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Kesuvos, 42

42b

QUESTIONS: Rebbi Shimon in a Beraisa states that if a person accuses another man of having committed a transgression that obligates him to pay a Kenas, and the accused denies it with a Shevu'ah and then admits that he swore falsely, he is *not* Chayav to bring a Korban Shevu'ah. Rebbi Shimon derives this from the word, "v'Chichesh" (Vayikra 5:21).

The Gemara discusses whether Rebbi Shimon exempts the person from a Korban Shevu'ah only if there was no Ha'amadah b'Din -- that is, Beis Din did not yet rule that he must pay the Kenas -- or even if there already was a Ha'amadah b'Din. The Gemara concludes that Rebbi Shimon must be discussing an obligation of Kenas after Ha'amadah b'Din.

The Gemara proves this from the Reisha of that Beraisa, which cites a dissenting opinion that says that if a person accuses someone of owing him Kefel and other Kenasos, and the accused denies it with a Shevu'ah and then admits that he swore falsely, he *is* obligated to bring a Korban Shevu'ah. The Reisha, explains the Gemara, must be referring to a case in which there already *was* Ha'amadah b'Din, because "if there was no Ha'amadah b'Din, there is no Kefel." What is the meaning of this cryptic statement?

RASHI gives two explanations for why one cannot legally accuse someone of owing him a Kenas of Kefel when there was no Ha'amadah b'Din: First, Rashi explains that if there was no Ha'amadah b'Din, how does one know that the other person stole his object in the first place, so that he is now demanding Kefel? The only way he could be sure that the other person stole his object is if there was Ha'amadah b'Din. Second, the thief has the ability to admit that he stole and to thereby become exempt from the Kenas (since one who admits that he did something that obligates him to pay a Kenas, is exempt from paying the Kenas). Thus, he cannot be accused of owing Kefel prior to Ha'amadah b'Din, since he can simply exempt himself by admitting to it.

Rashi's words are difficult to understand for the following reasons, as the RITVA asks (see also MAHARAM SHIF).

(a) With regard to Rashi's first explanation, what does Rashi mean when he says that a person cannot know that someone stole from him unless there was Ha'amadah b'Din? In the case of *any* accusation, how does the person know that the other person owes him something? Obviously, the person simply claims that he knows even though he cannot necessarily prove it. The same is true as far as Kefel is concerned! Why isn't it possible to accuse another person of owing Kefel before Ha'amadah b'Din?

(b) In Rashi's second explanation, he writes that since the thief might admit to his deed and exempt himself from the Kenas, it is not possible for the Kenas to obligate him in a Korban Shevu'ah unless there was a Ha'amadah b'Din. However, this reasoning should apply to any other Kenas as well! Why, then, does the Gemara need to cite the Reisha of the Beraisa in order to prove that Rebbi Shimon's ruling refers to after Ha'amadah b'Din? The Gemara should have proved this point from Rebbi Shimon's own words! Rebbi Shimon needs a verse to exempt a person from a Korban Shevu'ah in a case where the person is accused of owing a Kenas. Why does he need a verse if it is before Ha'amadah b'Din? Before Ha'amadah b'Din, the accusation is meaningless because the accused can simply admit to owing the Kenas and thereby exempt himself!

(See the MAHARAM SHIF and HAFLA'AH who attempt to find other explanations for the proof from Kefel, other than the explanations given by Rashi.)

ANSWERS:

(a) When Rashi says that before Ha'amadah b'Din, there is no way to know that the accused stole the object, his intention is based on the Gemara in Bava Kama that describes the difference between a thief (Ganav) and a robber (Gazlan). A Ganav must pay Kefel (double) because of the severity of the implication of his action -- he is committing his crime in a hidden way so that no one sees him. Since he demonstrates that he fears man more than he fears Hashem, he must pay Kefel. A Gazlan, on the other hand, who comes armed and robs overtly, not giving any special deference to man over Hashem, does not pay Kefel.

