Ketubot Chapter 2, Lesson 8

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[Rabbi Michael Abraham] In a place where the claim is unreasonable, then I argue that the presumption does not extract money. The presumption defines me as the one in possession, so I don’t need to extract anything; you are the one trying to extract. I’m the one in possession. In fact, from someone in possession you can extract only with witnesses. “The debtor is released only by death.” But in a place where I have a presumption, in some cases possession can be undermined, and then I will win—not because the presumption extracts money. Now, how does that presumption work? How do you lose your status as the one in possession? Because it turns your claim—that you repaid within the time limit—into an unreasonable claim. You’re still holding the money. The fact that you’re holding the money remains a fact, but the claim accompanying that fact—that you repaid within the time limit—is a weak claim. It’s as if you made no claim at all. Possession without your making a claim is uninteresting, right? Now, “most women marry as virgins”—there was an initial thought in the Talmud that this does the same thing. When you claim that the woman married as a non-virgin, that is an unreasonable claim; usually that doesn’t happen. A woman marries as a virgin. You’re making an unreasonable claim. If you make an unreasonable claim, you lose your possession. Now the woman is the one in possession, and therefore here too Rabban Gamliel might say that the woman is believed—or here it’s a definite claim versus an uncertain claim, and at least according to Rabban Gamliel the woman should be believed. Because basically your claim has become like an uncertain claim, or like someone who isn’t making a claim. Therefore the Talmud says that the fact that most women marry as virgins is like turning the husband’s definite claim into an uncertain one. It simply means that his claim is unreasonable, and as we saw in the case of a person who doesn’t repay within the time limit, when the claim is unreasonable you lose possession. So it’s not that the majority extracts money; the majority turns you into someone who is not in possession. In a moment we’ll see whether this is connected to Tosafot, or later on. But I just want to make one comment: in the final conclusion it’s not like that. In the final conclusion—why, what’s the difference? Why really not? After all, with “a person does not repay within the time limit” we saw that this really does work. There too the money is with him; he doesn’t repay

[Speaker E] within the time limit—the money is with the borrower, and he loses possession over it.

[Rabbi Michael Abraham] Very simple—look. I also once wrote about this on my website: there’s a problem in the world of legal evidence, the philosophy of evidence. “Most women marry as virgins” does not mean that the claim that she married as a non-virgin is a strange claim. It’s not strange; there are women who marry as non-virgins. It’s a minority—twenty percent of those who marry, doesn’t matter right now—but there are twenty percent like that. That’s not some illogical claim; it’s not a claim against which there is a positive consideration that it is unreasonable. It’s simply less common. Right? In the case of a person repaying within the time limit, that’s an unreasonable move. No, no—that’s what I’m saying. Again, there’s a difference. Because there it could be that there are people who repay within the time limit, but they have some good reasons—either because the mortgage is eating them alive or all kinds of things like that. If there is no situation in which it’s eating at you, nobody repays within the time limit, because it’s not logical to repay within the time limit. Listen, first listen and then we’ll see whether it’s right or not.

[Speaker C] If there’s some sword of Damocles sitting on your neck, then—

[Rabbi Michael Abraham] I’ll explain. We’re talking where there is no sword of Damocles.

[Speaker C] You owe money and it’s sitting right here.

[Rabbi Michael Abraham] There’s logic: if the money is with me, I can use it, and no sword of Damocles is hanging over me, I don’t give it back. But I’m saying, look, the logic is as follows: there is a situation where the claim I’m making is unreasonable in itself. Not from statistics—the statistics are a result of the unreasonableness. Meaning: because it is unreasonable to repay within the time limit—if you have the money, why are you giving it up?—therefore the statistic is created that usually people do not repay within the time limit. If you count among those who repay, you’ll see that most do not repay within the time limit, but that is a result of the fact that it is not logical to repay within the time limit. The fact that women marry as virgins—that majority is not the result of something unreasonable. It’s just how it comes out; the statistics say that most women marry as virgins. They don’t get divorced, so why would they marry as non-virgins? A minority who get divorced sometimes marry as non-virgins, but there is nothing unreasonable here in marrying as a non-virgin. Therefore there I begin from the majority. It’s not that there is something unreasonable here and as a result, of course, a majority is created that such a thing doesn’t happen; rather here it’s only a majority, there is nothing unreasonable here. What’s the problem? Is it unreasonable for a woman who is not a virgin to go marry? Of course she wants to marry—why not? There is nothing unreasonable here. True, in most cases that is not the situation, because there is a minority of such women, but there is nothing unreasonable in itself. I’ll give you an example—this is what I said earlier about evidence in law. There is, for example, say in tort law, one of the examples I remember that people bring in this context. In tort law, say a bus hit a pedestrian in a city, and there are two bus companies in the city. The blue bus company has eighty percent of the buses. The red bus company has twenty percent of the buses. And we don’t know which bus hit him. There are no witnesses. We know a bus hit him, but we don’t know which one. Okay? The witnesses don’t remember what color it was. They’re colorblind, I don’t know what. Okay? Can I sue the blue company and have them pay me? Because there is a majority—most of the buses are blue. So the majority is against them… the majority stands against them; I have evidence that it was a blue bus. So the answer in the legal world is no. With a capital N. No, you cannot sue. Why not? But there is a majority? A majority is often used. What’s the difference between the presumption that a person does not repay within the time limit—which they would also accept in the legal world? That too is only a majority; most people don’t repay within the time limit. Why would they accept that and not this? The answer is: because there is no reason in the world to assume that a blue bus would hit the pedestrian more than a red bus would. Wait, wait—from the standpoint of the mechanism of the bus. Rather what? There are more buses like that. But obviously red buses can hit a pedestrian just like blue buses can; there are simply fewer red buses. Okay? It’s the same thing with people. Virgin women and non-virgin women both want to marry; there are simply more virgin women. Therefore the claim that the woman married as a non-virgin is not an unreasonable claim. It is a completely reasonable claim. True, in most cases that is not the situation—so what? So the situation… I’m six foot five, so when I claim I’m six foot five, is my claim weak? Because there are people like that—I’m one of them. What does that have to do with it? It doesn’t make the claim unreasonable. The statistics here stand on their own; they are not an outgrowth of some basic unreasonableness. In contrast, with the presumption that a person does not repay within the time limit, the statistic is not the claim at all. The problem is not that most people do not repay within the time limit. Maybe that is the difference between a presumption and a majority, what you asked earlier. Rather, there is a presumption that a person does not act irrationally. There is a reason not to repay within the time limit. Consequently the statistic is also formed that usually most people do not repay within the time limit. The statistic is not the claim; it is an indication of the claim. The essential claim is that it is not logical to repay within the time limit.

[Speaker D] A kind of accidental majority?

[Rabbi Michael Abraham] Exactly, exactly. It’s a little similar to an “available” and “non-available” majority, for whoever knows that, but it’s… what? It’s not exactly that, but it’s similar. In any case, so… yes?

[Speaker G] I’m just trying to define it for myself. When I talk about a majority, I’m saying what percentage of the population is X and what percentage is Y. When I talk about a presumption, I’m saying what percentages are that you are like this or like that?

[Rabbi Michael Abraham] Right, but I wouldn’t even start from percentages. I would say: it is not reasonable that you conduct yourself this way, because your mechanism—psychological or physiological, depending on what we’re talking about—is built in such a way that people don’t behave like this. Now true, there may be cases that do this, but the cases that do this are pathological cases. I need to ask myself, wait a second, what happened there? Why did they do it? And then the sword of Damocles will come. Meaning: when I ask myself why he repaid within the time limit—after all, it’s not logical—then they’ll explain to me: “No, because he wasn’t comfortable having a debt,” or “because there was interest,” I don’t know, all kinds of things like that. So that’s why he repaid within the time limit. I need excuses. When I ask myself why this woman got married and was not a virgin—do I need excuses? A non-virgin woman also certainly wants to marry. So there is a minority of such women among all women—so what? But I don’t need any explanation that tells me why it happened here. Why did it happen here? Obviously because women like that also want to marry—what do you mean? Okay? There is nothing irrational in the claim that that’s what happened. Okay?

[Speaker D] Which majority is stronger here—the statistical one, the accidental one?

[Rabbi Michael Abraham] I’m not getting into the question right now of stronger or weaker. I’m only saying that if I’m talking about whether the majority undermines the husband’s claim, then in the initial thought when I say that a person does not repay within the time limit, that means your claim is an unreasonable claim when you say that you repaid. So I say that your claim is like an uncertain claim, or like you’re not making a claim—you are not in possession. Okay? But that is where the claim is unreasonable in itself. But if your claim is completely reasonable, only in most cases that is not the situation, then you cannot say that your claim has turned into an uncertain one. That is the Talmud’s conclusion in our passage. The Talmud’s conclusion in our passage says that “most women marry as virgins” does not turn the husband’s definite claim into an uncertain one. Why not? There is such a majority. Since it is a majority, not a presumption. There is nothing unreasonable in what the husband says. The husband makes a completely reasonable claim. He argues that here one of the minority cases of twenty percent occurred—and those cases do happen. What’s the problem? No explanations are needed, no excuses are needed for why this happened.

