seekingferret | Entries tagged with bt: ketubot

Daf 29

New Perek. This one is about the Torah laws of premarital sex.

A detour. Rabbi Steinsaltz interpolates the word rape a whole bunch here where the Talmud doesn't say it. He understands all of these laws not to be about premarital sex, but about nonconsensual premarital sex. I'm not entirely sure what his overall objective is in doing so, but clearly he's doing it to make an argument about how the law should be understand, sociologically. That said, I'm not sure how right it is, and I'm not sure how much it matters.

The basic idea is that the Torah says if an unmarried virgin woman has sex with a man, that in itself tentatively effectuates a marriage, without a ketubah. The Torah makes no distinction between the case of a nineteen year old girl voluntarily sleeping with her boyfriend or or the case of the serial rapist assaulting unmarried women on the street or the case of a thirty year old man sleeping with his fourteen year old maidservant. However, it does give the woman's father a veto over the marriage, which gives the parties some leeway to distinguish between a case when the marriage is desired but simply done out of turn, or the case when wrongdoing actually happened and the marriage should not go forward. In those cases, the man has to pay the father the difference between the marriage price of a virgin and the marriage price of a non-virgin, which in general in the Talmud has been 100 shekels.

I do want to say that you sort of understand why the Torah would arrange things in this way. Knowledge of a woman's virginity, and controlling sex to be either entirely within marriage, or immediately requiring marriage or compensation, is a strategy for ensuring that a)you know the paternity of a child and b)you ensure that the father is economically responsible for their child. So if sex occurs within a marriage, great, you know the father and you know they're responsible for the child. If sex occurs outside a marriage, you have two choices. Either you compel marriage and the father is responsible for the child, or you reject the compelled marriage and instead make the father provide money that serves as alimony and child support.

In modern American society, we have other tools that enable other strategies for achieving the same goals. We have effective paternity tests, safe abortion (in many places), no-fault adoption, a robust and interconnected court system to compel child support, and so on. So I do think it's important when reacting to one's immediate revulsion to the text to remember that those things didn't exist in Talmudic times.

So, with that background...

The first mishna of the perek is about cases where premarital sex happens but a marriage cannot happen because it is forbidden. If this happens, you in general default to the alternative, paying the father the difference in marriage price, which the Mishna calls a k'nos, a monetary fine. There are some exceptions.

There are different kinds of cases. I think it's useful at least in some limited ways to imagine them along a sort of continuum of Jewish womanhood, but I want to be clear that this is me doing theorizing and not halacha.

The first case the Mishna doesn't mention but I want to make it explicit because it illustrates the continuum I'm contemplating. If a man sleeps with a non-Jewish woman, it cannot effectuate marriage, but also it does not result in a fine because it would not be the Jewish authorities enforcing the penalty.

The second case, which is therefore the first case the Gemara mentions, is a woman who is living under Jewish law but is not considered fully Jewish for purposes of marriage- a woman of Gibeonite heritage or Samaritan heritage, or a woman who was the product of a forbidden Jewish relationship, a mamzeret. Because they're living under Jewish law, the beis din can enforce a fine, but it will not sanctify a marriage.

The third case is if the woman is not considered a virgin (even though she might actually be), such as if she was captive as discussed on a previous daf. In this case, you could enact the marriage, but if you chose not to enact the marriage there would be no k'nos because there's no change in status from virgin to non-virgin.

And the last case the Mishna discusses is if the relationship is a forbidden relationship, such as if a man sleeps with his relative. Obviously this can't lead to marriage, so it automatically results in k'nos. In this case, in addition to the k'nos, the man is chiyuv kares, which is like a death sentence but not. If there actually were a death sentence, there would be no k'nos.

The actual last case the Mishna doesn't mention yet, but which I want to lay out to establish the continuum, is the case of a virgin Israelite woman, which is the only case where there is the choice of marriage or k'nos. The continuum I'm talking about is a continuum of precarity in the Jewish community- how Jewish is the woman, how much of a potential wife is the woman, those are crappy questions but they're important in defining boundaries the Rabbis want to define.

I dropped Daf Yomi in early August when all the travel started, and I kept meaning to pick it back up but then the chagim hit. Kesuvos ended a few days ago, so I'm left with the choice of picking up Nedarim to stay in synch with the cycle, or trying to finish Kesuvos. I think I'm going to try the Ketubot option. Here's the rest of Perek 2. Also, as usual with Kesuvos, TW: Rape and Misogyny.

Daf 26

When last we stopped, the Gemara was struggling with a concept of scenarios where a court chooses to believe a person testifying to their advantage, because they could have just as easily told a lie that was more advantageous to them. Clearly this needs to be a limited concept, because it's almost equally reasonable that they're telling the less advantageous story precisely because they think it's more believable, or even because they know this principle of law. But in certain circumstances where witness evidence is difficult to obtain, and where the cost of accepting the lie is minimal, the Rabbis held it was okay.

Some of the cases in this chapter have nothing to do with marriage, but some of them do, which is why this chapter is in Ketubot. And in addition to this particular law of witnesses, the Gemara is touching on some other cases where the Rabbis will accept a single witness, or accept types of witnesses it ordinarily wouldn't accept.

On this daf the Rabbis are concerned with cases where a woman is imprisoned by non-Jewish authorities. She is out of view of Jewish life. In ordinary Jewish life, a married woman is forbidden to be secluded in the same room as a man who is not her husband, because it creates a suspicion of adultery. And I think there's sort of an assumption that, living in a Jewish community, seclusion is difficult to manage without some Jew knowing about it. But if she's held captive by non-Jews, we don't know whether or not forbidden seclusion happens, it's all away from the eyes of witnesses who could tell us whether there was forbidden seclusion.

So the Rabbis have to decide whether or not they trust non-Jewish society, and particularly the non-Jewish authorities. Spoiler alert, the Rabbis usually don't trust non-Jewish authorities, but fascinatingly here, they seem more open to trusting them than usual. According to Rav Shmuel bar Yitzhak, Rav creates a construct here of "The Hand of Israel is Over the Nations", which means one of two things:

1. The particular government the Jews are living under is a basically moral government by Jewish understanding, and can be expected, barring some failures of governance, to protect even vulnerable people kept in prison.

or

2. The entire era of the moment is one where all governments basically respect the rule of law and morality according to basic Jewish understanding, and can be expected, barring some failures of governance, to protect even vulnerable prisoners.

Either way is pretty amazing; the second is stunning. And the whole conversation left me extremely curious how modern poskim feel about this halacha, because there are potentially substantial consequences in halacha l'maaseh of any of these rules being in effect, or not being effect, and what posture do we believe American prisons are in, today?

Daf 27

A horrible but horribly romantic story:

Rabbi Zekharia ben HaKatzav was in Jerusalem during the Roman sack. There's a law that when a besieged city is occupied, the women inside are considered to have potentially been raped because soldiers raping is a fact of life, today just as much as in the Rabbinic era. For women married to normal Israelites, this is horrible but poses no halachic problems because non-consensual sex does not count as adultery. But for women married to priests, this is a problem, because as a matter of the law of purity, priests are not allowed to be married to women who have had sex with another man, consensually or not. Now, if the priest's wife has actually been raped, clearly she has to divorce her husband even though this is tragic and horrible. (I guess you could say that this is something she knew when she signed up to be a priest's wife, it's part of the commitment.) But if she hasn't been raped, there is still a presumption that she may have been raped, and unfortunately a woman is not allowed to testify that she hasn't been raped because the Rabbis weren't #believewomen. So she still is now forbidden to be with her husband even though nothing happened.

