לכבוד ידי"נ הרב ר' חיים יהושע בן אפרים הכהן אוסטין שליט"א לברכה והצלחה בכל מעשי ידיו!!

לכבוד ידי"נ הרב ר' יוסף עזרא בן אסתר ג'ספין שליט"א לברכה והצלחה בכל מעשי ידיו!!

The Mishna says in Ksubos 12b:

הנושא את האשה ולא מצא לה בתולים היא אומרת משארסתני נאנסתי ונסתחפה שדהו והוא אומר לא כי אלא עד שלא ארסתיך והיה מקחי מקח טעות רבן גמליאל ורבי אליעזר אומרים נאמנת

There is a case of one who marries a woman and did not find her hymen intact, and she says: After you betrothed me I was raped, and his, [i.e., her husband’s], field was inundated, [meaning that it is his misfortune that she is not a virgin, as she was raped after betrothal]. And he says: No; rather, you were raped before I betrothed you, and my transaction was a mistaken transaction. Rabban Gamliel and Rabbi Eliezer say: She is deemed credible.

The conclusion of the Gemara is that their rationale is that she is believed because she has a ברי - she is sure and he is only a maybe. And in addition, she has a מיגו that she could have said מוכת עץ אני [she lacks her בתולים because she was hit by wood] or a חזקת הגוף that she started as a בתולה. 

The Mishna later [75a], says:

היו בה מומין ועודה בבית אביה האב צריך להביא ראיה שמשנתארסה היו בה מומין הללו ונסתחפה שדהו

If she has blemishes and she is still in her father’s house, as she has not yet gotten married, the father must bring proof that these blemishes appeared on her after she became betrothed, and therefore his field was flooded, i.e., it is the husband’s misfortune, since she developed the problem after the betrothal

The Gemara explains the Mishna: 

רבא אמר רישא כאן נמצאו וכאן היו

Rava said, in the first clause of the mishna, where the blemishes were discovered while she was still in her father’s house, the assumption is that since they were discovered here, they were also created here. In other words, since the blemishes were found while she was still in her father’s house, there is a presumption that they were also present at the earlier stage, prior to the betrothal. Consequently, the burden of proof is on the father who claims the blemishes developed at a later stage.

Tosfos writes [ע"ה: ד"ה רישא] 

ולא מצי למימר השתא העמד רשות האב על חזקתו

We can't say "establish her father's reshus on his chazaka" meaning we can't establish her on her חזקת הגוף that she has no blemishes when she was in her father's domain [the language of Tosfos "רשות האב על חזקתו" is apparently not precise because her father has no חזקה in her so it must be referring to the חזקת הגוף she had in her father's domain. So wrote the תוספות הרא"ש]

דהא איתרע ליה שנמצאו ברשותו הילכך אזלינן בתר חזקת ממון

Answer: It has a Re'usa (weakness), since [the Mumim] were found in his Reshus. Therefore, we follow the Chezkas Mamon of the husband. 

והיא אומרת משארסתני נאנסתי התם נמצאת ריעותא ברשות הבעל שנשאה ולא מצא לה בתולים

Distinction: When she says "I was raped after Eirusin", there the Re'usa was found in her husband's Reshus. He married her, and did not find Besulim in her;

ולכך נאמנת לרבן גמליאל דלא איתרע חזקת רשות האב

Therefore, she is believed according to R. Gamliel, for there is no Re'usa in the Chazakah or her father's Reshus;

ואיירי בענין שיכול להיות שנאנסה תחת בעלה

The case is, it is possible that she was raped after Nisu'in.

דאי בענין שודאי לא נאנסה משנשאת אף על גב שנכנסה לרשות הבעל איתרע לה חזקת רשות האב הואיל דודאי ברשות אביה נאנסה.

Proof: If it was in a way that surely she was not raped after Nisu'in, even though she entered her husband's Reshus, the Chazakah of her father's Reshus was weakened, since surely she was raped in her father's Reshus.

In other words the ריעותא of פתח פתוח that was found in the רשות of the husband after marriage relates only to this רשות and is not a ריעותא vis a vis the other רשות. According to this, Rava argues with our sugya which explains that she is believed because of her ברי together with her חזקת הגוף and מיגו.

Asked the Hafla'ah [Ksubos 9a], according to Rava that we say "כאן נמצא כאן היה", when a man claims "פתח פתוח מצאתי", why is the woman permitted to him because of the ספק ספיקא [safek maybe she wasn't married when she had relations, safek maybe she was raped]? If there is a duration of time that would have allowed her to have had ביאה after נישואין, we shouldn't assume that it happened before the נישואין, because the rule is "כאן נמצא כאן היה" - it happened in THIS domain, just like we say with regard to משארסתני נאנסתי?!! 

