Kesubos - Daf 41
- Machlokes whether a מפתה pays בושת ופגם when he admits on his own
The next Mishnah states: האומר פתיתי את בתו של פלוני משלם בושת ופגם על פי עצמו ואין משלם קנס – One who says, “I seduced Ploni’s daughter,” pays for embarrassment and depreciation but does not pay the kenas. Rashi explains that we learn מודה בקנס פטור – that one who admits on his own to a fine is patur from paying the fine, from the passuk that a thief pays double, אשר ירשיעון אלהים – whom the judges find guilty, from which we learn, not one who makes himself guilty. The Gemara notes that the Mishnah does not go according to the Tanna of a Baraisa who taught: Rebbe Shimon ben Yehudah says in the name of Rebbe Shimon: A seducer who confesses, אף בושת ופגם אינו משלם על פי עצמו – even boshes and p’gam he does not pay, לא כל הימנו שיפגום בתו של פלוני – for he is not believed to discredit the daughter of Ploni, which Rashi explains to mean, that we do not give him a platform to say a bad report about her that she engages in immoral activities. Rav Pappa asked Abaye what would be the halachah if it was acceptable to the girl to suffer a bad reputation in order to receive the boshes u’p’gam, and the Gemara answers, that perhaps it is not acceptable to her father. And even if it was, perhaps it is not acceptable to members of the family. Rashi explains that it is not for Beis Din to do something that will sustain the family’s embarrassment. And even if it was acceptable to them, it is impossible that there is not one family member in a distant land for whom it is not acceptable.
- Machlokes whether חצי נזק is ממון or aקנס
The Gemara brings a machlokes regarding חצי נזק – half damages, which are paid when a tam ox damages. פלגא ניזקא – half damages, Rav Pappa said: פלגא ניזקא ממונא – half damages are a payment of damages, and Rav Huna brei d’Rav Yehoshua says: פלגא ניזקא קנסא – half damages are a kenas. Rav Pappa said that they are a payment for damages, because he holds, סתם שוורים לאו בחזקת שימור קיימי – ordinary oxen are not in a guarded state with respect to goring, ובדין הוא דמשלם כוליה – and the din is that really the owner should pay full damages, ורחמנא הוא דחייס עלויה דאכתי לא איעד תורא – but the Merciful One took pity on him and only makes him pay half, because his ox has not yet been warned. Rav Huna brei d’Rav Yehoshua said that half damages are a kenas because he holds, סתם שוורים בחזקת שימור קיימי – ordinary oxen are in a guarded state, and the din is that the person should not have to pay at all. But the Merciful One penalized him כי היכי דנינטריה לתוריה – in order that he should guard his ox even further. The Gemara will successfully challenge the position that חצי נזק is a kenas but will ultimately rule that it is in fact a kenas.
- What is done when חצי נזק cases occur in Bavel
The Gemara states that now that it has been established that חצי נזק is a kenas, in the case of a dog that killed and ate a sheep, which Rashi explains means that it choked live sheep and ate them, or a cat that killed and ate large chickens, משונה הוא ולא מגבינן בבבל – it is case of unusual damage, and we do not collect it in Bavel. Collection of a kenas requires judges with semichah, and semichah can only be given in Eretz Yisroel. But if the damaged party seized property of the owner of the dog or cat, we do not take it away from him, and if the damaged party said to the court, “Set a date for me to go to Eretz Yisrael to present the case in a court with judges who have semichah,” the courts set a date for him, and if the damager does not go by that date, משמתינן ליה – we place a ban on him. People cannot go within his dalet amos nor eat and drink with him. And regardless of whether the damaged party requests to go to Eretz Yisroel, we order the defendant, under threat of a ban, to destroy the animal.
