Question: We should be able to resolve that R. Yeshevav said his own opinion, according to the opinion in Yevamos (11a) that if one had Bi'ah with his Yevamah, and later one of the brothers had Bi'ah with her Tzarah, this is [only] an Isur Aseh (the Yevamim should build one house, i.e. do Yibum with one widow, and not two)!

In a Mishnah (Yevamos 50a), R. Gamliel teaches that Bi'ah after Bi'ah (the latter was of a different brother, or with the Tzarah, of the first to do Yibum) does not take effect.

[That opinion] is forced to say that R. Yeshevav said his own opinion. There it is according to R. Yeshevav, that Kidushin does not take effect in Chayavei Aseh, therefore nothing takes effect after Bi'ah.

Proof: In the Gemara on the Mishnah, which says that nothing takes effect after Chalitzah, Rav Huna taught in the name of Rav "this is R. Akiva's opinion, that Kidushin does not take effect with Chayavei Lavin."

Presumably, here according to R. Akiva we are unsure whether or not he (R. Yeshevav) said his own opinion!

Answer (R. Tam): The text in Yevamos (11a) should say "one said that [if after Yibum, a brother had Bi'ah with her Tzarah], this is a Lav." (The other opinion holds that it is Chayavei Kerisos.)

Even without this, R. Tam proved that the text there does not say "an Aseh."

Support: R. Chananel explained that the Lav [of Yibum] after doing Chalitzah to a Yevamah applies. It says "Asher Lo Yivneh" - once he did not build, he may not build another (a Tzarah);

Also here, once [any brother] built any Yevamah, he [or a brother] may not build another (a Tzarah).

Explanation #1 (Rashi): She was Be'ulah Lo k'Darkah.

Question: R. Meir and R. Elazar argue in Yevamos (59a) about whether she is permitted to a Kohen Gadol;

The Gemara should have said "according to R. Meir, who permits her to a Kohen Gadol, how can we answer?", like it says "according to R. Akiva, who says [Kidushin does not take effect with Chayavei Lavin, how can we answer?]"!

Answer (Ri): The question from R. Akiva was a proper question, in order to establish R. Shimon ben Menasiya, who is Basra, like R. Akiva, who was his Rebbi;

However, we are not concerned if R. Meir argues with R. Shimon ben Menasiya.

Explanation #2 (R. Chananel): Here we do not discuss a Na'arah Be'ulah from another man. Rather, a Kohen Gadol raped a full Besulah. She is not considered proper to keep her. (He must marry a Besulah.)

Implied question: It says in Yevamos (59b) "[a Kohen Gadol] may not marry a woman that he himself raped or enticed. If he married her, he married (he keeps her)"!

Answer: Since l'Chatchilah he may not marry her, she is not considered proper to keep her, for the Torah forbids him to marry her, even though if he married her, he married.

Support #1: We say so about a Bogeres and Mukas Etz. He may not marry her, but if he married her, he married, even though [the Isur to marry her] is mid'Oraisa, like is proven there.

Support #2: Further, it says there that Rava asked [from a Beraisa that expounds] "v'Lo Sihyeh l'Ishah" - a woman proper for him. This excludes a widow to a Kohen Gadol;

Citation (59a): If [he raped her] k'Darkah, why must we say that she is a widow? In any case she is forbidden to him since she is a Be'ulah!

Inference: The Torah forbids a woman that he himself made a Be'ulah.

Observation: R. Tam did not explain like this. (Hafla'ah - R. Tam holds that Ha'ara'ah (the very beginning of Bi'ah) obligates paying the fine, and she was permitted to him at the time.)

Question #1 (Ri): What is the source that R. Shimon ben Menasiya agrees about this? Perhaps he holds like R. Nechunya ben Hakanah, that Chayavei Kerisos are exempt from payment!

However, you are forced to say that R. Shimon ha'Teimani does not hold like R. Nechunya ben Hakanah, since he needed to exclude Chayavei Kerisos from v'Lo Sihyeh l'Ishah - a woman who has [possibility of] Kidushin [with him].

You must say that he needs it to exclude only Chayavei Kerisos, for he holds that Kidushin Tofsin with Chayavei Lavin (Yevamos 49a).

Repeat of Question #1: However, what is the source that R. Shimon ben Menasiya holds unlike R. Nechunya?

