Kesubos - Daf 32

• The difference between one who violates a sister who is a naarah and one who is a bogeress

The Gemara contrasts the Mishnah on Daf 29a, that stated that if one violated a woman who was an issur kares, such as a sister, she is entitled to the fine, with a Mishna in Makkos, that states: אלו הן הלוקין – These are the ones who receives malkos for violating an issur and lists one who has relations with an issur kares, such as his sister. וקיימא לן דאינו לוקה ומשלם – And it has been established for us that one does not receive malkos and pay money for the same crime. Ulla answered that there is no difficulty. Our Mishnah is dealing with אחותו נערה – his sister who is a naarah, where the קנס for violation applies, and the Mishnah in Makkos is dealing with אחותו בוגרת – his sister who is a bogeress, where the קנס does not apply. When the Gemara challenges this, since a bogeress who was violated receives the monetary payments of בושת ופגם – embarrassment and depreciation in market value, it answers that the Mishnah in Makkos is dealing with a shotah - a mentally deranged girl, who does not suffer from embarrassment nor has value in the market. When the Gemara asks why she does not receive monies for צער - the physical pain she suffers, it answers that the Mishnah is dealing with a מפותה – a girl that was seduced, where there is no pain.

• Ulla learns that one pays and is not lashed from the gezeirah shaveh of "תחת" "תחת"

The Gemara infers from Ulla’s answer that he holds: כל היכא דאיכא ממון ומלקות ממונא משלם מילקא לא לקי – Wherever one is chayav for both monetary payment and lashes, the person pays and is not lashed. The Gemara seeks to identify Ulla’s source and concludes it is learned from a gezeirah shaveh of "תחת" "תחת". It is written with regard to the violator: she shall become his wife "תחת אשר ענה" – in place of his violating her, and it is written with regard to one who strikes and wounds another, "עין תחת עין" – an eye in place of an eye. Just as there, in the case of one who wounds another, he pays money and does not receive malkus, even if he was warned not to strike the victim, אף כל היכא דאיכא ממונא ומלקות ממונא משלם מילקא לא לקי – so too every place where there is both a chiyuv for both money and lashes, such as in the case where one violates his sister, the person pays and is not lashed. Rashi explains that this gezeirah shaveh is mufneh - superfluous, since the word "תחת" is superfluous in the passuk regarding the one who violates a woman. This means we can derive laws from it and we do not raise objections to it, even if there is a logical argument that can be presented.

•  Rebbe Yochanan learns that one is lashed and does not pay from "כדי רשעתו" ו"ארבעים יכנו"

Rebbe Yochanan says the Mishnah can also be dealing with a sister who is a naarah, and the difference between the two Mishnayos is that the Mishnah in Makkos is dealing with where he was warned that he would receive malkus for violating her, and the Mishnah here is where he was not warned. The Gemara notes that it seems that Rebbe Yochanan holds that wherever there is a chiyuv for both money and malkus, and he is warned about malkus, he receives malkus and does not pay. It explains that the passuk regarding malkus states that the person receives lashes כדי רשעתו – in accordance with his wickedness, from which we can learn, משום רשעה אחת אתה מחייבו ואי אתה מחייבו משום שתי רשעיות – you may punish him for one wickedness, but you cannot punish him for two penalties, referring to both money and lashes, and the next passuk states: "ארבעים יכנו" – Forty lashes he shall strike him. Rashi explains that we learn from here that where there are two penalties, he is lashed, and does not make a monetary payment.