[Speaker D] And the presumption concerning the body does…

[Rabbi Michael Abraham] The bodily presumption is not in play here at all right now. I said everyone ignores it here. If you saw Ba’al Ha-Maor, he already brings it in, but I don’t know whether you got to that. Maybe you haven’t gotten there yet. Okay, we’ll get to it later. Not now—probably next time already. So therefore, according to the Talmud’s conclusion, the majority that women marry as virgins does not turn the husband’s claim into an uncertain claim. The initial thought was that every majority does that. The conclusion is that only a substantive majority, only a majority that stems from a positive consideration, transforms the claim—because that really makes a lot of sense too. Because then your claim really does become unreasonable. When you claim that you repaid within the time limit, that is not reasonable. Give me explanations. Maybe if you have explanations then it’ll be okay—we talked about pretexts. But if you have no explanations, I don’t believe you. It’s simply not reasonable; you’re lying. Okay? But if she says, “I was a non-virgin and I married as a non-virgin,” will someone say to her, “Wait, that’s not reasonable. Prove that you did it. What caused you to do such a strange thing?” There is nothing strange here. What’s the problem? I was like that, I got divorced or widowed or something, and I wanted to marry. What’s the problem? There is nothing unclear or strange here that requires explanation. So in such a case you cannot say that this claim is an unreasonable claim. When the husband says that the woman married as a non-virgin, there is nothing unreasonable in the claim. There is a majority against him. Maybe the majority will help extract money or not—that is already the debate in the second part of the lesson, which we’ll talk about. But it does not turn his claim into an unreasonable one. Unlike the presumption that “a person does not repay within the time limit,” which nobody ties to the dispute between Rav and Shmuel. Why don’t they tie it there? Because there you see that a majority—most people do not repay within the time limit—extracts money. And there Tosafot does not comment, “Wait, so what would Rav say about that? Or Shmuel?” Sorry—that Shmuel says that a majority does not extract money. Nobody says that. Why? Because it is not a majority. The majority was created as a result of the reasoning behind the presumption. The presumption is the reason for the majority. The presumption is not the majority itself. Okay? And here there is a majority that is not based on a presumption. It’s just a plain majority. It’s a majority that women usually marry this way. Okay. Good, so if so then in the end we remain, for now—I’m moving to the end of the passage, which is our topic. We are basically in the following situation: in our passage we are talking about a definite claim versus a definite claim. The woman has no migo. Okay? Therefore here, not only according to Rabban Gamliel is the woman not believed—not only according to Rabbi Yehoshua is the woman not believed—but even according to Rabban Gamliel the woman is not believed, because this is definite versus definite. I’ll say more than that: here she doesn’t even have a migo, so even Rav Nachman, or the halakhic position, is not relevant here. Meaning, in any case the woman cannot be believed. What does definite versus definite mean? Period. Obviously you can’t extract money just because you say so. Right? You have no migo, you don’t have definite versus uncertain, you have nothing. So what do you want? But there is a majority. Now the distilled question is what the majority does. And again, the majority does not turn the husband’s claim into an uncertain one. We already backed away from that, right? But there is still a majority here in the woman’s favor. And she wants to use it to extract money. After all, she is extracting from the husband; she wants to extract another maneh from him. He wants to pay one maneh; she wants two hundred. Okay? So now she wants… now the question is why this majority does not allow her to extract money from the husband. Okay, that is basically the point.

[Speaker F] Now just going back for a second before the next step—so why does “Rabbi Yehoshua agrees” come in here? What? No, “one who admits regarding a field” in the Mishnah.

[Rabbi Michael Abraham] It’s a series of mishnayot, and this is its ending. There is a dispute between Rabban Gamliel and Rabbi Yehoshua in the previous two mishnayot.

[Speaker D] Right, they’re not connected. Right, no—he’s not agreeing to the previous things; he agrees only about the field.

[Rabbi Michael Abraham] Yes, but in the previous cases, if there were a scenario of “the mouth that forbade is the mouth that permitted,” he would agree that the woman is believed. But we said that in the case of the ketubah there is no scenario of “the mouth that forbade,” and therefore he moved to the field. But in principle this is an admission concerning the previous matters. Meaning, if that principle had been there, he would agree. Okay? Now the Talmud—now I’m coming to the end of the Talmud. “And since most women marry as virgins, then if witnesses do not come, what difference does it make?” Meaning, if witnesses do not come that she married as a virgin, right? Then she is not believed. But why? We said she has a majority: most women marry as virgins. The assumption here is that a majority probably extracts money, which is what Tosafot notes here. Okay? That a majority extracts money. Or because this majority turns the husband’s claim into an uncertain claim, and then definite versus uncertain helps to extract—but that works only according to Rabban Gamliel, right? Because after all there is no migo here. So it works only according to Rabban Gamliel. But it is unlikely that that is the intention, because we already rejected that above. And we saw that a majority of this type—which is not a presumption but simply a majority—does not turn the husband’s definite claim into an uncertain one, right? Therefore here it is clear that the question is not returning to what we discussed above, that this majority turns the husband’s definite claim into an uncertain one. Rather the question is: why doesn’t a majority help extract money? And on this Tosafot correctly comments: but according to the accepted halakhic position, we rule like Shmuel, that a majority does not extract money. Okay? We’ll still discuss that. But that is what the Talmud is asking. Here there is definite versus definite, and let the majority extract money. According to whom would it extract money? Maybe according to everyone; not specifically Rabban Gamliel and Rabbi Yehoshua. It could be that everyone agrees that a majority can extract money—or not—and that this is unrelated to the dispute between Rabban Gamliel and Rabbi Yehoshua. Okay? So the Talmud says about this: Ravina said: because one can say, most women marry as virgins, and a minority are widows, and every woman who marries as a virgin has publicity. But this one, since she has no publicity, the majority is weakened. What is he saying?

[Speaker E] If she has no publicity, then the first majority is undermined.

[Rabbi Michael Abraham] The majority that women marry as virgins is a majority in general, but here there is also an argument against her. After all, usually when a woman marries as a virgin, publicity emerges about it, and here there is no publicity. So if there is no publicity, that is evidence that she did not marry as a virgin. So basically there is a majority against a majority here, and these two majorities cancel each other out, and therefore there is no majority claim here; we’re left with definite versus definite.

[Speaker G] That word “cancel each other out” is…

[Speaker F] No, a majority—

[Rabbi Michael Abraham] against a majority. Most women have publicity. Most women have publicity. No, that’s a majority.

[Speaker F] “And every woman who marries as a virgin has publicity.”

[Speaker G] Most virgin women have publicity, not most women.

[Speaker F] There’s no…

[Rabbi Michael Abraham] No, okay. Let’s get ahead of ourselves. Every woman… for the moment that’s a one-hundred-percent majority—that’s the claim. A one-hundred-percent majority, and then they correct it and say it’s not a one-hundred-percent majority, okay. But that’s… So they say basically there is a majority against a majority, they neutralize each other, and we are left with definite versus definite, and definite versus definite does not help extract.

[Speaker C] I understand. And who said there is a counter-majority? We are in the first formulation of Ravina’s statement—or the first form of Ravina’s statement—that most women marry as virgins…

[Rabbi Michael Abraham] That is evidence against the husband, right? And then he says, but there is—

[Speaker C] here the claim that most women marry as virgins, but within this group of the majority of women, all of them—one hundred percent of that majority—have publicity. Right. And since she has no publicity, that proves that apparently she is not in that group of the majority of virgin women, and therefore she is in the minority. Exactly. Okay, but what other majority is there?

[Rabbi Michael Abraham] Well, I already got ahead of myself. The Talmud asks… the Talmud asks: if every woman who marries as a virgin has publicity,

[Speaker G] then when witnesses come—

[Speaker C] what difference does it make?

[Rabbi Michael Abraham] We are all witnesses that they are lying. Yes.

[Speaker C] What does

[Speaker G] that mean?

[Rabbi Michael Abraham] These witnesses are liars? They’re unnecessary. If there is publicity… if there is no publicity, witnesses won’t help me. There is no publicity. Every woman who marries as a virgin has publicity—every one of them. And if you have witnesses here saying otherwise, then they are false witnesses. No, but… can a majority overcome against witnesses? Overcome witnesses? Why did they say “every,” not “most”? What is “every”? What is a presumption? What kind of thing is this?