Question #2: Also, perhaps even R. Shimon ha'Teimani holds like R. Nechunya;

He needs v'Lo Sihyeh l'Ishah to exclude Yevamah l'Shuk. All agree that Kidushin does not take effect on her, like it says in Yevamos (92b)!

Answer: Rav Chisda holds that no Tana holds like R. Nechunya. This is why he said "to teach unlike [R. Nechunya]."

Rashi's opinion: The Gemara refers to our Mishnah. It says that [our Mishnah] is unlike R. Nechunya.

Question: What is the source that it is unlike him? Perhaps R. Nechunya agrees that Chayavei Kerisos pay a fine. The Torah included them - one (Drashah from Na'arah, ha'Na'arah, Besulah, ha'Besulos) includes Chayavei Lavin, and one includes Chayavei Kerisos!

Partial answer: According to R. Akiva, we understand why our Mishnah is unlike R. Nechunya;

Since Kidushin does not take effect with Chayavei Lavin, we establish one inclusion for Chayavei Aseh, and one for Chayavei Lavin. R. Nechunya has no source to include Chayavei Kerisos!

Answer (Rashba): Our Mishnah must be unlike R. Nechunya. According to R. Nechunya, there is no distinction between Chayavei Kerisos and Chayavei Misos Beis Din;

Either we learn from "Ason-Ason", or like Rava expounds "My (Hash-m's) Kares is like your Misah (of Beis Din)";

According to R. Nechunya, if there is a fine for Chayavei Kerisos, there is also for Chayavei Misos Beis Din, but our Mishnah (i.e. the Seifa, 36b) teaches that one who has Bi'ah with his daughter is exempt.

Implied question: It says in Shabbos (32a) that one should not stand in a dangerous place. This connotes that one can guard himself from punishments! Also it forbids passing under a leaning wall.

Answer: There, one can guard himself from negligence. Surely, one can kill himself! However, when [punishment] is brought on a person through Ones, he cannot guard himself;

However, [illness due to] heat and cold are never through Ones, if one wants to be careful.

Question: We expound (Bava Metzi'a 107b) "v'Hesir Hash-m Mimcha Kol Choli" - this refers to cold. This shows that it is b'Yedei Shamayim!

Answer: The verse means that Hash-m will warm His world, or give the person clothing, and he will not need to be careful.

Question: [Illness due to] heat is b'Yedei Shamayim, like we say in Vayikra Rabah (16:8) that Antoninus asked Rebbi to pray for him, and Rebbi said "Hash-m should save you from cold";

Citation (cont.): Antoninus said that this is not a [necessary] prayer. One wears an extra garment, and the cold goes away! Rebbi said "Hash-m should save you from heat";

Citation (cont.): Antoninus said that this is a [needed] prayer - "Ein Nistar me'Chamaso." (This shows that [illness due to] heat is b'Yedei Shamayim!)

Answer: The verse discusses travelers, or in war, which kings are often [amidst. Therefore, it was a proper prayer for Antoninus.] On the road, there is no way to guard oneself from heat;

However, if one wants to sit in his house, he can be careful. He sits in a stone house, or enters the cellar.

Alternate explanation: Some say that "Tzinim Pachim" is one matter, i.e. chills that are Pachim (pitfalls) for a person. Pachim is like "Pach u'Mokesh."

Rebuttal: This is wrong. In Avodah Zarah (3b), it brings this [teaching about Tzinim Pachim] on the verse "v'Ta'aseh Adam ki'Degei ha'Yam";

Just like fish in the sea, once the sun beats down on them, they die immediately, also people, once the sun beats down on them, they die immediately.

Implied question: It says in Berachos (33b) "everything is b'Yedei Shamayim, except for Yir'as Shamayim"!

Answer: That is not relevant to here. There it refers to a fetus in the womb. They decree if he will be poor or rich, strong or weak, foolish or wise, but not Tzadik or Rasha;

Here we discuss occurrences that happen to man.

Question: Why didn't it say "40 years before Churban Beis ha'Mikdash"? Forty years before the Churban, the Sanhedrin was exiled, and they did not judge capital cases!

Answer #1: Sometimes, for a need of the time, the Sanhedrin returned to Lishkas ha'Gazis [and judged a capital case. Therefore, we cannot say uniformly [that there was no Misas Beis Din] 40 years before the Churban.

Question: If so, what was the question in Sanhedrin (41a) regarding an episode in which R. Yochanan ben Zakai checked the witnesses regarding stems of figs [at the place they saw testimony, to try to get them to contradict each other]...

