QUESTION: The Mishnah records a Machlokes regarding a case where a man was
Mekadesh one out of five women and it is not known which one he was Mekadesh.
According to Rebbi Tarfon, the man must give each woman a Get out of doubt,
but he writes only one Kesuvah and leaves it to the women to decide what to
do with it. According to Rebbi Akiva, he must write a Kesuvah for each woman.
Rebbi Tarfon and Rebbi Akiva similarly argue about a case where one stole an
item from five people and it is not known from whom he stole.
The Gemara cites a Beraisa in which Rebbi Shimon ben Elazar argues with the
Tana Kama regarding the exact cases in which Rebbi Tarfon and Rebbi Akiva
argue. According to the Tana Kama, they argue not only where one stole an
item, but even in a case where one *bought* (and did not steal) an item from
five people and does not know from whom he bought it. Also, the Tana Kama
holds that they argue where one was Mekadesh one of five women with *money*,
and not just with Bi'ah, and does not know whom he was Mekadesh.
Rebbi Shimon ben Elazar, on the other hand, says that the argument is only
where there was an Isur involved, such as when a person *stole* (an Isur
d'Oraisa) from one of five people, or was Mekadesh with *Bi'ah* (an Isur
d'Rabanan) one of five women. The Gemara explains that our Mishnah holds like
Rebbi Shimon ben Elazar, and when it says that Rebbi Tarfon and Rebbi Akiva
argue in a case of "Kidesh," it means a case of Kidesh with *Bi'ah* (and not
with money). The Gemara adds that the reason the Mishnah tells us their
Machlokes in both cases is to teach that even though being Mekadesh a woman
with Bi'ah is only an Isur d'Rabanan, Rebbi Akiva still penalizes the man and
requires him to pay the Kesuvah to each woman.
RASHI (DH Kidesh Katani and DH u'Mai Kidesh) explains the reason why the
Rabanan should give a penalty to a man who was Mekadesh one of five women
with *Bi'ah* even though they do not give a penalty when he was Mekadesh one
of five women with money. Rashi says that he should be penalized because "he
did an action and shamed her." Kidushin with money, though, is not shameful,
nor does it involve an intimate action with the woman.
Why does Rashi give this reason for making the man pay the Kesuvah to each
woman? The Gemara says that the reason why Rebbi Akiva penalizes the man when
he was Mekadesh one of the women with Bi'ah is because the man transgressed
an Isur d'Rabanan. Had he not committed an Isur there would be no penalty,
even though he shamed her! From where does Rashi see that the reason we
should be strict in a case of Kidushin with Bi'ah is because of the shame
that he caused her? (MAHARSHA)
ANSWER: The ARUCH LA'NER explains that the Isur d'Rabanan alone is not
sufficient reason to make someone pay money to five people out of doubt. The
Isur d'Rabanan of Kidushin with Bi'ah (which is because of Pritzus) is not
related to any monetary obligation, and therefore we should not make him pay
more because of an unrelated Isur d'Rabanan.
That is why Rashi understood that there must be an additional factor involved
-- that the Kidushin with Bi'ah, which was an Aveirah, was also done without
the wholehearted consent of the woman (she was persuaded by him because he
refused to be Mekadesh her with money, and thus she had no other choice). In
this sense, it is similar to thievery: the difference between stealing
("Gazal") and buying ("Lakach") is that in one case, the item is taken
without the consent of the owner, and in the other case, the item is taken
with the consent of the owner. Likewise, Kidushin with money is done with the
woman's full consent, while Kidushin with Bi'ah is done with misgivings on
the part of the woman and without her full consent. That is why Rebbi Akiva
instituted the penalty only for Kidushin with Bi'ah (according to Rebbi
Shimon ben Elazar), for it is similar to stealing.
Why, then, does the Gemara say that the penalty for Kidushei Bi'ah is because
the man transgressed an Isur d'Rabanan? Even if there was no Isur d'Rabanan,
he should still be penalized because he shamed her and thus the Kidushei
Bi'ah was not done wholeheartedly and is similar to stealing!
The answer is that, indeed, even if there was no Isur d'Rabanan, there would
still be a penalty, and the man would have to give a Kesuvah to each of the
women. The point of the Gemara is to show that even though there is an Isur
d'Oraisa in the case of stealing and not in the case of Mekadesh with Bi'ah,
nevertheless Rebbi Akiva says that there is a penalty in the latter case. The
Gemara mentions that there is an Isur d'Rabanan involved only because that is
the truth. That is, when it contrasts Kidushei Bi'ah to Gezel, it cannot say
that it is "permitted" to be Mekadesh with Bi'ah since we know that it is
prohibited, mid'Rabanan, due to Pritzus.