[Speaker G] If it’s not witnesses, then what is it?

[Rabbi Michael Abraham] What level of evidence is this?

[Speaker G] Is it a presumption? Is it a majority? What is it? How can it overcome

[Rabbi Michael Abraham] witnesses?

[Speaker E] Witnesses are the maximal evidence.

[Rabbi Michael Abraham] If the witnesses say that she married as a virgin, right, there is evidence against that, because usually virgins have publicity and no publicity came out about her.

[Speaker F] According to the logic of reality, then everyone knows one thing and only these two know something else.

[Rabbi Michael Abraham] No, what do you mean they know something else? The witnesses… people know nothing.

[Speaker F] In this case…

[Speaker E] The presumption is that all women who marry—

[Speaker F] have publicity.

[Rabbi Michael Abraham] A presumption—but it’s a presumption, and next to it you have two witnesses who refute that presumption.

[Speaker E] Ah, but it establishes reality, as it were.

[Rabbi Michael Abraham] It establishes reality. Now two witnesses come and tell you that this reality is not true.

[Speaker E] There is a presumption—

[Rabbi Michael Abraham] that all camels have four legs. Now two witnesses come and say, we saw a camel with three legs. So who… are the witnesses liars? No. So I say, apparently the presumption I thought before was not so strong, because in fact I have two witnesses saying no. After all, two witnesses are the maximal evidence in Jewish law. Nothing overrides them. How can one determine, by force of something, that two witnesses are liars? What is that “something”?

[Speaker F] But if every virgin has publicity in the public sphere and this one doesn’t, and suddenly two people come and say there is—

[Rabbi Michael Abraham] that she is a virgin, not that there is. Ah, that she is a virgin, right. So you see that there is a woman who is a virgin and has no publicity—what’s the problem? That is exactly what shows that the presumption is not “every” but “most.” What’s the problem?

[Speaker F] Right, that’s the claim. No, the claim…

[Rabbi Michael Abraham] The question is why we would say…

[Speaker G] Apparently that’s not what it says.

[Rabbi Michael Abraham] The Talmud retreats and says: no, it’s not “every,” it’s “most,” and therefore the witnesses are effective—not that the witnesses turn it from “every” into “most.” That’s what Tosafot… just one second, I think what is written… Look, suppose two witnesses came and said: this is a flying camel. We saw a camel flying in the air. I have no proofs that there is no flying camel, right? Would we accept their testimony? Two witnesses, maximal evidence. There are things that are absurd on their face. Things that are absurd on their face are stronger than witnesses. Meaning, if witnesses come and say that something happened which is absurd on its face, we will declare them false witnesses.

[Speaker C] Once they thought the earth was flat, and then came… who was it? Galileo? Columbus… no, but… who said it was round. Copernicus. He said no, the world is not flat.

[Rabbi Michael Abraham] Galileo was after Columbus.

[Speaker C] Columbus was in 1492.

[Rabbi Michael Abraham] But he talked about…

[Speaker C] Doesn’t matter, whoever it was—there was a theory, everyone knew, the strong accepted knowledge was that the world was flat. Then someone came and proved or testified or whatever that no, it’s a sphere. Okay, so at that moment what happens from our perspective? Right, right. So we shouldn’t have believed him?

[Rabbi Michael Abraham] Right. That’s exactly what I’m saying. In that case they really wouldn’t have believed him. Right. That’s exactly what I’m saying—very good.

[Speaker C] But then we would need to—but no, today we know that they should have believed him.

[Rabbi Michael Abraham] What do you mean? Because now I can have other people… if one person had come and said he saw it, then indeed I wouldn’t have believed him. But if he puts it to an empirical test that others can repeat, that’s tremendous—that’s what in philosophy of science is called repeatability: that one can repeat the experiment and see it again, everyone can check. Fine, that I will accept. It’s not that I never change my mind.

[Speaker I] Let’s say she went out under the bridal canopy—is that like saying “a flying camel”?

[Rabbi Michael Abraham] So I’m saying: in the Talmud’s initial thought, apparently yes. At first the Talmud thought, yes, this is like a rule. Think about it: she was betrothed without a ring—what does that mean, betrothed without a ring? There is no betrothal; that’s the law. Here it’s not really the law, but it was so deeply ingrained in the public—sometimes, yes, sometimes things that are not law are more deeply ingrained than the law itself—that this is it, one hundred percent. Whoever says otherwise is saying absurd things. It can’t be. That’s what the Talmud first thought. And therefore the Talmud says: if witnesses come about such a thing, then I assume they are liars. And to that the Talmud answers: no, not to that extent. It’s a majority, not an absolute.

[Speaker C] And therefore the Mishnah—or rather Ravina—specifically corrects it so that the witnesses won’t come out as liars, because… I didn’t understand. That’s why he corrects the law. Right.

[Rabbi Michael Abraham] I asked why at first they turn them into liars.

[Speaker E] So apparently every presumption based on an absolute, if they come and say something else, then it becomes like a fly—

[Rabbi Michael Abraham] Yes, but I wouldn’t derive any such sweeping conclusion from that. It’s not excessive. Because here I really want to go back to what I said before.

[Speaker G] I’ll just note that there is some winged camel in the book of… right. In Gary from the East.

[Rabbi Michael Abraham] Winged, yes, but that doesn’t mean there was also a creature that… okay.

[Speaker G] Someone imagined it, that’s all.

[Rabbi Michael Abraham] In any case, yes, a unicorn—there are all kinds of creatures, yes. Okay, in any case, so the Talmud says,

[Speaker G] one could argue, like Tosafot says, that this is not really testimony; it’s just the revelation of a fact.

[Rabbi Michael Abraham] Wait, wait—Tosafot isn’t yet talking about that; Tosafot is talking about a different passage. But I’ll get there in a moment. I want to go step by step. Why are they liars?

[Speaker F] I didn’t understand. Because they are saying something absurd, like saying we saw a flying camel.

[Rabbi Michael Abraham] Why is it absurd? Because a virgin woman marries under the bridal canopy, period. There is no exception. It is always like this. When you say something strange, there can be no such thing. That is the claim. Again, the Talmud retracts. But what did they testify? They testified that she went out under the bridal canopy, yes.

[Speaker F] And she has no publicity. Why is that absurd?

[Rabbi Michael Abraham] Because there is no such thing. Every virgin woman has publicity.

[Speaker F] Okay, so that is what

[Rabbi Michael Abraham] I said earlier, like a flying camel. You said something absurd.

[Speaker F] But now we said: most, not all.

[Rabbi Michael Abraham] Wait—so the Talmud’s conclusion is not all but most, and therefore the witnesses do not become liars but are accepted. Okay? Because it’s only a majority. Now I’m saying, here one can understand this in two ways, and that’s why I introduced all of this earlier. One can understand what I answered Noa earlier: that basically we thought it was all, then we retreated and said it is most, and once it is most we are also willing to accept the witnesses. One can also say something else: we assumed it was all, and the witnesses who came showed us that it is not all but only most. Ah, good. Meaning, the fact that there are witnesses showing us an exceptional case—how can you disqualify witnesses? In other words, what the Talmud says here is exactly what I myself asked against it. How can you disqualify witnesses by force of a claim that is weaker than witnesses? Apparently it is not all but most; that’s what the witnesses are telling you—what’s the problem? Then I don’t need to retreat from “all” to “most”; rather the witnesses themselves are telling you that it isn’t… In other words, I’m saying, the point is important, because what will happen in a place where it is clear to us that every woman who marries as a virgin has publicity—we know this from very clear experience? In such a situation, would it really be the case that when witnesses come they would be liars? If you read the Talmud simply, the answer is yes. Because the Talmud says no, I’m speaking about a place where this is not known absolutely but only in most cases—this is an interpretive limitation. But if there were a place where it was completely clear that this is the case, and witnesses came and said she married despite having no publicity, we would declare them liars. According to what I’m saying, that’s not so. Because what I’m saying is that the moment witnesses come, that itself tells us that what we thought was not an absolute thing but only a majority. Their very arrival turns it into that. Okay? Good, so now here there really is… okay, so… before I go into the logic of the matter for a moment. Basically right now the situation is this: we have two majorities facing each other. Right? There is one majority against the husband: most women marry as virgins, therefore she deserves two hundred; her ketubah is two hundred. There is one majority against the woman: if, as you say, you were a virgin, there should have been publicity. Most women who marry as virgins have publicity. So that is a majority against you, and there is a majority against him. So basically the majorities cancel each other out, and we are left with definite versus definite, and therefore the woman is not believed unless there are witnesses. If there are witnesses, then that’s something else. Okay? Now Tosafot says as follows. Tosafot, on the words “And this one—since she has no publicity, the majority is weakened.” It is difficult, because we learned in our chapter: “These are believed to testify when grown up regarding what they saw when they were minors.” Right? Witnesses come—now they are already adults, but minors are disqualified from testimony. Minors are disqualified from testimony. Now they come and testify about an event that happened when they were minors. So when they saw it, they were disqualified witnesses. Now when they come to testify, they are valid witnesses. So the Talmud assumes that this is not testimony. Testimony must begin in validity and end in validity. Meaning, even when they see the case, they already have to be valid witnesses. It isn’t enough that they

[Speaker D] be valid when they come to testify. It doesn’t matter. In this case, because if it’s testimony about publicity, then it’s testimony about publicity.

