one principle1 against two principles,2 and one against two cannot be upheld.3 [But where the defects were discovered] before betrothal, the principle of the presumptive soundness of her body cannot be applied,4 and all that remains is5 the presumption that no man drinks out of a cup unless he has first examined it and that this man must consequently have seen [the defects] and acquiesced, [but to this it can be retorted:] On the contrary, the presumption is that no man is reconciled to bodily defects, and consequently the money is to remain in the possession of its holder.6
R. Ashi explained:7 The [claim in the] first clause8 [is analogous to the claim] 'You owe my father a maneh',9 but that in the final clause10 [is analogous to the claim] 'You owe me a maneh'.11
R. Aha the son of R. Awya raised an objection against R. Ashi: R. Meir12 admits that in respect of bodily defects13 likely to have come14 with her from her father's house it is the father who must produce the proof.15 But why?16 Is [not this17 analogous to the claim,] 'You owe me a maneh'?18 — Here15 we are dealing with the case of a woman who had a superfluous limb.19 [But if] she had a superfluous limb20 what proof could be brought?21 — Proof that the man has seen it22 and acquiesced.
Rab Judah stated in the name of Samuel: If a man exchanged a cow for [another man's] ass, and the owner of the ass pulled23 the cow24 but the owner of the cow did not manage to pull25 the ass before the ass died, it is for the owner of the ass to produce proof that his ass was alive at the time the cow was pulled.26 And the Tanna [of our Mishnah who taught about] a bride27 supports this ruling. Which [ruling concerning the] bride?28 If it be suggested:
Original footnotes renumbered.
- In favour of the man. The principle of possession is of no consequence here because it is completely disregarded when opposed by that of the presumptive soundness of the body.
- Which are in favour of the woman.
- Hence the ruling in her favour.
- Since proof was adduced that she was afflicted with the defects prior to her betrothal.
- Lit. 'what is there?' in favour of the woman's claim.
- In the absence of the presumption of the soundness of body (cf. supra n. 5) the principle of possession is a determining factor (cf. supra note 2), and thus, being added to that of a man's irreconcilableness to bodily defects, two principles in favour of the man are opposed to one in favour of the woman. Hence the ruling in favour of the man.
- The apparent contradiction between the first and second clause of our Mishnah (cf. supra p. 474, n. 1).
- Since the kethubah of a betrothed woman, as a na'arah (v. Glos.), unlike that of a married one, belongs to her father and not to herself.
- Where the presumptive soundness of the claimant's daughter's body, not being that of the claimant herself, cannot override the principle of possession which is in favour of the husband. Hence the necessity for the father to produce the proof.
- Dealing with a married woman.
- In which case (cf. supra note 9 mutatis mutandis), the presumptive soundness of the body of the woman who is herself the claimant is sufficient to establish her claim. Hence it is for the husband to produce the necessary proof. Thus it is possible to assume that both the clauses of our Mishnah under discussion represent the view of R. Gamaliel who ruled that the presumptive soundness of body overrides the principle of possession.
- Though he stated in our Mishnah that if the defects were discovered after the woman CAME UNDER THE AUTHORITY OF HER HUSBAND it is the latter that MUST PRODUCE PROOF.
- The reference is at present assumed to be to any kind of defect.
- Lit., 'that are likely to come'.
- Tosef. Keth. VII.
- Should the father have to produce the proof.
- According to R. Ashi's explanation.
- The woman being married and the kethubah belonging to her, the presumptive soundness of her body should be sufficient to establish her claim.
- Not, as has been presumed by R. Aha, with one who was afflicted with any defect. A superfluous limb does not grow after betrothal. Being a congenital defect, the principle of the presumptive soundness of the body cannot be applied.
- Which is obviously congenital.
- In support of her claim to her kethubah.
- Prior to betrothal or marriage.
- Pulling, meshikah (v. Glos.) is one of the forms of acquiring legal possession.
- While the ass still remained on his premises.
- To take it to his premises.
