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Laws of Marriage (Hilchot Ishut) – Chapter 25: Mistaken Transaction in Marriage (Vows and Blemishes)

Introduction to the Final Chapter of Hilchot Ishut

⟦#1⟧ R’ Yitzchok: Good day. We are learning the holy Torah, *Hilchot Ishut* (the Laws of Marriage), the final chapter.

R’ Yoel Asher: The final chapter of the laws of *ketubot* (marriage contracts).

R’ Yitzchok: Yes, *ketubot* and *ketubot*.

R’ Yoel Asher: *Hilchot Ishut* included *kiddushin* (betrothal) and the *ketubah* (marriage contract). And that’s what it discusses; it’s basically Tractate *Kiddushin* and Tractate *Ketubot* that make up *Hilchot Ishut*. This is the final chapter of *Hilchot Ishut*, and we are finishing the laws of the *ketubah*.

We want to thank those who support our shiur and spread our shiur, and above all our distinguished friend, the sponsor of the shiur (*machzik ha-shiur*), R’ Yoel HaLevi Werberger. May the merit of the Torah stand by him in everything.

R’ Yitzchok: And now that we’re finishing, we’re going to start a new section of laws, so everyone should get ready, whoever is part of the learning, for *Hilchot Gerushin* (the Laws of Divorce).

R’ Yoel Asher: It’s very relevant. Well, not so relevant, there are things that are more relevant, but it’s good Torah. It’s Torah, and Torah is necessary learning. Okay, it’s just as relevant as *ketubot* and all the other laws.

R’ Yitzchok: Relevant for, like everything, relevant for the general picture of how halacha works, not to know when to get divorced. That you should ask the rebbes.

R’ Yoel Asher: The rabbis. Yes, the Rambam is not a practical guide for what to do.

The Topic of the Chapter: Mistaken Transaction Regarding the Ketubah and Kiddushin

⟦#2⟧ R’ Yitzchok: Alright, so this is the final chapter. In the last few, really two or three chapters, we discussed which woman has a *ketubah*. That is, we learned all kinds of laws of the *ketubah*, the details, how one collects it, etc., and afterwards there are laws about people who don’t have a *ketubah*. Now we’re going to learn mainly two more — really one, with details within it — one type of woman who has no *ketubah*: meaning, the man got married and it turned out she isn’t the kind of woman he thought.

R’ Yoel Asher: So I would say a bit that, since we remember that the *ketubah* is part of giving legitimacy and strength to the marriage so that the couple will stay married — when it isn’t meant for them to stay married, meaning when he has to divorce her — as we had in the previous chapter, various situations where he has to divorce her because she committed adultery, or because she is a bad woman, *overet al dat Yehudit* (one who transgresses Jewish practice) — then there’s no *ketubah*. Here we are going to learn about another reason there’s no *ketubah*: because the match was never a good match. For example, the match was a question of a *mekach ta’ut* (mistaken transaction); it’s not clear he actually wanted this match.

R’ Yitzchok: Let’s get into it. And we need to preface that really all these laws, the laws of mistaken transaction, and really in *Hilchot Ishut*…

R’ Yoel Asher: In *Hilchot Kiddushin* there was already the topic of mistaken transaction: how do we know whether the *kiddushin* is a valid *kiddushin*, or should we say that had the husband known, it wouldn’t have been *kiddushin*? We learned in Chapter 7 that when a man takes a woman whom we think normal people wouldn’t want to live with, the *kiddushin* is still not void, because perhaps he did want it. So in many cases it becomes a *safek kiddushin* (doubtful betrothal). Meaning, would we tell him to perform *kiddushin* again? No.

R’ Yitzchok: So the Rambam didn’t say to arrange the *kiddushin* again — I don’t know why, we discussed it back there. What we learned there, mainly in Chapter 7, the Rambam actually spoke about the laws of vows and blemishes that we are going to learn now. There it was mainly taught about when one explicitly says *”al menat”* (on condition that), so then, okay, when one explicitly says “on condition,” there’s no question.

R’ Yoel Asher: Then it said simply, but we think everyone intends “on condition”; by default it’s “on condition.” You don’t want a woman with blemishes and the like.

R’ Yitzchok: What it is, you know, you want a normal woman. The Rambam ruled, already in Chapter 7 he ruled, that she doesn’t have a *ketubah*, and here we will learn the details of who does have a *ketubah* and who doesn’t. But a *get* (bill of divorce) is required, the Rambam says, out of doubt, because it seems that doubt means a doubt in halacha. It could be that we don’t know whether really every person who marries intends, as it were, to make an implicit condition of no blemishes and no vows, or not. There’s an argument this way and an argument that way. Therefore, regarding the *ketubah*, certainly, as with *ha-motzi me-chavero* (the burden of proof is on the one seeking to extract money from another), it’s a mistaken transaction — with respect to the *ketubah* it’s called a mistaken transaction — but with respect to *kiddushin*, with respect to the *get*, we tell him to give a *get*. But here we’re learning the topic of the *ketubah*.

—

Halacha 1: A Woman Who Has Vows Upon Herself

⟦#3⟧ R’ Yoel Asher: The Rambam says as follows: *”Ha-nose ishah stam”* (“One who marries a woman without stipulation”) — a person marries a woman without making a condition — *”ve-nimtze’u aleha nedarim”* (“and vows are found upon her”) — it turns out she is a woman who made vows; she restricted herself, she limited herself with vows upon herself. She’s such a pious one — things the Torah permits, but she forbids them to herself — the halacha is: *”tetze be-lo ketubah”* (“she leaves without a *ketubah*”). A man doesn’t want a woman who makes vows. The Gemara says: *”I efshi be-ishah nadranit”* (“I do not want a woman who makes vows”).

R’ Yitzchok: “A woman who makes vows” is said about other things; it’s said about vows. Here we’re talking about simply she holds…

R’ Yoel Asher: Constantly making vows. Okay, he didn’t sign up for a woman who’s going to pull stunts with making vows, so *”tetze be-lo ketubah”* — he can give her a *get* without a *ketubah*, *”lo ikar”* — he doesn’t have to give the principal sum of the *ketubah*, *”ve-lo tosefet”* — nor the additional sum of the *ketubah*. The Rambam says: which kinds of vows are we talking about?

R’ Yitzchok: *”Nimtze’u aleha”* (“are found upon her”) means she already had them from before, right? That’s clear. Because if she simply made them then, he can…

R’ Yoel Asher: He can annul them.

R’ Yitzchok: Which vows?

R’ Yoel Asher: *”Be-eilu nedarim amru”* (“Regarding which vows did they say this?”) — for which kinds of vows did the Sages state this halacha? The Rambam explains that it’s vows by which she restricts herself, she afflicts herself: *”al neder shelo tochal basar, o shelo tishteh yayin, o shelo titkashet be-minei tziv’onim”* (“a vow that she won’t eat meat, or won’t drink wine, or won’t adorn herself with colored garments”) — she won’t wear nice clothes. *”Ve-hu ha-din li-she’ar ha-minim she-derech kol anshei ha-makom”* (“and the same applies to other kinds that are the custom of all the people of the place”) — not specifically colored garments, but whatever it is normally accepted that women dress nicely in, and she makes vows against it. For all these things, we say that the husband doesn’t want to live with a woman who afflicts herself, a woman who is too holy.

R’ Yitzchok: He wants a woman for this world.

R’ Yoel Asher: For rebbes — to give *kvitlach* (petition notes) he goes to rebbes who make such holy vows. A wife he wants down to earth. Okay.

*”Aval im nimtza aleha neder acher chutz me-eilu”* (“But if another vow aside from these is found upon her”) — the Rambam says, the fact that she loses her *ketubah* is specifically with these vows, but other vows, *”lo hifsidah klum”* (“she has lost nothing”) — she has lost nothing, he didn’t exclude that or whatever. *”Lo hifsidah klum”*, she still receives her *ketubah*. If he wants to give her a *get*…

R’ Yitzchok: He must give her her *ketubah*. These are called vows that don’t involve self-affliction. Simply making a vow that she won’t pick flowers on Shabbos morning, I don’t know, random things. Okay. He can make a vow about such kinds of things, and in general.

R’ Yoel Asher: Right, right. So again, all these women he’ll have to give a *get*, because we assume she is betrothed out of doubt; we need a *get*, but *”tetze be-lo ketubah”* for those, as we said.

—

Halacha 2: A Woman Who Has Blemishes

⟦#4⟧ R’ Yoel Asher: Alright, the Rambam says: *”Ve-chen ha-kones ishah stam”* (“And likewise one who marries a woman without stipulation”) — if someone marries a woman without stipulation, again without “on condition,” not that he said “on condition that there are no vows,” but simply takes a woman. *”Ve-nimtza bah mum”* (“and a blemish is found in her”) — a blemish was found *”mi-mumei nashim she-kevar be’arnum”* (“among the blemishes of women that we have already explained”) — one of the blemishes of women that the Rambam enumerated in Chapter 7 or 8. What are the blemishes of women? The Rambam said there that they are all the blemishes stated regarding *kohanim* (priests), plus additional things having to do with the visual, the way a woman looks. They went into details there, things that make her unattractive.