[Rabbi Michael Abraham] If it’s testimony about an event, then it’s about an event. It doesn’t matter—the question is what the testimony concerns. If the testimony concerns publicity, then they have to hear the publicity as adults. If the testimony concerns an event, then they have to see the event as adults. So this—wait, in a moment we’ll see—it’s only the revelation of a fact. So the Talmud says: “I remember concerning so-and-so that she went out under the bridal canopy and with her head uncovered.” Right? That is, for example, a case of witnesses who are believed to testify as adults regarding what they saw as minors. And the Talmud says: what is the reason? How can this be? After all, this is not testimony. Since most women marry as virgins, it is merely the revelation of a fact. Basically we would know this even without them, because most women marry as virgins, so even if witnesses had not come, we would in fact assume that women marry as virgins. And on that the Talmud says: since that is so, we are also willing to accept the testimony of these somewhat questionable witnesses, because there are grounds supporting it. Now, an important point: those supporting grounds will not work without the witnesses. Right, exactly. We see that in our passage, right? In our passage, “most women marry as virgins” does not work. Okay? It doesn’t work. But with the support of the witnesses who testify as adults about what they saw as minors, it does work. Why? What? So then it’s not because of testimony.

[Speaker G] Exactly. But as testimony, it’s not.

[Rabbi Michael Abraham] As testimony, it’s not. And therefore it cannot work alone, but only with the support of the majority that women marry as virgins. Okay? Together they create credibility.

[Speaker C] But what’s the difference between testimony and merely revealing a fact? Because when a witness comes to testify in court, he reports reality as he saw it. That’s the same thing as revealing it.

[Rabbi Michael Abraham] That’s what he does, but that’s not his legal role in court. In court, for example, two related witnesses come and testify about some event. We do not accept their testimony, even though the assumption is that they are telling the truth.

[Speaker C] The factual revelation exists, but testimony doesn’t.

[Rabbi Michael Abraham] Exactly. Meaning, if “revealing a fact” means an indication of what reality was, what the facts are, that can be accepted from various sources, not only from witnesses, and certainly from witnesses who are not necessarily valid. But testimony in court has rules. There are testimonies that are not valid, so I may have the factual revelation in them, but I will not have the legal status of testimony. As testimony, no. There are all kinds of other reasons why I don’t accept it, even though at the level of factual revelation it’s fine. It may be weaker; it may even not be weaker—maybe it’s just a scriptural decree.

[Speaker D] They don’t relate to factual revelation at all.

[Rabbi Michael Abraham] No, they do relate to it. That’s why I’m saying: yes, they do relate to it. But it is not testimony. So on the one hand testimony alone cannot constitute it. On the other hand, if there is a majority that women marry as virgins together with factual revelation, that’s fine. Okay? It has some kind of weight, but it is not testimony. It is only evidence. So that evidence, when joined with the majority that women marry as virgins, is fine. Then Tosafot asks: and now, what case are we talking about?

[Speaker C] Wait, isn’t it testimony now—both of them? But it can join the majority, and the majority also isn’t testimony.

[Rabbi Michael Abraham] Right, they are pieces of evidence.

[Speaker C] So it’s like two things that still need some additional thing.

[Rabbi Michael Abraham] Why? No, they are pieces of evidence. This evidence extracts money, okay? Even without testimony.

[Speaker C] Even without testimony. Yes. It’s a matter of quantity of evidence versus quantity—say, whoever has more evidence.

[Rabbi Michael Abraham] I don’t know how to formulate a sweeping rule. I don’t know how to formulate a sweeping rule. There need to be enough sufficiently strong pieces of evidence. I don’t know exactly quantity, quality—it’s hard for me. It varies greatly from context to context. And now Tosafot asks: what case are we speaking about there? If she has publicity—if publicity emerged that this woman married as a virgin—why do I need any testimony at all? Then their support is unnecessary. Most women marry as virgins, and there is publicity that she went out as a virgin—that would certainly help, right? Like…

[Speaker C] If she had publicity, we wouldn’t need the issue of the majority and this majority at all. She had publicity, and that was the publicity, and end of story.

[Rabbi Michael Abraham] No, I understand, but that publicity stems… wait.

[Speaker C] If she had publicity, we wouldn’t begin from the majority at all.

[Rabbi Michael Abraham] I’m not one hundred percent sure—that’s an interesting comment—I’m not one hundred percent sure you’re right. Because in the end I need the evidence, I need the evidence that most women marry as virgins. That’s the support. Except that if there is no publicity about her, then that majority falls. That majority falls because who says she married as a virgin? But what ultimately extracts the money is the majority, sorry. The publicity only leaves the majority standing. That’s what I’m saying.

[Speaker C] Meaning, most were virgins and modest, but those who are virgins have publicity, so that’s… okay. That can be evidence.

[Rabbi Michael Abraham] It can be evidence, but I’m not sure it extracts money. It’s peripheral… who said publicity extracts money? Publicity is not much of an evidentiary basis. In a place where there is a majority that women marry as virgins, that is a majority. A majority is evidence. It’s only that if there were no publicity, it would knock down the evidence of the majority, because after all that is what the Talmud says: since among most virgins publicity emerges, if no publicity emerged, that is against her, and so it undermines the evidence of the majority. But I’m not sure that publicity by itself extracts money. That is not clear at all.

[Speaker C] But if publicity emerged… it could also be a presumption that publicity doesn’t just emerge for no reason. Publicity is something heard.

[Rabbi Michael Abraham] The question is how strong that is. Publicity is something that one can also generate in all kinds of ways. I can create deliberate publicity. “Listen, she married as a virgin,” and then that one says, yes, I heard that’s what happened, and I create publicity that actually came entirely from me. After all, publicity is not accepted as testimony with two witnesses whom we interrogate; it’s rumor, right? So the point is this: if there is no publicity, that is strong evidence against her, because publicity should have emerged. If there is publicity, that is not good evidence in her favor, because who knows who started that publicity? Exactly. If there is no publicity, that will undermine the evidence of the majority that most women marry as virgins. But that does not mean that if there is publicity, then that publicity will be enough to extract money. I tend to think that publicity will not extract money. Publicity is not something that extracts money. Publicity is a side indication. It cannot be… the absence of publicity cannot be deliberate. One cannot deliberately suppress publicity. Right? If publicity emerged that she was a virgin, it emerged that she was a virgin; you can’t suppress it intentionally. But to generate publicity even though she is not a virgin—to generate publicity that she married as a virgin—that you can do. You start spreading such a rumor.

[Speaker C] According to Rabbi Yochanan ben Beroka, who says they distributed roasted grain—isn’t that… right. Was that not ruled as Jewish law?

[Rabbi Michael Abraham] Yes, yes—why not?

[Speaker C] The distribution of roasted grain is exactly like publicity.

[Rabbi Michael Abraham] That’s not witnesses… what did we see? Why not?

[Speaker C] That’s not

[Rabbi Michael Abraham] witnesses, but it is direct evidence. The distribution of roasted grain is not something deliberate; they see it in the ceremony. They see at the ceremony that roasted grain was distributed.

[Speaker C] And who are the ones who see it?

[Rabbi Michael Abraham] The witnesses. And if witnesses saw that roasted grain was distributed…

[Speaker C] The witnesses at the wedding canopy, right? The rabbi arranging the ceremony says, you are witnesses and you are witnesses, and that’s it…

[Rabbi Michael Abraham] No, that’s unrelated—those are the betrothal witnesses. But witnesses to the fact that roasted grain was distributed can be any two people from the audience. They report that at the ceremony roasted grain was distributed. These are not the betrothal witnesses. The betrothal witnesses testify to the betrothal, but here we are dealing with monetary law, unrelated to betrothal. The question of whether roasted grain was distributed there is a factual question. Any two witnesses from the audience can come and say that roasted grain was distributed there.

[Speaker G] Roasted grain was distributed there. Not “clayot.” “Kaliot.” Roasted things. With a kuf. Yes, yes—things they roasted, in short.

