1) THE TRADITION REQUIRED TO EXPOUND A "GEZEIRAH SHAVAH"
QUESTION: The Mishnah quotes Rebbi Yosi ha'Glili who rules that a Na'arah who accepted Kidushin (and thereby became an Arusah), but was divorced before the marriage was consummated with Nisu'in, does not receive a Kenas if she is raped or seduced. Rebbi Akiva disagrees and rules that she does receive a Kenas, and the Kenas is given directly to her (and not to her father).
The Gemara quotes a Beraisa in which Rebbi Akiva rules that the Kenas is given to her father. (The Gemara later explains that Rebbi Akiva's students disagreed about his position on the matter.) In the Beraisa, Rebbi Akiva states that it is logical that the Kenas is given to her father. Just as the father of a girl (who was divorced after Erusin) receives the money of Kidushin given for the betrothal of his daughter, so, too, he should receive the money of the Kenas in the event that she is raped or seduced. Rebbi Akiva asks that if it is logical that the Kenas for rape or seduction of a girl who was divorced as an Arusah is given to her father, why does the verse describe a girl who is eligible for the Kenas as "Asher Lo Orasah" -- "who was not betrothed (with Erusin)" (Devarim 22:28)? Rebbi Akiva explains that this verse is used for a different teaching; it teaches a Gezeirah Shavah from the Parshah of rape (Ones) to the Parshah of seduction (Mefateh), in which the verse similarly states "Asher Lo Orasah" (Shemos 22:15). In the Parshah of rape the Torah teaches that one must pay fifty "Kesef," and in the Parshah of seduction the Torah teaches that the fine must be in the currency of Shekalim. The Gezeirah Shavah teaches that the laws of rape apply to seduction and vice versa. Accordingly, the Gezeirah Shavah teaches that both rape and seduction bear a fine of fifty Shekalim (of Kesef).
The Gemara questions the way Rebbi Akiva expounds the verses. Why does Rebbi Akiva understand the words "Asher Lo Orasah" as a Gezeirah Shavah which compares the laws of Ones with the laws of Mefateh, and the word "Besulah" as excluding a Be'ulah from the law of Kenas? He should learn instead that the word "Besulah" serves as the Gezeirah Shavah between Ones and Mefateh (since this word appears in both Parshiyos), and the words "Asher Lo Orasah" exclude from the law of Kenas a Na'arah who was betrothed (with Erusin) and then was divorced (as is the view of Rebbi Yosi ha'Glili).
The Gemara's question is difficult to understand. The Gemara in Pesachim (66a) clearly states that one may expound a Gezeirah Shavah only if he received it as a tradition (Kabalah) from his Rebbi. One may not derive laws from a Gezeirah Shavah which he formulates himself. Why does the Gemara suggest that Rebbi Akiva should derive the Gezeirah Shavah from "Besulah" instead of "Asher Lo Orasah," if the tradition he received from his Rebbi derives the Gezeirah Shavah only from "Asher Lo Orasah"?
(a) The RITVA answers that the principle that one may not expound a Gezeirah Shavah without a tradition to do so applies only when there is no tradition whatsoever to learn a Gezeirah Shavah for a particular law. It happens often, however, that there exists a tradition that a Gezeirah Shavah exists for this particular law but there is no tradition for exactly which words the Gezeirah Shavah comprises. For this reason, the Gemara often seeks to prove that the words used for a Gezeirah Shavah are "Mufneh" ("open" and not used to teach any other law, and thus available to be used for the inference of a Gezeirah Shavah between the two topics). Isolating the "Mufneh" words facilitates identification of the words which are intended to teach a Gezeirah Shavah.
According to the Ritva, why does the Gemara here ask that Rebbi Akiva should derive the Gezeirah Shavah from "Besulah" and not from "Asher Lo Orasah"? The answer is that since there was a tradition that a Gezeirah Shavah teaches the law that the Kenas of Ones and Mefateh is fifty Shekalim, any words that are found to be "Mufneh" may be the words which comprise the Gezeirah Shavah. Since the words "Besulah" in the Parshah of Ones and in the Parshah of Mefateh are "Mufneh," it certainly is possible that "Besulah" is the source of the Gezeirah Shavah. This is also the explanation of the TOSFOS HA'ROSH (DH Eima; see YA'AVETZ) and is implied by TOSFOS.
