לזכות אמי מורתי שתחיה לברכה והצלחה בכל מעשי ידיה!!!

The mishna at the beginning of the third perek of Ksuvos teaches us about various women whose rapists are obligated to pay a penalty, even though they are also חייב כרת and מלקות. The gemara explains that one would think [if not for the mishna] that the rapist need not pay for various reasons.

A] The opinion of רבי נחוניא בן הקנה that when one is חייב כרת he is absolved from monetary obligations. Our Tanna doesn't pasken like רבי נחוניא. 

B] Because they are חייב מלקות and we pasken that one doesn't get מלקות and also pay. Rav Yochanan explains that the mishna is talking about a case where there was no התראה [warning] and the Tanna holds that when one does an act בשוגג for which he would be חייב כרת, he must pay.

 C] The din of rodef. Since we pasken that one who is pursuing someone to commit a sin for which they are חייב כרת, they may be killed, the pursuer is not liable to a monetary penalty. The gemara in Sanhedrin [73b] answers that we are talking about a case where the pursuer didn't have to be killed but rather could have been neutralized by harming one of his limbs - יכול להצילו באחד מאבריו. 

There is a huuuge question on the Rambam [פ"א מנערה בתולה הי"א] who writes as follows: 

"היתה בתולה זו אסורה על האונס או המפתה אם היתה אחת מחייבי כריתות כגון אחותו או דודתו והנדה וכיוצא בהן או שהיתה מחייבי לאוין אם התרו בו הרי זה לוקה ואינו משלם קנס שאין אדם לוקה ומשלם. ואם לא היתה שם התראה הואיל ואינו חייב מלקות הרי זה משלם קנס".

The Rambam writes that he is חייב קנס when there was no התראה. But this is a wonder! The rapist should still be פטור because he is a rodef and therefore we must be talking about a case where יכול להצילו באחד מאבריו, as the gemara says. Why does the Rambam omit this אוקימתא of the gemara? See Shaar Hamelech [Shabbos 24-10], Noda Bi-yehuda Kamma [Even Ha-ezer 95] and the Achiezer [1-18]. We are going to go on the path of HaGaon Rav Chaim Shmuelevitz ztz"l. 

The gemara [Bava Kamma 117a] says as follows:

דתניא בראשונה היו אומרים המטמא והמנסך חזרו לומר אף המדמע

As it is taught in a baraita: Initially, the Sages would say that one who renders another’s food ritually impure, thereby rendering it unfit for him to consume, and one who pours another’s wine as a libation for idol worship, thereby rendering it an item from which deriving benefit is prohibited, are liable to pay the owner for the financial loss they caused despite the fact that the fact that damage is not evident. Subsequently, they added to this list, to say that even one who intermingles teruma, the portion of the produce designated for the priest, with another’s non-sacred produce, thereby rendering the non-sacred food forbidden to non-priests, is liable to compensate the owner for the loss of value of the produce, as fewer people will be willing to buy it from him.

חזרו אין לא חזרו לא מאי טעמא לאו משום דקנסא הוא וקנסא לא גמרינן מיניה

The Gemara comments: It may be inferred from the baraita that it is only because the Sages subsequently added to the list that yes, one who intermingles teruma with another’s non-sacred produce must compensate him. But if they had not subsequently added to the list, he would not be liable. What is the reason that we do not learn that he is liable from the cases of one who renders another’s food impure or pours wine as a libation for idol worship, as this is also a case in which one causes damage that is not evident? Is it not due to the fact that his payment is a fine, and with regard to a fine, we do not learn from one case that it may be imposed in other circumstances?

לא מעיקרא סברי להפסד מרובה חששו להפסד מועט לא חששו ולבסוף סברי להפסד מועט נמי חששו

The Gemara answers: No, this is not the reason. Rather, initially the Sages maintained that they were concerned with regard to a large financial loss,e.g., the cases of one who renders another’s food impure or pours his wine as a libation for idol worship, but with regard to a small financial loss, e.g., one who intermingles teruma with another’s non-sacred produce, they were not concerned. And ultimately the Sages maintained that they were concerned with regard to a small loss as well and imposed liability.