The Beis Yaakov [written, ostensibly, by a girl who displayed exceptional Talmudic acumen, - the ONLY traditional sefer of complex Talmudic and Halachic analysis in history penned by a woman - in Even Haezer 68-7] answered that "כאן נמצא כאן היה" is effective only with regard to monetary matters. In such cases, the discussion revolves around the question of ביטול רשות, and the ramification is whether the sale or קידושין is valid or nullified. Since the discussion is about which domain [רשות] she is in, we say that since the ריעותא was in this רשות we don't assume that it happened in the other רשות and thus there ביטול of the previous רשות. However, when it comes to איסורים where the issue at hand is not ביטול רשות, we don't say כאן נמצא כאן היה, and we have a valid doubt about the previous רשות. Therefore, only when it comes to the כתובה when we are discussing whether it was a מקח טעות [and the issue is what רשות she is in] we say כאן נמצא כאן היה, whereas with respect to the question of whether she is forbidden to her husband, we don't say כאן נמצא כאן היה and we have a valid doubt as to whether she had ביאה before her נישואין.

To summarize - when it comes to validity of sale, the issue is determining in what רשות the event in question happened, which allows us to nullify the halachic import of her previous רשות. However, when it comes to איסורים, that is not the question, which "opens the door" to assume that the event happened in the previous רשות.

The Beis Yaakov proved this from the Gemara [Ksubos 66b] which says that when one buys an animal and it is a טריפה, since the טריפות where found while in the רשות of the buyer, we say "כאן נמצא כאן היה" and we can't nullify the transaction because of מקח טעות. Nevertheless, we say that all of the milk made earlier [when still in the possession of the seller] is forbidden as ספק חלב טריפה - "doubtful milk that may have come from a טריפה". That is what the Rashba says [Chullin 11b] who writes that when an animal is found to be  טריפה after שחיטה, all the cheeses that were made from its milk are forbidden מספק, because only with respect to ביטול רשות we say כאן נמצא כאן היה but when it comes to איסורים, the ספק definitely came about earlier.

INTERESTING!! We are talking about the same question of "טריפות", yet we assume the disease happened at different times with respect to the rules of business and Kashrus.

However, the Haflaah cites the Magen Avraham [467-21] who says that with respect to איסורים we also say כאן נמצא כאן היה, so the question resurfaces - why do we permit her with ספק ספיקא when she says פתח פתוח and not say that she is forbidden because כאן נמצא כאן היה?

We would like to offer a different answer to the question of the Hafla'ah here, and propose that even though we say כאן נמצא כאן היה with respect to איסורים as well [as we saw from the Magen Avraham], nevertheless with regard to the איסור לבעל that might be generated when he says "פתח פתוח מצאתי", the rule of "כאן נמצא כאן היה" is not relevant. 

First - TKO!! [Thinking Kippot On]: In the sugya about nullifying the marriage when the woman is found to be a בעולה, the problem is that there is a "מום" [blemish] in his acquisition. He wanted a בתולה and he instead received a בעולה. PROBLEM!! In contrast, with regard to the question of whether she is אסורה לבעל, the reason for the איסור [affectionately known as "סיבת האיסור"] is NOT that she is a בעולה, but that she engaged in a מעשה זנות - a forbidden sexual alliance. Even if she would have remained a בתולה after the act, she would still be forbidden. [In fact, if an אשת איש has ביאה שלא כדרכה, where there is no penetration and she thus remains a בתולה (if she was one to start with), that also causes her to be forbidden - :עי' יבמות פרק ו' משנה א וקידושין ט]. 

According to this it would appear that that only with respect to מקח טעות, we say that the fact that she is found to be a בעולה after her נישואין doesn't arouse a ספק that maybe she was already a בעולה in the רשות of her father. We instead say "כאן נמצא כאן היה". Her status is assumed to have been adopted in this רשות and no other. Whereas with respect to the question of whether she is forbidden to her husband, which is about the עצם מעשה זנות, the very act of promiscuity, finding her to be a בעולה now neither permits not forbids her. For as we explained, her שם בעולה has no bearing on the question of her permissibility to her husband. We just know from the fact that she is a בעולה  now that she committed a forbidden act of זנות. Now we have a doubt - When did this happen?? תחתיו or not תחתיו?? Did this happen when they married or not. With respect to the מעשה זנות, it would appear that we can't say that since her lack of virginity was discovered only now in this רשות, we can't have a doubt about the previous רשות. Because the fact is that even in the present רשות, we didn't discover the actual מעשה זנות, all we have is an indication that at some point she did something really naughty. What we see before us is not the actual מעשה but just a clear arrow pointing toward it. To explain further: Let us say that witnesses come after she was married and said that she was מזנה but they don't whether it happened before she was married or after. There we DEFINITELY don't say "כאן נמצא כאן היה". Here also, even though the doubt was brought to the fore because she is a בעולה, that is only like עדים who testified that something happened earlier.            

