The Coming Week’s Daf Yomi by Rabbi Adin Steinsaltz
This essay is based upon the insights and chidushim (original ideas) of Talmudic scholar Rabbi Adin Steinsaltz, as published in the Hebrew version of the Steinsaltz Edition of the Talmud.
This month’s Steinsaltz Daf Yomi is sponsored by Dr. and Mrs. Alan Harris, The Lewy Family Foundation, and Marilyn and Edward Kaplan
According to the Mishnah (26b) a woman who was held captive by non-Jews and held for ransom is permitted to return to her husband after she is released. In such a case, the assumption is that the captors want to be sure that she will be redeemed (al yedei mamon), and will therefore not abuse her. If they had planned to kill her (al yedei nefashot), however, she is forbidden to her husband, since we fear that she was raped, and may even have submitted willingly to the people who were holding her.
In our Gemara, Levi suggests that an example of al yedei nefashot is ben Dunai’s wife. Ben Dunai was a well-known bandit and murderer. According to the Gemara in Masechet Sotah his name was Elazar ben Dunai, and he was also known as Techinah ben Perishah. Ben Dunai is also mentioned in Josephus, who was his contemporary, who writes that for more than 20 years Ben Dunai was head of a band of robbers and murderers in the Galilee, until he was finally tricked into surrendering to the Roman governor and was taken to Rome for trial.
Although there is no clear evidence, from the context it appears that Ben Dunai was not a simple professional criminal, but there was a political angle to his activities. It is likely that his criminal band were partisans who fought against Roman rule in Israel (we find that Josephus refers to a number of the leaders of Bar Kochba‘s great rebellion as “bandits”). This would explain why he was taken to Rome to be tried, rather than being dealt with by the local authorities.
According to Roman law at that time, political criminals who were involved in rebellion would lose all of their property, and all of their possessions would be declared ownerless. Thus we can well understand Levi’s ruling that in such a case such a man’s wife would be perceived as being permitted to all.
Dedicated in honor of the Yahrtzeit of Rita Harris, Rivka bat Yitzhak (17 Tishrei)
The Mishnah (28a) presents a list of statements about which an adult can testify based on what he witnessed as a child. For example, a person can say that he recognizes the signature of his father, his teacher or his brother. He is also believed to attest to the fact that someone would leave school to immerse in the mikvah so that he could eat terumah that is permitted only to a kohen, or that he received terumah that was distributed at the granary.
Our Gemara questions whether receiving terumah is a reliable statement that someone is a kohen. Perhaps that person was a slave whose master was a kohen, and he received the terumah on behalf of his master?
In clarifying the rules of a kohen and his servants, the Gemara relates a disagreement between Rabbi Yehuda and Rabbi Yossi. Rabbi Yehuda insists that such a person can only receive terumah in the granary if he is accompanying his master, the kohen. Rabbi Yossi allows the servant to receive terumah on his own, with the argument that he is deserving of the terumah, either on his own merit as a kohen, or else because he is owned by a kohen. The Gemara explains that this disagreement is based on different practices that existed in each of their communities. In Rabbi Yehuda’s community, receiving terumah was considered tantamount to proof that the recipient was a kohen; in Rabbi Yossi’s community it was not considered proof.
Rabbi Elazar bar Tzadok then relates that this difference almost led to a servant being accepted as a kohen. As explained by the Gemara, while in Rabbi Yossi’s community he saw someone receiving terumah. Upon testifying to this fact in Rabbi Yehuda’s community, the man was almost accepted as a kohen.
The Gemara is certain that ultimately no mistake had been made, arguing that “if no error can ensue from the activities of the animal of a tzaddik, certainly the actions of an actual cannot lead to error.” The source for this concept is a story that appears in Hullin (7a) where Pinchas ben Yair’s donkey refuses to eat food that had not been properly tithed. Although Rabbeinu Tam extends this idea to other areas of halacha, as well (as in our case) Tosafot on our page erase the discussion of this idea, arguing that it only applies to eating forbidden food, and not to other possible errors.
According to the Torah, in the event that a na’arah betula – a young woman who was a virgin – was seduced (mefutah) or raped (ones), if the father agrees, the perpetrator will be obligated to marry the girl. There also is a monetary payment that is made to the father (in the case of seduction it is only if the father chooses to refuse the possibility of marriage; in the case of rape it is in addition to the marriage, which the rapist will not be allowed to end by means of divorce). These rules, which appear in Sefer Shemot 22:15-16 and Sefer Devarim 22:28-29, are written in a succinct fashion, and many of the details and specifics are left for the Talmud to clarify.
