Waiving her Rights

The Gemora (Kesuvos 42a) states that a bogeres (over twelve and a half years old), who has been seduced waives her rights to the fine, depreciation and embarrassment payments because she voluntarily agreed to the seduction. The Gemora above (40a) also stated regarding an orphan: One who seduces her will be exempt from all payments since the fine belongs to her, and her consent to the seducer is regarded as if she waived the fine.

The Ketzos Hachoshen (424:1) explains that a bogeres or an orphan that has been seduced waives her rights to any payments. In truth, there is an obligation for the seducer to pay, but later, she waives the payments. This functions because of the concept of mechilah.

Reb Shimon Shkop (42) states that this cannot function based on an ordinary mechilah because the payments are not yet in existence; one cannot be mochel something that is not in existence yet. Furthermore, the girl should be able to retract from the mechilah before the seducer stands for judgment. Rather, she is waiving her rights to make any claim against him. The right to this claim is in existence and once she decides this, she cannot retract later.

The Ketzos (207:8) cites from the Bnei Yaakov that the argument that mechilah should not be valid because the payment is not in existence yet is not a valid one. This is because the seducer is liable for the payments as soon as he cohabits with her. Since she consented, she is mochel this obligation. He adds that even if she can be mochel the payments before they are actually in existence, she certainly cannot sell the rights to the payments to another before they are in existence. The payments are only in existence in respect to her rights to waive the obligation on the seducer to pay her.

The Yerushalmi disagrees with our Gemora and states that the girl who is seduced can only waive the rights to the embarrassment and depreciation payments, but not the fine. This is because a person is unable to be mochel something that is not yet in their possession. The Ridvaz explains: The primary purpose of the fine is not a monetary payment; it serves as an atonement for cohabiting with this girl, and she has no right to waive the payment that the seducer needs to pay in order to be forgiven.

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RABBAH; ABAYE’S TEACHER

Abaye inquired from Rabbah: A person claims that someone violated/seduced his daughter, and he took him to a different Beis Din which indeed found that the perpetrator must pay. The accused denies everything, and swore to this effect. The accused then admitted that he lied. What would be the law in this case according to Rabbi Shimon? As he had indeed stood trial and was obligated to pay money to the father, is this considered denying money in an oath for which one must bring a korban? Or do we say that even though the verdict that he owed money was already handed down, it is a matter of a fine (for which one does not bring a korban according to Rabbi Shimon if he denies owing the money under oath)?

Rashi writes that Rabbah bar Nachmeini was Abaye’s teacher. The commentators ask: Why did Rashi find it necessary to inform us that Rabbah was Abaye’s Rebbe; there are numerous times throughout the Gemora that Abaye inquired of Rabbah, and Rashi does not write that Rabbah taught Abaye?

(As an aside, the Maharalbach (64) writes that this particular sugya is lengthy and extremely difficult and there are many questions, especially on Rashi’s explanation of the Gemora. He cites fourteen questions. His student, the Maharashdam (Y”D 402) asks another twenty-four questions and answers them all.)

The Gemora cites Rabbah’s answer and Abaye’s challenge from a braisa. The commentators ask: It is evident that Abaye knew this braisa, so why did he inquire from Rabbah in the first place? The Ritva answers that it is common for a student to ask his teacher a question to hear his explanation even though he can resolve it on his own, and then, he will ask from a braisa in order to ascertain if the answer is indeed correct.

Rabbi Chaim Braun suggests that this might be the explanation of Rashi. Rashi writes that Rabbah was Abaye’s teacher in order to explain why Abaye is inquiring of Rabbah even though he knew the resolution himself.

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Daf Yomi - Kesuvos 42 - Highlights

Mishna

A na'arah who was seduced, her embarrassment, depreciation and her fine goes to her father; and the pain, for the one who was violated.

If she stood in judgment before her father died, then they are the father's. If the father died, then they are the brothers. If she did not manage to stand in judgment before the father died, then they are her own. If she stood in judgment before she became of age, then they are the father's. If the father died, then they are the brothers. If she did not manage to stand in judgment before she became of age, then they are her own. Rabbi Shimon says: If she did not manage to collect the payments before the father died, then they belong to her.

Her earnings and what she finds, even though she did not collect them, and the father died, they then belong to the brothers. (41b – 42a)

The Novelty of the Mishna

What is the Mishna teaching us? Didn’t we already learn in a previous Mishna that one who seduces pays three types of payments and one who violates pays four. One who seduces pays for embarrassment, the blemish, and the Torah mandated fine for seducing. One who violates also pays for the pain he inflicted.

