12th CYCLE DEDICATION
KESUVOS 38 - Dedicated by Reb Avraham Tallant in memory of his mother, Basya bas Reb Shalom Shachna, who passed away on 13 Tishrei 5768. Arriving in America before WW II, Mrs. Tallant remained true to her religion through very trying times and raised her family on the principles of the Torah.

1)

KAM LEI BID'RABAH MINEI [Kam Lei bid'Rabah Minei]

(a)

Gemara

1.

29a (Mishnah): A man pays a fine for (raping or seducing) his sister, paternal or maternal aunt, his wife's sister, his brother's wife, his paternal uncle's wife, or a Nidah. Even though these are punishable by Kares, they are not capital offenses.

2.

30a: He (the Tana of our Mishnah) teaches unlike R. Nechunya ben Hakanah, who equates Yom Kipur to Shabbos regarding paying. On Shabbos, since he is liable to death for Melachah, he is exempt from paying for it. The same applies to Yom Kipur (and all other Chayavei Kerisos).

3.

30b (Rav Chisda): R. Nechunya agrees that if Reuven ate Shimon's Chelev, he must pay!

i.

When Reuven picked it up, he became a thief and was obligated to return it. The exemption due to Kares does not apply until he eats it.

4.

37a (Mishnah): "(If Levi was fighting with Reuven and he hit a woman and made her miscarry), if there is no fatality, he will be punished (monetarily)".

5.

Question: We learned this from "Kedei Rish'aso" - we punish him for one evil, not for two!

6.

Answer: We need one source for death and money, and one source for lashes and money.

7.

R. Meir holds that we administer lashes and money. He holds that one verse teaches about death and money, and the other about death and lashes;

8.

38a (Tana d'Vei Chizkiyah): One who hits an animal pays, whether he was Shogeg or Mezid, whether or not he was aiming for this animal, and whether he hit with an upward or downward motion. Likewise, one who kills a person is exempt (from paying) in every case.

9.

Question: Why do we need "Kol Cherem..." and "Do not take ransom"?

10.

Answer #1 (Rami bar Chama): One is extra to teach about one who blinds a person's eye and kills him with a different blow at the same time. He does not pay money in addition to being executed;

i.

"If there is no fatality" only teaches about when he blinded and killed him in one blow.

11.

Objection (Rava): Also this is known from another teaching of Tana d'Vei Chizkiyah!

i.

(Tana d'Vei Chizkiyah): "(One pays) an eye for an eye", not an eye and a life for an eye".

12.

Answer #2 (Rav Ashi): One night have thought that fines are special, and even one who is executed pays them. The extra verse teaches that this is not so.

13.

Bava Kama 22b (Mishnah): If Reuven lit a stack of grain and there was a slave tied to it and a goat nearby, and they burned, he is exempt.

14.

Question: This is like the opinion that one is liable for fire like for arrows (because he is Chayav Misah for killing the slave, he does not pay money). According to the opinion that one is liable for fire like for his property, why is he exempt?

15.

Answer: The case is, he directly burned the slave.

16.

Question: If so, obviously he is exempt (from money, for he is Chayav Misah)!

17.

Answer: The Chidush is, even thought the goat and slave belong to different people, he is exempt for both.

18.

117a (R. Avin's father): At first they used to say that Metamei and Medame'a are liable. Later, they included Menasech (pouring to idolatry).

19.

At first they exempted Menasech, like R. Avin. They retracted to hold like R. Yirmeyah:

i.

(R. Avin): If one threw an arrow four Amos in Reshus ha'Rabim on Shabbos and it tore silk along the way, he does not pay, because the liability for Shabbos depends on the initial thrust.

ii.

(R. Yirmeyah): From the moment he picks up the wine, he is obligated to return it. He is not liable for idolatry until he pours it.

20.

Gitin 52b (Mishnah): If Reuven was Menasech b'Shogeg, he is exempt. If he was Mezid, he must pay.

21.

(Rav): Menasech simply means that he poured wine for a libation to idolatry.

22.

(Shmuel): No, he mixed Shimon's wine with wine that was offered to idolatry.

23.

Shmuel didn't explain like Rav, for then Reuven is exempt due to Kam Lei bid'Rabah Minei;

i.

Rav holds like R. Yirmeyah (above).

24.

Eruvin 62a (R. Chiya bar Aba): A Nochri is Chayav Misah for stealing less than a Perutah. He has no Mitzvah to return it.

(b)

Rishonim

1.

Rambam (Hilchos Geneivah 2:4): If Levi stole David's Chelev and ate it, he pays him its value.

i.

Ra'avad: He pays double.

ii.

Magid Mishneh: This is obvious. The Rambam did not need to say that if he did not admit he pays double.

2.

Rambam (Hilchos Nizkei Mamon 14:10): If Reuven made a fire in Levi's property and a stack of grain burned and there was a slave tied to it and a goat nearby, and they were burned with it, he is exempt.

3.

Rambam (Hilchos Chovel 7:6): If one poured to idolatry wine in which he was a partner, he forbids it and must pay. This is because liability to pay is from when he picked it up, and the Chiyuv Misah is only when he pours it.

i.

Magid Mishneh: The Halachah follows Rav.

ii.

Gra (CM 385:5): The Rambam rules like R. Avin, and the Gemara (Bava Kama 117a) connotes that R. Yirmeyah argues with him! Tosfos (Kesuvos 31a DH she'Akirah) says that they need not argue. Rather, Chachamim retracted about whether Menasech is more like the case of R. Avin, or like that of R. Yirmeyah.

4.

Rosh (Bava Kama 2:8): If Reuven made a fire and a slave tied down was burned, Kam Lei bid'Rabah Minei exempts Reuven from paying.

i.

Hagahos Ashri: If one owes money to Levi and for the same action is Chayav Misah (for what he did) to David, he does not pay, except for Edim Zomemim. Rivam says that in every case he pays except for a Rodef (one who pursues someone to kill him), for it is as if he is Chayav Misah to everyone, for anyone may kill him. If one was Mechalel Shabbos or (a Zar) ate Terumah, he is Chayav Misah (in the latter case, b'Yedei Shomayim) to Shomayim. It is as if he is Chayav money and Misah to one person, so he is exempt.

5.

Rashi (Eruvin 62a DH Lo Nitan): A Nochri does not pay if he will be killed.

6.

Tosfos (Eruvin 62a DH Ben): Kam Lei bid'Rabah Minei does not apply to Nochrim.

(c)

Poskim

1.

Shulchan Aruch (350): If Levi stole David's Chelev and ate it, he pays him for the Chelev.

i.

SMA (1): He is not exempt due to lashes or Kam Lei bid'Rabah Minei, because from the moment he picked up the Chelev he was obligated to return it, before he ate it.

ii.

Shach (1): The Halachah does not follow R. Nechunya ben Hakanah, so even if the Chiyuvim came at the same time he would pay. However, if he was warned for lashes he must pay only if his liability to pay came earlier.

2.

Shulchan Aruch (385:2): If one poured wine in which he was a partner to idolatry, he forbids it and must pay. Even though he is Chayav Misah, liability to pay is from when he picked it up, and the Chiyuv Misah is only when he pours it.

See also:

OTHER D.A.F. RESOURCES
ON THIS DAF