Supporting your Children (scroll to the bottom to see Reb Moshe's opinion)

The Mishna (Kesuvos 49a) states: A father is not obligated to provide food for his daughter. This teaching Rabbi Elazar ben Azaryah taught in front of the sages in Kerem Be’Yavneh: The sons should inherit and the daughters should be supported. Just as sons only inherit after their father dies, so too daughters should only be supported after their father dies.

The Gemora comments: This implies that he is not obligated in supporting his daughters, while he is obligated to support his sons. Additionally, it implies that there is no obligation to support one’s daughter but there is a mitzva to do so.

The Gemora asks: Who is the author of our Mishna? It does not seem to be Rabbi Meir, Rabbi Yehuda, or Rabbi Yochanan ben Berokah, as we shall see from the following Beraisa.

The Beraisa states that it is a mitzva to support girls, and certainly sons who learn Torah. These are the words of Rabbi Meir. Rabbi Yehuda says that it is a mitzva to support sons, and certainly daughters, as it is degrading for the girls. Rabbi Yochanan ben Beroka says that it is an obligation to support girls after the father dies, but both (girls and boys) do not have to be supported during the father’s lifetime.

Who is the author of our Mishna? It is difficult to say that it follows Rabbi Meir's opinion, as he says it is only a mitzva (not obligation) to support boys. It is difficult to say it follows Rabbi Yehuda's opinion, as he says that boys are also a mitzva. It is difficult to say it follows Rabbi Yochanan ben Beroka's opinion, as he says it is only a mitzva to support boys after the father dies.

The Gemora answers that the author could be any of these three Tanaim. Our Mishna could be Rabbi Meir, and it would read as follows: A father is not obligated to support his daughter and similarly his son, but there is a mitzva to support one’s daughter and certainly his son. Why did it only say “daughter” in the Mishna? This teaches us that it is even a mitzva to support a daughter (though she does not learn Torah), but it is not obligatory.

Alternatively, the Gemora answers that it could also be Rabbi Yehuda. The Mishna would read as follows: A father is not obligated to support a daughter and certainly a son, but it is a mitzva to support a son and certainly a daughter. Why does the Mishna only discuss a son? This teaches us that there is no obligation to support one's children, even regarding a daughter.

Alternatively, the Gemora answers that it could also be Rabbi Yochanan ben Beroka. The Mishna would read as follows: A father is not obligated to support a daughter or a son, and it is not even a mitzva to do so. The Mishna only used the term “obligation” (not to imply it is a mitzva, but rather) because there is an obligation to support daughters after their father dies.

Rabbi Ila said in the name of Reish Lakish in the name of Rabbi Yehuda bar Chanina: In Usha they decreed that a person must support his sons and daughters when they are minors.

The Gemora inquires: Does the halachah follow this decree or not? We can answer this from Rav Yehuda, who would tell people who came before him with this question, “The alligator has children, and throws them on the people of the city?!” [This implies that he would tell people they should do so, but not enforce it.] Rav Chisda would tell people who came before him: “Turn over a grinder in public stand on top of it and say: “a raven feeds its kin, and this person does not want to do so!”

The Gemora asks, does a raven indeed feed its kin? Doesn’t the passuk say “He feeds the sons of the raven who call out to Him?” This is not difficult, for the passuk is talking about the white ravens babies, while Rav Chisda meant the older black raven children (see Rashi).

When people would come before Rava, he would say: “Are you happy that your children should be supported from charity?” All of this is only referring to a case where the person is not wealthy. If he is wealthy, we force him to support his children. This is as in the case where Rava forced Rav Nasan bar Ami (regarding giving proper amounts of charity), and took from him four hundred zuz (type of coin) for charity.

Tosfos comments: If one has children less than six years old, he has an obligation to feed them, and it is enforceable. It would seem that this is a Rabbinical obligation.

Reb Moshe Feinstein in his sefer Dibros Moshe on Gittin (fourth perek; heora 83)writes the following novel halacha: If one has only one son and only one daughter, he is halachically required to support them. His reasoning is as follows: There is a mitzva of procreation. We hold according to Rabbi Yochanan, who states that if one has children and they die, he has not fulfilled his mitzva of procreation. Accordingly, if one does not sustain his children and they consequently die, he will be lacking his mitzva of peru u'revu. It is therefore incumbent upon him to be concerned about the welfare of these children; not necessarily for their sake, but for his mitzva.

He adds: When the Mishna says that one is not obligated to sustain his children, that is only if he has more than one son and one daughter. He concludes that he is bewildered why none of the poskim rule accordingly.

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Count the Stars

In this week's parsha, Avrohom was told to look up at the heavens and count the stars. How was it possible for him to fulfill such an unattainable task? Reb Meir Shapiro whose yahrtzeit is today, explains that an inteligent person would have obviously been perplexed when receiving such an overwhelming instruction, knowing that it is impossible to complete. Avrohom was also well aware of this, but he knew that by following Hashem's commandment, he would receive a special syata dishmaya and with that knowledge, he began counting 1, 2, 3 .... Hashem, recognizing this enthusiasm and Avrohom's willingness to fulfill His commandments immediately blessed him with the brocha of children.

Anyone can join the learning of Daf haYomi; all you have to do is start, one day at a time.

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Husband Imposing Stringencies on his Wife

Rav Yosef taught the following braisa (Kesuvos 48a): Her she’eir implies close bodily contact. This means that he must not treat her in the manner of the Persians who perform their conjugal duties in their clothing. This provides support for a ruling of Rav Huna who stated that a husband who said, “I will not perform my conjugal duties unless she wears her clothes and I mine,” must divorce her and give her a kesuvah also.

The Ritva comments: Even though he is wearing his clothes for modesty purposes, and even if she would do the same, this would have the status of rejecting relations since it is not in an intimate manner and is therefore grounds for divorce.

Reb Avi Lebowitz points out that the Ritva does not seem to reject the notion that it would be more modest in this way; rather, it seems from the Ritva that in truth, one can make a legitimate claim that they want to maintain this stringency for the sake of modesty, nevertheless, she is not bound to keep his stringencies, and he therefore cannot impose this stringency on her without her consent.

Shulchan Aruch (YD 185:3) issues the following ruling: If a woman told her husband that she is a niddah, and later she retracts and says that she is not, she is not believed. If she gives an amasla, e.g. an excuse, such as, at first she said that she is niddah because she did not have strength for cohabitation, then, she is believed.

The Rama states that if the husband wants to be stringent on himself not to believe her, it is regarded as virtuous (midas chassidus).

The Chasam Sofer (Y”D, 149) discusses a case where a woman showed her garment to a Rav to determine if she is a niddah or not, and she was told by the Rav that she is permitted, but the husband who is a Torah scholar wishes to be stringent. The Chasam Sofer elaborates to explain that the nature of being married to a Torah scholar is to accept his stringencies, and his stringency may be imposed on her.

Reb Avi explains that by analyzing the context of the Chasam Sofer, it becomes evident that he cannot impose any stringency that he chooses on her. He is speaking of a situation where it should have been expected that he would keep these types of stringencies, but in cases where at the time of the marriage, there was not any expectation for him to act stringently, he cannot impose his stringencies on her, which would conform with the implication of the Ritva.

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Daf Yomi - Kesuvos 48 - Highlights

She’eir, Kesus and Onah

It is written [Shmos 21:10] regarding a man’s obligations to his wife: He may not reduce her she’eir, her kesus, or her onah. A braisa is cited which defines these words. She’eir is referring to support. Kesus means clothing. Onah is referring to conjugal relations in their proper time.

Rabbi Eliezer understands these words differently. She’eir is referring to conjugal relations in their proper time. Kesus means clothing. Onah is referring to support.

