12th CYCLE DEDICATION
KESUVOS 33 (Shmini Atzeres) - l'Iluy Nishmas Chaim Noach ben ha'Chaver Reb Yehudah (Kruskal). Dedicated by his son and family.

1)

(a)Initially, we suggest that Rebbi Yochanan disagrees with Ula (who holds 'Mamona Meshalem, Milka Lo Laki'), because 'Im Ken, Bitalta "Ervas Achoscha Lo Segaleh". What is meant by that?

(b)How do we refute this suggestion (from Chovel ba'Chavero and from Eidim Zomemin)?

(c)On what condition then, do we fulfill the Lav of ...

1. ... "Lo Yosif ... Pen Yosif" (by Chovel ba'Chavero)?

2. ... "v'Hayah Im bin Hakos ha'Rasha" (by Edim Zomemin)?

3. ... "Ervas Achoscha Lo Segaleh" (by someone who rapes his sister)?

(d)A stroke that does not cause damage that is worth a Perutah (for which one will receive Malkus, even according to Ula) incorporates all five things that one normally has to pay. How is it possible for such a stroke not to cause shame to the value of a Perutah?

1)

(a)Initially, we suggest that Rebbi Yochanan disagrees with Ula, because 'Im Ken, Bitalta "Ervas Achoscha Lo Segaleh" ' - meaning that, by sentencing the rapist to pay Kenas, one negates the Lav, which is synonymous with Malkus.

(b)We refute this suggestion however - from Chovel ba'Chavero and from Edim Zomemin, who, even Rebbi Yochanan agrees, are obligated to pay, despite the fact that the Torah writes a Lav by both of them. So we see that it doesn't matter that in certain instances, the Lav is negated, as long as it can be fulfilled in others.

(c)We fulfill the Lav of ...

1. ... "Lo Yosif Pen Yosif" (by Chovel ba'Chavero) - if the wound is worth less than a Shaveh Perutah.

2. ... "v'Hayah Im bin Hakos ha'Rasha" (by Edim Zomemin) - by witnesses who testified that a Kohen was a ben Gerushah or ben Chalutzah (who cannot be sentenced to "Ka'asher Zamam", as the Gemara explains in Makos).

3. ... "Ervas Achoscha Lo Segaleh" (by someone who rapes his sister) - by a sister who is a Bogeres.

(d)A stroke that does not cause damage that is worth a Perutah incorporates all five things that one normally has to pay. It is possible for such a stroke not to cause shame to the value of a Perutah - if the wounded person is a Shoteh.

2)

(a)We conclude that Rebbi Yochanan disagrees with Ula, because he learns from Ula's Pasuk ("Tachas Asher Inah") like Abaye will learn after him (in connection with the fifty Shekalim of Kenas). What does Abaye learn from there?

(b)What does Ula learn from the Pasuk in Ki Setzei "v'Nasan ha'Ish ha'Shochev Imah la'Avi ha'Na'arah Chamishim Kesef"?

2)

(a)We conclude that Rebbi Yochanan disagrees with Ula, because he learns from Ula's Pasuk ("Tachas Asher Inah") like Abaye will later learn (in connection with the fifty Shekalim of Kenas). Abaye learns from there - that the fifty Shekalim covers the payment for the rape only, and that the shame and the depreciation must be assessed separately.

(b)Ula learns from the Pasuk "v'Nasan ha'Ish ha'Shochev Imah la'Avi ha'Na'arah Chamishim Kesef" - like Abaye learned from "Tachas Asher Inah" (that the shame and depreciation must be paid separately).

3)

(a)According to Rebbi Elazar, Edim Zomemin do not need a Pasuk ("Yad b'Yad") to teach us that they pay and do not receive Malkus, because it is a Sevara. What is the Sevara?

(b)Rava bears this out, because 'when would the warning have taken place?' Why could they not have been warned ...

1. ... an hour or two earlier?

2. ... just before they testified (like one usually does)?

3. ... just after they testified?

(c)Abaye asks on Rava that it would be possible to warn them immediately after they have testified. What would be the use of such a belated warning?

(d)Rav Acha Brei d'Rav Idi asks that one could even warn them an hour or two earlier. What would be the use of such an early warning?