Rabbi Zekharia ben Hakatzav was a priest, and he was living in Jerusalem during the siege and was with his wife and children and somehow they managed to stay together and stay safe. Afterward, the Sages said that his wife was forbidden to him, but he demurred, insisting that his wife had never left his sight and he knew she had not been raped. They still held him to the letter of the law and told him she was now prohibited to him. But here's the awful but romantic part. He refused to divorce her but built her a house in his courtyard so that he could stay with her but never ever be allowed to be alone in the same room as her. And they lived the rest of their lives together but apart. Awww. So romantic. Also this sucks so much.

Daf 28

The Gemara returns to discussion of how we know somebody who hasn't been acting as a Kohen is actually a kohen. This is a really fascinating discussion not for the legal questions, but because it reveals a lot about how social class was constructed in the society the Talmud is describing. The (Jewish) slaves of Kohanim were allowed to eat terumah, the special offering/tax of first produce given as an entitlement to the Kohanim by all of Israel as recognition of their central role as intercessors on behalf of the people. Why were they entitled to eat Terumah? Presumably because their master was responsible for feeding them, and the Terumah might be the only food they had, so the Torah needed to make sure they would be fed. But there was apparently an importance given to making a distinction between the Kohanim being entitled to the Terumah, and the slaves being able to eat Terumah, so a slave cannot directly receive Terumah as an offering and eat it, they have to be given it by their master specifically.

I've fallen a bit behind but let's do a little catchup

Daf 23

Wiiiild story here. Captive Jewish women are returned to Nehardea and the father of Shmuel stations guards to watch them while the ransom is paid to their non-Jewish captors. His son, Shmuel, says "Why bother, surely they're already considered to have been raped when they were held by the non-Jews (and therefore forbidden to marry a Kohen, and possibly owed a smaller marriage price in their ketubah)?" The father of Shmuel says "You wouldn't say that if they were your own daughters." In other words, maybe there's some loophole we can figure out to restore their status, maybe we can find a witness to testify that they were never raped in captivity, for the moment let's do everything we can to protect their status in the meantime. And probably also in other words, Shmuel you unempathetic sack of crap, we have no idea what kind of torments these women endured in captivity, the least we can do is protect them from further torment right now!

Anyway, the Gemara says that as a result of Shmuel's father's statement, it became a curse and Shmuel's daughters were in fact later kidnapped by non-Jews, who brought them to Northern Israel to be redeemed. There, the daughters being exceptionally clever and well-trained in Jewish law told their captors "Before you ransom us, please let us go talk to the elders ourselves." They agreed and the daughters went to the elders and said "We are being held captive and we were not raped." This then allowed the principle we discussed where since they testified to their own captivity before any witnesses did, it's accepted as testimony, so when the daughters were ransomed, they were considered still eligible to marry Kohanim. And the Rabbis in town were so impressed that they were like, daaaaaaaaaamn, better marry our sons off to these amazing women right away.

So many takeaways you could get from this story. Wiiild.

Daf 24

The Gemara starts to get interested in the question of doubtful Kohanim. What's interesting to me here is the historical context of the question and its significance. The Gemara is written in the time of the second exile, so the Kohanim are not being used in the Temple service. The main significance of the Kohanim, then, is as symbols of the potential restoration of the Beis Hamikdash. You need to have Kohanim so that when we return to Eretz Yisrael and rebuild the Beis Hamikdash, bimhera b'yameinu, you'll have people to recover the Temple ritual, which the Chachamim clearly considered a reasonably near term possibility, bo mashiach. In the meantime, certain of the entitlements of the Kohanim, like the reishis hageiz and challah and terumah and chatzi shekel were still observed in some form, although it was disputed whether they were still d'oraysa obligations or merely d'rabbanan. And because it's d'rabbanan, maybe you allow a doubtful Kohen who does not have great documentation of their heritage but who has some evidence of being a Kohen, to receive terumah d'rabbanan.

You can be mekil because it's d'rabbanan, but here's the problem: If you believe that in just a few years you're moving back to the Big Time in Israel and you're going to need real, fully attested Kohanim, then you worry that you're creating a sort of paper trail of evidence that the dubious Kohanim were involved in Kohanic activities, so when they return to Israel they'll be able to say "Yes, I don't have any paperwork proving I'm a Kohen, but these witnesses can say that I was duchening or receiving terumah" so maybe you don't let dubious Kohanim do those things in Bavel that will set a bad precedent when moshiach comes.

To figure out what to do, they go to the book of Ezra, which descries what happened when the Jews returned to Israel after the first exile and restored the Beis Hamikdash. There were dubious Kohanim at that time, and Ezra and Nehemiah needed to figure out what to do, and apparently what they did was rule based on a Chazakah Gedolah, which is to say if there sufficient evidence to have a reasonable presumption that a person was a Kohen, then they were elevated to actually being a full Kohen. On the one hand, this seems like a straightforward application of the principle of chazakah, so the Gemara wants to sort of back off and say that all they actually did was say that if witnesses testified that there was a chazakah, they accepted it as a chazakah, but clearly the Gemara recognizes that what Ezra and Nehemiah did was a pretty aggressive move, because the spiritual consequences, both personal and national, of having invalid Kohanim performing the Avodah are dire.

Daf 25

Continuing the same topic (I actually threw some of the Daf 25 stuff into my Daf 24 writeup for clarity), when to establish people as Kohanim when their parental documentation is unclear. In a lot of places in exile, apparently, there would be a Beis Din that would decide who counted as a Kohen for purposes of local rituals like duchening, and they would evaluate evidence and authorize Kohanim. But the daf discusses how many of them were fairly liberal with their rulings. If someone had been given the first aliyah, the kohen's entitlement, then that was enough proof that people had treated them as a Kohen. And apparently Rabbi Yehuda HaNasi would even accept the testimony of a man's father that he was a Kohen, which is pretty extraordinary since normally we don't allow a family member to testify in a way that would benefit their close family.

Daf 21

Don't have much to say about this one. More stuff about testimony about testimony, when do we accept that a witness can validate their own signature on a document about some previous financial arrangement and when don't we?

Daf 22

We are finally back to marriage. A woman testifies that she was married, and now she is divorced (or testifies that she was married, and then her husband died)- we take her word for it. But if witnesses show up before this testimony and say that she was married, then we don't take her word for it, because the idea of taking her word for it is based on the fact of the adverse testimony. In the absence of other testimony, she could have simply testified that she was never married, it would have been an easier story with less problems, so we believe her. See? Similar to the discussions on the last few dapim. But a new innovation! What if she testifies that she was married and now is divorced, and then later witnesses come and testify that she is still married? Do we retroactively reject her testimony?

The obvious problem here is that most likely she testified that she was divorced in order that she could marry someone new. So she's married again, if we decide that she was not telling the truth, she is committing adultery and is prohibited to her husband. And it's not like there were generally central registries of marriages and divorces, or at least, maybe there would be a townwide registry but there's no computerized database that you can search for all weddings and divorces anywhere, so if there's controversy nobody can go out and investigate and find the records and definitely decide whether she is legally married or not.

And of course underlying this whole thing, but never stated, is the problem of the agunah. A woman under Jewish law is not able to decide to be divorced, she is dependent on her husband to grant the gett, and if he refuses she is stuck. And moreover the other form of agunah was much more common back in the Talmud's time, it was much more likely that a woman's husband went traveling and nobody was sure whether or not he had died or not. So you can subtextually understand this discussion as the Talmud grappling with "If an agunah lies in order to get married again, and we find out later that she is an agunah, whose interests do we prioritize, the interest of the community in maintaining the inviolability of the terms of the marriage contract, for better or worse, or the interest of the woman in no longer being an agunah?"

