When in Double Doubt

Ketubot (1:1) | Yisrael Bankier | 12 years ago

A Jewish wedding comprises of two components – kidushin (halachic engagement) and nisuin (marriage). Even though nowadays these two stages are performed within moments of each other, in the times of the Mishnah there was some time in between. 

Kidushin is far more significant than what we refer to as engagement, as after which the woman is already defined as an eshet ish. A get would be required to break-off the kidushin. Also, her having a relationship with another man would equate to an affair thereby making her forbidden to her groom.

Masechet Ketubot begins with discussing the day on which the Chachamim decreed that a betula should get married – Wednesday. The Mishnah explains that since Beit Din were in session on Monday and Thursday, it ensured that if the groom had any claims regarding her betulin he would be able to present them the next day at the Beit Din. Rashi explains that the need for Beit Din to be available the next day is that if there was a break, there is a concern that the husband might be appeased. The problem then is that he could continue living with his wife who is forbidden to him due to her affair during that period.

The Tosfot question the reason for this decree. Even if the husband presented his case to Beit Din, she would still not be prohibited to him. The reason is that there is a double doubt (sfeik sfeika). The first doubt is whether the affair occurred prior to or during the engagement period. Even if it occurred during the engagement period there is another doubt regarding whether it was ones (rape) – in such a case she would not be assur to her husband. 

Rabbeinu Tam answers that there are cases where there would only be one safek. In a case of a kohen’s wife involving ones, for example, she would be assur to her husband. Consequently the safek that it occurred prior to kidushin is the only safek. Nevertheless, the Chachachim did not differentiate in their decree and instituted that all betulim marry on Wednesday.  

Rashi however explains that despite the sfeik sfeika, he should go to Beit Din as knowledge of the case might spread and if there are incriminating witness then they might come forward. The Ritva adds that according to this understanding, it appears the reason for the takana was for these cases of sfeik sfeika, where witnesses are required to affect the  issur. In the cases of one safek the husband would make his wife assur to him even without Beit Din

The Chatam Sofer explains that the debate between Rashiand Tosfot relates to a broader debate regarding whether in a case of a sfeik sfeika resulting in a leniency, must one endeavor to clarify the safek. It appears that according to Rashi, even though it is a sfeik sfeika, the husband must go to Beit Din in an attempt to call eidim to clarify the matter. According to Tosfot, in cases of sfeik sfeika however, there would be no need to go to Beit Din at all. 

The Ritva however maintains that each of these motivations on their own would not have been enough for the decree. Firstly, with respect to Rabbeinu Tam’s position, kohanim are a minority. According to Rashi’s opinion, it would be rare the witnesses would result from the husband appearing in front of Beit Din. The Ritva holds therefore it is a combination of the two positions that motivated the decree (and he maintains that this is Rashi’s position as well).


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