12th CYCLE DEDICATION
KESUVOS 76 (6 Kislev) - Dedicated in honor of the Yahrzeit of Eliezer (Lazar) ben Reb Shraga Feivel Marmorstein, by his nephew, Mr. David Kornfeld, who Mr. Marmorstein raised like his own child after the Holocaust.

1) CONFLICTING CHAZAKOS
QUESTION: Rava resolves a contradiction between the first and second parts of the Mishnah. In the Reisha, the Mishnah states that if a woman is found to have a Mum (blemish) after the Erusin but before the Nisu'in, the burden of proof is upon the woman (or her father) if she wants to receive the money of the Kesuvah. She does not receive her Kesuvah unless she can prove that the Mum developed after the Erusin (and thus it was the husband's bad fortune that she had a Mum). However, in the Seifa, the Mishnah states that if a woman is found to have a Mum after the Nisu'in, the burden of proof is upon the husband and he must give her the Kesuvah unless he can prove that she had the Mum before the Erusin.
Rava answers that the Mishnah maintains that a Chezkas ha'Guf (a Chazakah that she had no Mum until the last possible moment) together with a Ta'anas Bari (her claim of certainty) are strong enough to win the case for the woman. That is why -- when the Mum is found after the Nisu'in -- the burden of proof is on the husband.
In contrast, when the Mum is found after the Erusin and before the Nisu'in, her Chezkas ha'Guf is not as strong. It has a weakness in that the Mum was found while she was still in the domain of her father, and thus there is reason to say that she always had a Mum while in the domain of her father (even before the Erusin; this is called "Kan Nimtza, Kan Hayah"). The Chezkas ha'Guf, therefore, does not have the power to decide the case in her favor, and that is why the woman must bring proof that the Mum developed only after the Erusin.
Abaye questions Rava's explanation of the Mishnah. He asks that if Rava's assertion is correct -- and the element of "Kan Nimtza, Kan Hayah" weakens her Chezkas ha'Guf and states that she had the Mum even before the Erusin -- then in the case of the Seifa, when the Mum was found after the Nisu'in, it should suffice for the husband to bring proof that the woman had the Mum during the Erusin (before the Nisu'in)! As long as he can prove that she had the Mum during the Erusin, Beis Din may assume that she had the Mum before the Erusin as well (because of "Kan Nimtza, Kan Hayah"). Why, then, does the Mishnah say that he must prove that she had the Mum before the Erusin in order for him to win the case?
Rava answers that besides the Chezkas ha'Guf there are two other Chazakos that must be taken into consideration. The first is a Chazakah that states that the husband should have to pay the Kesuvah even if she had a Mum at the time of the Erusin, because a man usually examines a woman before he marries her, and he probably saw that she had a Mum and accepted it. (For the purposes of brevity, this Chazakah will be referred to herein as the "Chazakah that he checked and accepted the Mum"). The second is a Chazakah that states the opposite: had he seen the Mum he probably would not have agreed to marry her, and since he did marry her he must not have been aware of the Mum (this Chazakah will be referred to herein as the "Chazakah that he was unaware of the Mum"). This second Chazakah states that he should not have to pay the Kesuvah since he was unaware of the Mum at the time of the marriage.
Taking these two Chazakos into consideration, the Gemara says that if the husband brings proof that she had the Mum before the Erusin, the two Chazakos cancel each other out. (Once states that he examined her and knew about the Mum and accepted it, and the other states that he was unaware of the Mum and that is why he married her.) When the Chazakos cancel each other out, the husband is left with a Chezkas Mamon (he is holding the money which is subject to doubt), and he wins the case.
If, on the other hand, the husband can prove only that the Mum was there after the Erusin (before the Nisu'in), the "Chazakah that he checked and accepted the Mum" combines with her Chezkas ha'Guf, and thus the husband loses the case and he must pay her the Kesuvah. These two Chazakos outweigh the single "Chazakah that he was unaware of the Mum."
RASHI (DH Chada) asks why the situation is viewed as two Chazakos against one? If the Mum was there after the Erusin, the situation should be viewed as two Chazakos against two, because the Chezkas Mamon of the husband should join with the "Chazakah that he was unaware of the Mum." Those two Chazakos would then counteract the two Chazakos which support the woman's claim!
