Talmud - Mas. Kethuboth 26a
When he was talking in his simplicity.1 As that [story which] Rab Judah related in the name of Samuel: It happened that a man was talking in his simplicity and said: 'I remember when I was a child and rode on my father's shoulder, they brought me out from school and stripped me of my shirt and immersed me2 so that I could eat terumah in the evening.'3 And R. Hiyya added:4 'And my friends held aloof from me and called me "Johanan the halloth-eater".'5 And Rabbi raised him to the priesthood on his testimony. It has been taught: R. Simeon b. Eleazar, says: Just as terumah is a presumption for the priesthood, so is the first tithe a presumption for the priesthood,6 but he who takes a share [at the threshing floors] through the court - [this] is not a presumption.7 The first tithe belongs to the Levite?8 - [This is] according to R. Eleazar, the son of Azariah,for it has been taught: Terumah belongs to the priest, the first tithe to the Levite-this is the view of R. Akiba, R. Eleazar, the son of Azariah, says: The first tithe belongs also to the priest. [But] R. Eleazar, the son of Azariah, says: 'also to the priest'; does he say: to the priest and not to the Levite? - Yes. after Ezra had punished them.9 But perhaps it happened that they gave it to him?10 - Said R. Hisda: Here we treat of a case where we know that the father of that [per. son] is a priest and a rumour11 came Out concerning him that he is the son of a divorced woman12 or a haluzah13 and [yet] they gave him tithe at the threshing floor. [He could not be regarded as] a Levite, because he was not a Levite.14 What then could you say? That he was the son of a divorced woman or the son of a haluzah? [But as to this] there is no question that according to him who says [that] the first tithe is forbidden to strangers.15 they would not have given [it] to him. For even according to him who says: The first tithe is permitted to strangers.16 it is only to sustain them17 but as a distribution [due to him as of right] they do not give it to him.18 'But he who takes a share [at the threshing floors] through the court [this] is not a presumption.' If it is not a presumption through the court, when is it a presumption? - Said R. Shesheth: he means thus: If one shares the terumah in the property of his father19 through the court, it is not a presumption. - This is obvious!20 - You might have said [that] just as those21 [get their share of terumah] for eating. this one also [gets his share of terumah] for eating, so he lets us hear [that] those [get the terumah] for eating and this one for selling.22 R. Judah says: ONE DOES NOT RAISE [A PERSON] TO THE PRIESTHOOD ON THE TESTIMONY OF ONE WITNESS, etc. R. Simeon b. Gamaliel says the same as R. Eliezer?23 And if you will say [that] they differ with regard to an objection raised by one person. [in] that R. Eliezer holds that an objection [may be admitted if cooling from;] one [person] and R. Simeon b. Gamaliel holds that an objection [must come from at least] two [persons] did not R. Johanan say' All agree that an objection [must come from] at least two persons? - But we treat here of a case where the father of this [person] is a priest and a rumour24 came out concerning him that he is the son of a divorced woman or the son of a haluzah and they put him down,25 and one witness came and said, 'I know that he is a priest.'26
(1) The brother, on whose statement the promotion was made, did not intend to give evidence.
(2) Terumah had to be eaten in ritual purity.
(3) [Because children ate apt to rummage about in places that are not clean, and thus contract defilement.]
(4) Completing the man's narrative.
(5) Plur. of Hallah, v. Glos.
(6) If a man is seen eating first tithe, it is presumed that he is a priest.
(7) This is explained infra.
(8) V. Num. XVIIl, 24.
(9) The Levites, not to be given any tithes, v. Yeb. 86b.
(10) To the Levite; how' then car first tithe constitute a presumption for priesthood?
(11) Lit., 'voice'.
(12) He is the offspring of a union of a priest with a divorced woman, therefore a halal, ('profaned'). v. Lev. XXI, 7.
(13) V. Glos.
(14) His father is a priest.
(15) Persons who ate neither priests not Levites.
(16) Cf Yeb. 74a, 85b. and 86a.
(17) If they ate poor.
(18) And Since they gave him tithe at the threshing floors it shew's that he is an unblemished priest.
(19) After the father's death.
(20) Even a halal inherits his father.
(21) The brothers.
(22) He inherits the terumah and may sell it to rightful priests but he may not eat it, although the division took place under the direction of the court
(23) In out Mishnah.
(24) Lit 'voice'.
(25) From the status of priesthood.
(26) A rightful, unblemished priest.
Talmud - Mas. Kethuboth 26b
and they raised him [again] and [then] came two [other witnesses] and said [that] he is the son of a divorced woman or the son of a haluzah. and they put him, down [again]. and [then] came one witness and said, 'I know that he is a priest'. [Now] all agree1 that they2 are joined into one testimony, and they differ as to whether we are afraid of bringing contempt on the court.3 The first Tanna4 holds: Since we put hill, down we do not raise him, [again]. because we are afraid of bringing contempt on the court.5 Whereas R. Simeon b. Gamaliel, holds: we have put him down and we can raise him, [again].6 and we are not afraid of bringing contempt on the court. R. Ashi asked against this: If so, even [when there are] two and two7 also?8 But, said R. Ashi, they differ as to whether they9 are joined into one testimony. And they have the same difference of opinion as these Tannaim,10 for it has been taught: Their testimonies are not joined together unless they have both seen11 at the same time;12 R. Joshua b. Korha. says: Even when [they have seell] one after another. Their testimonies are not established13 in court until they both give evidence at the same time; R. Nathan says: We hear the evidence of one to-day. and when the other one comes to-morrow we hear his evidence.14
MISHNAH. IF A WOMAN WAS IMPRISONED BY HEATHENS, IF FOR THE SAKE OF MONEY, SHE IS PERMITTED TO HER HUSBAND, AND IF FOR THE PURPOSE OF [TAKING HER] LIFE,15 SHE IS FORBIDDEN TO HER HUSBAND.
GEMARA. R. Samuel b. Isaac said [that] Rab said: They have taught [this] only when the hand of Israel is strong over the heathens.16 but when the hand of the heathens is strong over themselves,17 even if for the sake of money, she is forbidden to her husband. Raba raised an objection: R. Jose the priest and R. Zechariah b. ha-Kazzab18 testified regarding an Israelitish woman, who was pledged19 in Ashkelon and her family20 put her away.21 and her witnesses22 testified [concerning her] that she did not hide herself [with a man] and that she was not defiled [by a man]. [that] the Sages said to them: If you believe [the witnesses] that she was pledged believe [them also] that she did not hide herself and that she was not defiled, and if you do not believe [them] that she did not hide herself and that she was not defiled, do not believe [them] that she was pledged.23 Now Ashkelon [was a town in which] the hand of the heathens was strong over themselves and he teaches
(1) R. Eliezer and R. Simeon b. Gamaliel.
(2) The testimony of the first witness and that of the last witness so that there ate two witnesses against two witnesses.
(3) If he is re-instated now, having been put down by the court twice.
(4) R. Eliezer.
(5) [Should he be reinstated after having been degraded twice, the court would be brought into contempt; and thus R. Eliezer says that where there have been objectors, there is renewed promotion by the evidence of one witness, namely the last.]
(6) [To the priesthood In continuance of the presumptive state which he had originally enjoyed.]
(7) If two witnesses who speak in his favour come at the same time.
(8) He should be not raised again in the view of R. Eliezer for feat of bringing contempt on the court.
(9) The testimony of the first witness and that of the last witness, so that there ate two witnesses against two witnesses.
(10) The Rabbis and R. Nathan of the Baraitha that follows.
(11) What they testify to.
(12) At the same time and in the presence of one another.
(13) Accepted as evidence.
(14) Their testimonies are joined together and the two single witnesses are regarded as a pair of witnesses. R Eliezer agrees with the Rabbis, R. Simeon b. Gamaliel with R. Nathan.
(15) And she was saved afterwards.
(16) [In which case they were afraid to force the woman, lest they should forfeit their money claim.]
(17) I.e., when the heathens are independent. [or a euphemism 'themselves', standing for Israelites.]
(18) 'Son of the Butcher'.
(19) For a debt.
(20) Who were priests.
(21) Disqualified her from marrying a priest for fear she might have been violated.
(22) Who testified to her having been pledged.
(23) V. 'Ed. VIII, 2.
Talmud - Mas. Kethuboth 27a
'when she was pledged' but not 'when she was imprisoned'?1 - [No] the same applies also to [the case if] she had been imprisoned. only it happened so.2 Some say. Raba said: We have also learned [in a Mishnah] to the same effect: R. Jose the priest and R. Zechariah b. ha-Kazzab testified regarding an Israelitish woman. who was pledged in Ashkelon and her family put her away and her witnesses testified concerning her that she did not hide herself [with a man] and that she was not defiled [by a man]. [that] the Sages said: If you believe [the witnesses] that she was pledged believe [them also] that she did not hide herself and that she was not defiled, and if you do not believe [them] that she did not hide herself and was not defiled, do not believe [them] that she was pledged. In Ashkelon [it happened] for the sake of money, and [yet] the reason [why the Sages permitted her to her husband was] because witnesses testified concerning her, but if witnesses did not testify concerning her [she would] not [have been permitted]; and is it not [also to be supposed] that there is no difference whether she was pledged or imprisoned?3 - No, when she was pledged it is different.4 Some put [this argument] in the form of a contradiction. We have learned: IF FOR THE SAKE OF MONEY SHE IS PERMITTED TO HER HUSBAND. But here is a contradiction: 'R. Jose testified etc.' [Now] in Ashkelon [it happened] for the sake of money and [yet] the reason [why she is permitted to her husband] is because witnesses testify concerning her, but if no witnesses testify concerning her, [she would] not [have been permitted]. And it is answered: R. Samuel b. Isaac said: It is no contradiction; here5 [it speaks] when the hand of Israel is strong over the heathens, [and] there6 when the hand of the heathens is strong over themselves. IF FOR THE PURPOSE OF [TAKING HER] LIFE SHE IS FORBIDDEN [TO HER HUSBAND]. Rab said: As, for instance, the wives of thieves.7 Levi said: As, for instance, the wife of Ben Dunai.8 Hezekiah said: This is only9 when they have [already] been sentenced to death - R. Johanan says: Even if they have not yet been sentenced to death. MISHNAH. IF TROOPS OF SIEGE HAVE TAKEN A TOWN. ALL THE PRIESTS' WIVES10 WHO ARE IN IT ARE UNFIT.11 IF THEY HAVE WITNESSES,12 EVEN A SLAVE.13 EVEN A HANDMAID,14 THEY ARE BELIEVED. NO ONE IS BELIEVED AS TO HIMSELF.
GEMARA. There is a contradiction against this: If a reconnoitering troop comes to a town in time of peace the open casks [of wine] are forbidden15 and the closed ones are permitted.16 In times of war both are permitted, because they have no time to offer libations.17 - R. Mari answered: To have intercourse they have time.18 To offer libations they have no time. R. Isaac b. Eleazar said in the name of Hezekiah: There19 [it speaks] of a besieging troop of the same kingdom.20 here21 [it speaks] of a besieging troop of another kingdom.22 [Even in the case of a besieging troop] of the same kingdom it is not possible that one of them does not run away23 [from the rest of the troop]!24 - Rab. Judah answered in the name of Samuel: When the guards25 see one another.26 [But] it is not possible that one does not sleep a little!27 - R. Levi answered: When they placed round the town chains. dogs. trunks of trees and geese.28 R. Abba, b. Zabda said: With regard to this R. Judah Nesi'ah29 and the Rabbis differ: one said [that] there30 [it speaks] of a besieging troop of the same kingdom. and here31 of a beseiging troop of another kingdom, and he found no difficulties, whereas one32 raised all those questions33 and answered [them by saying] when they placed round the town chains, dogs. trunks of trees, and geese. R. Idi b. Abin said in the name of R. Isaac b. Ashian: If there is there one hiding place. it protects all priests' wives.34 R. Jeremiah asked [a question]: What is [the law] if it holds only one? Do we say of each one:35 This is the one36 or not? - But why should it be different from [the following case]? There were two paths, one was clean37 and one was unclean, and someone walked in one of them and [then] prepared clean things.38 and another person came and walked in the second path and [then] prepared clean things. R. Judah says: If each one comes to ask39 separately,40 they are [declared] clean;41 [but] if they both come together, they are [declared] unclean;42 R. Jose Says: In either case43 they are [declared] unclean.44 [Whereon] Raba, and some say R. Johanan said: [if they come to ask] at the same time, all agree that they are [declared] unclean, if they come one after another, all agree that they are [declared] clean; they differ only when one comes to ask for himself and for the other one; one45 regards this as46 [if it were] at the same time, and the other47 regards this as [if it were] one after another. Now here48 also, since all [women] [are declared] permitted.it is like [the case where they came] at the same time?49 - How is this so?50 There51 there is certainly an impurity,52 [but] here53 who says that any one54 has been defiled?55 R. Ashi asked: If she56 says. 'I have not hidden myself and I have not been defiled', what is [the law]? Do we say
(1) The case of 'pledged' would be worse than that of 'imprisoned'. for once the tithe for redemption had expired. the pledge remains the absolute possession of the creditor (Rashi).
(2) That she had been pledged.
(3) This Supports R. Samuel b. R. Isaac.
(4) V. p. 144 n. 9.
(5) In our Mishnah.
(6) 'Ed. V. 2.
(7) Their property and their wives were apparently confiscated (Rashi).
(8) Or Dinai, a notorious bandit, v. Sot. (Sonc. ed.) p. 249. n. 2.
(9) Lit ,'and that is'.
(11) I.e.,forbidden to their husbands, as they might have been defiled by the troops.
(12) That they have not been defiled.
(13) A male slave.
(14) A female slave.
(15) Because they may have offered libations to idols.
(16) It is assumed that the troops do not touch the closed casks since they have open casks of wine.
(17) V. A.Z. 70b. And in our Mishnah it is assumed that the troops have time to violate the women of the town.
(18) They are driven by their passion.
(19) In A.Z. 7ob.
(20) [Sent to suppress a rebellion. The troop is therefore self-restrained]
(21) In our Mishnah.
(22) An enemy troop behaves in a hostile manner, and the women of the town may have been violated.
(23) Var. lec. 'remove his foot'.
(24) And has violated a woman.
(25) Appointed for the protection of the population.
(26) And they can call to one another to arrest any wrongdoer. Fear of the guards would prevent assaults on women.
(27) I.e., the guards may fall asleep for a little while.
(28) So that any one who would attempt to run away (or slip away) would be caught.
(29) The Prince. R. Judah II
(30) In A.Z. 70b.
(31) In out Mishnah.
(32) The other disputing patty.
(33) Raised here in the Gemara.
(34) It is to be assumed of each one that she hid herself there.
(35) Of the priests' wives.
(36) Who hid herself there.
(37) Ritually. In one of the two paths were dead bodies buried, but it is not known in which.
(38) Lit., 'did purities'. I.e., touched things which were ritually pure (Rashi). If he is ritually impure he makes them ritually impure.
(39) They come to ask a scholar for a decision as to the things which they touched.
(40) Lit., 'this one for himself and this one for himself'.
(41) I.e., the things are pure, because the two men ate regarded as pure. Since they came to ask separately I say of each of them that he walked in the clean path.
(42) The things are unclean, because the decision given to the men cannot be: 'you are clean', since one of the two present must have walked in the unclean path. As it is not known which it was they ate both regarded as unclean and the things which they touched are unclean.
(43) Lit., 'Whether So-and-so'. Whether they come separately or together.
(44) V. Toh. V, 5.
(45) R. Jose.
(46) Lit., 'compares it to'.
(47) R. Judah.
(48) In the case of the priests' wives.
(49) And therefore all of them should be forbidden on the view of R. Jose to their husbands, if there is a hiding place in which only one can hide herself, Since, when R. Judah and R. Jose differ, the law is according to R. Jose (Rashi) and since it is ruled that all the women are permitted, it is as if they all had come at one and the same time to ask for a decision.
(50) I.e., is this analogy correct? How can you compare these two cases?
(51) In the case of the two paths.
(52) One path was unclean.
(53) In the case of the priests' wives.
(54) Of the priests' wives.
(55) It may be that there was no defilement at all.
(56) One of the priests' wives.
Talmud - Mas. Kethuboth 27b
'why should she lie,'1 or do we not say it? But why should this be different from the following case? Once someone hired out an ass to a person, and he said to him, 'Do not go the way of Nehar Pekod. where there is water,2 go the way of Naresh, where there is no water. But he3 went the way of Nehar Pekod and the ass died.4 He3 [then] came before Raba5 and said to him. 'Indeed, I went the way of Nehar Pekod, but there was no water. Said Raba: 'Why should he lie?' If he wished he could say 'l went the way of Naresh.' And Abaye said to him: we do not say 'Why should he lie?' where there are witnesses.6 - Now is this so? There there were witnesses that there certainly was water on the way of Nehar Pekod. but here has she certainly been defiled? It is [only] a fear,7 and in the case of a fear we say ['why should he lie?'] IF THERE ARE WITNESSES, EVEN A SLAVE, EVEN A HAND' MAID, THEY ARE BELIEVED. And even her own handmaid is believed. But there is a contradiction against this:8 She9 must not be alone with him10 unless there are witnesses, even a slave, even a handmaid11 except her own handmaid,12 because she13 is familiar with her own handmaid!14 - R. Papi said: In [the case of] a woman captive15 they16 have made it lenient. R. Papa said: In the one case17 [it speaks of] her handmaid, in the other case18 [it speaks of] his handmaid. But her handmaid is not believed? Does he not teach [that] no one may testify as to himself? [This would imply that] her handmaid is believed!19 Her handmaid is like herself.20 R. Ashi said: In both cases [it speaks of] her handmaid, but [what we maintain is that] the handmaid sees and is silent.21 [Consequently] there,22 where her silence makes her permitted.23 she is not believed, but here,24 where her silence makes her forbidden.25 she is believed. Now also, she may come and tell a falsehood?26 Two [things] she would not do27 as in the case of Mari b. Isak [or as some say of Hana b. Isak]: To him there came a brother from Be-Hozae and said to him: Give me a share in the property of our father. He answered him: I do not know you. He28 [then] came to R. Hisda, and he29 said to him: I he30 answered you well, for it is written:31 'And Joseph knew his brethren, and they knew not him.' This teaches that he went away before he had grown a beard and he came back after growing a beard.32 [Then] he29 said to him: I Go and bring witnesses that you are his brother. He28 answered him:29 I have witnesses, but they are afraid of him,33 because he is a powerful man. He29 [then] said to the other man: Go you and bring witnesses that he28 is not thy brother. He30 answered him:29 Is this the law? [Surely] he who claims must produce evidence!34 He29 said to him.30 So I rule for you and all who are powerful like you!35 But they36 may also come and lie?37 Two things they36 will not do.38 May we say that this difference39 is like that between [these] Tannaim? [For it was taught in a Baraitha:] This testimony40 a man and a woman, a boy and a girl, her father and her mother, her brother and her sister [may give], but not her son and her daughter, nor her slave and her handmaid. And [in] another [Baraitha] it was taught. All are believed to testify [for her] except herself and her husband.41 Now the views of R. Papa and R. Ashi are [certainly] according to the difference of the Tannaim.42 But is the view of R. Papa according to the Tannaim?43 R. Papa can answer you: That Baraitha44 [speaks of a case] when she45 talked in her simplicity.46 As that which R. Dimi said when he came: R. Hanan of Carthagene told a story: A case came before R. Joshua b. Levi (or as some say R. Joshua b. Levi told a Story: A case came before Rabbi): Someone was talking in his simplicity and said: I and my mother were taken captives among heathens. When I went out to draw my water, my mind was on my mother.47 [When I was out] to gather wood, my mind was on my mother. And Rabbi allowed her to marry48 a priest49 by [the words of] his mouth.50
MISHNAH. R. ZECHARIAH B. HA-KAZZAB51 SAID: BY THIS TEMPLE52 HER HAND53 DID NOT MOVE OUT OF MY HAND54 FROM THE TIME THAT THE HEATHENS ENTERED JERUSALEM UNTIL THEY DEPARTED. THEY55 ANSWERED HIM: NO ONE MAY TESTIFY CONCERNING HIMSELF.56
GEMARA. It has been taught: And notwithstanding this57 he appointed for her a dwelling place58 in his court-yard. and when she was out, she went out at the head of her children,59 and when she came in, she came in at the head other children.60 Abaye asked: May one do so with regard to one's' divorced wife?61 [Do I say:] There62 it was allowed because in [the case of] a captive woman63 they64 made it lenient, but not here.65 or is there no difference? - Come and hear: It has been taught: If someone has divorced his wife, she shall not get married [and live] in his neighbourhood.66
(1) Lit.. 'Why should I lie?' Do we apply here the principle of 'Why should I lie?' If she had wished to tell a falsehood she could have said that she hid herself. She does not gain any advantage by her present statement. Therefore we should believe her entire statement.
