KESUVOS 35 (18 Adar) - Dedicated by Harav Shlomo Weinberger of Brooklyn, NY, in memory of his father, Reb Chaim Tzvi ben Reb Shlomo Weinberger, whose Yahrzeit is 18 Adar. Reb Chaim Tzvi, a Holocaust survivor who raised his family in a new country, bequeathed his children steadfast commitment to Torah and its study.
1) THE GEZEIRAH SHAVAH OF "RASHA RASHA"
QUESTION: Ravin explains that the dispute between Rebbi Yochanan and Reish Lakish concerns a person who inadvertently transgresses a prohibition for which he is liable for Malkus and for a different punishment (such as a monetary fine). Rebbi Yochanan rules that the offender must pay the monetary fine. He maintains that the Hekesh (Vayikra 24:21) of the Gemara earlier -- which exempts a person from monetary obligations which he incurs at the same moment at which he kills someone (even b'Shogeg) -- does not apply to a person who is liable for Malkus and monetary compensation. Reish Lakish disagrees and maintains that even when one committed a transgression for which he is liable for Malkus and monetary compensation, the Hekesh exempts him from payment. This is because the Torah compares one who is Chayav Malkus with one who is Chayav Misah.
Where does the Torah compare one who is Chayav Malkus with one who is Chayav Misah? Abaye answers that there is a Gezeirah Shavah, "Rasha Rasha." With regard to capital punishment the Torah says, "... he is a Rasha who must die" (Bamidbar 35:31). With regard to Malkus the Torah states, "If the Rasha deserves to be beaten..." (Devarim 25:2). Rava disagrees with Abaye and suggests a different source. The verse uses a form of the word "Makeh" -- "one who strikes" -- both when it discusses one's obligation to compensate for damage he caused to someone else's animal (Vayikra 24:21) and when it discusses the punishment of Malkus (Devarim 25:2). The usage of the word "Makeh" in the verse of the Hekesh (Vayikra 24:21) teaches that Malkus is included in the Hekesh.
It seems clear from the Gemara that Rava does not expound the Gezeirah Shavah of "Rasha Rasha." Similarly, Rebbi Yochanan -- who differentiates between a person who is liable for Misah and one who is liable for Malkus -- does not compare the two punishments through the Gezeirah Shavah. The Gemara later (37a) also does not seem to accept the Gezeirah Shavah, as is evident from its statement that one verse is needed to teach that one who is liable for Misah does not pay money (Shemos 21:22), and a different verse is needed to teach that one who is liable for Malkus does not pay money (Devarim 25:2). If the Gemara there would accept the Gezeirah Shavah of "Rasha Rasha," it would need only one verse to exempt a person from monetary liability, either in a case of Misah or in a case of Malkus, and the Gezeirah Shavah would teach that the other punishment also exempts him from monetary liability.
However, the Gezeirah Shavah of "Rasha Rasha" is cited in a number of places as an undisputed teaching (Makos 5b, Sanhedrin 33b, and Bava Kama 86b). Why does the Gemara elsewhere cite the Gezeirah Shavah as a unanimous teaching, when several opinions in the Gemara here do not accept it?
(a) TOSFOS (DH Rava) answers that everyone agrees that the Gezeirah Shavah of "Rasha Rasha" compares the laws of Malkus to the laws of Misah. The question is whether it also teaches the accompanying laws of Malkus, such as the exemption from monetary liability. Abaye understands that these laws are included in the Gezeirah Shavah, while Rava and Rebbi Yochanan maintain that they are not included in the Gezeirah Shavah.
(b) The SHITAH MEKUBETZES quotes the ROSH who explains that Rava agrees with Abaye that there exists a Gezeirah Shavah. However, he understands that the Gezeirah Shavah is not always necessary. The Rosh understands that when Rava states that the exemption from monetary liability is derived from the word "Makeh," he means that the Gezeirah Shavah is not necessary for this particular teaching. (See the Shitah Mekubetzes who explains, in a similar manner, two other Gemaras in which Rava gives an alternative teaching to "Rasha Rasha.")
This answer reconciles only the opinion of Rava, but not that of Rebbi Yochanan, with the unanimous teaching of "Rasha Rasha."