Rashi answers that the Chezkas Mamon does not exist in this situation, according to Raban Gamliel whose view the Mishnah follows. The Chezkas Mamon here is opposed by a Chezkas ha'Guf, and Raban Gamliel maintains that a Chezkas ha'Guf neutralizes the Chezkas Mamon and renders it ineffective.
What does Rashi mean? Why does Rashi say that the Chezkas Mamon is neutralized by the Chezkas ha'Guf in a case in which the Mum is found after the Erusin (before the Nisu'in)? We learned earlier (Rashi 75b, DH Rava Amar) that the Chezkas ha'Guf can neutralize the Chezkas Mamon only if the Mum is found after the Nisu'in. If it is found before the Nisu'in, the Chezkas ha'Guf loses its power because the logic of "Kan Nimtza, Kan Hayah" opposes it. Thus, the Chezkas Mamon should overpower the Chezkas ha'Guf! Since the Gemara is discussing a Mum found after the Erusin and before the Nisu'in, the Chezkas Mamon should certainly not be overpowered by the Chezkas ha'Guf and should still be effective.
ANSWERS:
(a) TOSFOS (DH v'Chada) asks this question on the Gemara itself and gives two answers. In his first answer, Tosfos explains that even when the Chezkas ha'Guf is weak it still has strength to counter the husband's claim, and in order for the husband to win the case it must be opposed by a Chezkas Mamon. Similarly, the "Chazakah that he was unaware of the Mum" is also not strong enough by itself to overpower the opposing Chazakah (the "Chazakah that he checked and accepted the Mum") unless it is supported by a Chezkas Mamon as well.
However, the Chezkas Mamon cannot be utilized twice. Accordingly, since it is used once to overpower the Chezkas ha'Guf, the "Chazakah that he checked and accepted the Mum" will overpower the "Chazakah that he was unaware of the Mum," because the latter does not have the support of the Chezkas Mamon (for it was already used). As a result, he will lose the case.
Conversely, if the Chezkas Mamon is used to support the "Chazakah that he was unaware of the Mum," it can no longer be used to oppose her Chezkas ha'Guf. As a result, the Chezkas ha'Guf will win the case for her.
(In summary, both Chazakos of the man's claim need the Chezkas Mamon to win the claim for him, but since only one Chazakah can use the Chezkas Mamon, he loses the claim. The Chezkas Mamon needs its own strength to overpower the countering Chezkas ha'Guf. At the same time, the "Chazakah that he was unaware of the Mum" needs the support of the Chezkas Mamon to overpower the countering "Chazakah that he checked and accepted the Mum.")
However, this does not seem to be the intention of Rashi. Rashi writes that there is a full-fledged Chezkas ha'Guf here which overpowers the Chezkas Mamon. He makes no mention of the fact that the Chezkas Mamon was "used up" already to counter a different Chazakah.
(b) The Rishonim favor the second answer of Tosfos. Tosfos explains that the Chezkas Mamon together with the "Chazakah that he was unaware of the Mum" cannot be viewed as two separate supports for the husband's claim. In contrast, the Chezkas ha'Guf together with the "Chazakah that he checked and accepted the Mum" are viewed as two separate supports for the wife's claim. The reason for this is as follows.
The two Chazakos which support the woman's claim provide independent support for her claim. That is, if either one of the Chazakos is true, she will win the case: If the Chezkas ha'Guf is true -- and she really developed the Mum only after the Nisu'in -- she wins the case. If the "Chazakah that he checked and accepted the Mum" is true -- that is, even though she had a Mum before the Erusin, he saw it and accepted it -- she wins the case.
In contrast, both of the Chazakos which support the husband must be true in order for him to win the case. The "Chazakah that he was unaware of the Mum" cannot work by itself without the Chezkas Mamon. This is because the Chezkas Mamon does nothing for him without a "Chazakah that he was unaware of the Mum." That second Chazakah must be true in order for the Chezkas Mamon to work, because if it is not true (and he saw the Mum before the Erusin and accepted it), then the Chezkas Mamon is worthless! (In short, his two Chazakos provide only a single support for a single claim for him to win the case: that the Mum was there before the Nisu'in and that he did not notice it.) Consequently, his two Chazakos have only the strength of one Chazakah and thus they are overpowered by the woman's two independent Chazakos.