So that explains why we don't say "כאן נמצא כאן היה" when he claims "פתח פתוח מצאתי" but rather permit her because of the famous ספק ספיקא. 

Similarly, it would appear to explain with respect to the concept of "כאן נמצא כאן היה" in the obligation of "שאלה ומזיק". 

The Gemara [Niddah 58a] says: 

בדקה חלוקה והשאילתו לחבירתה היא טהורה וחבירתה תולה בה. אמר רב ששת ולענין דינא תנן אבל לענין טומאה היא טהורה וחבירתה טמאה.

If a woman examined her shirt and then [having made sure that it is clean] lent it to her friend [who found a stain] she is clean, but her friend may attribute it [the stain] to her. R. Sheshes explained: This was learnt only in regard to the civil law [the lender, having no valid proof that the shirt was clean when she had lent it to the other, has no legal claim on the other for the cost of washing]

but as regards the law of uncleanness the lender is clean while her friend is unclean.

Asked Tosfos:

וא"ת מדינא נמי תתחייב השניה לכבסו כדאמר בהמדיר (כתובות עו:) כל שנולד ספק ברשותו עליו להביא ראיה וי"ל כיון דאינה לשניה אלא בתורת שאלה אינה ממש ברשותה ועוד יש לומר דהתם קאמר שאם ירצה להוציא יביא ראיה אבל הכא לא תתחייב האחרונה לכבסו:

The borrower should have to pay for the cleaning because the stain was found in her רשות?! Just as we find in numerous cases  - "כאן נמצא כאן היה". Since the stain was found in the רשות of the borrower, she should have to pay. Answered Tosfos in their second answer [it seems - the language is quoted in front of you so you can decide for yourself] that we only say כאן נמצא כאן היה to hold on to money but not to extract it from someone else! Since ours is a case of extracting money, we can't employ this principle!! 

Asked the Sidrei Tahara [quoted by the Aruch La-ner]: NOT SO!! In Ksubos [76b] we see that "כאן נמצא כאן היה" also works to extract money!! The case is of a שוחט who purchased an animal that was subsequently found to be a טריפה [that could sort of rain on one's parade...] and the דין is that even though he has not yet paid for the animal, since we assume that it only became a טריפה in his רשות, but at the time of purchase it was kosher, he must NOW pay!!! So we see that even להוציא ממון we say "כאן נמצא כאן היה"?!! So why don't we say the same about the borrower of the garment and make her pay for the stain found in her possession!

Dum de dum dum - dummmmmmmmmmmmmmmmmmmmmmmmmmmmm!!!!  

We can interpret Tosfos as follows, by answering a question - with a question. So Jewish!! 

What is the reason that a borrower is obligated to wash a stain that came about when in his possession: Is it מדין מזיק, that when the stain was created while the garment was in his possession he damaged it and he therefore must either pay or clean it in order to undo the damage. Or is the obligation מדין שואל - a borrower must return an object in the same condition in which he received it. 

It appears that there is a distinction in this with respect to the דין of כאן נמצא כאן היה when it comes to a stain. If the חיוב is בתורת שואל, then his obligation is not because of the act of creating the stain but rather because of the מציאות of the stain. He has to return a garment as he received it and the reality of the stain is a barrier to fulfillment of that obligation. Since the issue at hand is the stain qua stain, we say "כאן נמצא כאן היה". The place the stain was found is assumed to be the place of its birth [MAZEL TOOOIIIIVVV on the birth of your stain!!]. 

However, if we say that the obligation is בתורת מזיק then the root of the obligation is not that the stain was born in his רשות, but rather it is the ACT of damaging [מעשה מזיק] the garment that is the source of the obligation. But if we are not sure when the stain happened or who is responsible then we cannot say "כאן נמצא כאן היה" because the "מעשה מזיק" was never "found"!! All we have is a proof that at some point there was such an occurrence. So now we have a true, objective doubt as to when the damage occurred and "כאן נמצא כאן היה" will not help us. The fact that we found the in the possession of the borrower doesn't tell us that it actually happened in his possession  - just that it happened at some point. 

So "כאן נמצא כאן היה" IS effective to extract money, just as the Sidrei Tahara proved. But that doesn't help us when it comes to the stain on the garment, if we learn that the obligation to pay is בתורת מעשה מזיק.  

The only problem is fitting our explanation into the worlds [I meant to say "words" but I like the typo, so I'll keep it] of Tosfos.... 

[עפ"י תורת מורנו הגאון רבי חיים שמואלביץ זצ"ל]