I think not surprisingly, the answer is... confused. The Gemara keeps flipping back and forth, making all sorts of distinctions between scenarios where the woman's testimony is accepted and when it isn't, between leniencies in circumstances where freeing the woman of being an agunah is desired, and stringencies when we have reason to think the woman is lying even if that reason falls short of being actual testimony of two witnesses.

Daf 19

So we're talking about legal documents. Rabbi Yehoshua ben Levi teaches that you are not allowed to keep a shtar parua in your house. What does that mean? Say you need to borrow some money. There's no banks in those days, there's very little in the way of, like financial system. You go to some rich guy, the rich guy says "Okay, I'll lend you the money, you need to pay me back when you can, let's get a scribe to write a shtar ( a legal contract) with the terms of the loan." Arguably according to Torah law the rich guy even has an obligation to make this loan, the whole thing works on very different moral principles than modern day borrowing, but besides that, it works on very different mechanical terms. The shtar is all the magic of the system.

Let's say the loan's term passes and you don't want to pay it back, so you say "I never borrowed that money." Well, the rich guy goes to a Beit Din and says "No, you definitely borrowed the money, I have a piece of paper right here that says you borrowed the money and promised to pay it back." So "I never borrowed that money" isn't going to get you very far, especially if the sofer testifies that he wrote the shtar. Maybe instead you say "Yes, I borrowed the money, but I paid it back already." There's no forensic accounting evidence that you made the payment, there's no credit card record or bank statement with the cashed check, there's just your claim that you paid the money back against the shtar that the rich guy has. And though the Gemara acknowledges that for this reason, it's probably better if the rich guy only accepts the payment in the presence of witnesses, according to the law if you repay without witnesses it's still a valid payment. So ideally the solution is that when you are repaid, you have another document made, a receipt saying the debt was paid. But again this is not required, probably because lots of people were illiterate and access to sofrim was limited and the Rabbis wanted to make sure that contracts were still binding even when done without paperwork.

So back to R' Yehoshua ben Levi. His rule is an ethical best practice for the financial industry. The concern is that if a rich guy keeps a shtar around for a loan that was already repaid but which he never gave a receipt to the borrower when it was repaid, he may be tempted to go to a different Beis Din and say "See, you definitely borrowed the money, I have a piece of paper right here that says you borrowed the money and promised to pay it back" and try to get a court to order him to get paid again. So to remove the temptation to fraud, R' Yehoshua warns lenders essentially to keep clear and honest paperwork that cannot be used to cheat.

In a weird way, the whole thing reminds me of a recent Matt Levine bit about cheating on the CPA ethics exam. The actual CPA exam with all the math and so on, they have elaborate anti-cheating mechanisms in place to prevent cheating. Separately, CPA candidates must take an ethics exam. This is not considered a really essential part of being a CPA, apparently, because the tests have none of the elaborate anti-cheating mechanisms in place and it turns out that lots of people cheated on the ethics part of the exam. Levine got a lot of humor out of the irony of the story, but I also think there's something related to R' Yehoshua's argument here, that ethical restraints are not just about imposing rules like "Don't commit fraud", they're also about building structures in your life so that you just aren't presented with a lot of temptation to cheat, by living your life in such a way that the opportunities to commit fraud aren't there.

Daf 20

If you walk over a burial site, you are tamei. Nowadays this is not really a problem, because there's no Beis Hamikdash so tumah does not generally lead to aveirah, but back then it was a big problem. Especially because tumah is an ineffable spiritual taint, so even if you become tumah by accident and aren't aware of it, it still means you're bringing your impure body into the Beis Hamikdash and it's still a problem.

Also, apparently back then sometimes people would just be buried willy-nilly by the side of a road. So suppose you are walking outside town and you see a big pile of dirt, like a hole that's been dug up and then filled in. Either you're seeing a construction site/mining site, or you're seeing a burial site. You have no way of knowing. So the Gemara says don't walk over it, assume it's a burial site and you'd be impure.

Hold on, says the Gemara. If it's a relatively recent hole (say, you walked the same route last month and there was no hole), you can assume that you probably would have heard if someone died and was buried along the road. And the same would not be true of random construction. So it's probably not a burial site, you can walk over it. This obviously presumes that you're a local and in the know, if you're a traveler you should not assume. The Gemara also asks if maybe this only applies in a city where it's known that sometimes corpses are buried outside of the cemetery, but if there's a cemetery that everyone always uses, you can assume it's just construction always. Also, sometimes people would bury amputated hands on the road outside a cemetery (?)

Daf 18

If there's a legal document that has a signature on it, but nobody has testified that it's a valid signature that they witnessed, and the person who signed testifies "Yes, that's my signature, but I was forced to sign it." then this seems to fall in the category I wrote about on Daf 17 of a testimony partially against interest that ends up working in your favor, where we accept the testimony provided no witnesses exist who essentially forced you to admit you signed it. If you were going to lie, the easier lie would be "That's not my signature,," it would sidestep all sorts of questions, so we presume you're telling the truth. Since as the Gemara discusses, maybe there's a difference about when we'll allow you to retract your signature because of coercion. Some seem to hold that if someone threatens your physical well-being, you're allowed to sign and then retract, but if someone just says "If you don't sign, I'll destroy your house" or otherwise threatens you financially, you're not allowed to sign falsely, so your retraction isn't valid.

An opinion is cited in the name of R' Meir that even if they threaten your physical well-being, you can't retract and must die rather than sign. It's hard to accept, since the famous standard Talmudic idea is that the only sins you die rather than commit when threatened with death are murder, idolatry, and sexual immorality, but R' Steinsaltz says that the Rishonim seem to think R' Meir's idea is that maybe there are other categories of sin that ordinary people wouldn't be obligated to die for, but tzadikim might be at a higher level, and possibly honest testimony and telling the truth is so central to the life of a tzadik that they are permitted to martyr themself over a threat of false testimony. The Gemara suggests an alternate understanding of R' Meir is that he doesn't allow retraction even in cases of physical threat stam. It's not that he encourages death, he just thinks as a matter of legal procedure that even though we understand that if a person is threatened with physical harm if they don't sign falsely, we still don't allow retraction because it would cause chaos in the legal system.

Worn out from the big trip to Boston yesterday, let's make this catchup post short...ish?

Daf 14

On Daf 13 I talked about Rabban Gamliel's statement that you believe the woman. The Gemara seems reluctant to take this as some universal rule, they try to find the one specific case that he is talking about. This is a rhetorical device the Gemara uses often, and I think sometimes the idea isn't to refute the idea that it's a universal doctrine (with exceptions) but just to teach a bunch of related halachos through a unifying structural mechanism. Ultimately they do wind up more or less as I stated on Daf 13- it's a universal principle in cases where it's just a she-said/he-said coin toss, but if there's any witnesses or other compelling reason to favor one side over another, that of course overrules, and so the Gemara goes through a variety of cases that overrule.

Daf 15

Through discussion of rape and other things I don't want to dwell on too much, the Gemara actually subtly gets to the core of why so many of these questions about validity of marriages matter. The status of children is one of the key functions of marriage in Jewish law, as a societal concern as opposed to an interpersonal contract between two people. Is a child a mamzer or not? Is a woman able to marry a Kohen and have children who are pure to enter the priesthood? These are really important questions in the society of the Talmud, and there was no genetic testing so paternity depended on faithful monogamy or at least polygyny, which explains why these upsetting topics keep getting addressed.

