1) DOES THE MISHNAH FOLLOW THE VIEW THAT KOFER" IS "MAMON"?
QUESTION: The Mishnah states that when a person says that his ox killed a person (and therefore he is obligated to pay Kofer (see RASHI DH Heimis) or that his ox killed another person's ox, he is obligated to pay as a result of his own admission. However, if he says that his ox killed someone's slave, he is not obligated to pay the thirty-Sela fine which the Torah (Shemos 21:32) requires one to pay for the death of a slave.
The Mishnah concludes that the general rule is that a person cannot obligate himself through his own admission to pay a penalty which is more than the actual value of the damage ("Modeh b'Kenas Patur"). RASHI (DH Eino) explains that the thirty Sela one must pay for causing the death of a slave is defined as a Kenas because even if the slave was worth only one Dinar in the marketplace the Torah still requires that he pay thirty Sela. In contrast, the Mishnah states that one who admits that his ox killed a person must pay Kofer because the Mishnah maintains "Kufra Mamona" -- "Kofer is a monetary payment" (par damage), for which one is obligated to pay based on his own admission.
TOSFOS REBBI AKIVA EIGER asks that Rashi's statement that Kofer is Mamon is difficult to understand in light of the Gemara in Bava Kama which discusses the obligation of Kofer. The Gemara there (40a) cites the dispute concerning whether the payment of Kofer is primarily a monetary obligation ("Mamon") or a form of atonement ("Kaparah") independent of payment for damages. The Gemara there says that almost everyone maintains that the nature of the payment of Kofer is a Kaparah, which implies that the Halachah should follow that view. Rashi's understanding of the Mishnah here, however, implies that the Halachah of the Mishnah is based on the opinion that Kofer is Mamon. How can Rashi's explanation be reconciled with the Gemara in Bava Kama?
Moreover, Rebbi Akiva Eiger asks that the RAMBAM (Hilchos Nizkei Mamon 10:4) rules that Kofer is a Kaparah, but he also rules that one who admits that he is obligated to pay Kofer must pay (2:8), as the Mishnah here says. These two rulings are contradictory, according to Rashi's understanding of the Mishnah. Rebbi Akiva Eiger leaves these questions unresolved.
(a) The RASHASH suggests that Rashi understands that one's admission about his obligation to pay Kofer requires that he pay Kofer whether it is Mamon or Kaparah. Rashi states that the Mishnah follows the opinion that Kofer is Mamon only because the Mishnah implies that a person would pay Kofer based on his own admission, and he certainly would pay if there are witnesses. Rashi understands that the reasoning of those who maintain that Kofer is Kaparah is not necessarily that Kofer is a Kenas (penalty), but that the person has a need to attain atonement. With regard to atonement, the Gemara in Kerisus (11b) teaches that even when two witnesses say that a person accidentally ate forbidden Chelev, if the person says he is certain that he did not eat Chelev he is believed. The Gemara explains that a person is believed to say that he requires atonement more than one hundred witnesses who say that he does not.
The Rashash applies this principle to the Mishnah here. The Mishnah's implication that one must pay based on his own admission and certainly when there are witnesses does not accurately represent the opinion of "Kufra Kaparah," because that opinion would say that the person's admission is more important than the testimony of witnesses in this case. Accordingly, Rashi understands that the tone of the Mishnah follows the opinion of "Kufra Mamona," but that the Mishnah agrees that the Halachah follows the opinion of "Kufra Kaparah." (Although the Rashash does not address the contradiction in the words of the Rambam, it is possible that this explanation resolves that question as well.)
(b) The HAFLA'AH answers that when Rashi says that the Mishnah maintains that Kofer is Mamon, his intention is to answer the question of TOSFOS (DH Zeh). As mentioned above, the Mishnah concludes with the general rule that whenever a person admits to owing an amount which is more than the actual damage that was done, he is not obligated to pay through his own admission. Tosfos asks that the Gemara in Bava Kama (40a) records an opinion that Kofer is evaluated based on "Demei Mazik" -- "the value of the damager," the owner of the ox. In a case in which the value of the owner is more than the value of the person killed, the rule that one does not pay based on his own admission should apply. Why, then, does the Mishnah rule that in all cases of Kofer one pays based on his own admission?