Rabbi Eliezer ben Yaakov explains the words differently. She’eir is written next to kesus to teach us that the husband should provide his wife with clothing that is suitable to her age. Kesus is written next to onah to teach us that he should provide her with clothing according to the season.

Rav Yosef taught the following braisa: Her she’eir implies close bodily contact. This means that he must not treat her in the manner of the Persians who perform their conjugal duties in their clothing. This provides support for a ruling of Rav Huna who stated that a husband who said, “I will not perform my conjugal duties unless she wears her clothes and I mine,” must divorce her and give her a kesuvah also. (47b – 48a)

Flutes and Lamenter
The Mishna had stated: Rabbi Yehudah said: Even the poorest man in Israel may not hire less than two flutes and a wailing woman to lead the mourning at his wife’s burial.

The Gemora infers from here that the Tanna Kamma disagrees and holds that a husband is not required to provide these things for his wife’s funeral.

The Gemora explains the dispute: The Mishna is referring to a case where it is the custom in the husband’s family to have flutes and a wailing woman by the funeral of a woman; however, it is not the custom of the wife’s family. The Tanna Kamma maintains that we say, “A woman rises to the husband’s standards, but does not descend to his standards” only while she is alive, but not after her death. Therefore, the husband is not required to provide the flutes and wailing woman for her burial because it is not his custom. Rabbi Yehudah, however, holds that the principle is applicable even after her death, and he must provide for her burial according to the standards of her family.

Rav Chisda says in the name of Mar Ukva that the halacha follows Rabbi Yehudah. (48a)

Support if he Became Insane or if he Went Overseas
Rav Chisda said in the name of Mar Ukva: If a man became insane, Beis Din takes possession of his estate and provides food and clothing for his wife, sons and daughters, and he also provides something else.

Ravina asked Rav Ashi: Why should this case be different from that which was taught in the following braisa: If a man went to a country overseas and his wife claims that she wants to be provided for, Beis Din takes possession of the husband’s estate and provides food and clothing for his wife, but not for his sons and daughters or for something else?

Rav Ashi replied: Do you not draw a distinction between one who departs intentionally and one who departs without knowing it? (In the case where he went overseas, the man, if he so desired, could have left instructions that his wife and family should be provided for; since, he did not leave any instructions, it is obvious that he had no intention of providing for them. This explains the ruling that his wife, whom he is under a legal obligation to maintain must be provided for by the Beis Din out of his estate; his sons and daughters, however, who have no legal claim upon their father's estate will not be provided for. However, a man who becomes insane, it may well be assumed that it was his wish that both his wife and family shall be properly provided for out of his estate.)

The Gemora asks: What is the “something else” mentioned in the braisa?

Rav Chisda says that it means perfume. (If he went insane, they provide perfume for his wife; however, if he went overseas, they do not.) Rav Yosef says that it is referring to charity. (If he went insane, they tax his property; however, if he went overseas, they do not.)

Rav Chiya bar Avin said in the name of Rav Huna: If a man went to a country overseas, and his wife died, Beis Din takes possession of the husband’s estate and buries her even according to his standard. He is teaching us that that we say, “A woman rises to the husband’s standards, but does not descend to his standards” even after her death. (48a)

Mishna
The Mishna states: She (a bride) always remains under the jurisdiction of her father until she enters the authority of her husband at marriage. If her father delivered her to the agents of her husband (and certainly if he delivered her directly to the husband), she is under the authority of her husband. If her father went with the agents of her husband, or the agents of her father went with the agents of her husband, she remains under the jurisdiction of her father. If the agents of her father delivered her to the agents of her husband, she is under the authority of her husband. (48a – 48b)

“Always”
The Gemora asks: What is the Mishna teaching us when it uses the word “always”?

The Gemora answers: It is coming to exclude that which we learned in a different Mishna. For we learned in a Mishna: If the time arrived (In former times the betrothal (kiddushin) and the marriage (nisu'in) ceremonies were not performed at the same time as is our practice today. Rather it was customary for the bridegroom to first betroth his bride and make her his arusah (betrothed) and only later did he take her to the chupah (bridal canopy) for the marriage ceremony. During the period intervening between the betrothal and the marriage, the arusah lived in her father's house, and the arus was not liable for her maintenance, and if she was the daughter of an Israelite, who had been betrothed by a Kohen, she was not allowed to eat terumah, although, by Torah law, the daughter of an Israelite betrothed to a kohen is allowed to eat terumah, as it is written, "But if a Kohen buy any soul, the acquisition of his money, he may eat of it" (Lev. 22:11), and the arusah is an "acquisition" effected by him with the money of the kiddushin, nevertheless, since she lives in her father's home, the Sages prohibited her from eating of the terumah, "lest they pour a cup of terumah for her in her father's home, and she offer it to her brothers and sisters." According to another opinion the prohibition was enacted "because of a blemish," i.e., if he found a physical defect in her, her kiddushin would be considered erroneous, and would be annulled retroactively and thus a non-kohen will have partaken of terumah. This Mishna discusses the case of one who betroths a woman without specifying a marriage date and teaches how they set the marriage date subsequently, and the law regarding an arusah whose bridegroom (arus) does not wed her when the marriage date arrives. Kehati) and they (the virgin or the widow) were not married by the husband, they eat from his food and they eat of the terumah. Our Mishna is teaching us that the halacha is not like that; she never eats of terumah, even if the time designated for nisuin has passed, until the husband marries her. (48b)

Delivery to the Husband
The Mishna had stated: If her father delivered her to the agents of her husband (and certainly if he delivered her directly to the husband), she is under the authority of her husband.

Rav said: She is under the authority of her husband in all respects except for the permission to eat terumah. (Rav maintains that the reason an arusah is prohibited from eating terumah is "because of a blemish," i.e., if he found a physical defect in her, her kiddushin would be considered erroneous, and would be annulled retroactively and thus a non-kohen will have partaken of terumah. Since, in this case, he still has not determined if she has any defects, she is still prohibited from eating terumah.)

Rav Assi said: She is under the authority of her husband in all respects even for the permission to eat terumah. (Rav Assi maintains that the reason an arusah is prohibited from eating terumah is "lest they pour a cup of terumah for her in her father's home, and she offer it to her brothers and sisters." Once she is delivered to her husband’s house, this is not a concern any longer.)

Shmuel said: She is under the authority of her husband only in respect to inheritance (if she died, her husband inherits her dowry).

Rish Lakish said: She is under the authority of her husband only in respect to her kesuvah. Ravina explains this to mean that if her husband died and she marries another man, her kesuvah is only a manah (because it is regarded as if she entered nisuin with her former husband).

The Gemora challenges these opinions from the following braisa: If the father went with the agents of the husband, or if the agents of the father went with the agents of the husband, or if she had a court-yard on the way, and she entered it with her husband to rest there for the night, even if her kesuvah is already in the husband’s house, her father inherits her if she died. If, however, her father delivered her to her husband’s agents, or if her father’s agents delivered her to her husband’s agents, or the husband had a court-yard on the way, and she entered it with him with an intention of nisuin, even if her kesuvah is in her father’s house, her husband inherits her if she died. This ruling was only said in respect of her inheritance, but in respect of terumah, the halacha is that a woman is not allowed to eat terumah until she enters the chupah.

Does not this represent a refutation of all (except for Shmuel)? This is indeed a refutation. (48b)

[END]

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Chupah on Shabbos and Yom Tov

The Mishna had stated: The father is entitled to the earnings of his daughter.

The Gemora (Kesuvos 47a) asks: What is the source for this?

The Gemora answers: It is learned from 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: Perhaps, the Torah is only referring to a minor, whom a father may sell as a maidservant; however, in respect to a na’arah, whom the father may not sell, her earnings belong to her?