(2) Which, apparently. the ass-driver would have to cross.
(3) The man who hired the ass.
(4) Apparently through the fatigue of crossing the water.
(5) Before whom the parties, the owner and hirer of the ass, brought their dispute.
(6) It is common knowledge that there is water on the way to Nehar, Pekod, v. however, B.M. (Sonc. ed.) p. 468 and notes.
(7) One is merely afraid that she may have been defiled.
(8) V. Git. 73a.
(9) The wife of a husband who gave her a divorce on condition that he dies, v. Git. 73a.
(10) With her husband between the delivery of the divorce and his death.
(11) Even if a slave or a handmaid is present when husband and wife are in one room.
(12) The wife's own handmaid.
(13) The wife.
(14) We thus see that her own handmaid cannot be a witness. This is the contradiction. For further notes v. Git. (Sonc. ed.) p. 348.
(15) E.g., the priests' wives in the Mishnah.
(16) The Rabbis.
(17) In Git. 73a.
(18) In our Mishnah.
(19) Anyone but herself.
(20) Therefore her own handmaid cannot be a witness.
(21) I.e., all the handmaid does is: She sees what her mistress does and keeps quiet.
(22) In Git. 73a.
(23) There (in Git. 73a), if the handmaid says nothing as to any intimacy between husband and wife after the conditional divorce, she is in her permitted state. And as her handmaid is suspected of Seeing a wrong done and saying nothing her silent testimony is not accepted.
(24) In our Mishnah.
(25) A captive woman is presumed to have been violated unless there is evidence to the contrary. consequently in order to make her mistress permitted to her husband the handmaid would have to speak. She would have to say that her mistress was not defiled. And we do not assume that she would say an untruth. She may be guilty of a silent falsehood, but not of a spoken falsehood. Therefore when she says that her mistress has remained pure she is believed.
(26) In spite of what has just been said by R. Ashi, it is possible that out of attachment to her mistress, or for fear of her, the handmaid may come and actually tell a falsehood. Why should she then be believed?
(27) To be silent about her mistress's defilement and to say that she was not defiled, that she would do both these things we do not assume.
(28) The claimant.
(29) R. Hisda.
(30) Mari, or Hana.
(31) Gen. XLII, 8.
(32) It is therefore possible and even natural that your brother does not recognize you.
(33) Of his brother.
(34) This is the accepted rule!
(35) I.e.,I am the interpreter and exponent of the law. I apply the rules according to circumstances. Now that I have to deal with a man like you; Mari. I modify the rule! And he bowed to the ruling of R. Hisda; v. B.M. 39b. where the story is told more fully.
(36) The witnesses.
(37) Cf. B.M. 39b.
(38) To be silent as to the truth and to tell a falsehood
(39) Whether her handmaid is believed or not.
(40) Regarding a captive woman.
(41) Her handmaid is therefore believed.
(42) R. Papa and R. Ashi would hold like the second Baraitha.
(43) The view of R. Papa does not seem to agree with either Baraitha, since he makes a distinction between his handmaid and her handmaid. According to the first Baraitha no handmaid is believed, whether his or hers, and according to the second Baraitha either handmaid is believed, even hers.
(44) The second Baraitha.
(45) The handmaid.
(46) She related her story quite innocently, without intending to give evidence. In such a case R. Papa would also hold that her handmaid is believed. Therefore R. Papa's view would also be according to the second Baraitha.
(47) Apparently he had his eyes on her so that no one assaulted her.
(48) She was a widow.
(49) Lit., 'into priesthood'.
(50) Relying upon the story told innocently by the Son.
(51) 'The Butcher'. He was a priest in Jerusalem at the time of the Roman conquest.
(52) He swore by the Temple.
(53) The hand of his wife.
(54) I.e., she was always with him, and he knew that she remained pure.
(55) The Sages.
(56) As it concerns himself his testimony cannot be accepted.
(57) That they did not accept this testimony. and consequently she was forbidden to him (Rashi).
(58) Lit., 'a house'.
(59) So that she should not be alone with her husband.
(60) So that she should not be alone with her husband, v. Tosef. Keth. V. for variants.
(61) May she live in the same court-yard in which her former husband lives?
(62) In the case of R. Zechariah.
(63) During the siege she was regarded as a captive woman.
(64) The scholars.
(65) In the case about which Abaye asks.
(66) שכונה 'a group of three houses', v. A.Z. 21a. Former friendship may lead to renewed intimacy.
Talmud - Mas. Kethuboth 28a
and if he1 was a priest she must not live with him in the [same] alley.2 If it was a small village3 - such a case happened, and they said: A small village is considered4 a neighbourhood.5 Who must give way before whom? - Come and hear' It has been taught : She must give way before him , and not he before her, but if the court-yard6 belonged to her, he must give way before her. The question was asked: If the court-yard belonged to both, what is [the law]? Come and hear: 'She must give way before him.' In what case?7 If the court-yard belongs to him it is obvious; and if the court-yard belongs to her, has it not been taught: 'If the court-yard belongs to her, he gives way before her'? Hence [it must be] in a such case!8 - [No.] Perhaps [it deals with a case] when they rented [the court.yard]. How is it then?9 - Come and hear: [It is written:] The Lord will hurl thee away violently as a man,10 and Rab said:11 moving about12 is harder for a man than for a woman.13 Our Rabbis taught: If he14 borrowed15 from the property of her father,16 she collects the payment only through another person.17 R. Shesheth said: And if they [both] come before us to Court, we do not deal with18 them.19 R. Papa said: We excommunicate them. R. Huna, the son of R. Joshua. said: We even order them to be lashed. R. Nahman said: It is taught in Ebel Rabbathi:20 This is said only21 when she was divorced after22 marriage, but if she was divorced after betrothal, she may collect the payments herself, because he is not [so] familiar with her. Once a betrothed and his [former] fiancee came before Raba, and R. Adda b. Mattena, sat before him. Raba placed a messenger23 between them.24 R. Adda b. Mattena said to him: Did not R. Nahman say: 'It is taught in Ebel Rabbathi etc.'?25 - He answered him: We see26 that they are familiar with one another.27 Some say: Raba did not place a messenger between them. R. Adda b. Mattena said to him: Let the Master place a messenger between them. He answered him:28 Did not R. Nahman say: 'It is taught in Ebel Rabbathi, etc.'? He29 said to him:28 This only when they are not familiar with one another, but [as to] these - I see that they are familiar with one another.27
MISHNAH. THE FOLLOWING30 ARE BELIEVED ON TESTIFYING WHEN THEY ARE GROWN-UP31 TO WHAT THEY HAVE SEEN WHEN THEY WERE SMALL:32 - A PERSON IS BELIEVED ON SAYING ' THIS IS THE HANDWRITING OF MY FATHER.'33 'THIS IS THE HANDWRITING OF MY TEACHER. 'THIS IS THE HANDWRITING OF MY BROTHER:34 REMEMBER THAT THAT WOMAN WENT OUT WITH A HINUMA AND UNCOVERED HEAD,35 'THAT THAT MAN USED TO GO OUT FROM SCHOOL36 TO IMMERSE37 IN ORDER TO EAT TERUMAH'.38 'THAT HE USED TO TAKE A SHARE WITH US AT THE THRESHING FLOOR, THAT THIS PLACE WAS A BETH HA-PERAS.'39 THAT UP TO HERE WE USED TO GO ON SABBATH.40 BUT A MAN IS NOT BELIEVED WHEN HE SAYS: SO-AND - SO HAD A WAY41 IN THIS PLACE, THAT MAN HAD A PLACE OF STANDING UP AND LAMENTATION42 IN THIS PLACE.
GEMARA. R. Huna b. Joshua said: [This is] only43 when a grown up person is with him.44 And it is necessary,45 for if he had taught us46 [with regard to] his father, [I might say]47 that is because he48 was always49 with him,50 but [with regard to] his teacher. [he would] not [be believed]. And if he had taught us [with regard to] his teacher, [I might say]51 that is because he had reverence52 for his teacher.53 And if he had taught us these two [cases],54 [I might say55 with regard to] his father, that is because he was always with him, and [with regard to] his teacher, because he had reverence for him, but [with regard to] his brother, in regard to whom there is neither this nor that ground.56 I might say [that he is] not [believed]; so he teaches us57 [that] since the confirmation of documents58 is [only] ordained by the Rabbis,59 so the Rabbis have believed him regarding what the Rabbis [themselves] have ordained. I REMEMBER THAT THAT WOMAN WENT OUT WITH A HINUMA AND UNCOVERED HEAD. What is the reason?60 - Because most women get married as virgins, so this61 is only a declaration.62 THAT THAT MAN USED TO GO OUT FROM SCHOOL TO IMMERSE IN ORDER TO EAT TERUMAH. But perhaps he was the slave of a priest?63 - This supports R. Joshua b. Levi; for R. Joshua b. Levi said: A man is forbidden to teach his slave64 the Torah. But is it indeed not [permitted]? Has it not been taught: If his master has borrowed from him65 or his master made him
(1) The husband.
(2) Even if she has not remarried, since a priest's divorced wife is forbidden to a priest.
(3) I.e.,the place In which they lived.
(5) And she must not marry and live there.
(6) With the buildings in it.
(7) Lit., 'of what case do we treat'?
(8) Lit., 'manner'. When the court belonged to both.
(9) What is the answer to the question? Lit., 'what is with regard to it'.
(10) lsa. XXli. 17.
(11) Referring to this verse.
(12) Lit., 'hurlings about'.
(13) Hence. if the court-yard belonged to both, she must give way before him. By moving from place to place. a man loses the sphere of his livelihood, while a woman can assure hers by marriage.
(14) The husband who was a priest.
(15) While they were married.
(16) I.e., property that she brought from her father's house or that she inherited from her father after her marriage. (V. Glos. s.v. mulug).
(17) So as to avoid personal contact between them, which may lead to familiarity.
(18) Lit., 'we do not attach ourselves to them'.
(19) She must send someone to represent her.
(20) Name of a small Treatise joined to the Babylonian Talmud which deals with laws of mourning. It is also called euphemistically Semahoth ('Joys').
(21) Lit., 'in what (case) are these words said', i.e., when must they not meet together after divorce. R. Nahman applied the rule stated there to collecting payments or appearing in court together. For variants v. loc. cit.
(22) Lit., 'from'.
(23) Apparently a messenger of the court, an usher.
(24) Between the betrothed and his former fiancee.
(25) That the law does not apply to a betrothed couple that had been divorced.
(26) From our own observations now.
(27) Therefore the rule stated in Ebel Rabbathi cannot hold good in this case.
(29) R. Adda.
(30) Lit., 'and those'.
(31) Lit., 'in their greatness', in their majority.
(32) Lit., 'in their smallness', in their minority.
(33) And the signature which was appended when he was still a minor is confirmed in court on the strength of this testimony made in his majority.
(34) To the marriage-ceremony.
(35) Signs that she was a virgin-bride: V. supra 15b and 17b.
(36) When we were pupils together.
(37) I.e.,to bathe for purification so as to be ritually fit to eat terumah.
(38) Which shews that he is a priest. cf. supra 24a-26a.
(39) A field in which a grave has been ploughed becomes a beth ha-peras, and renders unclean through contact for a distance of half a furrow of one hundred cubits In each direction. Peras = half (v. Jast.). Rashi connects it with meaning 'to break' (an area of bone splinters); Maim. with 'to extend' (an area of extension); Tosaf. Nid. 57b with 'to tread' (an area from which people tread aside).
(40) On Sabbath it is not permitted to walk 2000 cubits beyond the outer boundary of the town,
(41) I.e., a right of way.
(42) Var. lec., SITTING DOWN. At funerals. The funeral escort, On returning from a burial, halted on the way seven times at certain places. where they stood up and sat down on the ground to offer comfort to the mourners or to lament for the departed. v. B.B. (Sonc. ed.) p. 420. n. 4.
(43) Lit., 'and that is' - Only then he is believed on testifying to what he saw as a child.
(44) And we arc informed that he is permitted to join the other witness in the evidence which requires the minimum of two witnesses.
(45) To teach the three cases regarding the handwriting.
(46) Lit., 'let us hear'.
(47) That he is believed.
(48) The son.
(49) Lit., 'frequent'.
(50) With his father; he therefore knew' his handwriting well.
(51) That he is believed.
(52) Lit., 'fear, awe'.
(53) He therefore knew his handwriting well.
(54) Of his father and his teacher.
(55) That he is believed.
(56) He is neither always with him nor does he revere him.
(57) Lit., 'he lets us hear' - by stating all the three cases.
(58) I.e.,the attestation of signatures on documents in court.
(59) V. supra 21b.
(60) That he is believed.
(61) His testimony.
(62) No formal testimony of witnesses is required; a general declaration is sufficient.
(63) Who is also entitled to eat terumah.
(64) And this person was in a school, (lit., 'the house of the book') where he learned the Torah (The Book _ the Bible _ the Torah). Therefore he could not be a slave.
(65) From his slave.
Talmud - Mas. Kethuboth 28b
a guardian or he put on Tefillin1 in the presence of his master or he read three verses2 in the Synagogue, he does not become free!3 - There4 it happened that he did it with his consent;5 [for what case] do we state [our rule]?6 When he treats him as a child.7 TO IMMERSE IN ORDER TO EAT TERUMAH. [Only] with regard to Rabbinical terumah.8 THAT HE WAS TAKING A SHARE WITH US AT THE THRESHING FLOOR. But perhaps he was the slave of a priest? - We have learned [this] according to him who says: One does not distribute terumah to a slave unless his master is with him,9 for it has been taught: One does not distribute terumah to a slave unless his master is with him. This is the view of R. Judah. R. Jose says: He can say: 'If I am a priest, give me for my sake, and if I am the slave of a priest, give me for the sake of my master'. In the place of R. Judah they used to raise from terumah to the status of a priest; in the place of R. Jose they would not raise from terumah to the status of a priest.10 It is taught:11 R. Eleazar, the son of R. Jose,12 said: I have never given testimony. Once I gave testimony and they raised a slave to the priesthood through my evidence.13 [You say] they raised! Do you indeed mean to say this? Now. if the Holy One, blessed be He, does not bring a stumbling14 through the animals of the pious men,15 how much less through the pious men themselves?16 - But,17 they wanted to raise a slave to the priesthood through my evidence. He saw it18 in the place of R. Jose,19 and he went and testified in the place of R. Judah.20 THAT THIS PLACE WAS A BETH HA-PERAS Why?21 - Because [the law of] beth ha-peras is Rabbinical, for Rab Judah said in the name of Rab: One blows away [the dust from]22 the beth ha.peras. and goes [there]. Rab Judah b. Ammi said in the name of Rab Judah: A beth ha-peras which has been trodden out is clean. What is the reason?23 It is impossible that a bone [of the size] of a barleycorn was not trodden down by the foot.24 UP TO HERE HE USED TO GO ON SABBATH. He holds that the [Sabbath] limits25 are Rabbinical. A MAN IS NOT BELIEVED WHEN HE SAYS: THAT MAN HAD A WAY IN THIS PLACE, SO-AND-SO HAD A PLACE OF STANDING UP AND LAMENTATION IN THIS PLACE. What is the reason? Money we do not extract.26 Our Rabbis taught:27 A boy is believed when he says, 'Thus my father told me: this family is clean. this family is unclean. - [You say,] 'clean and unclean'! Do you indeed mean to say this?28 But [say]: 'this family is fit29 and this family is unfit', 'That we have eaten at the Kezazah30 [on the occasion of the marriage] of the daughter of So-and-so to So-and-so', 'that we used to bring hallah and [priestly] gifts31 to the priest So-and-so'. But only through himself,32 and not through someone else. In all these cases, if he was an heathen and he became a proselyte, a slave and he was set free, he is not believed.33 [But] he is not believed when he says 'that man had a way in this place, that man had a place of standing up and lamentation in this place'. R'. Johanan b. Beroka, said. He is believed. To which [clause] does R. Johanan b. Beroka, refer? Shall I say, to the last clause? This is extracting money?34 - But [it refers] to the first clause. In all these cases, if he was a heathen and he became a proselyte, a slave and he was set free, he is not believed. R. Johanan b. Beroka says: He is believed. In what [principle] do they differ? - The first Tanna holds: Since he was a heathen he would not pay special attention to it,35 and R. Johanan b. Beroka, holds: Since he had it in his mind to become a proselyte he would pay special attention to it. What is KEZAZAH? - The Rabbis taught: In what manner does kezazah take place? If one of the brothers has married a woman who is unworthy of him, the members36 of the family come together, bring a cask full of fruit, break it in the middle of the open place37 and say. Brethren of the house of Israel, hear. Our brother So-and-so has married a woman who is not worthy of him, and we are afraid lest his descendants38 will be united with our descendants. Come and take for yourselves a sign39 for future generations, that his descendants shall not be united with our descendants'. This is kezazah with regard to which a child is believed when he testifies. [
(1) The Phylacteries.
(2) From the Bible.
(3) Lit., 'he does not go out to freedom', v. Git. 70a. This shews that a slave does learn the Torah.
(4) In the case just quoted.
(5) It may sometimes happen that a slave is taught the Torah.
(6) That it is forbidden to teach a slave the Torah.
(7) And teaches him as he would teach his own children. This is forbidden. Therefore the person in the Mishnah could not be a slave.
(8) Cf. supra 25a. Only with regard to Rabbinical terumah is such testimony sufficient.
(9) As he was alone and took a share at the threshing floor, it shews that he was a priest.
(10) V. supra 26a-27b. And therefore they would not give a slave terumah in the absence of his master, lest this should be used as evidence in regard to marriage.
(11) In a Baraitha.
(12) V. Yeb. 99b.
(13) Lit., 'through my mouth'.
(14) A sin, an offence.
(15) V. Git. 7a.
(16) And how could such an offence have been caused through R. Eleazar.
(17) The case was as follows.
(18) That they gave terumah to a person who in fact was a slave in the absence of his master.
(19) Where they did not raise from terumah to the state of a priest. There was therefore no harm in distributing terumah to a slave at the threshing floor.
(20) Where they raised from terumah to the state of a priest. They therefore thought that this man was a priest. The mistake was apparently found out in time and he was not raised. No offence was brought about through a pious man.
(21) Why was this testimony sufficient?
(22) To see whether there are any bones there.
(23) Why is it regarded as clean?
(24) And by being reduced to a smaller size is no longer liable to communicate defilement.
(25) I.e., the ordinance regarding the Sabbath limits for walking is Rabbinical; therefore this testimony is sufficient.
(26) On the strength of that statement. In civil matters such testimony is not sufficient.
(27) Cf. Tosef. Keth. III for variants.
(28) 'Clean' and 'unclean' are not applicable to families.
(29) Unblemished and fit to marry into priestly families.
(30) 'Cutting off', 'severing family connections'; a ceremony attending the sale of an heirloom to an outsider, and the marriage of a man beneath his social rank. It is the marriage-Kezazah that is spoken of here, v. infra.
(31) V. Deut. XVIII, 3.
(32) The boy himself must have been the messenger.
(33) As to what he saw when he was a heathen or a slave.
(34) V. note 5.
(35) To the various matters about which he testified.
(36) Lit., 'the sons'.
(37) רחבה v. supra p. 41, n. 5. Here. too, it can mean the open space before the house.
(38) Lit., 'seed'.
(39) As a token. They should remember what happened and tell their children, so that everyone will know to distinguish between the descendants of this brother and those of the rest of the family.
