Introduction to the Study of Talmud
by Rav Michael Siev

Kiddushin 12-Daf 74a

A scan of the classic printed daf can be found at: http://dafyomi.org/index.php?masechta=kiddushin&daf=74a&go=Go Key words and phrases in Hebrew and Aramaic are marked in blue, and their translation/explanation can be seen by placing the cursor over them.  From time to time, the shiur will include instructions to stop reading and do some task on your own. This will be marked by a red pause box  It is highly recommended that you follow those instructions. I am still working on a way to have your computer melt if you don't, but as of yet, the technical details are still beyond me. Within the quoted texts, my explanations and additions are also noted in red.

Last week, we studied different cases in which people have a unique level of credibility. For example, the attending midwife is believed regarding her assertion of which of two twins was born first; additionally, if several women have given birth in the same place, the midwife is trusted to identify which baby was born from which woman. Similarly, a merchant can identify which of two potential buyers he has actually agreed to perform a transaction with. The Gemara we will study this week continues this theme. 

We begin at the end of the third line of 74a. 

A judge is believed to say, "I [ruled] in favor of this [litigant] and against this one." Regarding what are these words stated? When the litigants are standing before him, but if the litigants are not standing before him - he is not believed. And let us see who is holding the certificate of favorable judgment? No, it is necessary, when his certificate of favorable judgment has been torn. And let us go back and judge them! [It is a case of] a judge's discretion.

נאמן דיין לומר לזה זכיתי ולזה חייבתי. במה דברים אמורים? שבעלי דינים עומדים לפניו, אבל אין בעלי דינים עומדים לפניו - אינו נאמן. וניחזי זכותא מאן נקיט? לא צריכא דקריע זכותייהו. וניהדר ונידיינינהו! בשודא דדייני.

The gemara here adds another case of one who has a special level of credibility under limited circumstances: a judge who specifies which litigant emerged victorious in the case which he judged. This credibility is limited to a situation in which the litigants are still standing before him; certainly the judge will still remember the outcome of the case. If, however, the litigants have already left the court, we do not assume that the judge - who probably sees many cases each day - will certainly remember how he ruled, and he has no greater authority to recall the events than anyone else does. This does not mean that we completely discount his recollection, just that it is no more significant than the recollection of anyone else who witnessed the verdict.

The gemara questions this teaching; let us simply see which of the litigants is holding the certificate of favorable judgment! The gemara answers that the teaching is necessary in a case in which the certificate is no longer extant. This exchange of the gemara is somewhat ambiguous. What would we have done if the certificate was still intact? Does the question relate to the last rule stated, regarding a case in which the litigants are no longer in the presence of the judge? Many commentators prefer to explain that the gemara questions the necessity of the entire statement; if the litigants are still standing before the judge, we can easily check who is holding the certificate, such that it is not necessary to rely on the judge's recollection at all.

The gemara makes another suggestion: if we are in doubt as to what the verdict was, let us go back and rejudge the case; this way, we can be confident that justice will be served! The gemara answers that we are talking about a case of shuda de-daynei, a case which is decided based on the judge's discretion rather than based upon the evidence presented by the litigants. Rashi (s.v. Be-shuda de-daynei) gives an example of such a circumstance based upon a different gemara (Ketuvot 85b): a certain man willed his possessions to "Tuvia." Following the man's demise, two of his relatives, both of whom lived near the man and were named Tuvia, claimed rights to the estate. There is no objective evidence upon which to base a decision; therefore, the case is decided based upon the judge's discretion.

The commentators debate the nature of the discretionary judgment that a judge is expected to employ in a case like the one we have outlined here. Rashi explains that the judge must do his best to ascertain which of the two people is more likely to have been the man intended by the deceased. Such a judgment will not be based upon solid evidence, but rather upon circumstantial evidence, not normally relied upon in court, which will indicate which Tuvia was closer to the deceased and more likely to have been named in the will.

