Tuesday 17 February 2015

Ketubot 16: The Migo, Measuring Credibility, No Shame

A new Mishna that began in daf 15 tells us about a widow or divorcee who is claiming her ketubah.  She tells her husband that she was a virgin when they married, worth 200 dinars, where he disagrees and says that the ketubah noted the value of 100 dinars.  Witnesses who saw her wearing a hinnouma, or wearing her hair uncovered, or who saw grains thrown at the wedding (all of these being practices at the wedding of a virgin) can claim this as credible proof that she was a virgin.

If one says that a field of questionable ownership belonged to someone's father and that he bought it from someone's father, he is considered credible  This is because he could have simply said that the field was his own; bringing up the purchase of the field from someone's father acknowledges that the field was at one time the father's possession.  It strengthens his rival's claim.  This adds credibility because it states a less advantageous position as a proof.  Such a halachic argument is called a migo.

Finally, the Mishna notes that sh'peh sh'asar, hu ha'peh sh'hitir, the mouth that forbade is the mouth that permitted.  However strong this migo is, the Mishna notes that witnesses to the father's land ownership will remove credibility from the current owner of the field.

What does all of this have to do with the kalah who is fighting to be believed that she was a virgin when she was married?  The Gemara begins with an examination of the certainty of the kalah and the chatan.  If one party is certain and the other is not, the person who is certain is believed.  If both parties are certain, however, witnesses may be required to settle the claim.

The rabbis go on to recount a number of situations where a migo is used to bolster a woman's credibility.  For example, a woman may have been secluded with a man and then questioned about the man she was with.  If she states that she did have intercourse but the man was a priest, she is believed.  She did not have to say that she had intercourse at all.  Adding that disadvantageous detail strengthens her claim that the man was of high status.

One of the other examples focuses on whether or not a woman was raped after she was betrothed but before she was married.  This type of case is reminiscent of today's courtrooms; women are believed based on nuance and circumstance more consistently than they are believed based on their stated experience of trauma.

The Gemara goes on to share a number of interesting details.  One of those details suggests that virgins (rather than women celebrating second weddings) attracted a good deal of attention in the community.  Another tells us that men might receive a receipt once they have paid out the agreed ketubah amount.  Otherwise, the ex-wife could use that ketubah in a second court and demand a second payment.  Another reminds us that the baraita preceding this Mishna tells that a woman had lost her ketubah.  This makes sense, for if the ketubah were available, it would state whether the amount promised was 200 or 100 dinars.  The rabbis discuss the meaning of the word 'lost' and question why the ketubah was not thought to be 'burned'.

Two other examples of proof of virginity are described.  Both would take place at the wedding.  First, a cos shel b'sorah, a cup of good tidings may have been passed around after the marriage was consummated and all was deemed to have gone well (ie. there was blood; there was no question of petach petua).  The cos was connected to the notion of teruma, where the first and best fruits were tithed for the priests.  Second, an open barrel of wine was passed before non-virgins while open barrels were passed before virgins.  This was offensive to the rabbis.  Why point out the non-virgins in this manner?  Just pass a closed barrel before the virgins!  But, others argue, a woman might claim that she was a virgin but the closed barrel was not passed before her because no-one could carry the barrel.

Amazing that the rabbis found only one part of that custom to be offensive.

Some dapim are filled with cultural rather than religious customs.  The rabbis do not use these customs to form halachot, but to better understand the needs of different communities.

There is no modesty around sex, particularly with relation to wedding celebrations.  The rabbis admit that they are celebrating both the kalah's virginity and the consummation of marriage.  On the one hand, this speaks to the rabbis' dedication to fulfilling the mitzvot.  On the other hand, the idea of flaunting a woman's virginity seem incredibly crass and bawdy.  Today's Judaism is influenced by the staid, more Christian notions of humility and shame.  Clearly, there was little shame in antiquity regarding the commanded path of sexual behaviour.  


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