Kesubos - Daf 38
- Machlokes whether a naarah who was engaged, divorced and then violated, receives a kenas
The next Mishnah states: נערה שנתארסה ונתגרשה – In the case of a naarah who was engaged and then divorced and then violated, Rebbe Yose HaGlili says: אין לה קנס – she is not entitled to a kenas, but Rebbe Akiva says: יש לה קנס וקנסה לעצמה – she is entitled to a kenas and the kenas belongs to her. Rashi explains that the case is specifically where she was engaged and then divorced, for if she were not divorced, then the one who violated her would be chayav misa for committing adultery with an arusah. The Gemara explains that Rebbe Yose HaGlili’s reason for holding that she is not entitled to the kenas is because the passuk states: If a man finds a naarah besulah, אשר לא ארשה – who was not engaged, which implies, הא אורסה אין לה קנס – that if she was engaged, she does not receive the kenas. But Rebbe Akiva holds: "אשר לא ארשה" לאביה – that if she was not engaged the kenas is paid to the father, הא אורסה לעצמה – which implies that if she was previously engaged, the kenas belongs to her. The Gemara will challenge unsuccessfully Rebbe Akiva’s position.
- Where the amount of fifty silver shekalim paid by the violator and seducer is learned from
The Gemara brings a Baraisa in which Rebbe Akiva teaches that the phrase "אשר לא ארשה" – who was not engaged, is mufneh - superfluous, to have the following gezeirah shaveh to be expounded from it: It is stated here regarding one who was violated: "אשר לא ארשה", and it is stated regarding the girl who was seduced, "אשר לא ארשה" – who was not engaged. מה כאן חמשים אף להלן חמשים ומה להן שקלים אף כאן שקלים – Just as here the violator pays fifty silver coins, so too the seducer pays fifty silver coins, and just as there the seducer pays shekalim, here also the violator pays shekalim. Rashi explains that the word "ישקול" – he shall pay out, in the parshah of the seducer, implies shekalim. The Gemara later explains that Rebbe Yose HaGlili, who cannot teach this gezeirah shaveh since he uses the phrase "אשר לא ארשה" to teach something else, derives the “fifty coins” and “shekalim” from what was taught in the following Baraisa: The Torah states regarding the seducer: "כסף ישקל כמהר הבתולת" – He shall pay out silver shekalim in the amount of the settlement to the besulos, שיהא זה כמוהר הבתולות – which teaches that the kenas should be like the settlement made to the besulos in the case of the naarah who was violated, which is fifty coins, ומוהר הבתולות כזה – and that the settlement made to the besulos should be paid in shekalim, like the kenas for seduction.
- בא עליה ומתה פטור
Abaye said: בא עליה ומתה פטור – If one violated a naarah besulah and she died before the violator was sued by the father and found liable by Beis Din, he is patur from payment, for the passuk states: "ונתן...לאבי הנערה" – And he, referring to the violator, shall give…to the father of the naarah fifty silver coins. The superfluous expression of naarah teaches that the fine is paid to the father of the naarah, ולא לאבי מתה – and not to the father of a deceased girl. The Gemara says that what was obvious to Abaye was the basis of a question for Rava, for Rava asked: יש בגר בקבר או אין בגר בקבר – If the victim was a naarah at the time she died but would have become a bogeress by the time of Beis Din ruled, is there an attaining of bagrus in the grave or not. The Gemara on the next Daf will clarify Rava’s question.
