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)

(a)Rav Ashi, like Rava, establishes the entire Mishnah like Raban Gamliel. What does he mean when he establishes the Reisha by 'Manah l'Aba b'Yadcha' (and the Seifa by 'Manah li b'Yadcha')? How does that explain the fact that there is no Chezkas ha'Guf?

(b)Rav Acha brei d'Rav Ivya queries Rav Ashi from a Beraisa. What does Rebbi Meir say there (commenting on the Seifa of our Mishnah [that after they are married, the onus is on the husband ... ]) about blemishes that were fitting to come from her father's house? What sort of blemishes is he referring to?

(c)In that case, what proof can the father possibly bring?

1)

(a)Rav Ashi, like Rava establishes the entire Mishnah like Raban Gamliel. When he establishes the Reisha by 'Manah l'Aba b'Yadcha' (and the Seifa by 'Manah li b'Yadcha') - he means that, seeing as the Reisha speaks whilst the girl is an Arusah, she is still in her father's domain, in which case, it is the father who is claiming the Kesubah, and even Raban Gamliel will agree that the Chezkas ha'Guf of the daughter will not help her father's claim.

(b)Rav Acha brei d'Rav Ivya queries Rav Ashi from a Beraisa, where Rebbi Meir (commenting on the Seifa of our Mishnah [that after they are married, the onus is on the husband ... ]) concedes that regarding blemishes that were fitting to come from her father's house - (such as an extra finger, that can only have occurred from birth) the onus lies on the father ...

(c)... to prove - that the husband knew about the blemish and was willing to forego it.

2)

(a)If someone swapped a cow for a donkey, and the owner of the donkey made a Meshichah on the cow, may either of them retract before the owner of cow makes a Meshichah on the donkey?

(b)What does Rav Yehudah Amar Shmuel discusses a case where the owner of the donkey made a Kinyan on the cow, and before the owner of the cow took the donkey, it was found to be dead. What difference does it make when the donkey died?

(c)What does Rav Yehudah Amar Shmuel say?

(d)From where does he prove this?

2)

(a)If someone swapped a cow for a donkey, and the owner of the donkey made a Meshichah on the cow - neither of them is permitted to retract (even before the owner of cow makes a Kinyan on the donkey), because the Kinyan that one of them makes on one of the objects, completes the transaction.

(b)Now they are both arguing over when it died. If it died before the Kinyan over the cow took place, then the transaction is void (seeing as it died in the domain of the original owner and it is he who must bear the loss); whereas if it died afterwards, then the transaction is valid, and it is the owner of the cow who loses.

(c)Rav Yehudah Amar Shmuel rules - that it is the owner of the donkey who must prove that it was alive at the time when the Kinyan was made, otherwise the sale is void and he bears the loss of his donkey.

(d)And he proves this from one of the cases of Kalah in our Mishnah (as we shall now see).

76b----------------------------------------76b

3)

(a)We suggest initially that the source of Shmuel (who holds that it is the owner of the donkey who must prove that it was alive at the time when the Kinyan was made) is the Reisha of our Mishnah (where the blemishes were discovered whilst they were still betrothed). What would then be his proof? Like whom in the previous Sugya would he have to hold (Rebbi Elazar, Rava or Rav Ashi)?

(b)On what grounds do we reject this suggestion?

(c)So we suggest that his source is in the Seifa (when the blemishes are discovered after they are married, and, like in our case, it is the husband who comes to establish his money in his own possession). What will now be the proof? Like whom will Rav Yehudah Amar Shmuel hold?

(d)On what grounds do we refute this suggestion too?

3)

(a)We suggest initially that the source of Shmuel (who holds that it is the owner of the donkey who must prove that it was alive at the time when the Kinyan was made) is the Reisha of our Mishnah (where the blemishes were discovered whilst they were still betrothed) - which he establishes like Rebbi Yehoshua (in accordance with Rebbi Elazar explanation), who holds that, irrespective of where the Safek is discovered, the father cannot claim the Kesubah without proof. Here too, the owner of the donkey cannot establish ownership of the cow without proof that the donkey died after the transaction.

(b)We reject this suggestion however - on the grounds that Rebbi Yehoshua is talking about the father extracting the money from the husband, whereas here, Rav Yehudah Amar Shmuel is talking about retaining the cow that he already has (which would not need to be proven).

(c)So we suggest that his source lies in the Seifa (when the blemishes are discovered after they are married, and where the husband comes to establish his money in his own possession (like in our case). In that case - he will hold like Raban Gamliel (still according to the explanation of Rebbi Elazar), in whose opinion the husband has to prove that the blemishes occurred before the betrothal, even if the Safek occurred before they were married. And if there (where the husband is coming to establish his own money in his possession), the onus lies on him to bring the proof, how much more so in Rav Yehudah Amar Shmuel's case, where he is coming to establish ownership over someone else's cow.

(d)We refute this suggestion too however - on the grounds that in the case of our Mishnah, the husband (in spite of his Chezkas Mamon) has to bring the proof to counter the woman's Chezkas ha'Guf, whereas in the case of Rav Yehudah Amar Shmuel, not only does he not need to counter a Chezkas ha'Guf, but he even has the Chezkas ha'Guf of his donkey (which was last known to be alive) on his side together with the Chezkas Mamon.

4)

(a)Rav Nachman bar Yitzchak finally reinstates the first suggestion, establishing Rav Yehudah Amar Shmuel's proof from the Reisha, according to Rebbi Elazar's interpretation, and according to Rebbi Yehoshua. How do we dispense with the Kashya that we initially asked, that here the owner of the donkey establishes what he has, whereas there the father comes to extract the Kesubah from the Chasan?