3)

(a)According to Rebbi Elazar, Edim Zomemin do not need a Pasuk ("Yad b'Yad") to teach us that they pay and do not receive Malkus, because it is a Sevara - that it is simply not possible to warn them (as we shall now see) and without a warning, they cannot receive Malkus.

(b)Rava bears this out, because 'when would the warning have taken place?' They could not have warned them ...

1. ... an hour or two earlier - because by the time they actually testified, they could claim that they forgot the warning (rendering the warning useless).

2. ... just before they testified (like one usually warns) - because if one subjected them to so much pressure, no witnesses would want to come and testify (Alternatively, it seems, one could also explain that, seeing as Edim Zomemin have to be warned in front of Beis-Din [which is not the case with other cases of warning], they would be bound to decline rather than transgress in front of Beis-Din.

3. ... after they have testified - because having already concluded their testimony, they would not have been permitted to retract anyway).

(c)Abaye asks on Rava that one could warn them immediately after they testified - because as long as the warning takes place 'Toch Kedei Dibur', they are still able to retract.

(d)Rav Acha Brei d'Rav Idi asks that one could even warn them an hour or two earlier - and then continually remind them with signs until they actually testified.

4)

(a)Abaye then retracts from his Kashya on Rava, to refute Rebbi Elazar on the basis of his assumption that Eidim Zomemin do not require a warning at all. Why not?

4)

(a)Abaye then retracts from his Kashya on Rava, to refute Rebbi Elazar on the basis of his assumption that Edim Zomemin do require a warning at all - because, since they obviously did not warn the defendant (seeing as in fact, the event did not take place) "Ka'asher Zamam" demands that they should not require a warning either.

5)

(a)From where do we learn that Edim Zomemin who testify that a Kohen is the son of a Gerushah or a Chalutzah receives Malkus?

(b)Why do we not apply "Ka'asher Zamam"?

(c)How do we learn that they too, are punished without warning?

5)

(a)We learn that Edim Zomemin who testify that a Kohen is the son of a Gerushah or a Chalutzah receives Malkus - from "Lo Sa'aneh".

(b)We do not apply "Ka'asher Zamam" - because according to their testimony, the Kohen and his descendants were Chalalim, whereas this cannot be done to them, because the Torah writes "v'Asisem Lo" from which we Darshen "Lo", 'v'Lo l'Zar'o'.

(c)We learn that they too, are punished without warning - from the Pasuk "Mishpat Echad Yiheyeh Lachem" (Emor).

6)

(a)Rav Shisha Brei d'Rav Idi learns that Chovel ba'Chavero pays (rather than receives Malkus) from the Pasuk in Mishpatim "v'Chi Yinatzu Anashim, v'Nagfu Ishah Harah v'Yatz'u Yeladehah". What does Rebbi Elazar mean when he says 'be'Mitzvos she'be'Misah ha'Kasuv Medaber'?

(b)From where does he extrapolate this?

(c)But why should he receive the death penalty, when he did not intend to kill the woman?

(d)And how can the sinner be sentenced to Malkus, when he was only warned for Misah?

6)

(a)Rav Shisha Brei d'Rav Idi learns that Chovel ba'Chavero pays (rather than receives Malkus) from the Pasuk in Mishpatim "v'Chi Yinatzu Anashim, v'Nagfu Ishah Harah v'Yatzu Yeladehah". When Rebbi Elazar says 'b'Mitzvos she'be'Misah ha'Kasuv Medaber' - he means that the Torah is speaking about someone who actually meant to kill a man, but missed and struck the woman instead.

(b)He extrapolates this - from the Pasuk, which then writes "v'Im Ason Yiheyeh, v'Nasata Nefesh Tachas Nafesh" (that if he struck the woman and killed her, he is Chayav Misah).

(c)He receives the death penalty, despite the fact that he did not mean to kill the woman - because Rebbi Elazar holds that someone who aims to kill one person, and kills someone else by mistake, is Chayav Misah (like the Rabanan of Rebbi).

(d)And the reason that the sinner receives Malkus, even though was only warned for Misah, because he holds 'Musrah l'Davar Chamur Musrah l'Davar Kal' (a warning for a more stringent sin covers a less stringent one).

7)

(a)What happens to the sinner in the event that the woman did not die?

(b)What does Rav Shisha Brei d'Rav Idi now learn from there?

7)

(a)In the event that the woman did not die - he is obligated to pay the value of the babies who died as a result of the stroke ...

