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ב"ה

Rambam - 1 Chapter a Day

Ishut - Chapter Eleven

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Ishut - Chapter Eleven

1

[The following laws apply when a man] weds a virgin who was widowed or divorced or who underwent the rite of chalitzah.1 If she was widowed or divorced or underwent the rite of chalitzah after erusin alone, the ketubah [to which she is entitled from her second husband] is 200 zuz. If, however, she had been wed, the ketubah [to which she is entitled from her second husband] is 100 zuz. Once she is wed, she is considered to be a non-virgin.2

Similar [rules apply when a man] weds a virgin [bride] who is [a Canaanite maidservant] who has been freed, who is a convert, or who was held captive [by gentiles and freed]. If the maidservant had been freed, the convert had converted, or the women held captive had been redeemed before they reached the age of three years and one day,3 they are entitled to a ketubah of 200 zuz. If [this took place after they reached that age, their ketubah is [only] 100 [zuz].

א

הַנּוֹשֵׂא בְּתוּלָה שֶׁנִּתְאַלְמִנָה אוֹ שֶׁנִּתְגָּרְשָׁה אוֹ נֶחְלְצָה. אִם מִן הָאֵרוּסִין נִתְאַלְמְנָה אוֹ נִתְגָּרְשָׁה אוֹ נֶחְלְצָה כְּתֻבָּתָהּ מָאתַיִם. וְאִם מִן הַנִּשּׂוּאִין כְּתֻבָּתָהּ מֵאָה. שֶׁמִּשֶּׁנִּשֵּׂאת הֲרֵי הִיא כִּבְעוּלָה. וְכֵן הַנּוֹשֵׂא בְּתוּלָה מְשֻׁחְרֶרֶת אוֹ גִּיֹּרֶת אוֹ שְׁבוּיָה אִם נִשְׁתַּחְרְרָה הַשִּׁפְחָה וְנִתְגַּיְּרָה הַכּוּתִית וְנִפְדֵית הַשְּׁבוּיָה וְהֵן פְּחוּתוֹת מִבַּת שָׁלֹשׁ שָׁנִים וְיוֹם אֶחָד כְּתֻבָּתָן מָאתַיִם. וְאִם הָיוּ בְּנוֹת שָׁלֹשׁ שָׁנִים וְיוֹם אֶחָד וָמַעְלָה כְּתֻבָּתָן מֵאָה:

2

Why did our Sages ordain that these women receive a ketubah of [only] 100 [zuz] even though they are virgins? Because it is a presumption that can be accepted as fact that a woman who is wed will engage in marital relations, and similarly, that a maidservant, a gentile woman and a woman held captive by gentiles will have engaged in relations. Hence, they ordained that such women would be entitled to [only] 100 [zuz],whether they engaged in relations or not. With regard to all matters, they are considered to be non-virgins.

ב

וּמִפְּנֵי מָה תִּקְּנוּ חֲכָמִים לְאֵלּוּ כְּתֻבָּה מֵאָה וְאַף עַל פִּי שֶׁהֵן בְּתוּלוֹת. הוֹאִיל וְחֶזְקַת הַנְּשׂוּאָה שֶׁתִּבָּעֵל וְחֶזְקַת הַשִּׁפְחָה וְהַכּוּתִית וְהַשְּׁבוּיָה שֶׁתִּבָּעֵל תִּקְּנוּ לְאֵלּוּ מֵאָה בֵּין נִבְעֲלוּ בֵּין לֹא נִבְעֲלוּ וַהֲרֵי הֵן כִּבְעוּלוֹת לְכָל דָּבָר:

3

A mukat etz4 [is granted] a ketubah of 100 [zuz]. Even if [her husband] wed her under the presumption that she was a virgin and then he discovered that she was a mukat etz, she is entitled to a ketubah of 100 [zuz].5

When a girl of less than three years of age engages in sexual relations, even when her partner is an adult male, she [is entitled to] a ketubah of 200 [zuz]. Ultimately, she will heal and be a virgin like all others.

Similarly, when a boy below the age of nine engages in sexual relations with an adult woman, she [is entitled to] a ketubah of 200 [zuz], as if she had never engaged in relations.6 For it is only after a boy reaches the age of nine years and one day that relations with him are of consequence. Before that age, they are of no consequence.

ג

מֻכַּת עֵץ כְּתֻבָּתָהּ מֵאָה אֲפִלּוּ נִשֵּׂאת עַל מְנָת שֶׁהִיא בְּתוּלָה שְׁלֵמָה וְנִמְצֵאת מֻכַּת עֵץ כְּתֻבָּתָהּ מֵאָה. קְטַנָּה מִבַּת שָׁלֹשׁ שָׁנִים וּלְמַטָּה שֶׁנִּבְעֲלָה אֲפִלּוּ בָּא עָלֶיהָ אָדָם גָּדוֹל כְּתֻבָּתָהּ מָאתַיִם, סוֹפָהּ שֶׁתַּחֲזֹר בְּתוּלָה כִּשְׁאָר הַבְּתוּלוֹת. וְכֵן גְּדוֹלָה שֶׁבָּא עָלֶיהָ קָטָן מִבֶּן תֵּשַׁע שָׁנִים וּלְמַטָּה כְּתֻבָּתָהּ מָאתַיִם כְּאִלּוּ לֹא נִבְעֲלָה כְּלָל. שֶׁבִּיאַת בֶּן תֵּשַׁע שָׁנִים וְיוֹם אֶחָד בִּיאָתוֹ בִּיאָה, פָּחוֹת מִזֶּה אֵין בִּיאָתוֹ בִּיאָה:

4

Whether a virgin is a bogeret,7, blind,8 or an aylonit,9 she [is entitled to] a ketubah of 200 [zuz]. By contrast, no provision was made for a ketubah for a woman who is a deaf mute or mentally incompetent. [The rationale is] that no provision has been made for the marriage of a mentally incompetent woman at all.

With regard to a woman who is a deaf mute, although our Sages made provision for her marriage, they did not entitle her to a ketubah, so that a man would not refrain from marrying her. Just as she is not entitled to a ketubah, so too, [her husband] is not [obligated to provide] her with her livelihood or grant her any other [of the ordinary] conditions of the marriage contract.

If one wed a woman who was a deaf mute and her difficulty was remedied, she is entitled to a ketubah and to the other conditions of the marriage contract. [The amount of] her ketubah is 100 zuz.10

ד

בְּתוּלָה שֶׁהִיא בּוֹגֶרֶת אוֹ סוּמָא אוֹ אַיְלוֹנִית כְּתֻבָּתָן מָאתַיִם. אֲבָל הַחֵרֶשֶׁת וְהַשּׁוֹטָה לֹא תִּקְּנוּ לָהֶן כְּתֻבָּה. הַשּׁוֹטָה לֹא תִּקְּנוּ לָהּ נִשּׂוּאִין כְּלָל. וְהַחֵרֶשֶׁת אַף עַל פִּי שֶׁיֵּשׁ לָהּ נִשּׂוּאִין מִדִּבְרֵיהֶם לֹא תִּקְּנוּ לָהּ כְּתֻבָּה כְּדֵי שֶׁלֹּא יִמָּנְעוּ מִלָּשֵׂאת אוֹתָהּ. וּכְשֵׁם שֶׁאֵין לָהּ כְּתֻבָּה כָּךְ אֵין לָהּ מְזוֹנוֹת וְלֹא תְּנַאי מִתְּנָאֵי כְּתֻבָּה. וְאִם כָּנַס הַחֵרֶשֶׁת וְנִתְפַּקְּחָה יֵשׁ לָהּ כְּתֻבָּה וּתְנָאֵי כְּתֻבָּה וּכְתֻבָּתָהּ מֵאָה:

5

When a man marries a woman who is a deaf mute or mentally incompetent and writes her a ketubah for 10,000 [zuz], the obligation is binding; it was he who desired to diminish his assets.

ה

נָשָׂא חֵרֶשֶׁת אוֹ שׁוֹטָה וְכָתַב לָהֶן מֵאָה מָנֶה כְּתֻבָּתָן קַיֶּמֶת מִפְּנֵי שֶׁרָצָה לְהַזִּיק נְכָסָיו:

6

[The following rules apply when] a deaf mute or a mentally incompetent man married a woman who was mentally competent. Even if afterwards the deaf mute's disability disappears and the mentally incompetent person gains stability, they are under no obligation to their wives. If, however, [the men] desire to remain [married] to [the women] after their own wellbeing has been restored, [the wives] are entitled to a ketubah, and its value should be 100 zuz.

If the deaf mute's marriage was made by the court, and they write [his wife] a ketubah against his assets, she is entitled to everything that the court has prescribed for her. A court will not arrange a marriage for a mentally incompetent person at all. Since the sages' injunction will not be maintained in his instance,11 they did not ordain marriage for him at all.

Similarly, our Sages did not ordain marriage for a male below the age of majority; [the rationale is that] ultimately he will gain the potential to enter into a comprehensive marriage bond.

Why then did they ordain marriage for a girl below the age of majority12 although she too will ultimately gain the potential for a comprehensive marriage bond? So that she will not be treated in a wanton manner.13

A youth should not be [allowed to] marry until he has been examined, and it has been determined that he has manifested signs of physical maturity.