(c) The Shitah Mekubetzes quotes a second answer in the name of the Rosh. Rava and Rebbi Yochanan understand that the Gezeirah Shavah of "Rasha Rasha" applies only to laws which involve a person who is a Rasha, an evildoer. It does not apply to cases in which a person accidentally sinned. Accordingly, the Gezeirah Shavah of "Rasha Rasha" is not relevant here, because the Gemara's objective is to teach that the exemption from monetary liability applies even when one is liable for lashes and for payment as a result of an accidental transgression. (See Shitah Mekubetzes who explains these answers at length.) (D. BLOOM, Y. MONTROSE)
2) HALACHAH: THE PENALTY FOR RAPE AND ITS APPLICATION NOWADAYS
OPINIONS: The Beraisa presents a list of women for whom there is "neither Kenas nor Pituy." To what do these terms refer?
(a) RASHI (DH Kenas and DH Pituy) explains these words in their straightforward sense. "Kenas" is the fine paid by one who rapes a girl, and "Pituy" is the fine paid for one who seduces a girl.
Why is the fine for rape specifically described as a "Kenas," a "penalty," when the fine for seduction is also technically a Kenas? TOSFOS (DH Lo) explains that it is appropriate to describe the fine for rape as a "Kenas" because of the Halachah (39a) that the rapist must marry his victim and remain married to her, even if she is lame, blind, or suffers from boils. This requirement is referred to as "Shoseh b'Atziso" -- "he must drink from his own jar." In contrast, a man who seduces a woman and fulfills the Torah's commandment to marry her is allowed to divorce her later if he so chooses. Accordingly, the fine for rape is termed a "Kenas" not because of the monetary aspect but because of the aspect of compulsion involved with the man's punishment.
(b) TOSFOS (DH Lo) writes that a variant text of the Gemara reads, "neither Kenas nor Ones." "Kenas" refers to the fine for seduction and "Ones" refers to the fine for rape.
The KOVETZ SHI'URIM (#127) points out an interesting Halachic difference between the explanations of Rashi and Tosfos. The Gemara (Sanhedrin 31a) rules that Beis Din may not judge laws of penalties nowadays. Is the requirement that a rapist remain married to his wife (the woman he raped) considered a penalty, a Kenas, in which case it would not apply today, or is it an ordinary Torah law which applies today like other Torah obligations? According to Tosfos' explanation of Rashi's words the requirement that a rapist remain married is a Kenas and should not apply today, while according to the variant text which Tosfos cites the requirement is not a Kenas and should apply today.
The Kovetz Shi'urim writes that most Rishonim maintain that the requirement that the rapist remain married is not categorized as a penalty. This is the opinion of the SEFER HA'CHINUCH (#557), SEMAK, and RAMBAN in Sefer ha'Mitzvos (#235), who all write that the Halachah of "Shoseh b'Atziso" applies nowadays because it is not a Kenas but rather a Mitzvas Aseh.
HALACHAH: The SHULCHAN ARUCH (EH 177:3) writes that a man who rapes a virgin is obligated to marry her (if she and her father consent) and he may not divorce her. If he transgresses the Mitzvah and divorces her, Beis Din forces him to remarry her. The Shulchan Aruch clearly understands that the Halachah of "Shoseh b'Atziso" applies nowadays, and thus it is not a Kenas.
The MINCHAS CHINUCH (177:20) comments that the Shulchan Aruch does not state first that Beis Din forces the man to marry her, but merely that he is obligated to marry her. The Shulchan Aruch then writes that if he divorces her, Beis Din forces him to remarry her. The Minchas Chinuch infers from this wording that the Shulchan Aruch maintains that although nowadays Beis Din does not force a person to perform a Mitzvas Aseh, Beis Din does enforce compliance of a Mitzvas Lo Ta'aseh. The obligation to marry the victim is a Mitzvas Aseh, "v'Lo Siheyeh l'Ishah" -- "And she will be to him for a wife" (Devarim 22:29). Once he has already married her, he is bound to remain married to her because of a Mitzvas Lo Ta'aseh, "Lo Yuchal Shalchah Kol Yamav" -- "He may not send her away all of his days" (ibid.). (D. BLOOM, Y. MONTROSE)