The Gemora answers that our Mishna added that the payment goes to her father. The Gemora asks that this is also obvious, as these payments are given for seduction. If they would be given to her, then no payments would be necessary for seduction, as she did so willingly!

The Gemora answers that the novel teaching of the Mishna is (indeed not regarding the types of payments, but rather) the argument of Rabbi Shimon and the Rabbanan in a case where the father died before the case finished in Beis Din (see 41b). (42a)

Denying Violation/Seduction in an Oath

The Mishna discussed a case where a father claimed from someone that he violated or seduced his daughter, and the person rejected his claim. The father said that he should swear that he did not do so, and the person indeed swore. Later, however, he admitted that he indeed was the perpetrator. The Tana Kama states that he is obligated (to pay the amount for doing this sin discussed above, plus pay an extra fifth and bring a “korban asham gezeilos”). Rabbi Shimon says that he is exempt, as a person does not pay a fine when admitting to having to pay a fine (only when witnesses prove that he is obligated). They (Tanna Kama and others) retorted to Rabbi Shimon that although it is true that a person does not pay a fine based on his own admittance, here the person denied having to pay for embarrassment and the blemish as well (which are not fines). [He is therefore obligated to add an extra fifth and bring a korban, as would a regular person who swears that he does not owe money that he indeed owes.]

Abaye inquired from Rabbah: A person claims that someone violated/seduced his daughter, and he took him to a different Beis Din which indeed found that the perpetrator must pay. The accused denies everything, and swore to this effect. The accused then admitted that he lied. What would be the law in this case according to Rabbi Shimon? As he had indeed stood trial and was obligated to pay money to the father, is this considered denying money in an oath for which one must bring a korban? Or do we say that even though the verdict that he owed money was already handed down, it is a matter of a fine (for which one does not bring a korban according to Rabbi Shimon if he denies owing the money under oath)?

Rabbah replied that this is already considered (denying owing) money, and Rabbi Shimon would agree that he is obligated to bring a korban.

Abaye asked Rabbah a question on his conclusion (from a Braisa). Rabbi Shimon stated that one might think that if someone accuses his friend of the violation/seduction of his daughter and he denies it, or accuses that his friend’s ox killed his slave and he denies it, or his slave accuses him of knocking out his tooth or blinding him (for which he would go free) and he denies it, that if he swears it is not true and then admits he lied he would be obligated (to also pay a fifth and bring a korban). The passuk therefore states “and he denies to his friend regarding a object he was watching, or money he had invested/loaned, or stole, or did not pay him his wages, or he found a lost object and denied it and swore falsely (see Rashi Vayikra 5:21).” Just as the examples listed in the passuk are all unique in that they involve payments obligated, so too this only applies regarding payments obligated. This excludes fines, for which this law is inapplicable. Abaye therefore asked, this must be (also) talking about a case that had already went to trial (and yet Rabbi Shimon says that denying owing such money will never result in a korban).

Rabbah answered: no, the Braisa is talking about a case where it did not yet go to trial. Abaye asked: being that the first part of the Braisa is discussing where the case went to trial, it makes sense that the second part of the Braisa (the statement of Rabbi Shimon) is also discussing a case that went to trial. The first part of the Braisa states that we only know that if someone pays this penalty on regular monetary obligations. How do we know that this also applies to (laws where one is obligated to) owing double the amount, four or five times the amount, violation, seduction or giving a newly married woman a bad name? This is derived from the passuk “and he has violated a violation,” which teaches us to include all of these types of monetary obligations.

What is the case (in this first part of the Braisa)? If the case did not yet go to trial, why would one be obligated to pay double? It is therefore clearly talking about denying money that he had already been obligated to pay by Beis Din. Being that the first part of the Braisa is talking about a case that had already went to trial, the second part must also be talking about a case that went to trial!

Rabbah said that I can theoretically answer you by saying that the first part of the Braisa is talking about cases that already went to trial, and the second part is talking about cases that did not yet go to trial. The entire Braisa is according to Rabbi Shimon (who is discussing post-trial cases in the first part, and pre-trial cases in the second part). However, I will not give you a difficult answer, for you could reply that (if this is so) the Braisa should have stated in the beginning “Rabbi Shimon says” or at the end “these are the words of Rabbi Shimon (the normal style of a Braisa with one author).

Rabbah continued that in fact, the entire Braisa is discussing cases that are post-trial. The first part of the Braisa is authored by the Rabbanan, while the second is authored by Rabbi Shimon. I will admit that regarding a korban for lying in such an oath Rabbi Shimon says one is exempt (even post-trial), based on the word “and he denied” (as stated in the second part of the Braisa). When I said that it was considered money, I meant that this is true regarding inheritance for his children (that if the father dies after the verdict regarding violation/seduction, his sons inherit the money owed as opposed to the daughter). [See Rashba regarding how Rabbah could have meant this when Abaye directly asked him about a korban, not about other laws such as inheritance.]