איני והא תני אבוה דרבי אבין בראשונה היו אומרים המטמא והמדמע חזרו לומר אף המנסך חזרו אין לא חזרו לא

The Gemara asks: Is that so? But didn’t the father of Rabbi Avin teach the baraita as follows: Initially they would say that one who renders another’s produce impure and one who intermingles teruma with another’s non-sacred produce are both liable to pay for the financial loss that they caused, despite the fact that the damage is not evident. Subsequently, they added to this list, to say that even one who pours another’s wine as a libation for idol worship is also liable to pay a fine for the loss that he caused. It may be inferred that it is only because the Sages subsequently added to the list, that yes, one who pours the libation is liable. But if they had not subsequently added to the list, he would not be liable.

מאי טעמא לאו משום דלא גמרינן מקנסא

The Gemara comments: Since one who offers libations for idol worship causes a large financial loss, the rationale offered previously cannot apply to this version of the baraita. Accordingly, what is the reason that the liability for pouring another’s wine as a libation could not be extrapolated from the fine imposed for rendering another’s food impure or intermingling it with teruma? Is it not due to the fact that we do not learn from the imposition of a fine in one case that a fine may be imposed in other cases?

לא מעיקרא סברי כרבי אבין ולבסוף סברי כרבי ירמיה

The Gemara answers: No, this is not the reason. Rather, the reason is that initially the Sages held in accordance with the opinion of Rabbi Avin, and ultimately they held in accordance with the opinion of Rabbi Yirmeya.

מעיקרא סברי כרבי אבין דאמר רבי אבין זרק חץ מתחילת ארבע ולבסוף ארבע וקרע שיראין בהליכתו פטור שהרי עקירה צורך הנחה היא ומתחייב בנפשו

The Gemara elaborates: Initially they held in accordance with the opinion of Rabbi Avin, as Rabbi Avin says: If one stood in the public domain on Shabbos and shot an arrow from the beginning of an area measuring four cubits to the end of an area measuring four cubits, and the arrow tore another’s silks [shira’in] in the course of its travel through the air, the one who threw it is exempt from paying for the cloth. The reason for this is that lifting an item is a necessity for placing it elsewhere, and therefore the entire process, from when one shoots the arrow until it comes to a rest, is considered to be a single act. The one performing it is liable to receive the death penalty for violating Shabbos. One who performs a single act for which he is liable to receive the death penalty and is also liable to pay money receives only the death penalty. Similarly, one who pours another's wine as a libation for idol worship incurs the death penalty, and is therefore exempt from paying for the wine.

ולבסוף סברי כר' ירמיה דא"ר ירמיה משעת הגבהה קנייה איחייב ליה ממון מתחייב בנפשו לא הוי עד שעת ניסוך

And ultimately they held that the liabilities are not incurred simultaneously, in accordance with the opinion of Rabbi Yirmeya, as Rabbi Yirmeya says: From the time of the lifting, the thief acquires the wine and is therefore immediately liable to pay money to the owner. But he is not liable to receive the death penalty until the time that he pours the libation. Once the Sages concluded that the liabilities are not incurred simultaneously, they ruled that one who pours another’s wine as a libation for idol worship is liable to reimburse him.

The question we must look into is why would we think to compare the case of יין נסך to the case of R' Avin when he shoots the arrow? In the latter case, the עקירה and the passing through the 4 amos is part of the מחייב [what obligates him] and R' Avin correctly says that since he is already חייב מיתה from the time of the עקירה, he is exempt from payment. However, the lifting up of the barrel is not part of the מחייב of ניסוך [libation]. So why did the gemara originally think to compare the two cases and say that since he lifted up the barrel for the ניסוך, he is going to be exempt from payment. The lifting of the barrel is clearly not part of the מחייב for the ניסוך?!! OF COURSE he is going to have to pay!! The gemara rejects this הוה אמינא but what was the gemara thinking in the first place?? 