[Rabbi Michael Abraham] Kaliot—roasted things. Roasted things. “Bread and roasted grain and fresh grain.” Kali. Kali. Okay.

[Speaker G] But “kali,” in most places where it says kali, is with a kamatz, which falls away from “kaliot.”

[Rabbi Michael Abraham] The distribution of roasted grain can be an indication like publicity. What? No, roasted grain is not publicity. Witnesses come and say roasted grain was distributed; it’s not that publicity emerged that roasted grain was distributed.

[Speaker E] Why not? Because with the bridal canopy too it’s witnesses.

[Rabbi Michael Abraham] There are witnesses to the fact that she went out under the bridal canopy. Something happened at the ceremony; some event happened. About what happened at the ceremony, testimony has to come. Okay?

[Speaker C] So what does it add, what Rabbi Yochanan said here? What do you mean? I understood that anything that creates the impression she’s a virgin…

[Rabbi Michael Abraham] Right. Now he says that even the distribution of roasted grain is such an indication. Right. What’s the problem? In his locale apparently that was the custom; elsewhere maybe not.

[Speaker C] To me that sounds more similar to publicity than to rumor when they come to say…

[Rabbi Michael Abraham] No, no, no, absolutely not. It says explicitly in our Talmudic passage. The Talmud says “witnesses” explicitly. Concerning the bridal canopy it says in the Mishnah, and also the distribution of roasted grain—what Rabbi Yochanan ben Beroka says joins what is written above. Witnesses about the distribution of roasted grain. And the Talmud itself says, what use are the witnesses? And it is speaking there also about the distribution of roasted grain. In prohibitions, publicity is enough, right? What? What does it mean that publicity is enough?

[Speaker G] No, not enough to extract, but to serve as…

[Rabbi Michael Abraham] I think that anywhere it’s not absolute, here it’s enough to have clarification of the matter. With prohibitions, after all, one witness is believed regarding prohibitions, which isn’t part of the formal laws of testimony at all. If it’s strong enough, then I assume yes. Okay, so Tosafot says—right, so what case are we talking about there? If she has a public report, then the whole story never gets off the ground, obviously, right? Because you don’t need any testimony. The moment there’s a public report, let’s follow the majority, as is asked here. Rav is the one who follows the majority even in monetary law, right? And if she has no public report, then the majority has been undermined and you’d need two valid witnesses. The majority has been neutralized, and here clarification of the matter isn’t enough—you need two valid witnesses. Right? Because there’s no majority anymore. And here is your proof that in order to extract money, a public report or this kind of clarification of the matter isn’t enough; you need witnesses or a majority. Okay? But if there were a public report, that still wouldn’t help. The public report only prevents a flaw in the majority. That’s all. But the public report by itself would not extract money. Fine. So that’s what Tosafot—what Tosafot is asking here. So apparently we see that the majority that most women marry as virgins and have a public report does not knock out the majority that women marry as virgins, as it says in our Talmudic passage. Otherwise it isn’t clear there what the Talmud is saying on page 28. Okay? So Tosafot says: and if you want to say that when he testifies that he saw in his childhood, and another was with him, we regard that as a public report—well, here it asks, “they are false witnesses.” What does he mean to say? What he’s trying to say is that these witnesses are obviously liars. No—“here it asks, ‘they are false witnesses.’” So he proposes some answer and then rejects it on the basis of our Talmudic passage, right? So let’s think first about the answer he’s proposing, before bringing in our Talmudic passage.

[Speaker C] That this little child together with another child, that’s all, and they create the public report. The public report from then—as if now we’ve gone back in time.

[Rabbi Michael Abraham] Not the public report from then—the public report from now. Not the public report from then. The public report exists now.

[Speaker C] The public report—

[Rabbi Michael Abraham] When a public report circulates, what that means is that the public report reaches the court even now. It’s as if the report is circulating in the world. Yes, yes. And the witnesses who come now are just telling us that there is such a public report. Okay? So Tosafot says—and by the way, in Bava Batra there’s a parallel Tosafot; I’ll refer you to it in the second part of the passage on page 92. There it’s more explicit than here in Tosafot. There are two extra words there. The claim is that these two witnesses who come and testify in adulthood about what they heard in childhood—that itself creates a public report. That itself creates a public report. So then here the majority that women marry as virgins can function—it doesn’t get neutralized by the majority that there’s no public report, because here there is a public report. These witnesses—this is the public report. That’s the answer Tosafot proposes. But we say these are false witnesses. Wait, wait, wait—you’re asking me now about the difficulty from our passage. I’m asking what answer Tosafot proposed to his own question. After that we’ll see how he rejects that answer. In the same sentence he proposes an answer and rejects it: “they are false witnesses,” from our passage. I’m asking what answer he proposed before the rejecting question. The answer he proposed is that these two witnesses who testify about what they saw in childhood themselves constitute the public report. How do you say to me—you’re saying the following: most women marry as virgins, right? We asked, fine, but this woman has no public report. And that neutralizes the majority that most women marry as virgins—she should have had a public report. So therefore here we should have needed valid witnesses; these kinds of clarifying witnesses wouldn’t be enough, and so on, right? But now she does have a public report. Tosafot says, what do you mean? These witnesses are themselves the public report. Here, in fact people are coming and telling you that she married as a virgin. That isn’t formal testimony, so you don’t need valid witnesses here. It’s enough that people come and say that people are saying she came out under a bridal canopy.

[Speaker C] Meaning, what we thought at first—that she had no public report—now it turns out she does have a public report.

[Rabbi Michael Abraham] Exactly. These witnesses themselves create the public report.

[Speaker E] But it sounds like the other witness wasn’t a child at the time.

[Rabbi Michael Abraham] Right, right.

[Speaker C] The other witness was with him—“another was with him,” exactly.

[Speaker F] What difference does it make? Whatever it is, that’s still one.

[Rabbi Michael Abraham] Why does that matter? But still, there aren’t two valid witnesses here, right?

[Speaker F] The status of the one who was a child doesn’t count.

[Rabbi Michael Abraham] So what? But he counts as a public report. That’s it. So that’s what Tosafot says.

[Speaker F] But there’s something here—the proof isn’t because it counts as a public report, but because if a witness—

[Rabbi Michael Abraham] Such a one—

[Speaker F] —is enough, that means there is only one witness, because the second one isn’t… No, it’s not a witness, it’s a public report. It’s not a witness at all; it’s a public report.

[Rabbi Michael Abraham] The Talmud there says that it’s not testimony, it’s clarification of the matter. And then the majority is enough? The majority works by the rule of clarification of the matter, not by the rule of testimony. The Talmud there says that, right? So I don’t care that there is one valid witness; bottom line, these two are not witnesses. There aren’t two witnesses here. So Tosafot asks why that helps. Apparently the Talmud says it’s because most women marry as virgins. Tosafot says, I don’t understand, but here it says that most women marry as virgins doesn’t help, because there’s also the majority that women who marry as virgins have a public report, and we’re talking about a case where there is no public report. So what does it help that most women marry as virgins? You should have needed two valid witnesses here; these two bits of clarification of the matter aren’t enough. That’s what I asked. Tosafot says: not true—it could be that these two very makeshift witnesses, who aren’t valid witnesses, nevertheless themselves create the public report, and then there’s no problem, no defect in the majority—wait, wait—no defect in the majority saying that most women marry as virgins. I asked: but usually there’s a public report, so why doesn’t this woman have one? Who says she doesn’t? Here, there is one—what do you want? So now she can extract the money on the basis of the majority that most women marry as virgins. Okay? Now you’re asking, so why do we need the child witness? It could be that for a public report you need two people, though not two valid witnesses. You can discuss what counts as an indication that a public report exists. It could be that one person alone isn’t enough. That’s already debatable. Fine?

[Speaker C] Why is he an adult now—that’s what you should ask. Doesn’t matter. Because you could say there were two children.

[Rabbi Michael Abraham] Right. Doesn’t matter. Right. Right. So that’s what Tosafot proposes as an answer. Now how does he reject it? Look. So that’s what he says: and if you want to say that when he testifies that he saw in his childhood, and another was with him, we regard it as a public report. And if you say this can resolve the passage there so it won’t contradict the passage here—what I just said—well, here it asks, “they are false witnesses.” What does that mean? Here we see that it doesn’t work. If two valid witnesses come here, we still say that it shouldn’t have helped; we would declare them liars. Why? Let’s say they themselves constitute the public report. What’s the problem? Right? We would say they are false witnesses. Therefore Tosafot rejects this answer. So this answer doesn’t work. It can’t be that these two witnesses themselves constitute the public report, because even two valid witnesses can’t do that. So how could these two witnesses serve as the public report? If that were so, then here too there would be no problem at all.

