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prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem

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Kesuvos 35



(a) According to the first Lashon, Resh Lakish assumed that the Pasuk "ve'Lo Yihyeh Ason, Anosh Ye'anesh" meant literally 'Ason', meaning that the assailant has to pay only because the woman did not die - but if she did, he would be Patur, even though he was not warned, a Kashya against Rebbi Yochanan (who holds Chayvei Misos Shogegin, as well as Chayvei Malkos Shogegin are Chayav).

(b) According to Rebbi Yochanan however - what the Pasuk means is not that there was no *Ason*, but that there was no *Din Ason* (incorporating a case where the woman died, but where the assailant was not warned).

(c) In the second Lashon, it was Rebbi Yochanan who took the initiative - presuming that the Pasuk was referring to Din Ason, which then presents Resh Lakish with a Kashya.

(d) To which Resh Lakish replied - that it meant literally Ason, as we explained above.

(a) Tana de'Bei Chizkiyah learns from the Hekesh "Makeh Beheimah Yeshalmenah u'Makeh Adam Yumas" (in Emor) - that just as someone who kills an animal is always obligated to pay (whether he did it Shogeg or Meizid, O'nes or Ratzon, whether he dealt the animal an upward stroke or a downward stroke), so too, is he always Patur from paying if he killed a person.

(b) This poses a Kashya on Rebbi Yochanan - who maintains that Chayvei Misah Shogegin are Chayav to pay.

(c) Consequently, in relearning Rebbi Yochanan, Ravin explains that he confines his statement to Chayvei *Malkos* Shogegin, but he agrees with Resh Lakish, that Chayvei *Misos* Shogegin are Patur.

3) According to Abaye, Resh Lakish learns from the 'Gezeirah-Shavah' "Asher Hu *Rasha* la'Mus" (Masei) "ve'Hayah Im Bin Hakos *ha'Rasha"* - that Chayvei Malkos Shogegin are Patur from paying, like Chayvei Misos Shogegin.


(a) According to Rava, Resh Lakish learns it from the Gezeirah-Shavah "Makeh" "Makeh". He cannot be referring to the Pasuk in Emor "Makeh Beheimah Yeshalmenah, u'Makeh Adam Yumas", Rav Papa points out - because the Torah there is speaking about killing (which is Chayav Misah, and not Malkos).

(b) So he must be referring to the Pasuk there "Makeh Nefesh Beheimah Yeshalmenah, Nefesh Tachas Nafesh" ... "ve'Ish Ki Yiten Mum ba'Amiso Ka'asher Asah Kein Ye'aseh Lo". Despite the fact that the second Pasuk does not mention "Makeh", it is nevertheless possible to learn "Makeh" "Makeh" - because "Yiten Mum ba'Amiso" is synonymous with 'Haka'ah' (which is sufficient to form a 'Gezeirah-Shavah).

(c) Resh Lakish derives 'Chayvei *Malkos* Shogegin Peturin' from Chayvei Misah - because, although the second Pasuk is talking about a basic Chiyuv Mamon, seeing as that is not necessary (since we already know that Chayvei Misah are Patur from paying) we establish the Pasuk by a stroke that is less than a Shaveh P'rutah, where the assailant is Chayav Malkos, and not Mamon.

(d) In spite of the fact that we just established the case where there is no obligation to pay, Resh Lakish learns from here that Chayvei Malkos are Patur from paying - because it speaks when he also tore clothes with the same stroke.




(a) Rav Chiya asked Rava how Tana de'Bei Chizkiyah knew that the Pasuk "Makeh Adam ... u'Makeh Beheimah ... " refers to when the accident took place a weekday, perhaps it took place on a Shabbos - in which case he would be Chayav Misah, and Patur from paying (demolishing Tana de'Bei Chizkiyah's D'rashah).

(b) Rava answered by proving from "Makeh Adam Yumas" that the Pasuk must be speaking when he was warned - because without warning, how could the assailant be sentenced to death?

(c) This answers Rav Chiya's query - because if the incident had taken place on Shabbos, how could the Pasuk continue "Makeh Beheimah Yeshalmenah" (seeing as he would be Chayav Misah)?

