QUESTION: The Gemara (29b) cites a Beraisa which explains the verse in Devarim (22:29), "And she will be to him for a wife," which refers to the rapist's obligation to marry his victim. Shimon ha'Timni derives from the word "Tiheyeh" ("she will be") that the rapist is obligated to pay the fine only to a victim with whom "Havayah" -- marriage -- would take effect, even if it would take effect only b'Di'eved. Rebbi Shimon ben Menasya limits the obligation further and derives from the word "Tiheyeh" that one is obligated to pay the fine only to a woman whom he is allowed to marry l'Chatchilah. The Gemara continues with a discussion of the practical difference between the view of Shimon ha'Timni and that of Rebbi Shimon ben Menasya. The Gemara first explains that the difference between them is a case of a man who rapes a Mamzeres or a Nesinah. According to Shimon ha'Timni, he must pay the fine in such a case because Kidushin with a Mamzeres or Nesinah is binding b'Di'eved, even though he is prohibited from marrying her l'Chatchilah. According to Rebbi Shimon ben Menasya, he pays no fine in such a case because he is prohibited from marrying her l'Chatchilah.

The Gemara asks that the case of a Mamzeres or Nesinah is not a practical difference according to Rebbi Akiva, who maintains that Kidushin does not take effect with a woman to whom one is prohibited with a Lo Ta'aseh. Rebbi Akiva would rule that a man who rapes a Mamzeres or Nesinah is exempt from the fine according to both Shimon ha'Timni and Rebbi Shimon ben Menasya, since Kidushin cannot take effect at all with such a woman. According to Rebbi Akiva, what is the difference between them?

The Gemara answers that the practical difference is in a case of a Kohen Gadol who marries a widow. Rebbi Akiva agrees that in such a case the Kidushin takes effect b'Di'eved.

This answer does not suffice according to Rebbi Yeshevav, who says that Rebbi Akiva maintains that the children of any forbidden marriage are Mamzerim (and Kidushin does not take effect). According to Rebbi Yeshevav's interpretation of Rebbi Akiva's opinion, what is the difference between Shimon ha'Timni and Rebbi Shimon ben Menasya?

The Gemara answers that the difference is in a case of a Chiyuv Aseh, such as a man who rapes a Mitzri or Edomi woman. In such a case, Kidushin takes effect b'Di'eved even though he is prohibited from marrying her.

However, the Gemara is unsure whether Rebbi Yeshevav maintains that Kidushin with a woman who is forbidden with a Chiyuv Aseh takes effect. Perhaps he maintains that it does not take effect, and the child born from a union between a man and a woman who is forbidden to him with a Chiyuv Aseh is a Mamzer. What, then, is the difference between Shimon ha'Timni and Rebbi Shimon ben Menasya?

The Gemara answers that the difference is in a case of a Kohen Gadol who rapes a Be'ulah. The Kohen Gadol is commanded to marry a Besulah (Vayikra 21:14). This Chiyuv Aseh forbids him from marrying a Be'ulah. Everyone agrees that when a Kohen Gadol transgresses and marries a Be'ulah, the offspring is not a Mamzer. According to Shimon ha'Timni, the Kohen Gadol is obligated to pay the fine to a Be'ulah he raped because the Kidushin with her would take effect b'Di'eved. According to Rebbi Shimon ben Menasya, the Kohen Gadol is not obligated to pay the fine because l'Chatchilah he is not permitted to marry her.

Why does the Chiyuv Aseh which forbids a Kohen Gadol from marrying a Be'ulah differ from any other Chiyuv Aseh which forbids a certain union? Why is the child of a union between a Kohen Gadol and a Be'ulah not considered a Mamzer, while the child of a union between a Jew and a Mitzri or Edomi woman is considered a Mamzer? Both unions are prohibited only as Chiyuvei Aseh.

The Gemara answers that the difference between the Chiyuv Aseh which forbids a Kohen Gadol from marrying a Be'ulah and all other Chiyuvei Aseh (which, according to Rebbi Akiva, do result in illegitimate offspring), is that the Mitzvah for a Kohen Gadol to marry a Besulah does not apply equally to all Jews ("Aseh she'Eino Shaveh ba'Kol"). This commandment applies only to a Kohen Gadol, while the commandment not to marry a Mitzri or Edomi woman applies to all Jews.

