KESUVOS 45 - Dedicated by Dr. Yehoshua Daniel of Efrat, Israel, to honor the memory of his mother z"l, Musha bas Chaim Ze'ev Ha'levi.
1) CHANGING A PERSON'S PUNISHMENT DUE TO A CHANGE IN THE PERSON
QUESTION: Shila states that there are three different stages in the culpability of a Na'arah who was Mezanah: 1. If witnesses come after the wedding (Nisu'in) and testify that the Na'arah was Mezanah before the wedding (during Erusin), she is punished with Sekilah at the gate of her father's house. 2. If witnesses testify before the wedding, while she still is an Arusah, she is punished with Sekilah at the gate of the city. 3. If, after she was Mezaneh, she became a Bogeres, she is punished with Chenek and not with Sekilah. The reason for this is that had she sinned now as a Bogeres she would have been punished with Chenek, and therefore she is punished with Chenek now even though she sinned when she was a Na'arah.
The Gemara questions this from a Beraisa which says that if a husband is Motzi Shem Ra about his wife and says that she was Mezanah when she was a Na'arah Me'urasah, her punishment does not change even though she is now a Bogeres, and she still is punished with Sekilah.
Rava answers that the second Beraisa discusses a case of Motzi Shem Ra in which the husband accuses his wife of being unfaithful brings testimony to court to that effect. In such a case the Torah teaches the novel law that she is punished with Sekilah even though now she is married (and a married woman who is Mezanah normally is punished with Chenek and not Sekilah). Just as she can be liable for Sekilah even if she marries after her sin, she can be liable for Sekilah even if she becomes a Bogeres after her sin. The Beraisa of Shila, however, refers to a woman who was not accused by her husband of being unfaithful, but witnesses testified in court on their own accord to her guilt. In that case the Torah does not teach the novel law that she retains the original punishment even after her situation changes. In such a case, if she becomes either married or a Bogeres, her punishment will change. This seems to be the intent of Rava.
How can Rava suggest that in Shila's case the girl's punishment will change according to her status at the time of the testimony? Shila says (in the first of his three cases) that when witnesses testify after her marriage that she was unfaithful during Erusin, she retains the original punishment of Sekilah (when, normally, a woman after Nisu'in is punished with Chenek for such a sin)! If Shila is not discussing Motzi Shem Ra but an ordinary case of adultery, then the punishment should change according to the present status of the woman, according to Rava! (TOSFOS, DH Amar Rava)
(a) TOSFOS answers that the first case of Shila's three cases indeed involves testimony in a case of Motzi Shem Ra (where the husband brings the case to court). That is why the original punishment remains even though now she is married. Rava's statement that Shila is not discussing Motzi Shem Ra refers only to Shila's second and third cases -- the case of testimony during Erusin, and the case of testimony after she became a Bogeres. Those cases refer to a woman who was not accused of infidelity by her husband but was incriminated by witnesses who came on their own accord. In the second case, she obviously was not accused by her husband, because she is only an Arusah and the husband cannot know that she is a Be'ulah. The third case is a continuation of the second case.
(b) The RASHBAM (cited by Tosfos) and the RAMBAM (Hilchos Isurei Bi'ah 3:9) explain Rava's answer differently. Rava does not mean that Motzi Shem Ra is unusual because she retains the punishment of Sekilah even after her status changes from an Arusah to a Nesu'ah. There is nothing unusual about that at all. A Halachic status-change is not enough to effect a change of her punishment (from Sekilah to Chenek). The only change that could affect her punishment is a physical change, such as the transition from Na'arus to Bagrus. That is why Rava agrees that in Shila's first case, the woman would be punished with Sekilah even though the testimony came after she was married.
What, then, is the Chidush of Motzi Shem Ra according to this approach? In what way is Motzi Shem Ra an unusual case? The answer is that Motzi Shem Ra is punished with Sekilah even if she was unfaithful to her husband after the wedding (Nisu'in). Normally, a woman is punished with Chenek for being Mezanah after the Nisu'in. If, however, a woman was Mezanah after the Nisu'in before the first Be'ilah with her husband, then -- in the case of Motzi Shem Ra, where she is accused by her husband of being unfaithful and she is found guilty -- she is punished with Sekilah. Since Motzi Shem Ra is so unusual in this regard, Rava suggests that it should also be unusual with regard to a physical change effecting a change in the punishment: if she becomes a Bogeres after the Z'nus, her punishment will not change and she will be punished with Sekilah.
2) THE SIN OF "MOTZI SHEM RA"
QUESTION: The Gemara cites a Beraisa in which Rebbi Yehudah says that a man who falsely accuses his wife of being unfaithful during Erusin (Motzi Shem Ra) is punished with Malkus even if he is Motzi Shem Ra before his first Be'ilah with her. However, he is punished with the Kenas of 100 Shekel only when he is Motzi Shem Ra after the first Be'ilah. Rashi explains that Rebbi Yehudah follows the view of Rebbi Eliezer ben Yakov who says that the verse which describes the obligation to pay a Kenas refers to Hotza'as Shem Ra after the first Be'ilah. Why, then, is the man punished with Malkus for being Motzi Shem Ra before the Be'ilah?
