Babylonian Talmud: Tractate Kethuboth

Folio 75a

And the children of Israel smote them not, because the princes of the congregation had sworn unto them.¹  And what is considered 'many'? R. Nahman b. Isaac said: Three [men]; [for the expression of] 'days'²  implies two [days] and 'many'²  three. R. Isaac replied: Ten; [for the term] congregation³  was applied to them.)⁴  [Now] 'R. Meir ruled: In the case of a vow [the disallowance of which] necessitates the investigation of a Sage he may not remarry her' [and] 'R. Eleazar said: The prohibition [against remarriage where the disallowance of the vow] required [the investigation of a Sage] was ordained only on account [of a vow] which required [no such investigation]'.⁵  on what principles do they⁶  differ? — R. Meir holds the view that 'a man does not mind his wife's being exposed to the publicity of a court of law' and R. Eleazar holds the view that 'no man wants his wife to be exposed to the publicity of a court of law'.⁷

Raba replied:⁸  Here⁹  we are dealing with the case of a woman from a noted family in which case the man¹⁰  could say,¹¹  'I have no wish to be forbidden to marry her relatives'.¹²  If so,¹³  [consider] the final clause where it is stated, 'But if he¹⁴  went¹⁵  to a Sage who disallowed his vow or to a physician who cured him, his betrothal of the woman is valid', [why, it may be asked, was it not] stated, 'the betrothal is invalid' and¹⁶  explained,¹⁷  'Here we are dealing with the case of a man from a noted family concerning whom the woman¹⁸  might plead. 'I have no wish to be forbidden to marry his relatives'?¹⁹  — A woman is satisfied with any sort [of husband] as Resh Lakish said. For Resh Lakish stated: 'It is preferable to live in grief²⁰  than to dwell in widowhood'.²¹  Abaye said: With a husband [of the size of an] ant her seat is placed among the great.²²  R. Papa said: Though her husband be a carder²³  she calls him to the threshold and sits down [at his side].²⁴  R. Ashi said: Even if her husband is only a cabbage-head²⁵  she requires no lentils²⁶  for her pot.²⁷

A Tanna taught: But all such women²⁸  play the harlot and attribute the consequences²⁹  to their husbands.

ALL DEFECTS WHICH DISQUALIFY etc. A Tanna taught: To these³⁰  were added³¹  [excessive] perspiration, a mole and offensive breath.³²  Do these, then, not cause a disqualification in respect of priests? Surely we have learned,³³  'The old, the sick and the filthy'³⁴  and we have also learned, 'These defects whether permanent or transitory, render human beings³⁵  unfit [for the Temple service]!³⁶  — R. Jose b. Hanina replied: This is no contradiction. The former refers to perspiration that can be removed;³⁷  the latter, to perspiration that cannot be removed.³⁸

R. Ashi said [in reply]: You are pointing out a contradiction between 'perspiration' and 'one who is filthy' [which in fact are not alike, for] there, in the case of priests,³⁹  it is possible to remove the perspiration⁴⁰  by the aid of sour wine, and it is also possible [to remove] an offensive breath by holding pepper in one's mouth and thus performing the Temple service, but in the case of a wife⁴¹  [such devices are for all practical purposes] impossible.⁴²

What kind of a mole is here meant? If one overgrown with hair, it would cause disqualification in both cases; if one with no hair, [then, again], if it is a large one it causes disqualification in both cases⁴³  and if it is a small one it causes no disqualification in either; for it was taught: A mole which is overgrown with hair is regarded as a bodily defect; if with no hair it is only deemed to be a bodily defect when large but when small it is no defect; and what is meant by large? R. Simeon b. Gamaliel explained: The size of an Italian issar!⁴⁴  — R. Jose the son of R. Hanina said: One which is situated on her forehead.⁴⁵  [If it was on] her forehead he⁴⁶  must have seen it and acquiesced!⁴⁷  — R. Papa replied: It is one that was situated under her bonnet and is sometimes exposed and sometimes not.

