1)

ONE DOES NOT PAY AND SUFFER LASHES [Kam Lei bid'Rabah Minei:lashes]

(a)

Gemara

1.

31b (Mishnah #1): One who raped or seduced his sister (pays a fine).

2.

Contradiction (Mishnah #2): The following are lashed: one who has Bi'ah with his sister, his father's sister, his mother's sister, Achos Ishto, the wife of his brother, the wife of his father's brother, or a Nidah.

i.

We hold that one does not pay and get lashed for one sin!

3.

Answer #1 (Ula): In Mishnah #1 his sister is a Na'arah, so he pays. In Mishnah #2 she is a Bogeres (there is no fine for her), so he is lashed.

4.

The Mishnah discusses one who seduced, therefore he does not pay for pain. The girl was a lunatic, therefore he does not pay for embarrassment or blemish.

5.

Answer #2: Mishnah #2 discusses even a Na'arah, i.e. an orphan who was seduced. Payment should be to her, and she pardoned it!

6.

Question: This shows that Ula holds that if one is liable to pay and be lashed for one act, he pays and is not lashed. What is his source?

7.

Answer: Ula learns from a Gezeirah Shavah. It says "Tachas" regarding one who strikes someone, and also regarding a rapist. Just like the former pays money and is not lashed, so too all other cases.

8.

Answer #3 (R. Yochanan): One is lashed even for a Na'arah if he was warned. If there was no warning, he pays.

9.

Question: R. Yochanan holds that if one is liable to pay and be lashed for one act, he is lashed and does not pay. What is his source?

10.

Answer: "Kedei Rish'aso" - he is punished for one evil, not for two. Adjacent to this it says "he will lash him 40 times."

11.

Question: If one wounds a person, he pays and is not lashed!

12.

Answer: It says "Like he did, will be done to him". "So he will give" is extra to teach that it refers to something that is given, i.e. money.

13.

Question (Mishnah - R. Meir): If witnesses testified that Ploni owes 200 Zuz and they were found to be Zomemim, they are lashed and pay, since these punishments come from different verses;

i.

Chachamim say, since they pay they are not lashed.

ii.

Why don't we say they are lashed and do not pay?

14.

Answer (R. Ila'a): The Torah explicitly said that Edim Zomemim pay. "You will do to him like he plotted to do to his brother. Yad b'Yad..." refers to something that given from hand to hand, i.e. money.

15.

(R. Elazar): Edim Zomemim pay money and are not lashed because they cannot be warned.

16.

Support (Abaye): Since they tried to kill someone without warning, it is improper to say that they cannot be killed without warning! This would not fulfill "Like he plotted to do to his brother"!

17.

Answer #4 (Reish Lakish): Tana #1 is R. Meir, who says that a person can be lashed and pay for one act.

18.

Bava Kama 70a (Mishnah): If one stole and slaughtered on Yom Kipur (he pays four or five).

19.

Question: Why does he pay? One does not get lashes and pay!

20.

Answer: The Mishnah is like R. Meir, who says that one is lashed and pays.

21.

(Beraisa): If Reuven muzzled Shimon's cow (which he was renting or borrowing) and threshed with it, he is lashed and pays four Kavim (the estimated amount it would have eaten). For muzzling a donkey, he is lashed and pays three Kavim.

22.

Question: The rule is, one does not pay and get lashed for one transgression!

23.

Answer #1 (Abaye): The Beraisa is R. Meir, who says that one is lashed and pays.

24.

Answer #2 (Rava): The Torah disqualifies a harlot's hire from being a Korban, even if a man hired his mother. (Even though Beis Din does not force one to pay if he will be lashed or killed, he truly owes.)

25.

Answer #3 (Rav Papa): From the time of Meshichah (to begin the rental or loan), he is obligated to feed it. Liability to be lashed begins when he threshes. (Since the obligations come at different times, he pays and is lashed.)

(b)

Rishonim

1.

Rif and Rosh (Bava Kama 28a and 7:6): If one stole and slaughtered on Yom Kipur, why does he pay? We hold that one does not get lashes and pay! R. Yochanan explained, this is when the thief made a Shali'ach to slaughter for him.

i.

Ba'al ha'Ma'or (Avodah Zarah 32a): There is an omission in the Rif. The Gemara established the Mishnah like R. Meir, and R. Yochanan said that in the Beraisa he made a Shali'ach.

ii.

Rebuttal (Milchamos Hash-m): No, the Rif intentionally cites excerpts from the Gemara to teach the Halachah. The Halachah does not follow R. Meir. From R. Yochanan we learn when Chachamim agree with the law of our Mishnah (one pays for Shechitah on Yom Kipur). The Diyuk is not true; one is liable for slaughter through a Shali'ach even on Shabbos.

2.

Rif and Rosh (Bava Metzi'a 53a and 7:8): If Reuven muzzled Shimon's animal and threshed with it, he is lashed, and pays four Kavim for a cow or three Kavim for a donkey. One does not pay and get lashed for one transgression! Rav Papa concludes that he is obligated to feed it from the time of Meshichah. Liability to be lashed begins when he threshed.

i.

Nimukei Yosef (DH demi'Sha'as): "Kedei Rish'aso" exempts only when both liabilities come at the same time.

ii.

Hagahos Ashri: Every case of Kam Lei bid'Rabah Minei is exempt, but one must pay to be Yotzei Yedei Shomayim. If the victim seized the money, he need not return it.

3.

Rambam (Hilchos Geneivah 3:1): If one did an Aveirah for which he is Chayav lashes and money, he is lashed and does not pay, for one does not get lashed and pay. Therefore, if he was Shogeg or was not warned, he pays and is not lashed. This is when the liability for lashes and money came together. If they came one after the other, he is lashed and pays.

4.

Rambam (Hilchos Na'arah Me'orasah 1:11): If a man seduced or raped a woman who was forbidden to him by a Lav, if he was warned he is lashed but does not pay a fine, for one does not get lashed and pay. Therefore, if he was not warned, since he is not lashed he pays the fine.

i.

Magid Mishneh: The Halachah follows R. Yochanan, who say that one is lashed and does not pay.

5.

Rambam (Hilchos Sechiros 13:2): Anyone who prevents an animal from eating while working is lashed. If one rented an animal and muzzled it and threshed with it, he is lashed and pays to the owner four Kavim for a cow or three Kavim for a donkey. He is obligated to feed it from the time of Meshichah. Liability to be lashed begins when he threshed while it was muzzled.

(c)

Poskim

1.

Shulchan Aruch (338:4): If one rented an animal and muzzled it and threshed with it, he is lashed and pays to the owner four Kavim for a cow or three Kavim for a donkey.

2.

Rema: This is for each full day of threshing.

i.

SMA (9): If it threshed for a half or a third of a day, it pays the corresponding portion of this amount.

3.

Shulchan Aruch (ibid.): He is obligated to feed it from the time of Meshichah. Liability to be lashed begins when he threshed while it was muzzled.

i.

Shach (2): The Bach says that the Tur wrote that one is not lashed (for making it thresh when there is a thorn in its mouth) to teach that one pays. This is wrong. In any case one pays, for liability to feed it is from Meshichah. Also, nowadays even if the liabilities came together one must pay. Lashes exempt from money only when one is actually lashed.

See also:

OTHER D.A.F. RESOURCES
ON THIS DAF