Monday, January 15, 2007

Shlomit's son and Shmuel's father

Ariella at KallahMagazine asks why the son of Shlomis bas Divri, whose conception was alluded to in last week's parsha, was assumed to not be the son of the husband of Shlomis (as described at the end of P' Emor), given the k'lal of “rov beilos achar haba’al", that a woman's pregnancy is assumed to be from her husband.

In a comment there, I mentioned a medrash (source forgotten, but a similar idea is mentioned in the Tzei uL'mad section of the Hagaddah under Vayar es Onyeinu) that that mentions that the men and women were separated, with the men forced to sleep outside of the city, in order to prevent marital relations. This being the case, perhaps it was known with surety that Sh’lomis and her husband had not been in contact during the night for the requisite window – in which case it would not necessarily be known by the court whom the father was, but the guy would still be a sh’tuki.

I also noted a similar idea regarding Mar Shmuel's conception, which I found in a footnote in M'yasdei HaTalmud, by R' Yoel Schwartz (Kest-Leibowitz ed., pg.78, translation mine):

"In Seder HaDoros, it is brought down in the name of the Ba'al Halachos Gedolos that it happened that a non-Jewish woman from Media who was an expert in the language of birds foresaw that Shmuel's father would bear a son who would become a great sage, and this woman wanted that the son would be from her. She promised him in exchange for this privilege a great sum of money. Abba bar Abba fled from her, went to his house, and at that time his wife became impregnated from him with her son, Shmuel. Abba bar Abba returned only for a short time, and then went on his way. Since the return of Abba was not known, and his wife conceived, they suspected her, and brought her to beis din to give her lashes for this. Her son Shmuel, who was then in her womb, had already been bestowed with great spiritual abilities, and when they flogged her, he would bend himself towards the lashes in order to absorb the beatings with his head. For this reason, they called Abba "Avuha DiShmuel" in order to emphasize that he was the father of Shmuel, and not like they had originally incorrectly suspected his wife."

(Although an adulteress usually gets chenek, being that there were no eidim here but rather only a strong suspicion, beis din could not administer the Torah-mandated punishment, so apparently used their superlegal powers to administer a punishment of their own choice).

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At 1/23/2007 10:53 PM, Blogger Barzilai said...

They knew based on the test mentioned in Maseches Yoma 85a.

At 1/23/2007 11:48 PM, Blogger Josh M. said...

I glanced at Yoma 85a, and saw some stuff about rov, about pikuach nefesh , and about t'chilas y'tziras hav'lad, but don't see the paternity test that you're referring to - please elucidate.

At 1/24/2007 9:22 AM, Blogger Barzilai said...

I'm terribly sorry. I meant 75a, toward the bottom of the daf, where the gemora says that the mohn was used as a paternity test.

Now, I know that there is an issue with lo bashamyim in determining halacha, but evidently it does not apply to fact finding.


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