(b)... even though there was a warning for Malkus - Rav Shisha Brei d'Rav Idi's source that Chovel ba'Chavero pays, and does not receive Malkus.

33b----------------------------------------33b

8)

(a)Besides querying Rav Shisha Brei d'Rav Idi's principle 'Musrah l'Davar Chamur Musrah l'Davar Kal', Rav Ashi also queries his contention that Misah is more stringent. Perhaps Malkus is more stringent, he asks (and it is obvious that 'Musrah l'Davar Kal, Lo Havi Musrah l'Davar Chamur'). What is the basis of this seemingly strange theory?

(b)Rav Sama Brei d'Rav Asi (or Brei d'Rav Ashi) rejects this theory however. Why is there no proof from Chananya, Mishael and Azaryah that Malkus is more stringent than Misah?

8)

(a)Besides querying Rav Shisha Brei d'Rav Idi's principle 'Musrah l'Davar Chamur Musrah l'Davar Kal', Rav Ashi also queries his contention that Misah is more stringent. Perhaps Malkus is more stringent, he asks, and it is obvious that 'Musrah l'Davar Kal [Misah], Lo Havi Musrah l'Davar Chamur' [Malkus]). This seemingly strange theory - is based on Rav, who stated that had they subjected Chananya, Mishael and Azaryah to a flogging, they would have succumbed (and bowed down to the idol, whereas, as things stood, they willingly jumped into the furnace to die.

(b)Rav Sama Brei d'Rav Asi (or Brei d'Rav Ashi) rejects this theory however. There is no proof from Chananya, Mishael and Azaryah that Malkus is more stringent than Misah, he explains - because one cannot compare regular Malkus, which is limited, to a flogging which is decreed by the king (and which continues until one relents).

9)

(a)Rav Yakov from Nahar Pakud queries Rav Shisha Brei d'Rav Idi source (from the Pasuk in Mishpatim) from the opinion of Rebbi. What does Rebbi say about a case of 'Niskaven Laharog es Zeh v'Harag es Zeh, Eino Neherag'?

(b)How does this dispense with the poof that wherever there is Malkus and Mamon, one pays and does not receive Malkus?

9)

(a)Rav Yakov from Nahar Pakud queries Rav Shisha Brei d'Rav Idi source (from the Pasuk in Mishpatim) from the opinion of Rebbi, who holds - 'Niskaven Laharog es Zeh v'Harag es Zeh, Eino Neherag', but only pays compensation for the woman.

(b)This dispenses with the poof that wherever there is Malkus and Mamon, one pays and does not receive Malkus - since the Pasuk is then speaking when there was no warning; but if there had been, maybe he would have received Malkus, and not had to pay Mamon.

10)

(a)Still based on Rav Shisha B'rei d'Rav Idi's principle ('Musrah l'Davar Chamur ... '), Rav Yakov from Nahar Pakud in the name of Rava proves that Chovel ba'Chavero pays rather than receives Malkus, from the Pasuk "Im Yakum v'His'halech ba'Chutz al Mish'anto ... ". How do we know that the Torah is speaking when there was a warning?

(b)What does Rava now try to prove from there?

(c)Rav Ashi asks the same Kashyos as he asked earlier on Rav Shisha Brei d'Rav Idi. Rav Mari adds a Kashya: How do we know, he asks, that the Torah is speaking about Misah, when there must have been a warning? What is the alternative?

10)

(a)Still based on Rav Shisha Brei d'Rav Idi's principle ('Musrah l'Davar Chamur ... '), Rav Yakov from Nahar Pakud in the name of Rava proves that Chovel ba'Chavero pays rather than receives Malkus, from the Pasuk "Im Yakum v'His'halech ba'Chutz al Mish'anto ... ". The Torah must be speaking when there was a warning - because it is clear from the fact that he is locked up until we discover what happens to the wounded man, that should the wounded man die, then he is killed, in which case he must have been warned.

(b)Rava now tries to prove from the fact that, although a man has been warned (and 'Musrah l'Davar Chamur, Musrah l'Davar Kal'), should he not die, then he pays rather receives Malkus, that - 'Mamona Meshalem, Milka Lo Laki'.

