Ketubot, Chapter Seven, Mishnah Eight

 

Introduction

Mishnah eight continues to discuss rules concerning bodily defects found on the woman that might cause her to lose her ketubah.  Again, she loses her ketubah because she had the responsibility to tell her husband about her defects before he married her. 

 

Mishnah Eight

1)                     If she had bodily defects while she was still in her father’s house, her father must produce proof that these defects arose after she had been betrothed and that [consequently] it was the husband’s field that was flooded.  

a)                                 If she was brought into her husband’s domain, [and the defects were discovered there] the husband must produce proof that these defects existed before she had been betrothed and [that consequently] his bargain was made in error—the words of Rabbi Meir.

2)                     The Sages say:  To what does this apply? Only to concealed defects; but with regard to defects that are exposed he cannot make any claim. 

a)                                 And if there was a bath-house in the town he cannot make any claim even about concealed defects, because he [is assumed to have had her] examined by his female relatives.

 

Explanation

Section one: The question in this section is when did she develop these defects, before or after the betrothal.  If they did not exist before the betrothal, and then he discovered them at marriage, she does not lose her ketubah, because she could not have told him about the defects before the betrothal.  She loses the ketubah only if she had the defects at the time of betrothal and she withheld from him the fact that she had them.  Note that this argument, according to our mishnah, is between the father of the betrothed girl and the husband.  Clearly, the mishnah reflects a social reality whereby girls were married young, and their fathers decided whom they married and dealt with the economic aspects of the marriage.

According to Rabbi Meir, if the defect was discovered while the girl was still in her father’s house, in other words after the betrothal but before she had moved to her husband’s house as the final step towards marriage, the legal assumption made is that the defects developed before she was betrothed.  Therefore, if the father wants his daughter to receive her ketubah, he must prove that the defects developed afterwards.  In contrast, if the defects are discovered when the wife comes to her husband’s home, it is assumed that they developed there.  Therefore the husband loses out and cannot divorce her without paying her the ketubah, unless he can prove that the defects existed before betrothal.  The mishnah again uses the graphic language “his field was flooded” to describe a woman who has been somehow damaged but whose husband cannot do anything about it (see above 1:6). 

Section two:  The Sages disagree with Rabbi Meir and hold that the distinction that Rabbi Meir made between defects discovered while in her father’s home and those discovered while in her husband’s home is not valid.  Rather, the germane distinction is between concealed and revealed defects.  The husband can claim that he didn’t know about the defects only if they are concealed.  If they were revealed, and he married her in any case, he cannot later claim that had he known about them, he would not have married her.  Furthermore, if there is a bath-house in the city, it is assumed that his female relatives knew about even the concealed defects.  In such a case he can not make any claim.   

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