(b)What happens to the money of Kidushin in the event that the Chasan dies?

(c)How do we reconcile Rav Yehudah Amar Shmuel even like those who hold that the money may be retained?

(d)Why do we not query Rav Yehudah establishing Shmuel like Rebbi Yehoshua, when he specifically ruled in the first Perek like Raban Gamliel?

4)

(a)Rav Nachman bar Yitzchak finally reinstates the first suggestion, establishing Rav Yehudah Amar Shmuel's proof from the Reisha, according to Rebbi Elazar's interpretation, and according to Rebbi Yehoshua. We dispense with the Kashya that we initially asked (that here the owner of the donkey establishes what he has, whereas there the father comes to extract the Kesubah from the Chasan) - by changing the case in the Mishnah to, where the father is claiming, not the Kesubah, but the money of the Kidushin (which he already has).

(b)In the event that the Chasan dies - some hold that the Kidushin money must be returned, others maintain that the Kalah may retain it.

(c)Rav Yehudah Amar Shmuel could well hold even like the latter opinion - because that is only when the Kidushin is Vaday, but when it is a Safek, everyone agrees that it is the father who is obligated to bring proof of ownership.

(d)We could have queried Rav Yehudah establishing Shmuel like Rebbi Yehoshua, when he specifically ruled in the first Perek like Raban Gamliel. Only, seeing as we will shortly refute Rav Yehudah's answer anyway, we do not bother to ask it.

5)

(a)We query Rav Yehudah from a Beraisa which discusses a needle that is found in the Beis ha'Kosos (part of the stomach of a Shechted animal). When does it render needle the animal Tereifah, and when does it not?

(b)If, after the animal has been Shechted, the butcher discovers that a crust has formed over the surface of the wound, we know that it occurred at least three days before the Shechitah; if not, it is a Safek, says the Beraisa. What are the ramifications of this statement, assuming that the butcher bought the animal live from the wholesaler?

(c)If a crust has not formed, then the Tana rules 'ha'Motzi me'Chavero, Alav ha'Re'ayah'. Assuming that the butcher already paid the wholesaler, what Kashya does this Beraisa pose on Rav Yehudah Amar Shmuel?

(d)Why can we not establish the Beraisa when the butcher has not yet paid?

5)

(a)We query Rav Yehudah from a Beraisa which discusses a needle that is found in the Beis ha'Kosos (part of the stomach of a Shechted animal). It renders the animal Tereifah - if it has pierced the double-layer of skin that surrounds the Beis ha'Kosos, but not as long as it has only pierced one of the layers.

(b)If, after he Shechts the animal, he discovers that a crust has formed over the surface of the wound, we know that it occurred at least three days before the Shechitah; if not, it is a Safek, says the Beraisa. Assuming that the butcher bought the animal live from the wholesaler - the ramifications of this statement are that, if he bought it within three days of the Shechitah, then the animal must have become a Tereifah in the wholesaler's domain, and he can claim his money back.

(c)If a crust has not formed, then the Tana rules 'ha'Motzi me'Chavero, Alav ha'Re'ayah'. Assuming that the butcher already paid the wholesaler, this poses a Kashya on Rav Yehudah Amar Shmuel, who maintains that it is always the original owner of the animal which is a Safek who must bring the proof; whereas here we see that the onus to bring the proof lies on the butcher and not on the wholesaler.

(d)We cannot establish the Beraisa when the butcher has not yet paid - because it is not feasible for a wholesaler to give a butcher a cow before he has paid for it.

6)

(a)As a result of this Kashya, Rami bar Yechezkel negates his brother Rav Yehudah's version of Shmuel's statement. How does he then quote Shmuel?

(b)With which Tana does Rami Amar Shmuel conform, and according to which of the above Amora'im?

(c)According to Rava, the butcher would have to bring the proof, even if he had not paid the money. So why does the Tana use the expression 'ha'Motzi me'Chavero, Alav ha'Re'ayah' (when that is not the true criterion)?

(d)On what grounds do we justify establishing the Beraisa specifically when the butcher already paid (as we just explained)?

6)

(a)As a result of this Kashya, Rami bar Yechezkel negates his brother Rav Yehudah's version of Shmuel's statement. He therefore quotes Shmuel as saying - 'the one in whose domain the animal died must bring the proof as to when it died.'

(b)This conforms with Raban Gamliel, according to the interpretation of Rava who holds 'Kan Nimtze'u, Kan Hayu'.

(c)According to Rava, the butcher would have to bring the proof, even if he had not yet paid the money. Nevertheless, the Tana uses the expression 'ha'Motzi me'Chavero, Alav ha'Re'ayah' (even though that is not the true criterion) - because he is speaking when the butcher already paid.

(d)We establish the Beraisa when the butcher paid (as we just explained) - because it is normal for the wholesaler to give the animal to the butcher only after he has paid (as we explained earlier).

7)

(a)What do the Chachamim in our Mishnah hold with regard to hidden blemishes, assuming there are no bathhouses in the entire town?

(b)Under which category of blemishes does Rav Nachman classify epilepsy?

(c)When does he agree that even epilepsy is considered a revealed blemish?

7)

(a)Assuming there are no bathhouses in the entire town - the Chachamim in our Mishnah hold - that when it comes to hidden blemishes, the husband can claim even after the marriage, that it was a false sale.

(b)Rav Nachman classifies epilepsy - under the category of hidden blemishes.

(c)He agrees however, that even epilepsy is considered a revealed blemish - if her attacks do not occur at fixed times (in which case it will be extremely difficult to hide her ailment from the public).

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