Citation (41a) Question: Was there a Sanhedrin [judging capital cases] at the time? R. Yochanan ben Zakai lived 120 years. For 40 years he engaged in business, for 40 years he learned, and for 40 years he taught (he was Nasi. He lived through the Churban, so he became Nasi less than 40 before the Churban);

Citation (cont. - Beraisa): Forty years before the Churban, the Sanhedrin was exiled...

What was difficult? Sometimes they returned and judged [a capital case]!

Answer: R. Yochanan ben Zakai checked regarding stems of figs regarding a murder case. They would never return to judge murder cases;

The primary reason the Sanhedrin was exiled was due to murders. They saw that there were too many murderers, like it says in Avodah Zarah (8b)

Answer #2: Some say that it mentions from the time of the Churban, for before this, even though the Sanhedrin] was exiled, Bigdei Kehunah atoned for Mezid when they did not warn him, like it says in Erchin (16a).

Rejection #1: In the days of R. Shimon ben Shetach there were Bigdei Kehunah, and he judged the four Misos Beis Din, like it says in Sanhedrin (37b);

Citation (37b - Beraisa - R. Shimon ben Shetach): I should [not] see consolation (i.e. he curses himself) if I did not see Ploni chase David into a ruin... [Ploni came out holding a sword dripping with blood... R. Shimon ben Shetach said that he cannot do anything without witnesses who saw him kill; he cursed him...] Before Ploni budged, a snake bit [and killed] him.

Citation (cont.) Question: This was not the proper death penalty for him! (A murderer is beheaded with a sword.) R. Chiya taught that even though the Sanhedrin was Batel...

Rejection #2 (Makos 10b): "Me'Rsha'im Yetzei Resha" [if Reuven killed b'Shogeg, and Shimon killed b'Mezid, and both were without witnesses, Hash-m arranges that Reuven walks down a ladder and falls on Shimon (in front of witnesses).] It turns out that Shimon dies, and Reuven is exiled [like they deserved].

Question: It says in Bava Metzi'a (83b) that [a launderer] was hung, even though he was worthy of stoning, for he and his son had relations with a betrothed Na'arah!

Answer: His son had relations with her first, and then he, when she was already Be'ulah, so he was worthy of being choked.

Question: We see many transgressors and idolaters who die [tranquilly] on their beds!

Answer #1: Through Teshuvah, Hash-m is lenient. Sometimes He totally pardons.

Answer #2: Merit suspends [his punishment], and he is not punished in this world.

Implied question: In Sanhedrin (37b), we asked that Ploni was not worthy to be bitten by a snake!

Answer: We asked why he received a more stringent death (burning. A murderer deserves should be killed with a sword. The Gemara answered that he deserved to be burned for another Aveirah. We would not have asked had he received a more lenient death.)

Implied question: If one ate Terumah b'Shogeg, or was Mezid about Me'ilah, according to Rebbi who says that he is Chayav Misah [b'Yedei Shamayim], he is liable!

Answer: [R. Nechunya must say that] this is a Gezeras ha'Kasuv.

Question: According to Abaye, who [says that R. Nechunya] exempts Chayavei Misah b'Yedei Shamayim, if R. Nechunya holds like Rebbi, who says that one who was Mezid about Me'ilah is Chayav Misah...

A Beraisa (Pesachim 29a) says that if one ate Chametz of Hekdesh during Pesach, some say that he did not transgress Me'ilah. We say that this is like R. Nechunya ben Hakanah.

Since the Torah revealed that Kam Lei bid'Rabah Minei does not apply to Hekdesh - if you would not say so, no one would [pay for Me'ilah of Hekdesh...

If so, also for Chametz, for which there is Kares, he should be liable. We should not say Kam Lei bid'Rabah Minei!

Suggestion: The Torah revealed only regarding Misah of Hekdesh that we do not say Kam Lei bid'Rabah. The Torah did not reveal about [Chametz during] Pesach, for which there is Kares.

Rejection: A Mishnah there (31b) says that one who eats Terumas Chametz during Pesach b'Shogeg pays principal and Chomesh (an added quarter of the principal). If he was Mezid, he is exempt from payment;

The Gemara explains that b'Mezid he is exempt due to Kam Lei bid'Rabah Minei, like R. Nechunya.