The Gemora answers: It can be derived through the following logical argument: If it would be imagined that her earnings does not belong to him, how would the father have the right to deliver his daughter to the chupah (bridal chamber)? How could he consign her when he thereby prevents her from doing her work (during her preparations for chupah and its ceremony)?

Rav Achai objects to this line of reasoning and asks: Perhaps the father pays her compensation for her loss of work during the time of the chupah? Alternatively, he may deliver her to the chupah at night (when she is not working anyway)! Alternatively, he may deliver her to the chupah on Shabbos and Yom Tov (in which time, it is forbidden to perform any labor)!

Tosfos asks: How can we be discussing a case where he married her on Shabbos or Yom Tov? The Gemora in Moed Katan (8b) states that one may not get married even during Chol Hamoed, for one is not permitted to intermingle one source of joy with another. It is evident from a Gemora in Chagigah (8b) that this is a Biblical halacha. Certainly, it should be forbidden to marry on Yom Tov!?

Tosfos answers that we are referring to a case where he married her an hour before Yom Tov; in respect to performing labor, it is regarded as Yom Tov, for one is Biblically obligated to add time before Yom Tov and to treat it as if the Yom Tov began; however, it is not considered Yom Tov for the obligation of simcha yet, and therefore, one is permitted to marry during that time. It is at this time, where she anyways may not perform any labor, the father would deliver her to the chupah, and he would not be causing her any loss whatsoever.

Reb Akiva Eiger asks: Not all labor is forbidden to do on Shabbos and Yom Tov; isn’t the father still preventing her from performing that type of work? The fact that it is forbidden to receive compensation for work performed on Shabbos will not be a sufficient explanation in our Gemora, for that is only a Rabbinical prohibition, and we are discussing a Biblical one!

Reshash answers that our Gemora does not mean that it is forbidden to perform labor on Shabbos, for there are many types of permitted labor that one may perform on Shabbos. Our Gemora means that it is not common for one to be working and receiving compensation for labor on Shabbos and Yom Tov. This is why it is not considered that the father is causing her to lose by marrying her off; she probably would not have been working anyway!

This could be proven from the Gemora’s alternative answer that the father delivered her to the chupah at night. It is not forbidden to perform labor at night; however, it is uncommon. The father is not causing her to lose by delivering her to the chupah at night.

It would seem from Tosfos, however, that we are searching for a time where performing labor would be forbidden, and that is why Tosfos explained the case to be referring to the additional time added before Yom Tov, when it is Biblically forbidden to perform labor at that time.

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Food for Thought

*** How can we (Kesuvos 47a) be discussing a case where she was delivered to the chupah on Shabbos and Yom Tov? Isn’t it forbidden to make a kinyan then?

*** Tosfos asks: How can one get married on Yom Tov; there is an obligation for simcha, and we may not intermingle one source of joy with another? Perhaps, we can answer that the Gemora is referring to Rosh Hashanah, where there is no obligation for simcha (according to some commentators)?

*** Why does Tosfos have to explain the case to be referring to one where they got married in the time that was added on to Yom Tov, and therefore, there is no obligation for simcha; couldn’t we have said that they got married on the first night of Yom Tov, and the Gemora Pesachim (71a) states that there is no obligation for simcha on the first night?

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Daf Yomi - Kesuvos 47 - Highlights

Rights to her Finds

The Mishna had stated: The father is entitled to that which his daughter finds. The Gemora explains that this was a Rabbinic decree established because we did not want there to be animosity between father and daughter (which might happen if she would be allowed to keep that which she finds and he would no longer support her). (46b – 47a)

Earnings to the Father

The Mishna had stated: The father is entitled to the earnings of his daughter.

The Gemora asks: What is the source for this?

The Gemora answers: It is learned from 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: Perhaps, the Torah is only referring to a minor, whom a father may sell as a maidservant; however, in respect to a na’arah, whom the father may not sell, her earnings belong to her?

The Gemora answers: It can be derived through the following logical argument: If it would be imagined that her earnings does not belong to him, how would the father have the right to deliver his daughter to the chupah (bridal chamber)? How could he consign her when he thereby prevents her from doing her work (during her preparations for chupah and its ceremony)?

Rav Achai objects to this line of reasoning and asks: Perhaps the father pays her compensation for her loss of work during the time of the chupah? Alternatively, he may deliver her to the chupah at night (when she is not working anyway)! Alternatively, he may deliver her to the chupah on Shabbos and Yom Tov (in which time, it is forbidden to perform any labor)!

The Gemora concludes: It would not be necessary for the Torah to teach us that a father is entitled to his minor daughter’s earnings, for since he has a right to sell her as a maidservant, it is evident that her earnings belong to him. It emerges that the verse mentioned above is teaching us that the father is entitled to the earnings of his daughter, who is a na’arah. (47a)

The Gemora cites the Scriptural sources indicating that a father annuls his daughter’s vows and that he receives her get. (47a)

Fruits for Ransom

The Mishna had stated: The father does not eat the fruit of her property during her lifetime (if she had inherited property from her mother’s family).

The Gemora cites the following braisa: The father does not eat the fruit of her property during her lifetime. Rabbi Yosi the son of Rabbi Yehudah says: The father does eat the fruit of her property during her lifetime.

The Gemora explains the argument: The Tanna Kamma holds that it is understandable why the Rabbi established that a husband may eat the fruit from his wife’s property, for otherwise, he would redeem her if she was being held for ransom (the Rabbis obligated the husband to redeem her and as a tradeoff, instituted that he eats the fruit from her property). However, in respect to her father, it was not necessary to make such a decree, for the father will redeem her anyways; therefore, he does not eat the fruit of her property. Rabbi Yosi the son of Rabbi Yehudah, however, maintains that if not for the fact that father may eat the fruit of her property; he also would refuse to redeem her, for he would think, “Let her use her purse full of money (that is being held for her in trust from the fruit of her property) to redeem herself.” (47a)

A Dowry and an Addition

The Gemora cites a braisa: If a father wrote for his daughter in writing fruit, clothing or other movable objects that she may take with her from her father's house to that of her husband (this is known as tzon barzel – ironclad property; the property which the wife brings in to her husband in the dowry, and which the husband records in the kesuvah; the husband makes use of this property as he wishes, its profits or losses are his, and he is responsible for it; hence the name, “ironclad property”: The principal remains as does iron, for if it is lost, the husband is required to pay), and she died (during her betrothal before the marriage was consummated), her husband does not acquire these objects. It was said in the name of Rabbi Nosson: The husband does acquire them.

The Gemora attempts to link this argument with another: Can we assume that they differ on the same principles as those on which Rabbi Elozar ben Azaryah and the Rabbis differed? For we learned in a Mishna: A woman who was widowed or divorced, either after marriage or after betrothal, is entitled to collect everything (the basic obligations of the kesuvah, plus any additions that the husband included). Rabbi Elozar ben Azaryah ruled: Only a woman widowed or divorced after nisuin collects everything, but if it is only after her betrothal, a virgin collects only two hundred zuz and a widow only one maneh, for the husband wrote the addition for her with the sole objective of marrying her (and since he did not marry her, she may not claim it).

The Gemora explains the connection: May we assume that the one who ruled that ‘her husband does not acquire (the movable objects written into the dowry)’ upholds the same principle as Rabbi Elozar ben Azaryah (as he makes the woman’s right to the additional money written into the kesuvah dependent on marriage, so also does the Tanna Kamma make the husband's right to the dowry that his wife brings from her father's house dependent on marriage), whereas the one (Rabbi Nosson) who ruled that ‘the husband does acquire (the movable objects written into the dowry)’ upholds the same principle as the Rabbis (as they both maintain that betrothal provides the same rights as the marriage)?