Daf 16

New perek! If a woman gets divorced and tries to claim her marriage payment, and the ketubah is nowhere to be found, and there is a dispute about whether she is entitled to the payment for a betulah or an almanah, what kind of witness can you find? The husband and wife are the only witnesses to actual biah, but the Mishnah says you can get witnesses who were at the nisuin who will testify about whether or not she was treated like a betulah at the wedding. Which according to the traditions of the time meant she would be wearing some sort of specific head covering that marked her as a betulah, but the Gemara is clear that this is contextual and whatever the custom of marking a betulah in your society is valid. So possibly if she wore white at a modern wedding? Needless to say, better to not lose your ketubah.

Daf 17

There's an idea that testimony against personal interest is accepted, because if someone's testimony is strictly against their benefit, why would they testify if they're not telling the truth? But what if they make a testimony that is partially against their interest but partially in their interest. In particular, what if they concede something that nobody would have known was true otherwise and which harms their case, but ultimately their testimony works out well for them? The general law is that you can accept it, provided there are no witnesses and no other reason to suspect them.

As an example, I testify that this land used to belong to a man, and then I bought it from him, and then the man died while his son was underage, and now the son is an adult. The logic is that I could have just testified that I always owned the land (since the minor son wouldn't remember what his father owned for sure), I didn't need to concede that the land used to belong to the other man, so even though ultimately my testimony is in my favor, it's still sort of adverse to my interest and accepted as truthful. But if witnesses came forward and said "This land used to belong to the man." and I say "Yes, this used to belong to the man, but I bought it from him before he died." then my testimony against interest is just acknowledging what others already know, so there's no reason to believe me.

Why is this in this perek, it has nothing to do with ketubot? In a few dapim the Mishna will cover some cases that relate to ketubot, and the Mishna is just lumping the whole concept together.

Daf 12

Actually at the very bottom of 11b, we get the case of Private Benjamin (!) : If a betulah is secluded with her chasan on their wedding night, but her chasan dies before they can consummate the marriage, and she subsequently remarries, is her ketubah written as if she is still a betulah, or is she now considered an almanah? Or if the ketubah is written as if she's a betulah, and the second chasan discovers evidence on the wedding night that she is not a betulah, can the marriage be annulled, or can it be rewritten as if she's an almanah?

I'm mostly just delighted that the Rabbis wrote about Private Benjamin. Who knew Nancy Meyers was a talmud chacham? But also this case gets at really basic ideas about contract law and how they interact with marriage contracts. In other words, I could also make some Elon Musk comparisons here! If the second chasan was misled about the status of his kallah, then by rights the contract should be annulled, just like how if Twitter actively lied about the number of bots on the platform in their SEC filings, in a way that was material to the operation of the business, then Musk can get out of the contract because the contract was signed under false pretenses. But if the second chasan was aware that the kallah had been secluded, and he just assumed that there hadn't been enough time for consummation to take place, then it's on him, he should have known that there was a possibility that has kallah had possibly been intimate with her first chasan. Just like Elon Musk waived his right to due diligence and therefore may be compelled to do specific performance of the purchase of Twitter.

Later there's a fascinating Mishna about the cost of different types of brides. Throughout the masechta so far we have seen two 'marriage prices', where 'marriage price' means the amount written into the Ketubah that a woman would receive if they subsequently divorced, intended to support her. A betulah would be entitled to 200 dinars, an almanah to 100 dinars. The implied idea is that this reflected the fact that a betulah was considered more valuable, whether that be because of the supposed pleasure of being intimate with a betulah (though paying double the marriage price for one night's pleasure hardly seems worth it) or because a betulah is generally younger and has more child-bearing years ahead of her, or because a betulah is considered more pure and the marriage is more holy, I don't know, all the potential reasons are pretty gross. Though I do want to emphasize that I've been saying 'marriage price' for lack of a clearer translation, but this is not a dowry or a payment to the father of the kallah, this is the amount of money the kallah is due in the event of a divorce, so ideally this is not an amount of money anyone is paying anyone. That said, it's still a variable amount of money the chasan is committing to being willing to spend as part of the ketubah, so it's still in some fashion setting a price on his kallah. But the point is, the Talmud to this point has only contemplated these two prices, but now we get more prices and a discussion about the prices relative to each other and what that means. Higher prices for daughters of Kohanim, or daughters of wealthy families, and a complicated push and pull between some idea of market pricing, or some idea of considering the dignity and emotional well-being of women involved in these negotiations- even though the market apparently considered an almanah who is the daughter of a wealthy family to be significantly less valuable than a betulah from the same family, the Gemara insists on maintaining the 2:1 ratio in order to protect the dignity of the almanah.

I think we can imagine several pricing models. The Talmud is not writing in a purely capitalist society so it's not necessarily imagining that the marriage price is, like, 'whatever the market will bear'. The clear communicated intention of the marriage price, as I said, is to provide for the woman in the event she loses her husband and needs to support herself. So one possible model is that the Rabbis did some investigation, determined a reasonable minimum amount of money that a woman would need to support herself for a reasonable amount of time, and said "This is the marriage price." Or another possible model is that they did the same research, made the same determination, and said "This is the minimum marriage price, you can negotiate higher but cannot go lower." Or you can imagine a full free market, where the prices the Talmud is talking about are just suggestions, and if you want to negotiate a lower marriage price the Rabbis advise against it but don't forbid it.

Some of these approaches are less horribly objectifying than others, and there's some ambiguity so to some degree you can choose the option you find least horrifying. And of course in modern western societies prenuptial agreements are still a common part of getting married in many cultural contexts, of course finances are part of the consideration of a marriage, and of course some people think of marriages in mercenary contexts where one potential spouse is more of a 'catch' than another for all sorts of reasons besides whether they will make a good partner in the marriage. So I dunno, at some points I try to get over my horror and just think about the strictly legal implications. But it's hard because every so often you remember that you're talking about people, not animals.

But I also want to say that I know I am wildly inconsistent about when I use Hebrew, Aramaic and English in these posts, but I've been trying whenever possible to use betulah and almanah rather than virgin and widow, precisely because of these issues. The words virgin and widow have a lot of implications in English, and probably there's a lot of overlap with what the Talmud is talking about, but it's not a complete overlap and I feel like because this subject is so fraught and it's so easy to start using dehumanising language, keeping a reminder that the Talmud is not talking about what we mean when we use the English, it's talking about halachic states, is useful.

Daf 13

I'm starting to like Rabban Gamliel, which is one of those indicators that either things have gone wildly off the rails, or we're talking about a different Rabban Gamliel. Wikipedia reminds us that there are 6 Rabban Gamliels, so sometimes it can be hard to be sure. But I'm pretty sure it's the one we usually are annoyed with, the grandfather of Yehudah HaNasi based on context, though it might also be his grandfather (the one who is a Catholic saint).

A few dapim earlier, in a discussion of mourning customs, the Gemara says that it was Rabban Gamliel who set the example of being buried in a modest, low cost burial shroud in a cheap wood coffin, which was a specific attempt to end the process of ever more extravagant burials which made it difficult for poorer families to bury their loved ones. As Rabban Gamliel was one of the richest people in the nation, his example ended the status games and returned the focus in burial to the task of honoring a loved one's legacy with dignity. So I was already liking Rabban Gamliel more than usual.

But here on Daf 13 in discussion of he-said/she-said disputes about the condition of a kallah, the Gemara concludes that Rabban Gamliel was an absolutist: Always believe the woman. This stands in stark opposition to Rabbi Yehoshua, whose position was never believe the woman, even when it was an admission against interest and ordinarily we'd be inclined to put extra weight on her testimony.

