Ketubot 76

Dead donkeys and Twitter.

If you have been following along in this tractate, you may have experienced a blend of horror and fascination at discussions of property law whose sophistication would be fully engrossing if not for the fact that the property in question is usually a woman. Today’s daf is no different. Today we talk about whether women with six toes are very much like dead donkeys.

At issue is the case of the blemished bride, a woman with a physical “defect” that is “discovered” after the engagement, turning her into a hot potato that neither her fiance nor her father wants in their house. If the blemish is old, the fiance can break things off by saying he was fooled and the woman returns to her father’s household. If it is new, he cannot. But does the fiance have the responsibility to prove the blemish old, or must the father prove the opposite? 

The answer, says the mishnah on yesterday’s daf, is simple: If the bride is in your house, then you must prove she should not be there.

I put the terms “defect” and “discovered” in scare quotes because both are subjective assessments that only make sense if the woman’s perspective is fully ignored. If the woman’s perspective had been treated as valid, this situation might have evolved into a late-but-still-crucial conversation between the couple about what each one wants in a partner. Since it is not, today’s daf proceeds to compare this situation to one in which a donkey dies in the middle of a transaction. What a difference interiority can make.

It’s hard to salvage the Talmud’s treatment of women here, but that’s fine, because today’s discussion isn’t really about women in the first place. If we remove the inconvenient fact that the Talmud’s theory of blemished goods includes people, what remains turns out to be the kind of stuff you see in the Financial Times on a regular basis. So instead of talking about why dead donkeys are akin to six-toed women, let’s talk about why dead donkeys resemble Twitter.

In April 2022, Elon Musk agreed to buy Twitter for $44 billion. Then the stock market crashed and Musk changed his mind. The problem for Musk was that changing his mind wasn’t actually an option; the agreement he signed was binding and irreversible. In order to get out of the contract, Musk had to prove that he entered the agreement under false terms — specifically, he claimed that Twitter had been hiding the percentage of users that were actually bots. Twitter’s board denied this, claiming that the bot situation was well known to Musk and so could not be used to block the sale. They wanted to sell the company just as much as Musk didn’t want to buy it. The whole thing wound up in a Delaware court.

This is essentially a larger version of the cases discussed on today’s daf, which brings us at last to our dead donkey:

Rav Yehuda said that Shmuel said: One who exchanges a cow for a donkey, and the owner of the donkey pulled the cow, but before the owner of the cow could pull the donkey, the donkey died. The owner of the donkey must bring proof that his donkey was alive at the time when the cow was pulled.

In this case, two people are trading animals, a cow for a donkey. The donkey owner takes possession of the cow, but before the cow owner can claim the donkey, the donkey dies. In that case, the donkey owner must prove his animal was alive at the time he claimed the cow, otherwise he must surrender the animal to its original owner. In other words, it’s all about the timing.

If Shmuel were sitting in a Delaware court, he’d likely say that it is Twitter’s responsibility to prove that the company’s flaws were well known to Musk before the sale (they, in fact, have done this). When the trial concludes, we may see if either party is following the daf.

Read all of Ketubot 76 on Sefaria.

This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on September 20th, 2022. If you are interested in receiving the newsletter, sign up here.

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