Abaye continued to ask Rabbah a question from another Braisa. Rabbi Shimon states: if she did not collect the money until the father dies, she keeps the money. If you say that Rabbi Shimon holds that the money is inherited by his sons, why does Rabbi Shimon say that it goes to the daughter? It should go to the sons!

Rava stated: this question was difficult to Rabbah and Rav Yosef for twenty-two years, and it was not answered until Rav Yosef became the Rosh Yeshiva (after Rabbah died) and answered the question. He answered from the passuk “and the person who slept with the girl will give the father of the girl fifty silver coins.” This implies that it only becomes the father’s money when it is given. When Rabbah said that this is deemed money he gives over in inheritance to his sons, he only meant that this is true regarding other fines, not violation/seduction. [The Rashba explains that Rabbah always held this way, but could not answer Abaye’s question of what was his source that there is a difference between the fine of violation/seduction versus other fines that are inherited to sons before they are collected. The source of the teaching had been lost, until Rav Yosef rediscovered it when he became Rosh Yeshiva.]

The Gemora asks, regarding the killing of a slave (by one’s ox) it says “he must give thirty shekalim to his master.” Here, too, say that this means it only becomes the masters when he actually receives the money!

The Gemora answers that the word “he should give” is different than the word “and he will give.” [Rashi explains that “he should give” is a command for the future.]

The Gemora asks, why did Rabbi Shimon in the Braisa derive that violation/seduction is exempt from a korban because of the word “and he will deny?” This should be derived from the word “and he will give” (as this word shows that violation/seduction is unlike all of the things mentioned in the passuk, as they are already considered his money).

Rava answers: the pasuk “and he will deny” is needed in a case where there was already a trial, after which the girl became a bogeres (older than twelve and a half) and then died. In such a case when the father inherits the fine, he inherits it from his daughter. [Rashi explains that in a case where the daughter receives the fine, Rabbi Shimon agrees that it is considered her money before it is collected. Accordingly, this case is similar to other monetary cases in that the money is considered her right away.]

The Gemora asks: if this is so, how could Rabbi Shimon say (in the Braisa) that these are exceptions as they are fines? We see that there are some cases within these categories that are like regular monetary obligations! Rav Nachman bar Yitzchak answered: he meant that these are exceptions as they are primarily fines. (42a – 42b)

[END]

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YAAKOV’S ACQUISITION OF CATTLE

It is written [Breishis 30:43] regarding Yaakov Avinu: And the man increased exceedingly, and had large flocks (sheep), and maid-servants and men-servants, and camels and donkeys. It is not mentioned in the Torah that Yaakov had cattle. Why not? We see that Yaakov sent to Esav cattle, as it is written [ibid, 32:6]: And I have oxen, and donkeys and flocks, and men-servants and maid-servants; and I have sent to tell my lord, that I may find favor in your sight. A few verses later, we also see that Yaakov had cattle. It is written [ibid, v. 8]: And he divided the people that were with him, and the flocks, and the herds, and the camels, into two camps. Yaakov sent cattle to Esav, as it is written later in the same Perek. Perhaps one can answer that Yaakov acquired the cattle afterwards; if so, the question may be asked: Why didn’t he acquire cattle beforehand?

The Gemora in Yevamos (16a) relates the following incident: Yonasan the son of Hurkenas met Rabbi Akiva. He questioned him and silenced him. He asked him, “Are you the Akiva whose name is known from one end of the world to the other? You are fortunate indeed to have merited such a name, but you have not yet reached the level of an oxherd.” Rabbi Akiva replied (with humility), “I have not even reached the level of shepherds.”

It is evident from here that it is more difficult to be an oxherd than a shepherd. One does not need to be so careful when watching sheep – he has to watch that the sheep do not graze in other people’s fields. When one is watching cattle, he must be concerned that the cattle do not damage other animals or people. This is not a simple task, as the Gemora (Kesuvos 16a) states: Rav Papa says that the half-damages that an ox-owner is required to pay if his animal gores 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).

If one takes the animals that he is entrusted to watch into a desert, a place where there are no private fields, watching sheep there is almost effortless; he does not need to be cautious at all. However, he still must be vigilant in his guarding of the cattle, lest they damage other animals or people, for it is common for there to be other animals and people in a desert.