The Gemora objects to the linkage: No! The Tanna Kamma and Rabbi Nosson both may hold like Rabbi Elozar ben Azaryah. For the one who ruled that ‘her husband does not acquire (the movable objects written into the dowry)’ obviously upholds the same principle as Rabbi Elozar ben Azaryah. And as to the one (Rabbi Nosson) who ruled that ‘the husband does acquire (the movable objects written into the dowry),’ it may be explained that only in respect of commitments from him towards her did Rabbi Elozar ben Azaryah maintain his view, for the husband wrote the addition for her with the sole objective of marrying her (and since he did not marry her, she may not claim it). However, in respect of commitments from her towards him, even Rabbi Elozar ben Azaryah may admit that betrothal has the same force as marriage since commitments of such a nature are due to a desire from the bride’s father for matrimonial association with the groom, and such association, even with a betrothal alone, has surely taken place. (47a – 47b)
Providing Maintenance

The Mishna had stated: After nisuin, the husband is obligated to provide for her maintenance.

The Gemora cites a braisa: The Rabbis established that the husband should provide for her maintenance in return for his entitlement to her earnings, and the husband provides for her burial in return for his inheriting the dowry items written into her kesuvah. Therefore, the husband eats the fruit from his wife’s property.

The Gemora asks: Who mentioned fruits?

The Gemora answers: There are missing words in the braisa, and this is what it should say: The Rabbis established that the husband should provide for her maintenance in return for his entitlement to her earnings, and the husband is obligated to redeem her if she was held captive, and as a tradeoff, instituted that he eats the fruit from her property, and the husband provides for her burial in return for his inheriting the dowry items written into her kesuvah. Therefore, the husband eats the fruit from his wife’s property.

The Gemora asks: What is the meaning of the word “therefore”?

The Gemora answers: We might have thought that a husband should not eat the fruits, but should rather leave them (letting them accumulate as a fund for his wife’s ransom if it should be necessary) since, otherwise (if he would eat the fruits), he might refrain from ransoming her. The braisa informs us that it is preferable for the husband to eat the fruit, for sometimes, the accumulation of the fruit might not suffice and he would refuse to ransom her from his own expenses.

The Gemora asks: How do we know that the husband should provide for her maintenance in return for his entitlement to her earnings, and the husband is obligated to redeem her if she was held captive, and as a tradeoff, instituted that he eats the fruit from her property; perhaps, the husband should provide for her maintenance in return for the right to eat the fruit from her property, and the husband is obligated to redeem her if she was held captive in return for his entitlement to her earnings?

Abaye answered: They established the obligation for a common need (maintenance) in return for a common occurrence (her earnings), and an obligation for an uncommon need (her being held captive) in return for an uncommon occurrence (her owning her own property).

Rava cites a braisa indicating that the husband’s obligation to provide maintenance for his wife is Biblical. (47b – 48a)

[END]

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Lashes without an Action

The Gemora (Kesuvos 46a) states: If the husband defames his wife, he receives lashes. This is true even though this prohibition does not entail any action.

Tosfos in Shavuos (21a) asks: The Gemora there lists three prohibitions that one violates without performing an action, and nevertheless, one incurs lashes for transgressing them. They are: Violating an oath, making a temurah (attempting to exchange an animal that possesses sanctity with one that does not) and one who curses his fellow using the name of Hashem. Why doesn’t the Gemora include the case of a husband who defames his wife? It is also a prohibition that does not involve an action, but yet, one incurs lashes for its violation.

Tosfos answers: It is not necessary for the Gemora to include this case in the listing because the fact that the husband receives lashes is explicitly written in the Torah. Tosfos adds that even if you say that this case should be included in the listing, it is not a question as to why it was omitted because the Gemora wasn’t listing every applicable case.

The Ramban answers that the Gemora is in accordance with Rabbi Yehudah who rules that the husband does not receive any penalties unless he has hired the witnesses. Accordingly, this prohibition does involve an action, and that is why it is not included in the listing.

The Brisker Rav (Temurah 3a) answers that the lashes received is not because the husband violated the prohibition of slandering, for anyone who talks lashon harah does not receive lashes. The lashes are one of the laws for one who defames his wife; he is required to pay a fine, he may not divorce her and he receives lashes. The Gemora required a verse for the warning only because there is a rule that one may not receive lashes unless the Torah states a warning. Accordingly, this is why it is not included in the listing; he does not receive lashes because he violated a negative prohibition, but rather, it is one of the components of the laws for one who defames his wife.

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Daf Yomi - Kesuvos 46 - Highlights

Punishment for Slandering

The Gemora cites a braisa discussing the punishment administered to one who slanders. The braisa cites the Scriptural sources proving that he receives lashes and he is required to pay a fine. (46a)

Warning against Slandering

The Gemora asks: From where do we derive that the Torah issues a warning against slandering (in order to receive punishment for a sin, the Torah must explicitly state a warning prohibiting that particular action)?

Rabbi Elozar said: It is from the following verse: You shall not go about as a talebearer. Rabbi Nosson said: It is from the following verse: Beware of any evil word.

The Gemora asks: What is the reason that Rabbi Elozar does not use the other text?

The Gemora answers: That text is required for the deduction made by Rabbi Pinchas ben Yair: Beware of any evil word. Rabbi Pinchas ben Yair deduced that a man should not indulge in immoral thoughts by day that might lead him to uncleanness (seminal emission) by night.

The Gemora asks: What is the reason that Rabbi Nosson does not use the other text?

The Gemora answers: That text is required to warn the court that it must not be lenient with one of the litigants and harsh to the other. (46a)

The Gemora cites a braisa: If a (slandering) husband did not say to the witnesses, “Come and give evidence for me,” but rather, they volunteered to give it, he does not receive lashes, nor is he required to pay the hundred sela. If the accusation is true, she or her false witnesses that became zomemim (witnesses who other witnesses proclaim could not possibly have seen the event, as they were together in a different location, see Makos 2a) are hurried to the place of stoning.

The Gemora asks: How can we think that she would receive stoning together with false witnesses? It must mean that either she, or her false witnesses that became zomemim receive stoning.

The Gemora comments: The reason that he does not receive lashes is because he did not tell them to give their evidence. Had he, however, told them to testify, he would have been subject to the prescribed penalties even though he did not hire them. This ruling comes to exclude the viewpoint of Rabbi Yehudah, for it was taught in the following braisa: Rabbi Yehudah ruled: A husband does not receive any penalties unless he has hired the witnesses.

The Gemora cites a Scriptural source as the reason for Rabbi Yehudah’s ruling.

Rabbi Yirmiyah inquires: What is the law if the husband hired the witnesses with land (the Scriptural source would seem to indicate that he will only be liable if he hires them with money, food or any movable object)? What is the law if he hires them with less than a perutah? What is the law if he hired them both with a single perutah?

Rav Ashi inquired: What is the law if he slandered her on account of his first marriage (he married her, divorced her and married her again)? What is the law if he slandered her on account of his brother’s marriage (his brother died childless and he performed yibum; he now claims that she was not a virgin when she married his brother)?

The Gemora resolves one of the inquiries, for Rabbi Yonah taught a braisa: It is written: I gave my daughter to this man. We may infer from here that the law of slandering is applicable only when the father gave his daughter to this man, and not to the yavam. (46a)
The Laws of the Defamer

The Gemora elaborates on the dispute mentioned above (45b) between the Rabbis and Rabbi Eliezer ben Yaakov as to whether the laws of the slanderer applies even if the couple did not cohabit. It was taught in the following braisa: What is the case of the slanderer? The husband comes to Beis Din and says to his wife’s father, “I did not find your daughter to be a virgin.” If there are witnesses that she committed adultery, she is subject to stoning. If she cohabited before the erusin, she receives a kesuvah of a manah. If his accusation is found to be a false one, he incurs lashes and he is required to pay one hundred selaim. These laws are applicable whether he cohabited with her or whether he did not cohabit with her. Rabbi Eliezer ben Yaakov says: These words were only said if he did cohabit with her.

