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Kesuvos, 45

1) CHANGING A PERSON'S PUNISHMENT DUE TO A CHANGE IN THE PERSON

QUESTION: Shila states that there are three different stages in the culpability of a Na'arah who was Mezanah (1) If witnesses come after the wedding (Nesu'in) and testify that the Na'arah was Mezanah before the wedding (during Erusin), she gets Sekilah at the gate to her father's house. (2) If they testify before the wedding, while she still is an Arusah, she gets Sekilah at the gate to the city. (3) If, after she was Mezaneh, she became a Bogeres, she is punished with Chenek and not with Sekilah. The reason for this is that had she sinned now as a Bogeres, she would be punished with Chenek, and therefore she is punished with Chenek now even though she sinned when she was a Na'arah.

The Gemara questions this from a Beraisa which says that if a husband is Motzi Shem Ra on his wife, saying that she was Mezanah when she was a Na'arah Me'urasah, then even though she is now a Bogeres, her punishment does *not* change and she still gets Sekilah.

Rava answers that the second Beraisa is discussing a case of Motzi Shem Ra, where the husband brings the testimony to court and accuses his wife of being unfaithful. In such a case the Torah is Mechadesh that she gets Sekilah even though now she is married (and a married woman who is Mezanah normally gets Chenek and not Sekilah). Just as she can be punished with Sekilah even if she marries after her sin, she can be punished with Sekilah even if she becomes a Bogeres after her sin. The Beraisa of Shila, though, is discussing a woman who was not accused by her husband of being unfaithful, but witnesses testified in court on their own accord to her guilt. In that case the Torah is not Mechadesh that she retains the original punishment even after her situation changes. In such a case, Rava seems to be saying, if she becomes either married or a Bogeres, her punishment will change.

How can Rava suggest that in Shila's case, her punishment will change according to her status at the time of the testimony? Shila says (in the first of his three cases) that when witnesses testify after her marriage (when she would normally get Chenek for being Mezanah) that she was unfaithful during Erusin, she retains the original punishment and gets Sekilah! If Shila is not talking about Motzi Shem Ra but a regular court case of adultery, then the punishment should change according to the present status of the woman, according to Rava! (TOSFOS, DH Amar Rava)

ANSWERS:

(a) TOSFOS answers that the *first* case of Shila's three cases indeed involves testimony in a case of Motzi Shem Ra, i.e. where the husband brings the case to court. That is why the original punishment remains even though now she is married. When Rava said that Shila is not discussing Motzi Shem Ra, he was referring to the *second two* cases of Shila -- the case of testimony during Erusin, and the case of testimony after she became a Bogeres; those cases refer to a woman who was *not* accused of infidelity by her husband, but was incriminated by witnesses who came on their own. The second case is obviously talking about when she was not accused by her husband, because she is only an Arusah and the husband cannot know that she is a Be'ulah, and the third case is a continuation of the second case.

(b) The RASHBAM (cited by Tosfos) and the RAMBAM (Hilchos Isurei Bi'ah 3:9) explain Rava's answer differently. Rava does not mean that Motzi Shem Ra is unusual because she retains the Sekilah even after her status changes from an Arusah to a Nesu'ah; there is nothing unusual about that at all. A *Halachic* status change is not enough to effect a change of her punishment (from Sekilah to Chenek). The only change that could affect her punishment is a *physical* change, such as the transition from Na'arus to Bagrus. That is why Rava would agree that in Shila's first case, the woman would be punished with Sekilah even though the testimony came after she was married.

What, then, is the Chidusha of Motzi Shem Ra according to this approach? In what way is Motzi Shem Ra an unusual case? The answer is that Motzi Shem Ra is punished with Sekilah even if she was unfaithful to her husband *after* the wedding (Nesu'in). Normally, a woman is punished with Chenek for being Mezanah after the Nesu'in. But if a woman was Mezanah after the Nesu'in *before the first Be'ilah* with her husband, then -- in the case of Motzi Shem Ra, where she is accused by her husband of being unfaithful and found guilty -- she is punished with Sekilah. Since Motzi Shem Ra is so unusual in this regard, Rava suggests that it should also be unusual with regard to a physical change effecting a change in the punishment: if she becomes a Bogeres after the Z'nus, her punishment will not change and she will still get Sekilah.

45b

QUESTION: The Gemara cites a Beraisa in which Rebbi Yehudah says that a man who is falsely Motzi Shem Ra about his wife receives *Malkus* even if he is Motzi Shem Ra before his first Be'ilah with her. However, he is punished with the *Kenas* of 100 Shekel only when he is Motzi Shem Ra *after* the first Be'ilah. Rashi explains that Rebbi Yehudah holds like Rebbi Eliezer ben Yakov who says that the verse which describes the obligation to pay a Kenas is discussing Hotza'as Shem Ra after the first Be'ilah. Why, then, does the man get Malkus for being Motzi Shem Ra *before* the Be'ilah?

