Daf Yomi - Kesuvos 41 - Highlights

Mishna

The Mishna states: If one says, “I seduced the daughter of So-and-so,” he is obligated to pay for the embarrassment and depreciation by his own admission, but he does not pay the fine (based on the principle that one who admits to a fine is not required to pay, but if he admits to a compensatory damage, he will be obligated to pay). If one says, “I stole,” he is obligated to pay the principal by his own admission, but he does not pay the double payment, fourfold or fivefold payments (if he states that he slaughtered the sheep or the ox). If one says, “My ox killed So-and-so,” or “My ox killed the ox of So-and-so,” he is obligated to pay by his own admission. If one says, “My ox killed the servant of So-and-so,” he is not required to pay by his own admission (since the thirty shekel payment is deemed a fine and not a compensatory damage). This is the general rule: Whoever pays more than what he damaged is not required to pay by his own admission. (41a)

Reputation Suffering
The Gemora comments: Our Mishna is not in accordance with the following Tanna, for it was taught in a braisa: Rabbi Shimon ben Yehudah said in the name of Rabbi Shimon: Even the payments for embarrassment and depreciation, one is not obligated to pay by his own admission since he is not trusted to blemish the daughter of So-and so.

Rav Papa asked Abaye: What if the girl is willing to have her reputation suffer in exchange for the profit from the embarrassment and depreciation payments? Would he then be believed?

The Gemora answers: Perhaps her father is not willing to have the family’s reputation suffer.

The Gemora asks: What if the father is also willing?

The Gemora answers: We still will not believe his admission because others members of her family may not be willing to have their reputation suffer.

The Gemora asks: What if all the family members are willing?

The Gemora answers: There will always be one family member someplace that will not be willing. (41a)

Half-damages;
Fine or Compensation?
The Gemora states: Concerning the payment of half-damages (which are paid when a tame ox gores another animal; if the ox did not gore three times, it is regarded as an abnormal act and the animal was not intending to inflict damage; this is called a tam), Rav Papa says: This is regarded as a compensation payment. Rav Huna the son of Rabbi Yehoshua says: The half- damages are considered a fine.

The Gemora explains: Rav Papa says that the half-damages are regarded as a compensation payment, for an ordinary ox is not considered guarded in respect to these types of ‘abnormal’ damages and the owner should really be liable to pay completely for its damages. The Torah had compassion on him since his ox was not yet warned (three times) and ruled that he is only required to pay for half the damage (hence the half-damages that he does pay is considered compensation). Rav Huna the son of Rabbi Yehoshua says that the half- damages are considered a fine, for an ordinary ox is considered guarded in respect to these types of ‘abnormal’ damages and the owner should really be exempt completely from paying for its damages. The Torah penalized him and ruled that he is required to pay half in order that he will watch his ox better in the future (hence the half-damages are considered a fine).

The Gemora attempt to provide proof that the half-damages are regarded as a compensation and not as a fine. We learned in the following Mishna (Bava Kamma 14a): The plaintiff and the defendant are involved in the payment. Now according to the one who holds that liability for half-damages is a compensation payment, it is understandable why the Mishna states that the plaintiff is involved in the payment (since he is losing half of the damages which is really due to him), but according to the one who maintains that liability for half-damages is regarded as a fine, we may ask: If he receives that which he does not rightfully deserve, how can it be said that he is involved in the payment (he is gaining, not losing)?

The Gemora answers: The Mishna is actually referring to a different case altogether. It is discussing a case where the animal’s carcass decreased in value after its death, but before the case was presented to the Beis Din. (This loss is borne by the plaintiff, as the defendant is required to pay only half the difference between the value of the live animal and the carcass as it was on the day of the accident.)

The Gemora explains why it is necessary to teach this halacha by a tam and by a muad (an ox that gored three times).

The Gemora cites another Mishna: What is the difference between a tam and a muad? A tam pays half-damages from the body of the animal that damaged (the owner is not obligated to pay more than his ox was worth, even if that is less than the half-damages), but a muad is required to pay full damages from his choice property. The Mishna, however, did not state the following distinction: A tam would not pay by his own admission, but a muad will. (This proves that the half-damages are a compensation payment and not regarded as a fine.)

The Gemora rejects this proof, by saying that the Tanna of the Mishna listed only some of the differences between a tam and a muad; he did not list them all.

The Gemora cites our Mishna: If one says, “My ox killed So-and-so,” or “My ox killed the ox of So-and-so,” he is obligated to pay by his own admission. Is our Mishna not referring to a tam, and nevertheless, the Mishna states that he is obligated to pay by his own admission.

The Gemora rejects this proof by saying that our Mishna is referring to a muad, and that is why he would be required to pay even by his own admission.

The Gemora cites another statement from our Mishna: This is the general rule: Whoever pays more than what he damaged is not required to pay by his own admission. We can infer from there that if he is paying less than he damaged (such as by a tam), he would pay even by his own admission. (This proves that the half-damages are regarded as a compensation payment and not as a fine.)

The Gemora objects to this proof: We can only infer from the Mishna that if he pays as much as he damaged; that is considered a compensation payment.

The Gemora persists: If it would be correct that one who pays less than he damaged would be required to pay even by his own admission, the following is what the Mishna should have stated: This is the general rule: Whoever does not pay as much as he damaged is not required to pay by his own admission, for by saying it in this manner, it would suggest both less and more (by the fact that the Mishna does not state the rule in this manner, it proves that one who pays less than what he damaged is considered a compensation payment).

The Gemora concludes: This is indeed a refutation of the opinion who maintains that the half-damages are a fine.

The Gemora states: The halacha is that the half-damages are regarded as a fine.

The Gemora asks: If we refuted that opinion, how can the halacha follow that viewpoint?

The Gemora answers: It is because we can answer the refutation. What did we ask? If it would be correct that one who pays less than he damaged would be required to pay even by his own admission, the following is what the Mishna should have stated: This is the general rule: Whoever does not pay as much as he damaged is not required to pay by his own admission. We could not have said it in that manner because it is not an absolute rule, for there is a case of half-damages of tzroros (a case where an animal walks and shoots pebbles from under its feet causing damage to utensils), which we have learned through an Oral Tradition (halacha l’Moshe misinai) that they are a compensation payment. (Even if the half-damages by the tam will be regarded as a fine, the half-damages of tzroros is considered a compensation payment.)

The Gemora states: Now that you have concluded that liability for the half-damages is a fine, the case of a dog that ate sheep or that of a cat that ate big hens is one of unusual occurrence (and the owner would pay half-damage just like a tam) and the payment would not be collected in Bavel (since fines may be imposed in Eretz Yisroel only by a judge who is specially ordained for the purpose; no such judges lived in Bavel). If, however, the sheep or hens were small, this is regarded as a usual occurrence and the payment would be collected in Bavel. Should the plaintiff, however, seize the property of the defendant (in a case of a fine that could not be collected in Bavel), they cannot be taken away from him. Furthermore, if he asks for a date to present his case to a Beis Din in Eretz Yisroel, we set it up for him, and if the defendant does not go with him, we place a ban upon him.

Either way, however, the defendant is to be placed under the ban, for we tell him: Remove your damaging animal. This follows the opinion of Rabbi Nosson, for we learned in the following braisa: Rabbi Nosson said: How do we know that a man may not raise a vicious dog in his house, nor shall he place a shaking ladder in his house? It is written [Devarim 22:8]: You shall not place blood in your house. (41a – 41b)

WE SHALL RETURN TO YOU, EILU NA’AROS

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