Rashi explains that Rebbi Yehudah is consistent with his own view that "Lav she'Ein Bo Ma'aseh Lokin Alav" -- one is punished with Malkus even for committing a Lav that involves no action. The verse that teaches the Lav for Motzi Shem Ra is "Lo Selech Rachil" (Vayikra 19:16). It applies whether the Hotza'as Shem Ra was committed before or after the Be'ilah. Therefore, the Malkus does not depend upon the Be'ilah.
The Gemara later cites another Beraisa in which Rebbi Yehudah contradicts himself and says that one who is Motzi Shem Ra receives Malkus only if he is Motzi Shem Ra after the Be'ilah. Rav Nachman bar Yitzchak answers that the original assumption of the Gemara is incorrect. Rebbi Yehudah must hold that since the Torah discusses a man who is Motzi Shem Ra after Be'ilah, even Malkus is administered, mid'Oraisa, only for Motzi Shem Ra after Be'ilah. The Malkus which Rebbi Yehudah says that he receives for Motzi Shem Ra before the Be'ilah is only Malkus d'Rabanan.
According to Rav Nachman, why should Rebbi Yehudah exempt him from Malkus d'Oraisa for Motzi Shem Ra before the Be'ilah? Rashi is correct that Rebbi Yehudah maintains that one receives Malkus for a "Lav she'Ein Bo Ma'aseh," and thus he should receive Malkus for being Motzi Shem Ra (and transgressing "Lo Selech Rachil") even without doing a Ma'aseh of Be'ilah. What is Rav Nachman's logic?
ANSWER: The verse of "Lo Selech Rachil" prohibits not only being Motzi Shem Ra about one's wife, but any Lashon ha'Ra. According to Rebbi Yehudah, would every speaker of Lashon ha'Ra be punished with Malkus?
It seems that Rebbi Yehudah agrees that any other transgression of the sin of Lashon ha'Ra is not punishable with Malkus. When the Torah states that one receives Malkus only in a specific case of Rechilus ("v'Yisru"; Devarim 22:18), it teaches that under other circumstances one does not receive Malkus for transgressing "Lo Selech Rachil" (see Tosfos DH Rebbi Yehudah). Accordingly, it is clear that even when a man is Motzi Shem Ra about his wife who is a Bogeres, Rebbi Yehudah would not obligate him for Malkus because of the Lav of "Lo Selech Rachil" because the Torah limits the application of the punishment for the Lav to a specific case. The logic of Rav Nachman bar Yitzchak -- who says that if the man was Motzi Shem Ra before the Be'ilah the Torah excludes him from the punishment of Malkus -- can be explained in the same manner.
Now, however, the question on Rashi is reversed. Why does Rashi explain in his original explanation that Rebbi Yehudah maintains that one receives Malkus for "Lo Selech Rachil" even he is Motzi Shem Ra before Be'ilah? The verse discusses Motzi Shem Ra after Be'ilah and excludes every other case! It does not seem logical to suggest that Rashi understands that Rebbi Yehudah gives Malkus to every person who speaks Lashon ha'Ra.
The answer is that Rashi learns that the Torah excludes Malkus only in a case which is not as severe as the case described in the verse. If the woman is an Arusah as opposed to a Nesu'ah, or when she is a Na'arah as opposed to a Bogeres, there is more disgrace to her and to her father's family since she is still partially in her father's domain. Similarly, there is more disgrace if she was a Besulah and not a Be'ulah. If any of these conditions are missing (she is a Nesu'ah, or a Bogeres, or a Be'ulah), the verse teaches that the man who is Motzi Shem Ra about her will not get Malkus.
In contrast, whether the Hotza'as Shem Ra occurs before the Be'ilah or after the Be'ilah makes no difference in the degree of disgrace to the woman; it is the same disgrace to the woman regardless of when he is Motzi Shem Ra. The only difference between the two acts of Motzi Shem Ra is in the brazenness of the man: if, after the Be'ilah, he claims that he found her to be a Be'ulah when she really was a Besulah, he is acting more brazenly and there is more reason for him to pay the 100 Shekel penalty. The Malkus of "Lo Selech Rachil," however, is not a punishment for his brazenness but for causing disgrace to the woman. (That is, the sin of Rechilus is clearly a sin "Bein Adam la'Chaveiro.") Therefore, both actions can be classified as "Motzi Shem Ra" with regard to Malkus, and thus the verse does not exclude Motzi Shem Ra before the Be'ilah from Malkus.
Rav Nachman bar Yitzchak argues and says that Motzi Shem Ra before the Be'ilah is not called Motzi Shem Ra and is not the act which the Torah describes. Even though a man who is Motzi Shem Ra before the Be'ilah (as opposed to after the Be'ilah) apparently does not diminish the disgrace to the woman, the Torah limits Malkus to the specific case where one is also punished with a Kenas -- that is, where he is Motzi Shem Ra after the Be'ilah. (Perhaps we may suggest that Rav Nachman bar Yitzchak learns that Malkus is given also for his brazenness and not just for the Rechilus. The verse of "Lo Selech Rachil" does not give the reason for why Malkus is administered for Motzi Shem Ra, but rather it is merely teaches that there is a Lav (and Malkus) in the case of Motzi Shem Ra.) (M. KORNFELD)