*”Ve-lo yada ha-ba’al be-mum zeh”* (“and the husband did not know of this blemish”) — the husband didn’t know of the blemish, *”ve-lo shama bo ve-ratzah”* (“nor did he hear of it and accept it”) — and it’s not the case that he heard she has this blemish and he wanted her anyway; rather he said, I didn’t want this. But in practice he made no condition, so the same halacha remains, that she is betrothed out of doubt. But regarding the *ketubah* it’s also the same thing: *”harei zo tetze be-lo ketubah, lo ikar ve-lo tosefet”* (“she leaves without a *ketubah*, neither principal nor addition”), because he can claim — after all, he’s the one money is being extracted from — he can claim: I would never have agreed to such a match. Meaning, although regarding the *get* we were stringent with him, regarding having to pay, he can make his claim, his *ta’anat bari* (claim of certainty), whatever — his argument that he didn’t want the match — therefore there’s no *ketubah*, neither principal nor addition.

The Presumption of “He Checks Through His Female Relatives”

R’ Yitzchok: Now we need to know, though, what does *”ve-lo yada”* (“and he did not know”) mean? Yes, that’s the next halacha, right? It means only if he knew of the blemish, then he can no longer claim…

R’ Yoel Asher: It says, *”ve-lo shama bo ve-ratzah”*. If he heard or knew, he agreed to it with that knowledge.

R’ Yitzchok: So now various details come out of this.

R’ Yoel Asher: But “knew”…

R’ Yitzchok: So how do you prove that he knew? “Knew” means they sent him a résumé stating this — that’s certainly not a doubt. We’re talking about where it’s not known, it’s all unspecified.

R’ Yoel Asher: So now we go into a list: what happens when the husband says he didn’t know, and she claims, or someone claims on her behalf, that you did know and accepted it?

R’ Yitzchok: But with “did know,” what we’re about to learn is basically like a *chazakah* (legal presumption) that he knew. There are cases where he saw the woman, she walks around limping.

R’ Yoel Asher: What do you mean you didn’t see that she limps? You can’t say that. Therefore the Rambam says: *”Keitzad”* (“How so?”) — how do we know, how can we figure out whether the husband did or didn’t know or hear? The Rambam says: *”hayah merchatz ba-ir”* (“if there was a bathhouse in the city”) — if in the city where they live there is a bathhouse, *”ve-hayu lo krovim”* (“and he had relatives”) — he has relatives who go to that bathhouse, *”eino yachol lomar lo yadati mumin elu”* (“he cannot say, ‘I did not know of these blemishes'”) — he can’t say he didn’t know of the blemishes, *”va-afilu mumin she-ba-seter”* (“even hidden blemishes”). Meaning, a visible blemish it’s obvious he saw and accepted. But hidden blemishes, he could say he didn’t know. But regarding these things there’s a rule: *”mipnei she-hu bodek bi-krovotav”* (“because he checks through his female relatives”). We state a rule that in a place where there’s a bathhouse, that’s the place where the busybodies check people out so they’ll know even hidden things. An interesting rule, that a man checks through his female relatives, *”ve-chazakah she-shama ve-ratzah”* (“and it is presumed that he heard and accepted”). Meaning…

R’ Yitzchok: A normal person who marries a woman wants to know whether she has blemishes. He needs to know whether somewhere under her… her nose, whether it’s… — her nose he can see — but the hidden things, he needs to check whether she looks normal. So that’s clear. I mean, people make inquiries…

R’ Yoel Asher: We’re talking without “on condition,” right?

R’ Yitzchok: Obviously, yes, that’s what we’re talking about. So now the problem is just how do you ask? Because he can’t tell her to undress. But there’s a bathhouse, so he calls up his aunt who goes to the same bathhouse and says: “Check out this girl, tell me if she looks normal.” And that’s the normal way people make matches. Therefore you can’t say he didn’t hear. But *”ve-im ein sham”* (“but if there is no”)…

R’ Yoel Asher: *”merchatz o shelo hayu lo krovim”* (“bathhouse, or he had no relatives”) — then he can claim *”be-mumin she-ba-seter”* (“regarding hidden blemishes”), that had I known I would…

R’ Yitzchok: …not have married, therefore I’m not giving a *ketubah*.

R’ Yoel Asher: But I don’t understand — can’t he also object to the rule of “he checks through his female relatives”? He says, he tells her: “I swear by the Creator, I didn’t ask my female relatives.”

R’ Yitzchok: No.

R’ Yoel Asher: It’s a rule that people ask female relatives.

R’ Yitzchok: Yes, yes. Meaning, people make inquiries, people make matches. A person doesn’t make a match blindly.

R’ Yoel Asher: Well, well, yes, a bit interesting. Interesting that Chazal (our Sages) based it on such a presumption.

⟦#5⟧ R’ Yitzchok: I think it’s normal. I don’t see why it’s a novelty.

R’ Yoel Asher: The Rambam says: *”Ve-nichpeh be-itim yedu’im”* (“And one who is seized at set times”).

R’ Yitzchok: I think that in fact maybe one doesn’t check at the bathhouse. If a woman has some — a blemish means some blemish…

R’ Yoel Asher: A problem. Okay, fine, I mean to say the bathhouse is an example: if here she has issues that her friends would know about…

R’ Yitzchok: Exactly, it would come up in the inquiries. Very good. For example today — I don’t know if it’s relevant today, since the *ketubah* isn’t a current topic today — but for example, here we’re talking about physical blemishes. By the way…

R’ Yoel Asher: We’re going to talk about psychological things soon. Yes.

R’ Yitzchok: He’s going to say it. But I’m saying, someone has a physical blemish — you’d imagine a matchmaker would need to know. Sometimes not, so here it depends on the… In short, that’s the rule.

The Law of “Nichpeh” (One Subject to Seizures)

R’ Yoel Asher: The Rambam says: *”Ve-nichpeh be-itim yedu’im”* — a woman who has an illness where at set times she is seized. Usually this means a physical thing, like having seizures, epilepsy, *choli nofel* (the falling sickness). But I see he brings it from the *Perush HaMishnayot* (the Rambam’s Commentary on the Mishnah).

R’ Yitzchok: *Nichpeh* means a…

R’ Yoel Asher: That *nichpeh* can also mean psychological — that from time to time she goes crazy, she’s bipolar, she has periods when she’s crazy. I don’t know, it doesn’t really say that here: “and *nichpeh* is the falling sickness”…

R’ Yitzchok: That’s called epilepsy, no?

Hidden Blemishes, Seizures at Set Times, and Visible Blemishes

R’ Yitzchok: If a woman has some — it means some blemish.

R’ Yoel Asher: It’s some problem. Okay, it means to say the bathhouse is such an example: if she already has issues that her friends would know about,

R’ Yitzchok: The information would have come up. Very good. For example today — I don’t know if it’s relevant regarding the *ketubah*, it’s not a current topic today — but for example, here we’re talking about physical blemishes,

R’ Yoel Asher: Generally he’s going to say it.

R’ Yitzchok: Yes, he’s going to say it. But I’m saying, someone has a physical blemish — one would imagine a matchmaker would need to know, sometimes not, so you depend on the… in short, that’s the rule. I don’t know if it applies.

R’ Yoel Asher: So he continues: *ve-nichpeh be-itim yedu’im* — a woman who has an illness where at set times she is seized. Usually this means a physical thing, like having seizures, epilepsy, the falling sickness, but I see he brings from,

R’ Yitzchok: From,

R’ Yoel Asher: He brings it from the Commentary on the Mishnah, that *nichpeh* can also mean psychological — that from time to time she goes crazy, she’s bipolar, she has periods when she’s crazy. Okay, I don’t know, it doesn’t really say that here.

R’ Yitzchok: *Nichpeh* — the falling sickness, yes. So it means if it’s constant, then it’s visible, but “at set times” means it happens every so often. “At set times” doesn’t mean it has a schedule, right? “At set times” means to say not constantly.

R’ Yoel Asher: Yes, so *harei hi* (“it is”) also *mi-mumei seter* (“among the hidden blemishes”), meaning hidden blemishes where he can claim, I didn’t know it happens sometimes. Something that happens often, one would have to know, but something that happens only at set times is among the hidden blemishes.

R’ Yitzchok: Meaning — it’s interesting — the Gemara says *nichpeh* specifically *kavu’a lah zman* (“it has a fixed time”) is called a hidden blemish. If it doesn’t have a fixed time,

R’ Yoel Asher: Meaning to say it happens constantly.

R’ Yitzchok: It happens constantly, right. Very good, then he should have been able to see it, very good, or other people would have seen it, whatever, yes. He knew.

R’ Yoel Asher: Very good. Oh, there’s another — he says here something like that it’s also a fit of madness, whatever, I don’t know what he means.

R’ Yitzchok: That’s just people who have,

R’ Yoel Asher: No, okay.

R’ Yitzchok: No, it doesn’t explicitly say psychological here.

R’ Yoel Asher: But simple things, that,

R’ Yitzchok: It’s also called a hidden blemish.

R’ Yoel Asher: Generally the question comes up much more, it generally comes up much more with psychological problems.

R’ Yitzchok: But it could be correct that it’s a hidden blemish — meaning, if it’s something that happens every day and one takes pills,

R’ Yoel Asher: Or one has to know, in short. All these things apply to hidden blemishes (*mumin shebaseter*). But regarding visible blemishes (*mumin shebegalui*), say she has a blemish on her nose, he cannot claim that a month after the wedding he realized, “I found out she has a blemish on her nose.” Hello? He cannot make the claim, for everyone sees them and tells him. Even, what does that mean? Even if he hadn’t seen her yet, yes? She arrives at the wedding, yes? He sent the betrothal (*kiddushin*) through an agent, or I don’t know what.

