Kesubos - Daf 39
- Who gets the kenas if the naarah gets engaged or married before the judgment?
Rava asked Abaye: בא עליה ונתארסה מהו – What is the halachah if one violated a naarah and she became engaged before the violator was found guilty? When Abaye answered that the passuk does not say: "ונתן לאבי הנערה אשר לא ארוסה" – and the violator shall give to the father of the naarah who was not engaged, Rava countered, that a Baraisa teaches that if one violated a girl and then she married, the kenas goes to her. Why should this be? According to your reasoning, it should go to the father too, as the passuk does not say, he shall give to the father of the naarah who was not married!? Abaye responded that the comparison is not correct. הואיל ובגרות מוציאה מרשות אב ונישואין מוציאין מרשות אב – For just as her becoming a bogeress removes a daughter from her father’s reshus, and marriage removes her from her father’s reshus, then just as in a case of bagrus, where one violates her as a naarah and she becomes a bogeress before judgment, she gets the kenas, so too in the case of her marrying she gets the kenas. But with regard to kiddushin, she is not completely removed from her father’s reshus, as it was taught in a Mishnah: נערה המאורסה אביה ובעלה מפירין נדריה – in the case of a naarah who is engaged, her father and her husband, can annul her vows.
- The differences between האונס והמפתה
The next Mishnah states: המפתה נותן שלשה דברים והאונס ארבעה – The seducer pays for three things and the violator pays for four. המפתה נותן בושת ופגם וקנס מוסיף עליו אונס שנותן את הצער – The seducer pays for embarrassment, depreciation in market value, and the kenas, and the violator adds onto to him in that he must compensate her for the pain she suffered. האונס נותן מיד והמפתה לכשיוציא – The violator pays the kenas immediately, which Rashi explains means that he pays the father even though he marries her, and the seducer only pays it when he sends her away, meaning if he does not marry her. האונס שותה בעציצו– The violator must drink from his pot, which Rashi explains means from the kli he chose to drink from, and he must marry her, as the passuk states: "לא יוכל לשלחה" – he is not able to send her away, והמפתה אם רצה להוציא מוציא – and the seducer, if he wants to send her away, he may send her away.
- אחד האונס ואחד המפתה בין היא ובין אביה יכולין לעכב
It was taught in a Baraisa: ואחד האונס ואחד המפתה בין היא ובין אביה יכולין לעכב – and in both of the cases of the seducer and violator, both she and her father can prevent the marriage from taking place. The Gemara says that in the case of violation, it makes sense that she can block the marriage, for the passuk says: "ולו תהיה לאשה" – and she shall be for him a wife, which implies that she does so willingly. But where is it known that the father can block the marriage? Abaye answered: שלא יהא חוטא נשכר – It is logical that the sinner should not be rewarded for his sin. Since the father could have refused to give his daughter to him before the violation, even if his daughter wanted to marry him, it does not make sense that by way of sinning the violator can force the father to let him marry his daughter. Rava said it is a kal v’chomer. מה מפתה שלא עבר אלא על דעת אביה בלבד בין היא ובין אביה יכולין לעכב – If in the case of the seducer, who only went against the will of the father, both the girl and the father can prevent the marriage, then all the more so with the violator, who went against the will of the father and the daughter, he or she can prevent the marriage. The Gemara explains why Abaye and Rava rejected each other’s reason.