To be clear, these are not some sort of bedrock trial principle, that in the face of evidence to the contrary you shoudl believe certain kinds of witnesses. Both Rabban Gamliel and Rabbi Yehoshua prioritize above everything else legitimate testimony of two kosher eidim. If they have proof the woman was lying or telling the truth, that's one thing. It's just, by the nature of this being a private and intimate matter, you're often going to be in the position where you don't have two kosher eidim one way or another. And Rabban Gamliel's position is that it's the woman's body that the testimony is about, so the presumption is that she's the domain expert. And Rabbi Yehoshua's position is, I guess, that it's the man's experience of sex that the testimony is about, so the presumption is he's the domain expert??? Or, there's an interesting statement a bit earlier that I didn't discuss which is that maybe the presumption is that this is always a testimony against the man's interest, because he just brought all his family and friends together for a big wedding feast, A) presumably he really wanted to marry this woman and still does and B) It's going to be really embarrassing to him to immediately divorce her because he thinks she cheated on him, so if he testifies that she was not a virgin, it's got to be because he really truly believes that she cheated on him and is forbidden to him d'oraysa. I think this overlooks really toxic men, but there is certainly some logic to it.

Daf 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.

Daf 7 revisited

I skipped over this intentionally on Daf 7, but I decided I wanted to mention it because of lots of stuff I've been reading on the internet. The Gemara discusses an alternate reading of the verse that is used to say that you need a minyan for Sheva Brachos, which is that the verse is proof that nefashot in the womb also sang the Kriat Yam Suf.

I haven't said much about the Dobbs decision, which I think was a bad decision legally and morally, but I've read a lot of things both accurate and inaccurate about Jewish positions on abortion lately and I wanted to clarify some things. From an Orthodox position, we stand somewhere in the middle. Abortion is not the murder of a fetus, but it is a violation of Torah law. That said, since it's not murder, it is not only allowable but required in the case where the life of the mother is threatened. And unlike the mess of uncertainty that's been created by some red state laws, Jewish law is clear that in a safek pikuach nefesh situation, you act as if it were unambiguous pikuach nefesh, nobody wants you hesitating and trying to be machmir when a person's life might be at stake. But as this passage in Daf 7 makes clear, there is some conception that a fetus has a nefesh and that it is in some intermediate stage between having no significance and having all the significance in the world.

I dunno, I feel like it's important to maintain an awareness of the specific facts, and I've seen summaries of Jewish law that make it seem like traditional Judaism is more permissive of abortion than it actually is, and I've seen when some of the more conservative Jewish groups have defended Dobbs that they've been criticized as being un-Jewish. That said, the key point Modern Orthodox people are making now is that more permissive or less permissive, the Orthodox conception of when an abortion is required is clearly different than that of the conservative Christians writing the laws in red states today, and we would much prefer a regime like Roe because it meant that deciding to go forward with an abortion was the province of individual women in consultation with their personal religious and moral and medical authorities.

Of course, there are more liberal Jewish traditions that take from our mesorah instead the idea that since theologically we don't regard the fetus as being a full nefesh, logically the woman's autonomy is the most important fact. From a pluralist perspective, these are valid Jewish traditions, too, and fuck Josh Blackman for saying otherwise.

Daf 8

Continuing discussion of the Sheva Brachot. There's a machloket between Levi and Rav Asi, or machloket is the wrong word, I think, Levi is a Tanna and Rav Asi a late generation Amora, they can't have a machloket, just an apparent discrepancy in practice. Levi recited 5 brachot, Rav Asi recited 6. 6 is actually 7 for our purposes, as I mentioned in my last post the borei pri hagafen was a later addition of the Geonim, which is to say Rav Asi follows the accepted practice, but why did Levi recite 5?

The Gemara seems to think the discrepancy is that Levi considered the first two brachot (the ones we recite second and third) to be one bracha. These brachot both discuss the creation of mankind, in different language- one echoes Bereishit chapter 1, the other Bereishit chapter 2. Famously these two accounts differ in their description of the creation of mankind- one version has man created and then women created from man, the other version has man and woman created together, brooking of many explanations. In the Documentary Hypothesis, this is evidence that the story of creation was assembled from multiple accounts. In Jewish folklore, this is the origin of the idea of Lilith, the woman who predated Eve. But theologically here, the Rabbis seem interested in the question of how we understand the relationship of man and woman as demonstrated through the marriage. Anyway, Levi combines the two brachot, suggesting he considers the two narratives to reflect one act of creation. And Rav Asi doesn't combine, suggesting he thinks they represent two separate creations. But the Gemara rejects the idea of dual creation, and says that actually they all agree it was one creation, but it was a dual stage process and they just disagree about whether to emphasize the first step (when man and woman were one) or the second step (when man and women were separated). Which is to say, in accepting Rav Asi's position we are accepting the idea of man and women as separated entities that are being brought back together by marriage.

Either way, the emphasis of the sheva brachot in these brachot is on the idea of Man and Woman as these really fundamental theological categories, and Marriage as this unification of the two into a partnership. R' Linzer's class took this off into some fairly detailed homiletical ideas about partnership and how separation itself creates a kind of unity, which are pretty ideas but they also buy into this idea of strict gender roles, and I don't know exactly how to reconcile this with the many people I know who find gender roles constricting in a way that is really damaging to their spirits. R' Linzer claimed that Levi's approach feels more consonant with a modern sensibility about gender because it premises a much stronger sense of equality between the (emphatically two) genders, but I think this reflects a more second wave than third wave feminist idea about gender.

Daf 9

Fundamental to Jewish Talmudic law is the idea of two witnesses being required to create a factual reality in court. We do not make a ruling based on the testimony of one person. There are various exceptions, I am not an expert but I generally understand the exceptions to be places where for some reason the witnessing creates a personal imposition of a reality. So for example if I testify that I made a vow that obligates me in some way, the court accepts that testimony because my testimony creates the reality for myself, in a way that doesn't need anyone else witnessing it.

Rabbi Elazar says that if a chasan goes to Beis Din and says that he was with his kallah for the first time last night and she did not appear to be a betulah (but the physical evidence is gone or ambiguous or something), we accept this testimony even though obviously there is no possibility for there to be another witness. The logic seems to be parallel to the idea of the vow- since if a woman committed adultery she is no longer allowed to have sex with her chasan, in effect what the testimony is trying to do is establish a sort of vow that the chasan is forbidding his kallah to himself, so it takes effect.

There are lots of problems with this. One is there is a monetary aspect too- The ketubah settles different amounts of money on the woman in the event that she is not a betulah than if she is a betulah. But possibly we just say that the chasan can prohibit his wife to himself by his own testimony, but to annul the ketubah he still needs two witnesses. Another problem is similar to what I mentioned on the last post- if we can go by the testimony of just the husband, what's with the whole business of blood on the sheet? But we can resolve this similarly- to annul the ketubah, we need two witnesses, and the two witnesses are going to be going by the evidence of the sheet. But the evidence of the sheet can be faked, or it might be missing altogether in the cases where for legitimate reasons a betulah doesn't bleed. So a chasan can still bind himself to not being able to sleep with his kallah. But even the Gemara recognizes this is ridiculous. But what if he's not an expert at sex? it asks. Obviously in this case no consequences attach to his testimony, they conclude. Except emotional consequences.