Yaakov did not want to watch Lavan’s cattle, for he was worried that the cattle will cause damage and Lavan would not be willing to pay for the damages. He was able to tell Lavan that he does not posses the expertise necessary to watch cattle. This excuse was only possible if he did not have cattle of his own. He did not acquire cattle until after he departed Lavan’s house, for now, if his cattle would damage, he would be liable, and he would certainly compensate anyone for any damages cause by his animals. (Igrah d’kallah)

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IS IT NATURAL FOR AN OX TO GORE?

The Gemora (Kesuvos 41a) 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).

Reb Dovid Pervarsky writes that this is not a factual dispute if ordinary oxen are accustomed to gore or not. Rather, the argument can be explained as follows: Rav Papa maintains that it is inherent in the nature of an ox to gore. Sometimes it will not gore because it does not feel the desire to gore at that time. When the animal does gore, it is not considered an abnormality at all. Rav Huna the son of Rabbi Yehoshua holds that it is not natural for an ox to gore at all; when it does gore, it is regarded as an abnormality.

Reb Dovid is not comfortable with this explanation of the argument, for the Gemora’s language is that an ordinary ox is not considered guarded; if the animal is not goring (for whatever reason), it should be considered “guarded”!?

He therefore concludes that this is the explanation: Rav Huna the son of Rabbi Yehoshua holds that it is not natural for an ox to gore at all; if it does gore, it cannot be labeled as a “damager,” since the ox was considered guarded. Rav Papa, however, maintains that it is in the nature of an ox to gore, and when it gores, it can be labeled a “damager.” This is what obligates the owner to watch his animal even though it is not accustomed to goring.

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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

[END]

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Positive Commandment Overriding a Negative One

The Gemora (Kesuvos 40a, Shabbos 132a) states that a positive commandment can override a prohibition that carries with it a standard punishment.

The Gemora provides an example for this: The positive commandment of performing circumcision overrides the negative commandment of cutting off tzaraas.

My brother, Reb Ben cites the opinion of Rabbeinu Nisim Gaon, who writes the following: Many people cast doubt on this precept, as we know that a negative commandment is more stringent than a positive commandment, so why should a positive commandment supersede a negative commandment? Rabbeinu Nisim answers that a positive commandment is set, and if there is a negative commandment, the negative commandment only functions if there is no contradiction to the positive commandment. This is what Hashem decreed, that the positive commandments remain in place, and the negative commandment only functions if there is no contradiction to the positive commandment. The Ramban , however, writes that the reason a positive commandment supersedes a negative commandment is because in reality, a positive commandment is greater than a negative commandment. A positive commandment is a reflection of the love Hashem has for us, because one who fulfills the instructions of his master is beloved by his master and the master will have compassion on him. A negative commandment, however, is a reflection of Hashem’s Attribute of Judgment, and stems from fear. Since love is greater than fear, the Torah states that a positive commandment supersedes a negative commandment.

Based on this premise, the Meshech Chochmah explains that one who violates a negative commandment deserves a greater punishment than one who does not fulfill the will of Hashem. Nonetheless, since it is the will of Hashem that one observes both positive and negative commandments, one who fulfils a positive commandment demonstrates his love for Hashem. One who does not violate a negative commandment, however, merely demonstrates that he is afraid and nothing more. For this reason, the torah states that a positive commandment supersedes a negative commandment. An example of this is one can wear Tzitzis with Techeiles on a garment of linen, as the positive commandment of wearing Tzitzis supersedes the negative commandment of shaatnez. The reason for this is that one who wears shaatnez does not transgress the will of Hashem. In fact, the opposite is true, as by donning Tzitzis, he is fulfilling the will of Hashem.

In regards to the question: Why is it that a positive commandment overrides a prohibition and yet the punishment for transgressing a prohibition is much more severe than the punishment for not fulfilling a positive commandment?, Reb Yossie Schonkopf said over a parable from his Rebbe: A trucker is hired to transport a load across the country and the owner warns him not to go beyond the speed limit, not to crash the vehicle and to follow all the road instructions. If the trucker does everything perfectly but doesn't unload the goods at his destination; rather, he arrives at the destined location and immediately turns around carrying the same load, what is accomplished by the fact that the trucker obeyed the speed limit and followed all the rules?

The meaning is as follows: Our mission in life is to accomplish in this world and 'build the love towards HaShem,’ therefore, this building overrides the transgressions. The prohibitions are only there to protect what has been built and not to suffocate the building.

This concept is elucidated by the Ramban in Parshas Yisro. He states that the fulfillment of a positive commandment is based on ahavas HaShem, loving HaShem and refraining from committing a transgression is based on yiras HaShem fearing HaShem. It is a higher level to serve HaShem through love, but it is worse to violate a prohibition, which is based upon fearing HaShem.