ו

חֵרֵשׁ אוֹ שׁוֹטֶה שֶׁנָּשְׂאוּ נָשִׁים פִּקְחוֹת אַף עַל פִּי שֶׁנִּתְפַּקֵּחַ הַחֵרֵשׁ וְנִשְׁתַּפָּה הַשּׁוֹטֶה אֵין לִנְשֵׁיהֶם עֲלֵיהֶם כְּלוּם. רָצוּ לְקַיְּמָן אַחַר שֶׁהִבְרִיאוּ יֵשׁ לָהֶן כְּתֻבָּה וּכְתֻבָּתָן מֵאָה. וְאִם בֵּית דִּין הֵם שֶׁהִשִּׂיאוּ הַחֵרֵשׁ וְכָתְבוּ לָהּ כְּתֻבָּתָהּ עַל נְכָסָיו נוֹטֶלֶת כָּל מַה שֶּׁכָּתְבוּ לָהּ בֵּית דִּין. אֲבָל הַשּׁוֹטֶה אֵין בֵּית דִּין מַשִּׂיאִין אוֹתוֹ בְּכָל מָקוֹם. וּמִפְּנֵי שֶׁאֵין תַּקָּנַת חֲכָמִים עוֹמֶדֶת בּוֹ לֹא תִּקְּנוּ לוֹ נִשּׂוּאִין. וְכֵן הַקָּטָן לֹא תִּקְּנוּ לוֹ חֲכָמִים נִשּׂוּאִין הוֹאִיל וְסוֹפוֹ לָבוֹא לִידֵי נִשּׂוּאִין גְּמוּרִין. וּמִפְּנֵי מָה תִּקְּנוּ נִשּׂוּאִין לִקְטַנָּה וְאַף עַל פִּי שֶׁהִיא בָּאָה לִידֵי נִשּׂוּאִין גְּמוּרִין. כְּדֵי שֶׁלֹּא יִנְהֲגוּ בָּהּ מִנְהַג הֶפְקֵר. וְאֵין מַשִּׂיאִין אֶת הַקָּטָן עַד שֶׁבּוֹדְקִין אוֹתוֹ וְיוֹדְעִים שֶׁהֵבִיא סִימָנִין:

7

When a male below the age of majority marries a woman, she is not entitled to a ketubah, even if he is already nine years and one day old. If he attains majority and remains [married] to her, she is entitled to the fundamental requirement of the ketubah.14

Similarly, when a man converts together with his wife, she is entitled to a ketubah [of 100 zuz]. It was with this intent that he maintained their marriage.15

ז

קָטָן אֲפִלּוּ בֶּן תֵּשַׁע שָׁנִים וְיוֹם אֶחָד שֶׁנָּשָׂא אִשָּׁה אֵין לָהּ כְּתֻבָּה. וְאִם הִגְדִּיל וְקִיְּמָהּ אַחַר שֶׁהִגְדִּיל יֵשׁ לָהּ עִקַּר כְּתֻבָּה. וְכֵן גֵּר שֶׁנִּתְגַּיֵּר הוּא וְאִשְׁתּוֹ כְּתֻבָּתָהּ מָנֶה שֶׁעַל מְנָת כֵּן קִיְּמָהּ:

8

Whenever a virgin bride is entitled to a ketubah of 200 [zuz], there is [the possibility of issuing] a claim against her, [denying] her virginity. Whenever, by contrast, a bride is entitled to a ketubah of [only] 100 [zuz],16 or the Sages did not entitle her to a ketubah at all,17 there is no [possibility of issuing] a claim against her [denying] her virginity. [Similarly,] if [a groom] enters into privacy with his arusah before their wedding, there is no [possibility of issuing] a claim against her [denying] her virginity.18

ח

כָּל בְּתוּלָה שֶׁכְּתֻבָּתָהּ מָאתַיִם יֵשׁ לָהּ טַעֲנַת בְּתוּלִים. וְכָל שֶׁכְּתֻבָּתָהּ מֵאָה אוֹ שֶׁלֹּא תִּקְּנוּ לָהּ חֲכָמִים כְּתֻבָּה אֵין לָהּ טַעֲנַת בְּתוּלִים. וְהַמִּתְיַחֵד עִם אֲרוּסָתוֹ קֹדֶם נִשּׂוּאִין אֵין לָהּ טַעֲנַת בְּתוּלִים:

9

What is meant by a claim [denying a woman's] virginity? [A man] married a woman on the assumption that she was a virgin, and [after the wedding] claims that he did not find signs of virginity. For there are two signs of virginity: a) [hymenal] bleeding at the conclusion of her first sexual experience; b) tightness that is felt during sexual relations at that time.19

ט

וּמַה הִיא טַעֲנַת בְּתוּלִים. זֶה שֶׁנָּשָׂא אִשָּׁה שֶׁחֶזְקָתָהּ שֶׁהִיא בְּתוּלָה וְטוֹעֵן וְאוֹמֵר לֹא מְצָאתִיהָ בְּתוּלָה. וּשְׁנֵי סִימָנִין הֵן לִבְתוּלָה. הָאֶחָד דָּמִים שֶׁשׁוֹתְתִין מִמֶּנָּה בְּסוֹף בִּיאָה רִאשׁוֹנָה. וְהַשֵּׁנִי הַדֹּחַק שֶׁיִּמָּצֵא בָּהּ בְּבִיאָה רִאשׁוֹנָה בִּשְׁעַת תַּשְׁמִישׁ:

10

When [a man] weds a virgin who is granted a ketubah of 200 [zuz], and claims that he did not discover signs of her virginity, the woman is questioned [regarding the matter]. If she says, "It is true that he did not find me a virgin, but this is because I fell, and I was struck by a piece of wood or the ground, and my hymen was damaged," her word is accepted and she is entitled to a ketubah of [100 zuz].20

Although [her husband] claims: "Perhaps you engaged in intercourse, and I am under no obligation to you,"21 his claim is not accepted, for his claim is not absolute.22 He may, however, have a ban of ostracism issued, conditional on her having engaged in relations with another man.

