioned, there is no need for the Gemara to tell us: Actually it is speaking of when she did not claim that her violator was certainly fit.Another explanation of why the Gemara does not present its new approach with the introduction: Actually etc.Tosfos will now explain that the Gemara is not changing its initial approach that our Mishna is speaking of when the woman is certain that her violator is fit and she has a migo. There is however one slight difference between the case of the dispute between Rabban Gamliel and the Mishna on 14b. Alternatively, we can explain that in the new approach it is also speaking of when she claims with certainty that her violator was fit, and there is a migo that she did not have to report the story at all. Even so, there is no halachic contradiction between ruling in favor of Rabban Gamliel and Rav’s ruling in favor of R’ Yose.But why would Rabban Gamliel require that there be a majority in her favor? Rabban Gamliel holds that even when the majority are unfit, she remains fit. How is the Gemara reconciling Rabban Gamliel’s ruling with R’ Yochanan ben Nuri? For it is only post facto that Shmuel rules in accordance with Rabban Gamliel, as [the Gemara] said earlier (14a): Shmuel told his disciple Rav Yehudah, the halacha follows Rabban Gamliel but you should not rule leniently in this matter unless there is a majority of people who are fit. The Gemara there explains that Shmuel rules like Rabban Gamliel only after the fact. It is only if she is presently married to a Kohen that we will allow her to remain married, but if she is presently unmarried and there is a question of being initially lenient, and allowing her to marry a Kohen, Shmuel also holds that when the majority are unfit, we may not rule that a woman may marry a Kohen. Our Mishna is speaking of when the woman was about to marry a Kohen and therefore R’ Yochanan ben Nuri required that there be a majority of people who are of fit genealogy. Thus even though the circumstances of our Mishna are the same as in the argument between Rabban Gamliel and R’ Yehoshua, she isa) claiming with certainty that her violator was fit, andb) she does have a migo, since we are discussing initially permitting her to marry a Kohen, Rabban Gamliel himself admits that this is not permissible when the majority were unfit.But how much of a majority is needed to initially permit marriage to a Kohen according to Rabban Gamliel? Even though, earlier it appears that even when there is only one majority, it is initially permitted to rule leniently. Shmuel’s instructions to Rav Yehudah were that he should not be lenient when the majority are unfit, it seems that if there is even only one majority that are fit, we could be lenient according to Shmuel even initially. Rav Chiya bar Ashi3<i class="footnote">Later on 15a Rav Chiya bar Ashi rules in the name of Rav that we follow R’ Yose of our Mishna.</i> rejects that understanding of Shmuel’s instructions to Rav Yehudah and holds that to rule leniently initially, we require two majorities, the majority of the townspeople and the majority of wayfarers must be fit. The Mishna teaches that [the rape victim] may marry, which appears to mean that she may marry a Kohen even initially. Rav Chiya bar Ashi needs to explain that to initially marry a Kohen two majorities are needed.In summation:1) According to Rashi’s explanation when Rav Yehudah in the name of Rav explains R’ Yochanan ben Nuri’s ruling in our Mishna, he is rejecting Rabban Gamliel’s ruling that even when the majority of men are unfit, a woman who claims that she is certain that her partner was fit and has a migo remains fit. Rav’s eventual ruling in favor of R’ Yose who follows R’ Yochanan be Nuri is a contradiction to Shmuel’s ruling in favor of Rabban Gamliel.2) Tosfos suggests two alternatives to Rashi’s explanation of Rav Yehudah in the name of Rav:a) That Rav Yehudah in the name of Rav is rejecting the initial understanding that R’ Yose’s ruling is speaking of when the victim is certain and she has a migo. Thus there is no contradiction between his explanation of our Mishna and Shmuel’s ruling in favor of Rabban Gamliel.b) That Rav Yehudah in the name of Rav’s ruling is speaking about whether the violated woman is initially permitted to marry a Kohen. It is then that he says two majorities are needed.However, this is no contradiction to Shmuel’s ruling in favor of Rabban Gamliel, because he was speaking of permitting her post facto, when she was already married to a Kohen. 
