QUESTION: The Gemara (35b) cites a Beraisa which states that a man who rapes or seduces an Aylonis is exempt from paying the fine normally imposed for such an act. RASHI (DH Aylonis) explains that an Aylonis is a woman who never developed signs of physical maturity and cannot give birth. The Gemara here cites a second Beraisa which states that a man who rapes or seduces an Aylonis is obligated to pay the fine. The Beraisa states further that if a man marries an Aylonis and discovers that she is not a Besulah (virgin), he may exempt himself from the obligation to pay 200 Zuz for the Kesuvah of a Besulah and may only 100 Zuz, the amount of the Kesuvah of a Be'ulah.

In such a case, why may the man exempt himself from paying 200 Zuz for the Kesuvah on the grounds that his wife, an Aylonis, was not a Besulah? Rashi earlier (11b, DH Medami) states that such a claim applies only to a Na'arah, a girl under the age of twelve and a half years old. Such a claim may not be made against a Bogeres, a woman over the age of twelve and a half, because the man knows that a woman tends to lose her Besulim naturally when she reaches the age of Bogeres. The Beraisa cannot refer to a case in which the woman was married when she was a Na'arah or a Ketanah, because she does not have the status of an Aylonis until she reaches the age of twenty and has physical signs of an Aylonis (see Yevamos 80b). (If he married her without the knowledge that she was an Aylonis and later discovered that she was an Aylonis, the Kidushin itself is a "Mekach Ta'us" and is invalid.) Why, then, does the Beraisa say that a man may claim that his wife, an Aylonis, was not a Besulah, and exempt himself from paying 200 Zuz for her Kesuvah?

(a) The SHITAH MEKUBETZES (DH ha'Suma) cites the SHITAH YESHANAH who suggests that the Gemara refers to a case in which the woman was married when she was almost twenty years old, and her husband found that she was not a Besulah. Shortly afterwards, when she reached the age of twenty, she still had no signs of physical maturity (two pubic hairs), and thus her status as an Aylonis was established. In such a case her husband has a valid claim and he is not required to give her a Kesuvah of 200 Zuz.

Had he found that she was a Besulah when he married her, she would have received a Kesuvah of 200 Zuz. Since her husband knew that she was almost twenty years old and she still had no signs of physical maturity, he clearly was aware of, and accepted, the likelihood that she was an Aylonis, and thus the Kidushin was not a "Mekach Ta'us."

(b) The RASHBA explains that the Beraisa refers to a case in which the husband explicitly agrees at the time of the marriage that even if later it is discovered that the woman is an Aylonis he still consents to the marriage. At the time of the marriage, she was a Na'arah (from twelve years and one day to twelve and a half years old), and he did not find that she was a Besulah. Later, when she reached the age of twenty, it became clear that she was an Aylonis. Accordingly, the Beraisa refers to a man who makes a claim against his wife when she has already been determined to be an Aylonis, but the marriage was consummated at a time when she was expected to be a Besulah and entitled to a Kesuvah of 200 Zuz. (D. Bloom)

QUESTION: The Mishnah lists the cases in which a man does not pay a fine for raping or seducing a woman. Included in the list is a father who rapes or seduces his daughter. He is exempt from the fine because he is put to death by Beis Din for having relations with his daughter. One who is punished with death is exempt from a fine because of the principle, "Kam Lei bid'Rabah Minei."

Why does the Mishnah need the principle of "Kam Lei bid'Rabah Minei" to exempt the father from the fine? He is exempt because, as the father of the girl who was seduced, he is the recipient of the money of the fine. There is no point in making him pay money to himself, and thus he is exempt.

(a) TOSFOS (29a, DH v'Al Eshes Achiv) cites the Yerushalmi which states that the Mishnah refers to a case in which the father died soon after he raped or seduced his daughter. The Mishnah later (41b) explicitly states that when the father dies before the rapist is brought to Beis Din, the girl herself receives the money. Therefore, if not for the principle of "Kam Lei bid'Rabah Minei," the daughter would have collected the Kenas from her father's estate.

(b) TOSFOS also suggests that the Mishnah refers to a case in which the rape or seduction occurred when the girl was a Na'arah (before the age of twelve and a half), but the case was brought to Beis Din only after she became a Bogeres (after the age of twelve and a half)). In an ordinary case, the victim herself receives the Kenas when the rapist or seducer is brought to court only after she becomes a Bogeres (see 41b). Accordingly, "Kam Lei bid'Rabah Minei" is the only reason why she does not receive the Kenas when the perpetrator was her father.

(c) TOSFOS in Sanhedrin (73b, DH b'Mefutah) answers that the Mishnah refers to a case in which the girl's father had accepted Kidushin from a man on her behalf before he seduced her, and thus she has the status of an Arusah who is no longer in the domain of her father. The man who betrothed her then divorced her (without consummating the marriage with Nisu'in). According to Rebbi Akiva (38a), if the girl is then raped or seduced she is entitled to keep the Kenas herself. Hence, if her father seduces her, he would have to pay her if not for the principle of "Kam Lei bid'Rabah Minei." (See Tosfos there at length. See also CHAZON ISH (Sanhedrin 19:7) who discusses whether these answers apply to both a case of rape and a case of seduction.)

The RASHBA prefers this answer over the first two. The first answer, that the father died before the case was brought to Beis Din, is not logical because there was no reason in the first place for the case to be brought to Beis Din had the father been alive. Would Beis Din have declared that he should pay the money to himself? (The Rashba suggests a defense for the Yerushalmi's answer and explains as follows: Despite the fact that Beis Din would have exempted the father from payment had he appeared before Beis Din, if the father does not go to Beis Din the obligation to pay the Kenas is not entirely eliminated, but remains dormant in a state of suspension. If circumstances change -- for example, the father dies before he goes to Beis Din, or the girl becomes a Bogeres -- the dormant obligation takes effect such that she becomes the recipient of the Kenas.) (D. Bloom, Y. Montrose)