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Rosh Kollel: Rabbi Mordecai Kornfeld

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Kesuvos 38


(a) When one killed with a downward motion, since if done unintentionally, there is an atonement, one would think he does pay ransom and not die - "Every Cherem" teaches that this is not so.
(b) Question (Rava): We know this from Tana d'Vei Chizkiyah:
1. Just as one who hits an animal pays, whether or not this was intended, he was aiming for this animal, or whether he hit with an upward or downward motion - so too, one who strikes a man is always exempt in any of these cases.
(c) Answer #2(Rami Bar Chama): Rather, we need it to teach the case of one who blinds a persons eye and kills him with a different blow at the same time, he does not pay money in addition to being executed.
1. From "If there is no fatality", we would only know the case when he blinded and killed him in one blow.
(d) Question (Rava): But this is also known from another teaching of Tana d'Vei Chizkiyah!
1. (Tana d'Vei Chizkiyah): "An eye for an eye", and not an eye an a life for an eye".
(e) Answer #3(Rav Ashi): One night have thought that fines are special laws, and they are paid even by one who is executed; "Any Cherem" teaches that this is not so.
(f) Question: According to Rabah, who says that one does pay a fine together with capital punishment, what does the verse teach?
(g) Answer: He holds as the Tana that argues on R. Chananya Ben Akavya (and the verse teaches that there is no Erech to one sentenced to die).
(a) (Mishnah): A Na'arah that was engaged and divorced - R. Yosi ha'Galili says she does not receive a fine; R. Akiva says, she herself collects a fine (and not her father).
(b) (Gemara) Question: What is the reason for R. Yosi ha'Galili?
(c) Answer: "That was not engaged" - we infer, if she was engaged, there is no fine.
1. R. Akiva infers, if she was not engaged, the fine is to her father; if she was engaged, she receives the fine.
2. Question: If so, he should also expound, "Na'arah" - but a Bogeres receives the fine herself; "Virgin" - but a non-virgin receives the fine herself!
i. But there, we say the Torah totally excluded her from a fine - here too, we should say this!
3. Answer: R. Akiva uses "That was not engaged" as the following Beraisa.
(d) (Beraisa): "That was not engaged" - R. Yosi ha'Galili says, if she was engaged and divorced, she receives no fine;
(e) R. Akiva says, her father receives the fine.
1. This is proper - her father receives money used to engage her, and the fine of one who rapes or entices her.
i. Just as her gets her engagement money even after she was engaged and divorced, so too the fine!
2. Question: If so, what do we learn from "That was not engaged"?
3. Answer: It is open to learn a Gezerah Shaveh.
i. This phrase is used by a rapist and by an enticer.
ii. Just as the Torah says that a rapist pays 50 units of currency, so too an enticer.
iii. Just as the Torah says that the currency an enticer pays is Shekels, so too a rapist.
(f) Question: Why does R. Akiva say that "Was not engaged" is open for a Gezerah Shaveh, and "Virgin" excludes a non-virgin?

1. Why not say that "Virgin" is open for a Gezerah Shaveh, and "Was not engaged" excludes a girl that was engaged and divorced?
(g) Answer: It is better to say that a girl that was engaged and divorced receives a fine, since she is a virgin Na'arah.
1. Objection: Just the opposite! It is better to say that "Virgin" is used for the Gezerah Shaveh (and a non-virgin receives a fine), since she was not engaged!
2. Answer: The previous way is better - since there was no physical change, she still receives a fine.
(h) Question: How does R. Yosi ha'Galili know that both fines are 50, and both are Shekels?
(i) Answer: "yiSHKoL (He will weigh) money as the Mohar of virgins" - this (fine of an enticer) should be as Mohar of virgins (50, as said by a rapist), and Mohar of virgins should be as this (Shekels).
(j) Question: R. Akiva in the Beraisa argues on R. Akiva in the Mishnah!
(k) Answer: The Tana'im of the Mishnah and Beraisa argue over what was R. Akiva's opinion.
(a) We understand R. Akiva in the Mishnah - "Was not engaged" is used for a Gezerah Shaveh, but is not uprooted from its simple meaning.
(b) Question: R. Akiva in the Beraisa totally uproots these words from their simple meaning (since he says that having been engaged does not affect the fine)!
(c) Answer (Rav Nachman Bar Yitzchak): They teach that if she was engaged when raped, there is no fine.
1. Objection: This is obvious, one who rapes her is stoned!
2. Answer: One might have thought that a fine is a special law, and even one who is killed pays it.
3. Question: Rabah says that that is really true - how can he answer the objection:?
4. Answer: He holds as R. Akiva of the Mishnah.
(d) (Beraisa): The fine goes to her father; some say, it goes to her.
(e) Question: Why should it go to her?
(f) Answer (Rav Chisda): The case is, she was engaged and divorced; the first Tana is as R. Akiva of the Beraisa, the latter, as R. Akiva of the Mishnah.
(g) (Abaye): If she died (before the rapist was brought to trial) there is no fine - "He will give to the father of the Na'ara" - not to the father of the deceased.
1. This law was obvious to Abaye, but Rava was unsure about it.
2. Version #1 - Question (Rava): Does a girl receive the law of a Bogeres after death?
i. If she receives the law of a Bogeres, the fine passes to her child.
(h) If she doesn't receives the law of a Bogeres, her father receives the fine.
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