QUESTION: The Mishnah (29a) states that a man who rapes his sister or his father's sister must pay a fine (Kenas). The Gemara (31b) questions this ruling from the Mishnah in Makos (13a) which states that one who has relations with his sister or his father's sister is punished with Malkus. The principle of "Kam Lei bid'Rabah Minei" teaches that when one becomes liable for two punishments (such as Malkus and a monetary payment) at one time, he receives only the "larger," more severe punishment (in this case, Malkus). Why, then, does the Mishnah here state that he must pay a fine?

Ula answers that the Mishnah here refers to a sister who is a Na'arah, for whom the Torah obligates the rapist to pay a fine. The Mishnah in Makos refers to a sister who is a Bogeres (above the age of twelve and a half), for whom no fine is levied. RASHI (DH Masnisin) explains that Ula understands that for raping a Na'arah, a man must pay a fine but is not punished with Malkus. For raping a Bogeres, a man is punished with Malkus and pays no fine.

The Gemara asks what Ula's source is to say that a person who does an act which makes him liable for Malkus and for a monetary obligation is exempt from Malkus but is obligated to pay. The Gemara answers that Ula derives this law from "Chovel b'Chaveiro." When a man causes injury to his friend, although he should be obligated to pay for damages (Shemos 21:19) and receive Malkus (Devarim 25:3), nevertheless the Torah only requires him to pay and does not punish him with Malkus.

The Gemara challenges Ula's source and says that the obligation to pay in the case of "Chovel b'Chaveiro" is more severe than Malkus. Since the perpetrator must pay five different payments -- Nezek (damage), Tza'ar (pain), Ripuy (healing), Sheves (unemployment), and Boshes (embarrassment) -- the obligation of payment is considered a punishment more severe than Malkus. How, then, can Ula derive from the case of "Chovel b'Chaveiro" to the case of rape that the rapist should be required only to pay? In the case of rape, Malkus is the more severe punishment! The Gemara adds that even if the obligation to pay is a more lenient form of punishment than Malkus (even in the case of "Chovel b'Chaveiro"), the case of "Chovel b'Chaveiro" still differs from the case of rape. The case of "Chovel b'Chaveiro" is lenient because the act of striking a person is permitted in a certain situation; the Torah allows (and commands) Beis Din to strike a person who deserves Malkus. In contrast, rape is never sanctioned. Therefore, it is possible that rape is more strict than "Chovel b'Chaveiro," and thus when one is liable for both Malkus and to pay a fine, he should be punished with Malkus and be exempt from the fine.

Why does the Gemara mention only one case (Beis Din which administers Malkus) in which the prohibition of "Chovel b'Chaveiro" is waived? There are a number of other situations in which the Torah allows one person to strike another. The Gemara in Makos (8a) states that it is a Mitzvah for a father to strike his son, and for a teacher to strike his student, for the sake of educating him. Similarly, although the Torah prohibits injuring another person and causing his blood to spill, a doctor is permitted to "injure" a person and cause him to bleed in order to heal him, and a Mohel is permitted to "injure" a person and cause him to bleed when he performs the Mitzvah of Milah.

ANSWER: The KOVETZ SHI'URIM (#92) answers that the other examples are not included in the prohibition of "Chovel b'Chaveiro" at all, because those acts are done for the benefit and improvement of the person. In contrast, corporal punishment administered by Beis Din is intended to punish a wrongdoer for his misdeeds; no visible benefit accrues from such a beating. (See KOVETZ HE'OROS, Yevamos 70:1, who writes that punishments administered by Beis Din punish the wrongdoer for his past deeds; they are not intended to be a corrective measure for the future.) Accordingly, punishment by Beis Din is considered "Chovel b'Chaveiro," but it is a form of "Chovel b'Chaveiro" which the Torah permits ("Hutar Michlalo").

RAV MOSHE FEINSTEIN zt'l (Igros Moshe CM 1:3) gives the same answer as the Kovetz Shi'urim. He cites additional proof from the RAMBAM (Hilchos Chovel u'Mazik 5:1) who writes that the prohibition of "Chovel b'Chaveiro" applies only when one hits in a manner of "Nitzayon," fighting. Rav Moshe Feinstein explains that when one hits another person in order to prevent him from sinning, his act is not one of "Nitzayon." Accordingly, Malkus administered by Beis Din as punishment for a sin one has already committed is included in the category of "Nitzayon." Conversely, all of the other cases mentioned above are not cases of "Chovel b'Chaveiro" because the injuries in those cases are not inflicted in a manner of "Nitzayon."

