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Why does one who rapes a woman pay no ketubah despite the marriage being permanent? The shiur analyzes the fundamental machloket between Rashi (רש"י) (the fine substitutes for ketubah) and Tosafot (ketubah prevents divorce, but anusa can never divorce anyway). The Rambam (רמב"ם)'s seemingly contradictory positions resolve through distinguishing Torah (תורה)-level ketubah obligations from rabbinic enhancements.
This shiur presents a sophisticated analysis of the Talmudic discussion in Kesubos 39a regarding the ketubah obligations in cases of anusa (rape). The Gemara (גמרא) establishes that one who rapes a woman must pay the fine immediately but receives no ketubah upon divorce or death, with the principle 'yotza kesef knas b'ksubasa' - the fine money substitutes for the ketubah. Rabbi Zweig explores the fundamental machloket between Rashi (רש"י) and Tosafot on interpreting this gemara. According to Tosafot, there is no ketubah by anusa because the entire institution of ketubah was established 'shelo tehi kala b'einav l'hotziah' - so it won't be easy in his eyes to divorce her. Since anusa involves 'v'lo yuchal l'shalcha kol yamav' - he can never divorce her - there's no need for this safeguard. Tosafot innovatively suggests that an almana receives ketubah due to 'chein' - to make remarriage easier. Rashi, however, explains that there's no ketubah by anusa simply because 'yotza kesef knas b'ksubasa' - the fine payment covers the ketubah obligation. The Rambam (רמב"ם)'s position presents significant complexities. In one place, he explains the lack of ketubah by anusa using the Tosafot approach (shelo tehi kala), while elsewhere he employs Rashi's reasoning (yotza kesef knas). This leads to detailed analysis of the Rambam's view on whether ketubah is fundamentally a Torah (תורה) obligation or rabbinic enactment. Rabbi Zweig argues that according to the Rambam, there are two distinct aspects to ketubah: a Torah-level obligation creating the permanent nature of marriage (defining it as 'ishut dikah din' rather than temporary relationship like pilegesh), and a rabbinic enhancement ensuring payment even upon divorce. The shiur resolves various difficulties in the Rambam's rulings by distinguishing between the Torah obligation (mitzvah (מצוה)) to establish financial security and the rabbinic obligation (chov) to actually pay in all circumstances. This analysis illuminates the fundamental nature of Jewish marriage and the ketubah institution.
Kesubos 39a
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