To answer this question, Rashi explains that the Mishnah must maintain that Kofer is Mamon. The Gemara in Bava Kama suggests at one stage that the opinion that Kofer is assessed based on "Demei Mazik" must maintain that Kofer is Kaparah, while the opinion that Kofer is assessed based on "Demei Nizak" (the value of the victim) must maintain that Kofer is Mamon (since one pays the value of that which was damaged). Although the Gemara at one stage rejects that assertion, Rashi understands from the Gemara elsewhere that it is a correct assertion.
Rashi's explanation of the Mishnah here is now clear. Since "Demei Mazik" is more than the value of the damage and thus the person should not be obligated to pay based on his own admission, it must be that the Mishnah maintains that Kofer is assessed based on "Demei Nizak." Consequently, it follows that the Mishnah maintains that Kofer is Mamon. However, the fact that the Mishnah maintains that Kofer is Mamon does not mean that the Halachah that one must pay based on his own admission is not true according to the opinion that Kofer is Kaparah. (D. BLOOM, Y. MONTROSE)
2) WHICH PAYMENTS DOES THE WOMAN RECEIVE?
QUESTION: The Mishnah states that when the father of a woman who was an Anusah (raped) or Mefutah (seduced) dies after the case was presented to Beis Din ("Ha'amadah b'Din"), her brothers inherit the money paid by the rapist. When, however, her father dies before Ha'amadah b'Din, "they belong to her."
The Mishnah until now discussed the payments of Kenas, Boshes, Pegam, and Tza'ar. When the Mishnah says, "Harei Hen Shel Atzmah" -- "they belong to her," it implies that all of the payments go to her. This is also the implication of the end of the Mishnah in which Rebbi Shimon says that even when her father dies after Ha'amadah b'Din, she receives the money but she does not receive "Ma'aseh Yadehah" (her wages) or "Metzi'asah" (found items) which she earned or found before her father died, even though they were not collected until after her father died. This implies that she does receive everything besides "Ma'aseh Yadehah" and "Metzi'asah" -- that is, Boshes, Pegam, and Tza'ar.
Why should she receive the payments of Boshes, Pegam, and Tza'ar? That she receives the Kenas is understandable; there is no concrete obligation to pay the Kenas until after Ha'amadah b'Din (since, if the rapist confesses to his crime prior to Ha'amadah b'Din, he would be exempt from paying the Kenas), and therefore it does not belong to the father yet and he cannot bequeath it to his sons. The other payments, however -- Boshes, Pegam, and Tza'ar -- are ordinary payments for damages (from which a person is not exempt if he confesses) which normally are given to the woman's father (43b). Why should the father not be able to bequeath these payments to his children even if he dies before Ha'amadah b'Din?
ANSWERS: The Rishonim offer a number of approaches to this Mishnah.
(a) The RE'AH writes that when the Mishnah says, "Harei Hen Shel Atzmah," it does not refer to Boshes and Pegam at all, but only to the Kenas of an Anusah. In the case of a Mefutah, the woman does not receive the payment of Kenas because she participated in the act willingly (as the Gemara says on 32a and 42a). The Mefutah also does not receive the payments of Boshes and Pegam because those payments are ordinary monetary obligations which the brothers inherit from the father.
When the end of the Mishnah says that the woman's "Ma'aseh Yadehah" and "Metzi'asah" go to her brothers, it does not intend to exclude the payments for Boshes and Pegam. These also go to her brothers. This seems to be the opinion of RASHI as well (42a, DH Meis ha'Av, although it is possible that he follows the view expressed in (b) below).
(The PNEI YEHOSHUA (42a) points out that the suggestion that the Mishnah discusses only an Anusah and not a Mefutah is problematic, because the Gemara clearly implies that Rebbi Shimon -- who says that when the father dies after Ha'amadah b'Din the money goes to the daughter and not her brothers -- refers to the money paid to a Mefutah.)