י

הַנּוֹשֵׂא אֶת הַבְּתוּלָה שֶׁכְּתֻבָּתָהּ מָאתַיִם וְטָעַן וְאָמַר לֹא מְצָאתִיהָ בְּתוּלָה. שׁוֹאֲלִין אוֹתָהּ אִם אָמְרָה אֱמֶת הוּא לֹא מְצָאַנִי בְּתוּלָה מִפְּנֵי שֶׁנָּפַלְתִּי וְהִכַּנִי עֵץ אוֹ קַרְקַע וְהָלְכוּ בְּתוּלַי הֲרֵי זוֹ נֶאֱמֶנֶת וְתַחֲזֹר כְּתֻבָּתָהּ לְמָנֶה. אַף עַל פִּי שֶׁהוּא טוֹעֵן אוֹמֵר שֶׁמָּא אִישׁ בָּא עָלַיִךְ וְאֵין לָךְ כְּלוּם אֵין מַשְׁגִּיחִין בְּטַעֲנָתוֹ. וְיֵשׁ לוֹ לְהַחֲרִים סְתָם שֶׁלֹּא בָּא עָלֶיהָ אִישׁ שֶׁאֵין הַדָּבָר וַדַּאי לוֹ:

11

If [the woman] says, "It is true that he did not find me a virgin, for another man raped me after I had been consecrated by him," her word is accepted, and she is entitled to a ketubah of 200 [zuz] as before.23

If [her husband] claims: "Perhaps you were raped before you were consecrated, and the agreement I entered was based on false premises. Or perhaps you willingly engaged in relations after you were consecrated" [his claim is not accepted]. He may, however, have a ban of ostracism issued conditionally against anyone who makes a false claim to have him incur a financial obligation for which he is not liable.

יא

אָמְרָה הִיא אֱמֶת אָמַר שֶׁלֹּא מְצָאַנִי בְּתוּלָה וְאִישׁ בָּא עָלַי בְּאֹנֶס אַחַר שֶׁנִּתְאָרַסְתִּי לוֹ. הֲרֵי זוֹ נֶאֱמֶנֶת וּכְתֻבָּתָהּ מָאתַיִם כְּמוֹ שֶׁהָיְתָה. וְאִם טָעַן וְאָמַר שֶׁמָּא עַד שֶׁלֹּא אֵרַסְתִּיךְ נֶאֱנַסְתְּ וּמִקָּחִי מִקַּח טָעוּת אוֹ אַחַר שֶׁאֵרַסְתִּיךְ נִבְעַלְתְּ בִּרְצוֹנֵךְ. הֲרֵי זֶה מַחֲרִים סְתָם עַל מִי שֶׁטּוֹעֵן שֶׁקֶר כְּדֵי לְחַיְּבֵנִי מָמוֹן שֶׁאֵינִי חַיָּב בּוֹ:

12

If he claims, "I did not find her a virgin," and she claims, "He has not had intercourse with me and I am still a virgin," she should be examined. Alternatively, he should have relations with her under the surveillance of witnesses [and the truth will be clarified].24

If she claims, "He had relations with me and he found me a virgin like all others, and his claim is false," he is questioned [and asked to clarify his statements]. We ask him: "Why do you say that she was not a virgin?" If he answers: "Because she did not have hymenal bleeding," we check her family [history]. Perhaps [the women of] this [family] are known not to have [vaginal] bleeding at all: neither menstrual bleeding nor hymenal bleeding. If this was found to be true, we presume [that she was a virgin, and she is entitled to a ketubah of 200 zuz].

If the women in her family are not known to have such a condition, we check her [physical state]; perhaps she is afflicted by a serious infirmity that has parched her body's natural fluids, or [perhaps] she was afflicted by hunger. Therefore, we have her bathe, eat and drink until she becomes healthy. At which point, [the couple] engage in relations again to see if she manifests hymenal bleeding or not.

If she is not hampered by sickness, hunger or the like, the [husband's] claim that she was not a virgin [is accepted]. [This applies] even if he felt tightness during relations. Since there was no hymenal bleeding, her hymen was not intact. For every virgin will manifest hymenal bleeding, whether she is a minor or above the age of majority, whether a na'arah or a bogeret, unless [this is prevented by an external factor,] illness or the like, as explained.

If [the husband] said: "[I claim that she was not a virgin,] because I did not feel tightness [during intercourse]. Instead, I found an open passageway," we inquire with regard to [the woman's] age. Perhaps she is a bogeret, and most bogrot do not have tightness that can be felt substantially [during intercourse], for as she grew older [the adhesion of] her limbs lessened, and the virginal [tightness] disappeared.