According to this, in a normal case of Geneivah, where the act was done in secret, we assume that the owner did not see the Ganav. If the owner did not see the Ganav steal his item, then how can he accuse him of being a Ganav! For all other claims and accusations, the presumed victim can claim to have been witness to the offense, but in the case of Geneivah, he cannot claim to have been witness to the crime! This is what Rashi means when he says that it is not possible for the owner to know who the Ganav is before Ha'amadah b'Din!

(Rashi is not completely satisfied with this explanation, and therefore he offers another one, because the owner could still claim that he was peeking in from behind a door when the Ganav sneaked in and stole his item. Even though the Ganav was trying to hide his actions, the owner can still claim to have seen him.)

(b) As for Rashi's second explanation, the RITVA cites TOSFOS as saying that the proof indeed is not necessarily from Kefel, and that the Gemara is actually proving its point from all of the Kenasos. One cannot be Chayav to bring a Korban Shevu'ah for the denial of a Kenas, since even if he would have admitted to the accusation, he would not have had to pay. This is the logic that Rebbi Shimon said in the earlier Beraisa (42a). Why, then, didn't the Gemara prove that Rebbi Shimon is discussing Kenas *after* Ha'amadah b'Din from Rebbi Shimon's own statement? He must be discussing Kenas after Ha'amadah b'Din, for otherwise he would not have to cite the verse "v'Chichesh" to exempt from Kenas -- there are strong enough logical grounds to exempt from Kenas (as the Gemara says regarding the Rabanan in the Seifa of the Beraisa)!

1. Tosfos (as cited by the Ritva) answers that the proof from Rebbi Shimon's own statement would not be conclusive, since "v'Chichesh" might be just an Asmachta, and the real reason for Rebbi Shimon's ruling might indeed be because of the logic that the perpetrator would not pay if he admitted to his action. The proof from the Rabanan, who actually rule that one *does* bring a Korban Shevu'ah for Kenas, is conslusive.

2. The Ritva himself adds that according to Rebbi Shimon, perhaps "v'Chichesh" is necessary to teach that when a person claims from someone "you raped my daughter," his main claim is for the Kenas, and not for the payments of Boshes and Pegam (in contrast to the opinion of the Rabanan). Alternatively, "v'Chichesh" is necessary to exempt Kenas from Korban Shevu'ah when the Kenas is of the type that is not *added* to the compensation for damages, but is *instead* of the compensation for damages (such as the Kenas owed when one knocks out a tooth or eye of his servant, or the Kenas of "Sheloshim Shel Eved" when one's ox kills another person's servant). Since, in those cases, the Kenas is taking the place of payments for damages, we might have thought that one is Chayav to bring a Korban Shevu'ah for it.

3. However, this does not appear to be Rashi's opinion. Rashi explains that one cannot have a Korban Shevu'ah for Kefel because "perhaps the accused will admit to the offense and thereby exempt himself." It is noteworthy that Rashi does not say that he will be exempt "even if" he confesses to the claim (which is the way Rashi explains the logic of Rebbi Shimon on 42a DH she'Eino Meshalem, and 42b DH she'Eino Meshalem). Rather, Rashi says that "perhaps" he will confess, meaning that even if he denies the claim at present, there is reason to exempt him from a Korban because of the *possibility* that he will exempt himself from the payment of the Kenas at some point before the Ha'amadah b'Din. Rashi must be explaining according to the opinion in Bava Kama (75a) which says that "Modeh b'Kenas v'Achar Kach Ba'u Edim, Patur" -- when a person confesses to an act that is punishable with a Kenas, and then witnesses come and testify that he committed that act, he nevertheless remains exempt. Rashi is saying that a person cannot become obligating to bring a Korban Shevu'ah for denying and then admitting to a Kenas, since there is no certainty whether he will confess before witnesses come, in which case he will have no obligation altogether *even after the witnesses come*. That is why Rashi says that "perhaps" he will confess; the only reason why he should not be obligated to bring a Korban Shevu'ah is because of the possibility that he will confess. But if he does not confess, then it would be appropriate to obligate him to bring a Korban Shevu'ah.