R. Hisda said: I heard the following statement from a great man (And who is he? R. Shila). If a dog bit her⁴⁸  and the spot of the bite turned into a scar [such a scar] is considered a bodily defect.

R. Hisda further stated: A harsh voice in a woman is a bodily defect; since it is said in Scripture, For sweet is thy voice, and thy countenance is comely.⁴⁹

R. Nathan of Bira learnt: [The space] of one handbreadth between a woman's breasts.⁵⁰  R. Aha the son of Raba intended to explain in the presence of R. Ashi [that this statement meant that '[the space of] a handbreadth' is to [a woman's] advantage,⁵¹  but R. Ashi said to him: This⁵²  was taught in connection with bodily defects. And what space [is deemed normal]? Abaye replied: [A space of] three fingers.

It was taught: R. Nathan said, It is a bodily defect if a woman's breasts are bigger than those of others. By how much? — R. Meyasha the grandson of R. Joshua b. Levi replied in the name of R. Joshua b. Levi: By one handbreadth. Is such a deformity, however, possible?⁵³  — Yes; for Rabbah b. Bar Hana related, I saw an Arab woman who flung her breasts over her back and nursed her child.

But⁵⁴  of Zion it shall be said: 'This man and that⁵⁵  was born in her; and the Most High Himself doth establish her;⁵⁶  R. Meyasha, grandson of R. Joshua b. Levi, explained: Both⁵⁷  he who was born therein and he who looks forward to seeing it.⁵⁸

Said Abaye: And one of them⁵⁹  is as good as two of us.⁶⁰  Said Raba: When one of us, however, goes up there⁶¹  he is as good as two of them. For [you have the case of] R. Jeremiah who, while here,⁶²  did not understand what the Rabbis were saying, but when he went up there he was able to refer to us as 'The stupid Babylonians'.⁶³

MISHNAH. IF SHE⁶⁴  WAS AFFLICTED WITH BODILY DEFECTS WHILE SHE WAS STILL IN HER FATHER'S HOUSE,⁶⁵  HER FATHER⁶⁶  MUST PRODUCE PROOF THAT THESE DEFECTS AROSE AFTER SHE HAD BEEN BETROTHED AND [THAT, CONSEQUENTLY, IT WAS THE] HUSBAND'S FIELD THAT WAS INUNDATED.⁶⁷  IF SHE CAME UNDER THE AUTHORITY OF HER HUSBAND,⁶⁸  THE HUSBAND⁶⁹  MUST PRODUCE PROOF THAT THESE DEFECTS WERE UPON HER BEFORE SHE HAD BEEN BETROTHED AND [THAT CONSEQUENTLY] HIS BARGAIN WAS MADE IN ERROR. THIS IS THE RULING OF R. MEIR. THE SAGES, HOWEVER, RULED: THIS⁷⁰  APPLIES ONLY TO CONCEALED BODILY DEFECTS;