The Gemora asks: According to Rabbi Eliezer ben Yaakov, one can well understand why the Torah stated: And he comes to her … and I came near to her, but according to the Rabbis, what is the meaning of that expression?

The Gemora answers: And he comes to her means with wanton charges, and I came near to her means with words.

The Gemora asks: According to Rabbi Eliezer ben Yaakov, one can well understand why the Torah stated: I did not find signs of virginity on your daughter, but according to the Rabbis, what is the meaning of that expression?

The Gemora answers: It means that the husband could not find witnesses to confirm her virginity.

The Gemora asks: According to Rabbi Eliezer ben Yaakov, one can well understand why the Torah stated: And these are the signs of my daughter's virginity (her parents produce the bloodstained sheet and bring them to Beis Din, proving that she was indeed a virgin), but according to the Rabbis, what is the meaning of that expression?

The Gemora answers: It means that her father produces witnesses who confirm her virginity (presenting witnesses who testify that the husband’s witnesses are zomemim).

The Gemora asks: According to Rabbi Eliezer ben Yaakov, one can well understand why the Torah stated: And they shall spread out the sheet, but according to the Rabbis, what is the meaning of that expression?

Rabbi Avahu answered: They explain the charge which he submitted against her, as it was taught in the following braisa: And they shall spread out the sheet teaches us that the witnesses of this one and those of the other one come, and the matter is clarified like a new sheet. Rabbi Eliezer ben Yaakov said: The words are to be taken in their literal sense; they produce the actual sheet.

Rabbi Yitzchak the son of Rav Yaakov bar Giyorei sent in the name of Rabbi Yochanan: Even though we do not find elsewhere in the Torah that there is a distinction between cohabitation in an ordinary manner and cohabitation in an unnatural manner in respect to lashes and fines, in regards to a husband who slanders, there is the following distinction: He is subject to the punishments of slandering even if he cohabits with his wife in an unnatural manner, provided that he accuses his wife of committing adultery in an ordinary manner.

The Gemora asks: According to which Tanna was this ruling issued? It cannot be according to the Rabbis, for they hold that the husband is subject to the punishments of slandering even if he does not cohabit with her. It can also not be following Rabbi Eliezer ben Yaakov’s opinion, for he holds that the husband is subject to the punishments of slandering only if he cohabits with his wife in a natural manner.

The Gemora retracts and cites another version: Rav Kahana sent in the name of Rabbi Yochanan: The husband is subject to the punishments of slandering only if he cohabits with his wife in a natural manner and only if he accuses his wife of committing adultery in an ordinary manner. (46a – 46b)

Mishna

The Mishna states: A father has jurisdiction over his daughter regarding her betrothal; he receives the money, he accepts the document, or he can give his daughter to him for cohabitation. The father is entitled to that which she finds, and to her earnings and to annul her vows. He receives her get, but he does not eat the fruit of her property during her lifetime (if she had inherited property from her mother’s family).

Once she is married (nisuin), the husband exceeds the father in that he does eat the fruit of her property during her lifetime. He is obligated to provide for her maintenance, for her ransom and for her burial. Rabbi Yehudah says; Even the poorest man in Israel may not hire less than two flutes and a wailing woman to lead the mourning at his wife’s burial. (46b)

Scriptural Sources

The Gemora asks: How do we know that a father is entitled to his daughter’s betrothal money?

Rav Yehudah says: It is written concerning a Jewish maidservant who becomes a na’arah: She shall leave free of charge, without payment. Since the words without payment are seemingly superfluous, we derive from here the following exposition: There is no payment paid to this master, but there is a payment made to a different master (when a na’arah leaves his jurisdiction). Who is that? It is her father (when the na’arah gets married, the father is entitled to the betrothal money).

The Gemora asks: Perhaps there is a payment, but the payment belongs to her and not to her father?

The Gemora answers: Since the father is empowered to give his daughter in marriage, it stands to reason that he receives the payment as well.

The Gemora persists in its questioning: Perhaps the father is entitled to her betrothal money only when his daughter is a minor, at a time that she does not have a hand (capable of making legal transactions); however, a na’arah, who has a hand (capable of making legal transactions), let her betroth herself and receive the money?

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 betrothal money goes 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 betrothal money?

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.

And should you suggest that that this should be inferred from the law of compensation for embarrassment and depreciation, it could be retorted that embarrassment and depreciation are different, since 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.

This, however, is the explanation: It is logical to conclude that when the Torah excluded another case of “going out,” the exclusion was meant to be understood in a manner similar to the original (just as in the verse concerning the maidservant who became a na’arah, it is the master, and not the maidservant, who, in the absence of the specific text to the contrary, would have received the money for the latter's redemption, so too in the implication it must be the father (who corresponds to the master), and not his daughter, who is to receive the money when she leaves his jurisdiction at betrothal).

The Gemora asks: But one “going out” is not like that of the other, for in the case of the master, the maidservant departs his jurisdiction completely, whereas in the “going out” from the jurisdiction of her father, she still lacks being given over for chupah?

The Gemora answers: In respect of the annulment of vows, she does depart from her father’s jurisdiction, for he cannot annul her vows by himself any longer. As we have learned in the following Mishna: Concerning a betrothed na’arah, her father and her husband are both necessary to annul her vows. (46b)

The Gemora cites the Scriptural source indicating that the father accepts the betrothal document and that he can give his daughter to a man for betrothal by cohabitation. (46b)

[END]

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Uncertain Warning

The Gemora states: If witnesses appeared when she was betrothed that she had been unfaithful during the betrothal, she is stoned at the doorway of the city gates. If she had been unfaithful while betrothed but then became a bogeres (older than twelve and a half), she is killed with strangulation.

Reb Akiva Eiger asks: Rabbi Yehudah in Sanhedrin (8b) maintains that in order for a person to be subject to a death penalty, they must be warned and informed precisely death they will be receiving if they transgress the prohibition. If so, Reb Akiva Eiger asks: How can the bogeres be executed through strangulation; when she was warned, the witnesses informed her that she would die by stoning since she was a na’arah at the time?

We are compelled to say that our Gemora is following the opinion that holds that one who is warned for a stricter punishment is automatically regarded as being warned for a more lenient punishment. Since she was warned that she will be stoned if she commits adultery, Beis Din may execute her through strangulation if she becomes a bogeres because stoning is stricter than strangulation.

Reb Akiva Eiger asks on any na’arah; how can we execute her by way of stoning? We cannot inform her that she will certainly be stoned, for perhaps, her judgment will not be complete until she becomes a bogeres, and then her death penalty is strangulation, not stoning!?

We are forced to say that Rabbi Yehudah is in accordance with his own opinion, for he holds that an uncertain warning is a valid one. Accordingly, we warn her that she might get stoned or strangled; it all depends on what her status is at the time of Beis Din’s verdict.

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Daf Yomi - Kesuvos 45 - Highlights

Three Types of Na’aros

Shilo taught that there are three types of deaths of a betrothed girl who was unfaithful. If witnesses appeared when she was already married that she had been unfaithful during the period of her betrothal (45a), she is stoned at the doorway of her father’s house. This is as if to state: “see the (bad) growth that you have grown!” If witnesses appeared when she was betrothed that she had been unfaithful during the betrothal, she is stoned at the doorway of the city gates. If she had been unfaithful while betrothed but then became a bogeres (older than twelve and a half), she is killed with strangulation. (44b – 45a)

Does Physical Change Affect the Type of Punishment?