Rashi explains that Rebbi Yehudah is following his own view that "Lav sh'Ein Bo Ma'aseh, Lokin Alav" -- one is punished with Malkus even for committing a Lav that involves no action. The verse that teaches the Lav for Motzi Shem Ra is "Lo Selech Rachil" (Vayikra 19:16), and it applies whether the Hotza'as Shem Ra was committed before or after the Be'ilah. Therefore, the Malkus is not dependent upon the Be'ilah.

Later, the Gemara cites another Beraisa in which Rebbi Yehudah contradicts himself, and says that Motzi Shem Ra only gets Malkus if he is Motzi Shem Ra after the Be'ilah. Rav Nachman bar Yitzchak answers that what we assumed originally is wrong. Rebbi Yehudah must hold that since the Torah is discussing a man who is Motzi Shem Ra after Be'ilah, even Malkus is only administered, mid'Oraisa, for Motzi Shem Ra after Be'ilah. The Malkus that Rebbi Yehudah says he gets for Motzi Shem Ra before the Be'ilah is only Malkus d'Rabanan.

According to Rav Nachman, why should Rebbi Yehudah exempt him from Malkus d'Oraisa for Motzi Shem Ra before the Be'ilah? Rashi is correct that Rebbi Yehudah holds that one gets Malkus for a "Lav sh'Ein Bo Ma'aseh," and thus he should get Malkus for being Motzi Shem Ra (and transgressing "Lo Selech Rachil") even without doing a Ma'aseh of Be'ilah! How do we explain Rav Nachman's logic?

ANSWER: The verse of "Lo Selech Rachil" prohibits not only being Motzi Shem Ra about one's wife, but any Lashon ha'Ra. According to Rebbi Yehudah, would every speaker of Lashon ha'Ra be punished with Malkus?

It seems that Rebbi Yehudah agrees that a normal case of Lashon ha'Ra is not punishable with Malkus, because -- like Tosfos DH Rebbi Yehudah says -- by telling us that one gets Malkus ("v'Yisru;" Devarim 22:18) in the situation described in the Torah, the verse is telling us that under other circumstances one would *not* get Malkus for transgressing "Lo Selech Rachil." If so, even if a man is Motzi Shem Ra about his wife but his wife is a Bogeres, it is clear that Rebbi Yehudah would not obligate him for Malkus because of the Lav of "Lo Selech Rachil," because the Torah limits the application of the punishment for the Lav to a specific case. If so, we can defend Rav Nachman bar Yitzchak's logic in the same manner. Rav Nachman bar Yitzchak says that if the man was Motzi Shem Ra before the Be'ilah, the Torah excludes that case from Malkus.

But now our question on Rashi may be reversed: How does Rashi learn in his original explanation, when he says that Rebbi Yehudah holds that one gets Malkus for "Lo Selech Rachil" even if one was Motzi Shem Ra before Be'ilah? The verse is discussing Motzi Shem Ra *after* Be'ilah, and is excluding every other case! It does not seem logical to suggest that Rashi held Rebbi Yehudah will give Malkus to every person who speaks Lashon ha'Ra.

The answer is that Rashi learns that the Torah is only excluding Malkus in a case which is *not as severe* as the case described in the verse. If the woman is an Arusah as opposed to a Nesu'ah, or when she is a Na'arah as opposed to a Bogeres, there is more disgrace to her and her father's family, since she is still partially in her father's domain. Similarly, there is more disgrace if she was a Besulah and not a Be'ulah. If any of these conditions are missing (she is a Nesu'ah, or a Bogeres, or a Be'ulah), then the verse teaches that the man who is Motzi Shem Ra about her will *not* get Malkus.

But whether the Hotza'as Shem Ra occurs before the Be'ilah or after the Be'ilah does not make a difference in the degree of disgrace to the woman; it is the same disgrace to the woman no matter when he is Motzi Shem Ra. The only difference between the two acts of Motzi Shem Ra is in the brazenness of the man: if, after the Be'ilah, he claims that he found her to be a Be'ulah when she really was a Besulah, then he is acting more brazenly and there is more reason for him to pay the 100 Shekel penalty. The Malkus of "Lo Selech Rachil," though, is not for his brazenness, but for causing disgrace to the woman. (That is, the sin of Rechilus is clearly Bein Adam la'Chaveiro.) Therefore, both actions can be classified as "Motzi Shem Ra" with regard to Malkus, and the verse will not be excluding Motzi Shem Ra before the Be'ilah from Malkus.

Rav Nachman bar Yitzchak argues and says that Motzi Shem Ra before the Be'ilah is not called Motzi Shem Ra and it is not the act that the Torah describes. Even though being Motzi Shem Ra before the Be'ilah (as opposed to after the Be'ilah) does not seem to diminish the disgrace to the woman, the Torah limits Malkus to the specific case where one is also punished with a Kenas, i.e. where he is Motzi Shem Ra after the Be'ilah. (Perhaps we can go further and suggest that Rav Nachman bar Yitzchak learned that the Malkus is also for his brazenness, and not just for the Rechilus. The Pasuk of "Lo Selech Rachil" is not giving the *reason* why the Malkus is administered by Motzi Shem Ra, but rather is just telling us that there *is* a Lav, and Malkus, by Motzi Shem Ra.) (M. Kornfeld)