1. Josh. IX, 28; the oath could not be annulled because it was taken in public.
2. Referring to Lev. XV, 25. Cf. Nid. 73a.
3. [H] (Josh. ibid.).
4. And a congregation consists of not less than ten men.
5. Cf. supra p. 467, nn. 11ff.
6. R. Meir and R. Eleazar. Cf. supra p. 466, nn. 29ff.
7. The source of the statements (v. supra p. 467, n. 5) has thus been shewn. For further notes on the passage v. Git. (Sonc. ed.) pp. 200ff.
8. In explanation of the contradiction pointed out supra 74b.
9. The second Baraitha which rules that the betrothal is invalid even if a Sage has disallowed the vow.
10. Even according to R. Meir who maintains that a husband does not mind his wife's appearance before a court of law one may still be objecting to live with a wife who is restricted by a vow.
11. In his desire to avoid a divorce and to obtain the retrospective annulment of his betrothal (v. following note).
12. Her mother and sister who are forbidden to marry the man who divorced her. He may insist that he wishes to retain the privilege of marrying these women members of a noted family though he objected to the particular one who restricted herself by a vow. By obtaining the annulment of the betrothal he does not place his wife under the category of a divorcee and he retains, in consequence, the right of marrying her relatives. Hence the ruling (even according to R. Meir) that the betrothal is invalid.
13. If Raba's explanation is to be accepted.
14. A man who betrothed a woman on the condition that he was under no vow or that he suffered no bodily defects.
15. After the betrothal
16. In order to reconcile the two clauses.
17. On the lines followed by Raba in the first clause.
18. Cf. supra n. 3 mutatis mutandis.
19. Cf. mutatis mutandis, supra nn. 4 and 5.
20. Or 'together', 'as husband and wife'. V. following note.
21. Yeb. 118b. This is a woman's maxim. She prefers a married life of unhappiness and misery to a happy and prosperous life in solitude. [H] (adv.) 'with a load of grief', 'in trouble' (Jast.) Aliter: (Cf. supra n. 13) us iy 'two bodies' (Rashi); 'two persons' (Levy).
22. A woman's opinion of a married life (v. Yeb. l.c.) [H] pl. of [H], 'a free woman'.
23. [H], 'flax-beater' (Rashi), a watchman of vegetables' (Aruch.), i.e., of a poor and humble occupation.
24. To shew her friends that she is a married woman. She is proud to be in the company of a husband however humble his occupation and social status.
25. [H], i.e., 'dull', 'ugly' (v. Jast.): 'of a tainted family' (Rashi).
26. I.e., even a cheap vegetable.
27. A woman is content to dispense even with the cheapest enjoyments for the sake of a married life.
28. Who marry the unlovely types enumerated.
29. Lit., 'and hang on'.
30. The defects that disqualify priests (v. Bek. 43a).
31. In the case of women (v. our Mishnah).
32. Lit., 'smell of the mouth'.
33. In respect of defects that render animals unfit for the altar (Bek. 41a).
34. Under which term, it is at present assumed, excessive perspiration and offensive breath are included.
35. Sc. priests.
36. Bek. 43a. How then could it be said supra that excessive perspiration and offensive breath are not included among those that disqualify a priest?
37. By the application of water (v. Tosaf. s.v. itf). Aliter: That may be cured (v. Tosaf. loc. cit.).
38. Cf. supra n. 14 mutatis mutandis.
39. Who were not described as 'filthy', but as suffering from excessive perspiration or offensive breath. R. Ashi, contrary to the previous assumption (v. supra note 11), draws a distinction between 'filthy' which implies a chronic state of the body and the two others which are only minor defects.
40. Even if water could not remove it.
41. With whom a husband is constantly in contact.
42. Hence the ruling that even such minor defects render a betrothal invalid.
43. Lit., 'here and here', in the case of a priest and in that of a wife.
44. V. Glos. The question then arises: What kind of a mole was meant in the Baraitha supra where it is mentioned among the three defects of a wife that do not disqualify a priest.
45. And is small in size and without hair.
46. The man who betrothed her.
47. How then could a mole in such circumstances be regarded as a defect that causes the invalidity of the betrothal?
48. Any woman.
49. Cant. II, 14.
50. This is explained anon.
51. But if it was bigger or smaller it is to be regarded as a defect.
52. R. Nathan's statement.
53. Lit., 'is there such a kind'.
54. The following paragraph, though irrelevant to the subject under discussion, is inserted here because of its author, R. Meyasha, who is also the author of the previous statement.
55. [H], lit., 'man and man'.
56. Ps. LXXXVII, 5.
57. The inference is derived from the repetition of man (v. supra n. 3).
58. Will be acclaimed as a son of Zion.
59. The man of Zion, i.e., the Palestinians (Rashi).
60. Babylonians.
61. To Palestine.
62. In Babylon.
63. Cf. Men. 42a.
64. A betrothed woman.
65. I.e., before she married and went to live with her husband.
66. If his daughter is to be entitled to her kethubah from the man who betrothed her and refused to marry her on account of her defects.
67. Metaph. It is the husband's misfortune that the woman who had no such defects prior to her betrothal is now afflicted with them.
68. I.e., if the defects were discovered after the marriage.
69. Should be, on account of her defects, desire to divorce her and to deny her the kethubah.
70. The validity of a husband's plea that HIS BARGAIN WAS MADE IN ERROR.