(b) The RAMBAN and RITVA explain, like the Re'ah, that the Mishnah refers only to the payment of Kenas, but they maintain that refers to the Kenas of both an Anusah and a Mefutah. Why should a Mefutah receive her Kenas if she participated in the act willingly and thus relinquished her claim to any monetary obligations that come about through the seduction? The answer, as the TOSFOS HA'ROSH writes, is that at the time of the seduction, her father was still alive, and thus her father was supposed to receive the money of the Kenas. Accordingly, his daughter was unable to relinquish the claim to that payment at the time of the offense because it was not hers to relinquish. It is only after the father dies that the Torah entitles her to receive the Kenas, but at that point there is no longer any evident act on her part that shows that she relinquishes the claim. Therefore, she receives the money of the Kenas.
The Re'ah, on the other hand, apparently maintains that once the Mefutah agrees to the act, she forgoes not only any indemnification that she is entitled to immediately, but she also forgoes through her present act any indemnification that she could receive later for this act.
The source for this opinion may be the Yerushalmi (cited by Tosfos 29a, see below) which discusses the Mishnah which mentions that one who rapes his own daughter is exempt from Kenas because of "Kam Lei bid'Rabah Minei." The Yerushalmi explains that the Mishnah must refer to when the father dies before Ha'amadah b'Din, and the Mishnah teaches that his sons do not have to pay their sister the Kenas for their father's rape. Since the Gemara in Sanhedrin (74a) says that the Mishnah discusses a case of Mefutah, it appears that a Mefutah cannot forgo the money if her father is alive at the time of the seduction but dies before Ha'amadah b'Din. (Although the Yerushalmi maintains that a woman may never forgo the Kenas even when her father is already dead at the time of the seduction (see below), the Bavli must agree with the Yerushalmi that she cannot forgo the Kenas when the seduction was done while the father was alive; see Tosfos ibid.)
Another reason why the Mefutah should receive the Kenas and is not considered to have relinquished her claim may be the reason expressed by the Yerushalmi (cited by Tosfos 29a, DH v'Al Eshes Achiv, and Rishonim to 36b and 38a). The Yerushalmi states that a woman cannot forgo her Kenas under any circumstances. The logic of the Yerushalmi seems similar to the logic of the Ramban. Even if the Kenas goes to her, it is not considered hers until Ha'amadah b'Din, and since she did nothing to forgo it after Ha'amadah b'Din, she receives the Kenas. (Tosfos points out that the Bavli on 32a does not agree with this Halachah. However, this might depend on the Girsa'os cited by the Rishonim in the Gemara there. See Chart #6, footnote 2.)
(c) TOSFOS (see 38b, DH Yesh Beger; 40b, DH v'Eima; 41b, DH Na'arah) explains that the obligation to pay Boshes and Pegam is compared to the obligation to pay Kenas through a Hekesh. Therefore, even though the payments for damages normally are considered to be monetary entitlements which the heirs inherit from their father even before Ha'amadah b'Din, nevertheless the Torah says that the payments of Boshes and Pegam must be given to whomever the Kenas is given. Therefore, since she receives the Kenas, she also receives the Boshes and Pegam.
Tosfos (38b) explains that Boshes and Pegam are not entirely comparable to Kenas, and in cases where Kenas is not paid at all (such as where the rapist confesses), Boshes and Pegam still must be paid. The Hekesh teaches only that when Kenas is paid, the Boshes and Pegam are paid to the same person to whom the Kenas is paid.
The RE'AH cites Tosfos as saying that the Boshes and Pegam of a Mefutah are not paid to her because she relinquished her claim to them. Therefore, when the Mishnah says that everything is paid to her, it refers to the Kenas, Boshes, and Pegam of an Anusah. The Re'ah adds that Tosfos says that the Kenas of a Mefutah is given to her because she cannot forgo it, as the Yerushalmi states (cited in (b) above).
(d) The TOSFOS HA'ROSH gives a similar explanation. He suggests that Boshes and Pegam are also given to the daughter because they are compared to Kenas. He adds, however, that even in the case of a Mefutah, Boshes and Pegam are compared to Kenas and are given to the daughter. Although a Mefutah who is a Yesomah forgoes her right to all of the payments, in the case of the Mishnah -- where the Mefutah is not a Yesomah (her father is alive at the time of the seduction), she cannot forgo her rights to the payments. (This approach is identical to that of the Ramban, mentioned in (b) above, except that the Tosfos ha'Rosh compares the payments of Boshes and Pegam to that of Kenas and rules that they are all given to the daughter when her father dies before Ha'amadah b'Din, like Tosfos cited in (c) above.)