R’ Yitzchak: But the people in the town have seen her.

R’ Yoel Asher: And the presumption (*chazaka*) is that he heard and was reconciled to it, that he did hear what was going on.

The Mitzvah of “Until He Sees Her” Regarding Visible Blemishes

R’ Yitzchak: We’ll see in the next halacha; from all these halachos it’s clear that he didn’t see her. If he himself had seen her, if there’s a picture from the engagement, you see what she looks like, then obviously there’s no question. Here we’re always talking about a case where he didn’t fulfill the halacha of “until he sees her” (*ad sheyirenah*). But the town knows; someone would have told him, it can’t be otherwise. The Rambam says an interesting chiddush. I don’t know if it’s obvious, but it’s interesting information. Yes? It is a well-known matter,

R’ Yoel Asher: It’s interesting, because the mitzvah is to betroth only after seeing her, lest he see something repulsive in her and she become repugnant to him. What is he talking about here? About that. Fine, but why would it even be necessary, if we’re saying that a person asks a close person anyway? Okay.

R’ Yitzchak: I don’t know. That’s exactly why the question arises later: there was a hidden blemish. Go talk to her normally, talk, see her yourself, and you won’t have these questions. Yes, you can’t go into the bathhouse.

—

The Halacha According to Local Custom: The Lands of Edom Versus Other Places

R’ Yoel Asher: But yes, okay. It is a well-known matter, says the Rambam, that this law does not apply, the halacha that even with visible blemishes,

R’ Yitzchak: That there is a distinction between blemishes,

R’ Yoel Asher: On the nose versus on the stomach, applies only in places where there was a distinction between the nose and the stomach, where the nose was uncovered. It is a well-known matter that this law applies only in those places where the custom of the women was to walk in the marketplace with their faces uncovered. In those places, in the European places, in the land of Edom,

R’ Yitzchak: The Rambam is going to say it here. Where people go,

R’ Yoel Asher: Not covered up with burkas or whatever they’re called, yes. That is, but the Rambam says “was”, meaning that also in the time of Chazal, the Mishna that speaks this way, it seems that was their custom. And everyone knows them and says, “This is the daughter of so-and-so.” People know a woman; women aren’t covered up in garbage bags, rather they’re seen, and people say “This is the daughter of so-and-so, and this is the sister of so-and-so.” Also, “everyone” means,

R’ Yitzchak: Apparently the men too.

R’ Yoel Asher: Yes.

R’ Yitzchak: The men know them; they’ll tell him. Meaning, you walk around town: “I’m marrying Rivka.” “Aha! Rivka who limps.” Every normal person would have known, because that’s normal. Like the cities of Edom in our time. The cities of Edom means, yes, they were talking about Christendom, right?

R’ Yoel Asher: Or Europe. Right. European countries.

R’ Yitzchak: But places where it is not the custom of the girls,

R’ Yoel Asher: To go out to the marketplace at all. Aha. Places where women don’t go out into the street at all.

R’ Yitzchak: And if the daughter goes out to the bathhouse at dusk, she goes out disguised. That’s how I think it should be translated. She goes at night,

R’ Yoel Asher: If she does go somewhere, she’ll conceal herself. If she goes to the bathhouse, she’ll go at night when no one is there. And no one will see her except her relatives; she’ll make sure to go only with her close relatives if she goes. Then he can claim even regarding visible blemishes; he can make a claim about all blemishes. Aha. Actually, he doesn’t specifically mean the bathhouse here; he’s in the middle of talking about the bathhouse. He’s saying that if she goes out anyway, she’ll go only with her close relatives. Apparently. The bathhouse isn’t relevant here; we’re not talking here about hidden blemishes. Everything is just like hidden blemishes.

R’ Yitzchak: Okay.

R’ Yoel Asher: He can claim even regarding visible blemishes. Interesting. He can claim even visible blemishes, since “I only saw her under the…”

R’ Yitzchak: He didn’t see her; he’s talking about other people. The street. Right. Here the Rambam means to say that the street doesn’t know what Rivka bas Yaakov looks like. Right. It doesn’t know what she looks like, because people walk in the street with covered faces. Sometimes you go, maybe at the bathhouse you don’t go with a covered face, you only go at night. Whatever it is, women don’t circulate, so then he can make the claim. The Rambam apparently means that this was the custom in his time.

Discussion: The Rambam’s Position in the Laws of Modesty (The Middle Path) Versus the Reality Here

R’ Yoel Asher: It’s interesting, because earlier the Rambam did have opinions about this. He said women should only go out once in a while; it was a kind of compromise. Here he says “not to go out to the marketplace at all.” Very good. In the cities of Edom they go out all the time. The Rambam had a clear position on this; he didn’t leave it to custom. He said one shouldn’t do like the cities of Yishmael, never, and not like the cities of Edom, always. And the same thing regarding…

R’ Yitzchak: Did he already mention the cities of Yishmael there?

R’ Yoel Asher: Regarding uncovered faces. He said one should go in a *redid* (veil), yes? A place, yes, depending on local custom. A place depends on how the people are.

R’ Yitzchak: The *redid* isn’t on the face. The *redid* is just a kind of overgarment.

R’ Yoel Asher: A kind of… but it’s a shawl. Yes, it doesn’t actually cover the face, but it covers more than usual. The Rambam had, when it comes to modesty (*tznius*), the Rambam says what he holds one should do. Here he’s talking about reality.

R’ Yitzchak: Modesty isn’t the topic here. It could be that the Rambam held that the cities of Edom are licentious, one shouldn’t live there, one shouldn’t behave that way.

R’ Yoel Asher: But he also didn’t want women to go, that a woman should never go out like that. You can’t lock up a woman; he holds one must follow the middle path (*derech hamemutza*).

R’ Yitzchak: It’s not a contradiction, because here he’s saying that they do go out, yes, but there he was talking about something else. There he was talking about whether to let her leave the house at all; it could be that she goes out covered. It’s not a real contradiction. It’s true that, you’re right, here he’s not talking about the halacha at all; here he’s simply talking about the practical situation and what the halacha is regarding the kesubah.

R’ Yoel Asher: I think here it’s also practical: they never go to the marketplace. If something needs to be bought, the husband goes to buy it. But there are places, the husband going to the bathhouse won’t make her clean, yes? So she does go to the bathhouse; she’ll go to the bathhouse late at night with her friends, concealed, disguised (*misnakerah*). Is “*misnakerah*” a phrase from a verse?

R’ Yitzchak: “And she disguised herself”? That’s what he cites, yes. Yes, okay.

—

Checking at the Bathhouse and “Matters of Reason”

R’ Yoel Asher: In short, he can claim even regarding visible blemishes. The Rambam says, but “provided there was no bathhouse there.” That’s further: if we’re talking about a case where there’s no bathhouse there and she doesn’t go to a public bathhouse where his female relatives would see her. “Or he had no female relative to check her through”; he didn’t have a female relative who could check.

R’ Yitzchak: The Rambam is talking here even without the bathhouse, because the women go with their relatives, as stated, “no one will see her except her relatives.” Meaning, if he happens to be related to her, okay, if he has, his mother-in-law is a sister-in-law of so-and-so, whatever, I don’t know.

R’ Yoel Asher: “But if there was a bathhouse in that town, where it is not the custom of the women to go out with uncovered faces,” but if there is a bathhouse, even if they never go out with an uncovered face, but “and he has a female relative,” he has a female relative, “he cannot claim, for everyone sees her unclothed in the bathhouse.” In the bathhouse they do see her.

R’ Yitzchak: Even among the very pious, whatever, women, the most modest places.

R’ Yoel Asher: The Rambam goes even further: “And if their custom is to hide and disguise themselves even in the bathhouse,” if they’re among those zealots who even in the mikveh go around wrapped in towels so nothing can be seen, “and the daughter would be,” or we’re talking about the women,

R’ Yitzchak: Huh? Yes, right.

R’ Yoel Asher: We’re talking about a women’s bathhouse. Right, or a place where the custom is to wash only “at night,” as he said earlier, at dusk. “Or in a small room in the bathhouse, alone”; you go to a bathhouse where they make small rooms,

R’ Yitzchak: Everyone, in the very zealous places, yes? A kind of shower, a kind of cubicle, what’s it called,

R’ Yoel Asher: Like that? Whatever.

R’ Yitzchak: Yes, yes. No, that’s what he means. A “small room” simply means what exists in a mikveh. There are mikvaos with a roof,

R’ Yoel Asher: Still, in and out, but there are mikvaos where everyone has, like, their own path to the pool, and you’re truly hidden.

R’ Yitzchak: In short, more of a, yes.

R’ Yoel Asher: “So that she is not seen and not known,” so that she isn’t seen and her condition isn’t known, “he may claim,” he can make a claim “even regarding visible blemishes,” he can also claim regarding visible blemishes. Yes, good. No one ever saw her.

The Meaning of “These Are Not a Scriptural Decree but Matters of Reason”

R’ Yoel Asher: The Rambam says: “For these matters”, these issues aren’t some scriptural decree (*gezeiras hakasuv*); they are “matters of reason” (*devarim shel taam*). It’s a question of practicality. What does “not a scriptural decree” mean? It’s interesting, because the Rambam holds that even a scriptural decree has to be a matter of reason.

