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prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem

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Kesuvos 38



(a) We just learned from "Kol Cherem" to include even the less stringent Misos (she'Nitnu Shigegasan le'Kaparah) in the prohibition of accepting money to spare them from death. We only know from the Pasuk "ve'Lo Sikchu Kofer le'Nefesh Rotzei'ach", that if one killed with an upward stroke (where he has no Kaparah be'Shogeg), he cannot pay his way out, but perhaps if he killed him with a downward stroke (where he has a Kaparah be'Shogeg) he will indeed be permitted to do so.

(b) We refute this contention however, on the basis of the Hekesh of Bei Chizkiyah - who learned from the Hekesh 'Makeh Adam' to 'Makeh Beheimah' to exempt one from paying (whenever there is a Chiyuv Misah), whether he was Shogeg or Meizid, Miskaven or Lo Miskaven, or Derech Yeridah or Derech Aliyah.

(c) Despite the Hekesh, we nevertheless need the Pasuk "ve'Lo Yihyeh Ason" to teach us to Darshen the inference ('Ha im Yihyeh Ason, Lo Ye'anesh' - to be lenient by Makeh Adam), rather than to Darshen directly (and to say that just as Makeh Beheimah always pays, so too, does Makeh Adam).

(a) Rami bar Chama establishes the need to preclude from Misah and Mamon from "Kol Cherem", because from "ve'Lo Yihyeh Ason" we would only know to exempt someone who, for example, blinded someone's eye and killed him with the same stroke, but not when he blinded him with one stroke, and killed him simultaneously with the other hand. We reject Rami bar Chami's explanation however - on the basis of another Tana de'Bei Chizkiyah, which learns this from "Ayin Tachas Ayin" 've'Lo Ayin ve'Nefesh Tachas Ayin".

(b) So Rav Ashi explains the need for "Kol Cherem" to teach us that 'Miktil Eino Meshalem' extends even to K'nas (although we already know it by Mamon). Otherwise we would have said that, seeing as K'nas is a Chidush, we will even say 'Miktil u'Meshalem'.

(c) Rav Ashi's answer will not work according to Rabah - who does indeed say 'Miktil u'Meshalem' (for that very reason, as we learned earlier).

(d) Rabah explains the need for the Pasuk "Kol Cherem" - to teach us that there is no Erech for someone who has been sentenced to death, like the Tana Kama of Rebbi Chananya ben Akavya.

(a) According to Rebbi Yossi ha'G'lili, someone who rapes a girl who was betrothed but is now divorced, is Patur from K'nas. The author of the first Mishnah in the Perek, which obligates someone who rapes the wife of his brother or of his father's brother (who must be divorced or widowed, as we explained there) to pay K'nas - is Rebbi Akiva, in whose opinion, a girl who was betrothed and is now divorced is subject to K'nas, and the K'nas goes to her.

(b) Rebbi Yossi ha'G'lili learns from the Pasuk (in connection with K'nas) "Asher Lo Orasah" - 'Ha Orasah, Ein Lah K'nas'.

(c) Rebbi Akiva Darshen the Pasuk "Asher Lo Orasah" - 'le'Avihah', Ha Orasah, le'Atzmah'.

(a) We Darshen from the word ...
1. ... "Na'arah" - 've'Lo Bogeres' (that a Bogeres is not subject to K'nas at all).
2. ... "Besulah" - 've'Lo Be'ulah' (that a Be'ulah is not subject to a K'nas at all).
(b) This D'rashah dispenses with the D'rashah that we just made to explain Rebbi Akiva - because we ought then to have made the same D'rashah from "Na'arah" and Besulah" (that a Bogeres and a Be'ulah are subject to K'nas and that the K'nas go to them).

(c) Rebbi Akiva in the Beraisa maintains that the K'nas of a girl who was betrothed and is now divorced goes to her father. He learns this - by comparing the money of her K'nas to that of her Kidushin: just as the latter goes to her father, even after she was betrothed and divorced, so too does the money of her K'nas.

