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Kesuvos, 15

KESUVOS 15 (9 Nisan 5760) - sponsored by Alex and Helen Gross of Rechavya, Jerusalem in honour of the birth of their granddaughter -- Mazel Tov! May their love of Torah and their fellow Jews continue to be a living example for all of their descendants, "Ad Me'ah v'Esrim"!


QUESTION: In the Mishnah, Rebbi Yosi qutoes Rebbi Yochanan ben Nuri who rules that if a girl was raped and we do not know who did it, and most (Rov) people in the area are not Pesulim, then we permit her to marry a Kohen. The Gemara says that the Mishnah is referring to a case where there are two Rov's -- most (Rov) of the people in the city are Kesherim, and most (Rov) of the people who travel to the city from outside of the city to come to the marketplace are Kesherim. Because there are two Rov's, we permit her to marry a Kohen.

RASHI (end of 14b, DH Amar Lei) explains that according to this explanation of the Mishnah, the Mishnah follows the opinion of Rebbi Yehoshua who says that with a single Rov she would not be permitted, but with two Rov's she is permitted.

The Gemara (end of 15a) says that the Halachah follows Rebbi Yosi in this Mishnah. Earlier, however, the Gemara (14a) says that the Halachah follows Raban Gamliel, who says that a woman is believed when she says that she had relations with a person who does not invalidate her to Kehunah. If the Halachah follows the Mishnah here, and the Mishnah here is the view of Rebbi Yehoshua (like Rashi says), then how can the Halachah follow Raban Gamliel as well, who argues with Rebbi Yehoshua?


(a) The Mishnah is discussing a case where the girl *makes no claim* about who had relations with her, and thus she has no Ta'anas Bari. The Gemara earlier (14a) says that Raban Gamliel does *not* permit a woman when she has no Ta'anas Bari (even when there are two Sfeikos, such as in the case of "Almanas Isah"). Hence, the woman is not permitted in the case where she is silent and makes no claim, even according to Raban Gamliel, and therefore the two rulings (that we rule like Raban Gamliel, and we rule like the Mishnah here) do not contradict each other.

However, if Raban Gamliel agrees that the woman is not permitted when she makes no claim, then why does Rashi write that the Mishnah here is according to Rebbi Yehoshua, who says that she is permitted when there are two Rov's to her favor? The two Rov's should permit her according to Raban Gamliel as well!

The RASHBA answers that Raban Gamliel holds that just like two Sfeikos will not permit the woman when she has no Ta'anas Bari, so, too, two Rov's will also not permit her.

(b) TOSFOS (14b, DH k'Man) explains that we rely on Raban Gamliel only when there is a Rov supporting the woman's claim of Bari. When the Gemara here rules like Rebbi Yosi, it means that l'Chatchilah we should be stringent to require not just one Rov, but two Rov's, like Rebbi Yehoshua holds. The Halachah that we rule like Raban Gamliel was only said regarding a situation of *b'Di'eved*. The Halachah stated here is how we should rule *l'Chatchilah*.

(c) The BA'AL HA'ME'OR gives a different explanation of the Gemara than that of Rashi. He explains that according to Raban Gamliel, even one Rov -- even without a Ta'anas Bari -- should be enough to permit her, because the Rov will take the place of a Ta'anas Bari (see the Gemara at the beginning of 16a). Why, then, does the Gemara say that our Mishnah is referring to where there are two Rov's (and is following the opinion of Rebbi Yehoshua)? It should say that the Mishnah is referring to where there is a single Rov, and is following the opinion of Raban Gamliel!