R’ Yitzchak: Yes. Here the Rambam means to say, it’s interesting, he has to justify himself, because he didn’t say “it seems to me” (*yeira’eh li*), because the Rambam means to say this isn’t a novelty. “It seems to me” is used when it’s something someone else could dispute. He’s saying the halacha isn’t a scriptural decree; the Torah doesn’t say “if there is a bathhouse in the town.” The bathhouse is about a situation where people see at the bathhouse. If people don’t see, and in your town people don’t see,

R’ Yoel Asher: Then of course… The strange thing is that a woman who has hidden blemishes will surely be among the women who don’t go out, yes? She’ll hide herself. Suddenly she’ll become a Neturei Karta, a Lev Tahor, because she wants to hide her blemishes.

R’ Yitzchak: Okay, that itself will make it known that she’s the strange Neturei Karta.

R’ Yoel Asher: What’s this? It’s interesting. I would have said, for example in the cities of Edom, a woman who never goes out, that itself is like a woman who makes vows (*ishah nadranis*), a woman who afflicts herself.

R’ Yitzchak: Could be; that’s not what we’re talking about here.

R’ Yoel Asher: That’s not the topic, yes. Okay.

—

The View of Some Geonim Regarding “He Checks Through His Female Relatives”

R’ Yoel Asher: So the Rambam says: “Some of the Geonim ruled,” certain Geonim said, “that what the Sages said, because he checks through his female relatives,” the meaning is that the Sages said nothing counts as a hidden blemish if there is a bathhouse, because he sends his female relatives; “it is not only his relatives,” it doesn’t mean that he has relatives, and if not, he could get out of it by saying, “I don’t have relatives, I don’t have women who are my sisters-in-law.” But he has women who are “his acquaintances,” a neighbor whom he can ask. “And even if he was a stranger in the town and has no relative at all,” he’s a stranger in town, not a stranger in town, he’s a stranger, he just arrived in town and doesn’t yet have people to send to the bathhouse to check. He has no relatives who can talk with him.

The View of the Geonim and the Rambam’s Objection Regarding a “Stranger in Town”

R’ Yoel Asher: “It is not only his relatives”; it doesn’t mean that he has relatives, and if not, he could get out of it by saying, “I don’t have a relative, I don’t have women who are my sisters-in-law.” But he has women who are “his acquaintances,” a neighbor whom he can ask.

“And even if he was a stranger in the town and has no relative at all,” he’s a stranger in town, he just arrived in town, and he doesn’t yet have people to send to the bathhouse to check. He has no relatives who can collaborate with him and arrange it, yes. “If there is a bathhouse there, he cannot claim.” Why? “For it is possible that he has friends.”

R’ Yitzchak: He doesn’t need to have a friend. “Stranger” means he doesn’t have relatives. His family doesn’t live in the town.

R’ Yoel Asher: He’s the only one, but one can have friends. “And he says to one of his friends that his wife or sister should check so-and-so for him.” He doesn’t, God forbid, talk directly with the ladies there.

R’ Yitzchak: No, he needs to see her “unclothed in the bathhouse”; he can’t go into the ladies’ bathhouse.

R’ Yoel Asher: So he has to send someone. No, but he also doesn’t tell the woman herself to go check. He tells one of his friends: ask your wife to check “regarding so-and-so, and therefore the presumption is that he heard and was reconciled.” That’s how the Geonim learned it. The Geonim learned that the law, that if there’s a bathhouse we tell him this person sends someone, applies always, even when he has an excuse that he has no relatives and the like.

⟦#2⟧ But the Rambam says: “This law does not seem right to me.” I don’t hold that way. Why? It’s interesting, the Rambam, yes. Because when a person has a close relative, he’ll feel… A person has to be comfortable with someone to say such a weird thing: go to the bathhouse and check out that woman. It’s a strange thing. When you have a close person, you’re vulnerable enough to say: look, I have a shidduch, this. But you don’t do it for a stranger.

The Rambam says: I don’t like the halacha of the Geonim, “for not every person reveals what is in his heart about these matters to everyone,” a person isn’t comfortable saying to a strange woman or to some friend, not a close relative: ask your wife to go check at the bathhouse, “but only to his relatives. And furthermore, his mind relies only on the words of his relatives most of all.” He won’t even listen, he won’t trust it, right? If he asks a stranger, that person will tell him: yes, everything’s fine; the other person won’t take him seriously, and so on. “For his mind relies only on the words of his relatives most of all.”

Discussion: The Reality of Checking at the Bathhouse and Cultural Changes

R’ Yitzchak: It’s interesting, the Rambam was a bit… people were uncomfortable with the whole business of checking at the bathhouse. I see the Rambam was also a bit uncomfortable; he said: he trusts relatives.

R’ Yoel Asher: But it’s also obvious that this has to do with reality. If it’s accepted that it’s not proper to look at others and the like, the whole thing falls away.

R’ Yitzchak: True. The dispute between the Rambam and some of the Geonim probably also has to do with a certain cultural change between the Rambam’s region and their region.

R’ Yoel Asher: You also have to know what kind of blemishes we’re talking about here. We’re not talking about finding a pimple. We’re presumably talking about something big that’s obviously noticeable.

R’ Yitzchak: Blemishes that disqualify women.

R’ Yoel Asher: I mean to say, when we say one checks at a bathhouse, it doesn’t mean they put the woman on an inspection stone and examine her. It’s something that’s very obvious,

R’ Yitzchak: That would be noticed,

R’ Yoel Asher: He says. The Rambam…

R’ Yitzchak: By the way, if someone is very modest and doesn’t look, that’s his problem.

R’ Yoel Asher: We’re talking… let him stay modest. Yes.

R’ Yitzchak: He can’t have any… That’s the first “behold, I did not know.”

—

Halacha 3: Laws of Claimant and Defendant Regarding Blemishes

Blemishes That Certainly Existed Before the Betrothal

⟦#3⟧ The Rambam says: now we need to learn. Until here we learned what counts as blemishes. Now they learn the laws of claimant and defendant (*to’en venit’an*) regarding blemishes. That is, he says there is a blemish,

R’ Yoel Asher: And she says there isn’t; how does it work? “How does the claim of blemishes work?” How do the laws of a claim of blemishes work? It’s like this: “If the blemishes were…” In general, the Rambam told us that if she has blemishes,

R’ Yitzchak: Then “she leaves without a kesubah.” That’s what we keep talking about, “she leaves without a kesubah.”

R’ Yoel Asher: “How does the claim of blemishes work?” The Rambam says as follows: “If the blemishes found in her were blemishes”, if the blemishes are such blemishes “that certainly existed before she was betrothed,” it’s not something that happens one day; it’s certain that the blemishes already existed before they accepted the *kiddushin*. “Such as an extra finger,” she has an extra finger, “and the like.” Aha. In such a case: “the father must bring proof that the husband knew of them and accepted.” Then it’s certain that when he gave her *kiddushin* she already had the blemish. So now the question becomes whether the husband did know or didn’t know. So “the father must bring proof that the husband knew of them and accepted.” Then either there has to be a presumption (*chazaka*), there has to be a situation like a bathhouse,

R’ Yitzchak: The conversation.

R’ Yoel Asher: Or the husband has some proof

R’ Yitzchok: So there’s such a presumption (*chazaka*). It’s not that the husband has to exempt himself; rather the opposite — they, the father — it speaks of the father of a girl for some reason; why it speaks of the father of a girl I don’t know — in any case, the woman’s side has to bring proof that he is in fact obligated.

R’ Yoel Asher: “The father”?

R’ Yitzchok: The Gemara speaks of such a case? What? It looks like it — “the father”? I don’t know. The Gemara says: “Al ha’av lehavi ra’aya” — “the father must bring proof,”

R’ Yoel Asher: “Al haba’al lehavi ra’aya” — “the husband must bring proof.” The Gemara there is speaking about a minor (*ketana*) or a young girl (*na’ara*),

R’ Yitzchok: And that is usually such a thing.

R’ Yoel Asher: “O chazaka sheyada” — “or a presumption that he knew,” but “ve’im lo hevi” — “and if he did not bring” — if he cannot bring proof that he did know, then we say that she already had this blemish (*mum*) before

R’ Yitzchok: the betrothal (*kiddushin*), so effectively the presumption is that he is exempt. They want to overturn that presumption,

R’ Yoel Asher: The presumption is that men don’t want to betroth in such a case.

R’ Yitzchok: Yes, that’s not the question. Certainly if it existed beforehand, it’s a mistaken transaction (*mekach ta’us*); the question is only whether he “knew.” So — but she had this blemish back then; the meaning is that the husband now has the presumption in his favor that she was already a blemished woman at that time. What’s your claim? Even regarding those presumptions: he should have known, he did know — bring proof.

R’ Yoel Asher: But an extra finger doesn’t bother me. I like a woman with ten fingers, eleven fingers — “kelach etzel yafos” (“go to the beautiful ones”) — I got another finger here. I don’t know, it could

R’ Yitzchok: be that the hand becomes crippled,

R’ Yoel Asher: No, maybe the hand becomes somewhat crippled, one can’t use the hand properly. I think one needs to know exactly what we’re talking about.

R’ Yitzchok: I don’t know.

R’ Yoel Asher: No, the Rambam probably mainly means to grab some obvious example where one can’t say it just grew now.

R’ Yitzchok: Yes, right, right.