Question: He should be exempt also b'Shogeg due to Kares of Pesach. Even for Shogeg, we say Kam Lei bid'Rabah Minei, like we say below (35a)!

Answer: You are forced to say that since the Torah revealed regarding Misah of Terumah b'Shogeg that we do not say Kam Lei bid'Rabah Minei, and the same applies when there is Kares;

Summation of rejection: We do not say that the Torah revealed only for Misah, but not when there is Kares!

Answer: Shogeg of Terumah is different, because its payment is an atonement, and not money;

This is like it says in Terumos (6:1) that if the Kohen wanted to pardon it, he cannot, because it is not money, rather, Kaparah.

Even if one ate his own Terumah, and did not steal anything, he pays [principal, which is for] Kaparah to himself, and Chomesh to a Kohen. Therefore, Kam Lei bid'Rabah Minei does not apply to exempt him from Kaparah.

Distinction: However, principal and Chomesh of Hekdesh is not due to Kaparah. Rather, it is a monetary payment, for he stole Hekdesh.

Proof: Regarding Terumah, he is liable due to Kaparah, and not because "since the Torah revealed, it revealed [and the same applies elsewhere]";

Question: According to Rava, who does not exempt [from payment for an Aveirah of] Misah [b'Yedei Shamayim without Kares], why doesn't he exempt one who eats Terumas Chametz during Pesach?

Answer: Rather, surely it is due to Kaparah.

Question (Yevamos 99b - Mishnah): If a Kohen's wife's son and her Shifchah's son became mixed with his Shifchah's son, and they freed each other, [each is a Safek Kohen, and similarly] if we are unsure whether a baby was born after nine months from Leah's first husband, or in the seventh month from her new husband (and only one of the possible fathers is a Kohen);

We say that [they may not eat Terumah.] If they ate Terumah, they do not pay the principal or Chomesh;

What is the reason? Since it is Kaparah, we should obligate them due to Safek!

Answer: Surely, they must separate [Chulin for the sake of principal and Chomesh, and it becomes Safek Terumah]. However, they need not give it to a Kohen [for free. They may sell it.]

Inference: We must say that Kaparah depends on separation.

Implied question: Why can't the Kohen pardon [receiving it? The Zar who ate received Kaparah through separation!]

Answer: [He cannot pardon] to exempt the Zar from separating it. After separation, he can pardon it, and it belongs to the Zar.

Observation: Similarly, we could have questioned the Mishnah in Pesachim (31b), which says that he is exempt from payment [for eating Terumas Chametz during Pesach], since we establish it like R. Nechunya ben Hakanah. (He should be liable from when he picked it up!)

Explanation: Since he did not spit it out, he is liable. [The Chiyuv] Misah does not exempt him, for it does not come until he totally swallows it.

Explanation #1 (Rashi): Why is he Chayav Misah?

Question (Ri): We should establish it that Reuven willingly let Shimon insert [the Chelev so far down in his throat]. Now, surely he is Chayav Misah, even though he cannot spit it out!

Since he cannot spit it out, he is liable to pay only for the Hana'ah (pleasure) of his throat and intestines. At the time, Kam Lei bid'Rabah Minei!

Explanation #2 (Ri): The Gemara asks why Reuven is liable to pay. He did not steal, and he is not liable for his Hana'ah!

Implied question: We say (Bava Kama 111b) that if one stole, and the owners did not despair, and someone else came and ate it, the owner may collect from whichever he wants...! (Also here, the owner should be able to collect from Reuven, who ate it.)

Answer: That is because the stolen object is in the world at the time the latter stole it;

Here, at the time he benefits from (swallows) it, it is already lost from the world, for it is in a place from where he cannot spit it out. Therefore, the owner has no claim against the latter (Reuven).

Defense of Explanation #1 (Ritzva): It is obvious to the Gemara that we discuss when Shimon inserted [the Chelev] b'Al Korcho (against Reuven's will);

If he inserted it willingly, immediately when he puts it in his mouth and he did not spit it out, Reuven immediately acquired it to be liable for Onesim, so the Chiyuvim (Misah and money) do not come simultaneously.

Presumably, Shimon rests it in Reuven's mouth, and afterwards inserts it with his finger or a rod [deep in his throat].

Implied question: Perhaps [the Chelev] was at the end of the rod from the beginning, until he inserted it to the gullet!

