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Kollel Iyun Hadaf, Jerusalem

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Kesuvos 39



(a) Rava asks whether Yesh Bagar ba'Kever O Ein Bagar ba'Kever. We initially think that if we hold ...
1. ... 'Yesh Bagar ba'Kever' - it is her child who will receive the K'nas.
2. ... 'Ein Bagar ba'Kever' - then her father will receive it.
(b) We object to that interpretation however - on the grounds that a Na'arah cannot become pregnant and give birth whilst she is a Na'arah (in other words, there is no way that a Na'arah can possibly give birth).
(a) Most women are forbidden (see Tosfos DH 'Shalosh') to use a cloth (to prevent themselves from becoming pregnant) during pregnancy. The reason that ...
1. ... a Ketanah may is - because she might become pregnant and die.
2. ... a woman who is pregnant may is - in case she becomes pregnant again, in which case the second fetus will squash the first one and kill it.
3. ... a feeding mother may is - in case she becomes pregnant and, the fact that a pregnant woman is short of milk will force her to wean her baby prematurely, thereby causing his death.
(b) A Ketanah, in this regard, refers to a girl between the ages of eleven and twelve. A girl who is under eleven is not permitted to use a cloth - because she cannot become pregnant anyway, so there is nothing to be afraid of.

(c) This is the opinion of Rebbi Meir. The Chachamim forbid even the above women to use a cloth - because Hashem looks after people who cannot look after themselves.

(d) This ruling is based on the Pasuk in Tehilim "Shomer P'sayim Hashem".

(a) The problem with Rava's She'eilah is that a Na'arah cannot become pregnant and then give birth before becoming a Bogeres - because Shmuel stated that there are only six months between Na'arus and Bagrus, and it is not possible to give birth in six months.

(b) When Shmuel said that there are six months between Na'arus and Bagrus, he could not have meant less than six months (but that there can be more) - because he used the expression 'only six months' (and not 'at least').

(a) So we re-learn Rava's She'eilah. According to the new interpretation if we say ...
1. ... 'Yesh Bagar ba'Kever' - the father loses his right to claim the K'nas, in which the rapist or the seducer will be entitled to keep it.
2. ... 'Ein Bagar ba'Kever' - then the father will still be able to claim it.
(b) Abaye said above that Misah (like Bagrus) removes the right to claim K'nas. Rava (in this Lashon) holds - that it does not, and it is only when *she becomes a Bagar* in the grave that he has his Safek.

(c) Mar bar Rav Ashi interprets Rava's She'eilah differently. According to him - Rava's She'eilah is whether death has the same effect as Bagrus (to exempt the rapist from paying the father) or not. This is precisely the case where Abaye maintains that the rapist is Patur from paying (giving death the same effect as Bagrus), and this is the case to which we were referring when we said above that what was obvious to Abaye was a She'eilah to Rava.

(d) Rava concludes 'Teiku'.

(a) When Rava asked Abaye who will receive the K'nas if the girl subsequently becomes betrothed - he replied that the Torah writes "Asher Lo Orasah", and not "Asher Lo Arusah" (which would have implied that once she becomes betrothed, the father no longer receives the K'nas).

(b) When Rava asked him in reply, why it then was that, seeing as the Torah does not write "ve'Nasan la'Avi ha'Na'arah Asher Lo *Nesu'ah*", the Tana of the Beraisa nevertheless writes that, if she married, it is *she* who receives the K'nas - he retorted that marriage is different, inasmuch as, like Bagrus, it takes a girl out of her father's jurisdiction. Consequently, like Bagrus, the K'nas will naturally go to the girl.

(c) We know that a girl is taken out of her father's jurisdiction ...

1. ... when she becomes a Bogeres - because the Torah only gives a father rights in his daughter whilst she is a Na'arah. Nowhere does the Torah give him jurisdiction even after she becomes a Bogeres.
2. ... when she gets married - because we have a precedent with regard to Nedarim, where the father completely loses his rights to nullify his daughter's Nedarim once she gets married.
(d) Betrothal may well be different - because in the same case of Nedarim, the girl's father does not lose his total jurisdiction over her, but retains the authority to nullify her vows in conjunction with her Chasan.
(a) Besides K'nas - a seducer also pays for Boshes and P'gam.

(b) In addition to the above - a rapist must pay for the pain.

(c) A rapist pays immediately, seeing as he has to marry her anyway - whereas a seducer, who has the choice of marrying her or of paying, only needs to pay after he divorces the girl (this will shortly be amended - see 10a.).

(d) As we have already stated, the seducer has the option of marrying her or of paying. The rapist, on the other hand, 'Shoseh ba'Atzitzo' - meaning that he is forced to drink the cup that he himself chose.

(a) If, after betrothing her, the rapist discovers that she committed adultery, or if she is forbidden to marry into the Kahal even before he betrothed her - he will be obligated to divorce her in the former case, and to marry her in the latter.

(b) The Tana of our Mishnah learns this from the Pasuk in Ki Seitzei "ve'Lo Sihyeh le'Ishah" - implying a woman who is fit for him to marry (but not one who is not).

(c) Rebbi Shimon ben Yehudah Amar Rebbi Shimon exempts the rapist from paying for the pain - on the grounds that she is destined to suffer that pain when she gets married anyway.