The Ba'al ha'Me'or answers that the Gemara understands the Mishnah in the context of the rest of the Mishnayos in this Perek, which discuss a woman who has a Ta'anas Bari. If she has a Ta'anas Bari, then Raban Gamliel would not require even one Rov. The Mishnah, which explicitly states that she is permitted only when there is a Rov, must therefore be following the view of Rebbi Yehoshua (and is discussing a case where there are *two* Rov's). Even though Rav Chiya bar Ashi rules like Rebbi Yosi, *we* do *not* rule like Rebbi Yosi, because we rule like Raban Gamliel who says that a single Rov is enough when there is no Ta'anas Bari, and *no* Rov is needed when there *is* a Ta'anas Bari. We rule like Rav Chanan bar Rava who says that the ruling in the Mishnah was a Hora'as Sha'ah that required two Rov's, but normally a single Rov suffices where she has no Ta'anas Bari. (This is also the way Rabeinu Chananel learns as quoted by Tosfos, DH Man.)

QUESTION: The Gemara discusses a case of "Palga u'Palga," in which the perpetrator cannot be punished because of the principle of "Safek Nefashos l'Hakel." RASHI (DH Safek Nefashos) explains that the basis for this principle is the verse, "v'Hitzilu ha'Edah" (Bamidbar 35:25).`The Rashbam (Bava Basra 50b) also cites this verse as the source for being lenient in a case of Safek Nefashos.

While it is true that this verse is used in various cases to acquit someone who is suspected of killing where there is any possible way to vindicate him, it does not seem necessary to invoke the verse in order to exempt the person from a Chiyuv Misah in the case of a Safek. In the case of a Safek, the person cannot be punished, because we simply do not know for sure that he is a Rotze'ach! That is the reason for being lenient in a case of Safek Nefashos. Even in cases of monetary matters, we do not make a person pay money when there is a doubt. Certainly, then, we may not execute a person when there is a Safek in a case of Dinei Nefashos! Why does Rashi not give this simple reason? (TOSFOS Bava Basra 50b, DH Safek).


(a) RAV ELCHANAN WASSERMAN, Hy'd, in KOVETZ SHI'URIM (Bava Basra #223) answers that the Rashbam there (and Rashi here) are explaining that the person is not merely exempt mi'Safek because we are not sure whether he deserves punishment. Rather, he is *Vadai Patur* -- he is *definitely* exempt, as if there were no Safek, because the Torah says that in a case of Dinei Nefashos where we have a doubt, the person is *definitely* exempt from Chiyuv Misah. This is what the verse, "v'Hitzilu ha'Edah," tells us. (This is similar to the Gezeiras ha'Kasuv of the Torah that a Safek Tum'ah in Reshus ha'Rabim is deemed to be definitely Tahor.)

Why is it necessary for the Torah to exempt him b'Vadai? Even without a definite Petur from Misah, he would be Patur from Misah because of the general principle that we cannot give a person Misah out of doubt!

Rav Elchanan says that there are several ramifications of whether he is Patur mi'Safek or Patur b'Vadai. In the case of a Shor ha'Niskal, an ox that must be put to death because it killed a person, the rule (based on a Hekesh) is that the ox is put to death only in a situation in which a person would have been put to death had a person committed the same act. In a case where there is a Safek whether the Shor needs to be killed, do we kill it or not? If a person, in a case of a Safek Dinei Nefashos, is exempt from Misah only because we cannot administer the Chiyuv Misah out of doubt, then we *could* kill the Shor out of doubt, because, in contrast to giving Misah to an innocent person, there is no Isur Retzichah per se involved in killing an innocent Shor if the Shor is not deserving of death. But if the Torah tells us that a person is exempt *b'Vadai* in a case of Safek Nefashos, then the Shor should also be exempt because of the Hekesh.

Another difference, says Rav Elchanan, whether a person is Patur mi'Safek or Patur b'Vadai is whether the principle of "Kim Lei b'd'Rabah Minei" applies in a case of Safek. The principle of "Kim Lei" tells us that when a person became Chayav for two punishments (such as Misah and a monetary payment) at one time, he is only obligated to receive the larger, more severe punishment. If a person becomes Chayav to pay money at the same time he becomes *Safek* Chayav Misah, then if he is exempt from Misah only because of a Safek, then he remains exempt from paying money because, mi'Safek, we cannot make him pay (because perhaps in truth he is really Chayav Misah which would exempt him from the payment, and thus the person to whom he owes the money must bring proof that he is *definitely* Patur from Misah). A Safek Chiyuv Misah is enough to exempt him from payment. If, however, he is *definitely* exempt from Misah, then he should have to pay the money because there is no punishment of Misah, not even mi'Safek, to exempt him.