The third perek of Masechet Ketubot, which begins on our daf, focuses on these issues, and deals with such questions as:
- Will these rules apply only to a na’arah betula, or should they be applied to a minor (ketanah) and an adult (bogeret), as well?
- Should the rules only apply when the girl has a father? What happens if she is an orphan?
- Is the “right of refusal” only applicable in the case of seduction? Is that right only the father’s or does the girl also have the right to refuse?
The first Mishnah in the perek lists women who will receive kenas (the penalty mentioned in the Torah) if she is raped or seduced, which includes even women who the perpetrator cannot marry, like a mamzeret or an immediate relative. The Shittah Mekubetztet points out that aside from the kenas discussed in the Mishnah, a woman who was attacked will also receive other damages, like boshet (payment for embarrassment). These additional payments are not mentioned in the Mishnah, whose author is basing his teaching on the passages in the Torah, which only specify kenas for the young woman who was raped. Nevertheless, like anyone who suffered personal harm at the hands of another, the rules of nezek (damages) will be applied to the rape victim, as well.
When a calamity takes place, should it always be seen as “an act of God”?
When Yaakov is encouraged by his children to send his son, Binyamin, with them to Egypt to face the viceroy and free Shimon from prison (unbeknownst to him, the viceroy was his own son, Yosef), he refuses to allow Binyamin to travel with them, fearing pen yikra’enu ason – lest a calamity befall him (see Bereshit 42:4). Abayye presents this passage as Yaakov’s fear that a calamity from God would befall him, but Rav Ada bar Ahavah argues that it is not clear that Yaakov is warning them about tzinin u’pachim (heat and cold), he may have been warning them of aryeh ve-ganaveh (wild animals and bandits) – or, for that matter, he may have been warning them about both!
In a counterintuitive fashion the Gemara concludes that tzinin u’pahim are, in fact, dangers that are controlled by our activities, while aryeh ve-ganaveh are considered calamities brought down by heaven. That tzinin u’pachim are in human hands is decided based on a passage in Mishlei (22:5) that teaches that tzinin u’pachim are stumbling blocks that an intelligent person knows to avoid. Based on this the baraita states ha-kol b’yedei shamayim chutz mi–tzinin u’pachim – everything is in God’s hands except for tzinin u’pachim. Aryeh ve-ganaveh, on the other hand, are seen as heavenly messengers, based on a teaching of Rabbi Chiya that from the time of the destruction of the Temple, even though the Sanhedrin no longer operated, still criminals received capital punishments that they deserved. Someone who deserved to be burned would be killed in a fire, someone who deserved to be killed by the sword would be set upon and killed by bandits, etc.
As far as the passage in Mishlei is concerned, most of the commentaries there agree that the words tzinin u’pachim mean thorns and obstacles. Nevertheless, in the context of our Gemara the term is interpreted in a number of different ways. Rashi and most of the commentaries on the Talmud understand it to mean “cold and heat.” The intention, however, is one. Most calamities that befall a person appear suddenly, and a person cannot possibly prepare himself for them. There are, however, calamities that a person brings upon himself because he is not careful and does not plan in advance.
Most of our daf focuses on the Talmudic rule of kim lei be-derabah minei – that is, a person who commits an act for which he is liable to receive two separate punishments, Jewish law will only allow him to be punished once, i.e. he will receive the more severe of the two punishments and be freed of the lesser punishment. Thus, if a person performs an act for which he would receive both capital punishments and lashes, he will not receive the lashes, as the capital punishment suffices as punishment for this act.
Our Gemara examines the opinion of Rabbi Nechunia ben Hakanah who rules that Shabbat and Yom Kippur are the same with regard to this halacha. In other words, he believes that when a person commits a crime for which the punishment is karet (excision from the Jewish people) the rule of kim lei be-derabah minei will be invoked, and karet will be seen as the more severe punishment, even though karet is a punishment that is in the realm of the heavenly court.
According to Rabbi Nechunia ben Hakanah, whenever there is a punishment of death for a given act, the Torah does not impose any other punishments on that person for having performed that act. Since karet includes mittah bi-yedei shamayim – a heavenly capital punishment – the same rule of kim lei be-derabah minei should apply. The Sages who disagree with Rabbi Nechunia ben Hakanah argue that a court can only deal with issues that are within its purview, and it cannot take into account heavenly punishments. Moreover, as the Me’iri points out, a sinner who is liable for karet has the opportunity to engage in a process of teshuva – repentance – and will be forgiven. Transgressions for which the penalty is capital punishment, the court will carry out the sentence, even as it hopes that the sinner will choose to do teshuva.