My brother, Reb Ben asked a similar question: The Gemora states that a positive commandment will override a negative commandment when both commandments are performed simultaneously. It is noteworthy that the Gemora in Sota states that a mitzvah cannot extinguish an aveira, a sin, yet an aveira can extinguish a mitzvah. Apparently, the principle that a positive commandment can override a negative commandment is not a contradiction to this Gemora. Perhaps the idea is that when one performs an aveira intentionally, he has rebelled against HaShem, and it is not possible for one to appease HaShem with a mitzvah when he has just committed an act of rebellion. When one is simultaneously overriding the negative commandment by performing a positive commandment, however, he is demonstrating that he is fully aware that he is performing a negative commandment, yet he is permitted by the Torah to override the negative commandment. This principle allows him to perform the positive commandment and be rewarded for its performance.

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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)

[END]

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A SHORT CONCEPTION

The Gemora (Kesuvos 39a) stated that perhaps one can say that a girl became pregnant while she was a na’arah and gave birth while still a na’arah; this cannot be the case, for Shmuel said: There are only six months between the time a girl becomes a na’arah until she becomes a bogeres.

The Acharonim ask from this Gemora on a teshuva written by the R”I Mintz, which is quoted in the Rama (E”H; 4; 14). He states: A woman who became pregnant from her husband towards the end of the month of Sivan, and she gave birth in the beginning of Kislev, even though there are only five months in between (Tammuz, Av, Elul, Tishrei and Cheshvan), we are not suspicious that she became pregnant beforehand because there are a total of seven months from conception to the birth and that is sufficient; the child is regarded as a seven-month baby.

If so, it should be possible for a na’arah to conceive and give birth before she becomes a bogeres? She can give birth in five months and two days!

The Chelkas Mechokeik answers that according to the R”I Mintz, a girl is not considered a na’arah for a complete six months, but rather, she would become a bogeres after four months and two days; as long as she became a na’arah at the end of one month – four months and two days later, she becomes a bogeres.

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Daf Yomi - Kesuvos 39 - Highlights

Bogeres in the Grave

Abaye said: If one violates a woman and she later dies, he is exempt from paying the fine.

The Gemora comments: That which was obvious to Abaye was a matter of inquiry to Rava, for Rava inquired: Does a girl attain a state of bogeres in the grave or not (the violated girl died and she would have become a bogeres before Beis Din issued a ruling on the violator)?

The Gemora explains: If we say that she attains a state of bogeres in the grave, the fine would belong to her son (if she has one; based on the Mishna (41b) which states that although the fine usually belongs to the victim’s father, if she becomes a bogeres before the violator is found to be guilty, the fine belongs to her or her inheritor, namely, her son). Or, perhaps, she does not attain a state of bogeres in the grave and therefore, the fine would belong to her father?

The Gemora challenges the facts for such an inquiry: Can a girl who died while she was still a na’arah give birth before her death? But Rav Bibi cites the following braisa in front of Rav Nachman: Three types of women are permitted to insert a wad into their bodies prior to engaging in marital relations in order to prevent conception. They are: A minor, a pregnant woman and a nursing woman. A minor is permitted because otherwise, she may become pregnant and die. A pregnant woman is permitted because otherwise, she might become pregnant again, and the second fetus will crush the first one. A nursing woman is permitted because otherwise, she might be compelled to wean her child, resulting in his death.

The braisa continues: What age minor are we referring to? We are concerned when the minor is between eleven and twelve years old. If she is younger or older than that, she is not permitted to cohabit in that manner; these are the words of Rabbi Meir. The Chachamim disagree with the entire ruling and state that these women should cohabit in the regular manner and Heaven will have compassion on them (becoming pregnant in these situations is highly unusual and therefore we prohibit them from utilizing and type of contraceptive measures) as it is written [Tehillim 116:6]: Hashem protects the fools. (It is evident that a minor cannot conceive; how then, could the na’arah have given birth?)

Perhaps you will answer that she became pregnant while she was a na’arah and gave birth while still a na’arah; this cannot be the case, for Shmuel said: There are only six months between the time a girl becomes a na’arah until she becomes a bogeres.

The Gemora explains Rava’s inquiry in a different manner: If we say that she attains a state of bogeres in the grave, the father would lose his right to the fine (and the violator would keep the money). Or perhaps, she does not attain a state of bogeres in the grave and therefore, the fine would belong to her father?

Mar bar Rav Ashi explains Rava’s inquiry differently: Does the father lose the right to the fine if his daughter died while she was a na’arah (in the same manner as he would lose the right if sahe became a bogeres while still alive)?

Rava’s inquiry remains unresolved. (38b – 39a)

Mishna
The Mishna states: One who seduces pays three types of payments and one who violates pays four. One who seduces pays for embarrassment, the blemish, and the Torah mandated fine for seducing. One who violates also pays for the pain he inflicted.