The Gemora asks: This last statement implies that whenever her body changes her punishment changes as well. However, the Braisa states that if a betrothed na’arah is (possibly) unfaithful and then her husband states that she has a bad name when she is a bogeres (as he only married her then), he does not receive lashes or pay one hundred sela (assuming the accusation is false). If the accusation is true, her and her false witnesses proceed to receive stoning. How can we think that she would receive stoning together with false witnesses? It must mean that either she, or false witnesses that became zomimim (witnesses who other witnesses proclaim could not possibly have seen the event, as they were together in a different location, see Makos 2a) receive stoning. [The Gemara’s question is therefore that in the Braisa she receives stoning, despite the fact that she became a bogeres and should, according to Shilo, seemingly deserve strangulation.]

Rava answered: you are asking from a case of a husband giving a bad name to a wife? A case of a husband accusing a wife of infidelity is novel Torah law. This is obvious from the following comparison. If a woman marries without having been unfaithful but then would be unfaithful after marriage, she would receive strangulation. This is in contrast to typical cases of such accusations from a new husband, where his new wife always receives stoning (if the accusations were true, as she must have been unfaithful while betrothed). [Accordingly, accusations regarding a new wife are always punished by stoning, as opposed to a regular case of being unfaithful which can be dependent on whether or not the girl is a bogeres, as stated by Shilo.]

Rav Huna the son of Rav Yehoshua said to Rava: perhaps this novel Torah law is only where her body did not change in the interim, but if it did the Torah would not say a novel law (that she should receive stoning)!

Rav Nachman bar Yitzchak therefore advanced a different answer, that whether or not changing from a na’arah to a bogeres changes punishment is an argument among the Tanaim. The Mishna states that if a prince/king or an anointed kohen gadol sin before they attain this status and then they are appointed, they have the status of a regular person (who brings a regular sin offering to atone for his sin). Rabbi Shimon states if they knew that they had sinned before they were appointed they are indeed obligated like a regular person. However, if they did not know until they were appointed, they are exempt from bringing a regular sin offering. [This seems to imply that because they have changed their korban changes as well.]

The Gemora asks, it is possible that Rabbi Shimon says that knowing about the sin also makes a difference. However, we do not know that he would say that the time of the sin is inconsequential (as Shilo does by saying that she is judged as a bogeres)! If this opinion follows that of Shilo, let them bring korbanos fitting to their current status. The kohen gadol should bring an ox normally brought as the korban for his sin, and the prince/king should bring a goat that is the appropriate animal for his sin!

The Gemora answers that Rabbi Yochanan indeed told the Tana who was teaching the Braisa in the name of Shilo that he should teach that the bogeres receives stoning (not strangulation).

The Gemora asks: Why should this be? Didn’t the torah say that only a betrothed “na’arah” receives stoning, not a bogeres?

Rabbi Ila answers that when the Torah states “the na’arah” it teaches us that it could even be a girl who was a na’arah when she sinned.

Rabbi Chananya said to Rabbi Ila: if this is the case, then let the husband who makes a false accusation about his new wife (who just became a bogeres) receive lashes and pay one hundred sela as well! Rabbi Ila replied: “Heaven save us from such an (incorrect) opinion.” Rabbi Chanina replied: “One the contrary: Heaven should save us from your opinion.!”

What was his reasoning? Rav Yitzchak bar Avin said, and some said Rav Yitzchak bar Abba said that the girls actions caused her to be punished, while the movement of his lips (accusing her of being unfaithful) causes him to be punished. The girl’s actions caused her to be punished. When did that happen? It happened when she was a na’arah. The movement of his lips caused him to be punished. When did he become obligated? At the time he moved his lips, which is when she was a bogeres. (45a – 45b)

Where is she Stoned?

The Braisa taught that a betrothed na’arah who is unfaithful is stoned on the doorway of her father’s house. If no such doorway exists, she is stoned at the opening of the city gates. In a city where there are mostly idolaters, she is stoned at the gates of Beis Din.

How do we know this law? The Braisa states “your gates” refers to the gate where the person committed idol worship. You might say it is the gate where he worshipped, or perhaps it is referring to the gate where he was judged? It says “your gates” below and says it above: just as the passuk below is referring to the gate where the worship happened, also the passuk above is talking about where the worship happened. Another teaching derived from this passuk is that “your gates” excludes the gates of gentiles.

The Gemora asks: Didn’t we already used “your gates” for a teaching above! The Gemora answers, for that teaching it would be sufficient to merely say “gates” Why does it say “your gates?” This shows that we can learn both lessons from this word.

The Gemora observes that the Braisa above only teaches us a lesson regarding idol worship. How do we know this law regarding a betrothed na’arah?

Rabbi Avahu answers that we derive this through the common word of “opening,” the “opening” and “gate” (stated by a betrothed na’arah and the mishkan), and “gate” from the passuk above “your gates” (regarding idol worship, see Rashi).

The Braisa states that a new husband who gives his wife a bad name receives lashes and must pay one hundred sela. Rabbi Yehuda says that he always receives lashes. However, if he had relations with her already he must pay, but if he did not he does not have to pay the one hundred sela. They essentially argue in the same argument of Rabbi Eliezer ben Yakov and the Rabbanan. The Braisa means to say that a new husband who gives his wife a bad name receives lashes and must pay one hundred sela whether or not he had relations with her as per the opinion of the Rabbanan. Rabbi Yehuda says that he always receives lashes. However, if he had relations with her already he must pay, but if he did not he does not have to pay the one hundred sela, as per the opinion of Rabbi Eliezer ben Yaakov.

Some say that the entire Braisa is in fact according to the opinion of Rabbi Eliezer ben Yaakov. The Braisa is stating that a new husband who gives his wife a bad name receives lashes and must pay one hundred sela on condition that he had relations with her. Rabbi Yehuda states that he receives lashes in any event (even if he did not have relations with her). (45b)

[END]

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Perhaps they Repented

The Maharik (shoresh 33) writes concerning a case where one witness testifies that a certain shochet was slaughtering improperly and the shochet himself contradicts the witness; since the witness is not believed, he himself is permitted to eat all future meat slaughtered by this shochet. This is not comparable to a case where a witness testifies regarding wine that is forbidden on account of it being yayin nesech because here there is a possibility that the shochet will repent and slaughter properly.

The Pri Chadash (Y.D. 1, 14) asks: Why don’t we apply the principle of “shavya a’nafshei chaticha d’issura,” one who states that something is forbidden, even if he is not believed in respect to everyone else, renders the object forbidden to him (as is evident from the Gemora in Kesuvos 9a)? All the meat slaughtered by this shochet should be forbidden to this witness!?

The Pri Megadim (Sifsei Daas, ibid, 41) answers that the Maharik is referring to a case where the witness retracted and said that he had testified falsely. In such cases, the principle of “shavya a’nafshei chaticha d’issura” does not apply.

Rav Elyashiv answers: The reason why one can render the object forbidden with the principle of “shavya a’nafshei” is not because he is believed in respect to himself; rather, it is because it is regarded as an oath. The witness is taking a vow forbidding himself from this particular object. Accordingly, he explains that the witness who testified regarding the shochet it making a vow that he will not eat the meat from this animal, however, he will not be prohibited, on account of his vow, against eating from any other animal that this shochet slaughters.

The Mishna Lemelech (Hilchos Shechitah 1:26) challenges the ruling of the Maharik from our Gemora (Kesuvos 44a) which discusses a case where two deeds were given over regarding the same field. The ruling is that the second deed cancels the first one. Rafram explains that the recipient has admitted to the other that the first deed is invalid. Accordingly, the Gemora continues that these witnesses must be regarded as legally unfit for further evidence concerning this recipient since he is stating that they put their signatures to an invalid document. We do not say that they should be valid witnesses later, for perhaps they repented. What is the difference between the two cases?

