KESUVOS 35 (18 Adar) - Dedicated by Harav Shlomo Weinberger of Brooklyn, NY, in memory of his father, Reb Chaim Tzvi ben Reb Shlomo Weinberger, whose Yahrzeit is 18 Adar. Reb Chaim Tzvi, a Holocaust survivor who raised his family in a new country, bequeathed his children steadfast commitment to Torah and its study.

1)

(a)According to the first Lashon, Resh Lakish assumes that the Pasuk "v'Lo Yiheyeh Ason, Anosh Ye'anesh" means literally 'Ason'. What does he extrapolate from there to create a Kashya against Rebbi Yochanan (who holds that Chayavei Misos Shogegin and Chayavei Malkus Shogegin are Chayav)?

(b)How does Rebbi Yochanan explain the Pasuk, to counter Resh Lakish's Kashya?

(c)In the second Lashon, it was Rebbi Yochanan who queried Resh Lakish. What did he ask him?

(d)What did Resh Lakish answer?

1)

(a)According to the first Lashon, Resh Lakish assumes that the Pasuk "v'Lo Yiheyeh Ason, Anosh Ye'anesh" means literally 'Ason', implying that the assailant has to pay only because the woman did not die - but if she did, he would be Patur, even though he was not warned, a Kashya against Rebbi Yochanan (who holds Chayavei Misos Shogegin, as well as Chayavei Malkus Shogegin are Chayav).

(b)According to Rebbi Yochanan however - what the Pasuk means is not that there was no Ason, but that there was no Din Ason (incorporating a case where the woman died, but where the assailant was not warned).

(c)In the second Lashon, it was Rebbi Yochanan who took the initiative - presuming that the Pasuk was referring to Din Ason, which then presents Resh Lakish with a Kashya.

(d)To which Resh Lakish answered - that it meant literally Ason, (as we just explained).

2)

(a)What does Tana d'Bei Chizkiyah learn from the Hekesh "Makeh Adam u'Makeh Behemah Yeshalmenah" (in Emor)?

(b)What Kashya does this pose on Rebbi Yochanan's previous statement (regarding Chayavei Misos Shogegin ... ')?

(c)So we are forced to retract from part of Rebbi Ychanan's statement. How does Ravin re-learn Rebbi Yochanan? In which case does he now agree with Resh Lakish, and in which case does he still argue with him?

2)

(a)Tana d'Bei Chizkiyah learns from the Hekesh "Makeh Behemah Yeshalmenah u'Makeh Adam Yumas" (in Emor) - that just as someone who kills an animal is always obligated to pay (whether he did it b'Shogeg or b'Mezid, b'Ones or b'Ratzon, whether he dealt the animal an upward stroke or a downward stroke), so too, is he always Patur from paying if he killed a person, whatever the circumstances.

(b)This poses a Kashya on Rebbi Yochanan - who maintains that Chayavei Misos Shogegin are Chayav to pay.

(c)Consequently, in re-learning Rebbi Yochanan, Ravin explains - that he confines his statement to Chayavei Malkus Shogegin, but he agrees with Resh Lakish, that Chayavei Misos Shogegin are Patur.

3)

(a)According to Abaye, what does Resh Lakish learn from the 'Gezeirah-Shavah' "Asher Hu Rasha la'Mus" (Masei) "v'Hayah Im Bin Hakos ha'Rasha" (Ki Setzei)?

3)

(a)According to Abaye, Resh Lakish learns from the 'Gezeirah-Shavah' "Asher Hu Rasha Lamus" (Masei) "v'Hayah Im Bin Hakos ha'Rasha" - that Chayavei Malkus Shogegin are Patur from paying, like Chayavei Misos Shogegin.

4)

(a)According to Rava, Resh Lakish learns it from "Makeh" "Makeh". Why can he not be referring to the Pasuk "u'Makeh Behemah Yeshalmenah, u'Makeh Adam Yumas" (Emor)?