However, this approach also does not seem consistent with the words of Rashi. Rashi writes that the Chezkas Mamon does not work because it is countered by a Chezkas ha'Guf. If his intention is as Tosfos explains, he should write instead that there is a Chezkas Mamon but it is viewed as one and the same as the "Chazakah that he was unaware of the Mum" and is overpowered by the wife's two Chazakos.
(c) Rashi might have rejected the second explanation of Tosfos (which the Rishonim favor) because the Gemara itself mentions the Chezkas Mamon as being independent of the "Chazakah that he was unaware of the Mum." The Gemara says that if the husband can prove that the woman had the Mum before the Erusin (and thus the only question is whether he saw it and accepted it or whether he was unaware of it), the single "Chazakah that he checked and accepted the Mum" cannot oppose the two countering Chazakos -- the Chezkas Mamon and the "Chazakah that he was unaware of the Mum" -- and those two Chazakos prevail.
According to Tosfos' second approach, the Gemara here should not mention the Chezkas Mamon as a separate Chazakah. (Tosfos' first answer might be an attempt to avoid this question.)
Rather, Rashi himself (at the end of 75b) seems to answer the question. He explains that the "Chazakah that he checked and accepted the Mum" is not just a separate Chazakah, but it removes the weakness that the Chezkas ha'Guf normally has when the Mum is discovered during the Erusin. Since there is a reason why the husband should be obligated to pay the Kesuvah even if the Mum existed when the woman was in the domain of her father, the Chezkas ha'Guf remains with its original strength and it neutralizes the Chezkas Mamon. What remains is the Chezkas ha'Guf together with the "Chazakah that he checked and accepted the Mum" against the "Chazakah that he was unaware of the Mum" without the Chezkas Mamon. Hence, she wins the case.
Rashi's logic may be understood as follows. The Chazakos in the case may be classified into three categories: a Chazakah which provides a strong logical argument, a Chazakah which provides a weak logical argument, and a Chazakah which provides no logical argument.
The Chezkas ha'Guf provides a strong logical argument that the woman should receive the Kesuvah. The Chezkas ha'Guf argues that physical bodies normally do not change. Hence, if a Mum did appear on her, it is most logical to assume that it developed at the latest possible moment. Since this is based on the reality of physical nature, it is the strongest of the Chazakos.
The "Chazakah that he was unaware of the Mum" and the countering "Chazakah that he checked and accepted the Mum" are based on arguments concerning the psychology of men. These two Chazakos provide logical arguments that are not based on a reality in the physical world, but on the cognitive nature of people. That is why these Chazakos are not as strong as a Chezkas ha'Guf.
The Chezkas Mamon is the weakest of Chazakos, because it provides no logical reason why the husband should be exempt from paying the Kesuvah. It merely says that in a situation of doubt, the money should be left where it is.
Rashi maintains that when there is a Chezkas ha'Guf, although there is no actual evidence as to when the Mum developed, the Chezkas ha'Guf is a strong enough proof that the Mum came after the Nisu'in such that the situation is no longer considered one of doubt. Hence, the Chezkas Mamon does not come into play since it is used only when the situation is entirely in doubt.
When the Chezkas ha'Guf has a weakness (such as when the Mum was found during the Erusin, before the Nisu'in), the imperfection of the Chezkas ha'Guf -- that is, the element of "Kan Nimtza, Kan Hayah" -- is enough to make the situation one of doubt, and therefore the Chezkas Mamon comes into play to determine the Halachah.
However, when there exists the added factor that the husband probably examined her before Nisu'in (the "Chazakah that he checked and accepted the Mum"), the Chezkas ha'Guf's logical argument is strengthened again. There are enough logical reasons to say that it is not a doubt anymore and the Chezkas Mamon no longer is considered a factor. The "Chazakah that he was unaware of the Mum" would be considered a factor to counter the Chezkas ha'Guf, since it involves a logical argument, but it is not a strong enough argument to overpower both the logical arguments of Chezkas ha'Guf and the "Chazakah that he checked and accepted the Mum."
This is why Rashi writes that when there is a Chezkas ha'Guf (without a weakness, or with a weakness but supported by the other Chazakah), the Chezkas Mamon is a non-entity (or, as Rashi writes it, "Lav Klum Hi"). (M. KORNFELD)

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