Maseches Kesuvos Daf 10-11
Jul. 20th, 2022 12:35 am![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
seekingferretDaf 10
I wrote on Daf 7 that there's an inherent tension between the Torah's ideas about premarital sex and the Talmud's ideas. The Torah doesn't seem to see premarital sex as a sin, but simply a source of potential problems to be dealt with: What do you do if someone gets pregnant? What do you do if someone is no longer a betulah and is considered less marriageable? What do you do if your sexual partner is already married? These are the things the Torah is worried about, and it presents solutions to the problems, but there's no actual prohibition on sex outside of marriage.
The Talmud sees these social problems, though, and in the context of its cultural norms it wants to create a cultural attitude that pre-marital sex is a problem on its own face, so as to not even have to apply the Torah's solutions as much as possible.
Which leads to a strangely contradictory position from Rav Nachman. A chasan testifies that he was with his kallah for the first time and she experientially did not feel like a virgin. Setting aside any evidence from a sheet, she simply did not feel like a virgin. How would he know, if he is also a virgin? The Gemara presumes he wouldn't, so clearly for him to know enough about sex to say that she was not a virgin, he must have previously had sex with other women, and particularly with other women who were not virgins.
Rav Nachman says, therefore, if he makes this testimony, we beat him with palm branches. That is, not to say the arba'im malkut for violating a lo ta'aseh, but rather a punishment for violating a Rabbinic takanah, a civil enactment against having sex outside of marriage. But there's a separate statement of Rav Nachman that we accept the testimony of the chasan in this scenario, which seems funny that we beat him and then take his word in court of law, but the Gemara seems to understand that it is precisely because he has the experience of his violation of the Rabbinic takanah that he is able to be a reliable witness about his kallah's marital status. The question isn't whether he's a generally trustworthy person, the question is whether he's a domain expert.
An alternate approach in the name of Rav Achai is that the beating happens in the case of a person who was not previously married, because his only sexual experience must be improper, and we do not consider his testimony credible, but if the man is a widower or divorcee, he has previous experience with marital sex, so he is considered credible and not beaten.
All of this is slightly more palatable if we say it means that the credibility is with regards to him being prohibited to be with her, not anything to do with the monetary element of divorce or to the penalties of adultery. The Gemara's not quite clear, but it seems reasonable to read it that way.
Much of the rest of the daf is concerned with cases where a chasan testifies that it did not seem like his kallah was a virgin, but closer investigation revealed that she was, and there were any number of good, valid reasons why there was no blood- there was blood but it was hard to spot! there was no blood because the kallah had a genetic condition demonstrable in the family medical history of no blood! there was no blood because the kallah had been malnourished! It's honestly pretty excellent that we see the Rabbis putting a lot of investigative effort into saving marriages from this disastrous start, but given that the Rabbis were aware of all the problems, you'd think it might be possible to just say actually, there's no way to tell for sure from physical evidence whether a woman was a virgin or not so we're going to abandon this game altogether.
Daf 11
The Mishna says that in the case of a female convert who was converted before she was 3 1/2 years old, she is treated as a betulah for purposes of the marriage contract, but if older when she converted, she is not considered a betulah because who knows what those sinful goyim were doing. I don't want to get into that, the Gemara immediately tangents off to a really interesting discussion of the conversion of minors and whether they are able to consent to conversion and under what circumstances.
If a non-Jewish man converts to Judaism, it may make logical and logistical sense for his minor children to convert along with him, but there are problems of consent. Jewish children, of course, don't consent to being Jewish but simply inherit the faith of their parents, but they're not fully obligated in the law and there is a sense in which Bar or Bat Mitzvah represents being of age to fully consent in the laws, and this is the reason they're not (fully) obligated in mitzvot until the age of Bar/Bat Mitvah. So similarly a minor child who converts to Judaism with their parents has not really fully converted to Judaism until they reach Bar/Bat Mitzvah age and can consent as an adult to be obligated in the law. The difference is that for the born Jewish child, at that point if they don't accept the laws, they're still Jewish, just a bad Jew. But for a convert child, if they reject the law at that point, they go back to being a non-Jew, their conversion is retroactively invalid. But interestingly, there's apparently no specific ceremony of accepting the laws, the Rabbis consider it an opt-out situation where on their birthday, the convert would have to explicitly disclaim their Judaism or else sorry, too late. ONE OF US. ONE OF US.