(d) And he uses the Pasuk "Asher Lo Orasah" to learn a 'Gezeirah-Shavah' (from Mefateh, where the same expression appears) - to learn fifty (Shekalim) by O'nes from Mefateh, and (fifty) Shekalim by Mefateh from O'nes.




(a) We have just used "Asher Lo Orasah" for a 'Gezeirah-Shavah' (so that a Na'arah who was betrothed and is now divorced remains subject to K'nas) according to Rebbi Akiva, and precluded a Be'ulah from the word "Besulah". We know not to do the opposite (to learn the same 'Gezeirah-Shavah' from "Besulah" "Besulah", so that a Be'ulah remains subject to K'nas), and to preclude a Na'arah who was betrothed and is now divorced from "Asher Lo Orasah" - because it is more logical to preclude a Be'ulah (whose body has undergone a change) from K'nas than an Arusah who is divorced (who remains physically as she was).

(b) Rebbi Yossi ha'G'lili, who disagrees with Rebbi Akiva's Gezeirah-Shavah', learns that the fine by both an O'nes and a Mefutah is fifty Shekalim) from the Pasuk in Mishpatim (written in connection with O'nes) "Kesef Yishkol ke'Mohar ha'Besulos" (referring to the Kesubah), from which we extrapolate 'she'Yehei Zeh ke'Mohar ha'Besulos, u'Mohar ha'Besulos Lah' (though it is unclear from where we learn that a Mefateh pays *fifty* Shekalim.

(a) We now have two opinions in Rebbi Akiva regarding the K'nas of an Arusah she'Nisgarshah. He holds ...
1. ... in our Mishnah - that she is subject to K'nas, and that it goes to her.
2. ... in the Beraisa - that it goes to her father.
(b) His opinion in our Mishnah initially appears to be more sound than the one in the Beraisa - because he does not Darshen a Gezeirah-Shavah that clashes with the plain meaning of the Pasuk (which implies that the K'nas of an Arusah who is divorced goes to herself); whereas, in the Beraisa, that is precisely what the Gezeirah-Shavah is doing.

(c) Rav Nachman bar Yitzchak resolves this problem - by treating the word as if the Torah had written "Asher Lo *Arusah*" (implying that had she been betrothed, the K'nas would have gone to her (and not if she would have been betrothed and divorced).

(d) Despite the fact that, both in the Mishnah and in the Beraisa, Rebbi Akiva uses the Pasuk for its inference, he nevertheless learns a Gezeirah-Shavah from it - because it doesn't matter if a Gezeirah-Shavah is Mufnah just from one side (or even if it is not Mufnah at all -see Maharsha).

(a) We need a Pasuk for Rav Nachman bar Yitzchak's D'rashah, because, in spite of the fact that the man who raped her is already Chayav Misah - we would otherwise have thought that, precisely because K'nas is a Chidush, we would say 'Miktil u'Meshalem'.

(b) Rabah, who does indeed hold that, since K'nas is a Chidush 'Miktil u'Meshalem' - can only hold like Rebbi Akiva in our Mishnah.

(a) The Tana Kama of the Beraisa says 'K'nasah le'Avihah'. Yesh Omrim (Rebbi Nasan) says - 'K'nasah le'Atzmah'.

(b) The problem with the Beraisa the way it stands is according to Yesh Omrim - why on earth should the K'nas of a Na'arah go to herself?

(c) Rav Chisda resolves the problem - be establishing both opinions like Rebbi Akiva. Their Machlokes is equivalent to that of Rebbi Akiva in our Mishnah and Rebbi Akiva in the Beraisa (as we explained earlier).

(a) Abaye learns from the Pasuk in Ki Seitzei "ve'Nasan la'Avi ha'Na'arah" - 've'Lo le'Avi Meisah' (that if the Na'arah died after having been raped, the rapist is Patur from paying K'nas.

(b) Rava is uncertain about this particular point (though his Safek will be clarified until later in the Sugya).

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