  
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  Perhaps she will go to them. In the course of this Gemara we have learned that when the genealogy of the violator is in doubt, there are one of two rules that govern:A) If the violation occurred in a place where the violator is not stationary, we follow the majority of men who might have violated her.B) If the violation occurred in a place where the violator is stationary, it is considered a doubt of half and half, even if there is a majority of fit genealogy.Tosfos will now define what is considered stationary or temporary. Should we perhaps say that any occurrence within city limits is considered a doubt involving stationary people, because the residents of the city reside in this city on a permanent basis? Or perhaps, stationary should be defined as the home in which one resides? It is there that one is truly permanent, not in the streets of his hometown.The Gemara concedes that if a woman was raped in a non-stationary setting, she would be permitted becauseA) the law that we follow the majority, governs in a non-stationary situation. However, there is the possibility that the victim went to the violator and the rape was in a stationary situation, where the governing rule is that when when we are not certain about the status of the violator,B) we must rule that her status is in doubt even if the majority of potential violators are of fit genealogy.The explanation of “perhaps she went to them” is: into their houses. For even if the rape occurred in middle of the city, it is not considered that it occurred in a permanent place. For this is similar to when meat is found between the stores in a marketplace, which we have seen in our Gemara is not considered stationary. Just as meat found between the stores is considered non-stationary, even though the area is generally used for meat, so too, a person who is not at home is considered non-stationary, even if he is a resident of the city.So too, in regard to a baby who was cast away in a city, it is not considered that the baby was found in a stationary place, otherwise even if there was only a minority of idolaters we would rule that the baby’s status was in doubt, since he was not found in a house. It is for this reason that Rashi ד"ה ופרכינן רוב העיר נמי explained that in order for the rule of majority to govern, the violator left his house. As long as he is not in his house, he is non-stationary and the rule that we follow the majority governs.Tosfos will now present a contradiction to his explanation that when a person is doing something in the streets of his city, he is not considered stationary and when any doubt arises we will follow the majority.1<i class="footnote">Tosfos seems to be asking his question in regard to his novel ruling that what occurs in the streets of the city is considered non-stationary. This is a bit problematic, for the same question can be asked about when the raped occurred at a spring outside of the city. Ultimately, the rapist returns home and should be considered stationary according to Nazir 12a? See מהר"ם שי"ף who wrestles with this problem. See also תוספות הרא"ש and other Rishonim quoted in שיטה מקובצת who ask this question in regard to the Gemara’s statement that the rapist may be considered moving and do not address the question as Tosfos does to when the rape occurred in the streets.</i>The Gemara in Nazir 12a: Rav Yitzchak bar Yosef said in the name of R’ Yochanan: One who says to his agent go and betroth a woman for me anonymously and he allows the agent to choose any woman, and the agent left to fulfill the agency and never returned to inform the principal of the results. He is forbidden to marry all women in the world. The Gemara explains: We may assume that an agent fulfills his agency and he did in fact betroth some woman, Mrs. X, to be the wife of the principal. Since [the agent] did not identify her, he does not know who [his betrothed] is. He must therefore consider the possibility that any other woman he marries might be a mother, sister or daughter of Mrs. X and prohibited to him.Resh Lakish asked R’ Yochanan a question from a Baraisa that deals with the birds that one must offer when he or she was tomei as a result of being a zav, metzora, niddah or giving birth. One of the birds is an Olah and the other a Chatas. Sometimes the designation of which bird is a Chatas or an Olah is done at the time of purchase. Other times it is done at the time it is slaughtered. In the interim it is called a קן סתומה, a non-designated pair. A non-designated pair from which one of the pigeons flew away to the air-space of the world, or it flew to a group of Chatas birds that need to be put to death, or if one of the non-designated pair died - he takes a partner for the second remaining bird. But a pair of designated birds and we do not know whether the Olah or the Chatas flew away, because he can only recognize them when they are together, there is no remedying the situation, since he does not know whether he needs to replace an Olah or a Chatas. And all other pairs of birds are in order and may be used.But why? Let us say about each and every bird in the world, perhaps this is the one that flew away. Just as we say that when the agent betrothed Mrs. X, we are concerned that any other woman he marries may be Mrs. X’s close relative, so too, any bird might be the Chatas or Olah bird that flew away. It should be forbidden to use any bird in the world as a sacrifice, because it may already have been designated as a Chatas or an Olah.