We can apparently answer based on what Rebbi Akiva Eiger says [דרוש וחידוש יבמות נ"ט. ובקצרה בסוגין]: We pasken that if one does העראה [the beginning of penetration] and then someone else came along and performed a complete ביאה, there is no קנס. The reason is that the first person already removed her בתולים and the Torah only obligated a rapist of a בתולה if he did both העראה and the end, גמר ביאה, as well. Even though in a case when the same person starts and completes the ביאה, by the time he is doing the גמר ביאה she is no longer a בתולה, he is nevertheless חייב since he was responsible for removing her בתולים [as Tosfos says there is יבמות]. According to this Rebbi A"E suggested a novel thought - That if by doing the העראה he was חייב מיתה, it is impossible that this ביאה should bring upon him a monetary obligation. It is as if the העראה was done by someone else or by itself and therefore he can't be חייב for completing the ביאה because she already because a בעולה beforehand [halachically not by him], in which case he is פטור. That is the meaning of the gemara's question of how can we punish him with both ממון and מלקות. We can't say that the ממון is for the גמר ביאה and the מלקות or מיתה is for the העראה since we view the העראה as if he didn't do it [vis a vis the חיוב ממון].

He proves this from a Tosfos in Gittin [נ"ג. ד"ה מנסך] who explains why according to Shmuel מנסך Is פטור because of קלבדר"מ:

ועוד י"ל דטעמא דשמואל אף ע"ג דהגבהה לאו צורך דניסוך הוא אפי' הכי פטור כיון דאשעת ניסוך לא מחייב דקים ליה בדרבה מיניה אשעת הגבהה נמי מיפטר דאמר לו הרי שלך לפניך כמו תרומה ונטמאת

It is also possible to say that Shmuel's reasoning is that even though picking up the wine is not necessary for pouring, even so he is exempt. Being that he is not liable for the time of the Nisuch, as Kam Ley etc., he is also exempt when he picked up the wine. He can say to the person, "Harei Shelcha Lefanecha" -- "Here is yours before you," as in a case where Terumah became impure.

דכמו דאם נסכו אחר אומר לו הרי שלך לפניך הכי נמי כי ניסך ליה איהו אע"ג דמנסך ליה בידים כיון דקים ליה בדרבה מיניה

If someone else would pour it, he can say, "Harei Shelcha Lefanecha." Similarly, if he pours it, even though he did so with his hands, he can say this because of Kam Ley etc. 

The picking up of the barrel is the time of the actual חיוב ממון while his pouring is a condition that there be a חיוב ממון, because if someone else pours then there is no חויב ממון for the person who picked it up [only when the גזלן himself did the היזק שאינו ניכר must he pay]. Since when he pours he is חייב מיתה, we view it is as if someone else did it and he is thus פטור from the חיוב ממון. So we see again that we view the entire מעשה as one unit. Even though the pouring is only a condition of the חיוב ממון and not the actual מעשה המחייב, nevertheless we say קלבדר"מ and his חיוב מיתה for that [later] stage, exempts him for the actual מעשה המחייב of stealing when he lifts up the barrel. So too, when he is חייב מיתה for the העראה, which is but a condition for the חיוב ממון, we say קלבדר"מ and view it as having been done by someone else, thereby exempting him from the חיוב ממון for the [later stage of] גמר ביאה.  In both cases we view the various מעשים as an organic whole and a חיוב מיתה for one stage, exempts him from ממון for the other.

We from R' A"E that in the din of קים ליה בדרבה מיניה there is not only a פטור from the חלות חיוב, that there are no monetary obligations when he is חייב מיתה, but more than that. קים ליה בדר"מ means that an action for which he is חייב מיתה doesn't relate to him at all. Therefore, he is exempt from monetary obligations. And in addition, קלבדר"מ relates not only to the time of the חלות חיוב, in other words the primary action for which he owes money, but even to those actions that constitute necessary conditions for his חיוב ממון. Those actions are considered as if he hadn't performed them. [If the din of קלבדר"מ only related to the removal of the חיוב ממון, then there would be no reason to make him exempt when the din of קלבדר"מ applied during the time of the necessary conditions for the חיוב, because bottom line, HE performed the action and at the time of the חלות חיוב there was no din of קלבדר"מ.]