Talmud - Mas. Kethuboth 29a
MISHNAH. THESE ARE MAIDENS1 TO WHOM THE FINE IS DUE.2 IF ANYONE HAD INTERCOURSE WITH A MAMZERETH,3 A NETHINAH,4 A CUTHEAN,5 OR WITH A PROSELYTE [MAIDEN].6 A CAPTIVE, OR A SLAVE-WOMAN,7 WHO WAS REDEEMED,8 CONVERTED,9 OR FREED [WHEN SHE WAS] UNDER THE AGE OF10 THREE YEARS AND ONE DAY.11 IF ONE HAD INTERCOURSE WITH HIS SISTER, WITH THE SISTER OF HIS FATHER, WITH THE SISTER OF HIS MOTHER, WITH THE SISTER OF HIS WIFE, WITH THE WIFE OF HIS BROTHER,12 WITH THE WIFE OF THE BROTHER OF HIS FATHER, OR WITH A WOMAN DURING MENSTRUATION,13 HE HAS TO PAY THE FINE,14 [FOR] ALTHOUGH THESE [TRANSGRESSIONS]15 ARE PUNISHED THROUGH [THE TRANSGRESSOR] BEING CUT OFF,16 THERE IS NOT, WITH REGARD TO THEM, A DEATH [PENALTY] [INFLICTED] BY THE COURT.17
GEMARA. [Does it mean that only] these blemished maidens get the fine, [but] unblemished ones [do] not?18 - He means it thus: These are blemished maidens who get the fine:19 IF ANYONE HAD INTERCOURSE WITH A MAMZERETH, A NETHINAH, A CUTHEAN,20 etc.
[Only] [the Mishnah states] a maiden [receives a fine],21 [but not] a small girl.22 Who is the Tanna [who taught this]? Rab Judah said in the name of Rab: It is R. Meir, for it has been taught:23 A small child from the age of one day24 until [the time that] she grows two hairs25 , sale applies to her,26 but not the fine;27 from [the time that] she grows two hairs until she becomes mature,28 the fine applies to her, but not sale.29 This is the view of R. Meir; for R. Meir said: Wherever sale applies,30 the fine does not apply, and wherever the fine applies, sale does not apply. But the Sages say: A small child from the age of three years and one day until [the time that] she becomes mature - the fine applies to her.31 [Does that mean] only the fine [and] not sale!32 - Say:
(1) Na'aroth pl. of na'arah, technically, a girl between twelve years and twelve and a half years of age.
(2) If a man has violated any of these maidens mentioned in our Mishnah, he must pay the fine fixed in Deut. XXII, 29.
(3) Fem. of mamzer, v. Glos.
(4) Fem. of nathin, v. Glos.
(5) A Samaritan, V. Glos.
(6) V. supra 11a.
(7) A maiden.
(8) In the text the word is in the plural, because it refers to a class and not to one person.
(9) It is interesting to note that 'CONVERTED' comes before, although it should come after, 'FREED'. The reason is probably because it is, in Hebrew, a shorter word. Of the three words the first has three, the second four, and the fourth, five syllables, not counting the suffix 'waw', ('and'). The sequence of the words chosen makes for symmetry.
(10) Lit., 'less than'.
(11) He has to pay the fine. For further notes v. supra 11a.
(12) Whom the brother divorced after the betrothal.
(13) And they are all maidens.
(14) Lit., 'the fine is due to them'.
(15) V. Lev. XVIII, 9ff
(16) From life, by premature or sudden death, Kareth V. Glos. Cf. Lev. XVIII, 29: For whosoever shall do any of these abominations, even the souls that do them shall be cut off from among their people.
(17) V. e.g., Lev. XX, 9ff. Only death penalty by the court releases from the money fine, v. Gemara.
(18) The phrasing of the Mishnah seems to imply that only the following maidens which are enumerated are entitled to fines - namely, only of blemished descent. Surely that is impossible.
(19) Although the fine has been fixed for unblemished maidens, whom the man could marry (V. Deut. XXII, 29), it is, the Mishnah tells us, due also to blemished maidens, whom he could not marry. That unblemished maidens get the fine need not be specially mentioned in the Mishnah.
(20) He has to pay the fine.
(21) Lit., 'a maiden, yes, a minor, no'.
(22) A ketannah. A girl is so called until the age of twelve years. If a minor was violated, the fine, according to the Mishnah, is not due to her.
(23) V. Tosef. Keth.
(24) Tosef.: A small child from the age of three years and one day. This is, no doubt, the correct reading. In the text of the Talmud 'three years and' is missing.
(25) The sign of beginning maturity.
(26) The father may sell his daughter as a maid-servant; v. Ex. XXI, 7.
(27) If she was violated; the word na'arah is used in Deut. XXII, 28, 29, excluding a minor.
(28) A girl becomes mature when she is twelve and a half years old. She is then called bogereth, v. Glos.
(29) When the girl is a na'arah the father has no more right to sell her.
(30) Sale applies only when the girl is a ketannah, and the fine applies only when the girl is a na'arah.
(31) According to the Sages, the fine is due to the girl both as a ketannah and a na'arah. In other words, the word na'arah in Deut. XXII, 28, 29 is not to be taken strictly.
(32) Lit., 'fine, yes; sale, no'!
Talmud - Mas. Kethuboth 29b
also the fine [applies] when sale [applies].1
But are these [maidens]2 entitled to the fine! Why? Read here: 'and she shall be his wife', [that means] one who is fit to be his wife?3 - Said Resh Lakish: [It is written:] 'maiden', 'maiden', 'the maiden'4 once5 [the word 'maiden' is necessary] for itself,6 once to include [those maidens, the marrying of whom involves the transgression merely of] a plain prohibitory law,7 and once to include [those maidens, the marrying of whom involves] a transgression punishable with kareth.8 R. Papa said: [It is written:]9 'virgin','virgin', 'the virgins'; once [the word 'virgin' is necessary] for itself,10 once to include [those virgins, the marrying of whom involves the transgression merely of] a plain prohibitory law, and once to include [those virgins, the marrying of whom involves] a transgression punishable with kareth. Why does R. Papa not agree with Resh Lakish? - That [verse]11 he requires for [the same teaching] as that of Abaye, for Abaye said: If he cohabited with her12 and she died, he is free,13 for it is said: 'And he shall give unto the father of he maiden';14 [this means]: To the father of a maiden,15 but not to the father of a dead [person].16 And why did not Resh Lakish agree with R. Papa? - That [verse]17 he requires for an analogy18 for it is taught: [[t is written:] - 'he shall pay money according to the dowry of virgins,19 [this means that] this20 shall be like the dowry of virgins,21 and the dowry of virgins shall be like this.22 But Resh Lakish also requires it23 for [the same teaching] as that of Abaye, and R. Papa also requires it24 for the analogy?25 - Take therefore six words:26 'maiden', 'maiden', 'the maiden', 'virgin', 'virgins', 'the virgins': Two [are necessary] for themselves,27 one for the teaching of Abaye, and one for the analogy, [and] two remain over: one to include [those maidens, the marrying of whom involves the transgression] of a plain prohibitory law, and one to include [those maidens, the marrying of whom involves] a transgression punishable with kareth.
This28 [Mishnah] is to exclude [the view of] that Tanna.29 For it has been taught: [It is written:] and she shall be his wife.30 Simeon the Temanite says: [This means:] a woman who can become his wife;31 R. Simeon b. Menassia says: [This means:] a woman who can remain his wife.32 What difference is there between them?33 - R. Zera said: The difference between them is with regard to a mamzereth and a nethinah. According to him who says that there must be the possibility of her 'becoming' his wife, here34 also there is the possibility of her 'becoming' his wife.35 And according to him who says that there must be the possibility of her remaining his wife, here36 there is not the possibility of her remaining his wife.37 But according to R. Akiba, who says: Marriage takes no effect when there is a prohibitory law against38 it, what is the difference between them?39 - There is a difference between them in the case of a widow who marries a high priest, and this according to R. Simai, for it is taught:40 R. Simai says: Of all41 R. Akiba makes mamzerim,42 except [the issue of] a widow and a high priest, for the Torah says: 'he shall not take', and 'he shall not profane',43 [this teaches that] he makes [his issue] profane,44 but not mamzerim,45 And according to R. Yeshebab, who says: Come and let us cry out against Akiba b. Joseph, who says: Whenever the marriage is forbidden in Israel46 the child [of such marriage] is a mamzer,47 what is the difference between them?48 - The difference between them is
(1) During the whole period that sale applies to a girl, the fine also applies to her, extending however beyond that period, till her stage of bogereth.
(2) Mentioned in our Mishnah.
(3) Lit., 'a woman who is fit for him'. From the words of the Bible one would infer that the fine is payable only if he violated a maiden whom, in law, he could marry. But as to the maidens mentioned in the Mishnah, who are either generally prohibited to an Israelite for marriage, or there is kareth barring their way to marriage, (as in the case of the maidens enumerated in the second clause of the Mishnah), there should be no fine due to them.
(4) In Deut. XXII, 28 'maiden'; verse 29: 'the maiden', and 'the' in 'the maiden' is reckoned as a separate word representing the word 'maiden', so that we have the word 'maiden' written three times. To each of the three words a function is assigned in the Talmudic exposition. One 'maiden' refers to the ordinary unblemished maidens, one 'maiden' refers to the blemished maidens as mentioned in the first clause of the Mishnah, and one 'maiden' refers to the maidens enumerated in the second clause of the Mishnah. - The maidens mentioned in the second part of the first clause of the Mishnah seem to occupy a position of their own. V. Tosaf 29a, s.v. והבא.
(5) Lit., 'one ("maiden")'.
(6) For the ordinary maiden, v. note 3.
(7) Lit., 'those guilty of a negative prohibition', which carries with it the punishment of flagellation only.
(8) V. Glos.
(9) Ex. XXII, 15, 16. There it speaks of seduction. R. Papa, apparently, puts seduction and violation on one level.
(10) V. supra nn. 3 and 5.
(11) Deut. XXII, 29.
(12) By force.
(13) From paying the fine.
(14) The full half-verse is: 'And the man that lay with her shall give unto the father of the maiden fifty silver pieces'. (Deut. XXII, 29.)
(15) I.e., of maiden that lives.
(16) If the maiden is dead, the father cannot be called any more the father of the maiden'. He can only be called the father of the dead maiden, and to such the fine is not payable.
(17) Ex. XXII, 16.
(18) Gezerah shawah; an analogy based on similarity of expressions. V. Glos.
(19) Ex. XXII, 16.
(20) The money to be pact in the case of seduction. (Ex. XXII, 16.)
(21) By 'the dowry of virgins' is meant, according to this teaching, the sum of money to be paid as a fine in Deut. XXII, 29, which is fifty; so here (Ex. XXII, 16) it has to be fifty.
(22) As in Ex. XXII, 16 the money consists of shekels, (this is derived from the special word ישקול, employed for 'pay')' so in Deut. XXII, 29, the fifty have to be shekels.
(23) The word 'the maiden'.
(24) The word 'the virgin'.
(25) Both the teaching of Abaye and the analogy are important to Resh Lakish and P. Papa.
(26) Lit., 'but six verses are written'. - Make your expositions from all the six words taken together.
(27) For the ordinary cases of seduction and violation.
(28) Our Mishnah, in which it is taught that the fine is due also in the case of the violation of maidens, the marriage with whom is prohibited, as a mamzereth or his sister.
(29) I.e., the author of the Baraitha. As to the Tannaim mentioned in the Baraitha, the views of both of them are excluded, v. Tosaf a.l.
(30) Deut. XXII, 29.
(31) Lit., 'to whom there is "becoming".' But his sister cannot 'become' his wife. The very act of marriage is impossible. No marriage, no betrothal, can take effect. V. Kid. 66b. Therefore the law of the fine would not apply to his sister or to any of the other five maidens mentioned in the second clause of the Mishnah.
(32) Lit., 'who is fitting to be retained'. He takes the word 'be', תהיה, in the sense of 'remaining'. This excludes a mamzereth, for although marriage with a mamzereth takes effect, there is 'prohibitory law' attached to it. (v. Kid. 66b). The marriage ought therefore to be discontinued. The mamzereth is thus a woman who cannot remain his wife. Therefore, according to R. Simeon the son of Menassia, the law of fine does not apply to her. - We thus see that our Mishnah excludes both the view of Simeon the Temanite and the view of R. Simeon the son of Menassia.
(33) Between Simeon the Temanite and R. Simeon b. Menassia (Rashi).
(34) In the case of mamzereth and nethinah.
(35) The marriage with a mamzereth or nethinah takes effect although there is a 'prohibitory law' against it. The mamzereth or nethinah can therefore become his wife, although she should not remain his wife. In the view of Simeon the Temanite it is the possibility of her becoming his wife that matters, and therefore they are entitled to the fine.
(36) In the case of mamzereth and nethinah.
(37) In the view of R. Simeon b. Menassia, it is the possibility of her remaining his wife that matters. And since a mamzereth or nethinah cannot remain his wife, they are not entitled to the fine.
(38) V. Yeb. 44a and 49a and v. ibid. 10b and 52b.
(39) Between Simeon the Temanite and R. Simeon the son of Menassia. A mamzereth or nethinah could not, on this view, become his wife even according to R. Simeon b. Menassia; what is then the difference between him and Simeon the Temanite?
(40) In a Baraitha; v. Yeb. 64a and 68a.
(41) I.e., of all the issues of prohibited unions.
(42) R. Akiba declares the offspring of all prohibited unions to be mamzerim, v. Yeb. 49a.
(43) Lev. XXI, 14f. The two verses read: A widow or a divorced woman, or a profane woman, or a harlot, these shall he not take; but a virgin of his own people shall he take to wife. And he shall not profane his seed among his people, for I am the Lord who sanctify him. Vv. 10-15 deal with the high priest.
(44) The children are only unfit for the priesthood.
(45) In this case R. Akiba admits that the marriage takes effect, although there is a prohibitory law against it, so that, in this case, according to Simeon b. Menassia, though the marriage would take effect, since he could not retain her owing to the prohibition, there is no fine, whereas according to Simeon the Temanite, there is a fine.
(46) Lit., 'he who has no (permission of) union in Israel'.
(47) This rule would include also the marriage of a widow and a high priest and would make also the child of such a marriage a mamzer.
(48) What difference would there be now between Simeon the Temanite and R. Simeon b. Menassia?
Talmud - Mas. Kethuboth 30a
with regard to the marriage with an Egyptian or an Edomite [woman], in which case there is a transgression [merely] of a positive law.1 - That is all right if R. Yeshebab [by his statement] only came to exclude the view of R. Simai.2 But if his statement was his own,3 whenever the marriage is forbidden in Israel, the child [of such a marriage] is a mamzer. It would include also a marriage with regard to which a positive law has been transgressed. What is [then] the difference between them? - The difference between them is with regard to a girl, who is no more a virgin, who married a high priest.4 - And why is this5 different?6 - It is a law which does not apply to all.7
R. Hisda said: All agree that he who has intercourse with a woman during menstruation8 [against her will] has to pay the fine,9 for according to him who holds that there must be the possibility of her10 'becoming' his wife, there is with regard to her11 the possibility of her becoming his wife,12 and according to him who holds that there must be the possibility of her13 remaining his wife, there is with regard to her14 the possibility of her remaining his wife.15
Our [Mishnah]16 likewise excludes the view of R. Nehunia b. ha-Kaneh, for it is taught: R. Nehunia b. ha-Kaneh, made the Day of Atonement equal to the Sabbath with regard to payment; as [he who desecrates] the Sabbath17 forfeits his life18 and is free from payment,19 so [he who desecrates] the Day of Atonement20 forfeits his life21 and is free from payment. What is the reason [for the view] of R. Nehunia b. ha-Kaneh? - Abaye said: It is said 'harm'22 [in the case of death]23 by the hand of man,24 and it is said 'harm'25 [in the case of death] by the hand of heaven, [so I say:] As in the case of the 'harm' done by the hand of man one is free from payment,26 so also in the case of 'harm' done by the hand of heaven, one is free from payment.27 To this R. Adda b. Ahaba, demurred: Whence [do you know] that Jacob warned his sons28 against cold and heat,29 which are by the hand of heaven?30 Perhaps [he warned them] against lions and thieves, which are 'by the hand of man?'31 - Is it that Jacob warned them against this and did not warn then, against that? Jacob warned then, against every kind of harm.32
[But] are cold and heat by the hand of heaven? Is it not taught: Everything is 'by the hand of heaven' except cold and heat, for it is said: 'Cold and heat are in the way of the froward; he that keepeth his soul holdeth himself far from them'?33 Further, are lions and thieves 'by the hand of man'? Did not R. Joseph say. and R. Hiyya teach: Since the day of the destruction of the Temple, although the Sanhedrin ceased,34 the four forms of capital punishment35 have not ceased? 'They have not ceased,' [you say]? Surely they have ceased! But [say]
(1) With regard to the Edomite and the Egyptian it is stated in Deut. XXIII, 9: 'The children of the third generation that are born unto them shall enter into the congregation of the Lord.' This is a 'positive law'. That the marriage with an Edomite and an Egyptian of the second generation is forbidden is derived from this positive law. And when a prohibitory law is derived from a positive law, it is regarded as a positive law. And in such a case the marriage takes effect, although it should be discontinued. Thus we would have a difference between Simeon the Temanite and Simeon the son of Menassia.
(2) If his statement refers only to R. Simai, it is limited by the words of R. Simai, and a positive law (i.e., a prohibitory law derived from a positive law) cannot be brought in.
(3) And is therefore unlimited.
(4) In Lev. XXI, 13 the high priest is commanded to take as his wife a virgin. If he marries a girl who is no more a virgin the marriage takes effect, although it should be discontinued. And so we have again a difference between Simeon the Temanite and R. Simeon b. Menassia.
(5) Prohibition derived from a positive law.
(6) From other such prohibitions (e.g., the prohibition with regard to the Edomite and Egyptian) v. p. 164. nn. 6 and 8.
(7) It applies only to the high priest. Therefore it is not treated as the other prohibitory laws that arc derived from positive laws, and it would not be included in the general ruling of R. Akiba even according to R. Yeshebab.
(8) The last case in the second clause of our Mishnah.
(9) Although the cohabitation with a woman during menstruation is prohibited and is punishable with kareth, v. Lev. XVIII, 19 and 29.
(10) The violated maiden.
(11) The menstruant woman.
(12) The marriage of a woman during menstruation takes effect. The fact that cohabitation during menstruation is forbidden does not affect the validity of the marriage, cf. Yeb. 49b and Kid. 68a. The condition of Simeon the Temanite is therefore fulfilled.
(13) The violated maiden.
(14) The menstruant woman.
(15) The marriage of a menstruous woman is entirely valid and may be continued. Thus the condition of R. Simeon b. Menassia is fulfilled.
(16) In the second clause of which it is taught that he who violates his sister or any of the other six maidens enumerated, the intercourse with whom is punishable by kareth, has to pay the fine.
(17) By doing forbidden work on that day.
(18) I.e., he is guilty of a transgression punishable by death (by the hand of man, that is by the court), v. Ex. XXXI, 15 and XXXV, 2.
(19) If, in doing the forbidden work on the Sabbath, he caused damage to someone's property (e.g., if he set fire to a stack of corn) he is free from paying for the damage done, since the transgression involves the death penalty, and where there is the death penalty, there is no payment of money, on the principle that the smaller offence, for which the payment of money is due, is merged in the greater offence v. infra.
(20) By doing forbidden work on that day.
(21) I.e., he is guilty of a transgression punishable by kareth; v. Lev. XXIII, 29, 30. kareth is a divine visitation. Compare 'And (that soul) shall be cut off from among his people' (v. 29) with 'and I will destroy that soul from among his people' (v. 30). Kareth is called in the Talmud 'death by the hand of heaven', while the death penalty, i.e., death by the court, is called 'death by the hand of man'. T. Nehunia b. ha-Kaneh makes 'death by the hand of heaven' (although it is not known when it will come, and when it comes it may be regarded by some people as a natural death; cf. Sema. III, 10) equal to 'death by the hand of man (which is executed through the Court, and all see that the penalty of death was inflicted for the transgression) and applies to it also the principle that the lesser offence is merged in the greater. On this view since the intercourses mentioned in the second clause of our Mishnah are punishable with kareth, the fine would not he paid.
(22) אסון Ex. XXI. 22, 23.
(23) 'Harm' in Ex. XXI, 22, 23 means (also) death as v. 23 ('then thou shalt give life for life') clearly shews.
(24) Cf. v. 22: And if men strive together and hurt a woman with child etc.
(25) V. Gen. XLII. 4. also XLIV, 29 There the reference is to 'harm' that may befall Benjamin on the Journey which may result in death. V. infra.
(26) In Ex. XXI, 22, when no death (or other 'harm') follows, a payment of money is made. But when death follows, the death penalty is inflicted (v. 23) and no payment of money is made. This is clear, since payment of money is only mentioned to v. 22, and in v. 23 only 'life for life' is mentioned.