Blemishes That Could Have Arisen After the Betrothal

R’ Yoel Asher: ⟦#4⟧ But “hayu mumin she’efshar shenoldu achar ha’erusin” — “if there were blemishes that may have arisen after the betrothal” — it’s like this: “im nimtze’u bah achar shenichnesa leveis ba’alah” — “if they were found on her after she entered her husband’s home” — then “al haba’al lehavi ra’aya she’ad shelo nisarsa hayu bah” — “the husband must bring proof that they were present before she was betrothed.” The husband must bring proof that she already had it beforehand, that it was not a case of *nistachfa sadehu*, “vehaya mekacho ta’us” — “and his transaction was mistaken” — and then she can leave without a *kesuba*.

But “ve’im nimtze’u bah vehi beveis aviha” — “if they were found on her while she was in her father’s home” — then “al ha’av lehavi ra’aya” — “the father must bring proof.” If it was found while she was still in her father’s home, before the marriage (*nisu’in*), “al ha’av lehavi ra’aya she’achar ha’erusin noldu venistachfa sadehu” — “the father must bring proof that they arose after the betrothal and his field has been flooded.”

Discussion: The Reasoning Behind the Distinction Between “In Her Father’s Home” and “In Her Husband’s Home”

R’ Yitzchok: That means we don’t know whether it was after the betrothal. It could be after the betrothal; if it’s after the betrothal, then too bad — it’s called “nistachfa sadehu” — your field got a blemish, got flooded; “nistachfa” means flooded. But if it was before, then who has to bring the proof? If the blemish came afterward, seemingly, simply, he has the presumption in his favor; the presumption is, so to speak, yes.

R’ Yoel Asher: The presumption is that when she moves into her husband’s home you know everything, and you took her in with full awareness and acceptance.

R’ Yitzchok: No, but the distinction in the halacha is about what the default assumption is regarding the blemish. If the blemish was found in her husband’s home, the assumption is that it arose now — after all, it was found now. If it was found in her father’s home, it could still be from before the betrothal, but it’s in her father’s home, so somehow it’s more presumed that… I don’t clearly know why, you understand? It sort of makes sense, but it doesn’t clearly say here why.

R’ Yoel Asher: It’s interesting, he doesn’t state it in terms of time, as if one would say in the first year — I’ll say this is the first year,

R’ Yitzchok: We’re only talking about…

R’ Yoel Asher: ⟦#5⟧ No, I’m saying,

R’ Yitzchok: The question here in the halacha is…

R’ Yoel Asher: When did it happen? A year ago? Let’s say the betrothal period lasts a year, yes? So. If it’s after she entered her husband’s home, then the chances are it didn’t happen just now.

R’ Yitzchok: No, it seems more like a… it’s not a matter of chances. It’s a question of what the presumption is. That is, in her husband’s home she already has the presumption that she is entitled to a *kesuba*. In her father’s home she’s not yet entitled to a *kesuba*, so the presumption is that she has no *kesuba*; therefore he should bring the proof, you understand? That may be the reasoning.

—

Halacha 4: Counter-Proofs and the Presumption of “A Person Does Not Drink from a Cup Unless He Inspects It”

When the Husband’s Proof Harms Himself

R’ Yoel Asher: So he should bring proof. What happens in such a case? “Hevi haba’al ra’aya she’ad shelo nisarsa hayu bah” — “the husband brought proof that they were present before she was betrothed.” The husband brings proof that already before the betrothal she had the blemish, “o shehodes lo bechach” — “or she admitted this to him” — and the father, on the contrary, brings proof “shera’a veshasak venispayes” — “that he saw, remained silent, and was reconciled.” The woman’s father brings proof that he knew about it and betrothed her anyway. Or he cites a “chazaka sheyada bahen venispayes” — “a presumption that he knew of them and was reconciled,”

R’ Yitzchok: “Harei zeh chayav bikesubasah” — “he is obligated in her *kesuba*.” That’s obvious.

R’ Yoel Asher: How does he bring the presumption? Is there really such a presumption?

R’ Yitzchok: As we said earlier, he shows the court (*beis din*) that this is a town where there is a bathhouse, and the women go to the bathhouse and the like.

R’ Yoel Asher: So “harei zeh chayav bikesubasah.”

R’ Yitzchok: That’s obvious; I don’t know why he states this halacha. It’s just a continuation… it’s basically a continuation of this: if it was found while she was in her father’s home, or as we said earlier, even if she entered her husband’s home but the husband brought proof that it existed earlier — still, if there’s a presumption, he’s obligated.

That’s the novelty, right? Even if the defect already existed before the betrothal — the husband essentially wants to bring that proof, right? Because he wants to claim it existed earlier. If it was afterward — you get it? There’s a kind of upside-down thing here. The proof he brought now harms him, right? Right. Because he brought proof that it existed before the betrothal, so now the father can bring proof that it was known at that time — “shera’a venispayes.” As if: had it not existed then, he certainly didn’t know, but then you also have no claims at all, right? Because “nistachfa sadehu.”

He Lived with His Wife for Several Days

Another case where one can’t bring claims of blemishes, as a matter of law: “Ba al ishto” — “he had relations with his wife,”

R’ Yoel Asher: A person already lived with his wife, “veshaha kamma yamim” — “and stayed several days” — he was already with her for a few days together. Afterward he claims “shemum zeh lo nir’a li ad atta” — “this blemish was not visible to me until now” — suddenly he says: I didn’t see it. Hey, you already had relations, and you’ve already been with her? “Afilu haya besoch hakmatim o bechaf haregel” — “even if it was within the folds of skin or on the sole of the foot” — the blemish was somewhere hidden, in her concealed places — “ein shom’in lo” — “he is not listened to.” Why? “Chazaka” — we have a presumption “she’ein adam shoseh bechos ela im ken bodko yafeh yafeh” — “that a person does not drink from a cup unless he inspects it very well.” When you drink from a cup, you check the cup beforehand to see that it’s clean. Grasp the analogy. “Vechezkaso sheyada veratza” — “and his presumption is that he knew and accepted.”

Discussion: How Does One Inspect If Relations Take Place in the Dark?

R’ Yitzchok: Very good. Very good. It’s very interesting, because we already spoke about this last time, because there are halachos that it should be dark. In short, there is a presumption anyway. Now we’re going to learn about a certain kind of blemish and what the law is regarding it.

R’ Yoel Asher: Right? This thing was already said — who brings this, that there’s a requirement that it be dark?

R’ Yitzchok: We probably learned it in Hilchos Ishus, or Deos,

R’ Yoel Asher: It’s stated if in a question, learn here — I don’t know if completely dark; maybe one can see. Okay.

R’ Yitzchok: I don’t know. Maybe he can inspect.

R’ Yoel Asher: If we’re not necessarily talking here about during the act itself — you see, “shaha kamma yamim” is the key word, not “ba.”

R’ Yitzchok: Maybe both. No, because if not for “shaha kamma yamim,” he could say: during the act I saw this, and he comes the next morning. Like claims regarding virginity (*ta’anos besulim*), he comes right away the next morning and makes his claim. It could also be that here “bodko” doesn’t necessarily mean by looking — he touches it, I know what he sees, but then I discovered it. This “bodko yafeh yafeh” could be during the act, not that he gets up beforehand and checks some such thing.

Okay. The Rambam says: now we’re going to learn about the kind of blemish where a woman has no fixed cycle (*veses*), or that she sees blood due to relations (*ro’a dam machmas tashmish*) — what is the law there too.

R’ Yoel Asher: Also under the law of blemishes. Right. Learn what’s here…

The Meaning of “Bodko Yafeh Yafeh”

R’ Yitzchok: He comes right away the next morning. It could also be that “bodko” doesn’t necessarily mean by looking — he touches it, I know what he sees, then I discovered it. The “bodko yafeh yafeh” could be during the act, not that he gets up beforehand and checks some such thing.

—

A Woman Who Has No Fixed Cycle

R’ Yitzchok: Okay, the Rambam says: now we’re going to learn about the kind of blemish where a woman has no fixed cycle, or she sees blood due to relations — what is the halacha regarding it?

R’ Yoel Asher: Also under the law of blemishes. A person says that had I known my wife has these problems in matters of *nidda*, in matters of ritual purity (*tahara*), I wouldn’t have wanted to marry her. So: “Hanosei isha venimtzeis she’ein lah veses kevu’a leniddasah” — “one who marries a woman and it is found that she has no fixed cycle for her menstruation” — she has no fixed cycle. And when we learn later in Hilchos Issurei Bi’ah we’ll see more. What does it mean? That a woman who has a fixed cycle is…

Discussion: Bodily Cycle vs. Calendar Cycle According to the Rambam

R’ Yitzchok: One needs…

R’ Yoel Asher: The Rambam…

R’ Yitzchok: Here he isn’t speaking of a cycle in terms of time; he’s mainly talking about what’s called a bodily cycle (*veses haguf*) — that before she gets her period she has a headache or stomachache. Most women have this, and I think that to this day — because often people learn the halacha this way and then say that nowadays most women don’t have a fixed cycle — that’s not true; most women have a bodily cycle, if I understand correctly, meaning certain sensations.

R’ Yoel Asher: Halacha doesn’t accept that this is enough to require separating near the time of her cycle (*samuch levestah*).

R’ Yitzchok: In my opinion it should be; the only thing that’s truly fixed — one would need to know; it’s hard to pin down exactly what the thing is.

R’ Yoel Asher: No, but the reason it isn’t is because the feeling can come a good few days beforehand — very good — it’s not a very medical thing.

