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prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem

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Kesuvos 32



(a) We learn from the Pasuk "Kedei Rish'aso" - that (with regard to punishments meted out by Beis-Din) a person can receive only one punishment for one act, but not two (even when the act incorporates two punishments).

(b) The Mishnah in Makos lists a number of Arayos who receive Malkos (a sister, a father's or mother's sister ... ). This poses a Kashya on our Mishnah ('Eilu Na'aros she'Yesh Lahen K'nas') - where the culprit appears to be obligated to pay K'nas despite the Mishnah in Makos, which declares him Chayav Malkos.

(a) When it is a question of Mamon versus Malkos - Ula holds that he pays Mamon 'Mamona Mechalsm, Milka Lo Laki'.

(b) Ula differentiates between a Na'arah (our Mishnah) and a Bogeres (the Mishnah in Makos). In a case of Mamon versus Malkos, Ula holds 'Mamona Meshalem, Milka Lo Laki'.

(c) Ula has established the Mishnah in Makos by a Bogeres. He solves the problem regarding ...

1. ... Boshes u'P'gam (which are Mamon, and due to a Bogeres, too) - by establishing the Mishnah by a Shotah, to whom Boshes and P'gam are not applicable.
2. ... Tza'ar (which, like Boshes and P'gam, is Mamon, which, as e just explained, a Bogeres also receives) - by establishing it by a girl who was seduced and who does not receive Tza'ar (because her pleasure overrides the pain).
(d) We now establish the Mishnah in Makos even by a Na'arah - who is both an orphan (who is personally due to receive whatever the man is obligated - in lieu of her father), and a Mefutah (who automatically forgoes the Boshes and the P'gam, by virtue of her acceptance).
(a) We try to learn Ula's principle (that Mamona Meshalem, Milka Lo Laki') from every case of Chovel ba'Chaveiro, where, besides the obligation to pay, the damager has also contravened two La'avin, for which he ought to receive Malkos (but does not - even if he was warned).

(b) We learn that Chovel ba'Chaveiro is subject to Malkos - from the Pasuk in Ki Seitzei "Lo Yoseif ... Pen Yosif".

(c) We are uncertain whether Mamon is stricter than Chovel ba'Chaveiro or more lenient than it.

(d) We cannot learn Mamon from Chovel ba'Chaveiro, assuming that Mamon is ...

1. ... more stringent - because one is not obligated to pay the five things (pain, healing, work-loss and shame - besides the depreciation) that one has to pay by Chovel.
2. ... more lenient - because Chovel ba'Chaveiro has a Chumra, inasmuch as he is subject to Malkos (by a wound that is less than a Shaveh P'rutah, which other cases of Mamon (such as O'nes and Mefateh [who are not Chayvei Kareis]), are not.
(a) We also attempt to use - Eidim Zomemin (who pay [when that is what they tried to cause the defendant to do] but do not receive Malkos) as Ula's source.

(b) We learn that Eidim Zomemin are subject to ...

1. ... Mamon - from "Ka'asher Zamam La'asos le'Achiv".
2. ... Malkos (even when "Ka'asher Zamam" is not applicable) - from "Lo Sa'aneh" (in the Eseres ha'Dibros).
(c) Here too, we are uncertain whether Mamon is stricter than Eidim Zomemin or more lenient.

(d) We cannot learn Mamon from Eidim Zomemin, assuming that Mamon is ...

1. ... more stringent than them - because Mamon requires warning (for Malkos to be applicable), whereas Eidim Zomemin do not (as we soon see).
2. ... more lenient - because in the case of Mamon, the culprit performed an act, whereas Eidim Zomemin only sinned with their mouths.
(a) We cannot even learn Mamon from the 'Tzad ha'Shaveh' (the combination) of Chovel ba'Chaveiro and Eidim Zomemin - because the Tzad ha'Shaveh is different inasmuch as it has a 'Tzad Chamur' (the Chumros of both of them are unique (see Tosfos DH 'she'Kein'), or, if we consider Mamon to be more lenient, that it has a 'Tzad Kal' (both leniencies are unique).

(b) So Ula ultimately learns his principle from the 'Gezeirah-Shavah' "Tachas" (Asher Inah) "Ayin *Tachas* Ayin" - in connection with Chovel ba'Chaveiro.




(a) In the opinion of Rebbi Yochanan, whenever there is a question of Mamon versus Malkos, the rule is 'Milka Laki, Mamona Lo Meshalem'. In his opinion therefore - our Mishnah (which obligates the rapist to pay), speaks when there has been no warning (for which reason he will not receive Malkos, so he pays K'nas); whereas the Mishnah in Makos speaks when the rapist was warned, in which case, he receives Makos.

(b) The Machlokes between Ula and Rebbi Yochanan ...

1. ... in our Mishnah (which, both agree, speaks about a Na'arah) is - whether the Tana speaks specifically when the rapist was not warned (Rebbi Yochanan), or whether it speaks even when he was (Ula)
2. ... in the Mishnah in Makos is - whether the Tana speaks specifically about a Bogeres (Ula), or even about a Na'arah, but when the rapist was warned (Rebbi Yochanan).
(c) Rebbi Yochanan, like Ula, learns that one can only receive one punishment from "Kedei Rish'aso". The Torah juxtaposes the Pasuk "Arba'im Yakenu" (the source for Malkos) next to this one - serving as his source to give Malkos precedence.
(a) We ask on Rebbi Yochanan from Chovel ba'Chaveiro, where the culprit is sentenced to pay, and does not receive Malkos. To vindicate Rebbi Yochanan - we initially try to establish that ruling in a case where there was no warning.

(b) We refute this contention however, from a statement by Rebbi Yochanan himself, whom Rebbi Ami quoted as saying that for striking Shimon without creating a wound worth a P'rutah, Reuven receives Malkos, which can only be speaking when the culprit was warned - because otherwise, why would he receive Malkos at all? And yet we see, that he receives Malkos only for a wound that is less than a Shaveh P'rutah, implying that for one that is worth more, he has to pay.

(c) We resolve the problem from Chovel ba'Chaveiro (according to Rebbi Yochanan) with a statement by Rebbi Ila'a - who says that (even though normally, when there is a question of Malkos and Mamon, Malkos takes precedence) by Eidim Zomemin a G'zeiras ha'Kasuv teaches us that they pay Mamon rather than receive Malkos. In that case, we will say the same by Chovel ba'Chaveiro (as we shall see shortly).

(a) Rebbi Meir says that if Eidim Zomemin attempt to obligate someone to pay two hundred Zuz, they are sentenced to pay two hundred Zuz in addition to receiving Malkos - because the two obligations stem from different sources: the one from "Lo Sa'aneh", and the other, from "Ka'asher Zamam La'asos le'Achiv".

(b) The Rabbanan say 'Kol ha'Meshalem Eino Lokeh'.

(c) Rebbi Ila'a learns from the Pasuk "Yad be'Yad" - that, according to the Chachamim, Eidim Zomemin are obligated to pay rather than receive Malkos (Davar ha'Nitein mi'Yad le'Yad).

(d) And Rebbi Yochanan learns from the Pasuk "Ka'asher Asah Kein Yea's Lo ... Kein Yinasen Bo" - that Chovel ba'Chaveiro, has to pay, and does not receive Malkos ('Davar she'Yesh Bo Nesinah').

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