ANSWERS TO REVIEW QUESTIONS
prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem
Previous daf 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
(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
(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.
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.
(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.
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?
(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).
(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.
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).
(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
(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'
(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
(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
(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.