If she had not become a bogeret yet, we ask him: "Perhaps you leaned on the side or [entered] gently25 during intercourse, and therefore you did not feel any tightness?" If he replies: "No. I found an open passageway," [his] claim that she was not a virgin [is accepted] with regard to any woman who has not reached the age of bagrut, regardless of whether she was a minor or a na'arah, or whether she was healthy or sick. For the vaginal channel of every virgin is closed. Even if she manifests hymenal bleeding, she is not considered to be a virgin, because the vaginal channel was open.26

יב

טָעַן וְאָמַר לֹא מְצָאתִיהָ בְּתוּלָה וְהִיא אוֹמֶרֶת לֹא בָּא עָלַי וַעֲדַיִן אֲנִי בְּתוּלָה. בּוֹדְקִין אוֹתָהּ אוֹ חוֹזֵר וּבוֹעֵל בִּפְנֵי עֵדִים. אָמְרָה בָּא עָלַי וּבְתוּלָה מְצָאַנִי כְּכָל הַבְּתוּלוֹת וְשֶׁקֶר הוּא טוֹעֵן. שׁוֹאֲלִין אוֹתוֹ וְאוֹמְרִין לוֹ מֶה הָיָה הַדָּבָר עַד שֶׁאָמַרְתָּ שֶׁאֵינָהּ בְּתוּלָה. אִם אָמַר מִפְּנֵי שֶׁלֹּא מָצָאתִי לָהּ דָּם בּוֹדְקִין בְּמִשְׁפַּחְתָּהּ שֶׁמָּא אֵין לָהֶם דָּם כְּלָל לֹא דַּם נִדָּה וְלֹא דַּם בְּתוּלִים אִם נִמְצְאוּ כֻּלָּן כֵּן הֲרֵי זוֹ בְּחֶזְקָתָהּ. לֹא נִמְצְאוּ בְּנוֹת מִשְׁפַּחְתָּהּ כֵּן בּוֹדְקִין אוֹתָהּ שֶׁמָּא חלִי גָּדוֹל יֵשׁ בָּהּ שֶׁיָּבַשׁ לַחְלוּחִית הָאֵיבָרִים אוֹ שֶׁהָיְתָה מִתְעַנֵּית בָּרָעָב. מַרְטִיבִין אוֹתָהּ וּמַאֲכִילִין אוֹתָהּ וּמַשְׁקִין אוֹתָהּ עַד שֶׁתַּבְרִיא וְתִבָּעֵל שֵׁנִית וְנִרְאֶה אִם תּוֹצִיא דָּם אִם לָאו. וְאִם אֵין שָׁם חלִי וְלֹא רָעָב וְלֹא כַּיּוֹצֵא בּוֹ הֲרֵי זוֹ טַעֲנַת בְּתוּלִים. וְאַף עַל פִּי שֶׁמָּצָא דֹּחַק בְּעֵת תַּשְׁמִישׁ הוֹאִיל וְלֹא יָצָא דָּם אֵין כָּאן בְּתוּלִים. שֶׁכָּל בְּתוּלָה יֵשׁ לָהּ דָּם בֵּין קְטַנָּה בֵּין גְּדוֹלָה בֵּין נַעֲרָה בֵּין בּוֹגֶרֶת אֶלָּא מִפְּנֵי הַחלִי כְּמוֹ שֶׁבֵּאַרְנוּ. וְאִם אָמַר מִפְּנֵי שֶׁלֹּא מָצָאתִי דֹּחַק אֶלָּא פֶּתַח פָּתוּחַ מָצָאתִי שׁוֹאֲלִין עַל שְׁנוֹתֶיהָ שֶׁמָּא בּוֹגֶרֶת הִיא שֶׁרֹב הַבּוֹגְרוֹת אֵין לָהֶן דֹּחַק שֶׁמַּרְגִּישִׁין בּוֹ הַרְבֵּה שֶׁהֲרֵי גָּדְלָה וְנִתְרַפּוּ אֵיבָרֶיהָ וְכָלוּ בְּתוּלֶיהָ. וְאִם לֹא בָּגְרָה עֲדַיִן אוֹמְרִין לוֹ שֶׁמָּא הִטֵּיתָה אוֹ בָּעַלְתָּ בְּנַחַת וּלְפִיכָךְ לֹא הִרְגַּשְׁתָּ בַּדֹּחַק. אִם אָמַר לֹא כִּי אֶלָּא וַדַּאי פֶּתַח פָּתוּחַ הָיָה הֲרֵי זוֹ טַעֲנַת בְּתוּלִים לְכָל בְּתוּלָה שֶׁלֹּא בָּגְרָה בֵּין קְטַנָּה בֵּין נַעֲרָה בֵּין בְּרִיאָה בֵּין חוֹלָה שֶׁכָּל נַעֲרָה בְּתוּלָה פִּתְחָהּ סָתוּם הוּא. וְאַף עַל פִּי שֶׁיָּצָא הַדָּם הוֹאִיל וּמָצָא פֶּתַח פָּתוּחַ אֵין כָּאן בְּתוּלִים:

13

There are geonim who rule that for a bogeret, the claim that she did not have hymenal bleeding is not valid, but the claim that her vaginal channel was open is valid. This does not appear [to be based on the proper text of] the Talmud. They had inaccurate versions of the text. I have investigated many texts, including those of an early era,27 and I have discovered the version to be as I ruled. For a bogeret, the only valid claim is [that she did not manifest] hymenal bleeding.28

יג

יֵשׁ גְּאוֹנִים שֶׁהוֹרוּ שֶׁהַבּוֹגֶרֶת אֵין לָהּ טַעֲנַת דָּמִים וְיֵשׁ לָהּ טַעֲנַת פֶּתַח פָּתוּחַ. וְאֵין דֶּרֶךְ הַגְּמָרָא מַרְאָה דָּבָר זֶה וְטָעוּת הָיָה בַּנֻּסְחָאוֹת שֶׁלָּהֶם. וּכְבָר בָּדַקְתִּי עַל סְפָרִים רַבִּים וְקַדְמוֹנִים וּמָצָאתִי שֶׁהַדָּבָר כְּמוֹ שֶׁבֵּאַרְנוּ שֶׁאֵין לְבוֹגֶרֶת אֶלָּא טַעֲנַת דָּמִים בִּלְבַד:

14

Our Sages were those who instituted the fundamental requirement of a marriage contract for a woman and they also instituted [the following consideration]: Whenever [a man] makes a claim that his wife was not a virgin, and the woman disputes his claim, [the husband's claim] is accepted. It is the woman's responsibility to bring support for her claim, not the man's. [The rationale is] that we assume that a man will not labor to prepare a [wedding] feast and then mar it, turning his celebration into mourning.29

יד

חֲכָמִים הֵם שֶׁתִּקְּנוּ עִקַּר כְּתֻבָּה לְאִשָּׁה וְהֵם הִתְקִינוּ וְאָמְרוּ שֶׁכָּל הַטּוֹעֵן טַעֲנַת בְּתוּלִים וְהָאִשָּׁה מַכְחֶשֶׁת אוֹתוֹ נֶאֱמָן וְעָלֶיהָ לְהָבִיא רְאָיָה לֹא עַל הָאִישׁ. שֶׁחֲזָקָה הִיא שֶׁאֵין אָדָם טוֹרֵחַ בִּסְעֻדָּה וּמַפְסִידָהּ וְהוֹפֵךְ שִׂמְחָתוֹ אֵבֶל:

15

Until when may a husband issue a claim denying his wife's virginity? If [the couple] went into privacy, only immediately [thereafter].30 If they did not enter into privacy, he has this option even after 30 days.

טו

וְעַד מָתַי יֵשׁ לוֹ לִטְעֹן טַעֲנַת בְּתוּלִים. אִם נִסְתְּרָה מִיָּד. וְאִם לֹא נִסְתְּרָה אֲפִלּוּ לְאַחַר שְׁלֹשִׁים יוֹם:

16

All the geonim have ruled that our Sages' statement that the husband's statements are accepted even though his wife disputes his claim applies only with regard to nullifying the obligation for the fundamental requirement of the marriage contract. Nevertheless, the woman is entitled to the additional amount [to which her husband committed himself]31 unless there is clear proof that she was not a virgin, or she admitted that she was not a virgin before she was consecrated and that she deceived him.

Therefore, [the husband] may require her to take an oath while holding a sacred article,32 as must be done by all others who must take oaths before they collect [the money due them].33 Afterwards, she may collect the additional sum.

She, by contrast, does not have the option of requiring him to take an oath that he did not discover her to be a virgin, before she must forfeit the fundamental requirement of the marriage contract, for it is a presumption accepted as fact that a person will not labor to prepare a [wedding] feast and then mar it. She may, however, have a ban of ostracism issued conditionally, applying to anyone who lodges false claims against her.

טז

הוֹרוּ כָּל הַגְּאוֹנִים שֶׁזֶּה שֶׁאָמְרוּ חֲכָמִים שֶׁהוּא נֶאֱמָן אִם הִכְחִישָׁתוֹ אִשְׁתּוֹ. לְהַפְסִידָהּ עִקַּר הַכְּתֻבָּה. אֲבָל הַתּוֹסֶפֶת יֵשׁ לָהּ. אֶלָּא אִם כֵּן נוֹדַע בִּרְאָיָה בְּרוּרָה שֶׁהָיְתָה בְּעוּלָה אוֹ שֶׁהוֹדְתָה לוֹ שֶׁהִיא בְּעוּלָה קֹדֶם שֶׁתִּתְאָרֵס וְהִטְעַתּוּ. לְפִיכָךְ יֵשׁ לוֹ לְהַשְׁבִּיעָהּ בִּנְקִיטַת חֵפֶץ כְּדִין כָּל הַנִּשְׁבָּעִין וְנוֹטְלִין וְאַחַר כָּךְ תִּגְבֶּה הַתּוֹסֶפֶת. וְאֵין לָהּ לְהַשְׁבִּיעוֹ שֶׁלֹּא מְצָאָהּ בְּתוּלָה וְאַחַר כָּךְ תַּפְסִיד עִקַּר כְּתֻבָּה שֶׁחֲזָקָה הִיא שֶׁאֵין אָדָם טוֹרֵחַ בִּסְעֵדָּה וּמַפְסִידָהּ. וְיֵשׁ לָהּ לְהַחֲרִים סְתָם עַל מִי שֶׁטָּעַן עָלֶיהָ שֶׁקֶר:

17

If [the husband] desires to remain married to [his wife] after causing her to forfeit the fundamental requirement of the marriage contract, he must write her [a new ketubah for] 100 [zuz]. For it is forbidden for a man to live with his wife for even one moment without a ketubah, as we have explained.34

יז

הֲרֵי שֶׁרָצָה לְקַיְּמָהּ אַחַר שֶׁהִפְסִידָה עִקַּר הַכְּתֻבָּה חוֹזֵר וְכוֹתֵב לָהּ מֵאָה. לְפִי שֶׁאָסוּר לָאָדָם לִשְׁהוֹת עִם אִשְׁתּוֹ שָׁעָה אַחַת בְּלֹא כְּתֻבָּה כְּמוֹ שֶׁבֵּאַרְנוּ:

Footnotes
1.

I.e., the woman had been consecrated or wed, but before she and her husband engaged in marital relations, she was either widowed or divorced.

2.

Even if there are witnesses to the fact that her husband died directly after they entered the chuppah (Ketubot 11a).

3.

The rationale is that even if a woman engaged in sexual relations before the age of three, her hymen will grow back, as stated in Halachah 3, based on Ketubot 11b.

4.

Literally, "one struck by a piece of wood," a woman who claims that she did not have hymenal bleeding at the time of her first sexual experience, because she had previously been "struck by a piece of wood" and caused to bleed at that time. As mentioned in Halachah 10, the term is used to refer to any woman who claims that her failure to have hymenal bleeding resulted from causes other than intercourse.

5.

Although one might think that the marriage would be annulled, because the husband was operating under a misconception (מקח טעות), Ketubot 11b rules that this is not so. As long as she had not engaged in sexual relations previously, their marriage is binding.

6.

The Shulchan Aruch (Even HaEzer 67:4) follows the ruling of Tosafot, Ketubot 11b, who explain that this law applies only when the woman's hymen remains intact despite these relations.

7.

This point is necessary to mention because of the factors stated in Halachah 12.

8.

Ketubot 36b explains that we are afraid that such a woman might have suffered hymenal bleeding from causes other than intercourse, but will not have noticed the fact.

9.

Rashi (Ketubot 36a) explains that since an aylonit is considered a bogeret, this point must be clarified, as it must with regard to a bogeret. The above ruling applies only when the husband was aware that the woman was an aylonit. If he was not aware of that fact, the woman is not entitled to a ketubah at all, as explained in Chapter 24, Halachah 2.

10.

Even if she was a virgin at the time of their original marriage, at present she is not a virgin.

11.

I.e., a marriage between a mentally incompetent man and an ordinary woman will constantly be pained by strife and will not last. In contrast, a deaf mute is more passive, and his household will not necessarily be characterized by friction (Yevamot 112b).

12.

This refers to a girl who has been orphaned of her father, or who was divorced after being wed. The Torah - and not our Sages - gives a father the right to consecrate his daughter before she becomes a na'arah.

13.

If the girl remains unmarried, the prohibitions against relations with her are not as severe, and the Sages feared that they would not be upheld. If she were allowed to marry, the prohibition against adultery would be respected, and she would be treated differently. Moreover, her husband will guard against her association with other men.

14.

I.e., only the fundamental requirements of the ketubah, but not any additional amount that the youth added to the marriage contract, unless he renews that commitment after he reaches majority. Otherwise, that commitment - like any commitment made by a minor - is of no substance. Moreover, he is obligated for the fundamental requirement of the ketubah only when he engaged in marital relations with his wife after he attained majority. If not, the marriage - and thus the marriage contract - is of no consequence.

With regard to the fundamental requirements of the ketubah, the Rambam writes in his Commentary on the Mishnah (Ketubot 9:8) that she is entitled to either 200 or 100 zuz, depending on her status at the time of the wedding.

15.

Rabbenu Asher differs and maintains that the laws applying to a convert are the same as those applying to a minor. Both opinions are alluded to by the Shulchan Aruch (Even HaEzer 67:11). (See the Beit Shmuel 67:12, which explains the Rambam's position: Even if a convert made a commitment of more than 100 zuz to his wife, any sum above 100 zuz is considered to be an addition to the ketubah and is therefore no longer binding when the convert accepts his new status as a Jew.)

16.

I.e., even a woman who was widowed after the wedding, before engaging in relations with her husband. Even though her second husband marries her under the impression that she is a virgin, there is no possibility of issuing such a claim against her.

17.

The obligation to grant a virgin bride a ketubah of 200 zuz is Rabbinic in origin. At the same time that our Sages instituted that obligation, they granted the husband a safeguard: that his word would be accepted with regard to a claim denying the woman's virginity. In these instances, since the woman was not granted the additional money, the safeguard provided by the Sages also does not apply (Maggid Mishneh).