Based on the foregoing we can explain the sugya. The reason we compare the case of יין נסך to the case of R' Avin even though the עקירה of the arrow caused the חיוב, unlike the lifting of the barrel is because bottom line - the lifting of the barrel is one מעשה together with the actual ניסוך. Therefore we can say that it is for the sake of the ניסוך. The reason is that since the principle of קלבדר"מ is that the מעשה is "deactivated" [so to speak] and doesn't relate to him, we can logically say that ALL PARTS of the מעשה don't relate to him, even if it is not part of the actual מחייב, because every detail needed for the מעשה is part of it [even the "conditions"]. Whereas if we would learn that the פטור of קלבדר"מ only relates to the חלות חיוב, namely that when he is obligated in מיתה there is no monetary obligation, then we could only exempt him from acts committed during the actual time he is חייב מיתה.  

That sounds really good!! So why then does the gemara reject this הוה אמינא?? Tosfos explains [ל"א. ד"ה שעקירה] that R' Yirmiya holds that since one can theoretically perform ניסוך without lifting up the barrel, the lifting is not considered one מעשה with the ניסוך and he is thus חייב ממון for the lifting.

It appears that the Rambam has a different way of understanding the conclusion of the gemara. In his Peirush Hamishnayos on Gittin, he writes as follows on the mishna which says that if one does ניסוך בשוגג he need not pay while במזיד he must pay damages:

"ומה שאמר המנסך אפשר זה על א' מב' דרכים וכו' והדרך השני שינסכהו לע"ז וידע שהיין אסור בזה הניסוך כשיהיה מזיק בנזק ולא ידע שהוא חייב סקילה כשמנסך אותו לע"ז, לפי שאם היה יודע ג"כ שהוא חייב סקילה לא היה חייב בתשלומים לפי שהעיקר אצלנו אין אדם מת ומשלם במו שביארנו בפ"ג מכתובות". 

He says that the case of מנסך is that he knew that ניסוך is אסור and that he is causing damage [because the wine is forbidden] but didn't know that there is a חיוב סקילה, because if he would know about the חיוב סקילה he would be פטור. For a person cannot be חייב מיתה and pay as well according to the rule of קים ליה בדרבה מיניה. Therefore it [במזיד חייב] is talking about a case where he was שוגג on the act of ניסוך i.e. he didn't know that there is a חיוב סקילה, but מזיד on the damage - he knew that what he was doing is forbidden and damaging. 

The commentaries had a LOT of trouble with this explanation. How can the Rambam say that if he is שוגג on the איסור ניסוך, then he must pay? He paskens in numerous places like תנא דבי חזקיה that if one performs an איסור בשוגג for which he would be חייב מיתה if done במזיד, then he is פטור from payment.

Also, how can he say that he would be פטור because of קים ליה בדר"מ [if he knew that there was an איסור סקילה]. In the gemara it says that there is no קלב"מ, because he already acquired it at the outset when he picked it up and the חיוב מיתה only transpired when he did the ניסוך. So how can the Rambam say that there is a פטור of קלב"מ when the gemara says that there isn't because the חיוב ממון took effect before the חיוב מיתה??

It seems that the Rambam explains that the reason Rav obligates for מנסך ממש [he actually made a libation to an idol and not that he mixed it with יין נסך as Shmuel held] is because he acquires it when he lifts it up [even though the lifting up is in order to pour it] and the mishna is talking about מנסך בשוגג. Rav holds that there is a distinction between the din of קלבדר"מ when the עבירה is done במזיד and the din of those who did an act בשוגג for which they would be חייב מיתה במזיד. This principle of Tosfos that קלב"מ effectively renders the מעשה as having been done by a different party is only במזיד but not בשוגג because שוגג was only included in the basic דין of קלב"מ, that there is no חיוב ממון for a מעשה for which one would be חייב מיתה if done במזיד, but not that the מעשה is "deactivated" and doesn't relate to the doer. 

