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Kollel Iyun Hadaf, Jerusalem

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Kesuvos 33

KESUOVS 33 (27 Nisan) - has been dedicated to the memory of ha'Rav Shmuel (ben Aharon) Grunfeld of Jerusalem/Efrat. Rav Shmuel was a truly great Torah scholar, whose tragic death left all who knew him with an inconsolable sense of loss.



(a) Initially, we suggest that Rebbi Yochanan disagrees with Ula, because 'Im Kein, Batalta "Ervas Achoscha Lo Segaleh" ' - meaning that, by sentencing the rapist to pay K'nas, one negates the La'av, which is synonymous with Malkos.

(b) We refute that suggestion however - from Chovel ba'Chaveiro and from Eidim Zomemin, who, even Rebbi Yochanan agrees, are obligated to pay, despite the fact that the Torah writes a La'av by both of them. So we see that it doesn't matter that in certain instances, the La'av is negated, as long as it can be fulfilled in others.

(c) We fulfill the La'av of ...

1. ... "Lo Yosif Pen Yosif" - if the wound was worth less than a Shaveh P'rutah.
2. ... "ve'Hayah Im bin Hakos ha'Rasha" - by witnesses who testified that a Kohen was a ben Gerushah or ben Chalutzah (who cannot be sentenced to "Ka'asher Zamam", as the Gemara at the beginning of Makos explains).
3. ... "Ervas Achoscha Lo Segaleh" - by a sister who is a Bogeres.
(d) A stroke that does not cause damage that is worth a P'rutah incorporates all five things that one normally has to pay. It is possible for such a stroke not to cause shame to the value of a P'rutah - if the wounded person is a Shoteh.
(a) We conclude that Rebbi Yochanan disagrees with Ula, because he learns from Ula's Pasuk ("Tachas Asher Inah") like Abaye will later learn (in connection with the fifty Shekalim of K'nas). Abaye learns from there - that the fifty Shekalim covers the payment for the rape only, and that the shame and the depreciation must be assessed separately.

(b) Ula learns from the Pasuk "ve'Nasan ha'Ish *ha'Shochev Imah* la'Avi ha'Na'arah Chamishim Kesef" - like Abaye learned from "Tachas Asher Inah" (that the shame and depreciation must be paid separately).

(a) According to Rebbi Elazar, Eidim Zomemin do not need a Pasuk ("Yad be'Yad") to teach us that they pay and do not receive Malkos, because it is a S'vara - that it is simply not possible to warn them (as we shall now see) and without a warning, they cannot receive Malkos.

(b) Rava bears this out, because 'when should they have been warned?' They could not have warned them ...

1. ... an hour or two earlier - because then they could claim that they forgot (rendering the warning useless).
2. ... just before they testified (like one usually warns) - because if one subjected them to so much pressure, no witnesses would want to come and testify (It is unclear why Rashi learns this way, when he could have explained that, seeing as Eidim Zomemin have to be warned in front of Beis-Din [which is not the case with other cases of warning], they would be sure to decline rather than transgress in front of Beis-Din.
3. ... after they have testified - because having already concluded their testimony, they could not have retracted anyway).
(c) Abaye asks on Rava that one could warn them immediately after they testified - because as long as the warning takes place 'Toch K'dei Dibur', they can still retract.

(d) Rav Acha Brei de'Rav Idi asks that one could even warn them an hour or two earlier - and then continually remind them with signs until they actually testified.

4) Abaye then retracts from his Kashya on Rava, to refute Rebbi Elazar on the basis of his assumption that Eidim Zomemin should even require warning - because, since they obviously did not warn the defendant (seeing as in fact, the event did not take place) "Ka'asher Zamam" demands that they should not require a warning either?


(a) We learn that Eidim Zomemin who testify that a Kohen is the son of a Gerushah or a Chalutzah receives Malkos - from "Lo Sa'aneh".

(b) We do not apply "Ka'asher Zamam" - because according to their testimony, the Kohen and his descendants were Chalalim, whereas this cannot be done to them, because the Torah writes "va'Asisem" 'Lo ve'Lo le'Zar'o'.

(c) We know that even *they* are punished without warning - from the Pasuk "Mishpat Echad Yihyeh Lachem" (Emor).

(a) Rav Shisha B'rei de'Rav Idi learns that Chovel ba'Chaveiro pays (rather than receive Malkos) from the Pasuk "ve'Chi Yinatz'u Anashim, ve'Nagfu Ishah Harah ve'Yatz'u Yeladehah". When Rebbi Elazar says 'be'Mitzvos she'be'Misah ha'Kasuv Medaber' - he means that the Torah is speaking about someone who actually meant to kill a man, but missed and struck the woman instead.

(b) Rav Shisha B'rei de'Rav Idi extrapolates this - from the Pasuk, which then writes "ve'Im Ason Yihyeh, ve'Nasata Nefesh Tachas Nafesh" (that if he struck the woman and killed her, he is Chayav Misah).

(c) He receives the death penalty, despite the fact that he did not mean to kill the woman - because Rav Shisha B'rei de'Rav Idi holds that someone who aims to kill one person, and kills someone else by mistake, is Chayav Misah (like the Rabbanan of Rebbi).

(d) And he also holds 'Musrah le'Davar Chamur Musrah le'Davar Kal' (a warning for a more stringent sin covers a less stringent one).




