Kiddushin, Daf Yod Bet, Part 5
Introduction
At the end of yesterday s section, R. Hisda tells his mother that she cannot just make an assumption that would lead to the invalidation of a woman s betrothal. In today s sugya R. Hisda cites another story with the same line as proof.
לאו היינו דיהודית דביתהו דרבי חייא דהוית לה צער לידה
אמרה ליה אמרה לי אם קיבל ביך אבוך קידושי כי זוטרת
אמר לה לאו כל כמינה דאימך דאסרת ליך עילואי
For is this not comparable to the case of Judith, R. Hiyya’s wife, who had severe pains during childbirth. She said to him: My mother told me: Your father accepted kiddushin on your behalf [from another man] when you were a child.
He replied to her: Your mother does not have the power to forbid you to me.
Poor Judith, wife of R. Hisda. Her birth pains are so bad that she claims that she was betrothed to someone else and therefore her marriage to R. Hiyya is invalid. Essentially, she is in such pain that she wants to end her marriage. Like R. Hisda, R. Hiyya says that people cannot just make up things to invalidate marriages. Such power could threaten to destabilize marriage altogether.
אמרי ליה רבנן לרב חסדא אמאי הא איכא סהדי באידית דידעי דבההוא יומא הוה ביה ש"פ
The rabbis said to R. Hisda: Why? But are there not witnesses in Idit who know that on that day it was worth a perutah!
The other rabbis respond to R. Hisda how can you invalidate the betrothal? There are witnesses elsewhere who will vouch for the fact that the stone was worth a perutah.
השתא מיהא לא ליתנהו קמן לאו היינו דר’ חנינא דא"ר חנינא עידיה בצד אסתן ותיאסר
[R. Hisda responded]: Nevertheless, at present they are not in front of us. Is this not like what R. Hanina said: Her witnesses are in the north and she is to be forbidden!
R. Hisda responds that the court does not take into account witnesses who are not present. This also came up in a case that came before R. Hanina. The case is found in Ketubot. Shmuel s daughters appear at court and say that they were taken captive but that they were not raped. [If they were raped, they would be prohibited from marrying a Kohen. Any woman who has had sex with someone prohibited to her cannot marry a Kohen, even if the sex was not willing]. Since they testify that they were taken captive, they are also believed to say that they were not raped (the principle of the mouth that prohibits is the same mouth that permits ). This is so even though there are witnesses sitting right outside that say that she was taken captive. The principle is clear the words of witnesses are taken into account only if they actually testify. We are not concerned that there might be witnesses elsewhere.
אביי ורבא לא סבירא להו להא דרב חסדא אם הקילו בשבויה דמנוולה נפשה גבי שבאי ניקיל באשת איש
Abaye and Rava do not agree with this ruling of R. Hisda. If they [the Rabbis] were lenient in with regard to a captive woman, who will make herself unappealing to her captors,shall we be [equally] lenient in the case of a married woman?
Abaye and Rava disagree with R. Hisda s analogy between the case of a captive woman and the married woman. The rabbis were lenient in the case of the captive woman because they assume she will try to prevent herself from being raped. She, they argue, is not at all an adulteress.
But there is no reason to be lenient about the married woman. Furthermore, the prohibition here is much more serious than a woman marrying a priest. Here, if the first marriage is valid, the second marriage is adulterous. Therefore, we should be concerned about witnesses who might know that the object is worth a perutah.
אישתאר מההיא משפחה בסורא ופרשו רבנן מינה ולאו משום דסבירא להו דשמואל אלא משום דסבירא להו כאביי ורבא
Some of that family remained in Sura, and the rabbis separated themselves from them, not because they agreed with Shmuel, but because they agreed with Abaye and Rava.
This woman evidently stayed married to the second husband, assuming her first betrothal was invalid. But the rabbis would not marry into this family, considering the offspring to be doubtful mamzerim (children of illegitimate descent). The rabbis were not concerned that the stone used for betrothal was worth a perutah somewhere else. The object used in betrothal must be worth a perutah at the place where betrothal is performed. However, they are concerned that there are witnesses who can say that it was worth a perutah at that place and at that time.
In the end, we witness her a telling phenomenon. On the one hand, this woman was allowed to stay married to her second husband. Based on R. Hisda s ruling, the first marriage was assumed to be invalid. However, in real life people acted more strictly and refused to accept this ruling. These rabbis clearly wanted to distance themselves from any possibility of marrying into a family whose lineage is even potentially illegitimate.