As we have learned, based on the Talmudic rule of kim lei be-derabah minei, according to Jewish law a person cannot receive two separate punishments for performing a single act. The halacha allows him to be punished only once, i.e. he will receive the more severe of the two punishments and be freed of the lesser punishment. Thus, if a person performs an act for which he would receive both capital punishments and either malkot or mammon – lashes or a monetary fine – he will not receive the lashes or the fine, as the capital punishment suffices as punishment for this act.
It is clear that when one of the punishments for a specific act is the death penalty, that will be the only punishment that the person receives, but what if he deserves to receive lashes and a monetary fine for his act? Which of those two punishments is considered the more severe one? This question is the point of disagreement between Ulla and Rabbi Yochanan on our daf. According to Ulla, the appropriate punishment is to make the person pay; according to Rabbi Yochanan, assuming he was properly warned of the consequences of his actions, he will receive malkot.
Even according to Rabbi Yochanan, however, there are cases in the Torah where an individual will be required to pay and will not receive malkot. Appropriate punishment in the case of hovel ba-haveiro – personal injury – which includes both malkot and mammon – will be to pay the damages. Only in a case where the damage was less than the value of a prutah (an amount so small that it cannot be returned) will malkot be given.
Personal injury is considered a sin for which you deserve malkot because of the Talmud’s interpretation of the passage in Devarim (25:3) that teaches that the court is obligated to punish a criminal with a specific number of lashes, but that more than that will be forbidden. The monetary obligation in such cases will be one or more of the five payments that the court may impose on the person who caused the injury:
- Nezek – loss of value for permanent damage incurred
- Tza’ar – pain and suffering
- Ripuy – medical bills
- Shevet – loss of wages during recovery
- Boshet – embarrassment incurred by the injury.
Which is the more severe punishment: mitah (a death penalty) or malkot (lashes)?
Over the past few dapim when discussing kim lei be-derabah minei, the rule that allows a person to receive only one punishment – the more severe one – when he commits an act for which he is liable to receive two separate punishments, we have worked with the assumption that the death penalty is more severe than malkot. This assumption is questioned by Rav Ashi, who points to a teaching quoted in the name of Rav that seems to suggest otherwise. In discussing the story of Chananiah, Misha’el and Azariah, who were Daniel‘s companions who refused to bow to Nebuchadnezzar’s idol (see Daniel chapter 3) and as punishment were thrown into the fiery furnace, Rav suggests that had they been whipped, they would have relented and bowed to the idol. Thus it appears that malkot was deemed a more severe punishment than mittah. In response, the Gemara brings Rav Sama who distinguishes between the whipping that the three martyrs would have received as punishment that would have effectively been torture, and the lashes meted out by the Jewish courts, which were carefully controlled. He explains that the former may well have been considered a punishment worse than death, while the latter certainly are not.
Rav’s teaching was the subject of much discussion among the rishonim, who point out that the passage in kriyat shema that commands us to love God with all of our souls (see Devarim 6:5) would seem to obligate a person to offer himself up to torture rather than commit idolatry. Why then should we assume that Chananiah, Misha’el and Azariah would have succumbed?
The Rashba quotes Rashi (which does not appear in our editions of Rashi) that reads Rav’s teaching as a question – even if they had tortured Chananiah, Misha’el and Azariah, (i.e. they had given them a more severe punishment) would they have succumbed!? Most of the commentaries follow the lead of Tosafot and argue that Nebuchadnezzar’s idol was not truly a case of avodah zara that is forbidden. Chananiah, Misha’el and Azariah were not really obligated to risk their lives, but they chose to do so in this case. Had they been tortured, however, they may have chosen to accept the letter of the law with regard to this halacha.
In addition to his monumental translation and commentary on the Talmud, Rabbi Steinsaltz has authored dozens of books and hundreds of articles on a variety of topics, both Jewish and secular. For more information about Rabbi Steinsaltz’s groundbreaking work in Jewish education, visit www.steinsaltz.org or contact the Aleph Society at 212-840-1166.
The words of this author reflect his/her own opinions and do not necessarily represent the official position of the Orthodox Union.