The Shaar Hamishpat (92:7) answers: The Maharik rules that all meat slaughtered by this shochet will be permitted to eat by the witness because there is a double doubt; perhaps, he has slaughtered the animal properly and perhaps he repented. Just because he slaughtered improperly (according to the witness’ testimony) one time, it is not logical that we should prohibit his slaughtered meat forever. However, in respect to testimony, once the recipient has stated that these witnesses testified falsely, they will be disqualified to offer testimony for him forever. Even according to those that hold that we can apply the principle of a double doubt in regards to monetary judgments, here, it will not apply. What can be said? Perhaps the witnesses will testify truthfully and perhaps they repented. This logic is not applicable by testimony, for testimony functions as a proof, and if we are uncertain if the witnesses repented or not, they cannot be accepted as witnesses because we have no proof that they are testifying truthfully. Therefore, they will not be believed for all future testimonies regarding this recipient.

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Daf Yomi - Kesuvos 44 - Highlights

Two Deeds on the same Field

Rav Nachman had stated: If two deeds were issued in respect to one field and one is dated after the other, the latter cancels the former.

Rav Papa said: Rav Nachman would admit that if he added a palm tree in the second deed, he wrote it for the addition (the deed is not thereby impaired, and it is, therefore, within the right of the holder of the deeds to collect properties sold after the second date by using the second deed and thus recover the original as well as the addition, or he may collect from the first date the original alone without the addition).

The Gemora elaborates: It is obvious that the reason why both deeds are valid where the first transferred the field through a sale and the second deed gave the field as a gift, is because the action of the owner was intended to improve the recipients rights, as a safeguard against the law of the bordering property owner (in virtue of which the next adjoining neighbor can insist on exercising the right of first purchase, for the other purchaser can find fields to buy elsewhere; this right (derived from the verse: You shall do that which is right and good) applies to a sale but not to a gift). And certainly it is obvious where the first was for a gift and the second for a sale, for it may then be presumed that the latter was written in that manner for the law of the creditors rights (only a buyer may claim compensation from the original owner if a creditor of that owner had seized the field that he bought; a recipient of a gift has no such right; by the writing of the second deed, the owner has conferred upon the recipient the additional rights of a buyer). What, however, is the reason why the second deed cancels the first where both deeds were for a sale or both for a gift?

Rafram replied: It may be presumed that the recipient has admitted to the other that the first deed is invalid (and he nevertheless, willingly accepted the second deed, knowing that it will restrict him to the later date).

Rav Acha said: It may be presumed that the recipient has surrendered his lien from the first deed.

The Gemora asks: What is the practical difference between them?

The Gemora answers: The disqualification of the witnesses (according to Rafram, the witnesses must be regarded as legally unfit for further evidence since they put their signatures to an invalid document; according to Rav Acha, who does not question the authenticity of the deed, the character of the witnesses is not in any way affected), payment of compensation for the fruits eaten by the recipient (between the first and the second date; according to Rafram, the recipient must pay such compensation since the first deed is presumed to be invalid, but according to Rav Acha, no such compensation is paid since the recipient is the actual owner of the field) and the land tax (the original owner must pay the property tax according to Rafram and the recipient pays it according to Rav Acha) are the differences between them. (44a)



From When May She Collect?
The Gemora returns to its original inquiry: What is the decision in respect of the kesuvah (as to the collection of the kesuvah, from which date may she collect the properties sold by her husband between the date of the betrothal and that on which the kesuvah was written; do we say she may collect the property from the purchasers because the husband becomes Rabbinically liable for the kesuvah at the time of erusin or do we say that she may only collect properties sold by the husband after the kesuvah was actually written)?

Come and hear what Rav Yehudah stated in the name of Shmuel who said it from Rabbi Elozar the son of Rabbi Shimon: The hundred or the two hundred zuz (the regular obligation of the kesuvah), she may collect the properties sold from the date of the betrothal (since the lien took effect from then) and the additional amount of the kesuvah (which varies according to their specific arrangement) she may collect from the properties sold after the nisuin. The Chachamim, however, ruled: Both amounts may be collected only from the date of the nisuin (having accepted the written hesuvah that bore the later date on which her nisuin took place, the woman is assumed to have waived her rights to the original lien, which she had acquired earlier on betrothal, in favor of her new advantages as well as any disadvantages that were conferred by the written document).

The Gemora rules: The halacha is that both amounts may be collected only from the date of the nisuin. (44a)
Mishna
(Introduction: The Torah writes, concerning the slanderer, who after marrying a virgin na’arah, accuses her of committing adultery between the erusin and nisuin. If the witnesses that he brought to Beis Din were proven to be false, he receives lashes and he must pay a fine of one hundred sela. If the witnesses are confirmed, they shall lead the maiden out to the door of her father's house, and the people of her city shall stone her with stones that she die; because she committed a shameful act in Israel.)

The Mishna states: A female convert whose daughter was converted with her, and she committed adultery after erusin, she is liable to strangulation. She is not subject to the laws of “the entrance of the house of her father” (an ordinary na’arah is stoned at this location; it is not necessary by a convert), nor one hundred sela (if the witnesses were found to be false, she will not receive the fine from her husband). If she was not conceived in sanctity, but was born in sanctity, then she is subject to the law of stoning. She is not subject to the laws of “the entrance of the house of her father,” nor one hundred sela. If she was conceived and born in sanctity, then she is as the daughter of an Israelite in every respect.

If an ordinary na’arah has a father, but does not have the entrance of the house of her father (her father does not own a house), or if she has the entrance of the house of her father, but does not have a father, she is subject to the law of stoning. “The entrance of her father's house” was stated only as a mitzvah, but not as a requirement. (44a)

The Gemora cites the Scriptural sources for the Mishna’s halachos. (44b)
Orphan Girl
Rabbi Yosi bar Chanina says: One who slanders an orphan girl is exempt from paying the fine. This is derived from the fact that the Torah writes [Devarim 22:19]: And give (the fine) to the father of the girl. This girl is excluded because she has no father.

The Gemora asks from the laws of a seducer where the Torah writes “her father,” and nevertheless, an orphan girl is not excluded from the receiving of the fine!?

The Gemora answers: An orphan would be excluded from the laws of the seducer if she was seduced while she was an orphan; however, if she had a father while she was seduced and afterwards she was orphaned, she will be entitled to receive the fine. (44b)

Slandering a Minor
Rish Lakish says: One who slanders a minor is exempt from paying the fine because it is written na’arah in the Torah.

Rav Acha bar Abba asks: If the Torah would not have written na’arah, would we have said that a minor is included? But, how can that be? The Torah writes that if the matter was true, the girl would be taken out and stoned! This cannot be referring to a minor, for a minor is not subject to punishment!?

The Gemora explains what Rish Lakish meant: Here, the word na’arah is written in full (with the letter hey at the end). We can infer from here that whenever the Torah writes na’ara without the hey, it is referring to a minor. (44b)

[END]

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Delayed Chupah

Rashi explains the Gemora Kesuvos (43b) according to the one that maintains that an arusah is entitled to a kesuvah, and that she may collect from the properties sold by her husband afterwards since there was a lien on his property. The Rambam, however, disagrees and holds that an arusah is never entitled to collect from the property that her husband sold, even if he wrote for her a kesuvah. This document is inferior to all other documents. Shulchan Aruch (E”H, 55:6) rules like this, as well.

There are many times that a kesuvah is written by day, but the chupah does not occur until past sunset. In order that the document should not be regarded as an “early document (if the date written is earlier than when the event took place),” it is customary for those arranging the marriage (mesader kiddushin) to have the choson make a kinyan before sunset that he is obligating himself to all that is written in the kesuvah from now. In this manner, the kesuvah will be valid.

Rav Elyashiv writes that it is preferable to draw up a new kesuvah with the later date, for according to the Rambam, the woman will not be able to collect from properties sold by the husband since a kesuvah written prior to nisuin is an inferior one.