(a) Resh Lakish and Rabah established our Mishnah (of 'Eilu Na'aros she'Yesh Lahen K'nas') like Rebbi Meir (who holds 'Lokeh u'Meshalem'). According to Resh Lakish ('based on his interpretation of the Beraisa of 'Ganav ve'Tavach be'Shabbos') there is no problem with the fact that the Tana omits the case of Bito, whereas according to Rabah there is - because, according to Rabah, Rebbi Meir even holds Meis u'Meshalem by K'nas (since it is a Chidush), in which he ought to have include 'Bito' in our Mishnah?

(b) Neither can he establish the Mishnah like Rebbi Nechunyah ben ha'Kanah, because, according to him, the Tana should have omitted Achoso (even if he does hold 'Lokeh u'Meshalem') - because one is Chayav Kareis for Achoso, and according to Rebbi Nechunyah ben ha'Kanah, Chayvei Kareis are Patur from paying.

(c) We suggest that perhaps Rabah will establish the Mishnah like Rebbi Yitzchak - who holds that Chayvei Kareis are not subject to Malkos, in which case, there will be no problem with the Tana's insertion of Achoso (seeing as he does not follow the opinion of Rebbi Nechunyah ben ha'Kanah).

(d) We reject this answer however - on the grounds that the Tana does include Mamzeres among those who have to pay K'nas, even though he receives Malkos too.

7) Rebbi Yochanan established our Mishnah when the rapist was not warned (and he is Chayav to pay because 'Chayvei Malkos Shogegin, Chayavin'); Resh Lakish, when he was warned (because he holds 'Chayvei Malkos Shogegin, Peturin'). In light of this Machlokes, we finally establish Rabah to explain why the Tana includes Achoso and Mamzeres, but not Bito - by establishing Rabah like Rebbi Yochanan, who will obligate the rapist to pay in the cases of Achoso and Mamzeres (when he was Shogeg), but not Bito, since Rebbi Yochanan concedes that Chayvei *Misos* Shogegin are Patur from paying, as we learned earlier.


(a) Rebbi Nechunyah ben ha'Kanah, who exempts Chayvei Kares from paying would also omit Achoso from our Mishnah. According to Rebbi Yochanan, who holds 'Chayvei Malkos Shogegin, Chayavin', the author of our Mishnah (which includes Achoso) could even be the Rabbanan of Rebbi Meir, and the Tana will speak when the rapist was not warned. According to Resh Lakish (who holds Chayvei Malkos Shogegin, Peturin) - the two Tana'im who would include Achoso among those who are obligated to pay K'nas could be Rebbi Meir, who holds Lokeh u'Meshalem, or Rebbi Yitzchak, who holds that Chayvei Kareis are not subject to Malkos.

(b) Rebbi Yitzchak could nevertheless not be the author of our Mishnah - because how would he explain the insertion of Mamzeres (as we asked above)? Either Rebbi Yitzchak or Rebbi Meir however, could be the author of the Mishnah in Shavu'os, which obligates someone who sets fire to a haystack on Yom Kipur, to pay.

(a) The Beraisa writes 'Arayos u'Sh'niyos la'Arayos Ein Lahen K'nas'. Arayos and Sh'niyos cannot be meant literally - because why should Sh'niy'os, whom one may marry min ha'Torah, not receive K'nas?

(b) So we interpret Arayos to mean Chayvei Misos Beis-Din, and Sh'niyos to mean Chayvei K'riysos - from which we can infer that Chayvei La'avin do receive K'nas. The author must then be Shimon ha'Teimani, who holds that the criterion for K'nas (from the Pasuk "ve'Lo Sihyeh le'Ishah") is that the Kidushin should be effective (incorporating Chayvei La'avin) - as we learned above (on 29b.).

(c) In the second Lashon, we interpret Arayos as Chayvei Misos Beis-Din and Chayvei K'riysos, and Sh'niy'os, as Chayvei La'avin - in which case, the author would have to be Rebbi Shimon ben Menasyah, according to whom the criterion is that he is permitted to live with her (precluding Chayvei La'avin).

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