Siman 19

Those who are established as kin, we judge based on this presumption even though there is no clear evidence that this one is a relative, and we lash, and strangle, and stone based on this presumption. How so? If it was established that this is his sister, or his daughter, or his mother, and he had relations with her before witnesses—he is lashed, or burned, or stoned, even though there is no evidence that this is his sister, or his daughter, or his mother, other than this presumption alone. And the Rambam wrote in the first chapter of Issurei Biah that the evidence for this matter is what the Torah judged regarding one who curses his father or strikes his father, that he shall be put to death; and from where do we have clear evidence that this is his father, if not by presumption? So too other relatives are by presumption. Thus far his words. And in the Shas [Chullin 11b] we learn from this verse that we follow the majority, for if not so, perhaps he is not his father; rather, it is because the majority of acts of intimacy are after the husband. However, in the Yerushalmi Kiddushin [Chapter 4, Halacha 10] it is derived from this verse for presumption, that therefore we execute him: Is it a clear matter that this is his father? Is it not a presumption that he is his father, and yet we execute? So too all who are established as arayot, we execute. See there. And it is possible to say that it is one matter, for this is a majority that comes by power of presumption; for do we have witnesses for that which we say "the majority of acts of intimacy are after the husband"? Rather, this is by power of presumption since they dwelt as man and wife. And also, this is certainly regarding a son born before us with his father, one does not need a presumption for this, but rather the majority, for the majority of acts of intimacy are after the husband, so that we do not suspect perhaps she conceived from another; but regarding a son and father who come before us from afar and dwelt here in the presumption of father and son, in this the majority is not applicable but rather presumption. And the Torah, which said "And he who strikes his father... shall surely be put to death" (Exodus 21:15), certainly deals both with a son born among us and with a son of presumption.

Chazakah is a significant matter, for even the father, whom the Torah granted credibility regarding his sons as is written in Choshen Mishpat siman 277, and even to render him a mamzer, nevertheless, to remove him from his chazakah he is not believed, as is written in siman 4 section 41, see there. And some say further that even though he is believed to make his son a mamzer, the intention is not that he is believed to say that his wife committed adultery with another and he is not his son, but rather that he is his son and was born to him from a forbidden relationship that results in a mamzer. However, even according to those who hold that he is believed in every case, nevertheless, against the chazakah he is not believed. And the Rambam, who wrote in the fifteenth chapter of Issurei Biah: A father who was established that this is his son and said "this my son is a mamzer" – he is believed, thus far his words; it can also be said that he says he is his son and is a mamzer as I have written. And that which he wrote afterward, that he is believed to say regarding the fetus in his wife's womb that this is not his son and is a mamzer, this is because since he was not yet born, he was not established as his son. And even if we say that his intention is according to its plain meaning and he is believed to remove him from his chazakah – this is from a chazakah that others established for him, but if he himself established him as his son, he is not believed to remove him from his chazakah, as is written there. And even this is different regarding a father because the Torah believed him, and just as two witnesses can remove anything from its chazakah, for witnesses are certainly superior to a chazakah, so too is the father regarding his son.

And there was an incident involving a certain woman who came to Jerusalem with a child riding on her shoulder, and she raised him under the presumption that he was her son, and he had relations with her, and they brought her to beit din and stoned her [Kiddushin 80.]. Therefore, a man and woman who came from overseas, she says "this is my husband" and he says "this is my wife," if they were established in the city as being his wife, we execute her if she committed adultery. The Rambam and the Tur wrote that we require them to be established in the city for thirty days, for any presumption that is not based on a prior presumption but rather a presumption of the circumstances—that the matter is so—is not established in less than thirty days [Bava Batra 167:], for longer than thirty days a person cannot restrain himself from being revealed in a matter that is not as it appears, but up to thirty days a person can restrain himself [Yevamot 111:]; therefore, after thirty days it is like a clear matter in which there is no doubt. However, this is specifically regarding others, but regarding themselves they are believed immediately, such as if they both came saying they are husband and wife and she committed adultery—she is prohibited to him immediately, for they have made her a "forbidden piece" upon themselves [Chelkat Mechokek]. But if we did not see them behaving as husband and wife and it is only based on their speech alone—an explanation is effective; if they give an explanation as to why they said so, we accept it from them when the explanation is good. But when we saw them behaving even one day as husband and wife—even an explanation is no longer effective [it appears to me, and see Beit Shmuel].

However, if the woman, upon her arrival with the infant riding on her shoulder, said immediately that this is not her son but rather that she took him to raise him—she then nullifies the entire chazakah of his being attached to her, and so too in any similar case [Taz Yoreh Deah siman 185]. And a woman who was established as a niddah among her neighbors—her husband is lashed on her account because of niddah, as is written in Yoreh Deah there, and until thirty days an amtlah is effective, but after thirty days it is not effective. However, if she wore her niddah garments—an amtlah is not effective even within thirty days, since she performed an action [Beit Shmuel, and see Taz ibid.]. And in Yoreh Deah siman 185 section 18, we explained that there an amtlah is always effective, see there.

There are some among the great authorities who wrote that regarding such presumptive statuses, for the matter of malkot and prohibitions, we follow such presumptive statuses even without evidence for the presumptive status; however, for the matter of death by beit din, we require evidence along with the presumptive status, such as that he behaves with her as a man with his wife and that her son is clinging to her. The great later authorities wrote that it does not appear so from the poskim, and on the contrary—since the Rambam wrote there regarding a woman who said "I am betrothed" that she is not executed based on her own word until there are witnesses there or it was established as a presumptive status, thus far his words, behold that by a presumptive status she is executed even though there is no evidence for the presumptive status. However, it is possible to say that a presumptive status after thirty days is effective like evidence. Nevertheless, it appears to me that certainly among these presumptive statuses, not all presumptive statuses are equal; for behold, regarding this presumptive status of clinging to her, there is a dispute in the Gemara, and we rule that we stone based on such a presumptive status, but there is one who holds that it is not effective for stoning, though it is effective for other matters. And if so, if we were to say that even a light presumptive status without evidence is effective for stoning, it would be a far-fetched dispute. Furthermore, it implies there that the one who holds that this presumptive status is effective, it is only in a presumptive status that has evidence, such as that the children are clinging to their mother and the like. It is true that in the Yerushalmi there, it implies that it is effective even in a presumptive status without evidence even for stoning, but the approach of our Talmud is not so; and since according to the Yerushalmi a presumptive status without evidence is effective even for stoning, certainly also according to us it is effective at least for malkot. But for stoning, it is not effective without evidence, and regarding that which the Rambam wrote, it can also be said that there was some evidence, such as that she conducted herself as a married woman and not as an unmarried woman.

And similarly, there are instances where they judge a death sentence based on a presumption; when two witnesses testified regarding one who had relations with a forbidden woman, they are not required to see the adulterers having initial contact with one another or that he inserted like a brush into a tube. Rather, from the moment they see them attached to one another in the manner of all who have relations—these are executed based on this sight, and we do not say perhaps he did not have initial contact, because the presumption of this form is that he had initial contact [the Rambam there]. And even if the wicked ones say that he did not have initial contact with her—they are not believed, unless it appears according to the matter that he did not have initial contact with her, such as if immediately when he lay upon her they separated them, or similar to this [see Noda BiYehudah siman 23].