[Speaker C] He understands the Talmud the way we first understood it and not the second way, where you could say that the witnesses themselves show you that this is a majority and not an absolute rule.

[Rabbi Michael Abraham] I don’t understand this Tosafot at all—even before your comment, which is also a good comment. After all, in the Talmud’s conclusion the witnesses are not liars; they are believed witnesses. When did we think they were liars? When we thought that all women marry as virgins, but that was corrected—now we understand that only most women marry as virgins, and in that situation if two witnesses come, despite the lack of a public report, if two witnesses come they are believed, right? Why are they believed? Maybe precisely because they are the public report? What’s the problem? What does Tosafot want? He asks on the passage there based on an initial assumption that was rejected in our passage. If the rule really were that every woman has a public report, then I understand, but that’s not true. Most women have a public report. That’s a very strong difficulty on Tosafot. What do you say? Over there?

[Speaker F] So if we go back to the Mishnah on page 28, they show there various cases where the child can testify and can’t testify. So if in this case of a woman he can testify, then they ask why. Because they rely on the fact that most women marry as virgins. Meaning, if in this case it works, then they don’t need his testimony. So from here it comes out that this majority is strong enough, and therefore greater than the majority of the public report…

[Rabbi Michael Abraham] No, of course they need his testimony. Otherwise why does he come?

[Speaker F] Because they simply write that it only comes to provide support—clarification of the matter.

[Rabbi Michael Abraham] Right, but you still need that support. Without the support, it wouldn’t happen.

[Speaker F] You don’t need that support, because he isn’t considered a witness.

[Rabbi Michael Abraham] I know he isn’t considered a witness; that’s why it’s called support and not testimony. But what do you mean? If he comes to give support, and you don’t need that support, then what support is he giving? You don’t need the support. If we accept him as giving support, that means he adds something.

[Speaker F] But they rely mainly on the majority.

[Rabbi Michael Abraham] I don’t know what “mainly” means. You need both things. What difference does “mainly” make?

[Speaker F] You need both things. And if there it works, that’s how we understood it—if there it works, that means this majority is stronger than the other majority that—

[Rabbi Michael Abraham] Right, that’s Tosafot’s question. Good. Now the question is what the answer is. You explained Tosafot’s question very nicely.

[Speaker F] That the majority that most women marry as virgins is preferable to the majority that women who marry as virgins have a public report.

[Rabbi Michael Abraham] Not true. But in our Talmudic passage it says not like that. That’s Tosafot’s question. In our Talmudic passage it says not like that, so how can the Talmud there say yes? That is exactly what Tosafot is asking. And what he answers is: okay, but maybe that is itself the public report—those two. And he rejects that from our Talmudic passage, because in our Talmudic passage it says that if two witnesses come, we declare them liars.

[Speaker F] Rabbi Popovsky’s comment—

[Rabbi Michael Abraham] After that it’s about—wait, wait, leave Rabbi Popovsky aside.

[Speaker F] Don’t bring Rabbi Popovsky in here right now because we’ll get even more tangled. He strengthens what we understood here, that this majority is stronger than that majority. No, no, no, no. Tosafot says that; it’s not Rabbi Popovsky. Tosafot says—wait, why—fine, we’ll explain why Tosafot…

[Rabbi Michael Abraham] We’ll get there. It’s not connected. In our Talmudic passage it says that neither one is stronger than the other—that’s what it says in our Talmudic passage.

[Speaker F] That according to Tosafot on page 28, the majority that women marry as virgins is stronger than the majority…

[Rabbi Michael Abraham] Wait, wait, wait—Tosafot hasn’t said anything yet. We’re still at the question stage. At the question stage Tosafot says that in our Talmudic passage these two majorities are equal. They neutralize one another, right? Good. Now in the Talmud there on page 28 it says not like that. Right? Because it says most women marry as virgins, and it ignores the fact that most of them have a public report. Tosafot asks: how can that be? So he proposes an answer. What’s the answer? Those two witnesses, or those pieces of clarification of the matter, that come on page 28—they themselves are the public report. That’s the answer he proposes.

[Speaker F] Where do you see that in the wording?

[Rabbi Michael Abraham] I’m not a little—rather, Ravina said—sorry, it says: and if you want to say that when he testifies that he saw in his childhood, and another was with him, we regard that as a public report. What is that? That’s a proposed answer. Maybe the fact that he comes and testifies, and another was with him, is what counts as the public report. Therefore he is believed; a public report went out, so everything is fine. You can rely on the majority that most women marry as virgins, and there’s no difficulty how it could be that she married as a virgin if there’s no public report about her—because there is a public report about me. Here, these two are the public report. What’s the problem? Tosafot says you can’t say that. Why? It could have resolved the two passages. Tosafot says you can’t say that. Why? Because in our Talmudic passage we see that even when two valid witnesses come, we declare them liars because there is a majority—the majority that women who marry as virgins have a public report. So you must be lying. And these two, who are not valid witnesses, you would accept? Even two valid witnesses you don’t accept; you declare them liars. So why not say that those two valid witnesses who arrived are themselves the public report, and then everything is fine? What’s the problem? Rather, we see from our Talmudic passage that it’s not like that. That’s how Tosafot asks it. And I’m saying: I don’t understand this Tosafot. After all, in the conclusion of our passage we do accept those two witnesses, since it’s not that all women who marry as virgins have a public report, but only most. And then if two witnesses come and say she married as a virgin, we accept them. Right? So if we accept them, then we could also have accepted them there—what’s the problem? Guy, but—

[Speaker E] Those two witnesses aren’t testifying that she married as a virgin; they are testifying that she went out with a bridal canopy. No, that she went out with a bridal canopy. I—

[Rabbi Michael Abraham] I think the answer is this. In our Talmudic passage I brought two possibilities. So that relates to Yael’s earlier comment. I brought two ways to learn our Talmudic passage: what happened between Abaye and Rava in the conclusion. At first we thought that all women who marry as virgins have a public report; we retreated to saying most women. Did we retreat by making a forced reading? Or did we say: no, the very fact that two witnesses came—basically the situation is that all women who marry have… a public report goes out. Fine? But when two witnesses come and say she went out with a bridal canopy, then that itself means there isn’t… exactly, it changes the “all” into a “most.” That itself—it’s not a forced reading. Yes. But all that is only when there are two valid witnesses. If the two witnesses are not valid, then we continue to declare: “they are false witnesses.” The two witnesses on page 28 are not valid witnesses. And the rule is that all women who marry as virgins have… have a public report. When two valid witnesses come against that, that itself proves that this woman is an exception. That is what the Talmud answers. But all that is only when there are two valid witnesses here. There, though, we are dealing with clarification of the matter, not witnesses. Clarification of the matter doesn’t help; it’s false clarification of the matter. Because I have an “as if witnessed by all” certainty that all women who marry as virgins have a public report—it’s 100%. But call it a majority. What? So I’m saying that if you read it the way I read it, then Tosafot is resolved. The Talmud does not correct “all” to “most.” It says that even if it’s all, if two witnesses come against it, they override it; that shows you that this woman is probably exceptional. But that is when there are two valid witnesses. If some kind of clarification of the matter comes along, who says that is strong enough? I’ll still say those clarifications of the matter are false—or mistaken, because he is testifying about his childhood.

[Speaker C] Why does the Talmud call them “those witnesses are false”? It does call them witnesses, so when it says—

[Rabbi Michael Abraham] No, our Talmudic passage. Our Talmudic passage is talking about valid witnesses. The phrase “false witnesses” is in our Talmudic passage.

[Speaker C] What is “ours”?

[Rabbi Michael Abraham] Our Talmudic passage, page 16.

[Speaker C] Yes. And on page 28, what are they called there?

[Rabbi Michael Abraham] Nothing. There’s no expression. Okay? So I think that’s the only way to understand Tosafot; otherwise what he says is completely untenable.

[Speaker F] Why does he write in the end that the testimony of “he saw in his childhood and another was with him” would not help? What does that mean? In what sense… why would it not help?

