Kiddushin, Daf Ayin Tet, Part 5

 

Introduction

Today s section goes back to the dispute between Rav and Shmuel the girl is now a bogeret and betrothed herself. But earlier, before we knew for sure that she was a bogeret, her father betrothed her. Are we concerned that she was not a bogeret when her father betrothed her and thus his kiddushin should be valid?

 

נימא כהני תנאי קידשה אביה בדרך וקידשה עצמה בעיר והרי היא בוגרת תנא חדא הרי היא בוגרת לפנינו ותניא אידך חיישינן לקידושי שניהם מאי לאו חד כרב וחד כשמואל

 

Shall we say that this dispute is like that of those Tannaim: [For it was taught:] If her father betrothed her on the road, while she betrothed herself in the town, and she is a bogeret: one tanna taught: Behold, we have a bogeret in front of us; and another taught: We need to take into consideration the betrothal of both.

Is it not so that one agrees with Rav, and the other with Shmuel?

 

These two baraitot sound exactly like the dispute between Rav and Shmuel. The first baraita seems to accord with Rav. She is now a bogeret and therefore her father s kiddushin is not valid. The second baraita agrees with Shmuel although she is a bogeret now, we must be concerned that she was not when her father betrothed her.

 

לא אידי ואידי כשמואל כאן במכחשתו כאן בשאין מכחשתו

 

No. Both agree with Shmuel: here she denies him [her father]; there she does not contradict him, here she does.

 

The Talmud posits that both baraitot could agree with Shmuel. If she denies that her father s kiddushin are valid, then they are not valid (first baraita). But if she does not deny him, then maybe she was not a bogeret when her father betrothed her (second baraita) and we must be concerned that her father s kiddushin is valid.

 

ונימא מדמתניתא לא פליגי אמוראי נמי לא פליגי

ותסברא הא רב יוסף בריה דרב מנשיא מדוויל עבד עובדא כוותיה דרב ואיקפיד שמואל ואמר כ"ע כיילי ליה בקבא זוטא והאי מדרבנן כיילי ליה בקבא רבה ואי סלקא דעתך לא פליגי אמאי קא מקפיד

דילמא כי עבד עובדא במכחשתו

 

Then let us say, since the baraitot do not differ, the amoraim too do not differ either?

Now, is that reasonable; did not R. Yosef son of R. Menasia from D vil act in accordance with Rav, and Shmuel was offended and exclaimed: Was [wisdom] dished out in a small measure [to everyone], but for this scholar it was dished out in a large measure!

Now, should you think that they do not differ, why was he offended?

Perhaps he gave his ruling where she denied him [her father].

 

The Talmud resolved the difference between the two baraitot. So why not say that the amoraim also do not disagree?

The problem with this is that in a concrete story, a rabbi follows the ruling of Rav. He does not take into consideration the father s betrothal. But Shmuel gets angry and sarcastically calls him a wise guy. If Shmuel agreed with Rav, why would he get angry at this rabbi?

The answer is that the rabbi might have ruled this way even in a case where she denied her father and said that she was a bogeret when he betrothed her. In such a case, no one holds that she is betrothed.

אמר ליה מר זוטרא לרב אשי הכי אמר אמימר הילכתא כוותיה דשמואל ורב אשי אמר הילכתא כוותיה דרב והילכתא כוותיה דרב

 

Mar Zutra said to R. Ashi: Thus did Amemar say: The law accords with Shmuel; but R. Ashi said: The law accords with Rav. And [the final ruling is:] The law accords with Rav.

 

In a tightly fought match, Rav wins over Shmuel. Note that this has more implications than just this limited case. It implies that when we are not sure if a current status (her being a bogeret) existed before that status was determined, we can assume that it existed earlier.