(27) Abaye's reasoning is as follows: i. He proves that 'harm' refers both to the harm done by man (including death) and to the harm caused by heaven (including death). Therefore 'death by the hand of heaven' equals 'death by the hand of man'. ii. In the case in which 'death by the hand of man' is mentioned, it is stated that the penalty of death is inflicted ('life for life'), and no payment of money is made. The same applies to a case where the penalty is 'death by the hand of heaven'. The analogy could only he between the two words 'harm'. Once the equality of the two kinds of death is established (through the analogy), the equality of the consequences of these two kinds of death follows.
(28) In Gen. XLII, 4.
(29) So Rashi; fast. 'blowing cold winds'. The words are taken from Prov. XXII, 5.
(30) Cold and heat come from God.
(31) Thieves are 'the hand of man'. Lions are apparently called 'the hand of man', as they are not 'the hand of heaven in the same sense in which cold and heat are 'the hand of heaven,' v., however, infra.
(32) Lit., 'all things'. And such harm as is 'the hand of heaven is included.
(33) Prov. XXII. 5. also A.Z. (Sonc. ed.) p. II, n. 2.
(34) And capital punishment could no longer he decreed by the Jewish Courts.
(35) LIt., 'the four deaths', v. Sanh. 49b.
Talmud - Mas. Kethuboth 30b
the judgment of the four forms of capital punishment has not ceased.1 He who would have been sentenced to stoning,2 either falls down from the roof or a wild beast treads him down.3 He who would have been sentenced to burning, either falls into a fire4 or a serpent bites him.5 He who would have been sentenced to decapitation.6 is either delivered to the government7 or robbers come upon him.8 He who would have been sentenced to strangulation, is either drowned in the river or dies from suffocation.9 But reverse it: Lions and thieves are 'by the hand of heaven', and cold and heat are 'by the hand of man'.
Raba said: The reason [for the view] of R. Nehunia b. hakaneh, is [derived] from here:10 [It is written:] And if the people of the land do not all hide their eyes from that man, when he giveth of his seed unto Molech, [and put him not to death]; then I will set my face against that man, and against his family, and will cut him off.11 [With these words] the Torah says:12 My kareth is like your death [-penalty]; as [in the case of] your death[-penalty] one is free from payment, so [in the case of] my kareth one is free from payment. What is the difference between Raba and Abaye? - The difference is [with regard to] a stranger13 who ate terumah.14 According to Abaye he is free [from payment],15 and according to Raba he is bound [to pay].16 But is he free [from payment] according to Abaye? Did not R. Hisda say: R. Nehunia b. ha-Kaneh admits that he who stole [forbidden] fat17 belonging to his neighbour, and ate it, is bound [to pay],18 because he was guilty of stealing before he came to [the transgression of] the prohibition with regard to [forbidden] fat?19 Hence [you say that] as soon as20 he lifted it21 up he acquired it,22 but he did not become guilty of the transgression23 punishable with death until he had eaten it. Here24 also, when he lifted it25 up he acquired it, but he did not become guilty of the transgression26 punishable with death until he had eaten it!27 - Here we treat of a case where his friend stuck it28 into his mouth.29 [But] even then,30 as soon as he chewed it, he acquired it, but he is not guilty of the transgression punishable with death until he has swallowed it!31 - When [his friend] stuck it into his oesophagus.32 How shall we imagine this case? If he can give it back,33 let him give it back.34 And if he cannot give it back, why should he be guilty?35 - It speaks of a case when he can give it back only with an effort.36 R. Papa said, When his friend put liquids of terumah into his mouth.37 R. Ashi said: [it speaks of a case] when a stranger ate his own terumah.38
(1) The punishment comes in corresponding forms.
(2) To death by stoning.
(3) And kills him.
(4) A conflagration.
(5) And the poison burns and kills him.
(6) With a sword, v. Sanh. 49b.
(7) To the Roman Government.
(8) And slay him.
(9) סרונכי; so Jast.; Rashi: croup.
(10) From the following passage of the Bible.
(11) Lev. XX, 4f.
(12) I.e., God says in the Torah to Israel.
(13) I.e., A non-priest.
(14) If a stranger eats terumah, he is punished with death, not with death 'by the hand of man' but with death 'by the hand of heaven'. V. Lev. XXII, 9, 10 and cf. Sanh. 83a. The death 'by the hand of heaven' in this case is, however, a milder form of kareth. Kareth proper means the cutting off of the life of the transgressor and of his family. The death in the case of a stranger eating terumah means death similar to that of kareth, namely 'by the hand of heaven,' but applied only to the offender. V. Rashi, a.l. Cf. also Lev. XX, 5 (then I will set my face against that man and against his family and I will cut him off).
(15) For the terumah. 'Harm' indicates any kind of death, also the milder form of death 'by the hand of heaven', as that in the case of eating terumah.
(16) To the priest for the terumah. Raba derives the reason for the view of R. Nehunia b. ha-Kaneh, from Lev. XX, 4, 5, and there kareth proper is spoken of. According to Raba, therefore, only kareth proper is made equal to death 'by the hand of man' with regard to one being free from payment, but not the milder form of kareth, of death 'by the hand of heaven, as in the case of a stranger eating terumah. In that case, payment must be made.
(17) Heleb; v. Lev. III, 17; VII, 23 and 25. In the latter verse kareth is the punishment mentioned for eating heleb. Cf. Ker. 2a, 4a-b.
(18) Although the eating of heleb is punishable with kareth; v. preceding note.
(19) Since the crime of stealing was committed before the sin of eating heleb, the principle of the lesser offence being merged in the greater (v. supra 30a) does not apply.
(20) Lit., 'from the time that'.
(21) The heleb.
(22) And from that moment becomes liable for the theft.
(23) Of eating the heleb.
(24) In the case of terumah.
(25) The terumah.
(26) Of eating terumah.
(27) And he should therefore he liable to pay for it.
(28) The terumah.
(29) So that he did not acquire it by lifting it up but only from the moment he eats it, so that the offence of stealing and of eating the terumah are committed simultaneously.
(30) Lit., 'the end of the end'.
(31) The theft is thus committed before the offence of eating the terumah, whereas there is no liability for eating terumah before he swallows it.
(32) So there was no chewing.
(33) I.e., if he can bring it out of his oesophagus.
(34) And by failing to do so he becomes liable from that very moment for stealing it.
(35) Of the transgression of eating terumah, seeing it was a case of force majeure.
(36) [So that even if he had brought it up, it would have been useless. Consequently he cannot be held guilty of stealing. What he can be made liable to pay for is for actually eating the terumah. This act, however, carries with it also a death penalty which applies in this case, since he could by an effort have brought it up. As both penalties do thus arise simultaneously, he is free from payment.]
(37) In this case also both penalties come at the same time; cf. previous note.
(38) Terumah of his own produce, which he separated and was going to give to the priest. In eating it he is guilty of a transgression punishable with death 'by the hand of heaven'.
Talmud - Mas. Kethuboth 31a
and [at the same time] tore the silk garments of his neighbour.1
The [above] text [stated]: 'R. Hisda said: R. Nehunia b. hakaneh admits that, if someone stole [forbidden] fat belonging to his neighbour and ate it, he is bound [to pay], because he was guilty of stealing before he came to [the transgression of] the prohibition with regard to [forbidden] fat.' Is it to say that he differs from R. Abin? For R. Abin said: If someone threw an arrow [on Sabbath] from the beginning of four [cubits] to the end of four [cubits2 ] and it3 tore silk garments in its passage4 he is free [from payment],5 for the taking up6 was necessary for the putting down:7 Now here8 also the 'lifting up' was necessary for the eating.9 - Now, is this so?10 There11 'the putting down' is impossible without the 'taking up'; but here12 the eating is possible without the 'lifting up', for, if he likes, he can bend down and eat.13 Or: there,14 if he wants to take it back, he cannot take it back;15 but here,16 he can put it back.17 - What is the [practical] difference between the one answer and the other answer? - The difference is: when someone carried18 a knife in the public road19 and it20 tore silk garments in its passage: according to the answer that the 'putting down' is impossible without the 'taking up', here21 also the 'putting down' is impossible without the 'taking up'.22 And according to the answer that he cannot take it back, here23 he can take it back.24
The text [stated above]: 'R. Abin said: If someone threw [on Sabbath] an arrow from the beginning of four [cubits] to the end of four [cubits] and it tore silk garments in its passage he is free [from payment], for the "taking up" was necessary for the "putting down".' R. Bibi b. Abaye raised the following objection: If someone stole a purse25 on Sabbath he is bound [to pay],26 because he was guilty of stealing before he came to the [transgression of] the prohibition which is punishable with stoning,27 but if he dragged it along he is free [from payment], because the desecration of the Sabbath and the stealing come at the same time.28 And why?29 Here also we should say: The lifting up is necessary for the carrying out!30 - Here we treat of a case when he lifted it up in order to hide it and changed his mind and carried it out.31 [But] is he, in this case, guilty [of desecrating the Sabbath]? Did not R. Simeon say [that] R. Ammi said in the name of R. Johanan: If someone was removing objects from one corner to another corner and changed his mind and carried them out he is free [of the transgression of the desecration of the Sabbath] because the taking up was not from the outset for that [purpose]? - Do not say: in order to hide it, but say: in order to carry it out, only it speaks here of a case when he [paused and] remained standing [for a while].32 For what purpose did he remain standing? If to adjust the cord on his shoulder, this is the usual way.33 - No; [we speak of a case] where he stood still in order to rest. But how would it be if [he had remained standing] in order to adjust the cord on his shoulder?
(1) Ordinarily he would have to pay his neighbour for the damage done to his garments. But as here the liability to death 'by the hand of heaven' for eating the terumah and the obligation to pay to his neighbour for the torn silk garments come at the same time, he is free from having to make the payment to his neighbour.
(2) To throw an object a distance of four cubits in the public road on Sabbath is a desecration of the Sabbath, which, if done wilfully, is punishable with death 'by the hand of man' (stoning) if after a warning, and with death 'by the hand of heaven' (kareth), if without a warning. V. Shah. 96b and 100a and Ex. XXXI, 14.
(3) The arrow.
(4) I.e., in the course of its flight.
(5) For the silk garments, to their owner.
(6) Of the arrow.
(7) It is when the object is 'put down' or comes to rest, that the act of transgressing, or of throwing, is completed. But it begins with the 'taking up' of the object. The damage to the silk garments was done between the act of 'taking up' עקירה and that of 'putting down', הנחה. The penalty of death or kareth is thus regarded as having come at the same time as the obligation to pay for the torn garments, and he is therefore free from payment (Rashi).
(8) In the case of one stealing heleb and eating it.
(9) Therefore here also the penalty of kareth for eating heleb and the obligation to pay for the heleb to its owner come at the same time, and, according to R. Abin, he would he free from payment.
(10) Is this analogy correct?
(11) In the case of throwing the arrow.
(12) In the case of eating heleb.
(13) Without lifting; there is therefore no analogy. Hence the liability for stealing came first from the moment of lifting.
(14) In the case of throwing the arrow.
(15) Once he has thrown the arrow it takes its course.
(16) In the case of eating the heleb.
(17) Therefore we do not say that the eating of the heleb Begins from the time when he lifted it up.
(18) Lit., 'He who causes to pass'.
(19) To carry an object four cubits in the public road is a desecration of the Sabbath, v. supra.
(20) The knife.
(21) In the case of the knife.
(22) And he would he free from payment, v. p. 170. n. 6
(23) In the case of the knife.
(24) And he would have to pay for the torn garments.
(25) With money.
(26) To the owner of the purse for the loss of the purse and its contents.
(27) He was guilty of stealing as soon as he lifted up the purse, and he was guilty of desecrating the Sabbath only after he carried it into the public road. And as the two guilty acts did not coincide, he is not free from payment.
(28) When he got it out from the domain of the owner into the public road.
(29) Why should he be bound to pay if he lifted up the purse?
(30) And he should he free from payment. V. p. 170, n. 6.
(31) The 'lifting up' was therefore not for the purpose of carrying out,
(32) [His pause in the owner's domain completed the first act of removing, making him liable for the theft, while the liability for Sabbath desecration begins when he resumes his walk to carry it outside.]
(33) Of one who carries a cord, and this pause cannot be regarded as an interruption.
Talmud - Mas. Kethuboth 31b
He would be free [from payment]? [If so] instead of teaching 'but if he dragged it along he is free [from payment]', let him make the distinction in the same case.1 'When is this said?2 If he stood still to rest; but if [he stood still] to adjust the cord on his shoulder, he is free [from payment]'? But [answer thus:] Whose opinion is this? It is that of Ben 'Azzai, who says: Walking is like standing.3 [But] how would it be if he threw [the purse]?4 He would be free [from payment].5 Let him then make the distinction in the same case,6 thus when is it said:7 'When he walked,8 but when he threw it, he is free'? - The case of dragging it along is necessary [to be stated]. You might have said that this is not the way of carrying out,9 so he lets us hear [that it is not so]. Of what [kind of purse does it speak]? If of a large purse, this10 is the ordinary way [of carrying it out],11 and if of a small purse, this is not the ordinary way?12 - In fact [it speaks] of a middle-sized [purse]. But where did he carry it to? If he carried it into the public road, there is desecration of the Sabbath but no stealing,13 and if he carried it into private ground, there is stealing but no desecration of the Sabbath!14 - No, it is necessary [to state it] when he carried it out to the sides15 of the public road. According to whose view?16 If according to [that of] R. Eliezer, who says: The sides of the public road are like the public road,17 there is desecration of the Sabbath but no stealing18 and if it is according to the view of the Rabbis, who say: 'The sides of the public road are not like the public road,' there is stealing but no desecration of the Sabbath?15 - Indeed, it is according to R. Eliezer, and when R. Eliezer says: 'The sides of the public road are like the public road', it is only with regard to becoming guilty of the desecration of the Sabbath,19 because sometimes, through the pressure of the crowd, people go in there,20 but with regard to acquiring, one does acquire there, because the public is not often there.21 R. Ashi said: [We speak of a case] when he lowered22 his hand to less than three [handbreadths]23 and received it.24 [And this is] according to Raba, for Raba said: The hand of a person is regarded as [a place of] four by four [handbreadths].25 R. Aha taught so.26 Rabina [however] taught: Indeed, when he carried it out into the public road, for he acquires also in the public ground.27 [And] they28 differ with regard to a deduction from this Mishnah, for we have learned: If he29 was pulling it out30 and it died in the domain of the owner, he is free;31 but if he lifted it up or brought it32 out from the territory of the owner33 and it died, he is bound [to pay].34 Rabina makes a deduction from the first clause, and R. Aha makes a deduction from the second clause. Rabina makes a deduction from the first clause: 'If he was drawing it out and it died in the domain of the owner, he is free'. The reason [for his being free] is because it died in the domain of the owner, hut If he had brought it out35 from the domain of the owner36 and it died, he would have been hound [to pay].37 R. Aha makes a deduction from the second clause: 'but if he lifted it up or brought it out [etc.]' Bringing out is like lifting up; as lifting up is [an act through which the object] comes into his possession,38 so bringing out [must he an act through which the object] comes into his possession.39 According to R. Aha the first clause is difficult and according to Rabina the second clause is difficult? - The first clause is not difficult according to R. Aha, for as long as it has not come into his possession it is called: 'in the domain of the owner'.40 The second clause is not difficult according to Rabina, for we do not say [that] bringing out is like lifting up.41
IF ONE HAD INTERCOURSE [BY FORCE] WITH HIS SISTER, OR WITH THE SISTER OF HIS FATHER, etc. There is a question of contradiction against this: The following persons receive [the punishment of] lashes: he who has intercourse with his sister, with the sister of his father, with the sister of his mother, with the sister of his wife, with the sister of his brother, with the wife of the brother of his father, or with a woman during menstruation,42
(1) In the first case stated when he lifted up the purse.
(2) That the two acts are held not to coincide and he is therefore bound to pay for the purse.
(3) Lit, 'he who walks is as he who stands.' It means: every pace made is a new 'lifting up' and a new 'putting down'. Therefore, the theft is committed with the first 'lifting up' of the purse, and the desecration of the Sabbath is effected when the last pace is made. The two acts therefore do not coincide and he is bound to pay.
(4) He lifted up the purse and threw it into the public road.
(5) Because the stealing and the desecration of the Sabbath come together: cf. the case of the arrow on supra 30a.
(6) In the first case stated when he lifted up the purse.
(7) That the two acts are not held to coincide and he is therefore bound to pay for the loss to the owner of the purse.
(8) And carried out the purse in walking.
(9) From one territory to another, and therefore involves no liability.
(10) Dragging it along.
(11) And why is it necessary to let us hear that dragging it along is a way of carrying out? It is too heavy to carry.
(12) And indeed it should not be regarded as 'carrying out' and should not constitute a desecration of the Sabbath.
(13) Lit., 'the prohibition of Sabbath is there, the prohibition of stealing is not there'. - Without lifting it up there is no acquisition in the public road. (Rashi.)
(14) Since he carried it from one private ground to another private ground next to it. 'Carrying out' is forbidden on Sabbath only from private ground to public ground or from public ground to private ground. V. Shab. 2b and 73a.
(15) V. infra.
(16) Lit., 'according to whom'?
(17) V. Shab. 6a.
(18) V. note 1.
(19) Guilt of the Sabbath.
(20) Lit., 'the public press and go in there'.
(21) And they have therefore more the character of private ground for the purpose of acquisition by pulling (meshikah, v. Glos.).
(22) Lit., joined'.
(23) From the ground. Within three handbreadths from the ground it is public territory. Cf. Shab. 97a.
(24) Indeed he dragged the purse along into the public road, and there he put his (second) hand near the ground, less than three handbreadths, and received the purse into the hand, and his hand acquired it for him. Thus the desecration of the Sabbath and the stealing came at the same time: the former when the purse was carried out into the public road (for dragging along is carrying out), and the latter when - simultaneously - it dropped into his hand (Rashi). V. also next note.
(25) For the purpose of 'taking up' and 'putting down', the place must be at least four by four handbreadths; v. Shab. 4a. Raba said that the hand of a person is regarded as being a place of four by four handbreadths; v. Shab. 5a. And just as it is regarded as a place of four by four handbreadths for the purposes of Sabbath, it is also regarded as such a place for the purposes of acquisition. Therefore, when he received the purse into his hand, although it was lower than three handbreadths from the ground, since his hand is considered a place, in the legal sense, it is as if he had lifted up the purse above the three handbreadths from the ground and he has thus acquired it by lifting it up: the desecration of the Sabbath and the stealing come therefore at the same time (Rashi). 'Lifting' as an act of acquisition must be at least three handbreadths from the ground. V. Kid. (Sonc. ed.) p. 124, n. 5.
(26) As R. Ashi said that there is no acquisition in a public domain except by 'lifting up'.
(27) By dragging along the purse towards him. No 'lifting up' is necessary. The person acquires the object by pulling it (meshikah) even in a public domain.
(28) R. Aba and Rabina.
(29) V. B.K. l.c.
(30) Lit., 'he pulled it and went'. - He intended to steal the animal.
(31) From paying to the owner for the animal, for he has not acquired it yet, since he has not taken it out from the territory of the owner and it has therefore not come into his possession.
(32) The animal.
(33) And by doing this he acquired the animal.
(34) To the owner for the animal, v. B.K. 79a.
(35) By the process of 'pulling'.
(36) Even into public territory.
(37) This shews that pulling an object to oneself acquires also in public territory.
(38) רשות has the meaning of domain as well as of possession.
(39) רשות here also means 'possession'. By being brought into his private domain the object comes into his possession, but not by being brought out into public territory. Therefore R. Aha requires the device of the person receiving the object into his hand near the ground, as R. Ashi said.
(40) Even if it is in the public road.
(41) In the sense in which R. Aha says it.
(42) Persons who commit, after a warning, a transgression punishable with kareth receive the punishment of lashes, v. Mak. 13a.