Answer: In any case, Reuven acquired it in his mouth to be liable for Onesim, even though Shimon could remove it and take it back;

Distinction: Only regarding a Get, we say that if [it is attached to a strong string, and the husband] could take it back, it is not a [valid] Get, because we require Kerisos (cutting off), and he has a hold on it;

However, regarding acquisition, we find in Bava Metzi'a (9a) that if a Talis was half on the ground, and half on a pillar, and one lifted the half on the ground, even though he could uproot it [from the pillar] and bring it to himself, he does not acquire due to this;

Since he does not acquire due to this (ability to uproot it and bring it to himself), likewise this (ability) does not weaken the acquisition of someone else, in whose hand or mouth the object is.

Further, at least he acquires half, like two who lifted [together] a Metzi'ah (Hefker object).

Conclusion: Therefore, it was obvious to the Gemara that we discuss Ones. The Gemara asks that he was Ones, and he is exempt from Misah and money, for we can testify that he does not want to eat Isur.

Explanation #1: Now, we cannot say that he should spit it out, for the owner will not profit through this, for it is already repulsive to them. Therefore, liability to pay is only for Hana'ah of his innards, and then they (Chiyuv Misah and Chiyuv Mamon) come simultaneously.

Implied question: Shimon (who inserted it) stole it! (Why is Reuven exempt only because the Chiyuvim come together?)

Answer: Since Reuven can return it (spit it out), it is as if it is intact, and he swallows it and benefits from it.

Question: We say in Chulin (71a) regarding a swallowed Tum'ah, that it is not Metamei. This is not because it is not proper [for a person to eat it]. Granted, [if it was vomited out] in front of him, it is not proper, but [if it was vomited out] not in front of him, it is proper;

Inference: If so [here] if he would spit it out, it is considered proper!

Answer: The case is, initially it was only Shavah Perutah or a little more, and now that it was slightly ruined, it is not Shavah Perutah.

Implied question: If we say that one who benefits [from another's property] is exempt if the owner does not lose [even without Kam Lei bid'Rabah Minei, he should be exempt]!

Answer: In any case, since it is worth Mashehu, he is liable for everything (his full Hana'ah);

We say there (Bava Kama 20b, if David owned the fields bordering Levi's field in all four directions, and he built fences that totally surround Levi's field,) because David can say to Levi "you caused me to need more fencing (since your land is in the middle)", Levi must pay the entire amount he benefits from the fence;

Alternatively, [if Levi lives in David's house, even if it was not destined to be rented,] because this [slightly] blackens the walls, all agree that he must pay the full [Hana'ah].

Explanation #2 (Ritzva): We discuss even food that does not become repulsive. Since he inserted it into the gullet, and he swallowed it and benefited immediately, it is considered as if they (Chiyuv Misah and Chiyuv Mamon) come together, even though they are not truly simultaneous.

Support: We find like this in Yevamos (33a), which explains about a Ba'al Mum who serves in the Mikdash while Tamei, that the two Isurim came together, e.g. his finger was cut off with a Tamei knife, even though it must be that the knife touches [and is Metamei] him before it cuts.

Explanation #1 (Rashi): Rav Ashi holds that one who is liable Misah [due to an Aveirah he did] to Reuven and liable money [to Shimon due to something he did at the time of that Aveirah] is exempt [from paying].

He argues with Rava, who said in Sanhedrin (10a) that if witnesses testified that Ploni had Bi'ah with Almoni's [married] daughter, and they were Huzam, they are killed, and they pay money to this one, and are killed due to this one;

Explanation: They are liable money to the daughter, for they wanted to make her lose her Kesuvah, and they are killed due to Ploni, whom they say had Bi'ah with her.

Note: Only an adult b'Mezid loses her Kesuvah due to Zenus. If they say that they warned her, they are Chayav Misah also due to her! Some say that since they are Chayav Misah also due to Ploni, this is called "they pay money to this one, and are killed due to this one." With difficulty, we could say that they testified in a way that would not kill her, e.g. we thought that she is a Bas Kohen and told her that she will be burned for Zenus. The Maharsha changes the text to say that they wanted to make the father lose her Kesuvah, e.g. she is a Na'arah Me'orasah, and he had rights to collect her Kesuvah.

Rebuttal: If eating Terumah and tearing silk are considered money to this one and Chayav Misah to this one, the Mishnah in Bava Kama (34b) is difficult for Rava! (This Tosfos continues on the coming Daf.)