Kiddushin, Daf Samekh Gimmel, Part 6

 

Introduction

Today s section continues to deal with the woman whose father said he betrothed her but does not remember to whom.

 

איבעיא להו מהו לסקול על ידו

רב אמר אין סוקלין ורב אסי אמר סוקלין

רב אמר אין סוקלין כי הימניה רחמנא לאב לאיסורא לקטלא לא הימניה רב אסי אמר סוקלין לכולה מילתיה הימניה רחמנא לאב

 

The question was asked: Is someone stoned based on his statement?

Rav said: We do not stone;

R. Assi said: We do stone.

Rav said: We do not stone: the Torah believed the father in respect of a prohibition but to execute, the Torah did not believe him.

R. Assi said, We do stone: The Torah believed the father for every matter.

 

The mishnah ruled taht she is prohibited to all men. But do we really treat her as if she is married? If she has intercourse with a man, are she and he stoned as adulterers? Rav says no the father is believed to prohibit her to any person, but he is not believed to the extent that a court could execute based on his word only.

R. Assi says that the Torah completely believes the father.

 

אמר רב אסי ומודינא באומרת נתקדשתי שאין סוקלים

 

R. Assi said: Yet I admit that if she herself says: I was betrothed, we do not stone.

 

R. Assi agrees that if it was the woman herself who said I was betrothed, we do not stone her if she sleeps with someone else. The Talmud will below explain why R. Assi agrees with Rav in this case.

 

ואמר רב אסי הני שמעתתא דידי מרפסן איגרי השתא ומה במקום שאם בא לכנוס כונס אמרת סוקלים מקום שאם בא לכנוס אין כונס אינו דין שסוקלין

 

R. Assi said further: These rulings of mine break roofs! Now if you say that we stone in a case where one who comes to marry her, may marry her, how much the more should we stone in a case where one who comes to marry her may not marry her!

 

R. Assi notes that his own rulings are inconsistent. Earlier he had said that if the father says I betrothed her she is allowed to marry one who comes to marry her. This implies that we don t take the father s words so seriously that we would not allow her to marry this person. Nevertheless, if she has intercourse with someone, she (and he are stoned). All the more so, we should stone in a case where we do not allow her to marry someone else because we take her original words, I was betrothed but I do not know to whom even more seriously and don t allow her to marry anyone.

 

ולא היא לאב הימניה רחמנא לדידה לא הימנה

 

Yet it is not so. The Torah believed the father, but did not believe her.

 

The Talmud rejects R. Assi s own difficulty on himself. The woman is simply not believed enough to cause her or the one she sleeps with to be stoned based on her words. There is different reasoning for this issue than there is for the issue of allowing her to marry someone who says she was betrothed to him. It is not that we believe her more than we believe the father. The issue is that we fear she is colluding, as we learned in yesterday s section.

 

ורב חסדא אמר אחד זה ואחד זה אין סוקלין

ואזדא רב חסדא לטעמיה דאמר רב חסדא בני זה בן תשע שנים ויום אחד בתי זו בת ג’ שנים ויום אחד נאמן לקרבן אבל לא למכות ולא לעונשין

 

But R. Hisda said: In both cases we do not stone.

Now, R. Hisda follows his own reasoning [elsewhere], for R. Hisda said: [If a man declares,] This son of mine is nine years and a day [or] this daughter of mine is three years and a day, he is believed in respect of a sacrifice, but not in respect of lashes or [other] punishment.

 

R. Hisda says that no matter who says the girl was betrothed, she or her father, we do not stone anyone if someone sleeps with her. R. Hisda, the Talmud notes, follows his own opinion that fathers can be believed in some matters, but not in others. In order to be liable for a forbidden sexual act a boy must be nine years and a day and the girl three years. [I should emphasize, the boy or girl in this case is not the one liable the one who sleeps with them is. Thus if an adult married woman has sex with a nine year old boy, she is an adulteress. If an adult male has sex with a three year old betrothed girl, he is an adulterer. The adult is punished, not the child.] The father is believed if the issue is unwitting adultery. This would cause the adult to be liable for a sacrifice. The father is not believed to have the adult punished physically. Here we can see that in certain cases there is some inconsistency. A person can be believed to have certain consequences, but not others.

 

תניא כוותיה דרב חסדא בני זה בן י"ג שנה ויום אחד בתי זו בת י"ב שנה ויום אחד נאמן לנדרים ולחרמים ולהקדשות ולערכים אבל לא למכות ולעונשין

 

It was taught in accordance with R. Hisda: [If a man declares,] This son of mine is thirteen years and a day, [or] this daughter of mine is twelve years and a day, he is believed in respect of vows, dedications, sanctifications, and evaluations; but not in respect of lashes and [other] punishments.

 

The baraita accords with R. Hisda, in that a father is believed in some matters but not in others. If the father says that the child is old enough to take a vow, or to dedicate or sanctify something to the Temple, or to say that the value of something will go to the Temple, the father is believed. The age required for a person to be able to legally dedicate something is thirteen for a boy, twelve for a girl. But a father is not believed to say that a child is this age, if the consequence will be the punishment of the child.

In all of these cases we can see the rabbis famous leniency when it comes to punishments. A witness (the father) might be believed, but the credence the court lends him only extends to non-punishment types of consequences, mostly economic consequences. There needs to be greater evidence before someone can be punished.