(b) The SHITAH MEKUBETZES answers that it is possible that the Gemara assumes that there was also a tradition to use the word "Besulah" as a Gezeirah Shavah. (The Shitah Mekubetzes notes that the RASHBA and RAN in Bava Metzia (87b) disagree with the Ritva and state that the words used in a Gezeirah Shavah were generally a tradition, but the law derived from the Gezeirah Shavah was not necessarily known.) (D. BLOOM)
2) DO HEIRS INHERIT THE OBLIGATION OF A "KENAS"?
QUESTION: Rava discusses a case in which a man raped or seduced a Na'arah (between twelve years old and twelve and a half years old), and the Na'arah died before the age of twelve and a half and before she went to Beis Din to collect the fine. The Gemara in a number of places teaches that the state of Bagrus (when she becomes a Bogeres, at the age of twelve and a half) affects the obligation of Kenas in various ways (see Mishnah, 41b). Does the state of Bagrus have Halachic ramifications only when she is alive, or even when she died and would have reached that age had she lived?
The Gemara explains that if becoming a Bogeres is relevant even when she is dead, then once the time arrives at which she would have become a Bogeres had she been alive her son should inherit the Kenas owed to her. If the status of Bogeres does not apply when she is dead, her father should inherit the Kenas. RASHI (DH Yesh), in his explanation of the first possibility, writes that just as a girl who goes to Beis Din to claim her Kenas only after she reaches the age of twelve and a half keeps the Kenas for herself and it is not given to her father (Mishnah, 41b), so, too, a girl who dies before the age of twelve and a half keeps the Kenas for herself (that is, her heirs inherit it) once the time arrives at which she would have reached the age of Bagrus had she lived.
Rava's question appears to contradict the Gemara later (42b). The Gemara there states that a person cannot bequeath a Kenas to his children. Rava's question, however, is based on the premise that a woman bequeaths a Kenas to her son!
(a) TOSFOS (DH Yesh) answers that the Gemara indeed could ask this question on Rava, but instead it asks a better question.
(b) Alternatively, Tosfos answers in the name of the RI that Rava's question does not apply to Kenas because, as the Gemara later says, a Kenas is not inherited by one's heirs. Rather, Rava's question applies to the payments of Boshes (embarrassment) and Pegam (physical blemish) which the man caused. These payments are inherited by one's heirs since they are considered Mamon (value-based payments) and not Kenas (fixed amount, regardless of value).
(c) The RITVA gives a different answer in the name of the RI. The rule that a person cannot bequeath a Kenas to his children applies only to a Kenas which a man receives by way of his daughter. This is derived from the verse which discusses the law that one's heirs inherit his Eved Kena'ani (Vayikra 25:46). The Gemara (43a) derives from there that although one's sons inherit his Eved Kena'ani, his sons do not "inherit" his daughter, which refers to the rights which he has to the money he receives due to fines owed to his daughter. In contrast, a Kenas which a person is entitled to receive in his own right can be bequeathed to his sons, even before Beis Din issues a ruling about the Kenas (that is, even before it becomes a monetary (Mamon) obligation which certainly is bequeathed to one's heirs). Accordingly, a woman's son should inherit the Kenas owed to her, since the Kenas was owed directly to her.
(d) The BA'AL HA'ME'OR offers a different explanation of the Sugya. He explains that Rava's question refers to a case in which the father brought the offender to Beis Din before his daughter died. His question applies according to the opinion of Rebbi Shimon (see Mishnah, 41b) who maintains that since the father did not collect the money in his lifetime, the power of the father automatically expires and the Kenas becomes an obligation of Mamon (because the Beis Din already ruled that it must be given), which -- when the woman dies -- she can bequeath to her son. (D. BLOOM)