12th CYCLE DEDICATION
KESUVOS 41 (30 Tishrei) - dedicated by Reb Mordechai Rabin (London/Yerushalayim) l'Iluy Nishmas his father, ha'Gaon Rav Gedalya Rabinowitz of Manchester, England (and in his later years, Bnei Brak, Israel). Hearing a Shiur of his was an unforgettable experience as his many Talmidim, both Bnei Yeshiva and Ba'alei Batim, can attest.

1)

ONE WHO ADMITS TO SEDUCING

(a)

(Mishnah): If a man says 'I seduced Ploni's daughter', he pays for embarrassment and blemish due to his own admission, but not the fine;

(b)

If one says 'I stole an animal' he pays the principal, but not double or (if he sold or slaughtered it) four or five times its value;

(c)

If one says that his ox gored Ploni, or Ploni's ox, he pays due to his admission;

(d)

If he says that it gored Ploni's slave, he does not pay due to his admission;

(e)

The rule is, anyone who pays more than he damaged does not pay due to his admission.

(f)

(Gemara) - Question: Why didn't the Mishnah teach about a man who admits to raping a girl?

(g)

Answer: The case of seducing teaches more:

1.

One who says that he raped her does not discredit her. One might have thought that when he says that he seduced her, and discredits her, he does not pay due to his admission (lest people believe him). The Mishnah teaches that this is not so.

(h)

Our Mishnah is unlike the following Tana:

1.

(Beraisa - R. Shimon bar Yehudah): A seducer does not pay embarrassment and blemish due to his own admission. We do not allow him to discredit the girl.

(i)

Question (Rav Papa): (According to R. Shimon) if she wants him to pay, what is the law?

(j)

Answer (Abaye): Perhaps the father disapproves (so he does not).

(k)

Question (Rav Papa): If the father approves, what is the law?

(l)

Answer (Abaye): Perhaps the family disapproves.

(m)

Question (Rav Papa): What if the family approves?

(n)

Answer (Abaye): Certainly, there is someone in the family overseas that would disapprove.

2)

IS HALF-DAMAGE FOR GORING A FINE?

(a)

(Rav Papa): Half damage is considered like Mamon (not a fine), since animals are prone to do damage unless guarded;

1.

One should pay full damage for failure to guard his animal. The Torah had mercy on him and makes him pay only half, since the animal was not yet established to gore.

(b)

(Rav Huna brei d'Rav Yehoshua): Half damage is considered a fine, since animals, even unguarded, are not prone to do damage;

1.

One should not pay at all. The Torah levies a fine of half-damage to encourage people to guard their animals.

(c)

(Mishnah (Bava Kama 14b)): Both the victim and the damager pay.

(d)

Question: We understand this according to the opinion that half-damage is Mamon (the victim should receive full payment, but gets only half);

1.

According to the opinion that half-damage is a fine, the victim receives what he does not deserve. Can we say that he pays?!

(e)

Answer: He suffers the decrease in the value of the carcass (after the damage).

(f)

Question: This was already taught in another Mishnah (9b)!

1.

(Beraisa): This Mishnah says 'TaSHLuMei (completions of) Nezek' to teach that the victim deals with the carcass (he sells it; payment for damage is based on the amount one must add to the carcass' value at the time of damage to reach the initial value. If the carcass later goes down in value, the victim suffers the loss.)

(g)

Answer: One Mishnah teaches that this applies to a Tam (an animal that has no Chazakah to gore). The other Mishnah teaches that this applies to a Mu'ad. Both must be taught:

1.

Had it taught only regarding a Tam, we would say that the Torah was lenient on the damager because his animal was not established to gore;

2.

Had it taught only regarding a Mu'ad, we would say that the Torah was lenient on the damager because he pays full damage.

(h)

(Beraisa): The differences between a Tam and Mu'ad are that a Tam pays half-damage from the damaging animal, and a Mu'ad pays full damage, even above the value of the damager.

1.

It does not say that a Mu'ad pays based on the owner's admission, but a Tam does not (i.e. even a Tam pays, for half-damage is Mamon)!

(i)

Rejection: A Tam does not pay. The Tana did not list all differences.

(j)

Question: What else did he omit (he would not omit just one thing)!

(k)

Answer: He also omitted Kofer (a Tam does not pay even half-ransom for killing a Yisrael).

1.

(Rav Huna can say that) this is not an omission. The Tana is R. Yosi ha'Glili, who says that a Tam pays half-ransom!

41b----------------------------------------41b

(l)

(Mishnah): If he says that his ox gored Ploni or Ploni's ox, he pays due to his own admission.

1.

Suggestion: The Mishnah discusses a Tam. (This shows that half-damage is Mamon!)

(m)

Rejection: No, it discusses a Mu'ad.

(n)

Question: If you hold that a Tam does not pay due to his admission, why does the Seifa say that if it gored a slave, he does not pay due to his admission? It should distinguish within the case of goring a Yisrael or an animal, and teach that a Tam does not pay due to his admission!

(o)

Answer: The Tana teaches only laws of a Mu'ad.

3)

HALF-DAMAGE IS A FINE

(a)

(Mishnah): The rule is, all who pay more than they damaged do not pay on their own admission.

(b)

Inference: One who pays less than he damaged does pay due to his admission!

(c)

Rejection: No, one who pays like he damaged pays due to his admission.

(d)

Question: If one who pays less than he damaged does not pay due to his own admission, it should say that one who does not pay like he damaged does not pay due to his own admission. This includes one who pays more and one who pays less!

(e)

This refutes the opinion that half-damage is a fine. The Halachah is, it is a fine.

(f)

Question: How can the Halachah follow an opinion that was refuted?

(g)

Answer: It was refuted because the Mishnah did not say 'One who does not pay like he damaged...' (but this is not a refutation);

1.

We could not teach this, for it is not always true! A tradition from Sinai teaches that half-damage of pebbles (if an animal set an object in motion, and the object damaged) is Mamon.

(h)

Since the Halachah is that half-damage is a fine, if a dog killed and ate sheep, or a cat ate large chickens, this is unusual (any unusual damage pays half, like goring), so we do not force one to pay for it in Bavel (we do not collect fines in Chutz la'Aretz).

1.

Cats normally eat small chickens, and in Bavel we make one pay for this.

(i)

If the victim seized compensation for the damage, we do not take it from him. If he wants to take the damager to trial in Eretz Yisrael, we force the damager to agree to a time.

1.

If the damager does not go, we excommunicate him.

(j)

In any case, we excommunicate him if he keeps the damaging animal around;

1.

(Beraisa - R. Nasan): A person should not raise an evil dog or stand up a rickety ladder in his house - "Do not put blood in your house".

PEREK NA'ARAH
4)

WHO RECEIVES THE PAYMENTS?

(a)

(Mishnah): If a Na'arah was seduced, the payments for her embarrassment and blemish and her fine go to her father. The same applies to the payment for pain if she was raped;

(b)

If the trial was before the father died, the payments belong to the father. If he died afterwards, his sons inherit them;

(c)

If the father died before the trial, she receives the payments;

(d)

If the trial was before she became a Bogeres, the payments belong to the father. If he died afterwards, his sons inherit them;

(e)

If she became a Bogeres before the trial, she receives the payments;

(f)

R. Shimon says, if she did not collect before the father died, she receives the payments.

(g)

(Her father receives) her earnings and Metzi'os (Hefker objects that she finds), even if she did not collect them yet. If her father dies, they belong to the brothers.

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