[Rabbi Michael Abraham] What—again, where are you? At the end of Tosafot. Wait, we haven’t read it yet. Ah, we did read…

[Speaker F] But that was the answer…

[Rabbi Michael Abraham] No, no, I didn’t answer anything yet. I’m reading it stage by stage. I’m saying: Tosafot raised a difficulty from page 28. Now, “and if you want to say that when he testifies that he saw in his childhood, and another was with him, we regard it as a public report”—that’s a proposal to resolve the difficulties. No, that can’t be. “Here it asks: they are false witnesses.” From the Talmud’s question here—“they are false witnesses”—we see that this answer collapses. I just explained how we see that. Okay? So that answer falls. Fine, so we remain with the question. Tosafot says: “And one may say that the majority of women marry as virgins is stronger than the majority that women who marry as virgins have a public report. And when she has no public report, the majority that women marry as virgins is not undermined so much that the testimony of ‘he saw in his childhood’ and others would not help.” Exactly. Meaning, it was not undermined to such a degree that this would not help; rather, it does help. It wasn’t undermined to that extent. There’s an interesting point here. In fact, just yesterday I wrote a column about this on the website; I referred you to the page. I don’t know whether you got a chance to read it. It’s very amusing, because it’s a mistake—a very common mistake. Huh? More colorful. Yes, exactly. That’s what I like; there are drawings here. So do you have a marker, since we’re already talking about drawings? Does anyone have a marker?

[Speaker F] You could try with this, and they’ll erase it with acetone.

[Rabbi Michael Abraham] No, I don’t want to ruin the board. We called it “annoyed or not annoyed”; that’s a different question from whether it’s correct or not. You know, sometimes the truth is annoying. Look, the point is this. Let me ask you a question like this. It’s not something I didn’t write there; I only referred to another article where I wrote it. What happens if there is a person… no, here I’m more or less done, because now I’m going to explain why the Noda B’Yehuda, in “What does ‘wholly exempt’ mean,” we don’t need him. Wait, should I bring a marker? No, doesn’t matter, I can manage without one. Look, the point is this: I’ll ask you a probability question, okay? You went to a doctor, and there’s concern about some rare disease. I went to the doctor, there’s concern about a rare disease that I might have. The doctor sends me for a test. The test has 99% reliability. Okay? I got tested, and I was found positive. What is the chance that I’m sick? One percent. Ninety-nine percent? One percent.

[Speaker C] Why? There’s a very high chance that you’re sick—ninety—

[Speaker E] —nine percent.

[Rabbi Michael Abraham] The reliability of the test is 99%.

[Speaker E] Ninety-nine percent.

[Speaker C] Among the people who actually come for the test… no, okay. Among the people who come for the test.

[Rabbi Michael Abraham] The reliability of the—

[Speaker C] —test is 99%.

[Rabbi Michael Abraham] The reliability of the test—it errs in 1% of cases.

[Speaker C] Ninety-nine percent that it’s right. No?

[Rabbi Michael Abraham] I understand. Let’s do the calculation and you’ll see that it’s not true. It’s one of Daniel Kahneman’s tricks. Ninety-eight, fine. Think of a million people going to be tested. Okay? The disease is rare, let’s say…

[Speaker F] No, wait, you said the test has 99% reliability.

[Rabbi Michael Abraham] Yes, yes. Now I’m translating that into numbers so it’s easier to see. Look. Let’s say this rare disease occurs in one in a million, just for the sake of example. Okay. Ninety—wait. There are a million people in the country, okay? One of them is sick. Okay? Everyone goes to be tested, for the sake of argument. How many are found to be sick? One.

[Speaker E] Why? The doctor might have decided on a few more.

[Rabbi Michael Abraham] No, everyone went to be tested. It’s not that the doctor decided. Everyone went to be tested. How many come out with positive test results? Positive meaning sick.

[Speaker F] Wait, you said a million?

[Rabbi Michael Abraham] Only one person is sick out of the million. For sure? In probability—we know. It’s a rare disease, one in a million.

[Speaker F] And a million people were tested. How many of them—

[Rabbi Michael Abraham] —will the test say are sick?

[Speaker F] Ninety-nine—

[Speaker C] Wait, the test is 99%, okay, so—

[Rabbi Michael Abraham] Ten thousand people.

[Speaker C] Ten thousand, exactly. What? Why?

[Rabbi Michael Abraham] Because the test misses in 1% of cases. So there are a million healthy people; 1% of them—that means ten thousand—will come out sick. Right? One hundred thousand… that is, ten thousand people will test positive, of whom how many are really sick? One. The chance that I’m sick is one in ten thousand. But that depends on the numbers… the test is 99% reliable. An almost perfect test medically speaking—there are hardly any tests like that. Okay? When I went to be tested and came out positive, I can go home cheerful and happy—there is basically no chance that I’m sick.

[Speaker D] But it depends on the numbers.

[Rabbi Michael Abraham] Fine, I’m talking about these numbers. Where… what… negligible probability. One in ten thousand doesn’t interest anyone. The point—

[Speaker I] Now it could happen exactly the other way around, that someone came out… yes, it’s the same issue.

[Rabbi Michael Abraham] Look, the point is this: the reliability of the test has to be evaluated against the prevalence of the disease. If the disease is very rare—like very small fish—you need a net with very small holes to catch them. Okay? When the disease is very rare, you need a very highly reliable test in order to detect it. The level of reliability of the test has to be of the same order of magnitude as the prevalence of the disease. Same order of magnitude. And if it is the same order of magnitude, your chance of being sick is one-half. Not one, even then. But that’s already order 1, yes? That’s already more or less meaningful. If there’s a significant gap, it’s completely meaningless. A test with 99% reliability is worthless. The same, by the way, is true of legal evidence. I said this to a judge friend of mine. I told him: look, evidence comes before you and you estimate it at 99%. What is the chance that the person is guilty? Zero. How many murderers are there in the population? Basically none. It’s a very rare phenomenon. So evidence that with 99% certainty he murdered is worthless. Why does it nevertheless work there? I wrote about that in the article. It’s true both in medicine and in law. Why does it work there? It works there because we apply filters, and this connects to what we were discussing here. For example, there is the presumption of innocence—that was the subject of my column. The presumption of innocence. The presumption of innocence means that most people in the world are innocent, right? Most citizens in the world have not committed a crime. Okay? Is it correct to relate to a defendant that way? Wait—isn’t that exactly connected to this issue? Is it correct to relate to a person who comes before us, on the factual level and not the legal one, as someone who most likely did not commit a crime? The answer is no. It is not correct. Because among those who stand trial, the percentage of criminals is not one in ten thousand, or whatever it is in the population at large. There the probability is much higher. I don’t know—50, 80, depending on the conviction rate. Okay? A much higher rate. Therefore the presumption of innocence—those who think that the presumption of innocence is an indication of the facts are mistaken. It is not an indication of the facts; it is a legal presumption. And the same thing with the presumption that whatever is in a person’s possession is his. I spoke about this in one of the previous classes; now I’ll translate it into the language here. What is the presumption regarding what is in a person’s possession? Most objects in the world, when you see them where they are lying, are in the house of their owner. Is that true? Does it follow from that that an object that comes to court most likely belongs to the defendant? The answer is no. Because in this subgroup of objects about which there is a dispute in court, there is no majority in favor of the defendant. Why assume he is telling the truth and the plaintiff is lying? There is a presumption of integrity for both sides. I would assume fifty-fifty. How does that fit with the general presumption? Since once I focus on a subgroup within the larger group, it is not at all certain that the distribution true of the larger group is also true of that subgroup. The fact that in the general population there is only one criminal in ten thousand does not mean that among those standing trial there is only one criminal in ten thousand. On the contrary, it is very likely not so. Right? In other words, once I focus on a subgroup like those who went to be tested—among those who went to be tested it isn’t 1% that the… those who were found, sorry, those who were found positive, not those who went to be tested. Among the group of those who were found positive, the distribution is not the same as in the general population. It is completely different. Precisely because of the calculation we did before. When you focus on a subgroup within a general group, you must not apply the distribution of the general group to the subgroup. That is wrong. Sometimes, if I have no information at all, then I assume it’s ergodic, yes, I assume the distribution is the same for the whole group as for every part of it. But where I do have information distinguishing this subgroup—for example, that I tested positive on this test, or that I was put on trial and went through a hearing and police investigation and have already been charged. Meaning, I haven’t yet been found guilty in court; I’m not yet certainly guilty. But the chance that I’ll be found guilty is not one in ten thousand as in the general population. Now here it’s the same thing. That is exactly what is happening in our case.

[Speaker F] Wait, but the conclusion was that with one test, if you find that this is it, then at the beginning you said the chance was one in ten thousand.

[Rabbi Michael Abraham] Of course. But now take all those whom the test identified as sick. Right. How many of them are really sick? One in ten thousand. Where is the reliability of the test? The reliability of the test is true for the whole million, not for this special group of ten thousand. The distribution over the whole million is one in a hundred, one in ninety-nine. The distribution within those ten thousand is one in ten thousand. Because it’s a biased subgroup. It’s a subgroup not taken randomly from the whole million. It’s a subgroup that went through a process of filtering, a non-neutral process. So its distribution is entirely different. Okay? Now in our case it’s exactly the same.