Tosafot (s.v. Shuda de-daynei) explain otherwise, based upon a different application of this concept elsewhere in the Gemara. In their view, in the absence of real evidence, the judge may simply rule as he sees fit, without having to guess which litigant is likely to be the real heir. This judicial power is founded upon the concept of hefker beit din hefker, which means that an established court has the power to remove property from the possession of its owner. Therefore, there is no possibility of awarding the estate to the wrong person: the court has already removed the estate from his possession, and it can now award it to whomever it pleases.

Either way, it seems that the gemara's concern is that in a case of shuda de-daynei, which is not based upon hard evidence, re-judging the case will not necessarily lead to the same conclusion that was reached the first time.

We continue in the Gemara - we are up to the ninth line of 74a.

Rav Nachman said: "Three are believed regarding a firstborn, these are they: a midwife, his (the child's) father and his mother. A midwife - right away, his mother - all seven [days], his father - forever, as is taught in a beraita: '"He shall recognize" - he shall identify him to others; from here Rabbi Yehuda said: "a person is believed to say this is my firstborn son, and just as he is believed to say this is my firstborn son, so he is believed to say this is the son of a divorced woman or a chalutza;" and the Sages say: "he is not believed."'"

אמר רב נחמן: שלשה נאמנין על הבכור, אלו הן: חיה, אביו, ואמו. חיה - לאלתר, אמו - כל שבעה, אביו - לעולם; כדתניא: יכיר - יכירנו לאחרים; מכאן א"ר (=אמר רבי) יהודה: נאמן אדם לומר זה בני בכור, וכשם שנאמן לומר זה בני בכור, כך נאמן לומר זה בן גרושה וזה בן חלוצה; וחכמים אומרים: אינו נאמן.

Rav Nachman teaches that three people are believed to ascertain which child is the firstborn in a family. The midwife is believed at the time of the birth; this is consistent with the gemara's ruling on the previous page, that a midwife has credibility to determine which of newborn twins is the firstborn until she turns away from the new babies. Additionally, the mother has a unique level of credibility during the first seven days of the babies' lives. The father's credibility lasts forever, as the beraita indicates. The beraita quotes a verse (Devarim 21:17) that is stated in the context of a man who has two wives, one of whom he prefers and one he "hates." The firstborn son, as we indicated last week, receives a larger portion of the inheritance than his brothers; it would therefore be natural that a man who has a preference for one of his wives - and her children - would try to ensure that it is the firstborn of his favored wife who gets the extra inheritance. In the event that the firstborn is actually the son of the other wife, the Torah commands that the man "recognize" the true firstborn. In context, it is clear that the word "recognize" does not fully express the intent of the verse, as the father's own recognition of the firstborn is not enough; he must ensure that others also realize which son is the firstborn. Therefore, the beraita interprets the verse as teaching that the father must ensure that the true identity of the firstborn is known to others. This clearly indicates that a father has the credibility to reveal which of his children is the firstborn.

The beraita continues: Rabbi Yehuda teaches that just as a father is believed regarding the order in which his children were born, he is also believed to reveal the lineage of his children. Thus, a kohen can reveal that his sons are actually sons of a woman who previously underwent a divorce or chalitza. Since a kohen is not permitted to marry such women, his sons would be considered chalalim and would be disqualified from serving as kohanim. The Sages disagree; in their view a father is believed to ascertain which of his sons is the firstborn, but is not believed to disqualify a child who is presumed to be of acceptable lineage. 

The beraita clearly indicates that Rabbi Yehuda's opinion is directly linked to the fact that a father is believed to determine which of his children is the firstborn. How does this work? Why does a father's credibility regarding his firstborn show that he has credibility regarding every aspect of their lineage? One might be especially hesitant to make this extension in light of other considerations, which may be the basis of the Sages' dissenting opinion:

1) The claim that one's children are chalalim has a negative impact upon them. Furthermore, we have no independent reason to suspect that their lineage is tainted. This is very different from the case of the firstborn, which does not disqualify the son about whom the father is testifying, and is a status that must, by definition, apply to one of the man's sons.

