Kesubos - Daf 40
- Why the case of a violator marrying an unfit woman is not a case of עשה דוחה לא תעשה
The Mishnah on Daf 39a stated that one who violated a woman must be שותה בעציצו – drink from his pot, and must marry her even if she is lame, blind, or a mukas sh’chin, - covered in boils. נמצא בה דבר ערוה או שאינה ראויה לבא בישראל אינו רשאי לקיימה – However, if there was an improper matter found in her, such as she committed adultery after their marriage, or she is unfit to marry a Jew, such as a mamzeres, he is not permitted to keep her, for the passuk states: "ולו תהיה לאשה" – and she shall be to him a wife, which implies, אשה הראויה לו – a woman who is fit for marriage to him. Rav Kahana said that he stated the following argument in the presence of Rav Zevid from Nehardea, ניתי עשה ונדחה לא תעשה – Let the aseh of his marrying her be docheh the lo sa’aseh of not marrying a woman who is not fit to marry? Rav Zevid responded that we say עשה דוחה לא תעשה in cases like milah and tzaraas, דלא אפשר דלא לקיומיה לעשה – where it is impossible to choose not to fulfill the aseh, but here, although the violator has the mitzvah to marry the woman, if she says I do not want him as a husband, מי איתיה לעשה כלל – is there any mitzvas aseh at all? Rashi explains that in all cases of unfit women, we instruct them to say that she does not want the violator to be a husband, so that there is no mitzvas aseh.
- How we know that the kenas does not include the payments of בשת ופגם
The second Mishnah on the Daf explains how the compensation of בשת ופגם– embarrassment and depreciation are calculated and concludes קנס שוה בכל אדם – the kenas is the same for every person, וכל שיש לו קצבה מן התורה שוה בכל אדם – and every monetary chiyuv that has a fixed amount from the Torah is the same for every person. The Gemara asks why not say that the fifty selaim is the payment for all of three things? After Rebbe Zeira’s two attempted answers are refuted, Abaye answers that the passuk states that the violator pays the kenas "תחת אשר עינה" – because he has afflicted her, which implies that they are paid specifically because he violated her, and besides this payment for “affliction,” there are additional payments of בושת ופגם. Rava gives an alternative answer from the passuk that states: "ונתן האיש השכב עמה לאבי הנערה חמשים כסף" – The man who lay with her shall give the father of the girl fifty silver (shekels). This implies הנאת שכיבה חמשים – that for the pleasure of lying with her he pays fifty shekels to the father, מכלל דאיכא בושת ופגם – from here we can infer there are additional payments of embarrassment and depreciation.
- Why it is logical that the father receives the payments of בושת ופגם
The Gemara asks how we know that the payments of בושת ופגם are paid to the father and not to the daughter herself, and after attempts to prove that there is a Torah source that the father is paid are refuted, it answers, מסתברא דאביה הוי – it is logical that they go to the father, דאי בעי מסר לה למנוול ומוכה שחין – for if he wishes he can give her over to a man who is repulsive or afflicted with boils. Rashi explains that it is in the father’s reshus to embarrass her and depreciate her value through relations with a repulsive person in exchange for the kiddushin money. Since the violator preempted the father by embarrassing her and depreciating her value, he causes the father to lose out from the money he could have received.