The Gemara clearly states that the child of a union prohibited by a Chiyuv Aseh which is not "Shaveh ba'Kol" is not a Mamzer, even according to Rebbi Yeshevav's understanding of Rebbi Akiva. Why, then, is the child of a union prohibited by a Lo Ta'aseh which is not "Shaveh ba'Kol" considered a Mamzer according to Rebbi Akiva (such as the child of a union between a Kohen Gadol and an Almanah (widow), or the child of a union between an ordinary Kohen and a Gerushah (divorcee)? What is the difference between a Chiyuv Aseh which is not "Shaveh ba'Kol" and a Lo Ta'aseh which is not "Shaveh ba'Kol"?

Moreover, there is strong reason not to differentiate between a Chiyuv Aseh and a Lo Ta'aseh in this regard. Rebbi Akiva's source that the offspring of a forbidden union is considered a Mamzer is the proximity of the verse, "A man shall not take the wife of his father" (Devarim 23:1), to the verse, "A Mamzer shall not come into the congregation of Hash-m" (Devarim 23:3). This proximity teaches that the offspring of any forbidden union -- and not specifically the one listed in verse 1 -- is considered a Mamzer. Rebbi Yeshevav derives from the extra letter "Vav" in "v'Lo" (23:1) that the offspring of a union forbidden by a positive commandment is also a Mamzer. Since the same source teaches that both the offspring of a union forbidden by a Chiyuv Aseh and the offspring of a union forbidden by a Lo Ta'aseh is a Mamzer, there should be no difference between the two categories of prohibited unions. Why, then, is a child born to a Kohen and divorcee (a Lo Ta'aseh) considered a Mamzer, while a child born to a Kohen Gadol and Be'ulah (a Chiyuv Aseh) is not?

ANSWER: REBBI AKIVA EIGER offers a novel explanation to answer this question. He suggests that although a positive commandment forbids the Kohen Gadol from marrying a Be'ulah, no positive commandment forbids a Be'ulah from marrying the Kohen Gadol. The Torah states, "v'Hu Ishah vi'Vesuleha Yikach" -- "And he shall take a wife in her virginity" (Vayikra 21:13), which implies that if the Kohen Gadol marries a Be'ulah, only he transgresses a positive commandment, and not the Be'ulah. In contrast, the Gemara later (84b) derives from the repetition of the words, "They shall not take [as wives]" (Vayikra 21:7), in the verse which prohibits a Kohen from marrying a Zonah, Chalalah, and Gerushah, that the Torah applies two prohibitions -- one on the Kohen and one on the woman -- against entering such a relationship. Accordingly, when the Gemara states that the child born to a Kohen Gadol and a Be'ulah is not a Mamzer because it is "Eino Shaveh ba'Kol," it refers to the fact that only the Kohen Gadol and not his wife is commanded to refrain from such a relationship. (Rebbi Akiva Eiger asserts, based on Tosfos to Yevamos 5a, DH v'Akati, that this is a more accurate description of "Eino Shaveh ba'Kol" than saying that it applies to Kohanim and not Yisraelim.) Accordingly, the verses expounded by Rebbi Yeshevav later (49a) do not prove that the child should be considered a Mamzer in both a case of a Lo Ta'aseh "she'Eino Shaveh ba'Kol" and a Chiyuv Aseh "she'Eino Shaveh ba'Kol.")

(The RASHASH challenges the answer of Rebbi Akiva Eiger. One question he asks is from the words of Tosfos in Chagigah (14b, DH Besulah) who states explicitly that a Be'ulah is commanded not to marry the Kohen Gadol. See Tosfos to Nedarim 90b (DH v'Chazru) in the name of Rabeinu Eliezer who states that a Zonah is not prohibited from marrying a Kohen, even though a Kohen is prohibited from marrying her.) (D. Bloom)

QUESTION: The Gemara (30a) cites Rebbi Nechunya ben Hakanah who equates the laws of Yom Kippur with the laws of Shabbos with regard to the punishment one receives for desecration of Shabbos and Yom Kippur. One who willfully performs a Melachah on Shabbos (for which he is punished with death) and simultaneously incurs a monetary obligation (for example, he lights a fire and destroys his neighbor's property on Shabbos; see Bava Kama 34b) is exempt from the monetary obligation. The principle of "Kam Lei bid'Rabah Minei" teaches that when a person becomes liable for two punishments (such as Misah and a monetary payment) at one time, he receives only the "larger," more severe punishment (in this case, Misah). Similarly, one who desecrates Yom Kippur and simultaneously incurs a monetary obligation is exempt from payment.