Perhaps it was necessary for Rashi to mention the verse, "v'Hitzilu ha'Edah," in our Sugya because of the question of Tosfos. Tosfos (DH v'Safek) asks that according to the opinion that holds "Hasra'as Safek Shmah Hasra'ah" -- a Hasra'ah given to a person when what he is about to do is a Safek Aveirah is nevertheless a valid Hasra'ah (to make him liable to punishment) -- the person should be Chayav in this case (since we see that a Jew actually was killed, even though it was a Safek to the perpetrator at the time that he threw the rock).

Rashi might be answering this question and saying that since there is a definite Petur of "v'Hitzilu ha'Edah," the Hasra'ah here is not considered a Hasra'ah at all, since no Aveirah was done at all, even according to the opinion that says Hasra'as Safek normally is a valid Hasra'ah.

(b) However, this approach is problematic. First, this approach does not explain why the Rashbam in Bava Basra needs to mention the verse of "v'Hitzilu ha'Edah" in that Sugya. There, it would suffice to say that Beis Din may not punish a person with Misah out of doubt.

Second, in the case of Shor ha'Niskal, why would we kill the Shor mi'Safek? The owner of the ox has a Chezkas Mamon, and we should say that the ox is not killed mi'Safek, and since it is not killed it should not be Asur to derive benefit from it. ?Moreover, even if a man's Petur from Misah is mi'Safek, there is still reason to say that the Hekesh exempts the Shor from Misah in a similar case of Safek, because the Hekesh says that whenever person is exempt, a Shor is also exempt!

Third, the case of "Kim Lei" should also not be affected by whether the person is exempt mi'Safek or exempt b'Vadai. According to those who say that one who killed inadvertently and is not Chayav Misah is still exempt from monetary payments because of "Kim Lei," why is our case of a Safek Chiyuv Misah any less than a case of one who killed inadvertently? It should still be treated like a Safek, and even though he is definitely Patur from Misah, the very fact that he killed should exempt him from paying!

According to the opinion that one who killed inadvertently is *not* exempt from paying (because he holds that "Kim Lei" does not apply when the Aveirah was done b'Shogeg), then it is obvious that he should be *Chayav* to pay even if the Petur from Misah is only mi'Safek, because "Kim Lei" can only exempt a person from paying if we are *applying* a punishment of Misah, but it cannot exempt him from paying if the Chiyuv Misah cannot be applied in practice.

In our Sugya as well, the verse of "v'Hitzilu ha'Edah" cannot be applied to exempt a person from Misah according to the opinion that Hasra'as Safek is a valid Hasra'ah. "V'Hitzilu ha'Edah" is only a Petur from punishment when we are not sure that the person has killed; it does *not* make the Aveirah of throwing a rock into a crowd of people any less of an Aveirah if it turns out that it caused someone's death. The Aveirah is the same Aveirah; it is just exempt from Misah. Since, in this case, we know that his act eventually killed someone, "v'Hitzilu ha'Edah" cannot exempt him from Misah, because the Hasra'ah was a valid Hasra'ah according to the opinion that says "Hasra'as Safek Shmah Hasra'ah!"

We find that Rashi in other places makes similar statements regarding the reason why a person is exempt in a case of Safek. Rashi in Yevamos (99b, DH Ein Sofgin) writes that if a Safek Kohen becomes Tamei for a Mes, he does not receive Malkus because the Hasra'ah was a Hasra'as Safek. Why does Rashi there not say that the reason the person is exempt from Malkus is because we cannot punish a person when we do not know for certain that he committed a crime?

Rashi makes the same statement about Chiyuv Malkus in Chulin (23b, end of DH Ela d'Rebbi Yehudah; 80a, DH Hasra'as Safek; 86b, DH sh'Eino Sofeg).