Talmud - Mas. Kethuboth 32a
and it is established that one does not receive lashes and pay!1 - 'Ulla said: There is no difficulty. Here2 [it speaks] of his sister [who is] a maiden,3 and there4 [it speaks] of his sister [who is] a mature girl.5 [But in the case of] his sister [who is] a mature girl, too, [there are damages to be paid for the] shame and deterioration?6 - [It speaks of] an idiot.7 But [there are still damages to be paid for] the pain?8 [It speaks of] a girl who was seduced.9 Now that you have come to this,10 you can even say [that it speaks of] his sister [who was] a maiden [and namely when she was] an orphan11 and [she was] seduced.12
Consequently, 'Ulla holds the view that wherever there is money [to be paid] and the punishment of lashes [to be inflicted], he pays the money and does not receive the lashes,13 Whence does 'Ulla derive this? - He derives it from [the law with regard to] one person who injures another person. Just as when one person injures another person, in which case there is money to [be paid]14 and the punishment of lashes,15 he pays the money and does not receive the lashes,16 so whenever there are payment of money and the punishment of lashes, he pays the money and does not receive the lashes. [But may it not be argued] it is different with [the case of] one person who injures another person because he is liable for five things?17 And [if you will say] that [the payment of] money is lighter,18 [one can say against this] that [here it has been excepted] from its rule [and] permitted to the Court!19 But he derives it from the refuted false witnesses.20 Just as in the case of refuted false witnesses, whose transgression involves the payment of money and the punishment with lashes,21 they pay the money but do not receive the lashes,22 so whenever there are payment of money and the punishment of lashes, he pays the money and does not receive the lashes. [But it may be argued] it is different with the case of refuted false witnesses, because they do not require a warning?23 [And if you will say] that [the payment of] money is lighter, [one can say against this,] that they24 have not done any deed!25 - But he derives it from both.26 The point common to both is that there are the payment of money and the punishment of lashes, and in either case he pays the money and does not receive the lashes. So whenever there are payment of money and the punishment of lashes, he pays the money and does not receive the lashes. But [it may be argued] the point common to both is [also] that they both have a strict side?27 And if [you will say that the payment of] money is lighter, [one can say against this] that they have both a lighter side?28 -
(1) Since he receives lashes, according to the Mishnah just quoted, he should not pay the fine, and this would be against our Mishnah.
(2) In our Mishnah.
(3) A na'arah (v. Glos.) and the fine is payable; v. supra 29a. In this case the penalty of lashes would not be inflicted.
(4) In Mak. 13a.
(5) A bogereth (v. Glos.), and no fine is due, v. supra 29a. In this case the penalty of lashes is inflicted.
(6) Which she has suffered, (v. infra 39a-40b). And there would be both lashes and payment.
(7) The girl is not compos mentis, and thus neither shame nor deterioration applies.
(8) Caused by the forced intercourse.
(9) In the Mishnah Mak. 13a, it was not a case of violation, but of seduction; and in seduction there is no pain: v. infra 39b.
(10) To say that the Mishnah Mak. speaks of seduction and not violation.
(11) Since her father is not alive, the damages are payable to her.
(12) And having yielded to his persuasion she will not claim the damages from him; hence lashes are inflicted.
(13) Since 'Ulla explains the Mishnah Mak. 13a as dealing with a bogereth, as otherwise there would be, in his view, no lashes even if he were warned beforehand, but only the payment of the fine.
(14) V. Ex. XXI, 19.
(15) This is deduced from Deut. XXV, 3 (Rashi).
(16) V. infra 32b.
(17) He has to make five kinds of payments; v. B.K. 83b. The payment of money in this case is therefore particularly heavy and other money payments cannot be compared with it.
(18) And if in this case payment of money is to be made and no lashes are to be given, the same should indeed apply to other cases. Whether the payment is greater or smaller, it is a lighter punishment than lashes, and we see here that the lighter punishment is chosen (cf. Rashi).
(19) In this case the Torah has expressly stated that the Court may administer lashes (cf. Deut. XXV, 2). But the Court may prefer, and as a rule does prefer, that the person who was injured should receive money as compensation (Cf. Tosaf. s.v. ואי). Therefore in this case the money is paid and no lashes are given. But in other cases, as in those of violation and seduction. the rule may be different. In these cases the giving of lashes is not mentioned explicitly in the Torah, and thus its permissiveness is not stated. And when in such cases the punishment of lashes and the payment of money are due, lashes are given. And you cannot derive other cases from this case. With regard to the punishment of lashes v. Mak. 13b.
(20) Witnesses proved zomemim, v. Glos.
(21) Cf. Mak. 4a.
(22) V. infra 32b.
(23) They are subject to the lex talionis without a warning.
(24) The refuted false witnesses.
(25) Their transgression consists in words and not in deeds. Therefore the money penalty is imposed and not that of lashes. But with regard to transgressions in deeds, it may be that the transgressor receives lashes!
(26) The case of one person who injures another person and the case of the refuted false witnesses.
(27) In the one case the five kinds of payment and in the other case the non-requirement of a warning.
(28) In the one case the exception (v. p. 176, n. 9), and in the other case the transgression consisted of words and not of a deed. Therefore you cannot compare other cases with this case.
Talmud - Mas. Kethuboth 32b
But 'Ulla derives it from the two words 'for'.1 It is written here for he hath humbled her2 and it is written there: 'Eye for eye'. As there3 he pays money and does not receive lashes, so wherever there are the payment of money and the punishment of lashes, he pays money and does not receive the lashes.
R. Johanan said: You can even say that it4 speaks of his sister who was a maiden. Only there4 it speaks of a case where they warned him,5 and here6 it speaks of a case where they did not warn him.7 Consequently R. Johanan holds the view that wherever there are the payment of money and the punishment of lashes and they warned him, he receives the lashes and does not pay the money. Whence does R. Johanan derive this? - The verse says: According to his guilt;8 [from this I infer that] you punish him because of one guilt but not because of two guilts, and immediately follow9 the words: Forty stripes he may give him.10 But behold when one person injures another person, in which case there are the payment of money and the punishment of lashes, he pays money and does not receive the lashes? And if you will say that this is only when they did not warn him, but when they warned him, he receives the lashes and does not pay - did not R. Ammi say in the name of R. Johanan that, if one person struck another person a blow, for which no perutah11 can be claimed as damages,12 he receives the lashes? How shall we imagine this case? If they did not warn him, why does he receive the lashes? Hence it is clear that they warned him, and the reason [why he receives the lashes and does not pay] is because the damages do not amount to a perutah, but if they amount to a perutah he pays the money but does not receive the lashes!13 - [It is] as R. Elai said: The Torah has expressly stated14 that the Zomemim witnesses have to pay money; so [here] also the Torah has expressly stated that the person who injures another person has to pay money. With regard to what has that [teaching] of R. Elai been said? - With regard to the following:15 'We testify that So-and-so owes his fellow two hundred zuz' and they were found to be Zomemim, they receive the lashes and pay,16 for it is not the verse that imposes upon them17 the lashes18 which imposes upon them17 the payment19 [of money]. This is the view of R. Meir; and the Sages say: He who pays does not receive lashes.20 [And] let us say: he who receives lashes does not pay?21 [Upon that] R. Elai said: The Torah has expressly stated that the Zomemim witnesses have to pay more money. Where has the Torah stated this? - Consider; it is written: 'Then shall ye do unto him as he had thought to do onto his brother'; why [is it written further,] 'hand for hand'?22 [This means] a thing that is given from hand to hand, and that is money. [And] the same applies to the case of23 one person who injures another person. Consider; it is written: 'As he hath done, so shall it be done to him';24 why [is it written further] 'so shall it be rendered unto him'?25 [This means] a thing that can be rendered,26 and that is money.
Why does R. Johanan not say as 'Ulla?27 - If so28 you would abolish [the prohibitory law]: The nakedness of thy sister thou shalt not uncover.29
(1) תחת. A deduction based on similarity of expressions - a Gezerah shawah (v. Glos.).
(2) Deut. XXII, 29.
(3) Ex. XXI, 24.
(4) The Mishnah, Mak. 13a.
(5) And he is therefore liable to the payment of money and the penalty of lashes, and the Mishnah in Mak. 13a teaches us that, in that case, he receives the lashes and does not pay the money.
(6) In our Mishnah.
(7) And he is not liable to the penalty of lashes, and therefore he has to pay the money.
(8) Deut. XXV, 2.
(9) Lit., 'and next to it'.
(10) Deut. XXV, 3. This shows that when there are two guilts, or two punishments for one guilt, he receives the punishment of lashes.
(11) A small coin, v. Glos.
(12) Lit., 'in which there is not the value of a perutah'.
(13) Which contradicts R. Johanan's ruling.
(14) Lit., 'increased'. This means: included something by using an additional word, or additional words.
(15) Mak. 4a.
(16) The amount they wanted to make the person pay. against whom they falsely testified.
(17) Lit., 'brings them to'.
(18) For transgressing the ninth commandment.
(19) V. Deut. XIX, 19.
(20) V. Mak. 4a.
(21) According to the view of R. Johanan.
(22) Deut. XIX, 21.
(23) Lit., 'also'.
(24) Lev. XXIV, 19.
(25) Lev. XXIV, 20.
(26) Lit., 'with regard to which there is a rendering', 'a giving'.
(27) That our Mishnah speaks of the case where he had intercourse with his sister as a na'arah, which makes him liable to the fine and exempts him from lashes.
(28) That is, if he who cohabited with his sister who is a maiden, would be free from receiving lashes after he had been warned.
(29) Lev., XVIII, 9. A prohibitory law, if wilfully transgressed, and after a warning, is punishable (also) with lashes. Therefore R. Johanan holds that where there are the payment of money and the punishment of lashes, he receives the lashes and does not pay the money. Only our Mishnah speaks of a case where there was no warning, and therefore he pays the fine.
Talmud - Mas. Kethuboth 33a
[But could not one say] also [in the case of] one person who injures another person: If so1 you would abolish [the prohibitory law], 'he shall not exceed, lest, if he should exceed.'2 [And in case of] the Zomemim witnesses too, [one could say]: If so you would abolish [the law]: 'then it shall be, if the guilty man deserve to be beaten.'3 But [you must say that in the case of] the Zomemim witnesses it is possible to fulfil it4 when [the witnesses testified falsely about someone5 that he was] the son of a divorced woman or the son of a haluzah.6 [Similarly in the case of] a person who injured another person, it also is possible to fulfil it7 when he struck him a blow for which no perutah can be claimed as damages.8 [And so you can say] also [with regard to] his sister [that] it is possible to fulfil it9 in the case of his sister who was a mature girl!10 - R. Johanan can answer you: [The verse] for he hath humbled her11 is required for [the same teaching] as of Abaye, for Abaye said: The verse says, 'for he hath humbled her'. This12 [he shall pay] for he has humbled her, [from which we infer], by implication, that there are also [to be paid damages for] shame and deterioration.13 And 'Ulla?'14 - He derives it from a teaching of Raba, for Raba said: The verse says: Then the man that lay with her shall give unto the father of the maiden it fifty shekel of silver;15 [this means that] for the enjoyment of lying [with the maiden he has to pay] fifty [shekel of silver], [and we infer], by implication, that there are also [to be paid damages for] shame and deterioration.
R. Eleazar16 says: The Zomemim witnesses pay money and do not receive lashes, because they cannot be warned.17 Raba said: You may know it [from the following]:18 When shall we warn them? Shall we warn them at first?19 They will [then] say: We have forgotten20 . Shall we warn them during the deed?21 They would [then] withdraw and not give any evidence.22 Shall we warn them at the end?23 [Then] what has been has been.24 Abaye demurred to this: Let us warn them immediately after they have given their evidence?25 R. Aha, the son of R. Ika demurred: Let us warn them at first26 and gesticulate to them [afterwards].27 Later28 Abaye said: What I said29 was nothing. For if one were to say30 that Zomemim witnesses require a warning, [it would follow that], if we have not warned them, we would not kill them.31 [But then] is it possible32 that who they wished to kill without a warning,33 that they should require a warning? Surely, it is necessary34 [that the words be fulfilled,] 'then shall ye do unto him as he has thought to do onto his brother',35 and this would not be [the case here]? To this R. Samma the son of R. Jeremiah demurred. But now [according to your argument], [if the witnesses testified falsely about someone36 that he was] the son of a divorced woman or the son of a haluzah,37 since this case is not included in 'as he had thought etc.' a warning should be required!38 - The verse says: 'Ye shall have one manner of law';39 [this means] a law that is equal for you all.40
R. Shisha, the son of R. Idi, said: That a person who injures another person pays money and does not receive the lashes is derived from this:41 [It is written:] And if men strive together and hurt a woman with child, so that her fruit depart.42 [Upon this] R. Eleazar said: The verse speaks of a striving with intent to kill, for it is written, But if any harm follow, then thou shalt give life for life43 . How shall we imagine this case? If they did not warn him, why should he be killed? Hence it is obvious that he was warned, [and it is held], when one is warned regarding a severe matter44 one also is warned for a light matter,45 and [yet] the Torah says: And yet no harm follow, he shall be surely fined.46 To this R. Ashi demurred: Whence [do we know] that when one is warned regarding a severe matter one also stands warned for a light matter? Perhaps it is not so!47 And even if we will say that it is so, whence [do we know] that [the penalty of] death is severer?
(1) cf, in this case, he has to pay money, he does not receive the lashes, v. supra 32b.
(2) Deut. XXV, 3. If the lashes are not given, this law is not fulfilled.
(3) Deut. XXV, 2, from which is derived the inflicting of lashes on Zomemim witnesses, v. Mak. 2b, and infra.
(4) The flagellation prescribed in Deut. XXV, 2.
(5) A priest.
(6) V. Glos. In this case one cannot do to him as he Bad thought to do to others; nor is there a money fine, so he receives the lashes, v. Mak. 2a.
(7) The flagellation attached to the prohibitory law of Deut. XXV, 3.
(8) Where there is no money payment and so he receives the lashes, v. supra 32b. V. Rashi .
(9) The flagellation attached to the prohibitory law of Lev. XVIII, 9.
(10) As long as there is a possibility of fulfilling the law it is not abolished, as in the other two cases; thus there is no point in R. Johanan's objection to 'Ulla's explanation.
(11) Deut. XXII, 29, from which 'Ulla derives that the fine is paid and no lashes are inflicted.
(12) The fifty shekels of silver.
(13) V. infra 40b.
(14) Whence does he derive Abaye's deduction?
(15) Deut. XXII, 29.
(16) So marginal glosses to text. R. Eleazar b. Pedath, generally called in the Talmud simply R. Eleazar, was a disciple and later an associate of R. Johanan. Cur. edd.: R. Eliezer.
(17) [No verse is required to teach that Zomemim witnesses pay and receive no lashes (in opposition to R. Elai supra p. 178) as the Talmud proceeds to explain. The case of Mak. 2a (v. supra note 3) is an exception since there is no possibility of applying the lex talionis; where however it is applicable there are no lashes (Rashi).]
(18) That they cannot be warned.
(19) Before they gave evidence.
(20) The warning. The warning has then lapsed.
(21) I.e,, during the evidence.
(22) Seeing that they are under suspicion they would refuse altogether to give evidence, even true evidence.
(23) After they had given their evidence.
(24) I.e., what they said they cannot withdraw, and there would be no point in warning them.
(25) 'Within as much (time) as is required for an utterance', e.g., 'a greeting'. V. Nazir (Sonc. ed.) p. 71 n. 1.
(26) Before they gave evidence.
(27) I.e., during the evidence. By gesticulating we would remind the witnesses of the warning given to them at first, and they could not say, 'we have forgotten it'.
(28) Or, 'another time'.
(29) That the Zomemim witnesses should require a warning to be lashed.
(30) Lit., 'if it enters thy mind'.
(31) Although their false evidence, had it remained unrefuted, would have brought about the penalty of death on him against whom they testified.
(32) Lit., 'is there anything (like this)?'
(33) Since their evidence proved to be false, they could not have given a warning to those against whom they testified.
(34) Lit., 'do we not require'?
(35) Deut. XIX, 19.
(36) A priest.
(37) v. supra p. 180, n. 3.
(38) [If the reason that Zomemim witnesses require no warning is because, otherwise, the principle 'as he had though' could not be applied, a warning should be required in this case which the law excepts from the application of this principle].
(39) Lev., XXIV, 22.
(40) And since in most cases the Zomemim witnesses cannot be warned, they need not be warned in this case either.
(41) And not (as supra 32b) from Lev. XXIV, 20.
(42) Ex. XXI, 22.
(43) Ex. XXI, 23. ['Harm' means 'death'; and, the verse tells us, although there was no intent of killing the woman, the blow having been directed against the other man, yet the slayer is put to death, v. Sanh. 74a.
(44) 'Life for life.'
(45) The lashes for striking a person.
(46) We thus see that although there was a warning and he should be liable to being punished with the lashes, he pays the money and does not receive the lashes.
(47) And since he does not stand warned for the light matter, he is not liable to the punishment with lashes, and therefore pays the fine.
Talmud - Mas. Kethuboth 33b
Perhaps [the punishment with] lashes is severer, for Rab said: If they had lashed Hananiah, Mishael and Azariah, they would have worshipped the [golden] image?1 R. Samma the son of R. Assi said to R. Ashi; and some say [that] R. Samma the son of R. Ashi [said] to R. Ashi: Do you not make a distinction between a beating that has a limit2 and a beating that has no limit!3 R. Jacob from Nehar Pekod [also] demurred:4 That is alright according to the Rabbis who5 hold that life6 actually means [life].7 But according to Rabbi,8 who holds that it means money, what is there to say?9 - But, said R. Jacob from Nehar Pekod, in the name of Raba; [it is to be derived] from the following verse:10 [It is written,] 'If he rise again, and walk abroad upon his staff then shall he that smote him be quit.'11 Would it enter your mind that this one12 walks about in the street and that one13 should be killed?14 But it teaches that they imprison him;13 if he12 dies, they kill him; and if he does not die, 'he shall pay for the loss of his time, arid shall cause him to be thoroughly healed.'11 Now how shall we imagine this case? If they did not warn him, why should he be killed? Hence it is plain that they warned him, and [it is held], one who was warned for a severe matter stands warned for the lighter matter and [yet] the All-Merciful says [that if he does not die] 'he shall pay for the loss of his time, and shall cause him to be thoroughly healed'.15 To this R. Ashi asked: Whence [do you know] that one who was warned for a severe matter stands warned for a lighter matter? Perhaps not? And if you will even say that he does [stand warned for the lighter matter], whence [do you know] that death is severer? Perhaps [the punishment with] lashes is severer, for Rab said: If they had lashed Hananiah, Mishael and Azariah, they would have worshipped the [golden] image? R. Samma the son of R. Assi said to R. Ashi, and some say [that] R. Samma the son of R. Ashi [said] to R. Ashi: Do you not make a distinction between a beating that has a limit and a beating that has no limit?16 R. Mari [also] demurred:17 Whence [do you know] that [one smote the other] wilfully18 and 'he shall be quit' [means] from [the penalty of] death? Perhaps [one smote the other] inadvertently19 and 'he shall be quit' [means] from exile?20 The difficulty remains.
Resh Lakish said:21 This22 is the opinion of R. Meir,23 who says: He receives the lashes and pays [the money].24 - If it is according to R. Meir, [then one who violated] his daughter should also [pay the fine]?25 And if you will say that R. Meir holds [that] one may receive the lashes and pay [the money], but does not hold [that] one may receive the death penalty26 and pay [the money]27 - has it not been taught: If he has stolen and slaughtered [an animal] on Sabbath,28 or has stolen and slaughtered [an animal] for idolatry,28 or has stolen an ox that is to be stoned29 and slaughtered it, he shall pay fourfold or fivefold.30 This is the view of R. Meir,31 but the Sages declare him free [from payment]? - Has it not been stated regarding this: R. Jacob said in the name of R. Johanan, and some say [that] R. Jeremiah said in the name of R. Simeon b. Lakish: R. Abin and R. Elai and the whole company [of scholars] said in the name of R. Johanan [that it speaks of a case when] he [who stole the animal] let it be slaughtered by another person. But is it possible that one sins and another one is punished?32 Raba said: The Divine law says: and slaughter it or sell it; [this teaches that] as the sale is [effected] through [the participation of] another person, so [may] the slaughtering [of the animal] be through another person. In the School of R. Ishmael it was taught: [the word] 'or' [is] to include the agent. In the School of Hezekiah it was taught: [the word] 'instead'32 [is] to include the agent. Mar Zutra demurred to this: Is it anywhere to be found that if he does [the deed] himself he is not liable33 and if an agent does it he is liable? He himself [does not pay], not because he is not liable, but because he suffers the severer penalty. [But] if he [who stole the animal] let it be slaughtered by another person, what is the reason of the Rabbis who declare him free [from paying]? - Who are the Sages?
(1) V. Dan. III.
(2) The number of lashes given by the Court is limited to forty.
