Daf Yomi - Kesuvos 40 - Highlights

Unfit to the Violator

The Mishna had stated: How does the violator “drink from his pot”? He is required to marry her even if she is lame, blind or afflicted with boils. If, however, she committed adultery after the marriage or if she is unfit to marry into the congregation, he may not remain married to her, as it is written: And she shall be to him as a wife. She must be a woman that is fit for marriage to him.

Rav Kahana said: I asked the following question to Rav Zevid from Nehardea: Why doesn’t the positive commandment that the violator should marry his victim override the negative prohibition against marrying a woman unfit to him (such as a mamzeress)?

Rav Zevid replied to Rav Kahana: When do we say the principle of Aseh doche lo saaseh? In a case like the positive commandment of circumcision overriding the negative commandment of cutting off the tzaraas on the foreskin, where one cannot choose not to fulfill the mitzvah; however here, if the victim says that she does not want to become married to the violator, there is no positive commandment at all (we therefore, in cases where she is unfit to marry him, advise the victim to say that she does not want to become married to him). (40a)

Mishna
The Mishna states: An orphan who was betrothed and then divorced; Rabbi Elozar says: One who violates her will be obligated to pay the fine, whereas, one who seduces her will be exempt (since the fine belongs to her, and her consent to the seducer is regarded as if she waived the fine). (40a)

A Na’arah is like an Orphan
Rabbah bar bar Chanah said in the name of Rabbi Yochanan: Rabbi Elozar is following in the opinion of Rabbi Akiva, his teacher, who said: A woman who was betrothed and then divorced; she has a right to the fine and the fine belongs to her. How do we know that Rabbi Elozar is following Rabbi Akiva’s opinion? It is because Rabbi Elozar states: An orphan who was betrothed and then divorced; One who violates her will be obligated to pay the fine, whereas, one who seduces her will be exempt.

The Gemora asks: Isn’t the case regarding an orphan an obvious ruling? What was the necessity for the Mishna to state such a case? Rather, the Mishna is teaching us that a na’arah, who was betrothed and then divorced (and the father is still alive) is like an orphan. Just as the fine belongs to the orphan, so too, regarding a na’arah, who was betrothed and then divorced, the fine belongs to her. (40a)

Mishna
The Mishna asks: What is the payment of embarrassment? The Mishna answers: It is based upon the stature of the one who is causing the embarrassment, and upon the one who is becoming embarrassed (a greater person causes more embarrassment and a greater victim has greater embarrassment).

The following is the manner in which we evaluate depreciation: We see her as if she would be a slave being sold in the marketplace; we evaluate how much she was worth before the violation occurred and how much she is worth now (and the violator will pay the difference; Beis Din estimates how much a person would pay for her if he were to purchase her as a slavewoman to marry off to a favorite slave, with whom he is pleased; obviously, there would be a difference in her value now that she is not a virgin any longer).

The fine is the same for every woman (and there is no need for any evaluation). Any liability where the Torah prescribes a set amount is the same for every person. (40a)

Embarrassment and Depreciation
The Gemora asks: Perhaps when the Torah said that a violator and a seducer are required to pay fifty selaim, that is the only monetary obligation, and there is no payment for embarrassment and depreciation?

Rabbi Zeira answers: If that were so, then, if one cohabited with a princess will pay fifty and one who cohabited with the daughter of a commoner will also pay fifty. Obviously not! (Since the indignity of the former is undoubtedly greater, she should be entitled to more. Hence it follows that, in addition to the statutory sum which the Torah has awarded to all alike, an additional sum for indignity must be paid in accordance with the status of the offended party.)

Abaye asked him: If so, the same might be argued in respect of a slave (killed by a muad ox). Should compensation (for whom the Torah fixes at thirty shekels) for a slave who perforates pearls be thirty and that for one who does needlework, it should also be thirty?

Rather, Rabbi Zeira explains as follows: If two men forcibly violated her, one in a natural way, and the other in an unnatural manner, shall they say that one who cohabited with a sound woman (a virgin) shall pay fifty and the one who cohabited with a degraded woman should also pay fifty?. Obviously not!