Abaye explains that Rebbi Nechunya derives this law from the appearance of the word "Ason" in the verse which requires a man to pay monetary compensation for harming (but not for killing) a pregnant woman and causing the loss of her fetus (Shemos 21:22), and the appearance of the same word in the verse which describes the concern of Yakov Avinu that harm might befall Binyamin if he is taken to Mitzrayim (Bereishis 42:4). Abaye explains that just as the verse in Shemos, which discusses an "Ason" (tragedy) carried out by man (i.e. death at the hands of Beis Din), exempts a man who kills a pregnant woman (for which he is punished with Misah) from a monetary obligation for the loss of the fetus, similarly an "Ason" carried out by Hash-m (i.e. the punishment of Kares for desecration of Yom Kippur) exempts one from a simultaneous monetary obligation.

Rava (30b) cites a different source for the law of Rebbi Nechunya. The verse states, "If the men of the land (the Sanhedrin) hide their eyes from that man (and fail to punish him appropriately)... I will cut him off (Kares)" (Vayikra 20:4-5). Rava infers from the verse that Kares is comparable to the death penalty administered by Beis Din. Just as one who is liable for death at the hands of Beis Din is exempt from any monetary obligation he incurred at the moment he became Chayav Misah, so, too, one who is Chayav Kares is not obligated to pay if he incurred a monetary obligation at the same time he became liable for Kares.

The Gemara mentions practical differences between the Abaye's source and Rava's source for the law of Rebbi Nechunya. However, the Gemara omits an apparently obvious difference. The Gemara later (37a) questions the statement of the Mishnah that the principle of "Kam Lei bid'Rabah Minei" is derived from the verse, "v'Lo Yiheyeh Ason..." (Shemos 21:22). The Gemara asks that the Mishnah should derive this principle from a different verse: "Kedei Rish'aso" -- "according to his wickedness" (Devarim 25:2), which teaches that a transgressor is punished for only one violation ("Rish'ah Achas") and not for two. The Gemara answers that both verses are necessary. One verse (Shemos 21:22) teaches that Beis Din does not execute a transgressor and obligate him to pay, while the other verse (Devarim 25:2) teaches that Beis Din does not administer lashes and obligate him to pay.

Accordingly, the Gemara here should say that the difference between Abaye and Rava is whether a person is punished with both Kares and Malkus for one transgression. Abaye's source addresses only Kares and payment; it does not teach that one who is Chayav Kares and Chayav Malkus is exempt from the less severe punishment. Rava's source, in contrast, equates Kares with Misah in a case in which one is liable for two punishments. Since the Gemara (37a) teaches that one does not receive both Misah and Malkus for one action, Rava's source should teach that one does not receive both Kares and Malkus for one action. Why does the Gemara not mention this case as a difference between Abaye and Rava? (HAFLA'AH)

(a) The HAFLA'AH answers that even Abaye would agree that one does not receive both Kares and Malkus for one action. Once the verse in Devarim (25:2) teaches that one does not receive both Misah and Malkus for one action, this law is also included in the Gezeirah Shavah of "Ason" (30a) which teaches that Kares is similar to Misah with regard to multiple punishments for one action (and, therefore, one is not punished with both Kares and Malkus). Although the verse "Ason" (Shemos 21:22) specifically exempts one who is liable for Misah and for a monetary obligation, it also exempts one in a case of Kares and Malkus due to the principle of "Ein Gezeirah Shavah l'Mechetzah." Therefore, both Abaye and Rava would agree that one is not punished with both Kares and Malkus. (See Hafla'ah for another answer.)

(b) The BEIS YAKOV (by the author of NESIVOS HA'MISHPAT) proposes the opposite logic of the Hafla'ah's answer. Everyone agrees that even when a person is liable for Kares, he also receives Malkus. The law that one does not receive both Misah and Malkus is derived from the verse, "Kedei Rish'aso" (Devarim 25:2). This verse addresses Beis Din. It warns Beis Din not to punish a transgressor twice (with Misah and Malkus) for one action. The verse implies that when one of the punishments is the type administered not by Beis Din but by Shamayim (i.e. Kares), the transgressor indeed receives the second punishment (Malkus). In such a case, Beis Din is in compliance with the verse, because Beis Din administers only one punishment (Malkus). Since the verse itself implies that Kares and Misah are not similar, even Rava would agree that no comparison can be made from Misah to Kares. (D. Bloom)