Introduction to the Study of
by Rav Michael Siev
Kiddushin 12-Daf 74a
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Key words and phrases in Hebrew and Aramaic are marked in blue, and their
translation/explanation can be seen by placing the cursor over
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and do some task on your own. This will be marked by a
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
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
And let us see who is holding the certificate of favorable
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
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.
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
We continue in the Gemara - we are up to the ninth line of 74a.
Rav Nachman said: "Three are believed regarding a
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
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
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
Rabban Gamliel and Rabbi Eliezer say: "she is believed,"
and Rabbi Yehoshua says: "we do not live from her
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:
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
We will continue next week with the gemara's further explanation of