Which Naarah is Plene? Did Rambam forget the gemara?

In the laws of the defamed maiden:

טו וְלָקַח אֲבִי הַנַּעֲרָ, וְאִמָּהּ; וְהוֹצִיאוּ אֶת-בְּתוּלֵי הַנַּעֲרָ, אֶל-זִקְנֵי הָעִיר--הַשָּׁעְרָה.

15 then shall the father of the damsel, and her mother, take and bring forth the tokens of the damsel's virginity unto the elders of the city in the gate.

and then:

יט וְעָנְשׁוּ אֹתוֹ מֵאָה כֶסֶף, וְנָתְנוּ לַאֲבִי הַנַּעֲרָה--כִּי הוֹצִיא שֵׁם רָע, עַל בְּתוּלַת יִשְׂרָאֵל; וְלוֹ-תִהְיֶה לְאִשָּׁה, לֹא-יוּכַל לְשַׁלְּחָהּ כָּל-יָמָיו. {ס}

19 And they shall fine him a hundred shekels of silver, and give them unto the father of the damsel, because he hath brought up an evil name upon a virgin of Israel; and she shall be his wife; he may not put her away all his days. {S}

This second occurrence, in pasuk 19, is the only instance in the entire Torah that naarah is spelled plene, with a final heh. In all other places it is a krei ukhetiv, or almost so, with it pronounced naarah but written only with the the consonants of naar. In Nach, there are plenty of others, but this is the case in Torah.

And so goes the masoretic note, as Minchas Shai states, that leit malei batorah, there is no other plene one in the Torah.

We also have this is ketubot, and I would add that perhaps this is a basis of the masoretic note, beside manuscript evidence. In Ketubot 40b, we have:

אמר ר"ל המוציא שם רע על הקטנה פטור שנא' (דברים כב, יט) ונתנו לאבי הנערה נערה מלא דיבר הכתוב מתקיף לה רב אדא בר אהבה טעמא דכתב רחמנא נערה הא לאו הכי הוה אמינא אפילו קטנה והא כתיב (דברים כב, כ) ואם אמת היה הדבר הזה לא נמצאו בתולים לנערה והוציאו את הנערה אל פתח בית אביה וסקלוה וקטנה לאו בת עונשין היא אלא כאן נערה הא כל מקום שנאמר נער אפילו קטנה במשמע:

Resh Lakish ruled; A man who has brought an evil name upon a minor is exempt, for it is said in Scripture, And give them unto the father of the damsel,53 Scripture expressed the term na'arah as plenum.

R. Adda b. Ahabah demurred: Is the reason then because the All-Merciful has written na'arah, but otherwise it would have been said that even a minor [was included], surely [it may be objected] it is written in Scripture, But if this thing be true, and the tokens of virginity be not found in the damsel, then they shall bring out the damsel to the door of her father's house, and [the men of her city] shall stone her, while a minor is not, is she, subject to punishment? — [The explanation,] however, [is that since] na'arah [has been written] here [it may be inferred that here only is a minor excluded] but wherever Scripture uses the expression of na'ar even a minor is included.

Thus, there is an explicit derasha on the basis of the naarah in pasuk 19 being spelled malei, with a final heh. And it is easy to extrapolate that it is only this instance in Torah which is malei, but all others are not. That is indeed the import of the gemara.

Yet, as Minchas Shai notes, there is a weirdness when Rambam brings down these laws in his Mishneh Torah. He writes:

הלכות נערה בתולה פרק ג

א המוציא שם רע על בת ישראל, ונמצא הדבר שקר--לוקה, שנאמר "וייסרו, אותו" (דברים כב,יח); ואזהרה שלו, מ"לא תלך רכיל בעמיך" (ויקרא יט,טז). ונותן לאביה, משקל מאה סלעים כסף מזוקק; ואם הייתה יתומה, הרי הן של עצמה. [ב] והמוציא שם רע על הקטנה, או על הבוגרת--פטור מן הקנס, ומן המלקות; ואינו חייב, עד שיוציא על הנערה--שנאמר "והוציאו את בתולי הנערה" (דברים כב,טו;וראה דברים כב,יט), "נערה" מלא דיבר הכתוב.

He is citing the wrong pasuk -- one not brought for this purpose in the gemara -- and declaring it malei there!! But as we know from our masoretic notes, only pasuk 19 has naarah malei; he is making pasuk 15 malei. These are two separate but interrelated problems: (a) citing the wrong pasuk, and (b) declaring that wrong pasuk malei.

Indeed, the Kesef Mishnah notes (see inside, bottom of right column and top of left column) a separate problem, that according to the conclusion of the gemara, this need not be the source, but rather according to the gemara that it must be talking about a naarah and not a ketana, because it talks of her punishment, of stoning. So in the entire segment we must be talking about naarah. Thus, the gemara concludes with a separate derivation of this law, though it derives things about נער as ketana in general. His answer is that the Rambam chose a derech ketzara here.

But he also asks that the pasuk the Rambam cites is the wrong pasek, and is indeed chaser! He does not offer an answer, other than to say וזה שלא בדיקדוק. Thus, he appears to maintain that Rambam simply made an error.

Indeed, this is one of the big points made in Dr. Marc Shapiro's Maimonides and His Interpreters (see here), that Rambam sometimes makes mistakes, including in terms of quoting statements. And this may well be what it is here.

However, I would like to defend this Rambam, if possible. It is not so clear to me that Rambam made such a major error here. Rather, he may have simply understood the gemara in a different way.

Part of why we understand the gemara the way we do is that we assume that there is only one instance in all of Torah that naarah is written chaser. Indeed, we have a masorah for that. But is it possible that this masorah was based on the gemara, and not just on manuscript evidence? I would consider it extremely plausible that this is so. Even if not, we find thousands of examples of conflicting masorot, so we might imagine Rambam had a different masorah here. What I am getting at is that we should lay aside this tradition for a moment, that there is only one instance of naarah that is plene (malei), and then look back at the gemara.