18.

We suspect that the groom had relations with her and later forgot the matter (Rashi, Ketubot 9b). See also note 30.

19.

As stated in the following halachot, unless there are other factors that support the woman's position, as will be explained, the husband's claim is accepted. We assume that the husband would not go to the time and expense of preparing a wedding feast and then mar the celebration by denying his wife's virginity unless the claim were true (Ketubot 10a).

20.

Unless there are witnesses who can testify that the woman engaged in relations previously, the only question before the court is the amount of the woman's ketubah. She is permitted to remain married to her husband, because there is no proof that she willingly engaged in sexual relations with another person after she was consecrated. (See Hilchot Issurei Bi'ah 18:10.)

An exception to the above is a woman married to a priest. Issuing a claim questioning her virginity places the entire foundation of their marriage in doubt.

21.

I.e., the husband claims that he has entered into a mekach ta'ut, an agreement based on false premises. He had desired to marry a virgin, and he was not prepared to marry a woman who had had relations with another man. Therefore, he desires to have the marriage annulled entirely.

22.

I.e., he is not certain that she had engaged in relations with another man. In all matters of Torah law, whenever one person has a claim that is absolute (bari, in this instance the woman's claim that her hymen was damaged by factors other than intercourse) and one that is not absolute (shema, the man's claim), the claim that is absolute is accepted.

23.

Since she was raped against her will, she is not forced to suffer a loss and is entitled to the full amount of the ketubah.

24.

The intent is not that witnesses should observe the couple engaging in relations. This is forbidden, as stated in Chapter 14, Halachah 16. Instead, the intent is that they should inspect the sheet before and after the couple engage in relations for signs of hymenal bleeding.

25.

Other authorities (and their opinion is quoted in the Shulchan Aruch, Even HaEzer 68:6) state: "Maybe you did not enter gently?" - i.e., because of the husband's hurry to complete the sexual act, he did not feel the tightness.

The Ramah (loc. cit.) quotes the opinion of Rabbenu Asher, who states that the claim: "I discovered an open passageway," can be made only by a man who has been married before. If he was not married before, he would not have the experience to know the difference between virginal tightness and a non-virgin's state.

26.

The Ramban and the Rashba state that the claim that the woman's vaginal channel was open can be made only in an instance in which the sheet on which the couple had relations was lost. If, however, the sheet is available, it should be inspected. If it has signs of blood, she is considered a virgin; and if not, she is not. This opinion is mentioned in the Shulchan Aruch (loc. cit.), but does not appear to have been accepted.

27.

See Hilchot Malveh V'Loveh 15:2, where the Rambam states that he had available texts of the Talmud that were almost 500 years old. These would have been written approximately 200 years after the time of the Talmud's composition.

28.

The Rambam's ruling is substantiated by our text of the Talmud (Ketubot 36b) and the ruling of the Shulchan Aruch (Even HaEzer 68:3). The differing opinion mentioned by the Rambam is that of Rabbenu Chanan'el.

29.

Based on this rationale, the Maggid Mishneh mentions opinions that state that the man's word is accepted only when he prepared the wedding feast. If he did not, the woman's word is accepted.

30.

We assume that the couple had relations and he discovered her to be a virgin. The fact that he issued a claim against her afterwards stemmed from discontent for other reasons, without any connection to her personal state.

31.

Although there are authorities (among them Rabbenu Asher) who offer reasons why the husband's word should be accepted in this instance as well, the prevailing view (and the ruling of the Shulchan Aruch, Even HaEzer 68:8) follows the Rambam's decision. The rationale is that the fundamental requirement of the marriage contract is a Rabbinic injunction, and the same authority that obligated the husband to meet this requirement rescinded it when he lodged a claim denying her virginity. The additional amount, by contrast, is a present to which the husband voluntarily obligated himself, and that obligation may be nullified only if it is proven that it was made under false premises.

32.

See Hilchot Sh'vuot 11:8, which states that such an oath is administered while the person is holding a Torah scroll. Significantly, the Rambam's ruling here represents a change of mind from his statements in his Commentary on the Mishnah (Ketubot 1:3), where he states that in such a situation the woman is required to take merely a sh'vuat hesset, a less severe oath.

33.

I.e., the situation is analogous to a person who holds a promissory note and may be asked to take an oath that it is valid before he can collect it, as explained in Hilchot Malveh V'Loveh 14:2-3.

34.

Chapter 10, Halachah 10.

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The Mishneh Torah was the Rambam's (Rabbi Moses ben Maimon) magnum opus, a work spanning hundreds of chapters and describing all of the laws mentioned in the Torah. To this day it is the only work that details all of Jewish observance, including those laws which are only applicable when the Holy Temple is in place. Participating in one of the annual study cycles of these laws (3 chapters/day, 1 chapter/day, or Sefer Hamitzvot) is a way we can play a small but essential part in rebuilding the final Temple.
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