Kesuvos Chart #6
Chart for Kesuvos Daf 31b-35b
THE RESOLUTION OF THE CONTRADICTING MISHNAYOS IN
KESUVOS AND MAKOS, AND THE HALACHAH WHEN ONE
IS LIABLE FOR TWO PUNISHMENTS (MALKUS AND MAMON)
|1||THE SUBJECT OF THE MISHNAH IN KESUVOS
(that one must pay a Kenas for raping)
|(A normal case)||The perpetrator was not given Hasra'ah||The Mishnah is the view of Rebbi Meir, who holds that one both gets Malkus and must pay (1)|
|2||THE SUBJECT OF THE MISHNAH IN MAKOS
(that one receives Malkus for raping)
|A Yesomah who was a Mefutah (2)||(A normal case)||(A normal case)|
|3||A CHIYUV MALKUS AND A CHIYUV MAMON AT THE SAME TIME||One pays (and does not get Malkus) (3)||One does not pay (3) -- except in the cases of Chovel b'Chaveiro and Edim Zomemin||One does not pay -- except in the cases of Chovel b'Chaveiro and Edim Zomemin (4)|
AND A CHIYUV MAMON
|One pays||One pays||One does not pay (5) -- except in the cases of Chovel ba'Chaveiro and Edim Zomemim|
(1) Rebbi Meir holds that one can receive both punishments of Malkus and Mamon, but not both punishments of Misah and Mamon. This is true even when the payment is a Kenas (according to the way Reish Lakish understands Rebbi Meir's opinion). Therefore, one who rapes his daughter is exempt from the Kenas because of "Kam Lei b'd'Rabah Minei." (According to Rabah, Rebbi Meir holds that one can be punished with both Misah and Kenas, and our Mishnah is not expressing the view of Rebbi Meir - Daf 35b.)
(2) This is the Girsa of Rashi, who explains that since she is a Yesomah (an orphan) all of the payments go to her, but since she is a Mefutah (who willingly allowed herself to be seduced), she was Mochel it all. Others have the Girsa that the Mishnah is discussing a "Yesomah, Shotah, Mefutah." The Rishonim write in the name of Rabeinu Shmuel ha'Nagid that according to this Girsa, the Mishnah is discussing a case where she does have a father, and the Gemara calls her a Yesomah since she is a "Yesomah b'Chayei ha'Av" (with regard to payments of Kenas) since she was engaged and then divorced, and she receives no Kenas at all (like Rebbi Yosi ha'Gelili rules in the Mishnah on 38a). Since she is a Shotah, she does not suffer embarrassment or devaluation and does not receive any payments of Boshes or Pegam. Since she is a Mefutah, she does not suffer any Tza'ar.
(3) Ula learns that one pays, and does not get Malkus, from the Gezeirah Shavah of "Tachas" from the case of Chovel ba'Chaveiro. According to Rashi, Ula holds that in all cases one pays and does not get Malkus. According to Tosfos (32b, DH Ela Ula; see Maharshal and Maharsha on 35b on Tosfos DH Masnisin), though, it is possible that Ula holds that one pays and does not get Malkus in only three cases -- Chovel ba'Chaveiro, Edim Zomemim, and Kenas of Anusah (which is learned from Chovel through the Gezeirah Shavah).
(4) The Halachah of Chovel ba'Chaveiro is learned from the verse, "Ken Yinasen Bo" (Vayidra 24:20), and the Halachah of Edim Zomemim is derived from "Yad b'Yad" (Devarim 19:21) (32b). For all other Chiyuvei Malkus, one gets Malkus and does not pay; this is learned from the proximity of the verse describing Malkus to the verse that says that one receives only one punishment and not two (Devarim 25:2).
(5) In the case of Misah and Mamon, everyone agrees that one is exempt from Mamon even if the Isur of Misah was done b'Shogeg (and no punishment is actually administered), because of the teaching of Tana d'Vei Chizkiyah. Reish Lakish holds that the same applies to Malkus and Mamon, since there is a Gezeirah Shavah that compares Misah to Malkus (Daf 35a).