R’ Yitzchok: Ah, because the feeling isn’t the timing of the period itself. Okay. “Ela lo targish be’atzmah” — “rather, she will not sense it herself.” Simply put, the Rambam says: “ad shetir’eh dam nidda” — “until she sees menstrual blood” — we see he’s talking about the bodily cycle, he’s not talking about the…

R’ Yoel Asher: Or the times — both. No, again: normally a man may be with his wife in a general way, except when she becomes a *nidda*. But with women who have no fixed cycle, he has to be concerned the whole time that maybe she’ll become a *nidda*.

R’ Yitzchok: So there’s a problem.

R’ Yoel Asher: “Lo targish be’atzmah ad shetir’eh dam nidda” — “she will not sense it herself until she sees menstrual blood.”

R’ Yitzchok: She won’t feel that she’s becoming a *nidda*. Remember also that the Rambam’s general position on *nidda* was that everything goes with… I don’t know if it has to do with this.

The Halacha of “Two Cloths” and the Meaning of the Word “Ed”

R’ Yoel Asher: When it speaks of *zava* and *nidda* — a woman who has no signs beforehand but can suddenly become a *nidda* — there’s a halacha that the husband may not be with her, because maybe she’ll become a *nidda* while…

R’ Yitzchok: He’s with her.

R’ Yoel Asher: So “harei zo lo teshamesh” — “she may not have relations” — he may not be with her, “ela bishnei eidim shebodekes bahen atzmah” — “except with two cloths with which she examines herself.” *Eidim* here doesn’t mean witnesses…

R’ Yitzchok: Rather two examinations.

R’ Yoel Asher: The two examinations become like a witness.

R’ Yitzchok: He should say *ed* — he should say that *ed* means a cloth. Not that the cloth becomes like witnesses? There are those who do say it’s from the word for testimony (*eidus*); it’s a dispute. But there are those who say — he says that the Rambam says *ed* is a scriptural term — “idi,” yes? “Ideha,” “chodesh ideha” — *ed* is also a term for a garment. Yes, we’ll learn it there in Hilchos Issurei Bi’ah.

R’ Yoel Asher: She may have relations, but beforehand she must examine herself; she may not have relations before she has made an examination. There must be two examinations: “echad lifnei hatashmish ve’echad le’achar hatashmish” — “one before relations and one after relations.” “Chutz” — besides that, the husband also needs his own examination cloth with which he wipes himself — “chutz min ha’ed shel ish shemekane’ach bo atzmo kmo sheyisba’er behilchos issurei bi’ah” — “apart from the man’s cloth with which he wipes himself, as will be explained in Hilchos Issurei Bi’ah.” In Hilchos Issurei Bi’ah we’re going to learn that there are women who have this issue.

So now the Rambam comes back to our topic. We’re still in the middle of the topic of saying it’s a mistaken transaction, it’s not a proper marriage, so I don’t want to give a *kesuba*. The Rambam says: “Ve’af al pi shemum gadol hu zeh” — “and even though this is a great blemish” — it’s a big problem that the husband can only live with her using the cloths, but “lo hifsida klum” — “she has lost nothing” — because there’s a solution for it: “shehare bodekes atzmah techila umeshameshes” — “for she examines herself first and has relations.” When she, say, sees blood due to relations, or something for which there’s no remedy, that’s certainly a great blemish; but a blemish that has a fix — “shehare bodekes atzmah techila umeshameshes.”

Clarification of the Rambam’s Position on Bodily Cycle and Calendar Cycle

R’ Yitzchok: Forgive me, let me clarify — I didn’t remember. What we know is that there’s a bodily cycle and there’s a separate calendar cycle (*veses hayamim*); that’s the position of most Rishonim. The Rambam, in Hilchos Issurei Bi’ah, actually holds that it’s all the same thing — that a cycle means on certain days she has the sensations, and then it becomes forbidden. Therefore, when the Rambam says here “ela lo targish,” it’s because according to his view it’s the same thing; there aren’t two kinds of cycles, one called bodily cycle and one calendar cycle — the Rambam holds somehow that it’s the same thing. Although the Gemara implies they’re separate, so this needs to be understood. In any case, we’ll learn this better in Hilchos Issurei Bi’ah; that’s the reason the Rambam writes it this way.

Discussion: Why Is It Called a “Great Blemish” If It Has a Remedy?

R’ Yoel Asher: But it’s interesting to me — why does the Rambam say “ve’af al pi shemum gadol hu zeh”? What’s the great blemish? That she has to…

R’ Yitzchok: Always make an examination? Every single time, yes. Is that a great blemish? Indeed, for that checking, the Rambam’s solution is “lo hifsida klum,” right. It’s a great blemish because she’s not a normal woman. A normal woman has a cycle. She’s an unusual case, I mean — a normal, healthy woman, someone whose system is healthy, has a cycle. Here there’s a woman who can randomly get her period; that’s not normal. But it doesn’t interfere. Why doesn’t it interfere? Because all in all one makes one more examination — I mean, one always examines anyway.

R’ Yoel Asher: Interesting, because — watch — he doesn’t say the same thing about other blemishes, that if there’s a way to deal with the blemish, I don’t know, you put on a bandage and it helps… But we did already learn that in that case it’s no longer a blemish.

R’ Yitzchok: Then it’s only a blemish… yes, right. If so, perhaps, perhaps from this we can indeed learn that if it’s a blemish with a simple remedy, it’s indeed not a blemish. Yes.

—

A Woman Who Sees Blood Due to Relations

R’ Yitzchok: “Harei” — that’s the case of “ein lah veses.” Now there’s another one, another kind of woman who has a…

R’ Yoel Asher: A much bigger problem — that they can’t be with their husband. “Harei shebadka atzmah venib’ala uve’es shekinchah atzmah hi vehu” — “if she examined herself and had relations, and when she and he wiped themselves” — she examined herself, and after examining one may have relations, and afterward, as we discussed, one must make the examination again after relations. So after they wiped themselves afterward, “hi vehu,” “nimtza dam al ed shelah o al ed shelo” — “blood was found on her cloth or on his cloth” — on one of them blood was found, meaning the blood appeared while he was with her.

If this happened time after time, three times in close succession – if this happened three times one after the other, then in halacha it is called “*ro’ah dam machmat tashmish*” (one who sees blood due to marital relations), and the halacha regarding this is that she has a *chazaka* (established presumption) that being with her husband itself causes her to become a *nidda*. That is a problem, because every time he has relations with her he is having relations with a *nidda*. Harei zo asura leishev im ba’alah – “she is forbidden to remain with her husband.” She may not continue living with her husband. Vetetzei belo ketubba – “and she leaves without a ketubba.” In such a case the halacha is that since there are no solutions for this, no examinations help; it is entirely her loss, her loss and her loss. So vetetzei belo ketubba, and she has lo ikar velo tosefet ve’ein lah tenai mitena’ei ketubba shehari einah re’uya letashmish – “neither the principal nor the additional sum, nor any of the stipulations of the ketubba, since she is not fit for marital relations.”

R’ Yitzchak: Yes, good. It is obvious that a ketubba applies only to a woman who is fit for marital relations, and not to someone who cannot be married.

The Law of “He May Never Take Her Back” and the Concern of “Lest She Be Healed”

R’ Yoel Asher: Veyotzi, says the Rambam – veyotzi, he may divorce her – velo yachazir le’olam, “and he may never take her back.” That is a separate halacha.

R’ Yitzchak: He may never come back, even…

R’ Yoel Asher: Velo yachazir le’olam – he cannot, he should not go back…

R’ Yitzchak: And remarry her. Why?

R’ Yoel Asher: Why? Why shouldn’t he remarry her? Shema titrape – “lest she be healed.” We are afraid that she will be cured, venimtza shelo gamar legarshah bish’at gerushin – “and it will turn out that he did not wholeheartedly intend to divorce her at the time of the divorce.”

The Rambam states here a side halacha: a woman who received a *get* (bill of divorce) because she is *ro’ah dam machmat tashmish* may go and marry other men. Only if the same situation occurs with three husbands may she no longer marry anyone; but here she may go and marry. The Rambam says: what happens if she gets cured? There is a halacha that the first husband cannot remarry her. Why? Because we are afraid that whenever such a thing happens, he will say: “I didn’t really want to divorce her.” And this will lead to *mamzerut* (illegitimacy), because she will go and marry again and she will have been cured, and he will say: “Aha, had I known she could be cured, I would not truly have wanted to give a *get*.” It will turn out that he will cancel the *get* after she has already remarried, and he will cause *mamzerut*. So Chazal (our Sages) say that regarding such a woman, lo yachazir le’olam – he can never remarry her.

R’ Yitzchak: Yes, good. Umuteret lehinasei le’acher – “and she is permitted to marry another” – that’s what the Rambam says, kemo sheyitba’er be’inyan hanidda – “as will be explained in the laws of *nidda*.” We will learn it. In short, the Rambam will state all these halachot clearly later. Here it is only the reason why it says…

R’ Yoel Asher: All the halachot are written here…

R’ Yitzchak: It’s only about the ketubba, right? Right. The Rambam says: Bameh devarim amurim – “When does this apply?” What we have just said, that she does not receive a ketubba?

Discussion: The Definition of a “Get Given in Error” and the Enactment of Chazal

R’ Yoel Asher: I don’t want to get into the *sugya* (Talmudic topic) right now, but why should this make the children *mamzerim*? Saying “had I known, lest she be healed”? You gave a *get*, you gave it! But he claims…

R’ Yitzchak: Maybe he would even be right.