[R’ Yochana] said to [Resh Lakish]: I spoke about a woman who is stationary but you speak about a prohibited bird that moves. In the case of a stationary woman we cannot follow the majority of women who are not close relatives of Mrs. X, but as far as the moving birds are concerned, we follow the majority of birds that were never designated as a Chatas or Olah. And if you will argue, Here as well the woman should be treated as one who moves, perhaps [the agent] found [Mrs. X] in the street and betrothed her there, there is still a major difference between a bird and a woman, [Mrs. X] returns to her regular place. But does a bird return to its regular place? It is constantly moving from place to place.If you ask: In Nazir (12a) [the Gemara] challenges that which [R’ Yochanan] said there: One who says to his agent, go and betroth a woman for me, is forbidden to marry all the women in the world. Any woman that he marries may be a mother, sister or daughter of the woman that the agent betrothed. Since he does not know who Mrs. X is, all women are forbidden to him. The Gemara challenges this ruling from a ruling that we learned in regard to a bird that was a part of a non-designated2<i class="footnote">Tosfos refers to the Baraisa discussing this situation as a non-designated pair, because the Baraisa first discusses an anonymous bird that flew away. However, in reality, the Gemara’s question is from the ruling about a designated bird that flew away. It is only then that there may be a problem with using a bird that was already designated as a Chatas or an Olah. If the bird was not designated as of yet, there should be no problem with using it as a Chatas or Olah in some other pair.</i> pair. The Baraisa speaks of a case when one of a pair of designated pair of birds flew away. There is a possibility that any bird one wants to use for a sacrifice might be the bird that flew away. In regard to the designated bird we rule that all birds may be used for sacrifices and we are not concerned that it is the bird that flew away. Why are we not concerned about the possibility that one of the birds in any offering is the bird that flew away, just as we are concerned that any woman in the world might be a close relative of the woman betrothed by the agent?[The Gemara] concludes in response to this question: I spoke to you of a woman who is stationary and you are challenging me from the ruling of a prohibited bird that is moving. The woman who was betrothed is essentially stationary and we may therefore not follow the majority of women who are not relatives of this betrothed woman. The designated bird that flew away is a moving entity and we do follow the majority of birds that are not prohibited.The Gemara there takes this discussion a step further: If you will argue: It is possible that the agent also found [Mrs. X] in a street and betrothed her? If so, she too should be considered as a moving entity and the rule of following the majority should govern. The Gemara answers: There in the case of the woman betrothed in the street, she returns to her regular place. She will eventually return home, where she is definitely stationary and the rule for stationary situations is that it is treated as an equal doubt even though there is a majority of women in the world who are not related to her. Whereas, the bird is always in a non-stationary situation and is always governed by the rule of majority.It is to be understood from the Gemara in Nazir 12a that in regard to a human, the rule of whoever departed from it stationary position departed from the majority is not applicable, because a human, although temporarily in a non-stationary situation returns to his regular setting. So too, in the case of a woman who was raped by the well, we should say that even though the rapist was non-stationary at the time of the rape, he will eventually return to his regular place and he should be considered as a stationary entity. Or even if she was raped in the streets of the city, the rapist should be thought of as stationary and the rule of an equal doubt should govern. Thus, the rule of following the majority should never apply to a person.Tosfos will answer that there is a major difference between the case of the woman who was betrothed in Nazir 12a and the woman who was raped in Kesubos 15a. This is not a question at all. For there in Nazir 12a, in regard to an agent who betrothed a woman and we are not aware of the identity of this woman and we must be concerned that any woman he may choose to marry might be a close relative of Mrs. X and thus forbidden to him, at the time that he commits the possible prohibition, when he cohabits with any woman who might be a close relative of Mrs. X, the woman who was betrothed by his agent and is his wife, returns to her regular place, thus the governing rule is that it is treated as an equal doubt and is forbidden. It is the very existence of Mrs. X as his wife that creates the prohibition and we must consider whether any woman with whom he cohabits is a relative of Mrs. X. Since at the point in time that he is cohabiting with any woman, Mrs. X is in a stationary situation, we must say that the woman with whom he is cohabiting may be the close relative of his wife and forbidden to him.However, here in Kesubos 15a, when [the rapist] goes to her and is not in his regular place at home, at the time that he is causing her to become prohibited, he is non-stationary. Our ruling must be about that point in time when the prohibition of this woman may have happened. At that point in time her rapist was non-stationary and we may rule according to the majority who were of fit genealogy.