(3) The lashes that might have been given to Hananiah, Mishael and Azariah would have had no limit.
(4) I.e., against the derivation of R. Shisha, based on the exposition of R. Eleazar.
(5) V. Sanh. 79a-b.
(6) In Ex. XXI, 23.
(7) I.e., the death penalty. In this case the text deals with an attack which was attended by a warning, and so you can make the derivation that he pays the money and does not receive the lashes, as supra p. 182, n. 8.
(8) Sanh. 79a-b.
(9) Since there is no question of a death penalty the text need not necessarily refer to a case where there was a warning, and thus affords no basis for the derivation.
(10) Lit., 'from here'.
(11) Ex. XXI, 19.
(12) Who was smitten.
(13) Who smote.
(14) Surely that is impossible! If the one was not killed by the injury, the smiter would not receive the death penalty. Then why does the Torah expressly say that 'he that smote him be quit'?
(15) Although there was a warning making him liable to lashes. This shews that he pays money and does not receive the lashes.
(16) For notes v. supra p. 182, nn. 11-12.
(17) To the derivation of R. Jacob from Nehar Pekod.
(18) In which case only the penalty of death is inflicted, provided there was a warning.
(19) And if he killed him he is banished to one of the cities of refuge. V. Num. XXXV, 11ff and Deut. XIX, 2ff.
(20) I.e., from banishment to one of the three cities of refuge. [The text thus speaks of a case where there was no warning, and for this reason makes him liable to a fine where the blow did not result in death; where however there was a warning there would be no payment, but lashes.]
(21) With regard to the question from the Mishnah in Mak. 13a; v. supra 31b.
(22) The view of our Mishnah.
(23) Lit., 'whose opinion is this? It is that of R. Meir'.
(24) V. supra 32b.
(25) And in the Mishnah infra 36b, it is stated that in such a case no fine is paid, because the penalty of death (by the hand of man) is attached to it. V. also Sanh. 75a.
(26) Lit., 'he dies'.
(27) In the text follows: 'and not'; i.e., and does he not hold that?
(28) And has thus incurred the death penalty.
(29) V. Ex. XXI, 28.
(30) V. Ex. XXI, 37.
(31) We thus see that R. Meir holds that even when there is a death penalty he pays the money.
(32) Regarding the payment of money; v. Kid. 43a.
(33) To pay the money.
Talmud - Mas. Kethuboth 34a
R. Simeon, who says: An unfit slaughtering is not called1 slaughtering. This might be right with regard to [the slaughtering for] idolatry and [the slaughtering of] the ox that is to be stoned, but the slaughtering on Sabbath is a fit slaughtering, for we learnt: If someone has slaughtered [an animal] on Sabbath or the Day of Atonement, although he is guilty of [a transgression for which he forfeits] his life,2 his slaughtering is a fit one?3 - He holds the opinion of R. Johanan ha-Sandalar,4 for it has been taught: If someone has cooked on Sabbath, [if] by mistake, he may eat it, [and if] wilfully he may not eat it: This is the view of R. Meir. R. Judah says: [If] by mistake, he may eat it after the outgoing5 of the Sabbath, [if] wilfully, he may never eat it. R. Johanan hasandalar says: [If] wilfully, others may eat it after the outgoing of the Sabbath, but not he, [if] wilfully, neither he nor others may eat it.6 What is the reason of R. Johanan ha-Sandalar? As R. Hiyya expounded at the entrance of the house of the Prince:7 [It is written:] 'Ye shall keep the Sabbath therefore, for it is holy unto you'.8 [From this we derive:] As what is holy is forbidden to be eaten, so what has been prepared9 on the Sabbath is forbidden to be eaten. If [so, you might say that] as what is holy is forbidden to be enjoyed,10 so what has been prepared on the Sabbath should be forbidden to be enjoyed? - It says 'unto you'; from this we learn: It shall belong to you.11 You might think [that it is forbidden to eat] even [what has been prepared on the Sabbath] by mistake,12 [therefore] it is said: every one that profaneth it shall surely be put to death.13 [This teaches that only] when [the act was done] wilfully,14 have I told thee [that it is forbidden as that which is holy] but not [if it was done] by mistake.
R. Aha and Rabina differ concerning this. One says: What has been prepared on Sabbath [is forbidden] according to the Bible, and one says: [only] according to the Rabbis. He who says: According to the Bible - as we have [just] explained.15 [And] he who says: according to the Rabbis - the verse says: 'It is holy', [that means]: 'it'16 is holy, but what has been prepared on it is not holy.17 According to him who says [that the prohibition is only] Rabbinical, what is the reason of the Rabbis who declare him18 free?19 - The Rabbis declare him free only with regard to other cases.20
But [with regard to] one who slaughtered for idolatry [one can ask:] as soon as he has cut21 a little it22 has become forbidden,23 so when he continues the slaughtering24 he does not slaughter what is the owner's?25 - Raba said: [it speaks of a case] when he says [that] he worships it26 with the completion of the slaughtering. [But with regard to] the ox that is to he stoned [one can ask]: he27 does not slaughter what is his?28 Here we speak of a case when he29 handed it30 to a keeper and it caused the damage31 in the house of the keeper32 and it was sentenced in the house of the keeper and a thief stole it from the house of the keeper. And R. Meir holds the view of R. Jacob and holds the view of R. Simeon. He holds the view of R. Jacob who says: If the keeper returned it even after the sentence had been pronounced, it is regarded as returned.33 And he holds the view of R. Simeon who says: that which causes [the gain or loss of] money is regarded as money.34
Rabbah said: Indeed [it speaks of a case] when he35 slaughtered it himself
(1) Lit., 'its name is not'. An act of slaughter that does not for any reason whatsoever effect the ritual fitness of the animal to be eaten is not considered by them in the eye of the law a slaughter.
(2) V. supra 30a.
(3) Mishnah, Hul. 14a.
(4) Probably 'sandal-maker'.
(5) Lit., 'at the outgoing'.
(6) According to R. Johanan ha-Sandalar what has been cooked on Sabbath wilfully must not be eaten by any few. The same would apply to what has been slaughtered wilfully on Sabbath. Thus one can say that the slaughtering on Sabbath is an unfit slaughtering.
(7) Judah the Prince.
(8) Ex. XXXI, 14.
(9) Lit., 'the work of'.
(10) I. e., to have any use or benefit from it.
(11) Although one may not eat it, one may have other uses or benefits from it, e.g., one may sell it to one who is not a Jew and is therefore not bound by these laws.
(12) If he did not know it was Sabbath (Rashi).
(14) For which the death penalty is inflicted.
(15) Lit., 'said'.
(16) I. e., the Sabbath itself.
(17) The prohibition is therefore only Rabbinical.
(18) Who stole an animal and slaughtered it on Sabbath.
(19) From paying four- or fivefold. Since the animal is, according to Biblical law, fit for food, it should be considered a fit slaughter.
(20) Lit., the rest', i.e., the other two cases mentioned: the serving of idols and the ox condemned to death.
(21) The throat of the animal.
(22) The animal.
(23) For any use as an animal slaughtered for idol worship v. Hul. 40a.
(24) Cutting the throat of the animal until the slaughtering of the animal is complete to make it fit for food.
(25) It has already become forbidden to the owner for any use and has thus ceased to be in his possession. He should therefore be free from paying four- or fivefold.
(26) The idol. The idolatrous act is to take place when the slaughtering has been completed. Consequently he was slaughtering what was the owner's.
(27) The thief.
(28) The owner's. An ox that is to be stoned for goring a person is forbidden for any use. It is therefore regarded as not belonging any more to the owner. And he should therefore be free from paying four- or fivefold.
(29) The owner.
(30) The ox.
(31) By killing a person. Cf. Ex. XXI, 28.
(32) I. e., while in the possession of the keeper.
(33) Although the condemned animal has no value, the liability of the keeper, who has to return the animal to its owner, is discharged by the keeper returning the animal to its owner.
(34) Since the thief stole the condemned animal the keeper cannot return it to the owner and he has to pay to the owner the value of the animal as it was when he entrusted it to him. The ox that is to be stoned has therefore a money.value for the keeper. The thief must therefore pay the four- or fivefold. For fuller notes on the whole passage beginning from 'Resh Lakish said' etc., 33b, v. B.K. (Sonc. ed.) pp. 407-410.
(35) The thief.
Talmud - Mas. Kethuboth 34b
and R. Meir holds the view that [though generally] one may receive the lashes and pay, one cannot receive the death penalty and pay1 but these [cases]2 are different, because the Torah has enacted something novel in [the matter of] fine,3 and [therefore]4 he has to pay, although he has to suffer the death penalty.5 And Rabbah follows his own principle, for Rabba said: If he had a kid which he had stolen and he slaughtered it on Sabbath, he is bound,6 for he was already guilty of stealing before he came to the profanation7 of the Sabbath; [but] if he stole and slaughtered it on Sabbath he is free,8 for if there is no stealing9 there is no slaughtering and no selling.
Rabbah said further: If he had a kid which he had stolen and had slaughtered it at the place he broke into,10 he is bound,11 for he was already guilty of stealing before he came to the transgression of breaking in;12 [but] if he stole and slaughtered it in the place he broke into,13 he is free, for if there is no stealing, there is no slaughtering and no selling. And it was necessary [to state both cases]. For if he had let us hear [the case of the] Sabbath [I would have said that he is free from payment] because its prohibition is a perpetual prohibition,14 but [in the case of] breaking in, which is only a prohibition for the moment,15 I might say, [that it is] not [so].16 And if he had let us hear [the case of] breaking in [I would say that he is free from payment] because his breaking in is his warning,17 but [with regard to the] Sabbath, [in] which [case] a warning is required, I might say that [it is] not [so].18 [Therefore] it is necessary [to state both cases].
R. Papa said: If one had a cow that he had stolen and he slaughtered it on Sabbath, he is liable19 for he was already guilty of stealing before he came to the profanation of the Sabbath; if he had a cow that he borrowed and he slaughtered it20 on Sabbath, he is free.21 R. Aha the son of Raba said to R. Ashi: Does R. Papa mean to tell us22 [that the same rule23 applies to] a cow? - He answered him: R. Papa means to tell us [that the same rules applies to] a borrowed [cow]. You might possibly think [that] because R. Papa said that he24 becomes responsible for its food from the time of [his taking possession of the cow by] 'pulling'25 here also he becomes responsible for any unpreventable accident [that may befall it] from the time of borrowing,26 so he lets us hear [that it is not so].27
Raba said: If their father left them28 a borrowed cow,29 they30 may use it during the whole period for which he borrowed it;31 if it died,32 they are not responsible for what happened.33 If they thought that it belonged to their father and they slaughtered it and ate it, they pay the value of the meat at the lowest price.34 If their father left them an obligation of property,35 they are bound to pay. Some refer it36 to the first case,37 and some refer it to the second case.38 He who refers it to the first case, so much the more [does he refer it] to the second case, and he differs from R. Papa.39 And he who refers it to the second case40 does not refer it to the first case, and he agrees with R.Papa.41
It is alright [that] R. Johanan42 does not say according to Resh Lakish,43 because he wants to explain44 it45 according to the Rabbis. But why does not Resh Lakish say according to R. Johanan? - He will answer you: since he is free46 if they warned him, he is also free [even] if they did not warn him.47
And they48 follow their own principles,49 for when R. Dimi came [from Palestine] he said: He who has committed inadvertently an act which, if he had committed it wilfully, would have been punishable with death or with lashes, and [which is also punishable] with something else,50 R. Johanan says [that] he is bound,51 and Resh Lakish says [that] he is free.52 R. Johanan says [that] he is bound, for they did not warn him.53 Resh Lakish says [that] he is free,54 for since he is free if they warned him, so he is free also when they did not warn him.
Resh Lakish raised an objection against R. Johanan: [It is written]: If no harm follow, he shall be surely fined.55
(1) Cf. supra 33b.
(2) In the case of the slaughtering of the stolen animal, supra 33b.
(3) A fine of four or five times the value of the animal is in itself a novel law.
(4) In view of the novel law in these cases.
(5) Lit., 'he is killed'.
(6) To pay the fine.
(7) Lit., 'prohibition'.
(8) From paying the fine,
(9) The crime of stealing is, as it were, wiped out by the more serious transgression of profaning the Sabbath. There is, therefore, no payment of principal. And since there is no payment of the principal, there is also no payment of the fine for the slaughtering and selling.
(10) מחתרתו means here both: the place he broke into and the time of breaking into the place. This breaking in took place after the stealing of the kid, which was a separate act. Cf. Ex. XXII, 2.
(11) To pay the fine.
(12) In which case he may forfeit his life, v. Ex. XXII, 2.
(13) Here the stealing and breaking in are one act.
(14) I. e., if he has profaned the Sabbath and incurred the death penalty, this penalty can always be inflicted.
(15) The thief's life is forfeit only when he is 'found breaking in'. If he is found later his life is not forfeited, v. Ex. XXII, 2.
(16) I. e., that he is not free from payment.
(17) I. e., he may be killed without a warning.
(18) I. e., that he is not free from payment.
(19) To pay the fine.
(20) And thus stole it.
(21) From paying the fine. For the stealing and the Sabbath desecration by means of the slaughtering were committed simultaneously.
(22) Lit., 'come to let us hear'.
(23) Which Rabbah applies to the kid.
(24) Cf. B.M. 91a.
(25) Meshikah. v. Glos.
(26) I. e., before he desecrated the Sabbath. And therefore he should have to pay the fine when he slaughters it on Sabbath.
(27) That the stealing coincides with the slaughtering, and he is therefore free from payment if he slaughters the borrowed cow on Sabbath.
(28) I. e., to his children.
(29) I. e., a cow which the father had borrowed.
(30) The children.
(31) Lit., 'all the days of the borrowing'.
(32) Accidentally, without their fault.
(33) Lit., 'for its accident'. The children are not responsible because they did not borrow it.
(34) Which is generally estimated to be two-thirds of the ordinary price, cf. B.B. 146b.
(35) אחריות נכסים, i.e., property which is a security for the payments which would have to be made. He left them (landed) property and with it the obligation which rests upon such property. The chief point in the phrase is the obligation for which such property is a security, and which was passed on to the children.
(36) The last statement.
(37) I. e., they are not responsible for the accident only if their father did not leave them an obligation of property.
(38) When they slaughtered and ate it.
(39) Who says that the obligation is incurred when the accident happens. According to the opposing view, the father left them the obligation, which therefore was incurred at the time of borrowing.
(40) Where the father left them landed property, they are made to pay the full value of the meat since they ought to have been more careful.
(41) Lit., 'and this is the view of R. Papa'. The obligation is incurred with the accident, and at the time of the accident there was no borrower, since the person that borrowed the cow was dead.
(42) Who explains the Mishnah as dealing with a case where there was no warning. v. supra 32b.
(43) Who explains the Mishnah as representing the view of R. Meir, v. supra 33b.
(44) Lit., 'he puts'.
(45) The Mishnah.
(46) From paying the fine.
(47) Since the offence carries with it the penalty of lashes, there is no money payment even where lashes are not inflicted.
(48) R. Johanan and Resh Lakish.
(49) Or 'opinions', stated elsewhere.
(50) I. e.,the payment of money.
(51) To make the money payment.
(52) From making the money payment.
(53) And so there is no death penalty, and therefore he pays.
(54) From making the money payment.
(55) Ex. XXI, 22.
Talmud - Mas. Kethuboth 35a
[Now] is not real 'harm' meant?1 No, the law concerning 'harm' [is meant].2 Some say: R. Johanan raised an objection against Resh Lakish: [It is written] 'And if no harm follow, he shall be surely fined'. Is not the law concerning 'harm' [meant]?2 No, real 'harm' [is meant].1
Raba said: Is there any one who holds that he who committed inadvertently an act which, if he had committed it wilfully, would have been punishable with death [and which is also punishable with the payment of money] is bound [to make the money payment]? Has not the school of Hezekiah taught: [It is written] He that smiteth a man . . . he that smiteth a beast3 [from which we infer:] As in [the case of] the killing of a beast you have made no distinction between [it being done] inadvertently and wilfully, intentionally and unintentionally, by way of going down or by way of going up,4 so as to free him [from the payment], but [in any case] make him liable to pay, so also in [the case of] the killing of a man you shall make no distinction between [it being done] inadvertently and wilfully, intentionally and unintentionally, by way of going down or by way of going up, so as to make him liable to pay money, but to free him from paying money?5 But when Rabin came [from Palestine], he said: [As to] him who committed inadvertently an act which,if he had committed it wilfully, would have been punishable with death [and which is also punishable with the payment of money] - all agree that he is free [from the payment of money], they only differ when the act committed inadvertently would, if committed wilfully, have been punishable with lashes and something else.6 R. Johanan says [that] he is bound [to make the money payment, because] only with regard to those who commit an act punishable with death, the analogy is made,7 [but] with regard to those who commit an act punishable with lashes, the comparison is not made. [But] Resh Lakish says [that] he is free [from making the money payment, because] the Torah has expressly included those who commit an act punishable with lashes to be as those who commit an act punishable with death. Where has the Torah included [them]?-Abaye said: [We infer it from] the double occurrence of 'wicked man'8 Raba said: [We infer it from] the double occurrence of 'smiting'.9 R. Papa said to Raba: Which 'smiting' [do you mean]? If you mean10 [the verse]11 'And he that smiteth a beast shall pay for it, and he that smiteth a man shall be put to death,' this12 speaks13 of the death penalty?14 - Is it this 'smiting'; he that smiteth a beast shall pay for it: life for life and next to it [comes] And if a man cause a blemish in his neighbour, as he hath done so shall it be done to him?15 But here [the term] 'smiting' is not mentioned!16 - We mean17 the effect of 'smiting'.18 But this verse refers to one who injures his fellow, and one who injures his fellow has to pay damages?19 - It if does not refer to a 'smiting' in which there is the value of a perutah,20 refer it21 to a smiting in which there is not the value of a perutah.22
(1) If no harm follows, that is if the woman does not die, he pays the fine. But if the woman dies, no fine is paid, even if he was not warned. This would be according to Resh Lakish and against R. Johanan
(2) I. e., if the woman did not die, or if she died but he was not warned, he pays the fine. The 'law concerning harm' would imply warning. No warning, no death penalty, and therefore payment of money. This would accord with R. Johanan.
(3) Lev. XXIV, 21. The whole verse reads: And he that smiteth a beast shall pay for it; and he that smiteth a man shall be put to death. - Smiting here means killing.
(4) A distinction which obtains in the case of unintentional manslaughter with reference to the liability to take refuge, cf. Mak. 7b.
(5) Even if the killing of the man was done inadvertently, and the death penalty is not inflicted, there is no payment of money to be made. R. Johanan could therefore not have said that he was bound to make the money payment, supra p. 190.
(6) The payment of money.
(7) Between he that smiteth a beast and he that smiteth a man; v. supra.
(8) A Gezerah shawah v. Glos. The word 'wicked' occurs in Num. XXXV, 31 (in the case of the death penalty) and in Deut. XXV, 2 (in the case of the penalty of the lashes), and therefore an analogy is drawn between the two cases.
(9) [Raba disapproves of this double analogy, but assumes that those who are liable to lashes are in every case exempt from payment directly from 'he that smiteth a beast' and not by means of the analogy between them and those liable to the death penalty.]
(10) Lit., 'if to say'.
(11) Lev. XXIV, 21.
(12) The second half of the verse.
(13) Lit., 'is written'.
(14) And offers no basis of deduction for the penalty' of lashes.
(15) Lev. XXIV, 19. This is taken to mean: he shall receive the lashes; v. infra.
(16) It does not say in this verse 'If a man smiteth his neighbour'. It says 'If a man cause a blemish in his neighbour'.
(17) 'We speak of'.
(18) To cause a blemish means to smite. And the smiter has to be smitten, that is, he has to receive the lashes.
(19) But he does not receive lashes.
(20) V. infra 32b.
(21) I. e., the words 'so shall it be done to him'.
(22) And in this case he receives lashes and the analogy with 'he that smiteth a beast' serves to teach, on the view of Resh Lakish, that there is no payment even where, for one cause or another, there is no infliction of lashes.