But the Gemara clearly sees the scenario itself, of a woman claiming to be a betulah but not being one in actuality, as being of serious concern. That's why there's any consequence at all to the testimony of the chasan, that's why the Mishna we started with scheduled weddings for Wednesday. The Gemara lived in a world where if a chasan discovers his kallah was not a betulah, and he shrugged and said I don't care, I love her anyway, I'm not seeking the Beis Din, then there were real problems this could pose. Because what if she really were an adulterer? I think there's metaphysics behind this, similar to eating non-kosher meat. Remaining in an improper relationship has metaphysical consequences not just for the couple, but for their whole community because at a metaphysical level the whole structure of the community is built on the purity of the family structure. So in spite of the aforementioned emotional consequences, the Rabbis didn't want to make it too hard to speak up if there was a spiritual stain on a marriage.

I think it's also possible, if tricky, to make an argument that holding the chasan to his testimony is a way of protecting the kallah- she may think she wants to, but she really shouldn't want to continue being married to a man who would doubt her on her wedding night. I'm not really holding my hat on this argument, though.

Tuesday night my friend's klezmer band Baymele played a concert in Brooklyn in support of the release of a new album by Tsvey Brider, Cosmopolitn. Baymele played some wonderful instrumental klezmer, a mixture of traditional melodies from across Eastern Europe and some original compositions in a similar style. And they played backup to Tsvey Brider vocalist Anthony Russell for a set of striking pieces by Russell and Dimitri Gaskin, musical settings of early 20th century Yiddish poetry.

Many of the Yiddish poems, as is typical in my experience for a certain kind of Yiddish poetry, built arresting image after arresting image into a lush sensory memory, then landed with a vicious, darkly ironic punchline. Key themes included loneliness, lost love, unrequited love, poverty, and anti-Zionism. Russell introduced each performance by reading an English translation of the poem, but it wasn't clear how much the audience really needed it, it was full of Brooklyn Yiddish nerds. I mean, with my extremely limited Yiddish knowledge, I found it helpful. Knowing the context allowed me to follow along during the songs and make sense of what words I did understand.

The album's not out yet online, but I will post when it is available. Highly recommended.

Daf 7

So in some fashion, an important part of the mitzvah of getting married is the recitation of brachot. Famously the heart of the modern wedding ceremony is the Sheva Brachot, seven blessings, which the Gemara identifies as Birkas Chasanim, the blessings of the grooms, and only enumerates the latter six of. The first blessing, the blessing over the wine, was apparently added to the ritual later (but relatively speaking, not much later, the custom of seven blessings is old).

The blessings are recited in the presence of a minyan. R' Nachman traces this requirement to the story of Boaz and Ruth- when Boaz wanted to marry Ruth, he gathered ten elders and declared his intention. R' Abbahu says rather that we just learn it from the general principle of sanctifying God's name for mitzvot that affect all Israel with a minyan, and marriage even though it seems like the quintessentially private mitzvah, is considered the basic wellspring of Israel's existence. R' Abbahu wants this reading because he wants to impose a different halachic reading on the story of Boaz- that there was a halachic doubt about the validity of his marriage to the Moabite woman Ruth, so he convened a Beis Din to sanction his marriage. Why a Beis Din of 10, rather than just three? Because when there are matters of halachic doubt where people will gossip, a public Beis Din can create transparency to overcome doubters.

Finding halacha in the Ketuvim is always a little funny. In general, the Rabbis don't find rules of halacha in the Ketuvim, but they do find evidence of how halacha was interpreted. But sometimes it seems like it's a little more than that. There's this language of 'remez', where the Gemara sees the divinely inspired texts of the Ketuvim as having hidden clues that a discerning scholar can find to improve their knowledge of Torah and halacha.

R' Yehuda teaches in a baraita that it was the custom where he was (in Eretz Yisrael, but apparently not in Bavel) to recite the whole sheva brachos as part of erusin, along with the specific bracha of erusin. Abaye explains that the reason for this is that the custom there was to have some amount of seclusion with chasan and kallah as part of erusin, which I wish they explained more about. They had a private moment but without consummating the marriage? Or it was considered okay for them to consummate the marriage after erusin but before nisuin?

Earlier the Gemara established that before consummation the Sheva Brachos must be recited, but they seemed a little unclear how obligatory this really is. They tell a story of Rav Ashi permitting a chasan to consummate his marriage on Shabbos without a signed ketubah (my whole point the other day about how you'd think kinyan would be the problem with biah on Shabbos), and just saying that the kallah can simply start imposing the standard obligations of a chasan to his kallah and they'll catch up the paperwork later.

The Torah has ancient ideas about premarital sex that I think are constraining the Gemara. Premarital sex is not unambiguously an aveirah for the Torah, so though the Gemara clearly considers it immodest and improper, the Torah does not necessarily agree. Per the Torah, if a man has premarital sex with a woman, he just... has to marry her. Or if he refuses, he has to pay civil damages. So to go back to the story of R' Yehuda's custom, if a couple has done erusin and they sleep together, is there a problem? I mean, yes, there are problems with their paperwork, the Gemara really wants them to have a ketubah, but in some legal sense the consummation creates the marriage and the paperwork is just paperwork. So better to say the sheva brachos at erusin, that way if they do end up skipping ketubah you've at least done one part of the nisuin ritual right, and everything is okay d'oraysa if not d'rabbanan. I guess? Maybe that's why this is in Eretz Yisrael but not in Bavel, because in Eretz Yisrael customs were a little closer to the Torah idea of marriage?

Daf 4

Actually toward the end of Daf 3 the Gemara discusses the idea that the Mishna's rule of observing weddings for betulot on Wednesdays was eventually given up and weddings sometimes scheduled on Tuesdays because having a standard date for weddings made them susceptible to non-Jewish rulers coming to towns specifically on Wednesdays and insisting on their right to prima nocta. The Gemara says that actually women are allowed to submit rather than die, which is surprising since arayot are not covered under the rule that pikuach nefesh exempts one from mitzvot, but maybe this isn't exactly an araya, or maybe the idea is that the rapist has power over you so he may kill you anyway, or maybe there's something about the way in which women are obligated in mitzvot differently, I don't know. But in any case the Gemara recognizes that in this circumstance a woman might choose to die anyway rather than submit (It calls them "tz'nuot", women who are particularly modest, but I think we can stipulate that any woman in this horrible circumstance might make any possible choice and be considered reasonable) so it considers it a case of sakana* allowing the change in date (Bearing in mind that the original enactment was d'rabbanan and horrific to start with, as I covered in my last post). So by changing to variable wedding dates they made it much harder for the ruler to try to impose prima nocta.

An alternate explanation of the idea of unforeseen circumstances leading to rescheduling the wedding from Wednesday is that it has to do with the case where unfortunately the chasan or kallah's parent dies immediately before the wedding, and they have to negotiate shivah rules along with the wedding. This is the bulk of Daf 4's discussion. Do you still go ahead with the wedding? Do you try to do the legal part of the wedding but defer the celebration? Do you postpone the wedding?

Amazingly, the Gemara's answer is practical and economical. If the feast was prepared and it's too late to stop it without going to waste, you have the feast and enact the wedding. If the feast is not fully prepared, to the point where one could resell the food and not lose money, you postpone the wedding. If you do go ahead and enact the wedding, you keep the body of the deceased in the house until after the wedding because technically mourning doesn't start until that happens. The husband immediately after consummation leaves his wife for the week. Though the sheva brachos are observed, and shiva is deferred until after, private mourning customs are adopted immediately.