2) The claim at stake is founded upon a statement about another person - in this case the children's mother - regarding whom the father ought not have any special level of credibility.  

Tosafot (s.v. Kesheim) explain that according to Rabbi Yehuda, the special level of trust the Torah grants a father to identify his firstborn is a right that applies across the board - even if the son the father identifies is obviously younger than his brothers. Such a declaration would imply that the older brothers are not actually this man's sons, but were fathered by someone else, making them mamzerim. That being the case, it is clear that the father's credibility regarding his sons extends even to issues of personal status.

Onward in the Gemara

Abba Shaul would call shetuki, beduki: What is beduki? If you say that we check his mother and [if] she says that she cohabited with someone of acceptable lineage - she is believed, in accordance with whose opinion is this? Like Rabban Gamliel; we have [already] taught this once, for it says in a mishna: If she was pregnant and they said to her what is the nature of this fetus? She said to them, "it is from a certain man and he is a kohen;" Rabban Gamliel and Rabbi Eliezer say: "she is believed," and Rabbi Yehoshua says: "we do not live from her mouth." And Rav Yehuda said in the name of Shemuel: "The halakha is in accordance with Rabban Gamliel!" One to permit her and one to permit her daughter.

אבא שאול היה קורא לשתוקי בדוקי: מאי בדוקי? אילימא שבודקין את אמו ואומרת לכשר נבעלתי - נאמנת, כמאן? כרבן גמליאל; תנינא חדא זימנא! דתנן: היתה מעוברת, ואמרו לה מה טיבו של עובר זה? אמרה להם מאיש פלוני וכהן הוא; רבן גמליאל ור' אליעזר אומרים: נאמנת, ורבי יהושע אומר: לא מפיה אנו חיין. ואמר רב יהודה אמר שמואל: הלכה כרבן גמליאל! חדא להכשיר בה, וחדא להכשיר בבתה.

The gemara begins by quoting the concluding line of the mishna at the beginning of our chapter, on 69a. Abba Shaul would refer to a shetuki as a beduki. What is the significance of this statement? Clearly, the mishna considers Abba Shaul's terminology to be significant enough to warrant special mention, and it must therefore be teaching us something. Remember that a shetuki is a child born out of wedlock, such that the identity of the father is not apparent; the shetuki is treated as a questionable mamzer. The gemara assumes that Abba Shaul's terminology implies that we can investigate the circumstances of the child's conception and thereby resolve the child's status. This suggestion is difficult, however: we have already learned this rule in a different mishna (Ketuvot 13a)! That mishna reports that Rabban Gamliel and Rabbi Eliezer rule that we trust a woman's declaration that she has conceived from a man of pure lineage while Rabbi Yehoshua disagrees. The halakha follows Rabban Gamliel. In light of the fact that this lesson has already been taught in a different mishna, it seems unlikely that our mishna quotes Abba Shaul simply to teach a lesson that we have already learned! 

The gemara answers that our initial hunch about Abba Shaul's point may very well be correct: it is necessary for two mishnayot to teach this same lesson, in order to emphasize that the woman is believed about the two main ramifications of this issue. If a woman has sexual relations with someone she would not be able to marry, she becomes forbidden to marry a kohen. If we believe her claim that she has conceived from someone of acceptable lineage, she remains permitted to a kohen. The mishna in Ketuvot teaches that the woman is believed in this respect, according to Rabban Gamliel. Our mishna repeats this lesson in the context of its discussion of yuchesin, lineage, in order to teach us that we believe the woman's claim even with regard to the second ramification, namely the status of the child. If the woman claims that her child has been fathered by someone of acceptable lineage, we accept her claim and do not consider the child to be a shetuki.

We will continue next week with the gemara's further explanation of this issue.