Talmud - Mas. Kethuboth 35b
Anyhow, he is not liable to pay damages?1 - It necessarily [speaks of a case] where, while he smote him, he tore his silk garment.2
R. Hiyya said to Raba: And according to the Tanna of the school of Hezekiah, who says: [It is written] 'He that smiteth a man . . . He that smiteth a beast' [etc.,]3 - whence does he know that it4 refers to a week-day and there is no distinction to be made?5 Perhaps it refers to the Sabbath, [in which case] there is a distinction to be made with regard to the beast itself?6 - This cannot be,7 for it is written: 'And he that smiteth a beast shall pay for it, and he that smiteth a man shall be put to death.' How shall we imagine this case? If they did not warn him, why should he, if he killed a man, be put to death? Hence it is clear that they warned him,8 and if [it happened] on a Sabbath would he, if he smote a beast, pay for it?9 Therefore it can only refer to10 a week-day.11
R. Papa said to Abaye: According to Rabbah, who says [that] the Torah has instituted something novel in the matter of fines and [therefore] he pays although he is killed12 - according to whom does he put our Mishnah? If according to R. Meir,13 [the law regarding] his daughter is difficult,14 if according to R. Nehunia b. ha-Kana,15 [the law regarding] his sister is difficult;16 [and] if according to R. Isaac17 [the law regarding] a mamzereth is difficult?18 It would be alright if he would hold like R. Johanan,19 [for] he would [then] explain it20 like R. Johanan.19 But if he holds like Resh Lakish21 how can he explain it ?22 - He [therefore], of necessity, holds like R. Johanan.
R. Mattena said to Abaye: According to Resh Lakish who says that the Torah has expressly included those who commit an act punishable with lashes to be as those who commit an act punishable with death23 - who is the Tanna, who differs from R. Nehunia b. ha'Kana?24 It is either R. Meir25 or R. Isaac.26
Our Rabbis taught: All forbidden relations and all relations forbidden in the second degree have no claim27 to fine [for outrage]28 or to indemnity for seduction.
A woman who refuses [her husband] by mi'un29 has no claim to fine [for outrage] or to indemnity for seduction. [In this case] a barren woman has no claim to fine for outrage or to indemnity for seduction. And a woman who has gone out30 on account of an evil name,31 has no claim to fine for outrage or to indemnity for seduction. What are 'forbidden relations' and what are 'relations forbidden in the second degree'? Shall I say [that] 'forbidden relations'
(1) Because the damages do not amount to a perutah. The verse thus affords no basis of deduction for the ruling of Resh Lakish.
(2) There the analogy is required, and we are taught that he is liable to lashes for the injury he inflicted and is free from paying for the silk garments even if the lashes are not actually inflicted
(3) V. p. 191 and notes,
(4) Lev. XXIV, 21.
(5) Between 'inadvertently' and 'wilfully'; but there is in every case liability to payment.
(6) Payment would be due only if he killed it inadvertently. If he killed it wilfully he would be liable to the death penalty on account of the desecration of the Sabbath and he would thus be free from the money payment.
(7) Lit., 'this does not enter your mind'. It cannot be assumed that the verse refers to the offence having been committed on Sabbath and inadvertently.
(8) I. e., he killed him wilfully.
(9) Where he killed it wilfully. Surely not, seeing that he is liable to death!
(10) Lit., 'but is it not?'
(11) Where no distinction is made between wilful and inadvertent killing of a beast and the same absence of distinction applies mutatis mutandis to him who kills a man.
(12) Supra 34b.
(13) Who holds that the lesser penalty is not merged in the greater, v. supra 34b.
(14) Why should there be no fine in the case of 'his daughter', (infra 36b).
(15) Who agrees with R. Meir with regard to lashes but not with regard to kareth.
(16) Why does our Mishnah impose a fine in the case of 'his sister' which is subject to kareth?
(17) Who holds that offenders liable to kareth are not subject to lashes, v. Mak. 14a.
(18) Why should there be a fine in this case which is subject to lashes.
(19) That out Mishnah deals with a case where there was no warning and hence no infliction of lashes, v. supra 32b and 34b.
(20) Out Mishnah.
(21) That even where his lashes are actually inflicted, since there isa liability to lashes, there is no payment. V. supra. 34b.
(22) Out Mishnah.
(23) So that there is no payment even if the offence was committed unwittingly.
(24) V. supra 30a. This Tanna would not exempt offenders liable to kareth from payments which would be in accord with out Mishnah which imposes a fine in the case of his sister - an offence involving kareth.
(25) Who does not exempt from, payment on account of the penalty of lashes, and thus although there are also lashes in the case of a sister, there is no exemption from the fine, v. supra 32b.
(26) V. supra note 4. He will consequently hold that an offence with his sister is limited to kareth and does not carry with it any lashes and therefore no exemption from the fine.
(27) Lit 'there is not to them'.
(28) Deut XXII, 28, 29.
(29) V. Glos.
(30) I.e., who had to leave her husband.
(31) Presumably with reference to Deut. XXII, 13ff.
Talmud - Mas. Kethuboth 36a
are really forbidden relations1 and prohibitions of the second degree [are those relations which were forbidden] by the Rabbis?2 Why should the latter not receive the fine since they are fit for him Biblically? - But, forbidden relations are those with regard to which one is liable to the penalty of death at the hand of the Court,3 prohibitions of the second degree are those with regard to which there is kareth;4 but in the case of prohibitions with regard to which one trespasses a plain prohibitory law,5 they receive the fine. And whose opinion is it? [It is that of] Simeon the Temanite.5 Some say: 'Forbidden relations' are those with regard to which one is liable to the penalty of death at the hand of the Court or kareth, 'prohibitions of the second degree are those with regard to which one transgresses a plain prohibitory law. Whose opinion is this? That of R. Simeon b. Menassia.5
[It is said above:]6 A woman who refuses her husband by mi'un has no claim to fine [for outrage] or to indemnity for seduction. But any other minor has a claim [to the fine]. Whose opinion would this be? That of the Rabbis, who say: A minor receives the fine.7 Read now the other clause: 'A barren woman has no claim to fine [for outrage] or to indemnity for seduction'. This is according to R. Meir, who says: The minor does not receive the fine; and this one came from her state as minor into the state of womanhood.8 The first clause would then be according to the Rabbis and the last clause according to R. Meir? And if you would say that all of it is according to R. Meir, but in the case of the woman who refuses her husband by mi'un he holds like R. Judah9 - does he indeed hold the view [of R. Judah]? Has it not been taught: Until when can the daughter exercise the right of mi'un? Until she grows two hairs10 - [these are] the words of R. Meir. R. Judah says: Until the black is more than the white?11 - But it is according to R. Judah,12 and with regard to a minor he holds like R. Meir,13 But does he14 hold this view?15 Did not Rab Judah say [that] Rab said: 'These are the words of R. Meir'?16 Now if it had been so,17 he ought to have said: 'These are the words of R. Meir and R. Judah'? - This Tanna18 holds according to R. Meir in one thing19 and differs from him in one thing.20 Rafram said: What is meant by 'a woman who refuses her husband by mi'un'? One who is entitled to refuse.21 Let him then teach22 'a minor'? - This is indeed difficult.
[It is said above:] 'A barren woman has no claim to fine [for outrage] or to indemnity for seduction . A contradiction was raised against this: A woman who is a deaf-mute, or an idiot, or barren, has a claim to fine [for outrage], and a suit can be brought [by her husband] against her concerning her virginity. What contradiction is there? The one [Baraitha]23 is according to R. Meir24 and the other [Baraitha] is according to the Rabbis! But he who raised the questions how could he raise it at all?25 - He wanted to raise another contradiction: Against a woman who is a deaf-mute, or an idiot, or has reached maturity,26 or lost her virginity through an accident, no suit can be brought concerning her virginity; against a woman who is blind or barren, a suit can be brought concerning her virginity. Symmachus says in the name of R. Meir: Against a blind woman a suit cannot be brought concerning her virginity! - Said R. Shesheth: This is not difficult: the one [Baraitha] is according to R. Gamaliel and the other [Baraitha] is according to R. Joshua.27 [But] say when does R. Gamaliel hold this view?28 When she pleads;29 but does he hold this view when she does not plead - Yes, since R. Gamaliel holds that she is believed, [we apply], in a case like this, [the verse], Open thy mouth for the dumb.30
'And against a woman who has reached maturity, one cannot bring a suit concerning her virginity.' Did not Rab say: To a woman who has reached maturity one gives the [whole] first night?31
(1) Those forbidden in Lev. XVIII.
(2) Lit., 'the Scribes', v. Yeb. 21a.
(3) V. Lev. XX.
(4) v. Lev. XVIII.
(5) V. supra 29b.
(6) Supra 35b.
(7) V. supra 29a.
(8) Without having been in the state of na'arah, since she did not have the signs of maidenhood. And only a na'arah receives the fine.
(9) That a maiden can exercise the tight of mi'un, v. infra.
(10) The signs of puberty, i. e., as long as she is a minor.
(11) I. e., after she has reached the state of na'arah, the growth of the hair having advanced. This shews that R. Meir does not agree with R. Judah in the matter of mi'un.
(12) According to R. Judah the Baraitha can deal with a na'arah.
(13) That she has no claim to fine; hence the ruling with regard to a naturally barren woman, v. supra p. 195. n. 9,
(14) R. Judah.
(15) Of R. Meir.
(16) V. infra 40b.
(17) As it has just now been said.
(18) Of the Baraitha, cited supra.
(19) That a minor has no claim to fine.
(20) With regard to mi'un.
(21) I. e., a minor. The whole Baraitha would then be according to R. Meir.
(22) I. e., state expressly.
(23) The former Baraitha.
(24) That a minor has no claim and similarly a naturally barren woman. cf. n. 4.
(25) The answer being so obvious.
(26) A bogereth, v. Glos.
(27) V. supra 12b. According to R. Gamaliel's view, since the woman is believed on saying that she was violated after betrothal, in the case of a deaf-mute we admit this plea on her behalf and mutatis mutandis on the view of R. Joshua. v. infra.
(28) That she is believed.
(29) That she was forced after betrothal.
(30) Prov. XXXI, 8. I. e., the Court pleads what she could have pleaded.
(31) For intercourse. We assume that any bleeding that may proceed is not due to menstruation hut to virginity, V. Nid. 64b. And this would shew that she has virginity.
Talmud - Mas. Kethuboth 36b
- If he raises the complaint with regard to the bleeding,1 it is really so;2 here we treat of a case where he raises the complaint of the 'open door'.3
[It is said above:] 'Symmachus says in the name of R. Meir: Against a blind woman a suit cannot be brought concerning her virginity'. What is the reason of Symmachus? - R. Zera said: 'because she may have struck against the ground'.4 All the others5 may also have struck against the ground?6 All the others see it7 and show it to their mothers,8 this one does not see it and does not shew it to her mother.9
[It is said above]:10 'And a woman who goes out because of an evil name has no claim to fine [for outrage] and to indemnity for seduction'. A woman who goes out because of an evil name is liable to be stoned?11 - R. Shesheth said: He12 means it thus: if an evil name has gone out concerning her in her childhood13 she has no claim to fine [for outrage] or to indemnity for seduction. R. Papa said: Infer from this [that] one does not collect [a debt] with an unsound document. How shall we imagine this case? If to say that a rumour has gone out that the document is forged, and similarly here that a rumour has gone out that she has been unchaste? - Did not Raba say [that] if the rumour has gone out in the town [that] she is unchaste one does not pay any attention to it?14 - But [the case is that] two [persons] came and said [that] she asked them to commit with her a transgression15 and similarly here [that] two [persons] came and said [that] he16 said to them: Forge me [the document]. It is all right there,17 since there are many unrestrained men.18 But here19 - if he20 has been established,21 have [therefore] all Israelites been established?22 - Here also, since he23 was going round searching for a forgery, I can say [that] he [him. self] has forged it and written it.24
*MISHNAH. AND25 IN THE FOLLOWING CASES NO FINE26 IS INVOLVED: IF A MAN HAD INTERCOURSE WITH A FEMALE PROSELYTE, A FEMALE CAPTIVE OR A BONDWOMAN, WHO WAS RANSOMED, PROSELYTIZED OR MANUMITTED AFTER THE AGE OF27 THREE YEARS AND A DAY.28 R. JUDAH RULED: IF A FEMALE CAPTIVE WAS RANSOMED SHE IS DEEMED TO BE IN HER VIRGINITY29 EVEN IF SHE BE OF AGE.
A MAN WHO HAD INTERCOURSE WITH HIS DAUGHTER. HIS DAUGHTER'S DAUGHTER, HIS SON'S DAUGHTER. HIS WIFE'S DAUGHTER. HER SON'S DAUGHTER OR HER DAUGHTER'S DAUGHTER INCURS NO FINE,30 BECAUSE HE FORFEITS HIS LIFE, THE DEATH PENALTIES OF SUCH TRANSGRESSORS BEING31 IN THE HANDS OF BETH DIN, AND HE WHO FORFEITS HIS LIFE PAYS NO MONETARY FINE FOR IT IS SAID IN SCRIPTURE, AND YET NO HARM FOLLOW HE SHALL BE SURELY FINED.32
GEMARA. R. Johanan said: Both R. Judah and R. Dosa taught the same thing. As to R. Judah [we have the ruling] just mentioned. As to R. Dosa? - It was taught: A female captive33 may eat terumah;34 so R. Dosa. 'What after all is it', said R. Dosa, 'that that Arab35 has done to her? Has he rendered her unfit to be a priest's wife merely because he squeezed her between her breasts?'36
Said Raba:37 Is it not possible that there is really no [agreement between them]?38 R. Judah may have laid down his ruling39 here40 only in order that the sinner may gain no advantage,41 but there42 he may hold the same opinion as the Rabbis; is or else: [May not] R. Dosa have laid down his ruling43 only there44 [where it concerns] terumah which [at the present time is only] a Rabbinical enactment,45 but in the case of a fine which is a Pentateuchal law46 he may well hold the same view as the Rabbis?47
Abaye answered him: Is R. Judah's reason here48 'that the sinner may gain no advantage'? Surely it was taught: R. Judah ruled, 'If a female captive was ransomed49 she is deemed to be in her virginity,50 and even if she is ten years old her kethubah is two hundred51 zuz'.52 Now how53 [could the reason] 'that the sinner shall gain no advantage' apply54 there?55 - There also [a good reason exists for R. Judah's ruling, since otherwise56 men]57 would abstain from marrying her.58
Could R. Judah, however, maintain the view [that a female captive] retains the status of a virgin59 when in fact, it was taught: A man who ransoms a female captive may marry her, but he who gives evidence on her behalf60 may not marry her,61 and R. Judah ruled: In either case he61 may not marry her!62
Is not this,63 however, self-contradictory? You said, 'A man who ransoms a female captive may marry her', and then it is stated, 'He64 who gives evidence on her behalf may not marry her'; shall he65 not marry her [it may well be asked] because he gives also evidence on her behalf? - This is no difficulty. It is this that was meant: A man who ransoms a female captive and gives evidence on her behalf may marry her,66 but he who merely gives evidence on her behalf may not marry her.67
In any case, however, does not the contradiction against R. Judah remain?68 - R. Papa replied: Read, 'R. Judah ruled: In either case he may marry her'.
R. Huna the son of R. Joshua replied: [The reading may] still be as it was originally given,69 but R. Judah was speaking to the Rabbis in accordance with their own ruling. 'According to my view70 [he argued] the man may marry her in either case; but according to your view71 it should have been laid down that in either case he may not marry her'.
And the Rabbis?72 - 'A man who ransoms a captive and gives evidence on her behalf may marry her' because no one would throw money away for nothing,73 but 'he who merely gives evidence on her behalf may not marry her' because he may have fallen in love with her.74
R. Papa b. Samuel pointed out the following contradiction to R. Joseph:
(1) I. e., the lack of it.
(2) He is entitled to raise this complaint.
(3) V. supra 9a. This complaint cannot be raised against a bogereth.
(4) And thus lost her virginity.
(5) All other girls. Lit., 'all of them'.
(6) And yet a suit can be brought against them concerning their virginity.
(7) I. e., notice the accidental loss of their virginity.
(8) And it is known that the virginity is lost by accident and no claim arises concerning the virginity at their marriage. And if no accidental loss was made known the claim concerning virginity does arise.
(9) But the accidental loss may have happened all the same. Therefore there is no virginity claim against a blind woman.
(10) V. supra 35b. (*) The translation from here to the end of the Tractate is by the Rev. Dr. I. W. Slotki.
(11) Cf. Deut. XXII, 20, 21.
(12) The Tanna.
(13) Before she was betrothed.
(14) V. Git. 89b. And the same would apply to the document.
(15) To have intercourse with her.
(16) The alleged creditor.
(17) In the case of the woman.
(18) Since she solicited two men she might have solicited other men with more success.
(19) In the case of the document.
(20) The alleged creditor.
(21) As a forget.
(22) As forgers. He may therefore not have found men who would sign a forged document.
(23) The alleged creditor.
(24) I. e., forged the signatures of the witnesses.
(25) Cf. the previous Mishnah, supra 29a.
(26) Lit., 'they have no fine', sc. of fifty shekels. (cf. Deut. XXII, 29).
(27) Lit., 'more than'.
(28) An age when intercourse is possible, and girls in the circumstances mentioned are likely to have succumbed to temptation or violence.
(29) Lit., 'behold she is in her sanctity'.
(30) Lit., 'they have no fine'.
(31) Lit., 'because their death'.
(32) Ex. XXI, 22; from which it may be inferred that if 'harm' (i.e., death) follows no monetary fine is incurred.
(33) Who was the daughter or wife of a priest.
(34) Because she is not suspected of intercourse with her captors. A seduced or violated woman is regarded as a harlot who is forbidden to a priest (cf. Lev. XXI, 7) and is, therefore, also ineligible to eat terumah.
(35) Sc. her captor. Arabs were ill-famed for their carnal indulgence (v. Kid. 49b and Tosaf. s.v. וכי a.l.).
(36) Git. 81a; cf. 'Ed'. III. 6. Captors. R. Dosa maintains, only play about with their captives but did not violate them.
(37) So MS.M. Cut. edd., 'Rabbah'. Cf. Tosaf. supra 11a s.v. אבײ and infra 37a s.v. אמר רבה.
(38) R. Judah and R. Dosa.
(39) That a ransomed captive retains the status of virgin and consequently is entitled to a fine from her seducer.
(40) In our Mishnah.
(41) By an exemption from the statutory fine (cf. supra p. 198. n. 16).
(42) In the case of terumah cited from Git. 81a. (15) That a female captive is forbidden to a priest and is ineligible to eat terumah.
(43) That a captive retains her status of chastity and may eat terumah if she is a priest's wife or daughter.
(44) V. p. 199, n. 14.
(45) Pentateuchally even a woman whose seduction was a certainty is permitted to eat such terumah. Hence no prohibition was imposed even in Rabbinic law where seduction is doubtful.
(46) And subject to greater restrictions.
(47) The first Tanna of our Mishnah.
(48) In our Mishnah.
(49) שנפדית, so MS.M. Cut. edd., שנשבית, 'was taken captive', is difficult.
(50) Cf. supra p. 199, n. 1.
(51) The statutory sum to which a virgin is entitled. A widow is entitled to one hundred zuz only.
(52) Tosef. Keth. III.
(53) Lit., 'what'.
(54) Lit., 'there is'.
(55) Where the husband had committed no sin. Now since this reason is here inapplicable and R. Judah nevertheless gives the captive the status of a virgin, it follows, as R. Johanan has laid down supra, that R. Judah maintains his view in all cases including., of course, that of terumah also.
(56) I. e., if the captive were only allowed a kethubah of one hundred zuz.
(57) On learning that her kethubah was not the one given to a virgin, and suspecting, therefore, that she had been seduced.
(58) As such a reason, however, is inapplicable to terumah R. Judah, as Raba had suggested. may well be of the same opinion as the Rabbis.
(59) Cf. supra p. 199, n. 1.
(60) That she had not been seduced.
(61) If he is a priest (cf. supra p. 199, n. 6).
(62) Tosef. Yeb. IV; which proves that a female captive does lose her status of virginity. How then could R. Judah maintain in our Mishnah and in the Baraitha cited from Tosef. Keth. III that she retains the status of a virgin?
(63) The Baraitha just cited from Tosef. Yeb.
(64) Implying presumably anyone. even the man who ransomed her.
(65) The man who ransomed the captive and who in such circumstances is permitted to marry her.
(66) Because no man would spend money on the ransom of a captive with the object of marrying her unless he was convinced of her chastity.
(67) In the absence of any special effort on his part to ransom the woman while she was captive he is suspected of tendering false evidence in a desire to gratify his passions.
(68) V. supra p. 200, n. 20.
