In Mishna Vav of the first perek, I did not fully understand the logic or the loshon of Rabbi Yehoshua. Is he actually saying that Jewish women in this situation are presumed to have had relations before they were engaged, until they can bring a proof that they were forced after they were engaged? I thought that in general Jewish women were presumed to be besulos. Also, how would bringing proof that she was forced after she was engaged actually help her here, since could it not be the case that that is absolutely true, but nevertheless she also had relations (willingly) before she was engaged?
Thank you in advance for any clarification you can provide here and have a good Shabbos! Kol tov, Yitzchak Metchik, emetchik@salemstate.edu
P.S. CAn you please e-mail me your response? Thank you, YM
Yitzchak Metchik, Lakewood, New Jersey
Shalom Reb Yitzchak,
Thank you for your question! I think you are making a very broad conclusion based on this Mishnah that Bnos Yisrael are presumed to be Besulos. Unfortunately, there are exceptions and this Mishnah and the great Sugya that follows are referring to a case like this, since the most complex and most interesting cases usually occur in the margins, rather than in the mainstream.
So, what happens if, unfortunately, after the marriage of this couple, it turns out she is not a Besulah? What do we do now?
Since in the case of the Mishnah, the husband demands a divorce, the discussion is a monetary one, and the instruments used to "challenge" a case like this are the same as those used in many cases of financial disputes.
Rebbi Eliezer and Raban Gamliel use the well-known "Bari v'Shema Bari Adif" instrument. The man cannot know for sure exactly when this woman lost her Besulim, and his claim is only that perhaps this happened before the Kidushin. On the other hand, the woman is sure (Bari), so her claim in court is considered stronger.
On the other hand, Rebbi Yehoshua uses a different well-known principle of "ha'Motzi me'Chaveiro Alav ha'Ra'ayah." According to this principle, the side of the dispute that is demanding money from the other party is the one obligated to bring the proof. In our case, the woman needs to prove her claim, since she is asking for her Kesuvah money from her divorcee.
Rebbi Yehoshua adds another important principle that is not from the monetary ballpark in particular, namely, "Chazakah d'Me'ikara." According to this principle, if we find a change of status, such as one that changes the rule or the Halachah of the object being discussed, we assume that the change happened in the past as earliest as possible.
In this case, if we utilize the Chazakah, it lets us assume that the change of this woman's status from a Besulah to a Be'ulah happened as early as possible. (I am not going into the reason why Rebbi Yehoshua "needs" two instruments, "ha'Motzi me'Chaveiro" and "Chazakah d'Me'ikara," for his opinion.)
Again, all of this is relevant only in a case in which the unfortunate circumstance exists, which is obviously not the regular reality of Bnos Yisrael. Rebbi Yehoshua is saying that if we have such a case in front of us, and all we need is to determine when this terrible incident occurred, we use the tools of Beis instruments to do so.
Kol Tuv,
Aharon Steiner