Kiddushin, Daf Ayin Tet, Part 4

 

Introduction

The Talmud continues to discuss whether we assume that a current condition existed before it was discovered. Shmuel said we do not make such an assumption and Rav said we do.

The topic of the baraita is a person who is about to die. There is a special halakhah with regard to this person if she gives away all her money and then does not die (imminently) she can get her money back. This would not be true of a healthy person.

The case here is someone who gave away all her money. She then wanted the money back and claimed that she was dying at the time she gave it away. The people who received the money claim she was healthy and that the gift is irreversible. Whom do we believe?

 

נימא כתנאי מי מוציא מיד מי הוא מוציא מידם בלא ראיה והן אין מוציאים מידו בלא ראיה דברי ר’ יעקב רבי נתן אומר אם בריא הוא עליו להביא ראיה שהיה שכיב מרע ואם שכיב מרע הוא עליהם להביא ראיה שבריא היה

נימא רב דאמר כרבי נתן ושמואל דאמר כר’ יעקב

 

Shall we say: It is a dispute of Tannaim?

[For it was taught:] Who collects from whom? He can collect from them without proof, but they cannot collect from him without proof, the words of R. Ya akov. R. Natan said: If he is healthy, he must produce proof that he was sick; and if he is sick, they must produce proof that he was well.

Shall we say that Rav rules in accordance with R. Natan; while Shmuel agrees with R. Ya akov?

 

Rav assumes that the state that the person currently is in is assumed to be the state he was in when he gave away his money. So if he is currently healthy, then he must prove he was sick when he gave his money away. It will be hard for him to retrieve his money. This seems to be similar to Rav.

R. Ya akov holds that the sick person can get his money back. This would seem to be like Shmuel we are not sure whether he was sick when he gave his money away, therefore they have to prove that he was healthy.

 

אמר לך רב אנא דאמרי אפילו כרבי יעקב עד כאן לא קאמר ר’ יעקב התם דאיכא למימר העמד ממון על חזקתו אבל הכא מי נימא העמד גוף על חזקתו

 

Rav could say to you: I made my statement even in accordance with R. Ya akov. R. Ya akov rules there, since one can say: Let the money stand in its presumptive owner ship ; but here, can we say: Let the body stand in its presumptive state ?

 

Rav would argue that there is a difference between the cases. R. Ya akov says the burden of proof lies with the recipients because the presumptive status of the money is with the giver. Therefore, his presumption is grounds for them having to prove that he was healthy.

But here, in the case of the woman, we cannot say that there is a presumptive state because bodies change.

 

ושמואל אמר אנא דאמרי אפילו לרבי נתן עד כאן לא קאמר רבי נתן התם דכולי עלמא בחזקת בריאים קיימי מאן דקא מפיק נפשיה מחזקה הוי עליה לאיתויי ראיה אבל הכא מי קא מפקא נפשה מחזקה דקמיה

 

And Shmuel could say: I made my statement even in accordance with R. Natan: R. Natan said this only in that case, since people in general are presumed to be healthy; he who takes himself out of the general presumption must bring proof. But here, does she then take herself out of the general presumption?

 

Shmuel, who holds that a current status is not a sign that such a status existed earlier could say that even R. Natan agrees with him in the case of the bogeret. R. Natan says that people are presumed to be healthy. Therefore, if he claims he was dying, he must bring proof. But the girl who is now a bogeret has not taken herself out of her presumption. There is no presumptive status, therefore, we must be concerned that she was not yet a bogeret when her father betrothed her.