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1) AN ARUSAH WHO CLAIMS THAT THE ARUS IS THE FATHER OF HER CHILD
QUESTION: Rav Yosef rules that when an Arusah was found to be pregnant and
both she and the Arus claim that the Arus is the father, then we accept her
word and we do not assume that she committed Z'nus. She is permitted to
marry a Kohen (such as when the Arus is a Kohen) and the child is Kasher.
Rav Yosef says that there are two reasons for ruling this way. First, the
Arus agrees with her claim. Second, the Halachah follows Raban Gamliel who
says that the woman is believed when she says a sure claim (Ta'anas Bari)
that she lived with a man who is Kasher (in this case, her Arus).
Abaye challenges Rav Yosef and asks that Rav Yosef's second reason is not a
good reason. Rav Yosef implies that even when the Arus does not agree that
he is the father, we still believe the Arusah because we rely on Raban
Gamliel who says that the woman is believed. Abaye asks that -- on the
contrary -- we do *not* rely on Raban Gamliel's ruling in a case where there
are Rov Pesulim Etzlah, where most of the men around her will invalidate her
to Kehunah (such as in this case, where having relations with any man other
than her Arus will invalidate her to Kehunah). Rav Yosef answers that in a
situation of b'Di'eved, the Halachah is like Raban Gamliel even in a case of
Rov Pesulim. Here, it is a situation of b'Di'eved, because the woman is
already betrothed to her Arus and wants to marry him, and thus we do not
prohibit her to him.
What is Rav Yosef answering? Raban Gamliel permits the woman in the case of
the Mishnah only because the husband's claim does not contradict the woman's
claim; the woman's claim is a Ta'anas Bari, and her husband's claim is a
Ta'anas Shema (an uncertain claim), and Bari prevails over Shema. But if the
Arus does not agree that he is the father, and the Arusah claims that he is,
then they are contradicting each other (both have Ta'anos which are Bari)
and she should not be believed!
(a) TOSFOS, the TOSFOS HA'ROSH and other Rishonim answer that the case Rav
Yosef and Abaye are arguing about, where the Arus does not agree that he is
the father, is not referring to where the Arus *denies* being the father,
but rather is referring to a case where the Arus is not available to testify
(e.g. he died, or he is abroad), and therefore we cannot ask him and we do
not know what he would claim. That is why the case is one of "Bari v'Shema,"
where Raban Gamliel says that she (with her claim of Bari) is believed.
(b) The RI (cited by Tosfos) explains that according to Abaye in Yevamos
(69b), when an Arusah is suspected of living with her Arus, we must also
suspect her of living with other men. Rav Yosef here is saying that
according to this logic, the confession of the Arus is meaningless, because
once we know that she lived with her Arus (as she herself admits), we must
assume that she lived with other men as well. Therefore, regardless of what
the Arus claims, his claim is always considered to be a Shema (and her claim
is a Bari), and that is why Raban Gamliel would permit her in this case.