  
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  [This verse וארב לו comes] to exclude one who throws a stone into [a group] etc. The Gemara cites a Baraisa that derives from the words וארב לו and he will ambush him - that one is liable only when he intends to murder the person that he actually murdered. If one intends to slay Ruvain and murdered Shimon instead, he is exempt from capital punishment. Although anonymous here, in Masechet Sanhedrin 79a we see that this is the opinion of R’ Shimon. See Rashi ד"ה אמר קרא.Our Gemara quotes the opposing opinion who holds that even when one intended to kill Ruvain and killed Shimon he is liable, as deriving from this verse  וארב לו that when a doubt occurs about a stationary situation, it is always an equal doubt, even though the majority would indicate otherwise.For example: If one throws a stone without specifically designating the person he wants to murder, at a group of people composed of nine healthy people and one tereifah,1<i class="footnote">A tereifah is a person or animal that has a disease from which he cannot recover. He will die within twelve months. For example: a person who has a hole in his heart or in his lung. If somebody should kill a tereifah, he is not liable for capital punishment.</i> and kills one of the healthy people. Do we say that the stone was thrown with intent to kill a healthy person, since the majority are healthy and the likelihood is that it will kill one of the majority. Or do we say that since the group is stationary, it is an equal doubt and the thrower is not liable. The verse  וארב לו is teaching us that in a stationary situation of nine healthy people and one tereifah, the thrower is not liable. It is from this verse that we derive the principle that in a stationary situation we do not follow the majority.Tosfos assumes that all Tannaim agree about the ruling that we do not follow the majority in a stationary situation and wonders how R’ Shimon and others who have a different interpretation of the verse וארב לו derive this ruling. This is bewildering! According to R’ Shimon who uses the verse  וארב לו as an exemption for one who intends to slay Ruvain and mutders Shimon, from where does he derive the ruling that in stationary situations we do not follow the majority?The Gemara in Sanhedrin 79a actually offers another source for the ruling that if one intends to kill Ruvain and he actually kills Shimon, he is exempt. It is possible that R’ Shimon uses that verse as a source for his ruling about intending to kill Ruvain and killing Shimon. Thus, the verse  וארב לו would be the source for ruling that in stationary situations we do not follow the majority even according to R’ Shimon.In Sanhedrin 79a the Gemara is discussing a verse in Shemot 21, 23, about Shimon who intended to kill Ruvain. Ruvain’s wife stepped between them and was struck in the abdominal area causing her to abort. The Torah says that if Mrs. Ruvain survives, Shimon must pay for the lost pregnancy. If she does not survive, the Torah says ונתתה נפש תחת נפש - and you will give a life instead of a life. What do these words mean? Do they mean that Shimon is put to death or do they mean that Shimon must pay for the value of Mrs. Ruvain? The Baraisa cites Rebbe’s opinion on this matter.Rebbe says: and you will give a life in place of a life - means that the perpetrator must pay the value of the woman, but he is not liable for capital punishment. We must keep in mind that this is a case of intending to kill Ruvain and actually killing Mrs. Ruvain.The Baraisa continues: You conclude that he must pay her value in money, but perhaps this is not so, rather the verse means he must pay with his actual life?The Gemara rejects this proposal: The word נתינה-give appears later in this paragraph (ונתתה נפש תחת נפש) and the word נתינה-give also appears earlier in the paragraph (ונתן בפלילים - and he will pay according to the estimate of the judges). Just as earlier the word ונתן means a payment of money, so too here in the latter verse - ונתת means a payment of money.By assuming that the two words’ conjugation of the verb נתינה in this paragraph have the same meaning, we learn that if one intended to kill Ruvain and actually killed Mrs. Ruvain, he is not liable for capital punishment. Thus, if we follow Rebbe’s derivation, the words  וארב לו are not needed to teach us that if one intends to kill Ruvain and kills Shimon instead, he is not liable.It cannot be said that we conclude in Perek Hanisrophin (Sanhedrin 79a), that R’ Shimon holds like Rebbe, who learns from the comparison of the two verbs of נתינה in this paragraph, that the penalty for attempting to kill Ruvain and actually killing Mrs. Ruvain is financial and not actual death. Thus, the words  וארב לו are superfluous according to R’ Shimon and can be used to derive the principle that in a stationary situation, we do not follow the majority.Tosfos will now show that even if we accept this solution for R’ Shimon, the problem is not completely solved. There is another opinion in Sanhedrin 79a, that of the Baraisa taught in the academy of Chizkiyah, who also holds that if one intends to kill Ruvain and murders Shimon, he is exempt. This can be derived only from ארב לו, because Chizkiyah cannot subscribe to the derivation from the comparison of the two conjugations of נתינה as Rebbe does, because Chizkiyah disagrees with Rebbe’s conclusion.Rebbe holds that when one kills unintentionally as in the case of Mrs. Ruvain, who was killed instead of her husband, the perpetrator is liable for financial payment. The Baraisa of Chizkiyah’s academy disagrees with this. They hold that he is liable for neither capital punishment nor financial compensation. They must use the verse  וארב לו as the source that one is not liable for intending to kill Ruvain and murdering Shimon instead. What then is the source for the principle that in a stationary situation, we do not follow the majority?&gt;For even if we accept this solution for R’ Shimon, we must still ask: How do we derive the principle that we do not follow the majority in a stationary situation, according to the Baraisa taught in the academy of Chizkiyah? For that Baraisa does not hold of Rebbe’s derivation from the comparison of the words נתינה, for he holds that when one murders unintentionally he is exempt even from financial payment.2<i class="footnote"> See Sanhedrin 79a תוס' ד"ה ומפקא where he discusses how the Baraisa of taught in Chizkiyah’s academy explains the verse ונתתה נפש תחת נפש.</i> Thus, he cannot understand that verse as Rebbe expounds it. The Baraisa of Chizkiyah’s academy must derive the exemption for intending to kill Ruvain and murdering Shimon from וארב לו, what then is the source for not following the majority in a stationary situation?
  
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  The bride as she is: And if she has a blemish, they are quiet and they do not praise it. And also (another possibility is) they praise her with something pleasant that she has - for example, [he praises her] about her eyes or her hands if they are beautiful. And Beit Hillel says that you praise her altogether, as when we mention that which she has to be praised, it implies that the rest is to be denigrated. 
  
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  He says to go up [to the Land of Israel], etc.: It is not practiced in our times, as there is danger on the roads. And Rabbenu Chaim says that today, it is not a commandment to live in the Land of Israel, as there are several commandments that are dependent upon the land - and several punishments - that we are not able to be careful about and to be cognizant of.
  
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