Talmud - Ketubot 76b כתובות ע״ו ב׳

that his proof is from the halakha with regard to a bride who is still in her father’s house, when the burden of proof is upon the father, is it comparable? There, the father brings proof and takes money away from the husband, whereas here, the owner of the donkey brings proof and maintains possession of the cow. Consequently, perhaps this case is different, and he should not be obliged to provide proof.

Rabbi Abba said: The proof is from the case of a bride in her father-in-law’s house, that is, one who has entered her husband’s domain. The Gemara raises a difficulty: And yet the cases are still not comparable: There, the husband brings proof and undermines the presumption that was in favor of the father, i.e., the presumptive status of the daughter’s body, whereas here, the owner of the donkey brings proof and thereby maintains the presumptive status of the donkey’s body and consequently maintains the cow in his possession. Perhaps, therefore, he should not have to bring proof.

Rav Naḥman bar Yitzḥak said: Shmuel’s proof is from the halakha of a bride in her father’s house, but with regard to the money used for betrothal, not for the marriage contract. The father must bring proof in order to retain the betrothal money.

Rav Naḥman bar Yitzḥak explains: And do not say that this is only according to the one who says in general that betrothal money was not given with the understanding that it is to be lost, that is, the money was handed over only for the purpose of betrothal and it must be returned if the betrothal is canceled. Rather, say that this is even according to the one who says that in the case of betrothal money that was given to be lost, this applies only to a betrothal whose status is certain. According to this opinion, if a husband later divorces his wife or dies she does not have to restore the betrothal money. But with regard to a mistaken betrothal, if the father brings proof then yes, he may keep the money; if he does not bring proof he may not retain ownership of the betrothal money. This supports Shmuel’s opinion that in an uncertain case the one in possession of the money must bring proof in order to retain his ownership.

The Gemara raises an objection to Shmuel’s opinion with regard to presumptions from a baraita about a different issue: In a case of a needle that is found in the thick wall of a slaughtered animal’s second stomach, if it has pierced the stomach from only one side, the animal is kosher. If the stomach is pierced from both sides, meaning that the needle pierced a hole completely through the wall of the stomach, it has the status of an animal with a condition that will cause it to die within twelve months [tereifa], and one is consequently prohibited to eat from it. Furthermore, if a drop of congealed blood is found on top of the needle, it is certain that the perforation was created before the slaughtering of the animal, and it is therefore a tereifa. If no drop of blood is found on it, it is certain that it occurred after the slaughtering, which means the animal is kosher.

If a scab appeared over the wound on that spot, it is certain that the incident happened three days before the slaughtering. The significance of this fact is that if the animal was sold to a butcher after this point in time, the butcher can claim that the transaction was performed in error, as he did not intend to purchase a tereifa animal. If a scab did not appear over the wound, and the seller claims that the animal was injured while in the possession of the butcher who purchased the animal, while the butcher claims that it was wounded when he bought it, the burden of proof rests upon the claimant. And therefore, if the butcher had already given the money, he needs to bring proof and then he can take his money back from the seller.

The Gemara returns to Shmuel’s opinion: But why should this be the halakha? Let the owner of the animal, i.e., the seller, bring proof and establish the validity of the sale, just as the owner of the donkey must provide proof in order to maintain possession of the cow. Why is the burden of proof upon the butcher?

The Gemara answers: This baraita is referring to a case where the butcher had not yet given the money, but was going to pay at a later time. Therefore, the seller is the one claiming money from the butcher, and he must offer proof in order for the transaction to be upheld. The Gemara poses a question: Why was it stated without qualification? The wording of the baraita implies that either side must bring proof. This baraita appears to refute the opinion of Shmuel.

Rather, when Rami bar Yeḥezkel came, he said: Pay no attention to those rules formulated by my brother Yehuda in the name of Shmuel. In actuality, this is what Shmuel said: In whosesoever’s domain the uncertainty came into being, the burden of proof rests upon him. In the case of the exchange of the cow for the donkey, it is the owner of the cow who must provide proof. And the tanna of the mishna also taught along similar lines with regard to a bride. If the bride was in her father’s domain he must provide proof; if she was living with her husband the burden of proof is upon him.

The Gemara raises an objection: A needle that is found in the thick wall of an animal’s second stomach…the burden of proof rests upon the claimant. And if the butcher had not already given the money, the owner of the animal needs to bring proof, and only then can he take his money. The Gemara asks: But why? The uncertainty was formed in the butcher’s possession. According to Rami Bar Yeḥezkel’s opinion, it should be the butcher’s responsibility to provide proof.

The Gemara answers: This baraita is referring to a case where the butcher had already given the money. Since the butcher is the one demanding money from the seller, he must provide proof. The Gemara poses a question: But why was it stated without qualification? How is it known that the tanna was referring to this particular case? The Gemara answers: The ordinary situation is that as long as a person has not given money, the other person will not give him the animal. It can therefore be assumed that the butcher paid for the animal before he was allowed to slaughter it, which means it is he who is claiming the return of the money.

§ The mishna teaches: And the Rabbis say: In what case is this statement said? With regard to hidden blemishes. But he cannot claim to have been unaware of visible blemishes. Rav Naḥman said:

Traduction : The William Davidson digital edition of the Koren Noé Talmud, with commentary by Rabbi Adin Even-Israel Steinsaltz.

Ketuvot 76b examines burden-of-proof disputes involving betrothal money, comparing a bride's status in her father's or father-in-law's house to a contested ownership case.