BUT IN RESPECT OF DEFECTS THAT ARE EXPOSED HE¹  CANNOT ADVANCE ANY VALID PLEA.²  AND IF THERE WAS A BATH-HOUSE IN THE TOWN HE CANNOT ADVANCE ANY VALID PLEA²  EVEN AGAINST CONCEALED BODILY DEFECTS, BECAUSE HE [IS ASSUMED TO HAVE HAD HER] EXAMINED BY HIS WOMEN RELATIVES.³

GEMARA. The reason then⁴  is because the father produced proof, but if he produced no proof,⁵  the husband is believed.⁶  Whose [view consequently is here⁷  expressed]? [Obviously] that of R. Joshua who stated, 'Our life is not dependent on her statement'.⁸  Now read the final clause: IF SHE CAME UNDER THE AUTHORITY OF THE HUSBAND, THE HUSBAND MUST PRODUCE PROOF, the reason then⁹  is because the husband produced proof, but if he produced no proof,¹⁰  the father is believed,¹¹  a ruling which expresses the view of R. Gamaliel who stated that the woman is believed!¹²  — R. Eleazar replied: The contradiction¹³  [is evident]; he who taught the one did not teach the other.¹⁴

Raba said: It must not be assumed that R. Joshua¹⁵  is never guided by the principle of the presumptive soundness of the body, for the fact is¹⁶  that R. Joshua is not guided by that principle only where it is opposed by the principle of possession.¹⁷  Where, however, the principle of possession is not applicable R. Joshua is guided by that of the soundness of the body; for it was taught: If the bright spot¹⁸  preceded the white hair, he¹⁹  is unclean; if the reverse, he is clean. [If the order is in] doubt, he is unclean; but R. Joshua said: It darkened.²⁰  What is meant by 'It darkened'? Rabbah replied: [It is as though the spot] darkened²¹  [and, therefore,] he is clean.²²

Raba explained:²³  The first clause [is a case of] 'Here²⁴  they²⁵  were found and here they must have arisen'²⁶  and so is the final clause: Here²⁷  they²⁸  were found and here they must have arisen.²⁹  Abaye raised an objection against him:³⁰  IF SHE CAME UNDER THE AUTHORITY OF THE HUSBAND, THE HUSBAND MUST PRODUCE PROOF THAT THESE DEFECTS WERE UPON HER BEFORE SHE HAD BEEN BETROTHED³¹  AND [THAT, CONSEQUENTLY,] HIS BARGAIN WAS MADE IN ERROR; [Thus only if she had the defects] BEFORE SHE HAD BEEN BETROTHED [is the husband's plea] accepted,³²  [but if they were seen upon her] only after she had been betrothed³³  [his plea would] not [be accepted]. But why? Let it be said,³⁴  'Here they were found and here they must have arisen'!³⁵  — The other³⁰  replied: [The principle³⁶  cannot be applied if the defects were discovered] after she had been betrothed because it may be taken for granted that no man drinks out of a cup³⁷  unless he has first examined it; and this man³⁸  must consequently have seen [the defects] and acquiesced.³⁹  If so,⁴⁰  [the same principle should apply] also to one [who had defects] prior to her betrothal. [Since,] however, [it is not applied], the presumption must be that no man is reconciled to bodily defects, [why then is it not presumed] here⁴¹  also that no man is reconciled to bodily defects? — This, however, is the explanation: [The principle³⁶  cannot be applied to defects discovered] after she had been betrothed because two [principles] are [opposed to it:] The presumptive soundness of the woman's body⁴²  and 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. What possible objection can you raise?⁴³  Is it the presumption that no man is reconciled to bodily defects? [But this] is only

