1) THE PENALTY FOR A MAN WHO MARRIES ONE OF FIVE WOMEN AND DOES NOT KNOW WHICH ONE
QUESTION: The Mishnah records a dispute about the law in the case of a man who betrothed one of five women and does not know which one he betrothed. According to Rebbi Tarfon, the man must give each woman a Get out of doubt, but he writes only one Kesuvah and he leaves it to the women to decide what to do with it. According to Rebbi Akiva, he must write a Kesuvah for each woman. Rebbi Tarfon and Rebbi Akiva similarly disagree about the law in the case of a person who stole an object from one of five people and does not know from whom he stole.
The Gemara cites a Beraisa in which Rebbi Shimon ben Elazar and the Tana Kama disagree about the exact cases in which Rebbi Tarfon and Rebbi Akiva argue.
According to the Tana Kama, they argue only about a case in which one bought (and did not steal) an object from one of five sellers and does not know from whom he bought it. Similarly, according to the Tana Kama, Rebbi Tarfon and Rebbi Akiva argue only about a case in which one betrothed one of five women with money, and he does not know whom he betrothed.
Rebbi Shimon ben Elazar, on the other hand, maintains that the argument applies only where an Isur was involved, such as when a person stole (an Isur d'Oraisa) from one of five people, or betrothed with Bi'ah (an Isur d'Rabanan) one of five women.
The Gemara explains that the Mishnah follows the view of Rebbi Shimon ben Elazar. When it says that Rebbi Tarfon and Rebbi Akiva argue in a case of "Kidesh," it means a case in which a man betrothed with Bi'ah (and not with money). The Gemara adds that the reason the Mishnah records their dispute in both cases (betrothal and theft) is to teach that although one who betroths a woman with Bi'ah transgresses only an Isur d'Rabanan, Rebbi Akiva still penalizes him and requires that he pay the Kesuvah to each woman.
RASHI (DH Kidesh Katani and DH u'Mai Kidesh) explains why, according to Rebbi Akiva, the Rabanan penalize a man who betrothed one of five women with Bi'ah and they do not penalize a man who betrothed one of five women with money. Rashi writes that when he betrothed a woman with Bi'ah, "he did an action and shamed her," and thus he should be penalized. In contrast, Kidushin performed with money is not shameful and involves no intimate act with the woman.
Why does Rashi give this reason for why Rebbi Akiva maintains that the man must pay the Kesuvah to each woman? The Gemara says that the reason for the penalty is that the man transgressed an Isur d'Rabanan by performing Kidushin with Bi'ah. Had he not committed an Isur, he would not be penalized, even though he shamed her! What is Rashi's source to say that the reason for the penalty in a case of Kidushin with Bi'ah is the shame that he caused her? (MAHARSHA)
ANSWER: The ARUCH LA'NER explains that the Isur d'Rabanan alone is not sufficient reason to penalize a man and make him pay money to five women out of doubt. The Isur d'Rabanan of Kidushin with Bi'ah (a decree instituted to uphold high standards of moral conduct) does not involve a monetary obligation, and thus there is no basis to make him pay more because of an Isur d'Rabanan which is unrelated to payment. It is because of this reasoning that Rashi understands that there is an additional factor involved -- that the Kidushin with Bi'ah was not only an Isur d'Rabanan but was also done without the full consent of the woman (she was persuaded by him because he refused to betroth her with money). In this sense, his act resembles thievery: the difference between one who stole from one of five people ("Gazal") and one who bought an item from one of five people ("Lakach") is that in one case he takes the object without the consent of the owner ("Gazal"), and in the other case he takes the object with the consent of the owner ("Lakach"). Similarly, Kidushin with money is done with the woman's full consent, while Kidushin with Bi'ah is done with reluctance on the part of the woman and without her full consent. Rebbi Akiva maintains that the man is penalized only when he performs Kidushin with Bi'ah (according to Rebbi Shimon ben Elazar), because his act is similar to theft in that it is done without the woman's consent.
According to this explanation, why does the Gemara itself say that the penalty for Kidushei Bi'ah is due to the fact that the man transgressed an Isur d'Rabanan? Even if there would be no Isur d'Rabanan, he still should be penalized because he shamed her and the Kidushei Bi'ah was not done with her full consent!
The answer is that, indeed, even without an Isur d'Rabanan there still would be a penalty and the man would have to give a Kesuvah to each of the women. The point of the Gemara is to teach that although one transgresses an Isur d'Oraisa in the case of theft but not in the case of Kidushin with Bi'ah, nevertheless Rebbi Akiva maintains that the man is penalized in the latter case as well. The Gemara mentions that there is an Isur d'Rabanan involved only because that is the truth. That is, when it contrasts Kidushei Bi'ah with Gezel, it cannot say that one is "permitted" to betroth a woman with Bi'ah, because it certainly is prohibited, mid'Rabanan, due to licentiousness.