LIABILITY FOR SHIFCHAH CHARUFAH WHEN ONE OF THEM IS A MINOR [Shifchah Charufah :minors]
10b (Mishnah): Shifchah Charufah is unlike all other Arayos regarding punishment and Korban:
Regarding all other Arayos, lashes and Korban apply equally to the man and woman. Here, she is lashed (if Mezid), but not he. He brings a Korban, but not she.
11a - Question: What is the source that she is lashed but not him?
Answer (Beraisa): "Bikores Tihyeh" teaches that she is lashed;
Suggestion: Perhaps both are lashed!
Rejection: "Tihyeh" (feminine) teaches that only she is lashed.
(Beraisa): He brings a Korban when she is lashed, but not when she is not lashed.
Question: What is the source of this?
Answer (Rava) Question: "V'Ish Ki Yishkav... Bikores Tihyeh... (v'Hevi Es Ashamo...)" - the verse initially discusses the man, why does it mention her lashes ("Bikores Tihyeh") before his Korban?
Answer: This teaches that he brings a Korban only when she is lashed.
Suggestion: He is exempt from lashes ("Bikores Tihyeh"), but she should be lashed and bring a Korban!
Rejection: "V'Hevi Es Ashamo" excludes her from a Korban.
(Mishnah): Regarding all other Arayos, if one party was an adult and the other a minor, the minor is exempt.
Question: May we infer that here, a minor is liable?!
Answer (Rav Yehudah): Regarding all other Arayos, the adult is liable and the minor is exempt. Regarding Shifchah, also the adult is exempt.
This is because the Torah equates them.
Sanhedrin 69a (Beraisa) Suggestion: Perhaps "Ish (who will have Bi'ah with a Shifchah Charufah (a semi-married slave) in a way proper to eject semen)" applies only to an adult. What is the source to include a nine year-old boy, who can have Bi'ah?
Answer: We learn from "v'Ish."
Toras Kohanim (Kedoshim Parshesa 2 Perek 5, 1): "Ish" excludes a minor.
Suggestion: Perhaps "Ish" excludes even a boy above nine years old!
Rejection: It says "v'Ish".
Halachah 2: "Ishah" excludes a minor (Shifchah).
Halachah 8: Regarding all Arayos, the Torah did equate a minor to an adult. Here, a minor Shifchah is like an adult. (Text of R. Shimshon, the Ra'avad and Gra - regarding all Arayos, the Torah equated a minor to an adult. Here, a minor Shifchah is unlike an adult.)
Rambam (Hilchos Isurei Bi'ah 3:17): If a boy above nine years had Bi'ah with a Shifchah Charufah, he brings a Korban and she is lashed. This is only if she was an adult, a non-virgin and willing, for he is not Chayav Korban unless she is lashed - "Bikores Tihyeh... v'Hevi Es Ashamo."
Rebuttal (Ra'avad): A minor is never punished. Korban is a punishment. Also she is exempt, for he and she are equated.
Defense #1 (Migdal Oz): Surely, there is a scribal error. The Ra'avad would never say 'Korban is a punishment', for the Mishnah says 'Shifchah is unlike all other Arayos regarding Onesh (punishment) and Korban!' We have a tradition that Onesh refers to lashes, Kares and Misas Beis Din. The Torah equates women to men for all punishments, i.e. Lavim for which one is punished. Korbanos are a Mitzvas Aseh. She is exempt, for it is Zman Grama. After the Mishnah gave the Kelal, it detailed 'regarding all other Arayos, lashes and Korban apply equally to the man and woman. Here, she is lashed, but not he. He brings a Korban, but not she.' This shows that 'Onesh' refers to lashes. The next Mishnah taught that regarding all other Arayos, if one party was an adult and the other a minor, the minor is exempt. The Gemara asked, 'may we infer that here a minor is liable?' It asked about lashes, for we expounded that when she is exempt, he is exempt. Rav Yehudah answered that regarding Shifchah, also the adult is exempt. Regarding Korban, the inference 'here, a minor is liable' is true.