I say amazingly because it strikes you, as some of the people in R' Linzer's shiur point out, that the first question on one's mind if you've lost your father the day before your wedding may not be whether you should carry on with your wedding or not. You may in fact be overcome with grief and unable to think clearly. When my grandfather died on a Friday, I wrote about how utterly wrongfooting it felt to not observe the rituals of mourning until Sunday... I can't entirely imagine what it would be like experientially to defer your observance of shiva for a week, in order to celebrate your marriage.

Daf 5

Both Daf podcasts I listen to skip this daf. Sometimes that happens because the daf fell on Shabbat the year it was recorded, but I suspect the content may have something to do with it being skipped in this case. I'm tempted to skip discussion of this page, too. But I feel like for that reason, I should discuss it.

Caveat that I am not an expert at human anatomy. But the point is, neither were the Rabbis.

A baraisa says that one is forbidden to do nisuin on Shabbat (Friday night) or motzei Shabbat (Saturday night). Why? They go back and forth a few times on motzei Shabbat but ultimately conclude it's a concern that one might be mechalel Shabbat in preparing for the wedding. You want to impress your guests, you want to have a freshly schechted animal for the wedding feast, so you schecht an animal and you don't wait until sundown. Perhaps you don't, like, massively cheat, but maybe you do it in the time disputed between the Rabbis about when exactly Shabbos ends. So fine, that explains motzei Shabbos.

Why can't you do nisuin on Shabbat? I mean, I would expect you to say that it's because you usually can't make kinyan on Shabbat, right? Easy, straightforward, and consistent with the idea that marriage is a legal contract. I sort of kid, there's nothing straightforward about the rules of kinyan and maybe there's some important reason why you could complete this sort of contract on Shabbat that I'm not aware of because there's a whole lot of Torah I don't know. Oh! I googled and you can make kinyan on Shabbat if it's for a mitzvah, and the daf suggests that the Rabbis seemed to consider nisuin a mitzvah. I guess p'ru u'r'vu.

But anyway, for whatever reason, that's not where the Gemara goes. No. They seem to believe that for some reason, the act of having penetrative sex with a betulah is melacha, but they're not quite sure why because the anatomy is confusing to them. The question they ask is, well, is the blood of the hymen something that is contained in blood vessels in the hymen that are broken by the act of penetration, or is it like menstrual blood, coming from inside the uterus or vagina but not originating in a wound?

Um...

Um...

Yeah.

So the Gemara's not so clear on the anatomy.

And of course the blood is not actually a necessary result of first time penetrative sex, both because sometimes the hymen has already been damaged by other activities and may not bleed, and because sometimes first time penetrative sex does not damage the hymen because of the way it is positioned or structured, because humans are a glorious tapestry and our bodies do not always obey the same rules. But that's besides the point, because as I understand it, for many people, there is some amount of blood from the first penetrative sex. So setting aside the fact the virginity is a ridiculous made up concept and there is the risk of real damage to relationships from having incorrect information about these biological processes, there is some physical reality that halachic deciders knowledgeable about female anatomy could potentially make halacha for. But these Rabbis are definitely not the people we want making decisions about womens' bodies!

Daf 6

Hilariously, the Gemara reports this weird finger-pointing about who forbids sex with a betulah on Shabbat. Rav says "We have no problem, it's Shmuel who forbids it." Shmuel says "We have no problem, it's Rav who forbids it." Worth mentioning again, the Gemara is the transcription centuries later of oral teachings from a widely geographically dispersed area, it's keenly aware that there may be mistakes or omissions in the oral transmission and a big part of the project of the Savoraim was sorting out disagreements that are not per se arguments, just discrepancies between traditions.

La di da, skipping the next part entirely, la di da, pay no attention to the twelve year old girl discussion, la di da.

So then the Gemara tries to figure out how it can possibly be permitted, since according to the theory that it's blood vessels in the hymen being ruptured, that's a clear violation of the prohibition on making a cut in someone's body on Shabbos (the same prohibition as schechting an animal) and according to the theory that it's blood internal to the uterus or vagina, you're still creating an opening and that's probably a melacha too. (Boneh, says R' Linzer, okay, sure)

One remarkable theory in the name of Rabba is that on Shabbat, one is permitted to have sex with a betulah provided they have penetrative sex carefully in order to not damage the hymen, which the Gemara contends is possible if men are trained in how to do this. This is remarkable, because if this is the case then the whole theory of virginity that yichud rooms are based on makes no sense, as Rava bar Rav Ḥanan says. Why do we have all sorts of testimony about the presence or absence of blood on a sheet, if the answer for its absence could simply be "We had the kind of penetrative sex that doesn't damage the hymen."? Abaye's answer is fascinating. He makes a distinction between cases when the man is trying to avoid damaging the hymen, because he would be mechalel Shabbos, version a case where the man is trying to claim that an absence of blood proves that his new wife has committed adultery in order to annul the marriage. In the one case, there's no need for witnesses or testimony, the man doesn't care about his wife's virginity as an object to take, he's just happy to have a wife who is a wonderful woman who will be his partner. In the other case, the man is terrible and we need to protect the wife from abuse of process by having a legal system that must presumably be designed to make it difficult for a man to make claims about the virginity of his wife.

This is precisely what I meant in my opening discussion... very often you find that when you dig into these utterly horrifying Gemaras, that buried a couple layers down in confusingly convoluted ways is an extreme awareness of the ways in which toxic masculinity operates and how to operate within its contours to try to protect women from its abuses. These Gemaras are still utterly horrifying, don't get me wrong. And for all the awareness of men acting badly, there's rarely an overt effort to just reject toxic masculinity.

And all this to add to R' Linzer repeatedly makes the point in discussing these dafs that besides the nonsense anatomy, there's an extremely male oriented perspective here in terms of the halachic questions. Nobody is asking whether a betulah having sex on Shabbat is mechalel Shabbat, the question is about whether the things that her chasan does TO her are mechalel Shabbat, and she has this wholly passive role as the person that things are done to, not a person who is actually doing any act. R' Linzer keeps calling it treating her as an object, but that doesn't quite feel right. It's not that she's considered an object that various sex acts are performed on, it's that she is participating in the acts but her actions have no halachic consequence.

*Just repeating for newcomers: The amount that I use Hebrew and Aramaic in my Daf Yomi posts is variable depending on my mood, if there's any words you don't understand you can always feel free to ask. Also I do Ashkenazi or Sepharadi pronunciation at random, ignore me. Also, as

lannamichaels points out, the tractate is called Ketubot, but I promise I will keep mixing up singular and plural and Ashkenaz and Sepharadi spellings.

Let's try this again!

Daf 2

The overarching topic of this masechet is the legal contract between husband and wife in a Jewish marriage, which is called a ketubah. And in general, the idea that a Jewish marriage is built on this legal structure, this idea of legal obligations the husband has to the wife, and legal obligations the wife has to the husband. These obligations are extremely asymmetric- the husband's obligations are quite different than the wife's. I'm not super-happy with this conception of marriage, so I think you can expect these blog posts will push back against the Gemara more than, say, my posts on Chullin did. (My general preference, as I've explained a few times, is for a conception of marriage closer to Mark and Kareen's negotiation in A Civil Campaign- 'A Mutual Option!' Preserving the idea that contracting a marriage is a legal procedure about creating obligations between both parties, but doing so in a way where the obligations are symmetrical and mutually supportive.) That said, don't expect this to become a series of me just trashing the Rabbis. There's a lot that I think is beautiful in the Talmudic conception of marriage, and there's a lot that I think is easier to save than might seem at first glance.

