Blog Yomi – Kesubos #34/Daf 35

We left off yesterday toward the bottom of דף ל״ד עמוּד ב, and before picking it up again today I wanted to share with you the adventures of R’ Eli Stefansky. As you’ve gathered by now, staying current with the Daf and not missing a daily installment is a great challenge. It’s challenging enough for those who are beneficiaries of others who prepare daily to do this, and overcome the technical challenges that arise in delivering it. Even more so those who record and share their videos of the daily shiur, most notably Rabbi Stern who I embed daily here, as well as R’ Stefansky and R’ Bornstein who I cite periodically.

As it turns out, R’ Stefansky is on safari with his family in Africa, while much of his “equipment” is missing in suitcases that haven’t yet found their way to him travel from Israel. In the opening of his video on today’s Daf, you can sense the tension and angst over wanting to be present in enjoying vacation with his family in a special venue, yet overcoming the challenges of finding a viable internet connection through which to transmit the Daf. Before picking up where we left off yesterday, I’ll share his video in tribute to his determination to maintain the continuity of his “Good Morning Raboisi – Ach!” Mercaz Daf Yomi Shiur.

We pick up our Gemara on דף ל״ד עמוּד ב, twelve lines from the bottom:

בִּשְׁלָמָא רַבִּי יוֹחָנָן לָא אָמַר כְּרֵישׁ לָקִישׁ, דְּקָא מוֹקֵים לָהּ כְּרַבָּנַן. אֶלָּא רֵישׁ לָקִישׁ מַאי טַעְמָא לָא אָמַר כְּרַבִּי יוֹחָנָן? אָמַר לָךְ: כֵּיוָן דְּאִילּוּ אַתְרוֹ בֵּיהּ — פָּטוּר, כִּי לָא אַתְרוֹ בֵּיהּ — נָמֵי פָּטוּר

As ArtScroll introduces this, having concluded the lengthy discussion engendered by Reish Lakish’s way of reconciling our Mishnah with the Mishnah in Makkos (reflecting the minority view of R’ Meir that one who violates his sister both receives מַלְקוֹת and pays מָמוֹן for the same crime because he does not hold of קָם לֵיה בְּדְרָבָּה מִינֵיה), the Gemara considers why Reish Lakish did not instead adopt the the reconciliation proposed by R’ Yochanan.

Granted, R’ Yocḥanan, who explains the Mishna as referring to a case where the rapist was not forewarned, did not state his opinion in accordance with the opinion of Reish Lakish. But what is the reason that Reish Lakish didn’t state his opinion in accordance with R’ Yocḥanan? The Gemara answers: Reish Lakish could have said to you: Since if they forewarned him he is exempt from payment, when they did not forewarn him, he is exempt as well.

וְאָזְדוּ לְטַעְמַיְיהוּ. דְּכִי אֲתָא רַב דִּימִי, אָמַר: חַיָּיבֵי מִיתוֹת שׁוֹגְגִין, וְחַיָּיבֵי מַלְקִיּוֹת שׁוֹגְגִין וְדָבָר אַחֵר — רַבִּי יוֹחָנָן אָמַר: חַיָּיב, וְרֵישׁ לָקִישׁ אָמַר: פָּטוּר. רַבִּי יוֹחָנָן אָמַר חַיָּיב — דְּהָא לָא אַתְרוֹ בֵּיהּ. רֵישׁ לָקִישׁ אָמַר פָּטוּר — כֵּיוָן דְּאִילּוּ אַתְרוֹ בֵּיהּ — פָּטוּר, כִּי לָא אַתְרוֹ בֵּיהּ — נָמֵי פָּטוּר

And each of them, Reish Lakish and R’Yochanan, are consistent with their views in this matter. How do we know this? When Rav Dimi came (from Eretz Yisrael to Bavel), he said: With regard to those who unwittingly performed a transgression for which one is liable to receive the death penalty, or those who unwittingly performed a transgression for which one is liable to receive lashes, and that transgression also involved another matter, monetary payment, R’ Yocḥanan said: He is liable to pay; since he sinned unwittingly he did not receive the severe punishment. And Reish Lakish said he is exempt. The Gemara clarifies the rationales for their statements. Rabbi Yocḥanan said he is liable; since they did not forewarn him, he sinned unwittingly (as Rashi notes, שוגגין – שלא התרו בהן). Reish Lakish said he is exempt; since if they forewarned him he is exempt from payment, when they did not forewarn him, he is exempt as well.

R’ Adin Steinsaltz emphasizes a point here. Normally we use the word “בְּשׁוֹגֵג” to describe an unwitting action, one that was done unintentionally. This in contrast to “בְּמֵזִיד” – that which is done with intent. The distinction reflects the state of mind of the perpetrator as the crime was committed. In the case under consideration, the rape of one’s sister, we are not referring to one’s actual state of mind. Rather. as the Ritva explains, R’ Yochanan deems that anyone who acted without הַתְרָאָה (without being forewarned) is treated the same as if one had committed a crime בְּשׁוֹגֵג. This is consistent with Rashi’s view that we noted above, שוגגין – שלא התרו בהן.

(As an aside, I’m left wondering how the concept of הַתְרָאָה applies here. Is the nature of the warning something that has to be specified? In other words, are we referring to a case where the brother acted inappropriately with his sister before, but did not actually rape her – and was warned that raping one’s sister has specific consequences?)

At this juncture Rava asks: וּמִי אִיכָּא לְמַאן דְּאָמַר חַיָּיבֵי מִיתוֹת שׁוֹגְגִין חַיָּיבִים – is there anyone who says that those who unwittingly performed a transgression (בְּשׁוֹגֵג) for which one is liable to receive the death penalty (מִיתָה) and is also obligated to pay (מָמוֹן)? The question cycles around again as to whether or not we say קָם לֵיה בְּדְרָבָּה מִינֵיה. R’ Yochanan holds like the תָּנָא דְּבֵי חִזְקִיָּה regarding מִיתָה. If you commit an action בְּשׁוֹגֵג that warrants the death penalty, and simultaneously you damage someone’s clothing or property incurring a monetary penalty, in that case he would agree with Reish Lakish that you would be exempt (פָּטוּר). Where does R’ Yochanan disagree? When there is an action committed that warrants מַלְקוֹת rather than מִיתָה. In that event he would not say that you would be exempt through קָם לֵיה בְּדְרָבָּה מִינֵיה whereas Reish Lakish says you would.

See the source image

There is much more ground to cover, but Martell’s Tiki Bar beckons and it’s been a long day, so here is Rabbi Stern to take you the rest of the way.

About Leonard J. Press, O.D., FAAO, FCOVD

Developmental Optometry is my passion as well as occupation. Blogging allows me to share thoughts in a unique visual style.
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