1) WHO IS INCLUDED IN THE PROHIBITION AGAINST CURSING A PARENT?
QUESTION: The verse states, "A man, a man (Ish Ish) who curses his father or his mother shall surely be put to death" (Vayikra 20:9). The Beraisa derives from the extra word "Ish" that this prohibition includes a woman, a Tumtum, and an Androginus.
Why does the Beraisa not include a fourth group in the extra word "Ish": Nochrim? Indeed, the Gemara earlier (57b) includes Nochrim in the prohibitions of forbidden relationships from an extra word "Ish" in the verse. It also includes Nochrim in the prohibition against one who curses the name of Hash-m from an extra word "Ish" in the verse. Why does the Beraisa here not include Nochrim in the prohibition against cursing a parent? (CHIDUSHEI HA'RAN)
(a) The CHIDUSHEI HA'RAN gives a simple answer. When there are two options whom to include in a certain Mitzvah -- either groups of Jews who are not included in all Mitzvos or to include Nochrim -- it is assumed that the verse intends to include the groups of Jews. Apparently, the Chidushei ha'Ran's reasoning is that that since these groups of Jews are included in more obligations to perform Mitzvos than are Nochrim, if the Torah gives only one inclusive verse it must intend to include the group which it normally includes, Jews and not Nochrim. The only reason why the Gemara includes Nochrim in the prohibitions of forbidden relationships and cursing Hash-m is that the other possibilities -- a woman, Tumtum, and Androginus, are already included in those prohibitions by other verses.
(b) The YAD RAMAH gives a similar answer, but he argues that the word "Ish" is not needed to include a woman in the prohibition. That a woman is included in the prohibition is known from the rule in Bava Kama (15a) that a woman is the same as a man with regard to all punishments for sins mentioned in the Torah. The only doubt is whether a Tumtum and Androginus are included in the prohibition. Once the Beraisa derives from the extra word "Ish" that a Tumtum and Androginus are included, it lists a woman in the inclusion as well.
The Yad Ramah apparently understands that the Beraisa's mention of a woman in the inclusion of "Ish" does not mean that "Ish" is the source from which we learn that a woman is included in the prohibition. Rather, the Beraisa is merely providing information, ensuring that we know that a woman is also included in the prohibition. The Yad Ramah agrees that the word "Ish" here cannot be used to include Nochrim since it is needed to include a Tumtum and Androginus.
TOSFOS (DH l'Rabos) sides with the Chidushei ha'Ran's approach. Tosfos writes that the verse of "Ish" is needed to teach that a woman is also commanded not to curse her parents. This would not be known from the rule expressed by the Gemara in Bava Kama. Why, though, does that rule not apply here to include a woman in the command not to curse a parent? Tosfos explains that the Gemara in Bava Kama teaches only that when a commandment is expressed in the Torah in the male form ("Lecha" instead of "Lach"), it does not refer solely to a man. However, if the prohibition explicitly includes the word "Ish," then it does refer solely to a man, unless otherwise specified (as in the case of the prohibition against cursing a parent, where the extra word of "Ish" includes a woman, Tumtum, and Androginus, based on the concept of "Ein Mi'ut Achar Mi'ut Ela l'Rabos"). (Y. MONTROSE)
2) THE "CHIDUSH" OF THE SECOND PART OF THE MISHNAH
QUESTION: The second part of the Mishnah teaches that if two men had forbidden relations with a Na'arah ha'Me'urasah, the first man is Chayav Sekilah and the second is Chayav Chenek.
This part of the Mishnah seems redundant, since the first part of the Mishnah clearly states that the unique punishment (Sekilah) for forbidden relations with a Na'arah ha'Me'urasah applies only when she is a Besulah. What does this part of the Mishnah intend to teach?
(a) RASHI (DH ha'Rishon and DH veha'Sheni) explains that the Mishnah's intention is to teach the opinion of Rebbi (quoted later on the Daf). Rebbi maintains that even relations she'Lo k'Darkah renders a Na'arah ha'Me'urasah no longer a Besulah (even though her Besulim are intact). In the case of the Seifa of the Mishnah, the first man had relations with her she'Lo k'Darkah. The Mishnah is teaching that the second person receives Chenek, and not Sekilah, in accordance with the view of Rebbi.
(b) The YAD RAMAH explains that the Seifa of the Mishnah follows the view of the Chachamim and not the view of Rebbi, and it refers to a case in which the first man had illicit relations k'Darkah. What, then, is the Chidush of this part of the Mishnah? The Yad Ramah answers that the Mishnah's intention here is not to teach that the second man does not receive Sekilah. Rather, its intention is to teach that he is punished with Chenek and does not avoid the death penalty altogether. Why would one have though that he is not Chayav Misah? The verse discusses a similar type of forbidden relationship in the case of a married woman who is unfaithful. The verse describes her as "Be'ulas Ba'al" -- "One who has had relations with her husband" (Devarim 22:22). One might have thought that if a man has relations with a woman who is neither married nor a Na'arah ha'Me'urasah, they are not punished with death. The Mishnah therefore teaches that the second man indeed is punished with Chenek, the same punishment he receives for having forbidden relations with a married woman.
(c) The RAMBAM (in PERUSH HA'MISHNAYOS), like the Yad Ramah, explains that the Mishnah follows the view of the Chachamim. However, in contrast to the Yad Ramah, the Rambam clearly understands that the Chidush of the Mishnah is that the second man receives Chenek and not Sekilah. Why would one have thought that he receives Sekilah, if the first part of the Mishnah already excludes such an act from the punishment of Sekilah? The MARGOLIYOS HA'YAM quotes the KOL HA'RAMAZ who answers that the Mishnah is teaching the following Chidush: Even though it is common that the Besulim are not totally removed by the first act of Bi'ah, once the first man has relations in the normal manner which affected the Besulim in some way, the second man no longer is Chayav Sekilah for having relations with a Na'arah ha'Me'urasah, even if he also removes the Besulim which are left. It seems that the Kol ha'Ramaz understands that without the second case of the Mishnah, one would have considered the girl to be a Besulah such that the second man should also be punished with Sekilah. The Seifa of the Mishnah teaches that this is not the case, and he therefore is punished only with Chenek. (Y. MONTROSE)