- If such proof is produced the former owner of the cow must bear the loss, because the legal acquisition by one of the parties of one of two objects exchanged places upon the other party the responsibility for any accident that might happen to the other object even though he did not himself formally acquire it (v. Kid. 28a).
- Concerning whose defects a similar doubt exists. In the case of the exchanged animals it is uncertain whether the ass died before or after the acquisition of the cow; in the case of the bride it is uncertain whether she had her defects before or after her betrothal.
- Provides the support.
The one concerning a bride IN HER FATHER'S HOUSE,1 are the two cases [it may be objected] alike? There it is the father2 who produces the proof and receives3 [the kethubah from the husband]4 while here it is the owner of the ass5 who produces the proof and retains [the cow],6 — R. Abba replied: [The ruling concerning a] bride in her father-in-law's house.7 But [the two cases] are still unlike, for there it is the husband who produces the proof8 and thereby impairs the presumptive right of the father,9 while here it is the owner of the ass who produces the proof10 and thereby confirms his presumptive right!11 — R. Nahman b. Isaac replied: [The support is derived from the case of the] bride IN HER FATHER'S HOUSE in respect of her token of betrothal.12 And, furthermore, it need not be said [that this13 applies only] in accordance with him who holds [that a token of] betrothal is not unreturnable14 but [it holds good] even according to him who maintains [that a token of] betrothal is unreturnable, since his ruling relates only to certain betrothal, but [not] to doubtful betrothal [where the father may retain the token] only15 if he produces proof but not otherwise.16
An objection was raised: If a needle was found in the thick walls of the second stomach [of a ritually killed beast, and it protrudes only] from one of its sides,17 the beast is fit [for human consumption,18 but if it protruded] from both sides, the beast is unfit for human consumption.19 If a drop of blood was found on [the needle] it is certain that [the wound was inflicted] before the ritual killing;20 if no drop of blood was found on it, it is certain that [the wound was made] after the killing.21 If the top22 of the wound was covered with a crust, it is certain that [the wounding occurred] three days prior to the killing;23 if the top22 of the wound was not covered with a crust,24 it is for the claimant to produce the proof.25 Now if the butcher26 had already paid the price he27 would have to produce the required proof and so obtain the refund [of his money]; but why? Let the owner of the beast rather produce the proof and retain [the purchase money]!28 — [This is a case] where the butcher26 has not yet paid the price.29 But how can such an absolute assertion30 be made?31 — [This] however, [will dispose of the difficulty:] For when Rami b. Ezekiel came he said, 'Pay no regard to those rules which my brother Judah laid down in the name of Samuel; for thus said Samuel: He in whose domain the doubt first arose32 must produce the proof; and the Tanna [of our Mishnah who taught about] the bride33 provides support for this ruling.34
An objection was raised: If a needle was found in the thick walls of the second stomach etc.35 Now,36 if the butcher26 has not yet paid the purchase price it would be the owner of the beast36 who would have to produce the proof and so obtain [its price] from [the butcher]; but why? [Has not] the doubt arisen [when the beast was already] in the possession of the butcher?37 — [This is a case] where the butcher has already paid the price.38 But how can such a categorical statement39 be made?40 — It is the usual practice that so long as one man does not pay the price the other does not give his beast.
THE SAGES, HOWEVER, RULED: THIS APPLIES ONLY TO CONCEALED BODILY DEFECTS. R. Nahman stated:
Original footnotes renumbered.
- In the first clause; the assumption being that, in agreement with R. Eleazar (supra 75b), it represents the view of R. Joshua, and that the father must produce the proof even where the defects were discovered after marriage and the doubt did not arise until after the bride had come under the authority of her husband. (Cf. Rashi, a.l. and infra s.v. [H], ad fin.). Similarly in the case of the exchange of the animals the owner of the ass must produce proof though the doubt occurred after his meshikah of the cow had transferred the ass to the responsibility of the other party.
- The claimant.
- Lit., 'brings out'.
- Which is the usual rule: The claimant produces the proof and receives his due.
- The defendant.
- Contrary to the usual rule (v. supra n. 4). How then could it be asserted that the latter is supported by the former?