1. Since he was in a position to see them.
2. That he was not aware of these defects.
3. He must have known, therefore, of the defects, and acquiesced.
4. Why in the first clause of our Mishnah the woman who was divorced after a betrothal is entitled to her kethubah.
5. So that it is unknown when the defects first arose.
6. If he pleads that the woman was afflicted with the defects prior to her betrothal; and he, as the possessor of the money, is consequently exempt from paying the kethubah as is the law in respect of all monetary claims where the possessor cannot be deprived of his money without legal proof of the claim advanced against him.
7. In the implication that the law is to be decided in favour of the husband who is the possessor of the money and not in favour of the woman who, since she was born without bodily defects, has the claim of presumptive soundness of body.
8. I.e., we do not rely on the woman's assertion, supra 12b, where the time she had been outraged is a matter of dispute between her and her husband. Though the woman has in her favour the claim of the presumptive chastity of her body she, nevertheless, cannot obtain her kethubah because of her husband's stronger claim as the possessor of the amount of the kethubah.
9. Why the woman does not receive her kethubah.
10. So that it is unknown when the defects first arose.
11. Cf. supra note 7 mutatis mutandis; the woman's presumptive soundness of body being regarded as a superior claim to that of the husband possessor of the amount of the kethubah.
12. Supra 12b. Cf. supra p. 473, n. 9 mutatis mutandis and p. 473, n. 12. A contradiction thus arises between the first and the second clause of our Mishnah.
13. [H]. Aliter: (rt. [H], 'to break') Divide or sever (the two clauses). R. Han. (v. Tosaf. s.v. [H],). regards[H], as an imprecation.
14. The first clause represents the view of R. Joshua who maintains the same view in the case spoken of in the second clause, while the second clause expresses the view of R. Gamaliel who maintains it in the case of the first clause also, neither of them drawing a distinction between a woman who was still in her father's house and one who was already under the authority of her husband.
15. Cf. supra p. 473, nn 7-8.
16. Lit., 'but'.
17. Lit., 'presumptive possession of the money'.
18. In leprosy. V. Lev. XIII, 2-4.
19. The man afflicted.
20. Neg. IV, 11.
21. Cf. Lev. XIII, 6: If the plague be dim (or dark) … then the priest shall pronounce him clean.
22. Thus it has been shewn that R. Joshua, since be ruled that a doubtful case of leprosy is clean, is guided by the principle of the presumptive soundness of the human body wherever it is not opposed by the principle of possession.
23. The apparent contradiction between the first and the second clause of our Mishnah (cf. supra note 1).
24. In the FATHER'S HOUSE.
25. The BODILY DEFECTS of the woman.
26. And it is owing to this principle only that the onus of producing proof was thrown upon the father. Otherwise, he would have been believed without proof, in agreement with the view of R. Gamaliel, which is the adopted halachah (v. supra 12b), because his claim is supported by the principle of his daughter's presumptive soundness of body.
27. In the husband's house.
28. The BODILY DEFECTS of the woman.
29. The two clauses of our Mishnah thus present no contradiction, both expressing the view of R. Gamaliel (cf. supra p. 474, n. 15).
30. Raba.
31. [H]. The reading in our Mishnah is [H] a change of tense and form that does not materially affect the meaning of the phrase.
32. Lit., 'yes'.
33. Although she was still in her father's house.
34. If Raba's explanation is correct.
35. Since this principle, however, is not adopted in the final clause, how could Raba's explanation be upheld?
36. 'Here they were found etc.'.
37. Euphemism.
38. Since he had married the woman.
39. Hence the inadmissibility of the principle, 'Here they were found etc.'.
40. If the principle of the 'presumptive examination of the cup' is the determining factor in favour of the woman.
41. In the final clause where the proof established the existence of the defects after betrothal while the woman was still in her father's house.
42. Lit. 'place the body upon its strength'.
43. Against deciding, on the basis of the two principles, in favour of the woman.