Abaye asked him: If so, the same might be argued in respect of a slave: Should the compensation for a healthy slave be thirty and that for one afflicted with boils also be thirty?

Rather, this, said Abaye, is the explanation: The Torah stated (as the reason for the statutory fine): Because he had afflicted her. It is as if the Torah is saying that these (the fifty shekalim) must be paid because he had afflicted her; however, compensation for embarrassment and depreciation must also be paid.

Rava presents an alternative source: The Torah said: Then the man that lay with her shall give to the girl’s father fifty shekels of silver. We can infer that for the gratification of lying with her, he gives fifty; however, compensation for embarrassment and depreciation must also be paid. (40a – 40b)

Embarrassment and Depreciation Payments belong to the Father
The Gemora asks: How do we know that the payments for embarrassment and depreciation belong to the father; perhaps they are paid to her?

The Gemora answers: It is written [Bamidbar 30:17]: In her naarus, in her father’s house. We derive from here that all profits generated by a na’arah belong to the father. It is therefore evident that the payments for embarrassment and depreciation go to him, and not to her.

The Gemora objects to this drasha: Let us examine that which Rav Huna said in the name of Rav: How is it known that a daughter’s earnings belong to her father? It is because it is written [Shmos 21:7]: When a father shall sell his daughter as a maidservant. The Torah juxtaposes the words “daughter” and “maidservant” to teach the following: Just as the earnings of a maidservant belong to her master, so too, the earnings of a daughter belong to her father. The Gemora asks: Why is it necessary to expound the verse in this manner? Let us derive this halacha from the verse mentioned above, namely, In her naarus, in her father’s house?

Rather, it is evident that this verse cannot be the source for this halacha. This is because the aforementioned verse is discussing the annulment of vows (and we cannot derive from there that the payments for embarrassment and depreciation belong to the father).

The Gemora asks: Why can’t we compare the two halachos, and say that just like the father has control over his daughter’s vows, he should receive the payments for embarrassment and depreciation?

The Gemora answers: We cannot derive a monetary halacha from a prohibitory one.

The Gemora asks: Let us derive the halacha from the fact that the fine belongs to the father?

The Gemora answers: We cannot derive a monetary halacha from a fine.

Rather, the Gemora concludes: It is derived by the means of the following logic: The father has a right to betroth his daughter to a repulsive man or one who is afflicted with boils (thereby embarrassing her and depreciating her value) and receive the betrothal money in exchange. It is therefore evident that the payments for her embarrassment and depreciation belong to her father. (40b)

Mishna
The Mishna states: Anytime that the father can sell her, she does not receive a fine; and anytime she does receive a fine, her father cannot sell her. The father may sell his daughter as a minor, but there is no fine for her. There is a fine for a na’arah, but she can no longer be sold. A bogeres cannot be sold and there is no fine for her. (40b)

Age of the Girl
Rav Yehudah said in the name of Rav: The Mishna’s words are in accordance with Rabbi Meir, but the Chachamim maintain that a girl can be entitled to a fine even though she can still be sold, for we learned in the following braisa: Concerning a minor girl from one day old until she produces two pubic hairs; her father is entitled to sell her as a maidservant, but she is entitled to a fine. Concerning a girl who produced two pubic hairs until she reached the state of bogeres (generally, from twelve years and one day until twelve and a half); she is entitled to a fine and her father does not have the right to sell her as a maidservant. These are the words of Rabbi Meir, for Rabbi Meir says: Anytime that the father can sell her, she does not receive a fine; and anytime she does receive a fine, her father cannot sell her. The Chachamim say: Concerning a minor girl from three years and one day old (the age where she is fit for cohabitation) until she reached the state of bogeres; she is entitled to a fine.

The Gemora asks: The Chachamim said that she is entitled to a fine. May we infer from there that the father has no right to sell her?

The Gemora answers: No! There is a fine at this age besides the right of the father her to sell her as a maidservant.

The Gemora discusses the Scriptural sources for these opinions. (40b)

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