Defense #2 (Magid Mishneh): The Rambam holds that it depends only on her. The Gemara says 'he brings a Korban when she is lashed. He does not bring a Korban when she is not lashed.' It does not say 'when he does not bring a Korban she is not lashed.' Also the verse connotes that when "Bikores Tihyeh", then "v'Hevi Es Ashamo", but if we do not apply "Bikores Tihyeh", we do not apply "v'Hevi Es Ashamo." There is no source that when we do not apply "v'Hevi Es Ashamo", we do not apply "Bikores Tihyeh." The Rambam (Hilchos Shegagos 9:3) says that he does not bring the Korban until he matures.
Ra'avad (on Toras Kohanim Halachah 8): Regarding all Arayos, a minor is like an adult. Whoever is proper (old enough) to be punished, he (or she) is punished even for Bi'ah with a minor, as long as the boy is above nine or the girl is above three. Regarding Shifchah, a girl is not like an adult. If she is not punctured, also he is not punished. The Torah made his punishment dependent on hers. However, she is punished due to a boy above nine, like we expounded above (from "v'Ish").
Question: The Gemara inferred from the Mishnah that regarding Shifchah Charufah, if one party was an adult and the other a minor, the minor is liable, and questioned this. Rav Yehudah answered that rather, we infer that regarding Shifchah, also the adult is exempt. According to the Rambam, we should have said that indeed, regarding Shifchah Charufah a minor is liable, like the simple understanding!
Answer #1 (Ma'ase Roke'ach): Perhaps the answer given was better (to teach that even an adult is exempt), because Ko'ach d'Hetera Adif (it is better to teach the greatest leniency).
Answer #2 (Lechem Mishneh, Hilchos Shegagos 9:3): The Gemara asked similarly about the clause that says 'normally, if one is awake and one is asleep, the latter is exempt.' The only way to explain this is that when she was asleep, even he is exempt. Therefore, we answered similarly regarding 'the minor is exempt.'
Ma'ase Roke'ach: The Beraisa in Toras Kohanim supports the Rambam. Since we include a boy above nine, what does Ish exclude? Surely it need not exclude a boy below nine. His Bi'ah is not Bi'ah at all! According to the Rambam, "Ish" teaches that a nine year-old does not bring the Korban until he matures.
Rambam (Hilchos Shegagos 9:3): If a boy above nine had Bi'ah with a Shifchah Charufah, she is lashed and he brings a Korban. It seems that he brings it only after he is mature and has Da'as (understanding).
Rebuttal (Ra'avad): We learned regarding Shifchah that even an adult is exempt (for Bi'ah with a minor Shifchah Charufah), and all the more so a minor is exempt. Even if you will say that the man depends on the woman, but she does not depend on him, there is no source to obligate a minor due to the woman.
Kesef Mishneh: The Rambam holds that since she is lashed, he is liable, just he does not bring the Korban until he matures.
Tosfos (Kerisus 11a DH d'Ha): The Gemara says that the man and woman are equated to each other. This is not precise. He is equated to her, but she is not equated to him. He is liable like her (i.e. only when she is liable), but the Parshah applies (to obligate her) even when he is a minor. This shows that she is not equated to him.
Lechem Mishneh: The Rambam holds like Tosfos. He obligates a minor boy due to Toras Kohanim.
Ramah (69a DH Eisivei): R. Yitzchak ha'Levi rejected our text, for in Kerisus it says that regarding Shifchah Charufah, also an adult who had Bi'ah with a minor is exempt, for the Torah equates them. Rather, the text discusses when semen of a boy is Tamei.
Me'iri (69a DH ha'Ba): She is lashed and he brings a Korban only if she was an adult and Mezid. If she was a minor, even if she is old enough for Bi'ah and he is an adult, he is exempt. We learned that when she is lashed, he brings a Korban. When she is not lashed, he is exempt from a Korban. If he was a minor above nine years, the Rambam says that she is lashed and he brings a Korban when he matures. Some disagree, for a minor is not liable at all, but in any case she is lashed. Her Chiyuv is not dependent on his Chiyuv, even though his Chiyuv depends on her Chiyuv. Toras Kohanim supports this. A third opinion says that also her Chiyuv depends on his, so also she is exempt. The middle opinion is primary. The Gemara asked for the source to obligate her even when he is a minor above nine.