Why can we not make the same inference from Rebbi Shimon's words, who says that one is exempt only because of "v'Chichesh?" The answer is that the argument that the accused cannot be obligated to bring a Korban Shevu'ah since he can exempt himself by confessing is valid only according to the opinion that holds that "Modeh b'Kenas v'Achar Kach Ba'u Edim, Patur" -- when a person confesses to an act that is punishable with a Kenas, and then witnesses come and testify that he committed that act, he nevertheless remains exempt. Rebbi Shimon, though, holds that one is *Chayav* when witnesses later come and testify against the person.

Rashi may have learned this from the question that the Ritva asks: how could the Gemara suggest that Rebbi Shimon learns that the person is exempt from a Korban Shevu'ah because of the verse "v'Chichesh," when -- in the Beraisa -- he gives a logical reason and not a verse, and says that the person is exempt because of the rule that a person does not pay a Kenas when he confesses to it -- "Eino Meshalim Kenas Al Pi Atzmo?" Why does Rebbi Shimon need a verse ("v'Chichesh") to teach that one is exempt? Rashi answers by saying that Rebbi Shimon himself does not rely on the logic that "Eino Meshalem Kenas Al Pi Atzmo" to exempt a person from a Korban Shevu'ah, because that logic is not such a strong argument. It is true that he would not have to pay the Kenas if he confessed to it. Nevertheless, since he would have to pay the Kenas if witnesses later come, perhaps it should be treated like the denial of any monetary obligation. The reason for this is that even though no Kenas obligation exists before the Ha'amadah b'Din, nevertheless, *after* the Ha'amadah b'Din a Kenas obligation exists *retroactively from the time of the misdeed* (as the CHIDUSHEI HA'RASHBA proves in Bava Kama 74b). Therefore, Rebbi Shimon needs a further source to exempt the person from a Korban Shevu'ah in the case of a Kenas, and that is why he must learn this Halachah from the word "v'Chichesh."

(According to what we have said, Rebbi Shimon himself is not convinced that the logical argument of "Eino Meshalem Kenas Al Pi Atzmo" should exempt a person from a Korban Shevu'ah. Nevertheless, he attempts to convince the Rabanan to agree to his ruling by using that argument. This type of polemic is quite common in the Mishnah and Beraisa, as TOSFOS writes in Zevachim 77b DH Odu Li and elsewhere.)

Now it is clear why the Gemara cannot prove from Rebbi Shimon's own words in the Seifa (in which Rebbi Shimon says that one is exempt from a Korban Shevu'ah in the case of a Kenas because of "v'Chichesh") that Rebbi Shimon is discussing Kenas after Ha'amadah b'Din. Perhaps he is referring to Kenas *before* Ha'amadah b'Din, and yet "v'Chichesh" is still necessary to exempt him from a Korban Shevu'ah in the case of a Kenas. Rather, the Gemara proves that we are discussing Kenas *after* Ha'amadah b'Din from the Reisha, in which the Rabanan say that one is obligated to bring a Korban Shevu'ah for the denial of a Kenas obligation. The Gemara asks how could the Rabanan say that one is *obligated* to bring a Korban Shevu'ah for Kenas when -- according to the Halachic opinion among the Amora'im -- the Rabanan hold that "Modeh b'Kenas v'Achar Kach Ba'u Edim, Patur." This is presents an unarguable case to exempt him from a Korban Shevu'ah -- we do not even know that there is an obligation of Kenas at present altogether, because perhaps he will confess and there will be no obligation to pay. From the Rabanan of the Reisha, who nevertheless obligate him in Korban Shevu'ah for when he denies a Kenas, we have conclusive proof that the Beraisa is discussing Korban Shevu'ah for a Kenas *after* Ha'amadah b'Din. (M. Kornfeld)