Thursday, November 15, 2007

Kesubos 76a - Chezkas Haguf of Daughter Supporting Claim of Father

Rav Ashi is mechadesh that although according to R' Gamliel we should follow the chezkas haguf and say that the mum developed a moment before it was discovered, and therefore if it was discovered post nissuin the husband should loose, and even if it was discovered pre-nissuin post-eirusin the husband should still loose since we should say that at the time of the eirusin she did not have a mum; the chezkas haguf on the girl cannot support the father's claim on the kesubah, therefore if the mum was discovered post-eirusin the father cannot collect the kesuba.
Although Tosafos originally tries to explain that the logic being used by R' Ashi is that the father cannot claim a definitive claim as to when the mum developed, Tosafos ultimately submits to Rashi that the peshat is because her chezkas haguf cannot support the father's claim. It would seem that the logic is that chezkas haguf is a birur like we said yesterday, that the mum developed very recently. This only works if complimented with a claim by someone who knows when exactly the mum developed, but the father has no idea when this mum developed on the body of the girl and that is why her chezkas haguf cannot support his claim. It is only when she is making the claim that she can use the support of chezkas haguf since she presumably knows exactly when the mum developed.
Tosafos (76b d.h. kalla) applies this argument also to the case where the original owner of the donkey claims that the donkey died after it was sold, but he does not have a chazaka that it was alive and remained alives supporting him, since the chazaka on the donkey can't support the owner of the donkey just as the cheskas haguf of a girl cannot support the father. This would fit with the rationale that the chezkas haguf can only support the person who is expected to know the truth, but the original owner of the donkey has no idea when it died.

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