We see this from the Maharshal [cited in the Ktzos 28-1] who says that in a case where קלב"מ applies, one has to be לצאת ידי שמים [fulfill his Divine mandate] and pay and that תפיסה is effective [the victim may forcibly take the item back]. But that is only בשוגג but במזיד where the more severe punishment is actually carried out, there is no חיוב even לצאת ידי שמים and תפיסה is ineffective. The distinction between שוגג and מזיד can be explained as follows: בשוגג we don't say that it is as if someone else did it but rather it is just a פטור from the חיוב. There we say that there is an obligation לצאת ידי שמים. Whereas במזיד, when the more severe punishment is meted out, we view the act [that obligates payment] as having been done by a third party, so there is not even a חיוב לצאת ידי שמים. [When we carry out the more severe punishment it is like payment has been rendered because the bodily punishment encompasses the monetary payment. So there is no חיוב left which would mandate a rule of לצאת ידי שמים. Hence, he is completely off the hook]. 

Based on this we understand that there is a distinction between מזיד and שוגג even with respect to the lifting of the barrel, about which the gemara says מדאגביה קנייה - he is קונה at the time of the lifting. If the ניסוך is done במזיד [i.e. he knew that there is a חיוב סקילה], then the ENTIRE מעשה is divorced from him [as we saw in the part 1], even the part that is not actually מחייב מיתה and therefore he is not liable for the act of lifting up the barrel. Only בשוגג Rav holds that that he is חייב for the lifting [i.e. גזילה], because בשוגג it is not the entire act that is פטור but rather the חיוב מיתה proper is פוטר, meaning that for the very act for which he is חייב מיתה he cannot be חייב ממון. In that case, Rav said that he can only be exempted during the same stage [of איסור] and not for a different act at a earlier or later stage.

That is all according to Rav. But Shmuel argues and and says that we can't establish the mishna as saying that he must pay when he is מנסך ממש because of קים ליה בדר"מ. Based on our understanding Shmuel's reason is that he holds that we can't distinguish between שוגג and מזיד when it comes to קלב"מ. Just like with regard to מזיד, we say that it is as if someone else had done the ניסוך, so too שוגג because the rule of קלב"מ applies in the same way to both [not like the principle of the Maharshal]. It is the ENTIRE מעשה which creates the exemption. And therefore he holds that you can't say מדאגביה קנייה - that when he lifts up the barrel he acquires it and is considered a thief because ALL parts of the מעשה are exempt due to קלב"מ - even the part that is not מחייב מיתה. Thus, he is פטור even for the lifting.     

To summarize - Rav holds that only if he does the ניסוך במזיד [knowing that there is an איסור סקילה] we say that the entire act doesn't relate to him - including the lifting. But if he was שוגג on the ניסוך [he knew that he is doing damage but thought that there is no סקילה], then he can be obligated to pay for the lifting of the barrel. Shmuel holds that even when he is שוגג on the ניסוך, he is totally exempt. So he had to come up with another explanation why he would have to pay [and so he said that it is talking about when he mixed it with יין נסך].  

According to this, the words of the Rambam in the Peirush Hamishnayos and the gemara complement each other. The root of the obligation of the מנסך is because he is a גזלן when he lifts up the barrel of wine, as the gemara says, because we don't say that the lifting is for the sake of ניסוך. But this is all בשוגג, as the Rambam explained in his Peirush Hamishnayos. When done במזיד [i.e. he knows that there is a חיוב סקילה], since קים ליה בדר"מ and we carry out the more severe punishment, we go even further and say that the act obligating money was done by another person. That would include then all parts of the מעשה including the lifting of the barrel in order to do ניסוך. Only בשוגג where we don't have this earth shattering chiddush that the entire act is effectively deactivated from him, we are able to view the lifting independently and obligate him. So now we understand the Rambam who establishes the case where he must pay as talking about שוגג [on the חיוב סקילה but מזיד on the damage]. And we are no longer troubled by the fact that the Rambam paskened like תנא דבי חזקיה that חייבי כריתות שוגגין are פטור from payment, so he should be פטור despite the fact that he is שוגג. The answer is that he is חייב for the act of lifting the barrel. שוגג only makes him פטור when he was שוגג on the same act that would be מחייב מיתה if done במזיד. If the ניסוך would have been done במזיד, then he would also be off the hook for the lifting, because מזיד detaches the entire מעשה from the sinner vis a vis the monetary obligation.