It is only because we assume that only one naarah is plene that we interpret the gemara's question and answer as we do -- namely, that the naarah of pasuk 19, which speaks of the fine, is plene, but others not. And the question is that in the same section, this damsel is threatened with the death penalty, but we know that a ketana would not receive that punishment. Rather, it is the punishment which shows that in all cases here, we are speaking of a naarah and not ketanah. And the writing in malei in one instance here, in pasuk 19, sets the stage for all other instances, that naar(ah) spelled without the final heh also includes a ketana.

The "difficulty" with this reading is that there are other instances, even within this segment -- indeed, even in the instance of stoning, that it is spelled naar(ah), without that final heh. And if we learn out from stoning that it excludes a minor, that it is spelled deficiently in that very instance should disprove the assertion the naar(ah) includes minors.

Maybe we can reread the gemara that way and make this Rav Ada bar Ahava's objection. But then it is difficult to see how the answer is an answer. The gemara just doesn't seem (to me) to parse well if we read it in this way I just suggested. How can it extrapolate to other cases? And it seems to be begging the question, and using the problem as if it is the proof. Try reading this into the gemara and see what I mean.

There is another important point. When the gemara cites the pasuk about stoning, which is not pasuk 19, but rather is pasuk 21, they cite it malei. Now this could just be because it is quoting it in the way it is read rather than written. But in a gemara where the very point is the malei vs. chaser, this seems sheer sloppiness!

I would assert that it is not sheer sloppiness. The gemara was citing the pasuk as indeed written. And while throughout all of Torah, it is written deficient, in pasuk 15, 19, and 21 is is written plene. So it is not that the entire section is linked, such that despite it being written deficiently, one asks from the stoning punishment onto another pasuk.

The gemara then reads as follows:

(1) Resh Lakish: That it is not a ketana comes from the plene spelling, which is highly irregular and only occurs in the three pesukim in this section.

(2) Rav Ada bar Ahava: The implication of your statement is that were it not for this plene spelling, I would not know that a ketana is excluded. But if so, the plene spelling in pasuk 21, only, is entirely superfluous. Because that plene spelling would indicate that only a naarah but not a ketanah would be punished. But we would know this anyway, because a ketana is lav bat oneshin! And the Torah does not add letters unnecessarily, so why have this extra heh in naarah in pasuk 21, to create an entirely unnecessary derasha?

(3) The gemara answers: No, this is not superfluous! Rather, it is the entire basis of the association of the derasha of the malei heh with her not being a ketana. Here, in pasuk 21, we have a clear instance in which it cannot be a ketana, and it is written in this strange manner, with a full heh. We extrapolate from there. And that is how we know, in general, that if it is written malei it is not a ketana. And the other places, not in this section with three pesukim, but all the other times in Torah, a ketana is included.

This works out well with the gemara.

If so, and if this is how Rambam understood the gemara, then Kesef Mishnah's first question is resolved. It is not based on the fact that the girl gets stoned, if guilty. Rather, that empowers the naar / naarah distinction, and then we can use the derasha of the malei to learn this out. (Indeed, you might be able to say that without my radical reinterpretation of the gemara.)

Why did the Rambam choose a different pasuk from the gemara, which is chaser rather than malei as he asserts? It is possible he has a slightly different girsa of the gemara, which cites pasuk 15. Though obviously 19 is better since it actually discusses the fine.

I don't think Rambam had a different girsa. Rather, he chose pasuk 15 for one, or both, of these reasons.

(1) This is the first pasuk in the section which is malei, and his point is that all of them are malei in this section. Something we get from the first instance and on.

(2) He is making a cute derasha here, and manages to work the word hotzi in the derasha. Again, he had said:

ואינו חייב, עד שיוציא על הנערה--שנאמר "והוציאו את בתולי הנערה" (דברים כב,טו;וראה דברים כב,יט), "נערה" מלא דיבר הכתוב.

Even though this vehotziu means to bring out evidence, rather than to bring up a false name on her, as we see in pasuk 19 -- כִּי הוֹצִיא שֵׁם רָע עַל בְּתוּלַת יִשְׂרָאֵל -- pasuk 19 does not have this lucky sequence of words which parallels the point, as the naarah occurs earlier in the pasuk. Therefore, Rambam seizes this one.

Unless he has another girsa in which this is indeed the prooftext in the gemara. Or unless the Rambam forgot.

The conclusion of all this is that since Rambam does not cite the gemara in full, we don't really know what was before him, and can only try to reconstruct his line of reasoning based on the sources before us. And I believe that the reconstruction I put forth is a reasonable one. However, if so, then perhaps our Sifrei Torah are not in line with the Sefer Torah that the Rambam had; or perhaps what Chazal had. Even so, I would not change our present sifrei Torah.

Which of the two interpretations of the gemara do I find more convincing? I am not going to take a stand on that. I am just suggesting that this could have been how Rambam read the gemara.

One final point: See how the Rif treats this:

ועוד דגרסי' בפ' נערה שנתפתתה אמר ריש לקיש המוציא שם רע על הקטנה פטור שנאמר ונתן לאבי הנערה נערה מלא דבר הכתוב וכו' עד אלא כאן נערה הא כל מקום שנאמר נער אפילו קטנה במשמע

aIt could just be him summarizing in order to get to the broader point he is developing here, but he does seem to leave it, in this derech ketzara, with the implication that it stems from this derasha, and that the conclusion of the gemara reinforces this. And in Rambam's bet midrash, they studied Rif -- indeed, more often than they studied the gemara itself.