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Daf Yomi - Kesuvos 43 - Highlights

The Daughter’s Earnings

Rabbi Avina inquired of Rav Sheishes: If the daughter is being supported by her brothers (as stated in the kesuvah; all daughters will be supported from the father’s estate until they marry or become a bogeres), who has the rights to her earnings? Do the brothers take the place of their father, and just as her earnings would have belonged to the father, so too now, they belong to the sons? Or, perhaps, we should not compare the brothers to the father. The father is entitled to her earnings because he supports her, but the brothers are not supporting her from their money; they are supporting her from their father’s estate, and therefore, they should not be entitled to her earnings.

Rav Sheishes responds: We have learned in the following Mishna: A widow is supported from the property inherited by the orphans and they are entitled to her earnings (proving that the brothers should be entitled to the daughter’s earnings).

The Gemora objects to this proof: How can the two cases be compared? The reason that the orphans are entitled to the widow’s earnings is because the husband (when writing the kesuvah) does not desire that his widow should profit at the expense of the sons. However, in respect to the daughter, the father does desire that she should profit (and keep her earnings) even at the expense of the brothers (because this way, she will have a larger dowry and will be more desirable to marry).

The Gemora asks: Do you mean to say that the man has preference for his daughter over his widow? But Rabbi Abba said in the name of Rabbi Yosi: The relationship between a widow and her daughter, in the case of a small estate (which does not suffice for the maintenance of the dependents of the deceased man for a period of twelve months), has been put on the same level as that of the relationship between a daughter and her brothers. Just as in the case of the relationship between a daughter and her brothers, the daughter is supported while the brothers can go begging at people's doors, so also in the case of the relationship between a widow and her daughter, the widow is supported and the daughter can go begging at people's doors (this proves that there is a preference to the widow over the daughter).

The Gemora answers: As regards against degradation (begging for money), a man gives preference to his widow; as regards to profiting, he gives preference to his daughter.

Rav Yosef asks on the ruling of Rav Sheishes (that the earnings of the daughter belong to the brothers) from our Mishna which states: Her earnings and what she finds, even though she did not collect them, and the father died, they then belong to the brothers. It would seem that the reason the brothers are entitled to her earnings is because they originated while the father was alive; however, if they originated after his death, they would belong to her. Isn’t our Mishna discussing a case where the brothers were supporting her (and still the earnings belong to her)?

The Gemora answers: No! The Mishna is referring to a case where the brothers are not supporting her (there was no inheritance from the father).

The Gemora asks: If the Mishna is discussing a case where the brothers are not supporting her, what was the Mishna’s necessity to state this case? For even according to the one who ruled that a master is entitled to say to his slave, “Work for me, but I will not maintain you,” this ruling applies only to a Canaanite slave concerning whom “for it is good for him with you” was not written in the Torah, but not to a Hebrew slave concerning whom “for it is good for him with you” was written in the Torah. How much more so that he cannot say this to his daughter?

Rabbah bar Ula answers: The Mishna is discussing a case where the brothers are not supporting her, but the Mishna is teaching us that even the extra income that she is earning (if it exceeded the cost of her maintenance) belongs to her and not to the brothers.

Rava asked: Could it be that such a great man as Rav Yosef did not know that the Mishna may be referring to a case of an extra income when he raised his objection?

Rather, Rava explains: Rav Yosef raised his objection from our very Mishna, for it was stated: Her earnings and what she finds, even though she did not collect the. From whom is she to collect anything she finds? Consequently it must be conceded that it is this that was meant: Her earnings is similar to anything that she finds; just as anything she finds belongs to her father, if she finds it while he is alive, and she may keep her findings if she finds it after his death. So too, in the case of her earnings; if it was done while her father was alive, it belongs to her father, but if it was done after his death, it belongs to herself. Thus, it may be proven that she may keep her earnings even if she is being supported by the brothers.

It was also stated: Rav Yehudah said in the name of Rav: Even if a daughter is being supported by the brothers, she is entitled to keep her earnings.

Rav Kahana cites a Scriptural source for this, proving that a father does not bequeath to his sons the rights to his daughter’s earnings.

The Gemora concludes that the halacha is indeed according to Rav Sheishes and Rav. (43a – 43b)
Mishna

The Mishna states: If a man gives his daughter (who is a minor or a na’arah) in betrothal, and he divorced her, and then, the father gave her in betrothal again, and she was widowed, her kesuvah (from both marriages) is his. If he gave her in nisuin, and he divorced her, and then, the father gave her in nisuin, and she was widowed, her kesuvah (from both marriages) belongs to her. Rabbi Yehudah says: The first kesuvah belongs to the father. They said to him: After he gave her in nisuin, her father has no authority over her. (43b)

Two Occurrences

The Gemora comments: By the fact that the Mishna stated a case where she was married and divorced, and married again and widowed, this would imply that had the case been that both her husbands had died, she would be labeled a katlanis (a woman that kills her husbands), and she would not be permitted to marry again. It emerges that there is an anonymous Mishna that is following Rebbe’s opinion, for Rebbe maintains that we can establish a chazakah (a presumption that something will happen) based on two occurrences (and it is not necessary to have three occurrences). (43b)

Rabbi Yehudah’s Reason

The Gemora explains Rabbi Yehudah’s opinion: Rabbah and Rav Yosef both say that the father is entitles to her kesuvah even after nisuin because the kesuvah was written while she was still under her father’s jurisdiction (since most kesuvah’s are written immediately prior to the nisuin; at that time, if she is a minor or a na’arah, the father has jurisdiction). (43b)

From When May She Collect?

The Gemora inquires (according to Rabbi Yehudah): As to the collection of the kesuvah, from which date may she collect (the properties sold by her husband between the date of the betrothal and that on which the kesuvah was written; do we say she may collect the property from the purchasers because the husband becomes Rabbinically liable for the kesuvah at the time of erusin or do we say that she may only collect properties sold by the husband after the kesuvah was actually written)?

Rav Huna replied: The hundred or the two hundred zuz (the regular obligation of the kesuvah), she may collect the properties sold from the date of the betrothal (since the lien took effect from then) and the additional amount of the kesuvah (which varies according to their specific arrangement) she may collect from the properties sold after the nisuin. Rav Assi, however, replied: Both amounts may be collected only from the date of the nisuin (having accepted the written hesuvah that bore the later date on which her nisuin took place, the woman is assumed to have waived her rights to the original lien, which she had acquired earlier on betrothal, in favor of her new advantages as well as any disadvantages that were conferred by the written document).

The Gemora asks: How could Rav Huna have issued such a ruling? Has it not been stated: If a wife produced against her husband two Kesuvos, one for two hundred, and one for three hundred zuz, she may, said Rav Huna, collect the properties sold from the earlier date if she wishes to collect the two hundred zuz, but if she desires to collect the three hundred zuz, she may only collect properties sold after the later date. Now, if the ruling were as stated, she should be entitled to collect property two hundred zuz from the earlier date and property worth one hundred from the later date?

The Gemora replies: But even according to your understanding, it might equally be challenged that she should be able to collect for all the five hundred zuz, two hundred from the earlier date and three hundred from the later date? What then is the reason why she cannot do so? It is obviously because the man did not write in the kesuvah, “I willingly added to you three hundred zuz to the two hundred.” He must have therefore meant: “If you desire to collect from the earlier date, you may collect no more than two hundred, and if you desire to collect from the later date, you may collect three hundred.”

Here also, the reason why she cannot collect two hundred from the first date and one hundred from the second date is because he did not write in the kesuvah, “I have willingly added a hundred zuz to the two hundred,” she, having accepted the kesuvah obviously is waiving her right to the first lien. (43b – 44a)

[END]

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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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