I refuse to go into the reasons why the Gemara cares about this right now, it's too upsetting.
I wrote on Daf 7 that there's an inherent tension between the Torah's ideas about premarital sex and the Talmud's ideas. The Torah doesn't seem to see premarital sex as a sin, but simply a source of potential problems to be dealt with: What do you do if someone gets pregnant? What do you do if someone is no longer a betulah and is considered less marriageable? What do you do if your sexual partner is already married? These are the things the Torah is worried about, and it presents solutions to the problems, but there's no actual prohibition on sex outside of marriage.
The Talmud sees these social problems, though, and in the context of its cultural norms it wants to create a cultural attitude that pre-marital sex is a problem on its own face, so as to not even have to apply the Torah's solutions as much as possible.
Which leads to a strangely contradictory position from Rav Nachman. A chasan testifies that he was with his kallah for the first time and she experientially did not feel like a virgin. Setting aside any evidence from a sheet, she simply did not feel like a virgin. How would he know, if he is also a virgin? The Gemara presumes he wouldn't, so clearly for him to know enough about sex to say that she was not a virgin, he must have previously had sex with other women, and particularly with other women who were not virgins.
Rav Nachman says, therefore, if he makes this testimony, we beat him with palm branches. That is, not to say the arba'im malkut for violating a lo ta'aseh, but rather a punishment for violating a Rabbinic takanah, a civil enactment against having sex outside of marriage. But there's a separate statement of Rav Nachman that we accept the testimony of the chasan in this scenario, which seems funny that we beat him and then take his word in court of law, but the Gemara seems to understand that it is precisely because he has the experience of his violation of the Rabbinic takanah that he is able to be a reliable witness about his kallah's marital status. The question isn't whether he's a generally trustworthy person, the question is whether he's a domain expert.
An alternate approach in the name of Rav Achai is that the beating happens in the case of a person who was not previously married, because his only sexual experience must be improper, and we do not consider his testimony credible, but if the man is a widower or divorcee, he has previous experience with marital sex, so he is considered credible and not beaten.
All of this is slightly more palatable if we say it means that the credibility is with regards to him being prohibited to be with her, not anything to do with the monetary element of divorce or to the penalties of adultery. The Gemara's not quite clear, but it seems reasonable to read it that way.
Much of the rest of the daf is concerned with cases where a chasan testifies that it did not seem like his kallah was a virgin, but closer investigation revealed that she was, and there were any number of good, valid reasons why there was no blood- there was blood but it was hard to spot! there was no blood because the kallah had a genetic condition demonstrable in the family medical history of no blood! there was no blood because the kallah had been malnourished! It's honestly pretty excellent that we see the Rabbis putting a lot of investigative effort into saving marriages from this disastrous start, but given that the Rabbis were aware of all the problems, you'd think it might be possible to just say actually, there's no way to tell for sure from physical evidence whether a woman was a virgin or not so we're going to abandon this game altogether.
Daf 11
The Mishna says that in the case of a female convert who was converted before she was 3 1/2 years old, she is treated as a betulah for purposes of the marriage contract, but if older when she converted, she is not considered a betulah because who knows what those sinful goyim were doing. I don't want to get into that, the Gemara immediately tangents off to a really interesting discussion of the conversion of minors and whether they are able to consent to conversion and under what circumstances.
If a non-Jewish man converts to Judaism, it may make logical and logistical sense for his minor children to convert along with him, but there are problems of consent. Jewish children, of course, don't consent to being Jewish but simply inherit the faith of their parents, but they're not fully obligated in the law and there is a sense in which Bar or Bat Mitzvah represents being of age to fully consent in the laws, and this is the reason they're not (fully) obligated in mitzvot until the age of Bar/Bat Mitvah. So similarly a minor child who converts to Judaism with their parents has not really fully converted to Judaism until they reach Bar/Bat Mitzvah age and can consent as an adult to be obligated in the law. The difference is that for the born Jewish child, at that point if they don't accept the laws, they're still Jewish, just a bad Jew. But for a convert child, if they reject the law at that point, they go back to being a non-Jew, their conversion is retroactively invalid. But interestingly, there's apparently no specific ceremony of accepting the laws, the Rabbis consider it an opt-out situation where on their birthday, the convert would have to explicitly disclaim their Judaism or else sorry, too late. ONE OF US. ONE OF US.
I refuse to go into the reasons why the Gemara cares about this right now, it's too upsetting.