What are the differences between one who violates and one who seduces? The violator is required to pay for the pain that he inflicted, and the seducer does not pay for pain. The violator is required to pay the fine immediately (even if he marries her), whereas the seducer pays the fine only when he sends her away. The violator is required to drink from his pot (he must marry her), whereas the seducer may send her away, if he desires.

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. (39a)

Which Pain?
The Mishna had stated: The violator is required to pay for the pain that he inflicted.

The Gemora asks: What pain are we referring to?

Shmuel’s father answered: We are discussing the pain of her being thrown to the ground before she was violated.

Rabbi Zeira asks: Accordingly, if he would have thrown her down onto silk, would there be no liability for pain? The Gemora proves from a braisa that this is not the case.

Rather, Rav Nachman says in the name of Rabbah bar Avuha: We are discussing the pain of the separation of her legs.

The Gemora asks: If so, a seducer should also be required to pay for this pain?

Rav Nachman answers in the name of Rabbah bar Avuha: A girl who is seduced is compared to a man who says to his fellow, “Rip my silks and you will be exempt from paying.” (By willing to be seduced, she is waiving her rights to the payment.)

The Gemora objects to this line of reasoning: The payments do not belong to the girl; they belong to the father! She cannot waive these rights.

Rather, Rav Nachman says in the name of Rabbah bar Avuha: The smart women say that a girl who was seduced does not suffer any pain from the separation of her legs.

The Gemora explains that even though, she does experience some pain, it is deemed insignificant, and is offset by the pleasure she receives. (39a – 39b)

Preventing the Marriage
The Mishna had stated: The violator is required to pay the fine immediately (even if he marries her), whereas the seducer pays the fine only when he sends her away.

The Gemora asks: How can he send her away if he didn’t marry her yet (once he marries her, there is no fine)?

Abaye answers: The Mishna means that he pays when he decides that he will not marry her.

The Gemora cites the following braisa supporting this explanation: Although they said that the seducer only pays the fine if he decides not to marry her, he is required to pay for embarrassment and the blemish immediately. In cases of violation and seduction, the girl and the father can prevent the marriage from occurring.

The Gemora provides Scriptural sources to the fact that she and the father can prevent the marriage from occurring by a case of seduction, and the Gemora provides a Scriptural source that she can prevent the marriage from taking place by a case of violation.

The Gemora asks: How do we know that the father can prevent the marriage from taking place by a case of violation?

Abaye answers: It is because it is illogical to allow the sinner to profit from his sin (because the father could have prevented this marriage from taking place before the violation, it would stand to reason that he can still prevent it).

Rava answers: It is derived through a kal vachomer from a case of seduction. (39b)

Fine and her Kesuvah

The Gemora cites a braisa: Although they said that the violater is required to pay the fine immediately (to the father), if she demands a divorce later, she does not receive a kesuvah payment. If he died before her, the money which was paid for the fine is regarded as her kesuvah payment. Rabbi Yosi the son of Rabbi Yehudah says: She does receive a kesuvah payment of a maneh.

The Gemora explains the reasoning for their dispute: The reason that the Rabbis instituted a kesuvah (an obligation for the husband or his estate to pay the wife a certain amount of money in case he divorces her or dies) is in order for it to be not so light in his eyes to divorce her; the violator cannot divorce her anyway, so there is no reason for a kesuvah payment. Rabbi Yosi the son of Rabbi Yehudah maintains that the violator can torture his wife until she says that she does not want him any longer (so there is still a reason for the kesuvah payment). (39b)

[END]

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CIRCUMCISION BEFORE EXECUTION

Tosfos states that if a person would destroy his fellow’s eye while he was killing him, it would not be regarded as if he blinded him and murdered him (in which case, you might think that we should punish him for both actions, by executing him and exacting payment for the eye); but rather, it is considered as if he killed him in a more painful manner. Chashukei Chemed derives from this Tosfos that there is no prohibition to wound a fellow at a time that he is being executed anyway.

Using this principle, it is possible to answer the following question posed by Reb Yosef Engel in Gilyonei HaShas to Avoda Zara (10b). The Gemora states: The Caesar decreed that Ketiah (a gentile) should be put to death. As they were escorting him to the death chamber, a certain matron called out and said, “Woe is to the ship that leaves without paying its taxes first.” Rashi explains: Ketiah was being executed for supporting the Jews; if he would not circumcise himself before his death, he will not merit a portion in the World to Come together with them. Ketiah thereby, fell on top of his foreskin and cut it off. He said, “I now have paid my tax. I will leave this world and enter into the World to Come.”