R’ Yoel Asher: It makes the *get* a *get shel ta’ut* (a divorce given in error)?

R’ Yitzchak: Yes, like a *mekach ta’ut* (transaction made in error) of a *get*.

R’ Yoel Asher: Maybe there is such a thing. Consequently, they removed the possibility that he could make that…

R’ Yitzchak: …claim, that he needs to know – yes, like that. By the way, now that they have said this, he could in fact take her back, since it would be a genuine *get*…

R’ Yoel Asher: They don’t say that. But the Rambam says umuteret lehinasei le’acher – she may marry others. We don’t say that we fear every husband will make her a *nidda* through relations. On this the Gemara says: lav kol ha’etzba’ot shavot – “not all fingers are equal.” We saw earlier that sometimes there is a woman with an extra finger.

R’ Yitzchak: Yes, kemo sheyitba’er be’inyan hanidda, very good.

—

The Difference Between “From the Beginning of Her Marriage” and “After She Married” (*Nistachefa Sadeihu*)

R’ Yitzchak: Now we can see that bameh devarim amurim…

R’ Yoel Asher: Bameh devarim amurim keshehayeta kach mitechilat nisu’eha – “When does this apply? When she was like this from the beginning of her marriage.” That is, the law of a woman who is *ro’ah dam machmat tashmish* applies only when it already happened right at the wedding, umibe’ila rishona ra’ata dam – “and she saw blood from the very first relations.”

R’ Yitzchak: Interesting.

R’ Yoel Asher: One needs to understand, because the first time it is *dam betulim* (virginal blood). Perhaps we are speaking of a case where we already know the first time that it isn’t *dam betulim*, yes. Aval im ira lah choli zeh achar shenis’at – “But if this illness befell her after she married” – if the problem of *ro’ah dam machmat tashmish* only started later, after the wedding, then he cannot claim that he wants to divorce her because of this problem; rather, nistachefa sadeihu – “his field has been flooded” (i.e., it is his misfortune). Just as whenever an illness befalls her after the wedding, it is nistachefa sadeihu.

R’ Yitzchak: Meaning, one has to say it is an illness, a problem. He has to divorce her, but it is not her fault.

R’ Yoel Asher: Lefichach im ba’al pa’am achat velo nimtza dam – “Therefore, if he had relations once and no blood was found” – ve’achar kach chazra lihiyot ro’ah dam bechol et tashmish – “and afterwards she began to see blood every time they had relations” – but since ba’al pa’am achat velo nimtza dam, it is already *nistachefa sadeihu*. In such a case, yotzi veyiten ketubba kulah – “he must divorce her and give her the entire ketubba.” He must give her the ketubba, because there was no *mekach ta’ut*; it is *nistachefa sadeihu*. But the other prohibition still remains: velo yachazir olamit – “and he may never take her back.” Even if she is cured, he may not remarry her, kemo shebe’arnu – “as we have explained” – so that he cannot cast aspersions on divorces…

R’ Yitzchak: Perhaps to cast aspersions, or perhaps it is a genuine concern; we need to look into it. The point is that once is enough – interesting. Once is enough.

Discussion: The Obligation to Provide Healing for *Ro’ah Dam Machmat Tashmish*

R’ Yoel Asher: But here is something: if there is a cure for this, seemingly the husband would be obligated to provide her with the cure!

R’ Yitzchak: Under the law of *lerape’otah* (his obligation to heal her). Okay, so he would have to do that for this…

R’ Yoel Asher: Or perhaps under the law of *ona* (conjugal obligation), perhaps under the law of *ona*.

R’ Yitzchak: That’s a different issue. No problem – it could be that she can be cured.

R’ Yoel Asher: In Hilchot Issurei Bi’a (Laws of Forbidden Relations), the Rambam even says a bit about how it is cured, how it is checked. He gives a whole program there.

R’ Yitzchak: Not casting aspersions – perhaps to cast aspersions, or perhaps it is a genuine concern; we need to look there. But the point is that once is enough; it’s interesting. Once.

R’ Yoel Asher: But an interesting thing: if there is a cure for this, seemingly the husband should be obligated to provide her with the cure under the law of “*lerape’otah*.”

R’ Yitzchak: Okay, so one has to do it for this,

R’ Yoel Asher: Three times. Or perhaps under the law of *ona*, perhaps under the law of *ona*.

R’ Yitzchak: That’s a different issue, no problem, it could be that he can be cured.

R’ Yoel Asher: No, in Hilchot Issurei Bi’a the Rambam even says if it is cured,

R’ Yitzchak: How it is checked, the Rambam will…

R’ Yoel Asher: We’ll see that, we’ll see it there, it’s not the laws of…

R’ Yitzchak: Here we are only learning the laws of ketubba,

R’ Yoel Asher: That’s what we’re learning today.

—

Halacha 10: Blemishes That Develop in the Wife After the Wedding

R’ Yoel Asher: The Rambam says: Vechen – the same applies – kol isha shenoldu… The Rambam says that this distinction, “*nistachefa sadeihu*,” is a halacha that applies whenever a woman develops a blemish after the wedding: it is the husband’s problem, and he cannot object. Vechen kol isha shenoldu bah mumin achar shenis’at, afilu na’asit mukat shechin – “And likewise, any woman who developed blemishes after she married, even if she became afflicted with boils” –

R’ Yitzchak: That’s a major blemish. That’s a big, terrible thing.

R’ Yoel Asher: Im ratza – if he wants to keep her, he can keep her – ve’im ratza lehotzi – “and if he wants to divorce her” –

R’ Yitzchak: Yiten ketubbatah – “he must give her ketubba.”

R’ Yoel Asher: He doesn’t need to perform *kiddushin* (betrothal) again or anything like that – the opposite explanation, he means it. Yes. Simply, because at the wedding she was fine. Ve’im ratza lehotzi – then he must give her a *get*, but yiten ketubbatah, he must give her a –

R’ Yitzchak: Ketubba, because it was “*nistachefa sadeihu*.”

R’ Yoel Asher: Very good. So, until now we have learned about the wife’s blemishes with regard to *mekach ta’ut*, with regard to the ketubba.

R’ Yitzchak: With regard to *mekach ta’ut*, then here… Yes, now we are going to learn about…

—

Halacha 11: Blemishes That Develop in the Husband After the Wedding

R’ Yoel Asher: Ha’ish shenoldu bo mumin – what happens with a man in whom noldu mumin achar shenasa – “blemishes developed after he married” – he acquired a blemish. Afilu nikte’a yado o raglo – “even if his hand or foot was cut off” – o nismet eino – “or his eye was blinded” – velo ratzta ishto leishev imo – “and his wife does not want to remain with him,” she doesn’t want to keep living with a sick husband – then ein kofin oto lehotzi veliten ketubba – “we do not compel him to divorce her and give the ketubba.” We don’t say he is compelled, because again she has no claim of *mekach ta’ut*, since it happened after the wedding – “her field has been flooded.” Ela im ratzta teshev – “rather, if she wishes, she remains” – if she wants, she can stay living with him. Ve’im lo ratzta – “and if she does not wish” – if she insists, she can ask for a *get*, tetzei belo ketubba – “she leaves without a ketubba.”

Discussion: “Like Any Rebellious Wife” Versus “He Is Repulsive to Me”

How can she ask for a *get*? There is always a law… Kedin kol isha moredet – “like the law of any rebellious wife.” A woman who is a… The Rambam doesn’t say – ah – kedin kol isha moredet: just as with every *isha moredet* (rebellious wife) there is a system by which she receives a *get* – meaning they will hold her off for a period of time and so on – but if nothing helps and she insists on divorcing, she will be able to get a *get*. The Rambam does not say “like the law of a woman who says ‘*ma’us alai*’ (he is repulsive to me).” Okay, we already discussed last time that the Rambam doesn’t make such a strong distinction between *ma’us alai* and *moredet*.

R’ Yitzchak: Right, meaning lo ratzta tetzei belo ketubba – just as every *ma’us alai* is essentially a type of *moredet*; that’s what I think, it appears so to me from the wording. Or the difference is only whether one goes through the whole process, giving the time period, but here perhaps that isn’t relevant either, since there is already…

R’ Yoel Asher: Why not? It’s equally relevant. Kedin kol isha moredet. And the Rambam doesn’t mean kedin kol isha moredet regarding the process of how a *get* is given. It could be that here… no, it says *moredet*; the whole process is only further…

R’ Yitzchak: I think that by *moredet* here he means *ma’us alai*…

R’ Yoel Asher: Regarding the ketubba. No, he says, tetzei belo ketubba kedin kol isha moredet. It could be that they go,

R’ Yitzchak: They’ll tell him not to make announcements in the study halls and the like. No, there’s no need. The announcement is a favor to her, right? *Ma’us alai* gets a *get* immediately. The announcement is only because she’s doing it out of a quarrel with him, so that peace can be made. But here it isn’t relevant; she’s saying she doesn’t want it. I don’t believe one needs to do that. I don’t know, but that’s what I would have thought. That’s if he simply acquired a blemish. Aval – “But” – yes? Yes. Aval, yes, correct?

