More Discussions for this daf
1. Switching from Chamar to Gamal 2. Not writing Kesuvos 3. Hiskabalti
4. Rav Yosef Engel -- Beis ha'Otzar

David Hojda asked:

The man wants to switch and his wife would rather be mivater on the extra parnassah and have him at home. They disagree. The gemara tells us that her request is consistent with what most women would want.

L'mai nafka minah?

Is it because she wants her kessubah and is claiming that he is not fulfilling his obligations to her by having become a gamal? Are we strictly dealing with an issue of ne'manus?

What if it turned out that most women would be willing to give up the marital relations in return for the bigger parnossah, but THIS woman insists that she does not wish to and is not interested in continuing to live in such a fashion?

I assume that the issue is one of ne'emanus, but would like to know what you think.

David Hojda, Kiryat Sefer, Israel

The Kollel replies:

The woman was given the right to prevent her husband from leaving her. However, the frequency with which he must be home depends on her willingness at the time of the marriage. Whatever she had accepted is binding on both of them.

However her Ta'anah must be legitimate. If the way of most women was that they would gladly accept less husband and more money, it would have been part of her acceptance of her husband as a Chamar that he may become a Gamal, and although we would believe her that she is different, her Ta'anah would not be accepted. However since the way of most women is to prefer the husband home, her Ta'anah is acceptable and she can force him to stay on the donkey.

Dov Zupnik

David Hojda counters:

I do not understand what you wrote, as it seems to me illogical. I thought that a chazaka is used in a case of safek to establish by default what we assume that someone had in mind at the time of the transaction. I thought it would only be used where we DON'T believe her when she said that I was thinking "Y". However, if there is NO SAFEK, and the person could PROVE that he was thinking "Y", then he is believed, despite the chazaka that most people would have been thinking "X".

Although there is a chazaka, tov l'meitav tan do, can't a woman theoretically get her kessubah anyway by proving that SHE would never have accepted a man with this blemish? Even though we say "Ain Adam oseh be'elaso be'elas znos" or "ain adam mayeez panov lifnei ba'al chovo", should we be able to prove that this person is different, then would the chazaka still apply to him, despite our believing that he Would almost certainly be MeyEEz or WAS only intending be'eelas z'nus?

Similarly, unless you say that we take into account both the husband's da'as and the wife's, why should the chazaka matter if we believed her ta'anah and why should it not be accepted?

David Hojda

The Kollel replies:

If her Ta'anah is that she thought something other than what is normally assumed, and she did not specify her Ta'anah at the time of marriage, it is Devarim sheb'Lev, and believing her will not help.

Dov Zupnik

David Hojda" asks again:

Thanks for the reply. So, as I originally asked, wouldn't this then mean that the issue is her ne'emanus: If she could prove that this is what she had in mind, then she is believed, despite the chazaka to the contrarary? The problem here with devarim she balev is that we have no proof that this is what was in her lev, isn't it?

In other words, if she stated it openly to ten witnesses at the time of kiddushin/nissuin that she is only interested in a chamar and would never live with a gamal, then a chazaka that most women prefer the big parnossah of the gamal would be irrelevant. No?

Therefore, the chazaka only applies where we have to assume what she wanted and we assume that she is part of the majority, unless she can prove otherwise.

The Kollel replies:

Devarim sheb'Lev is not a question of Ne'emanus. Even if we are convinced that we know what the person thought, a deal is finalized by whay they said and not what they thought. Therefore, if Chamar included Gamal it would be of no use to know what she thought. Of course, if she had stated clearly at the outset her preference the deal would have been set according to what she had SAID.

Dov Zupnik