The Mishna says that the Rabbis decreed that weddings for virgins should take place on Wednesdays, and weddings for widows should take place on Thursdays. Why? Because traditionally the Beit Din convened on Monday and Thursday and a Wednesday wedding meant that if the chasan discovered his kallah did not have the signs of virginity, he could immediately go to the Beis Din to have his marriage annulled. Yikes.

But before I go into the yikes, some background. For reasons that I've forgotten, Talmudic marriage has two steps, Erusin and Nisuin, which operate more or less like engagement and marriage in America except not. In Talmudic times, there was traditionally a significant time gap between the two: the marriage would be contracted in erusin, but the woman would continue to live in her father's house for some time, until nisuin, where she formally moves to her husband's house and becomes his wife completely. Part of the reason for this, R' Linzer emphasizes, is that some marriages in this time may have been contracted when the woman was still a minor girl, and the marriage could not take full effect until she reached her majority. Which, ick. Some of the effects of marriage take place from erusin, most importantly for our context being that from that moment, the woman is forbidden to other men and if she sleeps with another man, she has committed adultery. But until the moment of nisuin, the full contracted set of obligations between husband and wife do not have effect.

So why yikes?

Yikes because the concept of signs of virginity is physiologically problematic here, obviously, and nobody should be constructing law on the idea that you can prove a woman is a virgin in the halachic by examining her body. R' Linzer's approach to this is closer to mine: He just says look, the emphasis on virginity was characteristic of the societal norms of the time, and we don't need to defend them. R' Steinsaltz's approach, since he's more reluctant to criticize the Chachamim or situate them in a rejected social context, is to spend a lot of time arguing that the Rabbis themselves were uncomfortable with his halacha and that if you close read carefully enough you'll see them implicitly objecting to this framing of a woman's value. R' Steinsaltz is a genius, and there's a lot of value in his close readings even if I think they're sort of unnecessary if we just accept that the social context of ancient Yisrael was wrong about how it regarded women.

Anyway, a more specific yikes is this: Starting your marriage with a scheduling choice made on the presumption that there's a reasonable chance that it will turn out that your wife committed adultery is terrible!!! How can you marry this woman, sign a legally binding contract committing to support her and be her partner, if you think there's a significant enough chance that she cheated on you that you would plan your wedding around the possibility?

It's straightforwardly untenable. The very first thing the Gemara does, in the name of Shmuel, is try to just disavow the Mishna altogether. Yes, you do wedding on Wednesdays, but for completely different reasons. Weddings on Wednesdays are convenient, you have Sunday, Monday and Tuesday to organize the party and then you have Thursday and Friday to get ready for your first Shabbos as a couple, he says. Ignore the Mishna. The Gemara won't go this far, they reject Shmuel's position. The Mishna had to have a reason.

R' Linzer reads this Gemara differently, but I think I'm in sympathy to the Steinsaltz read. R' Linzer says Shmuel isn't trying to disavow the Mishna, he's just trying to say that the Mishna's reason is not enough of an explanation on its own for why Wednesdays, so he's trying to offer a second half to the explanation. He says Shmuel's explanation is that the Mishna's statement is fine as a statement of the traditional wedding date, but what's the nafka mina? The idea is that since we understand that weddings are on Wednesdays, if a chasan says to his betrothed "We will have nisuin in a year (or three months, or whatever)", and the date passes and he fails to carry out nisuin, the woman still starts to be entitled to the benefits of her ketubah, but only after Wednesday of the specified week.

But again, I think the original Mishna is straightforwardly untenable. It's not possible to start a successful marriage by telling your bride you're so worried that she committed adultery that you're going to organize your wedding around it. Marriages require trust and demonstrations of trust. R' Linzer wants to read the Mishna as not a halakhic enactment of the Rabbis (It's indisputably not a d'oraysa) but simply as a statement of the cultural norms of the time. In other words, it's not the Rabbis who were so concerned about potential adultery that they scheduled all weddings for right before the Beit Din met, it's just that a lot of men were concerned and so it became the custom, Which again, starts with R' Linzer's presumption that the ancient Orient was deeply misogynistic in a horrifying way, but tries to separate out the halachic Jewish principles from that misogyny. The Gemara does not agree with R' Linzer. But even in the Gemara's terms there's something deeply uncomfortable about this whole premise, and R' Steinsaltz's footnotes in the Koren are full of Rishonim explaining why it's actually not what's going on. A lot of their arguments work like the psychological approach to sotah, where the idea here is something like "By making it easy for the man to make an objection, we ease his mind that the legal system will serve him if needed, and make it more likely that he will go forward with the wedding and not actually avail himself of the legal system."

I don't think the psychological approach is inherently wrongheaded, though it clearly thinks very little of men, but I do think if we accept that that's what's going on, we have to operate with the awareness that the psychological approach will sometimes fail and we need a backup plan. What do you do if someone really does abuse the system to harass his wife-to-be?

Daf 3

Shmuel's counter-argument against the Mishna, that the point of the Wednesday date is to say that a woman can start enforcing her putative husband's ketubah obligations on the Wednesday even if the wedding isn't consummated, leads the Gemara into a discussion of when there are exceptions to that. Essentially the Gemara's principle is that if the wedding is put off for a reason that stems from the chasan, he is obligated, and if the reason stems from the kallah, he is not obligated. 'Stems from' is a little loose, it seems to include things like "If the kallah gets sick and the wedding has to be postponed," where it's obviously not her 'fault' but she is the locus of the delay. This is a little silly, but okay. You can imagine that a principle like this is useful to hold the line against monkey business. Nobody wants to distinguish between "kallah/chasan says (s)he's sick because (s)he wants to delay the wedding" and "kallah is actually sick", and both seem like plausible things to happen, so you just say you're not going to make a distinction.

This leads the Gemara into a sidetrack about similar exceptions in a conditional gett. A conditional gett is a procedure where, say, a husband had to go away on travel for months. It was much more dangerous to travel back then, and communication was much more limited, so if the husband died on the trip his wife might never find out. She would then be stuck in the position of being an agunah, an abandoned woman who is not permitted to remarry because her husband might still be alive and could return. So the husband might give her a conditional gett saying "If I don't return from my trip in a year's time, consider us divorced." That way, if he doesn't return within the specified time period, she is divorced and able to remarry.

But what if he intended to return within the year but was held up by a storm, or he unexpectedly becomes sick and is unable to return? The principle here is that there are no exceptions to the explicit language of a conditional gett even for sickness. This seems to be because we'd be in for all manner of headache if we allowed it- what if a woman acted in good faith on the language of the conditional gett, considered herself divorced and got remarried, and then her first husband shows up a month later and says "I was sick or I would have made it on time, a Beit Din should annul the conditional gett? Is the woman an adulterer, then, since she married a second man and upon the annulment of the gett she was still retroactively married to her first husband? It's a whole mess, clearly we don't want that.

A slight problem is that the Gemara's not clear that from a procedural standpoint we can bypass a general principle of Jewish contract law that we don't enforce contracts based on unanticipatable circumstances completely out of the person's control, so apparently there's a little *wink*wink* going on that I don't really feel like going into for the same reasons the Gemara doesn't want to go into it.

Seeking Ferret

Full Life. Full Agonies.

Maseches Ketubot Daf 29

Maseches Ketubot 26-28

Maseches Ketubot 23-25

Maseches Ketubot 21-22

Maseches Kesuvos Daf 19

Masechet Ketubot Daf 18

Masechet Ketubah Daf 14-17

Masechet Ketuvot 12-13

Maseches Kesuvos Daf 10-11

Masechet Ketubot Daf 7-9

Masechet Ketubot Daf 7

Masechet Ketubot Daf 4-6

Masechet Ketubah Daf 2-3

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