(b)So Rava explained to Rav Papa that he is referring to the Pasuk in Emor "Makeh Nefesh Behemah Yeshalmenah, Nefesh Tachas Nafesh" ... "v'Ish Ki Yiten Mum ba'Amiso Ka'asher Asah Ken Ye'aseh Lo". What does Rava then mean by "Makeh" "Makeh" (seeing as "Makeh is not mentioned in the second Pasuk)?

(c)But how can Resh Lakish then derive 'Chayavei Malkus Shogegin Peturin' from Chayavei Misah, when the second Pasuk is talking about Mamon and not Chayavei Malkus?

(d)In that case, how can he learn from this Pasuk that Chayavei Malkus Shogegin is Patur from paying, seeing as there is no obligation to pay?

4)

(a)According to Rava, Resh Lakish learns it from the Gezeirah-Shavah "Makeh" "Makeh". He cannot be referring to the Pasuk in Emor "Makeh Behemah Yeshalmenah, u'Makeh Adam Yumas", Rav Papa points out - because the Torah there is speaking about killing (which is Chayav Misah, and not Malkus).

(b)So he must be referring to the Pasuk there "Makeh Nefesh Behemah Yeshalmenah, Nefesh Tachas Nafesh" ... "v'Ish Ki Yiten Mum ba'Amiso Ka'asher Asah Ken Ye'aseh Lo". Despite the fact that the second Pasuk does not mention "Makeh", it is nevertheless possible to learn "Makeh" "Makeh" - because "Yiten Mum ba'Amiso" is synonymous with 'Haka'ah' (which is sufficient to form a 'Gezeirah Shavah).

(c)Resh Lakish derives 'Chayavei Malkus Shogegin Peturin' from Chayavei Misah - because, although the second Pasuk is talking about a basic Chiyuv Mamon, seeing as that is not necessary (since we already know that Chayavei Misah are Patur from paying) we establish the Pasuk by a stroke that is less than a Shaveh Perutah, where the assailant is Chayav Malkus, and not Mamon.

(d)In spite of the fact that we just established the case where there is no obligation to pay, Resh Lakish learns from here that Chayavei Malkus are Patur from paying - because it speaks when he also tore clothes with the same stroke.

35b----------------------------------------35b

5)

(a)Rav Chiya asked Rava how he knew that the Pasuk "Makeh Adam u'Makeh Behemah ... " refers to when the accident took place on a weekday? Perhaps, he suggests, it took place on a Shabbos? So what if it did?

(b)Rava answered by proving from "Makeh Adam Yumas" that the Pasuk must be speaking when he was warned. What is his proof?

(c)How does that answer Rav Chiya's query?

5)

(a)Rav Chiya asked Rava how Tana d'Bei Chizkiyah knew that the Pasuk "Makeh Adam ... u'Makeh Behemah ... " refers to when the accident took place on a weekday? Perhaps, he suggests, it took place on a Shabbos - in which case he would be Chayav Misah, and Patur from paying (refuting Tana d'Bei Chizkiyah's Derashah)!

(b)Rava answered by proving from "Makeh Adam Yumas" that the Pasuk must be speaking when he was warned - because without warning, how could the assailant be sentenced to death?!

(c)This answers Rav Chiya's query - because if the incident had taken place on Shabbos, how could the Pasuk continue "Makeh Behemah Yeshalmenah" (seeing as he would be Chayav Misah)?!

6)

(a)Rav Papa asks Abaye how Rabah (who establishes our Mishnah [of 'Eilu Na'aros she'Yesh Lahen Kenas'] like Rebbi Meir, who holds 'Lokeh u'Meshalem'), why the Mishnah omits 'Bito'. Why does he not ask on Resh Lakish (who also establishes the Mishnah like Rebbi Meir) as to why the Tana inserts 'Ganav v'Tavach b'Shabbos'?

(b)What is his Kashya on Rav Papa?