[Speaker J] Wait, so women who are virgins—

[Rabbi Michael Abraham] Wait, now I’m getting to our case. What happens in our case? Most women marry as virgins. Fine? That’s the general group. No, the general group is all women who marry. Of them, a majority are virgins and a minority are non-virgins. Okay? Now I take all the women about whom no public report went out that they were virgins. Among the virgins, a majority have a public report. Right? Among those about whom a report went out—among those about whom no report went out, sorry, no report went out. Is there a majority of virgins? Absolutely not necessarily. Let’s take an example. Okay? Suppose we have 100 women who got married. Fine? Eighty of them married as virgins. Okay? Three quarters of the virgins have a public report. Okay? How much is that? Sixty. So there are sixty women who married as virgins… half and half. Where did the majority go? Because among those about whom no public report went out, that’s an isolated and biased group. The general distribution is not correctly applied to that group. But notice, it depends very much on the strength of the two majorities. Because here I made the first majority 80%, and 75% out of that 80 is the second majority. That brought me exactly to fifty-fifty. Now think of a situation where the first majority was 60%. Suppose 60% marry as virgins, and of those, three quarters have a public report. So 45 have a public report, 15 virgins have no public report, and 40 non-virgins have no public report. Now when a woman with no public report comes before me, clearly she is a non-virgin: 40 against 15. There’s a majority, right? It depends very much on the strength of the majorities. And notice, the point of equality is reached not at 80-80, but at 80-75, because the second majority is over a subgroup of the first majority. The majority that women who marry as virgins have a public report is among those who marry as virgins, which is only the majority out of all women who marry. Right. Therefore, to reach the point of equality, it’s not when this one is 80% and that one is 80%, but when this one is 80% and that one is 75%. Then there is equality.

[Speaker F] But when Tosafot says this majority is preferable to that majority, that basically means 80 versus 60.

[Rabbi Michael Abraham] Exactly. Exactly. Exactly. What Tosafot says here—and you don’t need Rabbi David Poverarsky for this—what Tosafot says here is that the first majority is 80% and the second majority is 60%. And therefore, basically there is a majority in favor of non-virgins in principle. No. Yes. There is a majority in favor of non-virgins, and therefore the woman is not believed. But if—there is a majority in favor of non-virgins.

[Speaker F] No, there is a majority in favor of those who marry as virgins. No, he was talking about that—Tosafot said the majority that women marry as virgins is preferable to the majority that they had a public report.

[Rabbi Michael Abraham] I’ll explain. I’ll explain. I’ll explain. There are a hundred women who got married. Fine? Sixty percent of them marry… wait, wait, no, eighty… no, sixty. Sixty percent of them marry as virgins. Three quarters of the virgins have a public report. Fine? Forty-five. So let’s see what we have now. Forty-five virgin women who have a public report. Fifteen virgin women who have no public report, and forty non-virgin women who have no public report. Now a woman with no public report comes before me, and I don’t know whether she is a virgin or not. Most likely she is a non-virgin. Right? Now you’ll ask me why the woman isn’t believed, since the first clause of the Mishnah is that the woman isn’t believed. There are two majorities here. The answer is: because this majority is preferable to that majority. What will happen if—wait—what will happen if two witnesses come and say that this woman married as a virgin? Then they are testifying that she belongs to the 15 and not the 40. No problem—there are 15 such cases. Okay. It’s not superiority of quality, but of quantity.

[Speaker C] There are 15 such cases. Like I’m saying, the majority says the quantity of women who marry as virgins is higher. That majority is—

[Rabbi Michael Abraham] It could be higher.

[Speaker C] The majority of women who marry as virgins with a public report is greater than the number of virgin women without a public report.

[Rabbi Michael Abraham] Right. Right.

[Speaker C] So then necessarily this one is bigger.

[Rabbi Michael Abraham] Right. Or alternatively, if it were the opposite—say the non-virgins were 20 and the virgins were 25. Virgin women without a public report, and non-virgins without a public report. Then there is a majority in favor of virgins. Right. So in principle that majority should have helped, at least according to Rav, who follows the majority even in monetary law. So why do we need the witnesses? After all, the Mishnah says she is not believed. Only with witnesses is she believed; without witnesses she is not believed. But there is a majority here. And the majorities cancel each other, says the Talmud. Cancel each other to what? Cancel each other in a way such that even net, there is still a majority in favor of virgins without a public report against non-virgins without a public report. If so, we have accomplished nothing. Because there is still a majority here, and according to Rav a majority can extract money. Right. So you have to say that it cancels out either to equality or in favor of the majority of the non-virgins, and then in principle the woman is not believed. But if witnesses come and say, “No, she was a virgin,” and there are 15 virgins who have no public report, then she belongs to the 15 and not the 40. Perfectly fine. If there are witnesses who say she belongs to the 15, that’s fine. Okay. But that’s not what he is saying. Why? Because he says—

[Speaker F] “The majority that women marry as virgins”—that majority is preferable to the majority that women marry with a public report. Right. It’s a bigger majority.

[Rabbi Michael Abraham] What does “bigger majority” mean? Bigger majority, and therefore what?

[Speaker F] And therefore the rule that most women marry as virgins is stronger than the other majority, and so it wins in terms of the—

[Rabbi Michael Abraham] Right, so why do you need witnesses here? Without witnesses she isn’t believed; that’s what the Mishnah says. Only if she went out under a bridal canopy is she believed. Why? So I’m saying no, he doesn’t mean that. He means that this majority is not preferable in that sense… this majority is the basic majority. It is the majority of the 80 out of 100. And the second majority… is secondary to it: 75 out of 80. Fine? Once this majority is preferable to that one, in the end it can happen that there is a majority of non-virgins and they are not believed. But if witnesses come and say that this woman belongs to the minority, then that’s fine, no problem.

[Speaker F] So why does the Rabbi explain all this? You say we don’t need it, but why does he explain all this?

[Rabbi Michael Abraham] He explains it as if he didn’t do the statistical calculation. He sees these two majorities.

[Speaker F] He wants to say that this majority is stronger than that majority.

[Rabbi Michael Abraham] Obviously. And I disagree with him on the substance too, and I also don’t think we need what he says. I disagree with his answer as well.

[Speaker F] Rashi also has two of them.

[Rabbi Michael Abraham] Right. I disagree with that. I disagree with his answer.

[Speaker F] Why does he even begin with this explanation?

[Rabbi Michael Abraham] That’s what I’m talking about. Why I disagree with him, I didn’t—

[Speaker F] —explain.

[Rabbi Michael Abraham] I didn’t explain why I disagree with him. I explained why we don’t need what he says. Why one can understand Tosafot without any connection to what he says. Just simply, the situation is such that the majorities really don’t cancel each other out. It’s not because two are against one and fancy conceptual difficulties. These are probability questions. Probabilistically, they simply do not cancel each other out. That’s all. Rabbi Popovsky looks at it as if there is a majority here and a majority there, and the question is whether they cancel each other out or not. But it’s not that. It’s a majority over a subgroup of the first majority. It’s not majority against majority on the same platform. And I think when Tosafot says this majority is preferable to that majority, he means preferable in the sense that it deals with a larger group; it is prior to it. Not that it is preferable in the sense that it is a higher percentage.

[Speaker D] The first is a majority over the whole, and the second is a majority within that majority. Exactly. Exactly. So why is it not undermined that much?

[Rabbi Michael Abraham] Not undermined that much. There is still an advantage to the majority, but it is not undermined that much, and therefore the witnesses are enough. And the witnesses—not the witnesses—the valid witness…

[Speaker F] No, no, in our passage, in our Talmudic passage.

[Rabbi Michael Abraham] But it doesn’t matter—whether in our Talmudic passage or there or anywhere, it’s all… not important. In Tosafot and Rashi they gave an example of eighty—

[Speaker F] Eighty and twenty, twenty…

[Rabbi Michael Abraham] But we don’t know the numbers. Yes, yes. Once we don’t know the numbers, we have to make assumptions. So Tosafot says: I assume the cancellation is not exact.

[Speaker D] It’s almost fifty-fifty.

[Rabbi Michael Abraham] Okay, so that’s what Tosafot says: it is not undermined that much. There is an advantage, but a small one. Yes. I learned it this way—that this is said here because… it’s a question of numbers. You can assume that in the end it becomes equal, twenty against twenty, and then the witnesses or the public report can tip the balance. Depending whether you follow Rav or Shmuel. Because according to Rav, who says the majority extracts money, then you have to assume there is no majority here without the witnesses. Because if there were a majority here without the witnesses, it would extract money even without them. But we’ll talk about that next time. The discussion next time will depend on what I said here—remember that.

[Speaker E] Thank you very much.