Reb Yosef Engel asks: It appears that Ketiah did not satisfy all the requirements of conversion, for he didn’t immerse in a mikvah and he didn’t accept the yoke of fulfilling all the mitzvos; if so, shouldn’t there have been a prohibition to cut his foreskin? Isn’t he violating the prohibition of wounding oneself?

In the sefer Shabbos Shaboson, the following novel ruling is brought in the name of Rav Yosef Tzikonovsky: If one is being brought to be executed, he is allowed to circumcise himself even though his brothers had died on account of circumcision (normally, that would preclude a third brother from circumcision). Since he is going to die anyway, he would be permitted to circumcise himself, although the procedure itself can lead to his death. He provides a fascinating source from the Abudraham: It is our custom, when saying the words: “V’omer lach b’damayich chayi,” that we place some of the wine on the lips of the child. This is based upon the Medrash which states that after the sin of the Golden Calf, as some of the Jewish people were being killed, Moshe would circumcise them, Aharon would uncover the foreskin and Yehoshua would give them to drink (from the ashes of the Golden Calf causing them to die). All forty years in the Desert, there was no circumcision because of the burdens of traveling and because the Northern Wind did not blow (which was necessary to heal them). Moshe and Aharon did not want them to die without a circumcision and without accepting the yoke of mitzvos. Yehoshua gave them to drink, leading to their death. We give the circumcised child to drink and say: This circumcision and drinking should lead to life, not death.

Accordingly, Ketiah, could circumcise himself prior to his death, and he needn’t be concerned with the prohibition of wounding himself unnecessarily.

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Daf Yomi - Kesuvos 38 - Highlights

What do we Learn from the Extra Passuk?

Rava asked (on Rami bar Chama’s teaching) that this is already known from the teaching of the house of Chizkiya. The house of Chizkiya taught that that the passuk discusses a person who kills another person and a person who hits an animal. There is no difference if the person hit the animal (and damaged or killed it) did so on purpose or accidentally, with intent to hit or without intent to hit, whether his blow was upwards or downwards. In all cases he is obligated to pay. Similarly (regarding a person killing a person where the Torah says the penalty is death and not payment) there is no difference if the person hit a person (and damaged him) on purpose or accidentally, with intent to hit or without intent to hit, whether his blow was upwards or downwards. In all cases he does not pay. [This teaches that there is no difference whether the blow was upwards or downwards, making the teaching of Rami bar Chama redundant.]

Rami bar Chami therefore revised his statement, and said there is a different reason why we need these two pesukim (mentioned on 37b). One might think that if a person kills another person with a blow that blinds his eye and also kills him, only in such a case do we say that he is exempt from paying monetary damages for the blinding as well. However, in a case where he blinded him and immediately killed him with a different blow, one might think that he is obligated to pay for the blinding as well. [The extra passuk teaches us that this is not the case.]

Rava asked that this is already known from a different teaching of the house of Chizkiya. The house of Chizkiya taught “an eye for an eye,” but not a soul and eye for an eye (meaning that whenever one kills he does not pay for causing injury whether it was from the killing blow or not).

Rav Ashi therefore gave a different reason. One might think that because the Torah taught novel rules when it instituted monetary penalties (as opposed to regular payments or obligations that are always in direct relation to what was damaged) that even if one will be killed he still must pay a fine that was incurred at the same time. The extra passuk (either “kol cheirem” or lo sikchu kofer”) therefore teaches us that the same rule (“kim ley”) that applies to payments applies to fines.

What do we learn from the extra passuk according to Rabah, who indeed holds that being that monetary penalties are novel teaching we do not apply the rule that if he will be killed he does not pay? He must hold like the Tana Kama of Rabbi Chananya ben Akavya (who says that the extra passuk teaches that someone who pledges the value of a person who is being taken to be killed by Beis Din does not have to give any money).
Mishna
A girl was betrothed and divorced (and then seduced). Rabbi Yosi Haglili says that she does not receive a fine. Rabbi Akiva says that she does, and she receives it (instead of her father).
The Reasoning for their Argument
What is the reasoning of Rabbi Yosi Haglili? The Torah states, “that she was not betrothed.” This clearly implies that if she was betrothed, she does not receive the fine. What does Rabbi Akiva do with this passuk? He understands “that she was not betrothed” refers to the fact that if she was betrothed, her father does not receive the fine. However, if she was betrothed she received the fine for herself.

