Kim Lei Be’Deraba Minei

Ketubot (3:1) | Yisrael Bankier | 12 years ago

The third perek begin by differentiating between particular cases of ones where one is obligated to pay the knas and when one is not. Where the relationship is a capital offense, then the offender is exempt from paying the fine. If however it is punishable with karet, then the fine must be paid (and the other components of the monetary compensation). 

The reason for the exemption in the former case is the principle of kim lei be’de’rabah minei. Put differently, when faced with different punishments, we only serve the harsher punishment. 

The Gemara (30a) brings a Beraita that reveals a debate regarding whether when faced with karet and monetary compensation both punishments apply. Our Mishnah seems to suggest that it can. R’ Nechunya ben Hakana however argues that they cannot. In the cited Beraita, R’ Nechunya equates Yom Kippur (where the punishment for performing melacha is karet) with Shabbat (where it is a capital offence) such that if one set his friend stack of wheat alight on Yom Kippur, he would be exempt from monetary compensation. 

Both appear to derive their positions for the same passuk. The Torah (Shemot 21:22) teaches, “If men shall fight and they collide with a pregnant woman and she miscarries, but there will be no fatality (ason), he shall surely be punished…” The Chachamim understand that this means that if there is a fatality, i.e. a capital punishment, then there will be no monetary compensation. Abaye explains that according to R’ Nechunya the term ason is used for both death cause by man and death cause by heaven. Rava on the other hand provides a different drasha that effectively equates the two.

How do we understand the principle of kim lei? It is quite a large topic and we will only scratch the surface. The Gemara in Bava Metzia (91a) teaches that if one muzzles a cow and uses it to thresh he receives lashes and is obligated to pay compensation. This appears to contradict kim lei. Rava answer that we find that an etnan given to a mother is still assur. Rashi explains that even though if the mother took him to court to depend that the etnan be paid he would not be obligated due to kim lei, this is because the Beit Din do not have the power to punish him twice. Nevertheless the obligation of payment is still there and once given it is considered an etnan. Likewise, in the case of the muzzled cow, the obligation to pay is certainly there; it is Beit Dinwho do not have the power to force him to pay it. The Ketzot explains that Rashi maintains that if the other party would then seize the funds due to him, he would not be required to pay them back.

We find that according to Rashi the principle of kim lei sits with the inability to execute judgement twice here. Nevertheless the person is not truly exempt on that second count. In our case, complete teshuva would require the monetary compensation despite Beit Din’s inability to demand it.


Weekly Publication

Receive our publication with an in depth article and revision questions.

Subscribe Now »

Audio Shiurim

Listen to the Mishnah Shiurim by Yisrael Bankier

Listen Now »