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Kesuvos, 41

KESUVOS 41 (5 Iyar)- Dedicated by Marsha and Lee Weinblatt of N.J. -- they, and their extended family, should be blessed with good health and the joy of those who serve Hashem. May we soon merit to see the return of Hashem to Zion!


QUESTION: The Mishnah states that when the father of a woman who was an Anusah (raped) or Mefutah (seduced) died after Ha'amadah ba'Din, her brothers inherit the Kenas etc. But when her father died before Ha'amadah ba'Din, "they belong to her."

The Mishnah until now was discussing the payments of Kenas, Boshes, Pegam, and Tza'ar. When the Mishnah says, "Harei *Hen* Shel Atzmah" -- "*they* belong to her," it implies that all of the payments go to her. This is also the implication of the Seifa in which Rebbi Shimon says that even when her father dies after Ha'amadah ba'Din, she gets the money, but she does not get Ma'aseh Yadehah (the wages she earned) or Metzi'asah (the items she found) that she earned or found before her father died, even though they were not collected until after her father died. This implies that she *does* get everything besides Ma'aseh Yadehah and Metzi'asah -- that is, Boshes, Pegam, and Tza'ar.

Why should she receive the payments of Boshes, Pegam, and Tza'ar? We can understand why she receives the Kenas; there is no concrete obligation to pay the Kenas until after Ha'amadah ba'Din (since if the Me'anes or Mefateh confesses to his crime prior to Ha'amadah ba'Din, he would be exempt from paying the Kenas), and therefore it does not belong to the father yet and he cannot bequeath it to his sons. The other payments, though, of Boshes, Pegam, and Tza'ar, are normal payments for damages (from which a person is not exempt if he confesses), which are normally given to the woman's father (43b). Why should the father not be able to bequeath these payments to his children, even if he dies before Ha'amadah ba'Din?

ANSWERS: The Rishonim offer a number of approaches to this Mishnah.

(a) The RE'AH writes that when the Mishnah says, "Harei Hen Shel Atzmah," it is not referring to Boshes and Pegam at all, but only to the *Kenas* of an *Anusah*. In the case of a Mefutah, the woman does not receive the Kenas, because she was Mochel the Kenas by participating in the act willingly (like the Gemara says on 32a and 42a). The Mefutah also does not receive the Boshes and Pegam because those payments are normal monetary obligations which the brothers inherit from the father.

The Seifa, which says that the woman's Ma'aseh Yadehah and Metzi'asah go to her brothers does not mean to exclude the payments for Boshes and Pegam. These go to her brothers as well. This also seems to be the opinion of RASHI (42a, DH Meis ha'Av, unless he holds like opinion (b) below).

(The PNEI YEHOSHUA (42a) points out that it is difficult to say that the Mishnah is discussing only an Anusah, because it seems clear from the Gemara that Rebbi Shimon, who says that when the father dies after Ha'amadah ba'Din the money goes to the daughter and not her brothers, is discussing the money paid for a Mefutah.)

(b) The RAMBAN and RITVA say, like the Re'ah, that the Mishnah is referring only to Kenas, but they say that it is referring to the Kenas of both an Anusah and a Mefutah. Why should the Mefutah receive her Kenas, though, if she was Mochel all monetary obligations that came about through the seduction? The answer, like the TOSFOS HA'ROSH writes, is that at the time of the Pituy, her father was still alive, and her father was supposed to receive the money of the Kenas. Therefore, the daughter was unable to be Mochel it at the time of the offense because it was not hers to be Mochel. It is only after the father dies that the Torah entitles her to receive the Kenas, but at that point there is no longer any evident act of Mechilah on her part. Therefore, she receives the money of the Kenas.

The Re'ah, on the other hand, apparently holds that once the Mefutah agrees to the act, she is Mochel not only any indemnification that she is entitled to immediately, but she is also Mochel through her present act any indemnification that she could receive later for this act.

The source for this opinion might be the Yerushalmi (cited by Tosfos 29a, see below), that discusses the Mishnah in which we find that one who rapes his own daughter is exempt from Kenas because of "Kam Lei b'd'Rabah Minei." The Yerushalmi explains that the Mishnah must be referring to when the father dies before Ha'amadah ba'Din, and the Mishnah is teaching that his *sons* do not have to pay their sister the Kenas for their father's rape. Since the Gemara in Sanhedrin (74a) says that the Mishnah is discussing a case of Mefutah, it appears that a Mefutah cannot be Mochel the money if her father is alive at the time of the Pituy, but dies before Ha'amadah b'Din. (Although the Yerushalmi holds that a woman could never be Mochel the Kenas, even when the father is already dead at the time of the Pituy, as we will cite from the Yerushalmi soon, the Bavli must agree with the Yerushalmi that she cannot be Mochel the Kenas at least when the Pituy was done while the father was alive, see Tosfos ibid.)

Another reason why the Mefutah should receive the Kenas and is not considered to have been Mochel the Kenas might be because of the reasoning of the Yerushalmi (cited by TOSFOS 29a, DH v'Al Eshes Achiv, and Rishonim 36b, 38a) that a woman cannot be Mochel her Kenas under any circumstances. The logic of the Yerushalmi seems to be similar to the Ramban's logic. Even if the Kenas goes to her, it is not considered to be hers until Ha'amadah ba'Din, and since she did nothing to be Mochel it after Ha'amadah ba'Din, she gets the Kenas. (Tosfos points out that the Bavli argues with this Halachah on 32a. However, this might depend on the Girsa'os cited by the Rishonim in the Gemara there -- see Chart #6 footnote #2.)

(c) TOSFOS (see Tosfos 38b DH Yesh Beger, 40b DH v'Eima and 41b DH Na'arah) explains that the obligation to pay Boshes and Pegam is compared to the obligation to pay Kenas through a Hekesh. Therefore, even though the payments for damages are normally considered to be monetary entitlements which the heirs inherit from their father even before Ha'amadah ba'Din, nevertheless the Torah says that the payments of Boshes and Pegam must be given to whomever the Kenas is given. Therefore, just like she gets the Kenas, she also gets the Boshes and Pegam.

Tosfos (38b) explains that Boshes and Pegam are not entirely compared to Kenas, and in cases where Kenas is not paid at all (such as where the Me'anes confesses), Boshes and Pegam still must be paid. The Hekesh only tells us that when Kenas is paid, the Boshes and Pegam are paid to the same person to whom the Kenas is paid.

The RA'AH cites Tosfos as saying that the Boshes and Pegam of a Mefutah are not paid to her, because she was Mochel. Therefore, when the Mishnah says that everything is paid to her, it refers to the Kenas, Boshes, and Pegam of an *Anusah*. The Re'ah adds that Tosfos says the Kenas of a Mefutah *is* given to her because she cannot be Mochel it, like the Yerushalmi (cited above, b).

(d) The TOSFOS HA'ROSH gives a similar explanation, positing that Boshes and Pegam are also given to the daughter because they are compared to Kenas. He adds, though, that even in the case of a *Mefutah*, Boshes and Pegam are compared to Kenas and go to the daughter. Even though we see that a Yesomah who is a Mefutah is Mochel all of the payments this will not apply to our Mishnah's case, since her father was alive, and she was not a Yesomah, at the time of the Pituy. (This is identical to the logic of the Ramban, mentioned above (b), except that the Tosfos ha'Rosh compares the payments of Boshes and Pegam to that of Kenas, ruling that they are *all* given to the daughter when her father dies before Ha'amadah b'Din, like Tosfos cited in (c)

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