(The Igros Moshe gives this answer in the context of a lengthy explanation of the opinion of Ben Bag Bag in Bava Kama (27b). He writes that the Rabanan who argue with Ben Bag Bag may maintain that other forms of Chavalah are considered "Hutar Michlalo," and, if so, they would have to say that the Gemara here just gives one possible example out of numerous possible examples for "Hutar Michlalo.") (D.Bloom)

QUESTION: Ula (32a) maintains that one who is liable for both Malkus and a monetary obligation for the same transgression pays the money and does not receive Malkus. The Gemara concludes that Ula's source for this law is a Gezeirah Shavah of "Tachas Tachas." The verse states that the rapist must pay a fine of fifty Shekels "Tachas Asher Inisah" -- "in exchange for having afflicted her" (Devarim 22:29). When the Torah discusses the monetary payments for causing injury, the verse states that one must pay "Ayin Tachas Ayin" -- "an eye in exchange for an eye" (Shemos 21:24). This means that the attacker must provide his victim with monetary compensation for the loss of the eye. The Gezeirah Shavah teaches that just as the attacker pays money in the case of the loss of an eye and he is not punished with Malkus, so, too, a rapist pays a fine and is not punished with Malkus.

The Gemara's conclusion here apparently contradicts an earlier Gemara (29b). The Gemara there quotes Reish Lakish and Rav Papa who cite various verses from which they derive that a man who rapes a Na'arah who is forbidden to him either by a Lo Ta'aseh or by Kares must pay the fine to her father. Why is a separate verse necessary to teach that he must pay a fine in the case of a Lo Ta'aseh? This requirement may be derived from Ula's Gezeirah Shavah! Since a person who injures his fellow man transgresses a Lo Ta'aseh and yet he still must pay compensation and does not receive Malkus, the Gezeirah Shavah of "Tachas Tachas" should extend this law to a case of rape. Accordingly, when a man rapes a Na'arah who is prohibited to him by a Lo Ta'aseh, he should pay a fine and not receive Malkus because of the Gezeirah Shavah of "Tachas Tachas." Why do Reish Lakish and Rav Papa derive this Halachah from different sources and not from the Gezeirah Shavah?

(a) The CHOCHMAS SHLOMO answers that if the Halachah that the rapist pays a fine and does not receive Malkus would be derived only from the Gezeirah Shavah, it would apply only to a case of one who rapes a Na'arah who is a Nidah, whom he is permitted to marry after she becomes Tahor. There would be no source that he must pay a fine when he rapes a Na'arah whom he is not permitted to marry; we would have ruled in such a case that he is exempt from a fine and receives Malkus. The verses expounded earlier (29b) are necessary to teach that even when the Na'arah is forbidden to him, he still must pay a fine.

The MAHARSHA challenges this answer. The principle of "Ein Gezeirah Shavah l'Mechetzah" teaches that a Gezeirah Shavah must compare the two respective categories of Halachah to each other for all laws, and not merely for some. Accordingly, it is illogical to suggest that the Gezeirah Shavah of "Tachas Tachas" applies only to a Na'arah who is permitted to him and not to a woman who is forbidden to him.

REBBI AKIVA EIGER defends the answer of the Chochmas Shlomo. He explains that the application of the principle of "Ein Gezeirah Shavah l'Mechetzah" to this Gezeirah Shavah would teach that when there is an obligation to pay, one does not receive Malkus, only in the case of a Nidah. The verse states, "And she will be to him for a wife" (Devarim 22:29), and implies that if she is forbidden to him, he has no monetary obligation. The extra verses cited by Reish Lakish and Rav Papa are necessary to teach that there indeed is a fine for raping a Na'arah who is forbidden by a Lo Ta'aseh.

(b) The MAHARSHA answers that according to Ula there indeed is no need for the Derashos of Reish Lakish and Rav Papa (29b). Those teachings are necessary only according to the opinion of Rebbi Yochanan, who disagrees with Ula in the Gemara here. It is evident that not everyone agrees with those Derashos, as Shimon ha'Timni and Rebbi Shimon ben Menasya (29b) clearly do not understand those verses in the way that Reish Lakish and Rav Papa explain them.

(Rebbi Akiva Eiger notes that this answer seems to contradict the words of TOSFOS (35b, DH Masnisin), who implies that Rav Papa may agree with Ula. See the MAHARAM SHIF for an alternative answer.) (D. Bloom)