6)

(a)Rav Papa asks Abaye how Rabah (who establishes our Mishnah [of 'Eilu Na'aros she'Yesh Lahen Kenas'] like Rebbi Meir, who holds 'Lokeh u'Meshalem'), why the Mishnah inserts 'Bito'. He does not ask on Resh Lakish (who also establishes the Mishnah like Rebbi Meir) as to why the Tana inserts 'Ganav v'Tavach b'Shabbos' - because Resh Lakish has already established the Mishnah where one person Reuven stole the animal, and Shimon Shechted it on his behalf (but had Reuven Shechted it too, he would be Patur).

(b)His Kashya on Rav Papa is - that seeing as, according to Rabah, Rebbi Meir even holds Mes u'Meshalem by Kenas (since it is a Chidush), he ought to have included 'Bito' in our Mishnah!

7)

(a)Neither can he establish the Mishnah like Rebbi Nechunya ben ha'Kanah, because, according to him, the Tana should have omitted Achoso (even though he holds 'Lokeh u'Meshalem'). Why is that?

(b)He also refutes the suggestion that perhaps Rabah will establish the Mishnah like Rebbi Yitzchak. What does Rebbi Yitzchak say?

(c)How would that resolve the problem?

(d)On what grounds does he reject this suggestion? Which case in our Mishnah should nevertheless not have been inserted even according to Rebbi Yitzchak?

7)

(a)Neither can he establish the Mishnah like Rebbi Nechunya ben ha'Kanah, because, according to him, the Tana should have omitted Achoso (even though he holds 'Lokeh u'Meshalem') - because one is Chayav Kares for Achoso, and according to Rebbi Nechunya ben ha'Kanah, Chayavei Kares are Patur from paying.

(b)He also refutes the suggestion that perhaps Rabah will establish the Mishnah like Rebbi Yitzchak - who holds that Chayavei Kares are not subject to Malkus, in which case, there will be no problem with the Tana's insertion of Achoso ...

(c)... seeing as he does not follow the opinion of Rebbi Nechunya ben ha'Kanah.

(d)He rejects this suggestion however - on the grounds that, even according to Rebbi Yitzchak, the Tana ought not to have inserted Mamzeres among those who have to pay Kenas, seeing as he receives Malkus.

8)

(a)How does Rav Papa therefore finally establish Rabah? In which point must he hold like Rebbi Yochanan and not like Resh Lakish?

(b)Resh Lakish (who holds Chayavei Misos Shogegin are Patur from paying) certainly argues with Ula. What does Ula say?

(c)So why finally, according to Rabah, does the Tana include Achoso and Mamzeres in the Mishnah, but not Bito?

8)

(a)Rav Papa therefore concludes that Rabah must hold like Rebbi Yochanan, who holds that - Chayavei Malkus Shogegin, are Chayav to pay (and our Mishnah speaks where the rapist was not warned).

(b)Resh Lakish (who holds Chayavei Malkus Shogegin are Patur from paying) certainly argues with Ula - who rules that even if the rapist is warned, he has to pay and does not receive Malkus.

(c)According to Rabah, the Tana includes Achoso and Mamzeres in the Mishnah, but not Bito - because he holds like Rebbi Yochanan, who holds 'Chayavei Malkus Shogegin, Chayavin', but not Chayavei Misos Shogegin (to which category Bito belongs).

9)

(a)According to Rebbi Yochanan, the author of our Mishnah (which includes Achoso) could even be the Rabanan of Rebbi Meir, and the Tana will speak when the rapist was not warned (as we just explained. Rav Masna asked Abaye which Tana, according to Resh Lakish (who holds that Chayavei Misah, just like Chayavei Malkus, are Patur from paying), argues with Rebbi Nechunya (who exempts Chayavei Kares from paying). Which two Tana'im did Abaye cite in reply?

(b)Why is that?

(c)Why could Rebbi Yitzchak nevertheless not be the author of our Mishnah?

