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Kesuvos, 44

44b

QUESTIONS: Rebbi Yosi bar Chanina says that a man who is Motzi Shem Ra about a girl who is a Yesomah (whose father died) is exempt from paying the Kenas, because the verse says, "And he shall give it to the father of the girl" (Devarim 22:19), teaching that only when the girl has a father is the man obligated to pay the Kenas. The Gemara challenges this with a Beraisa in which Rebbi Yosi ha'Gelili says that we learn from the verse, "Im Ma'en Yema'en..." -- "If her father refuses to give her to him, he shall weigh out silver..." (Shemos 22:16), that a Yesomah *does* receive a Kenas (in the case of a Mefutah).

RASHI explains that we see this from the double use of the term "AMa'en Yema'en." The extra wording teaches that either the girl's father may refuse the marriage to the Mefateh, or the girl herself may refuse the marriage if her father is not alive. If she refuses the marriage, then the Mefateh must pay a Kenas to her. Even though the verse regarding the Kenas of an Anusah says that the Kenas is paid to the father of the girl ("la'Avi ha'Na'arah;" Devarim 22:29), and the Kenas of a Mefutah is learned through a Gezeirah Shavah from the Kenas of an Anusah, nevertheless the Kenas is paid even when there is no father. Likewise, in the case of Motzi Shem Ra, when there is no father a Kenas is paid to the girl.

Rashi then asks that perhaps there is a difference between the Kenas of a Mefutah and the Kenas of Motzi Shem Ra. In the case of a Mefutah, there is a special verse ("Ma'en Yema'en") that says that the Kenas is paid to the Yesomah. But in the case of Motzi Shem Ra, there is no extra wording in any verse to teach that the Kenas is paid to the girl. Rashi answers that in the case of a Mefutah, there is also no special extra wording in the verse. The verse of "Ma'en Yema'en" is not extra and it is not teaching that the girl receives the Kenas. Rather, the Tana simply holds that the words "la'Avi ha'Na'arah" ("the *father* of the girl") is only teaching that when the father is alive, he gets the Kenas, and it is not teaching that a Kenas is *only* given when the father is alive.

Rashi's words are difficult to understand for several reasons.

First, if the Tana is just telling us that a Yesomah also receives a Kenas, then why does he need to cite the verse of "Ma'en Yema'en" and say that the *verse is teaching* that a Yesomah also receives a Kenas? If, as Rashi says, the verse is *not* teaching that a Yesomah gets a Kenas (but rather, there is no contradiction from the verse against saying that she receives it), then the Tana should say simply that a Yesomah receives the Kenas, without quoting the verse! (RABEINU KRESKAS)

Second, if Rashi is learning that the words "Ma'en Yema'en" do not serve to teach that a Yesomah receives a Kenas, then why does Rashi say in the beginning of his comments that the word "Ma'en" refers to the father, and "Yema'en" is coming to include the daughter when there is no father? According to Rashi's conclusion, that is not what the verse is saying altogether! The verse is not teaching that a Yesomah is paid a Kenas, according to Rashi's conclusion, so why does Rashi begin his explanation by telling us that it *is* referring to a Yesomah?

Third, how could the words "Ma'en Yema'en" *not* be teaching that a Yesomah receives a Kenas? The Gemara earlier (39b, as Rashi cites here at the beginning of his gloss) uses this very verse to teach that either the father or the girl herself may veto the marriage to the Mefateh. If her father is alive, then how can she veto the marriage? When she is a Ketanah or Na'arah, the father could marry her off against her will, so if the father wants her to marry the Mefateh, she should have no veto power! Thus, the only time she may veto the marriage is after her father has died. Hence, the verse must be telling us that after the father dies, she still receives the Kenas!

ANSWERS:

(a) RABEINU KRESKAS explains that the verse of "Im Ma'en Yema'en" which teaches that the girl herself may refuse the marriage might indeed be discussing a girl whose father is alive. The verse is simply telling us that if the girl refuses to marry, the Mefateh must pay the Kenas even though the father could then force her to marry him in any case. The Mefateh would then have to pay the Kenas (since the girl refused o marry him) *even though* he marries the girl (if her father did not refuse the marriage and agrees to let him marry her -- Tosfos 39b, DH Ein Li offers a similar explanation).

What does the verse have to do with a Yesomah, then? Rabeinu Kreskas explains that had the verse not told us that the girl may also refuse the marriage, then even if the words "la'Avi ha'Na'arah" do not exclude a Yesomah, a Yesomah would be excluded (from receiving the Kenas) for an entirely *different* reason. She would be excluded because had her father been alive, perhaps her father would have agreed to the marriage and the Mefateh would not have to pay the Kenas. The fact that she refused the marriage would make no difference, since I would think that it is entirely dependent on the father's agreement to the marriage. Rebbi Yosi ha'Gelili is saying that now that the verse tells us that *she* may also refuse the marriage (and claim the Kenas of Mefuteh on those grounds), then this reason to exempt the Mefateh of a Yesomah from paying the Kenas will not apply, and therefore the Yesomah will receive a Kenas (assuming she was a Ketanah who cannot be Mochel).

This answers all of our questions. Rebbi Yosi ha'Gelili is indeed learning that a Yesomah is entitled to a Kenas from the verse, "Ma'en Yema'en," and he *is* learning from the extra word that the girl herself may refuse the marriage and obligate the Mefateh to pay a Kenas, but he is *not* learning from that word specifically that there is a Kenas after the father dies. Perhaps she could refuse only when the father is alive and thereby obligate the Mefateh to pay the Kenas. The fact that she could refuse when the father is dead is assumed on logical grounds, since the words "la'Avi ha'Na'arah" do not exclude a Yesomah.

(b) We could suggest another, simple answer to explain Rashi's intention here. Rebbi Yosi ha'Gelili is certainly learning from "Ma'en Yema'en" that the daughter may refuse the marriage if the father no longer has Reshus over her. However, that does not necessarily mean that when she is a Yesomah at the time of the Pituy she gets the Kenas; it might mean that she gets the Kenas only when she is a Na'arah at the time of the Pituy, but *afterwards* either her father died or she became a Bogeres (as TOSFOS 39b DH Ein Li explains in his second answer, citing Rashi's words in our Sugya for support). When Rebbi Yosi ha'Gelili says that a Yesomah *at the time of the Pituy* gets the Kenas, he cannot be learning this from the verse of "Ma'en Yema'en," so he must be saying this based on logical grounds, i.e. that the words "la'Avi ha'Na'arah" do not exclude a Yesomah.

This answers all of the questions. The verse indeed is using extra wording in order to teach that a Yesomah may refuse the marriage, but it does not teach specifically that a Yesomah *at the time of Pituy* gets a Kenas. That point is learned from logic, and applies to a Motzi Shem Ra as well.

The Gemara rejects the proof, saying that when Rebbi Yosi ha'Gelili mentions a "Yesomah," he is indeed referring to a girl whose father was alive at the time of Pituy but who died afterward.