—

Blemishes of Foul Odor (Bad Breath, Nasal Odor, Gathering Dog Excrement, Tanner)

R’ Yoel Asher: Yes. Aval im nolad lo – that is when a blemish occurred like *nikte’a yado o raglo*. Aval im nolad lo re’ach hapeh o re’ach hachotem – “But if he developed bad breath or a foul nasal odor” – an odor comes out of his mouth or his nose. Interesting. I’ve heard of people who have an odor from their mouth, but a nose that smells…

R’ Yitzchak: It helps, you put on a little mint.

R’ Yoel Asher: Here he says there is a *re’ach hachotem*. I’ve never heard of a person who smells from their nose; very interesting.

R’ Yitzchak: Better not to hear about it.

R’ Yoel Asher: Usually the nose smells; it isn’t pleasant. Smelled. Okay. O shechazar lelaket tze’at kelavim – “or he took up gathering dog excrement.” The husband has a habit… no, not a habit, that was his business – chazar, the meaning is “took up.” That he gathers dog excrement – he cites from the Commentary on the Mishna that he is a tanner. That is why a tanner smells so strongly, as we learned in chapter 7, because it seems that to process leather, dog excrement is used.

O lachtzov nechoshet me’ikaro – “or to quarry copper at its source” – to go to the mountains where copper is mined, where apparently there is a strong [odor] in the mines; perhaps it means in a mine, working in a mine, which also has a strong odor. O le’abed orot – “or to tan hides” – all these things: kofin oto lehotzi veliten ketubba – “we compel him to divorce her and give the ketubba.” This is not like an *ones* (unavoidable mishap) that happened to him.

R’ Yitzchak: Even if it is nolad lo re’ach hapeh. The point is that this is not a matter of “*ma’us alai*”; this is something we understand about her. One cannot expect a wife to live with a husband who stinks. A husband who has no hand – unfortunately he has no hand, what can I do. But stinking – that’s no way.

R’ Yoel Asher: Not an acceptable path.

R’ Yitzchak: That’s how it appears here. He can’t be… besides that you need to say… what is stated in the Mishna, one needs to know… but this is – we don’t force her. Yes, we force him. Ve’im ratzta – he cites something very –

R’ Yoel Asher: Weird that precisely on this halacha there is a sefer called “*Gevurat Anashim*.” Yes.

R’ Yitzchak: Yes, because he discusses the topic of…

R’ Yoel Asher: Right, I’m saying, “*Gevurat Anashim*” on the topic of a man who lacks *gevurat anashim* (virility) and the like.

R’ Yitzchak: Who wrote that sefer?

R’ Yoel Asher: On the Shach – he cites a sefer by the Shach.

R’ Yitzchak: Ve’im ratzta teshev im ba’alah – “and if she wishes, she may remain with her husband,”

R’ Yoel Asher: If she does want to stay with her husband, “to remain with her husband.” I don’t know, the wording here is somewhat awkward: ve’im ratzta teshev im ba’alah. If she wants to stay with her husband, then *teshev*, she should stay.

R’ Yitzchak: Ah, there are other textual versions; it does indeed say so. I don’t know why it’s written this way here. The point is, yes, this is for her benefit; if she insists, let her – it doesn’t matter. Okay.

—

Halacha 12: A Husband Who Became Afflicted With Boils

R’ Yoel Asher: So, na’asa ha’ish mukeh shechin – what happens if the husband became afflicted with boils? Then too kofin oto lehotzi veyiten ketubba – “we compel him to divorce her and give the ketubba,” just like *nolad lo re’ach hapeh*.

R’ Yitzchak: Even,

R’ Yoel Asher: But here it is different from other problems. With something like a bad odor, it’s up to her; if she says she wants to stay anyway, good for you. But with a *mukeh shechin*, ve’af al pi shehi rotza leishev imo ein shom’in lah – “and even if she wants to remain with him, we do not listen to her.” She is not allowed to remain with a husband afflicted with boils, ela mafrishin otan be’al korchan – “rather, we separate them against their will.” They are separated against his will so that –

R’ Yitzchak: He should indeed give her…

R’ Yoel Asher: For her? For him it’s harmful.

R’ Yitzchak: For a *mukeh shechin* to remain married is harmful.

R’ Yoel Asher: Ah, harmful to him.

R’ Yitzchak: Mipnei shehi memikato – “because she causes him to waste away” – she makes his boils worsen through his…

R’ Yoel Asher: Because a person is always in physical contact,

R’ Yitzchak: It probably causes them to get rubbed raw, whatever – it harms the boils.

R’ Yoel Asher: Hamak besaro, yes, *yimak*… yes,

R’ Yitzchak: What is the wording of the verse? There is a verse in the Torah about the… about the plagues of the nations of Gog and Magog.

R’ Yoel Asher: Ve’im amra: eshev imo be’edim kedei shelo yavo aleha – “And if she says: I will live with him in the presence of witnesses so that he will not have relations with me” – if she says, “I won’t make him waste away, I’ll be with witnesses…” always sitting – here we’re not talking about *edei bedika* (examination cloths), but actual witnesses, people. Kedei shelo yavo aleha, shom’in lah – “so that he will not have relations with her, we listen to her” – because it is only a practical prohibition,

R’ Yitzchak: Because she causes him to waste away. Okay,

R’ Yoel Asher: She sets up witnesses, we’ll say, if she says, “I won’t demand marital relations from him.”

R’ Yitzchak: But perhaps she’ll… with witnesses, I don’t know. Okay, now one could say the same thing, no,

R’ Yoel Asher: So the Rambam doesn’t say here that the law is that witnesses must actually be set up; she says, “I’m even willing for witnesses to be set up,”

R’ Yitzchak: Not that she just says it and doesn’t mean it.

R’ Yoel Asher: Shom’in lah. Okay.

—

Halacha 13: Levirate Marriage With a Brother Who Has the Same Blemish

R’ Yoel Asher: What about such a case: mi shehaya ba’alah ba’al re’ach hapeh – “one whose husband had bad breath.” What kind of husband is he? He is a “*ba’al re’ach hapeh*.”

R’ Yitzchak: Okay, or o re’ach hachotem – “or a foul nasal odor,”

R’ Yoel Asher: It’s very interesting though – can you check what *re’ach hachotem* means?

R’ Yitzchak: Yes, yes, I think it means an illness where a fungus develops – yes, usually it comes from a, some kind of fungus grows, something like that, in the nose,

R’ Yoel Asher: Yes. Okay. O melaket tze’at kelavim vechayotzei bahen, umet – “or one who gathers dog excrement and the like, and he died.”

R’ Yitzchak: By the way, perhaps someone could compile an anthology sefer and call it… Okay. For everyone. Yes, he died, venafla lifnei achiv – “and she fell before his brother” – yes, he is a gatherer, “the lineage of the gatherer.” So, in short, venafla lifnei achiv – she fell before his brother, before the *yavam* (levir), and the brother is a brother from the same gatherers – he is from a family of gatherers, they have the same job. So the brother claims: what do you mean, you already agreed to this.

R’ Yoel Asher: Veyesh bo oto mum shehaya beva’alah – “and he has the same blemish that her husband had,”

R’ Yitzchak: He has the same problem,

R’ Yoel Asher: So the brother wants to perform levirate marriage (*yibum*), and she doesn’t want the match; she wants *chalitza*. “She can say: ‘Your brother I was able to accept, but you I cannot accept.’ And he must perform *chalitza*.” We would compel him not to perform *yibum*, but to give *chalitza* instead.

R’ Yitzchak: We’ve already learned something related. We learned it regarding a promise: the father promised money, and he can say regarding him… but it’s the same thing.

Novel Insight (*Chiddush*): The Nature of Forgiving a Defect in the First Husband Versus the Levir (*Yavam*)

R’ Yoel Asher: What’s interesting to see, though, is this: once she says “I will remain with him before witnesses,” the woman does want to stay…

R’ Yitzchak: Or not necessarily before witnesses.

R’ Yoel Asher: We’re talking here simply about bad breath. Just like “and if she wishes, she may remain with her husband,” it wasn’t merely an option. Once she has agreed, she can’t turn back. She can’t say something different every day. Ah, it could be. After she has settled her mind, we have to follow the regular halacha of a rebellious wife (*moredet*). Not sure. Yes, that’s how it seems. Consequently, regarding the brother, he has no claim. It isn’t automatic that the new brother takes over the earlier one’s position.

R’ Yitzchak: Right, it’s simple, okay. The earlier consent. Because she can say, “I wanted to accept *him*.”

R’ Yoel Asher: For that same husband, the consent remains forever. You agreed; now if you change your mind, you become a *moredet*.

R’ Yitzchak: But the point is simple.

R’ Yoel Asher: But not for the brother, because she never agreed to the brother. The reasoning (*sevara*) is simple, though.

R’ Yitzchak: “I loved him.” When someone loves him, “love covers all transgressions” (*al kol pesha’im techaseh ahava*). But the brother? Fine. He is, after all, a person with a defect (*ba’al mum*).

—

Completion of the Laws of Marriage (*Hilchot Ishut*)

R’ Yitzchak: This concludes *Hilchot Ishut*. *Berich Rachmana desaya’an*: blessed is the Merciful One Who has helped us. Praised be the Creator Who helped us finish *Hilchot Ishut*. Tremendous. Now, once you’ve gotten married, we go on to learn the Laws of Divorce (*Hilchot Gerushin*), what happens as the next step. No, the Rambam puts everything in order, yes? In the Mishna it goes the other way around, but the Rambam arranges it in order. After all, you first have to be married in order to be able to have a *get*, yes?

R’ Yoel Asher: Usually. Yes.