(c)Rav Ashi asks the same Kashyos as he asked earlier on Rav Shisha Brei d'Rav Idi. Rav Mari adds a Kashya: How do we know, he asks, that the Torah is speaking about Misah, when there must have been a warning? Perhaps it is speaking - when he struck him b'Shogeg, and we lock-up the culprit to wait and see whether he is not Chayav Galus (to a city of refuge).

11)

(a)Resh Lakish reconciles our Mishnah (which obligates the rapist to pay Kenas), with the Mishnah in Makos (which sentences him to Malkus), by establishing our Mishnah like Rebbi Meir. What does Rebbi Meir say?

(b)The problem with this however is, that the Tana omits the case of 'Bito' (for whom one receives Misah at the hands of Beis Din). What makes us think that Rebbi Meir even holds 'Mes u'Meshalem' (and not just 'Lokeh u'Meshalem')? What does he say about someone who stole and Shechted on Shabbos or to Avodas-Lochavim?

(c)We refute this proof (that Rebbi Meir holds even 'Mes u'Meshalem') however, by citing those who quote Rebbi Yochanan. How does Rebbi Yochanan interpret the case of 'Ganav v'Tavach b'Shabbos, Ganav v'Tavach la'Avodas Kochavim'?

(d)What would Rebbi Meir hold if the thief himself Shechted the animal?

11)

(a)Resh Lakish reconciles our Mishnah (which obligates the rapist to pay Kenas), with the Mishnah in Makos (which sentences him to Malkus), by establishing our Mishnah like Rebbi Meir - who holds that, when a person is Chayav Mamon and Malkus, then he receives both punishments.

(b)The problem with this however is, that the Tana omits the case of 'Bito' (for whom one receives Misah at the hands of Beis-Din). We think that Rebbi Meir even holds 'Mes u'Meshalem' (and not just 'Lokeh u'Meshalem') - because he says someone who stole and Shechted on Shabbos or to Avodas Lochavim - is obligated to pay the Kenas (of 'four or five', despite the fact that he is also Chayav Misah). In that case, if the author of our Mishnah is Rebbi Meir, why does he not include Bito among those who receive Kenas?

(c)We refute this proof (that Rebbi Meir holds even 'Mes u'Meshalem') however, by citing those who quote Rebbi Yochanan, who interprets the case of someone who stole and Shechted on Shabbos or to Avodas Lochavim - when it is not the thief himself who Shechted the animal, but his Shaliach (so that it is the Shaliach who is Chayav Misah, and the thief who pays four or five times).

(d)Had the thief himself Shechted the animal - even Rebbi Meir would agree that he is Chayav Misah and Patur from paying four or five.

12)

(a)What is the problem with obligating the thief to pay four or five times, when it his Shaliach who Shechted it?

(b)What does Rava learn from the Pasuk in Mishpatim "u'Tevacho O Mecharo"?

(c)What does Tana d'Bei Rebbi Yishmael learn from the word "O", and Tana d'Bei Chizkiyah from "Tachas ha'Shor"?

(d)Mar Zutra queries this however, inasmuch as we cannot possibly obligate him to pay for what his Shaliach did, when he would not have been Chayav had he done it himself? How do we counter this Kashya?

12)

(a)The problem with obligating the thief to pay four or five times, when it is the Shaliach who Shechted it - is that it clashes with the principle 'Ein Shaliach li'Devar Aveirah.' (a person is only Chayav for his own actions, but not for those of his Shaliach)

(b)Rava learns from the Pasuk "u'Tevacho O Mecharo" - that the payment of four or five times is an exception to the above rule, because just like selling an animal involves two people yet the thief is Chayav, so too is he Chayav if the Shechitah involves two people (i.e. with regard to this Halachah we say 'Yesh Shaliach Li'Devar Aveirah').

(c)Tana d'Bei Rebbi Yishmael learns from the word "O" and Tana d'Bei Chizkiyah from "Tachas ha'Shor" - what Rava learns from "u'Tevacho O Mecharo" (that with regard to this particular Halachah, we say 'Yesh Shaliach li'Devar Aveirah').

(d)Mar Zutra queries this however, inasmuch as we cannot possibly obligate him to pay for what his Shaliach did, when he would not have been Chayav had he done it himself! We counter however - that the reason that he is exempt from paying is not because he is intrinsically Patur, but due to the principle of 'Kam Lei bid'Rabah Minei.' Consequently, wherever 'Kam Lei bid'Rabah Minei' does not apply, he remains Chayav to pay.

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