(d)Who could then be the author of the Mishnah in Shavu'os 'Hidlik Gadish b'Yom ha'Kipurim, Chayav', according to Resh Lakish?

9)

(a)According to Rebbi Yochanan, the author of our Mishnah (which includes Achoso) could even be the Rabanan of Rebbi Meir, and the Tana will speak when the rapist was not warned (as we just explained. Rav Masna asked Abaye which Tana, according to Resh Lakish (who holds that Chayavei Misah, just like Chayavei Malkus, are Patur from paying), argues with Rebbi Nechunya (who exempts Chayavei Kares from paying). In reply, Abaye cited - Rebbi Meir and Rebbi Yitzchak ...

(b)... the former - because he holds 'Lokeh u'Meshalem'; the latter - because he exempts Chayavei Kares from Malkus.

(c)Rebbi Yitzchak could nevertheless not be the author of our Mishnah - because how would he explain the insertion of Mamzeres (as we asked above)?!

(d)The author of the Mishnah in Shavu'os 'Hidlik Gadish b'Yom ha'Kipurim, Chayav' however - could be Either Rebbi Yitzchak or Rebbi Meir.

10)

(a)The Beraisa precludes 'Arayos & Sheniyos la'Arayos from the Din of Kenas. From what else, other than Kenas, does it preclude them?

(b)Who else, other than a Mema'enes, does the Tana preclude from Kenas and Pituy?

(c)He precludes a Mema'enes because since she was married, she is presumed to be a Be'ulah (who does not receive Kenas). On what grounds does the Tana preclude ...

1. ... an Aylonis?

2. ... a woman whose husband divorced her because of a bad name (according to our intial understanding)?

10)

(a)The Beraisa precludes 'Arayos & Sheniyos la'Arayos from the Din of Kenas.

(b)Besides a Mema'enes, the Tana also preclude - an Aylonis and a woman whose husband divorced her because of a bad name, from Kenas and Pituy.

(c)He precludes a Mema'enes because since she was married, she is presumed to be a Be'ulah (who does not receive Kenas). The Tana precludes ...

1. ... an Aylonis - because she does not have Simanei Na'arus (and it is only a Na'arah who is subject to Kenas, as we learned in our

2. ... a woman whose husband divorced her because of a bad name - seeing as she did not have Besulim (though we will query this later).

11)

(a)Why can the terms 'Sheniyos la'Arayos' (in the previous Beraisa) not be taken literally?

(b)How do we therefore interpret ...

1. ... 'Arayos'?

2. ... 'Sheniyos'?

(c)What can we infer from this?

(d)Why must the author be Shimon ha'Teimani?

11)

(a)'Sheniyos la'Arayos' (in the previous Beraisa) cannot be taken literally - because why should Sheniyos, who are permitted min ha'Torah, not receive Kenas?

(b)So we interpret ...

1. ... 'Arayos' to mean Chayavei Misos Beis Din', and ...

2. ... 'Sheniyos' to mean Chayavei Kares ...

(c)... from which we can infer that Chayavei Lavin do receive Kenas.

(d)... in which case, the author must be Shimon ha'Teimani, who holds that the criterion for Kenas (from the Pasuk "v'Lo Siheyeh l'Ishah") is that the Kidushin should be effective (incorporating Chayavei Lavin) - as we learned above.

12)

(a)In the second Lashon, we interpret 'Arayos' as Chayavei Misos Beis Din and Chayavei Kares and 'Sheniyos', as Chayavei Lavin. Who would then be the author of the Beraisa?

12)

(a)In the second Lashon, we interpret 'Arayos' as Chayavei Misos Beis Din and Chayavei Kerisos, and 'Sheniyos', as Chayavei Lavin - in which case, the author would have to be Rebbi Shimon ben Menasya, according to whom the criterion for Kenas is that, min ha'Torah, he is permitted to live with her (precluding Chayavei Lavin).

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