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Week 61 - Thursday - 25 January 2001

KETUBOT: CHAPTER 3: MISHNAH 7

What is shame? All depends upon the disgracer and the disgraced. Pegam? They view her as if she is a bondwoman being sold, how much she was worth, and how much she is worth. The fine is uniform for everyone. For whatever has a fixed amount from the Torah is uniform for everyone.

Kehati

Having taught (mishnah 4, above) that the violator and the seducer are obligated to pay for "shame" and pegam, our mishnah discusses the amount of these payments.

What is - the amount of - shame - i.e., how much money is the violator or the seducer obligated to pay for shame? All depends upon the disgracer and the disgraced - the Court assesses compensation for shame according to the person causing the shame and the one who is shamed: the lowlier the person causing the indignity, the greater the shame, and the more distinguished the insulted party, the greater the shame (Rabbeinu Nissim; Tiferet Yisrael). Rambam writes: "All depends upon the disgracer and the disgraced: One who shames an honorable girl from a distinguished family is not to be compared to one who shames a poor, humble girl who is a minor, and one who is insulted by an eminent personality is not to be compared to one who is insulted by a worthless wretch." "According to another opinion, the shame caused by an average person out-weighs that of an inferior person or distinguished person (Rashi; Bartenura; see Tosefet Yom Tov).

What is the amount of pegam? They view her as if she is a bondwoman being sold - the Court estimates how much a person would pay for her if he were to purchase her as a bondwoman to marry off to a favorite bondman, with whom he is pleased (Gemara), how much she was worth - before, as a virgin, and how much she is worth - now, after being violated; the seducer or the violator pays the difference as compensation for the pagam which he caused.

The fine - is uniform for every man - whether he violated a princess or a most humble girl, her fine is "fifty silver," i.e., two hundred dinars of pure silver.

For whatever - payment - has a fixed amount set by the Torah - e.g., the "thirty shekels" which is paid when an ox kills a Canaanite servant (Ex. 21:32), or the "one hundred silver" for slandering one's wife (Deut. 22:19), and similar payments, is uniform for everyone - no distinction is made between a lowly and an important person.

The Gemara asks: How do we know that he is liable for shame, pegam, and pain separately, that these payments are not included in the "fifty silver" stated in the Torah? The Gemara answers: It is written, "Then the man who lay with her shall give to the maiden's father fifty silver" - This amount is solely for the gratification of lying with her implying that he must also pay for shame, pegam, and pain. Our mishnah discusses the three payments made by both the violator and the seducer (shame, pagam, and fine), but not pain which is only paid by the violator. Melekhet Shelomo explains that this is so because pain is evident. Rambam, however, comments: "Pain - according to her age and her physique, and according to his age and physique."

KETUBOT: CHAPTER 3: MISHNAH 8

Wherever there is a sale, there is no fine; and wherever there is a fine, there is no sale. A ketanah has a sale, but she has no fine; a na'arah has a fine, but has no sale. A bogeret has neither a sale nor a fine.

Kehati

The Torah states, "And if a man sell his daughter to be a maidservant" (Ex. 21:7). The Sages interpreted this as referring to a ketanah (Gemara, Arkh. 29b), i.e., a man is permitted to sell his daughter when she is a ketanah, until she shows signs of puberty (two hairs) after reaching the age of twelve years and one day, whereupon she becomes a na'arah, a "maiden," and her father can no longer sell her as a maidservant. This is derived from a kal va-homer (a minori ad majus) argument: If the one already sold goes free (a girl sold by her father as a ketanah is freed when she shows signs of puberty, as it is written, "then shall she go out free, without money" (Ex. 21:11), surely now that she is unsold (i.e., a na'arah) she shall not be sold!" (see Arkh. 29b). The na'arah status is limited to six months, whereupon she becomes a "bogeret."

Wherever there is a sale - the father being entitled to sell his daughter as a maidservant, i.e., as long as she is a ketanah, as will be explained below in the mishnah, there is no fine - payable to the father for his daughter, as a ketanah is not awarded a fine, and wherever there is a fine, e.g., when a man violates or seduces a na'arah, he is obligated to pay a fine of "fifty silver," there is no sale - the father is not entitled to sell her.

The mishnah now goes on to explain this law:

A ketanah - until she reaches the age of twelve years and one day and shows the signs of puberty, has a sale - her father is entitled to sell her as a maidservant, but she has no fine - if a man violates or seduces her, he is not fined. The Gemara explains that this mishnah (as well as mishnah 3:1 ) follows the opinion of Rabbi Meir; the Sages, however, hold that a ketanah (over the age of three years and one day), is entitled to a fine. The halakhah follows the Sages.

A na'arah - a girl who shows signs of puberty, over the age of twelve years and one day, has a fine - which her violator or seducer must pay, but she has no sale - her father is not entitled to sell her as a maidservant, as explained in the introduction to this mishnah.

A bogeret - six months after becoming a "na'arah," has neither a sale - her father may not sell her as a maidservant, nor a fine - is paid if she is violated or seduced. She is awarded "shame" and pagam but only if she was violated; But a bogeret who was seduced does not receive anything, because she released him from all payments (Tosefot Yom Tov).

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