- I.e., the second clause of our Mishnah provides the support; the assumption being with R. Eleazar (supra 75b), that it represents the view of R. Gamaliel and that the husband must produce the proof even where the defects were discovered prior to marriage, while the bride was still in her parental home, and her kethubah still belonged to her father. (Cf. Rashi a.l. and infra s.v. [H] ad fin.). The support is adduced thus: If in this case where the doubt first arose while the bride was still under her father's authority (i.e., in the claimant's possession) it is the husband, who is the defendant, that must produce the proof, how much more so in the case of the exchange of the animals where the doubt arose In the house of the defendant (the owner of the ass) that the latter must produce the proof.
- That she had the defects prior to her betrothal.
- The presumption of the woman's soundness of body.
- That the ass was alive at the time the cow was acquired by him.
- The presumption that the ass that was alive prior to the acquisition of the cow was also alive during the time the cow was acquired. How then could a case in which the proof rightly serves the purpose of impairing a presumptive right be taken as support to one in which the proof is adduced to confirm a presumptive right?
- In the first clause of our Mishnah where the proof must be produced by the father (cf. supra p. 478, n. 1 mutatis mutandis) though it serves also the purpose of enabling him to retain the money, or object of value, that was given as the token of the betrothal of the bride. Similarly in the case of the exchange of the animals, the owner of the ass produces the proof and retains the cow.
- That proof is required to enable the father to retain the token of betrothal.
- Lit., 'given for sinking', i.e., that it is not returned under any conditions whatsoever (v. B.B. 145a). Since it is 'not unreturnable', it is not in the father's full possession and he might well he expected to have to produce the proof.
- Lit., 'yes'.
- Lit., 'if not, not'.
- The inner side of the stomach. Owing to the thickness of its folds it is quite possible that the needle merely pricked, but did not pierce through the stomach wall.
- Since the wound caused by the needle was not fatal.
- Trefa (v. Glos.). A perforation of the stomach is a fatal wound which renders the afflicted animal unfit for human consumption even if it was ritually killed before it could die of the wound.
- And the beast is, therefore, unfit for human consumption (cf. supra n. 8).
- When it could not affect the life of the beast which, in consequence, remains fit for consumption.
- Lit., 'mouth'.
- And should a butcher buy the beast within the three days it is a bargain made in error which he may cancel and claim the refunding of his purchase money.
- And the vendor pleads that the wound was made after the sale when the beast was in the possession of the buyer, while the buyer insists that it was made prior to the sale when it was still in the vendor's possession.
- Hul. 50b.
- Sc. the buyer.
- Being the claimant.
- As in the case spoken of by Samuel (supra 76a), where the owner of the ass produces the proof and retains the cow. Since, however, the law here is not so, an objection arises against Samuel's ruling.
- So that the vendor is the claimant. Hence it is for the butcher, who is the defendant, to produce the proof and thus retain his money.
- That the butcher always buys on credit and that he is, therefore, always the defendant.
- A butcher, surely, does not always buy on credit and our Baraitha does not mention buyer at all but claimant, irrespective of whether he happens to be the buyer or the vendor.
- I.e., the owner of the cow, since the doubt first arose after the owner of the ass had acquired the cow and thereby transferred the responsibility for the ass to the former owner of the cow.
- That if the doubt concerning the first appearance of her defects arose while she was in her paternal home her father must produce the proof, and that if it arose when she was already under the authority of her husband it is the husband who must produce the proof.
- Samuel, according to the present explanation, would hold the same opinion as Raba who stated (supra 75b) that the first as well as the second clause of our Mishnah represents the view of one Tanna, viz. that of R. Joshua.
- Supra, cited from Hul. 50b.
- Since it has been laid down that the claimant must produce the proof.
- Of course it has, since the needle could not have been found before the beast had been killed. Now if Rami b. Ezekiel's report in the name of Samuel is to be regarded as authentic, the butcher should have been the party to produce the proof.
- And it is the butcher in fact from whom the proof is expected.
- That the butcher invariably buys for cash and that he is therefore always the claimant.
- Does not a butcher sometimes take on credit?