(d) On the basis of his opinion we reject our initial contention - that 'pain' refers to the pain of having thrown her to the floor, because that is not something that her husband is going to do to her when she gets married.




(a) The Rabbanan (the Tana of our Mishnah) counter Rebbi Shimon's argument - by pointing out that one cannot compare the Tza'ar of a woman who is intimate of her own accord to that of a woman who is raped.

(b) So Rabah bar Avuhah explains the pain in our Mishnah - as the pain of opening her legs.

(c) According to Rav Nachman Amar Rabah bar Avuhah, a seducer is exempt from paying for the pain - because once a girl agrees, it is as if she has expressed her willingness to accept the pain (and to forego the claim to the payment for it).

(d) The problem with this explanation is - how can she forego the rights of her father?

(a) So Rav Nachman Amar Rabah bar Avuhah concludes that in fact, a Mefutah does not feel any pain. Different women describe the pain in different ways, though they all agree that it is minimal. The pain of a Mefutah is less than that of an Anusah - because it is negated by the pleasure.

(b) Abaye quoted his 'Eim', who compared the pain of a Mefutah to that of hot water on a bald man's head. By 'Eim' - he meant the wise and famous nanny who brought him up.

(c) Rava quoting bas Rav Chisda (his wife), compared the pain to the puncture of a lancet (piercing the skin in order to let blood) - bas Aba Sura'a (Rav Papa's wife), to hard bread rubbing against the palate.

(a) The Tana of our Mishnah stated that a seducer only pays K'nas when he divorces the girl. What he really meant to say was - when he decides that he does not want to marry her (since we are speaking when he has not yet married her).

(b) The Tana of a Beraisa explicitly states that even though a seducer only pays K'nas when he decides not to marry the girl - he is nevertheless obligated to pay Boshes and P'gam immediately.

(c) We learn from the double expression "Im Ma'ein Yema'ein Avihah" - that, not only does the seduced girl's father have the right to stop the seducer from marrying her, but so does she.

(a) We learn from "ve'Lo Sihyeh le'Ishah" that the girl has the right to stop the rapist from marrying her. In fact, the father can refuse too. Abaye learns this from a S'vara 'she'Lo Yehei Chotei Niskar' (that the sinner should not gain). Rava learns it from a 'Kal va'Chomer' from a seducer - if already where he only contravened the father's wishes, both the girl and her father are able to stop him from marrying her, then surely, in the case of a rapist, who has contravened the wishes of the girl as well, the father as well as the girl should be able to stop him.


1. Rava does not want to learn like Abaye - because, seeing as he pays K'nas, it cannot be considered a cases of 'Chotei Niskar'?
2. Abaye does not want to learn like Rava - because, in the case of rape, where the rapist cannot refuse to marry the girl, perhaps the father is not able to refuse either.
(a) When the Tana of the Beraisa says that a rapist who divorces the woman whom he raped is exempt from paying her Kesuvah, he cannot mean exactly what he says - because a rapist is never permitted to divorce the woman whom he raped. What he is therefore referring to is a case where the girl subsequently walked out and demanded her Kesuvah.

(b) According to the Tana Kama, she does not receive a Kesuvah if he dies either. Rebbi Yossi b'Rebbi Yehudah say - that she receives a Kesuvah of a Manah.

(c) Their Machlokes is based on the reason that the Chachamim instituted a Kesuvah in the first place - to protect the woman (so that the man should not find it easy to divorce his wife).

(d) Consequently, the Tana Kama holds that here, where he is forbidden to divorce her anyway, it is not necessary to give her a Kesuvah. Rebbi Yossi b'Rebbi Yehudah argues - that sometimes he will make life miserable for her, forcing her to demand a Get. So Chazal made that difficult for him to do.

(a) We learn from the Pasuk "Mahor Yimharenah *Lo* le'Ishah" - that although in other regards, we learn the Dinim of O'nes and Mefateh from each other, we will not learn Mefateh from K'nas with regard to marrying her against his will, because "Lo" implies with his consent.

(b) We learned in our Mishnah that, if the girl is forbidden to marry into the Kahal, the rapist is forbidden to marry her. Rav Kahana queried this however - on the basis of the principle 'Asei Docheh Lo Sa'aseh'. So why should the Asei of "ve'Lo Sihyeh le'Ishah" not override the Lo Sa'aseh of P'sulei Kahal?

(c) Our Sugya cites the case of Milah be'Tzara'as, where the principle of 'Asei Docheh Lo Sa'aseh' does apply. The case of Milah be'Tzara'as is - when a baby who requires the Mitzvah of Milah is found to have Tzara'as on the location of the Milah. Yet, in spite of the La'av "Hishamer be'Nega Tzara'as" (forbidding the removal of a mark of Tzara'as), the Mitzvah of Milah prevails (see Tosfos DH 'K'gon').

(d) Rav Z'vid from Neherda'a replied by differentiating between a rapist who raped a P'sul Kahal and the case of 'Milah be'Tzara'as' - because, in the former case, the Asei is not obligatory, seeing as she can refuse (so we actually train her to do so - though it is unclear why Rashi finds it necessary to learn like this). Consequently, there is no Asei to override the Lo Sa'aseh.

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