Naarah Betulah - Chapter Two

As explained in the following halachot.

Inah, the word translated as ‘‘violated,’’ more specifically means ‘‘oppressed.’’ Signifi-cantly, Exodus 22:15, which describes the fine of the seducer, does not use this term.

The Rambam is employing the instance of the daughter of a bastard primarily as a figureof speech. The commentaries have noted that if in fact one has relations with the daughter ofa bastard, in most instances the transgression of a negative commandment is involved, andthe violator should be lashed rather than fined, unless a warning was not given.

Obviously, the penalty to be paid to the former exceeds that to be paid to the latter.

Rav David Arameah explains that the intent is that the embarrassment suffered at the hands of a person of stature is more significant. The commentaries note, however, that in Hilchot Chovel UMazik 3:1, the Rambam states that the embarrassment suffered at the hands of a base person is more severe.

The younger and smaller a girl, the more painful is the experience. Similarly, the olderand larger the rapist, the more painful the experience is.

The Rambam mentions the divorce as being dependent on the woman, because therapist cannot initiate divorce, as stated in Chapter 1, Halachah 3.

In contrast to other women, who would receive payment for their marriage contracts.

The girl’s value is reduced even through anal intercourse, albeit less than through vaginalintercourse. As mentioned in Chapter 1, Halachah 8, a fine is not required for anal inter-course.

Chapter 1, Halachot 9 and 10.

The Tur (Even HaEzer 177) differs with the Rambam and maintains that these womenare entitled to damages. The fact that they are not granted a fine has no bearing on thismanner.

In a case of rape, a fine is not required for a bogeret, because the verse mentions a na’arah,a younger maiden, excluding one above that age. If one seduces a bogeret, no fine is requir-ed, nor are payments required for damages, pain, and embarrassment, because she willinglyengaged in this relationship. Thus for the rape of a bogeret, compensation for these threematters is required.
With regard to a minor who has dissolved her marriage through mi’un, we are obviouslyspeaking of a girl who did not engage in sexual relations as a minor and was still a virgin.Although she is not entitled to a fine, she does receive compensation for the three mattersmentioned above, for she was a virgin The commentaries have questioned why a distinction is made between such a woman and a woman who is divorced after nisu’in, but is still avirgin.

He is not liable to make compensation for the embarrassment and damages because thesewomen are not entitled to damages, because they have no financial worth; they would not bepurchased if sold as slaves. (See Ketubot 32a, Bava Metzia 80a.) And with regard to embar-rassment, since they are mentally and/or emotionally challenged, they suffer no embar-rassment.
(Compare, however, to Hilchot Chovel UMazik 3:4, which states that a mentally and/oremotionally challenged person is not reimbursed for embarrassment, but a deaf-mute is.)

For, as mentioned previously, a girl who is seduced does not suffer pain, and she eitherforgoes or need not be reimbursed for damages and embarrassment.

This is a principle that applies not only with regard to the fine in question, but with regard to all k’nasot levied by the Torah.
To explain: There are two types of monetary penalties levied by the Torah: a) nezek, damages — i.e., compensation for personal injury and/or loss of property — and b) k’nas, a fine, payment required by the Torah over and above what a person would be held liable for damages. Although a person is liable for nezek when he makes an admission of guilt, he is not held liable for a k’nas unless his guilt is established by witnesses. (See Hilchot Nizkei Mammon 2:8 and Hilchot Geneivah 3:7.) Moreover, even if he admits his guilt and then witnesses come, he is not liable for payment of the k’nas.

As mentioned in the Kessef Mishneh, the Rambam’s statements here are in direct con-tradiction to his statements in Hilchot Chovel UMazik 5:6, where he states that when aperson admits injuring a colleague, but there are no witnesses who testify to the matter, he is not liable for the damages and the pain, but is liable for the injured’s unemployment,embarrassment and medical treatment. (As reflected by the commentaries on Hilchot Chovel UMazik, this ruling is contested by many authorities.)
The Rambam’s descendant, Rav Yehoshua, attempts to reconcile the Rambam’srulings, explaining that the laws governing the injuries suffered by a raped or seducedmaiden differ from those governing other types of injury.

More precisely, the term used is sh’vuat hesset, a Rabbinic oath of lesser severity. See Hilchot Sh’vuot 11:13 and Hilchot To’en V’Nit’an 1:3.

The Rambam is emphasizing that if the only issue were the k’nas, the man would not beheld liable for an oath, because this oath was instituted to encourage the defendant toadmit his guilt. With regard to the k’nas, this admission would be of no significance,because his liability is dependent only on the testimony of witnesses. Nevertheless, sincethere is also a claim for damages, and on that matter his admission would make him liable,he is required to take an oath.

As explained in Hilchot To’en V’Nit’an 1:1, whenever a person admits a portion of theclaim against him, he is required by Scriptural Law to take an oath stating his lack ofliability to the remaining portion of the claim.
The Ra’avad differs with the Rambam, because, as mentioned in the followinghalachah, the payment for these damages goes to the girl’s father and not to her herself.Hence, the situation resembles the case (Sh’vuot 38b) where a person claims ‘‘You owe my father 100 zuzim,’’ and the defendant states, ‘‘I owe him only 50,’’ in which instance thedefendant is not required to take an oath, because the person making the claim is not theone to whom the money is paid. It is possible, the Ra’avad continues, for the father tomake a definite claim that his daughter was raped. But it must be established that thisindeed was the case.
The Kessef Mishneh justifies the Rambam’s ruling, explaining that this instance isunique. Although the money goes to the girl’s father, she and not her father is con-sidered to be the plaintiff.

When the girl manifests physical signs of maturity at the ordinary times, the period of‘‘youth’’ mentioned here continues until she is twelve and a half. During that time, asmentioned in Hilchot Ishut 3:11, the father is entitled to consecrate his daughter andreceive the money given for consecration, and to receive any benefits from her labor.

And not to any other heirs of her father’s estate. With regard to the k’nas, the money isnot considered to be owed the father until the defendant denies the debt in court (for if heagreed to the claim, he would not be obligated to pay the fine). Therefore, the money owedbecause of the fine is not considered part of the father’s estate. See Or Sameach.

The Ra’avad differs with the Rambam on this point, stating that this money isconsidered part of the father’s estate, and belongs to his heirs. The Kessef Mishneh andothers, however, question the reason for the difference, noting that the Rambam’s opinionis based on an explicit mishnah.

In all the instances mentioned, she leaves her father’s domain and assumes independent responsibility for her own financial concerns. Although the event for which the person becomes liable took place before the girl has assumed financial independence, since a claim was not issued at that time, she and not her father (or his heirs) is entitled to the money.

But not to the payment for damages; that is awarded to her father. As mentioned in thenotes on Chapter 1, Halachah 9, our Sages derived from the exegesis of Deuteronomy22:29 that when a girl has been consecrated, she is entitled to the fine. But that applies onlyto the fine and not to the damages (Kessef Mishneh). Rabbenu Asher differs and maintainsthat she is also entitled to the damages, for she is no longer within her father’s domain.

The Rambam is referring to the wording of the verse in Leviticus cited previously.

The Ra’avad differs and maintains that a woman is not considered to be a harlot unless she is a professional prostitute. See the discussion of this issue in Hilchot Ishut 1:4.

Chapter 1, Halachah 9.