The Gemora asks, this would imply that we should understand that when the Torah states the word “na’arah” and it specifically excludes a “bogeres” – “girl over twelve and a half,” it means that if the girl was a bogeres she should receive the fine for herself (and no one suggests that this is the case)! Similarly, when the Torah states that the girl was a “besulah” – “virgin” and not a “beulah,” Rabbi Akiva’s line of reasoning would imply that in such a case she herself should receive the fine! We know that the passuk in these matters is saying that in the case of the Torah the fine applies, and when it does not one is totally exempt! Here, too, the fact that she is “betrothed” should decide whether the person pays or is totally exempt!

Rabbi Akiva can answer that “that she was not betrothed” is needed, as stated in (his opinion in) the following Beraisa. The Beraisa states that “that she was not betrothed” excludes a girl who was betrothed and divorced, that she does not receive a fine. Rabbi Akiva says that she does receive a fine and her father keeps it. This is something that can be derived logically, as we can compare the fact that her father has the rights to her kiddushin money (when she is a na’arah) and any fine if she is seduced. Just as her father receives her kiddushin money if she was betrothed and then divorced (and then became betrothed a second time), so too he receives money from her fine in such a situation.

(Rabbi Akiva continues.) Why, then, does the passuk state “that she was not betrothed?” It is an extra passuk that is supposed to be compared to and used to derive from it a gezeirah shavah. It says here (regarding violation) “that she was not betrothed” and it says (regarding seduction) “that she was not betrothed.” Just as regarding violation the Torah mandates a fine of fifty coins, so too regarding seduction (where the amount is not specified) the amount is fifty coins. Additionally, just as the coins regarding seduction are clearly shekalim, so too the coins regarding violation are shekalim.

The Gemora asks: Why does Rabbi Akiva understand that “that she was not betrothed” is to be used for a gezeirah shavah, whereas “besulah” must be totally excluding a “beulah?” Why don’t we say that “besulah” should be used for a gezeirah shaveh and “that she was not betrothed” should be used to exclude a fine for a girl who was betrothed and divorced (as per the opinion of Rabbi Yosi Haglili)?

The Gemora answers that it makes sense that “that she was not betrothed” should be used for a gezeirah shavah, as she is still deemed to fit the description of a “na’arah besulah.” On the contrary, the Gemora asks, use “besulah” for a gezeirah shavah as she is described as “that she was not betrothed.”

The Gemora answers that the former choice makes sense, as the body of a besulah has clearly changed whereas the body of the one who was betrothed and divorced didn’t change (and the damage done to her is therefore more severe and deserving of a fine).

How does Rabbi Yosi Haglili know this logic (that the amount of coins regarding seduction is fifty and the denomination of coins regarding violation is shekalim)? He derives this from the passuk that states “he will give coins like the money given in exchange for virginity.” This teaches us that the amount regarding seduction should be like that given in exchange for virginity (said regarding violation which is fifty), and the exchange for virginity should be like this (the fine should be paid in shekalim).
Two Opinions According to Rabbi Akiva
The Gemora asks, Rabbi Akiva contradicts himself (as in the Beraisa he stated the fine goes to the father, whereas in our Mishna he said the fine goes to the girl herself)! The Gemora answers that the Beraisa and Mishna must be authored by two separate Tanaim who argue regarding the opinion of Rabbi Akiva.

It is good that according to the opinion of Rabbi Akiva discussed in our Mishna that when the passuk is used for a gezeirah shavah, it is not totally uprooted from its simple explanation. However, according to his opinion as stated in the Beraisa, is it possible that the fact that a passuk is open to be used for a gezeirah shavah a reason that it should go against the simple meaning of the passuk (as being betrothed is not a factor)?

Rav Nachman bar Yitzchak answers that the passuk should be read as if it is saying that she is not currently betrothed. The Gemora asks: If she was currently betrothed she would be stoned! [Therefore, how could this be the meaning of a passuk which merely discusses a fine?]

The Gemora answers that this comes to teach us that one might think that because the fine paid is a novel teaching of the Torah, even though he is killed (if he seduced her while she was betrothed) he still must pay the fine. The passuk “that she was not betrothed” therefore comes to teach that if she was betrothed he would not pay the fine.

The Gemora asks, according to Rabah who says that as a fine is a novel teaching of the Torah even though one is killed he still pays a fine, what does the passuk teach us? It must be that he is of the opinion of Rabbi Akiva as stated in the Mishna.

The Beraisa asks: Who receives the fine? [Some say] her father. Some say she receives the fine. Why does (this opinion state that) she receive the fine (doesn’t the Torah state that the father receives the fine)?

Rav Chisda answers that the Beraisa is discussing the case where she was betrothed and divorced. The argument in this Beraisa is the same argument between the opinion of Rabbi Akiva as stated in the Mishna, and that of Rabbi Akiva stated in the Beraisa (above).

[END]

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