Apparently, Rashi learns that the principle that we must be stringent with a Safek d'Oraisa is a rule *d'Oraisa*, like many other Rishonim maintain (see Rashba, Chulin 9b, and Shav Shmaisa 1:1), in contrast to the view of the Rambam. Therefore, even though in a case of a Safek in a monetary matter we do not make a person pay mi'Safek, that is because we do not know for sure that he owes money. The same should apply when we are not sure whether a person killed or not (for example, we are not sure whether this person killed, or another person killed). The person is Patur from Misah because we do not know for sure that he is guilty. But when the person did an act which he knew was an act of a Safek Aveirah, then perhaps when the Torah says that it is Asur d'Oraisa to perform a Safek Aveirah, the Torah might mean that it is Asur and it *has the same status as a definite Aveirah.* The Mitzvah in the Torah that tells him not to do an Aveirah when it is Vadai is the same Mitzvah that tells him not to do an Aveirah when it is a Safek! If so, he should also be punished for the Aveirah that he did (even though it was a Safek at the time he did the act), since he did an act that he knows the Torah prohibits. That is why Rashi writes that in the case of Malkus, he is Patur from punishment because of Hasra'as Safek, and in the case of Safek Nefashos (in our Gemara), he is Patur because of "v'Hitzilu ha'Edah."

This leaves just one question, though. Why does Rashi here need to write the new reason of "v'Hitzilu ha'Edah," and it does not suffice to say that the reason is because of Hasra'as Safek? We cannot answer that it is because there is an opinion that says "Hasra'as Safek *Lo* Shmah Hasra'ah," because this type of Hasra'as Safek is not a Hasra'ah according to everyone (even according to Reish Lakish, who says that a normal case of Hasra'as Safek is a valid Hasra'ah). Why, then, does Rashi have to give a new reason and not the reason of Hasra'as Safek?

It seems that Rashi learns from the wording of the Gemara, "Safek Nefashos l'Hakel," that the Petur here is a specific exemption in the laws of Dinei Nefashos (and it does not apply elsewhere, such as to exempt a person in a case of Malkus). Why, though, does the *Gemara* give a new reason to exempt a person from Misah in the case of a Safek Aveirah? Why does the usual reason of Hasra'as Safek, which exempts a person in a case of Malkus, not suffice to exempt him here as well?

Apparently, the reason of Hasra'as Safek will not exempt a person from *Misah* because there is a difference in the nature of the Hasra'os for *Misah* and for *Malkus*. Rashi (Shavuos 20b, DH v'Azharasei) tells us that the person who gives the Hasra'ah must mention the verse in the Torah which the sinner is about to transgress. When giving Hasra'ah for Misah, does one have to mention the prohibition in the Torah for the act that the person is about to commit? The Gemara in Sanhedrin (8b) says that he must mention only what the *punishment* for the act is, but we do not find that he must mention the specific verse in the Torah which prohibits the act. It could be that when it comes to a punishment of Misah, the purpose of the Hasra'ah is to mention what the punishment is, without mentioning the verse describing the prohibition. The only reason he must mention the prohibition when giving Hasra'ah for Malkus is because he needs to show where we find the punishment of Malkus in the Torah for the act that the sinner is doing (since the Malkus for every Lo Ta'aseh is learned from Lo Tachsom; by mentioning the verse of the Lo Ta'aseh that the person is about to do, one thereby shows that it its Malkus is derived from the Lo Ta'aseh of Lo Tachsom). Since he has to mention the verse of the prohibition in the case of a Lo Ta'aseh, and the Aveirah that the person is doing is only a Safek, the verse (which prohibits a Vadai Aveirah) that he is mentioning for the Hasra'ah is *not* referring to the act that the sinner is doing (which is a Safek Aveirah). Hence it is a Hasra'as Safek and the sinner cannot be punished for it. In contrast, when giving Hasra'ah for a Chiyuv Misah, in which he does not mention the prohibition in the Torah but only the punishment, it is not a Hasra'as Safek, because he will certainly get the punishment if he does commit the Aveirah! That is why it needs a separate Petur of "v'Hitzilu ha'Edah."


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