(a) Besides querying Rav Shisha B'rei de'Rav Idi's principle 'Musrah le'Davar Chamur Musrah le'Davar Kal', Rav Ashi also queries his contention that Misah is more stringent. Perhaps Malkos is more stringent he asks - because Rav stated that had they subjected Chananyah, Mishael and Azaryah to a flogging, they would have succumbed (and bowed down to the idol - whereas, as things stood, they willingly jumped into the furnace to die - and it is obvious that 'Musrah le'Davar Kal [Misah], Lo Havi Musrah le'Davar Chamur' [Malkos]).

(b) Rav Sama B'rei de'Rav Asi (or B'rei de'Rav Ashi) rejects this theory however. There is no proof from Chananyah, Mishael and Azaryah that Malkos is more stringent than Misah - because one cannot compare Malkos, which is limited, to a flogging which is decreed by the king (and which continues until one relents).

(c) Rav Ya'akov from Nahar Pakud asks that Rav Shisha B'rei de'Rav Idi's explanation is fine according to the Rabbanan (as we explained above) - but according to Rebbi who (holds 'Niskaven Laharog es Zeh ve'Harag es Zeh Eino Neherag' and who) establishes the Pasuk by Mamon and not by Misah (i.e. if he killed the woman instead of the man, he pays compensation for the woman and is not killed), in which case, the Pasuk is talking when there was no warning, but if there had been, maybe he would have received Malkos, and not had to pay Mamon.

(a) Still based on Rav Shisha B'rei de'Rav Idi's principle ('Musrah le'Davar Chamur ... '), he proves in the name of Rava that Chovel ba'Chaveiro pays rather than receives Malkos, from the Pasuk "Im Yakum ve'His'halech ba'Chutz al Mish'anto ... ". The Torah must be speaking when there was a warning - because it is clear from the fact that he is locked up until we discover what happens to the wounded man, that should the wounded man die, then he is killed, in which case he must have been warned.

(b) Rava now tries to prove from the fact that, although a man has been warned (and 'Musrah le'Davar Chamur, Musrah le'Davar Kal'), should he not die, then he pays rather receives Malkos, that - 'Mamona Meshalem, Milka Lo Laki'.

(c) Rav Ashi asks the same Kashyos as he asked above on Rav Shisha B'rei de'Rav Idi. Rav Mari adds a Kashya: How do we know, he asks, that the Torah is speaking about Misah, when there must have been a warning? Perhaps it is speaking when he struck him be'Shogeg - and we lock-up the culprit to wait and see whether he is not Chayav Galus (to a city of refuge).

(a) Resh Lakish reconciles our Mishnah (which obligates the rapist to pay K'nas), with the Mishnah in Makos (which sentences him to Malkos), by establishing our Mishnah like Rebbi Meir - who holds that, when a person is Chayav Mamon and Malkus, then he receives both punishments.

(b) The problem with this however is, that the Tana omits the case of 'Bito' (for whom one receives Misah at the hands of Beis-Din). We think that Rebbi Meir even holds 'Meis u'Meshalem' (and not just 'Lokeh u'Meshalem') - because he says 'Ganav ve'Tavach be'Shabbos, Ganav ve'Tavach la'Avodas Kochavim - Meshalem Tashlumei Arba'ah va'Chamishah' (despite the fact that he is also Chayav Misah). In that case, if the author of our Mishnah is Rebbi Meir, why does he not include Bito among those who receive K'nas?

(c) We refute this proof (that Rebbi Meir holds even 'Meis u'Meshalem') however, by citing those who quote Rebbi Yochanan. Rebbi Yochanan interprets the case of 'Ganav ve'Tavach be'Shabbos, Ganav ve'Tavach la'Avodas Kochavim' - when it is not the thief himself who Shechted, but his Sh'li'ach (so that it is the Sh'li'ach who is Chayav Misah, and the thief who pays four or five times).

(d) Had the thief himself Shechted the animal - even Rebbi Meir would agree that he is Chayav Misah and Patur from paying four or five.

(a) The problem with obligating the thief to pay four or five times, when it is the Sh'li'ach who Shechted it - is that it clashes with the principle 'Ein Sh'li'ach li'D'var Aveirah' (a person is only Chayav for his own actions, but not for those of his Sh'li'ach?

(b) Rava learns from the Pasuk "u'T'vacho O Mecharo" - that the payment of four or five times is an exception to the above rule, because just like selling an animal involves two people yet the thief is Chayav, so too is he Chayav if the Shechitah involves two people (that in this Halachah we say 'Yesh Sh'li'ach Li'D'var Halachah').

(c) Tana de'Bei Rebbi Yishmael learns from the word "O" and Tana de'Bei Chizkiyah from "*Tachas* ha'Shor" - what Rava learns from "u'T'vacho O Mecharo" (that in this particular Halachah, we say 'Yesh Sh'li'ach li'D'var Halachah').

(d) Mar Zutra queried this however. How can we obligate him to pay for what his Sh'li'ach did, when he would not have been Chayav had he done it himself? The answer to this is - because the reason that he is exempt from paying is not because he is intrinsically Patur, but because of 'Kam Lei bi'de'Rabah Minei'. Consequently, wherever 'Kam Lei bi'de'Rabah Minei' does not apply, he remains Chayav to pay.

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