(69) I. e., that R. Judah ruled: 'He may not marry her'.
(70) That a captive retains her status of chastity.
(71) That a captive loses the status of a virgin.
(72) On what grounds do they draw a distinction between the man who ransoms a captive and the one who only tenders evidence in her favour?
(73) Cf. supra note 4.
(74) Lit., 'put his eyes on her'. Cf. supra note 5.
Talmud - Mas. Kethuboth 37a
Could R. Judah hold the view that [a female captive] is deemed to have retained her virginity1 when it was, in fact, taught. 'If a woman proselyte discovered [some menstrual] blood2 on [the day of] her conversion it is sufficient, R. Judah ruled, [to reckon her Levitical uncleanness from] the time she [discovered it].3 R. Jose ruled: She is subject to the same laws4 as all other women5 and, therefore, causes uncleanness [retrospectively] for twenty-four hours,6 or [for the period] intervening between7 [her last ] examination and7 [her previous] examination.8 She must also wait9 three months;10 so R. Judah. but R. Jose permits her to be betrothed and married at once'?11 - The other replied: You are pointing out a contradiction between a proselyte and a captive [who belong to totally different categories, since] a proselyte does not protect her honour while a captive does protect her honour.
A contradiction, however, was also pointed out between two rulings in relation to a captive.12 For it was taught: Proselytes,13 captives13 or slaves13 who were ransomed, or proselytized. or were manumitted, must wait three months14 if they were older than three years and one day; so R. Judah. R. Jose permits immediate betrothal and marriage.15 [The other] remained silent. 'Have you'. he said to him, 'heard anything on the subject?' - 'Thus', the former replied. 'said R. Shesheth: [This is a case] where people saw that the captive was seduced'. If so16 what could be R. Jose's reason? - Rabbah replied: R. Jose is of the opinion that a woman who plays the harlot makes use of an absorbent in order to prevent conception. This17 is intelligible in the case of a proselyte, who, since her intention is to proselytize, is careful.18 It17 is likewise [intelligible in the case of] a captive [who is also careful]18 since she does not know whither they would take her.19 It17 is similarly [intelligible in the case of] a bondwoman [who might also be careful]18 when she hears from her master.20 What, however, can be said in the case of one who is liberated on account of the loss of a tooth or an eye?21 And were you to suggest that R. Jose did not speak22 of an unexpected occurrence,23 [it might be retorted,] there is the case of a woman who was outraged or seduced24 which may happen unexpectedly and yet it was taught: A woman who has been outraged or seduced must wait three months; so R. Judah, but R. Jose permits immediate betrothal and marriage!25 - The fact, however, is, said Rabbah,26 that R. Jose is of the opinion that a woman who plays the harlot turns over in order to prevent conception.27 And the other?28 - There is the apprehension that she might not have turned over properly.29
FOR IT IS SAID IN SCRIPTURE, AND YET NO HARM FOLLOW HE SHALL BE SURELY FINED etc. Is, however, the deduction30 made from this text?31 Is it not in fact made from the following text:32 According to the measure of his crime,33 [which implies]34 you make him liable to a penalty35 for one crime, but you cannot make him liable [at the same time] for two crimes?36 - One [text37 deals] with [the penalties of] death and money and the other38 with [the penalties of] flogging and money.
And [both texts39 were] needed. For if we had been told [only of that which deals with the penalties of] death and money37 it might have been assumed [that the restriction40 applied only to the death penalty] because it involves loss of life,41 but not [to the penalties of] flogging and money where no loss of life is involved. And if we had been told only of flogging and money38 it might have been assumed [that the restriction40 applied only to flogging] because the transgression for which flogging is inflicted42 is not very grave,43 but not [to the penalties of] death and money where the transgression for which the death penalty is imposed42 is very grave.44 [Hence it was] necessary [to have both texts].
According to R. Meir, however, who ruled: 'A man may be flogged and also ordered to pay'.45 what need was there for the two texts?46 - One47 deals with the penalties of death and money
(1) Cf. supra p. 199. n. 1.
(2) Only the menstrual blood of an Israelite woman or of one who was converted to the Jewish faith causes Levitical uncleanness.
(3) I. e., only such objects are deemed to be Levitically unclean as have been touched by her after, but not before her discovery.
(4) Lit., 'behold she'.
(5) Of the Jewish faith.
(6) מעת לעת, lit., 'from time to time'.
(7) Lit., 'from . . . to'.
(8) Whichever period is the less; v. 'Ed. I, 1
(9) After her conversion.
(10) Before she is permitted to marry. in order to make sure that she was not with child prior to her conversion.
(11) From which Baraitha it follows that R. Judah suspects illicit intercourse, contrary to the statement attributed to him in out Mishnah that a captive is presumed to protect her chastity.
(12) Lit., 'captive on captive'.
(13) In the original the noun appears in the sing.
(14) Cf. notes 9 and 10 mutatis mutandis.
(15) V. l.c. n. 11.
(16) That there is definite evidence against her chastity.
(17) Rabbah's explanation.
(18) To have an absorbent in readiness in order to avoid conception and the mixing of legitimate, with illegitimate children. Lit 'she protects herself'.
(19) She makes provision (cf. preceding note) against the possibility of being sold to an Israelite master who might set her free.
(20) Of her impending liberation.
(21) Cf. Ex. XXI, 26f. The bondwoman, surely, could not know beforehand that such an accident would occur.
(22) I. e., did not maintain his ruling that a period of three months must be allowed to pass.
(23) Lit., 'of itself', when, as in the case of the loss of a tooth or an eye. the woman was not likely to have been possessed of an absorbent.
(24) [Rashi does not seem to have read 'seduced' which appears here irrelevant; v. marginal Glosses.]
(25) Which shows that even when the unexpected happens R. Jose requires no waiting period.
(26) The reading in the parallel passage (Yeb. 35a) is 'Abaye'.
(27) No absorbent is needed. Similarly in the case of a liberated captive or slave. Hence the ruling of R. Jose that no waiting period is required.
(28) Why does he require a waiting period.
(29) And conception might have taken place.
(30) That one who suffers the death penalty is exempt from a monetary fine.
(31) Lit., 'from here' sc. Ex XXI, 22, cited in our Mishnah.
(32) Lit., 'from there'.
(33) Deut. XXV, 2, A.V. 'fault', R.V. 'wickedness'.
(34) Since the text makes use of the sing.
(35) Flogging, spoken of in the text cited.
(36) By the imposition of two forms of punishment. V. supra 32b and B.K. 83b, Mak. 4b, 13b.
(37) Deut. XXI, 22.
(38) Deut. XXV, 2.
(39) V. preceding notes.
(40) To one penalty.
(41) The punishment being so severe it alone is sufficient.
(42) Lit., 'its transgression'.
(43) It is sufficient, therefore, if only one penalty is inflicted.
(44) And two penalties might well have been regarded as a proper measure of justice.
(45) Supra 33b. The second text, therefore, cannot be applied as suggested.
(46) V. supra notes 6 and 7.
(47) Deut. XXI, 22.
Talmud - Mas. Kethuboth 37b
and the other1 with those of death and flogging. And [both texts were] needed. For if we had been told [only of that which deals with the penalties of] death and money it might have been assumed [that the restriction2 applied to these two penalties only] because we must not inflict one penalty upon one's body and another upon one's possessions, but in the case of death and flogging, both of which are inflicted on one's body, it might have been assumed [that the flogging] is deemed to be [but] one pro tracted death penalty and both may, therefore, be inflicted upon one man.3 And if we had been told about death and flogging only [the restriction4 might have been assumed to apply to these penalties only] because no two corporal punishments may be inflicted on the same person, but in the case of the penalties of death and money one of which is corporal and the other monetary it might have been assumed that both may be inflicted.5 [Both texts were, therefore,] necessary.
What need was there6 for the Scriptural text, Moreover ye shall take no ransom for the life of a murderer?7 - The All-Merciful has here stated: You shall take no monetary fine from him and thus exempt him from the death penalty.
What was the need8 for the Scriptural text, And ye shall take no ransom for him that is fled to his city of refuge'?9 - The All-Merciful has here stated: You shall take no monetary fine from him to exempt him from exile.10
But why two texts?11 - One deals with unwitting, and the other with intentional [murder]. And [both texts] were required. For if we had been told12 of intentional murder13 only it might have been assumed [that the restriction12 applied to this case only], because the transgression for which death is inflicted14 is grave,15 but not to the one of unintentional murder where the transgression is not so grave. And if we had been told16 of unintentional murder is only it might have been assumed [that the restriction16 applied to this case only] because no loss of life is involved,17 but not to intentional murder where a loss of life18 is involved.19 [Both texts were consequently] required.
What was the object20 of the Scriptural text, And no expiation can be made for the land for the blood that is shed therein, but by the blood of him that shed it?21 - It was required for [the following deduction] as it was taught: Whence is it deduced that, if the murderer has been discovered after the heifer's neck had been broken,22 he is not to be acquitted?23 From the Scriptural text, 'And no expiation can be made for the land for the blood that is shed therein etc.'24
Then what was the need25 for the text, So shalt thou put away the innocent blood front the midst of thee?26 - It is required for [the following deduction] as it was taught: Whence is it deduced that execution by the sword27 must be at the neck? It was explicitly stated in Scripture, 'So shalt thou put away the innocent blood from the midst of thee', all who shed blood are compared to the atoning heifer:28 As its head is cut29 at the neck30 so [is the execution of] those who shed blood at the neck.31 If [so, should not the comparison be carried further]: As there32 [its head is cut] with an axe and at the nape of the neck so here33 too? - R. Nahman answered in the name of Rabbah b. Abbuha: Scripture said, But thou shalt love thy neighbour as thyself,34 choose for him an easy death.35
What need was there36 for the Scriptural text, None devoted, that may be devoted of men, shall be ransomed?37 - It is required for [the following] as it was taught: Whence is it deduced that, when a person was being led to his execution,38 and someone said, 'I vow to give his value39 [to the Temple].' his vow is null and void?40 [From Scripture] wherein it is said, 'None devoted, that may be devoted of man, shall be redeemed'.41 As it might [have been presumed that the same law applied] even before his sentence had been pronounced42 it was explicitly stated: 'Of men',43 but not 'all men'.44
According to R. Hanania b. 'Akabia, however, who ruled that the [age] value of such a person45 may be vowed46 because its price is fixed,47 what deduction does he48 make from the text of 'None devoted'?49 - He requires it for [the following deduction] as it was taught: R. Ishmael the son of R. Johanan b. Beroka said, Whereas we find that those who incur the penalty of death at the hand of heaven50 may pay a monetary fine and thereby obtain atonement, for it is said in Scripture, If there be laid down on him a sum of money,51 it might [have been assumed that] the same law applied also [to those who are sentenced to death] at the hands of men,52 hence it was explicitly stated in the Scriptures. 'None . . . devoted53 of men shall be redeemed'. Thus we know the law only concerning54 severe death penalties55 since [they are imposed for offences] which cannot be atoned for56 if committed unwittingly;57 whence, [however. is it inferred that the same law applies also to] lighter death penalties58 seeing that [they are for offences] that may be atoned for59 if committed unwittingly?60 It was explicitly stated in Scripture, 'None devoted'.61 But could not this62 be inferred independently from Ye shall take no ransom63 which implies: You shall take no money from him to exempt him [from death]?64 What need was there for 'None devoted'? - Rami b. Hama replied: It was required. Since it might have been assumed
(1) Deut. XXV, 2.
(2) To one penalty.
(3) Lit., 'and we shall do on him'.
(4) To one penalty.
(5) V. note 1.
(6) Since it has been laid down that no monetary fine may be imposed upon one who suffers the death penalty.
(7) Num. XXXV, 31. It is now assumed that כופר, (E.V. ransom) signified 'a monetary fine' that is imposed upon the murderer in addition to his major penalty.
(8) Since no monetary fine may be imposed upon one who is flogged, much less upon one who must flee to a city of refuge. Alter: Since a monetary fine is not imposed upon a murderer. Cf. תוספות ישנים and Tosaf. s.v. לא a.l.
(9) Num. XXXV, 32. Cf. supra n. 3.
(10) Sc. the fleeing to a city of refuge.
(11) Num. XXXV, 31 (death and money) and ibid. 32 (exile and money). As both deal with murder, could not the lesson of the one be deduced from the other?
(12) That no ransom may be substituted for the death penalty.
(13) Num. XXXV, 31.
(14) Lit., 'its transgression'.
(15) And a monetary fine is no adequate punishment.
(16) Cf. supra note 10, mutatis mutandis. (15) Num. XXXV, 32.
(17) The murderer's punishment being exile only.
(18) The penalty being death.
(19) And it might have been presumed that in order to save a human life ransom was allowed to be substituted.
(20) In view of Num. XXXV, 31 which forbids ransom to he substituted for capital punishment.
(21) Num. XXXV, 33.
(22) V. Deut. XXI, 1ff.
(23) Though the heifer atones for the people if the murderer is unknown.
(24) V. Sot. 47b.
(25) In view of the text of Num. XXXV. 33 and the deduction just made.
(26) Deut. XXI, 9, forming the conclusion of the section dealing with the ceremony of the 'atoning heifer' (v. note 12).
(27) Lit., 'those executed by the sword'.
(28) יכלה ערופה, lit., 'the heifer whose neck was broken'.
(29) Lit., 'there'.
(30) V. Deut. XXI, 4.
(31) Sanh. 52b.
(32) In the case of the atoning heifer.
(33) The execution of a murderer.
(34) Lev. XIX, 18.
(35) Pes. 75a, Sanh. 52b and 45a.
(36) Cf. supra note 9.
(37) The conclusion is He shall surely be put to death. Lev. XXVII, 29.
(38) Lit., 'goes out to be killed'.
(39) Lit., 'his valuation upon me'. Cf Lev. XXVII, 2ff.
(40) Lit., 'he said nothing'.
(41) Since his life is forfeited his value is nil.
(42) Lit., 'his judgment was concluded'.
(43) I. e., 'a part of a man', 'an incomplete one', viz. one sentenced to death.
(44) I. e., 'a full man', 'one whose life is still in his own hands', viz. a man still on trial before his sentence of death has been pronounced.
(45) Who 'was led to his execution'.
(46) Lit., 'he is valued', if the person who made the vow used the expression, 'I vow his value' not 'his life'.
(47) In Lev. XXVII. Though his forfeited life has no value, his ace (according to Lev. XXVII, 3-7) has a fixed legal value; and the vow, since it did not refer to his life but his value, is interpreted in the Biblical sense and is consequently valid. V. 'Ar. 7b.
(48) Who does not apply it to a condemned man.
(49) Lit , 'that . . . what does he do to it?'
(50) Offenders who ate not subject to the jurisdiction of a court of law' (v. Sanh. 15b).
(51) Ex. XXI. 30.
(52) Sc. by a sentence of a criminal court.
(53) חרם denotes dedication, excommunication and also condemnation to destruction or death.
(54) Lit., 'there is not to me but', 'I have only'.
(55) For offences committed intentionally.
(56) By a sacrifice.
(57) E.g. wounding one's father or stealing a man (V. Ex. XXI, 15f).
(58) If they were committed intentionally.
(59) By a sacrifice.
(60) E.g., idolatry or adultery.
(61) 'Ar. 7b.
(62) That no ransom may be substituted for the death penalty even in the cases of lighter death penalties.
(63) Num. XXXV, 31.
(64) The death penalty for murder is considered of a lighter character since, the crime, if committed unwittingly, is atoned for by exile.
Talmud - Mas. Kethuboth 38a
that this applied only where murder had been committed1 in the course of an upward movement,2 because no atonement3 is allowed when such an act4 was committed unwittingly.5 but that where murder was committed in the course of a downward movement,2 which [is an offence that] may be atoned for3 if committed unwittingly,5 a monetary fine may be received from him and thereby he may be exempted [from the death penalty]. Hence we were taught6 [that in no circumstances may the death penalty be commuted for a monetary fine].
Said Raba to him,7 Does not this8 follow from what a Tanna of the School of Hezekiah [taught]; for a Tanna of the School of Hezekiah taught: He that smiteth a man9 [was placed in juxtaposition with] And he that smiteth a beast9 [to indicate that just] as in the case of the killing of10 a beast no distinction is made whether [the act was] unwitting or presumptuous, whether intentional or unintentional, whether it was performed in the course of a down ward movement or in the course of an upward movement, in respect of exempting him from a monetary obligation11 but in respect of imposing a monetary obligation12 upon him,13 so also in the case of the killing of14 a man no distinction is to be made whether [the act was] unwitting or presumptuous. whether intentional or unintentional, whether it was performed in the course of a downward movement or in the course of an upward movement, in respect of imposing upon him a monetary obligation15 but16 in respect of exempting him from any monetary obligation?17 - But, said Rami b. Hama, [one of the texts18 was] required [to obviate the following assumption]: It might have been presumed that this19 applied only where a man blinded another man's eye and thereby killed him, but that where he blinded his eye and killed him20 by another act a monetary fine must be exacted from him.21
Said Raba to him:22 Is not this23 also deduced from [the statement of] another Tanna of the School of Hezekiah; for a Tanna of the School of Hezekiah [taught:] Eye for eye24 [implies] but not an eye25 and a life for an eye?26 - [This]. however, [is the explanation], said R. Ashi: [One of the texts27 was] required [to obviate the following assumption]: It might have been presumed that since the law of a monetary fine is an anomaly28 which the Torah has introduced, a man must pay it even though he also suffers the death penalty. Hence we were told29 [that even a monetary fine may not be imposed in addition to a death penalty].
But according to Rabbah, who said that it is an anomaly28 that the Torah has introduced by the enactment of the law of a monetary fine [and that therefore an offender]30 must pay his fine even though he is also to be killed,31 what application can be made of the text 'None devoted. . .'?32 - He33 holds the view of the first Tanna who [is in dispute with] R. Hanania b. 'Akabia.34
MISHNAH. A GIRL35 WHO WAS BETROTHED AND THEN DIVORCED36 IS NOT ENTITLED, SAID R. JOSE THE GALILEAN, TO RECEIVE A FINE [FROM HER VIOLATOR].37 R. AKIBA SAID: SHE IS ENTITLED TO RECEIVE THE FINE AND, MOREOVER, THE FINE BELONGS TO HER.38
GEMARA. What is R. Jose the Galilean's reason?39 - Scripture said, That is not betrothed40 [is entitled to a fine],41 one, therefore, who was betrothed is not entitled to a fine. And R. Akiba?42 - [In the case of a girl] that is not betrothed [the fine is given] to her father but if she Was betrothed [the fine is given] to herself.
Now then, [the expression,] A damsel43 [implies] but not one who is adolescent;44 could it here also45 [be maintained] that [the fine is given] to herself?46 [Likewise the expression] virgin47 [implies] but not one who is no longer a virgin; would it here also48 [be maintained] that [the fine is given] to herself?46 Must it not consequently be admitted48 [that the exclusion in the last mentioned case] is complete,49 and so here also50 it must be complete?51 - R. Akiba can answer you: The text of52 'Not betrothed' is required for [another purpose].53 as it was taught: 'That is not. betrothed' excludes a girl54 that was betrothed and then divorced who has no claim to a fine; so R. Jose the Galilean. R. Akiba, however, ruled: She has a claim to a fine and her fine [is given] to her father.55 This56 is arrived at by analogy: Since her father is entitled to have the money of her betrothal57 and he is also entitled to have the money of her fine58 [the two payments should be compared to one another]: As the money of her betrothal59 belongs to her father even after she had been betrothed60 and divorced,61 so also the money of her fine should belong to her father even after she had been betrothed and divorced. If so62 what was the object of the Scriptural text, 'That is not betrothed'? It is free for the purpose of a comparison with it and an inference from it by means of a gezerah shawah.'63 Here64 it is said, 'That is not betrothed' and elsewhere65 it is said, That is not betrothed,66 as here67 [the fine is that of] fifty [silver coins]68 so is it fifty [silver coins] there65 also; and as there65 [the coins must be] shekels69 so here67 also they must be shekels.
What, however, moved70 R. Akiba [to apply the text] of 'That is not betrothed'71 for a gezerah shawah and that of 'Virgin' for the exclusion72 of one who was no longer a virgin?
(1) Intentionally. Lit., 'he killed him'.
(2) Of the hand, body or instrument.
(3) By exile.
(4) Murder in the course of an upward movement of the hand or body.
(5) V. Mak. 7b.
(6) By the text, 'None devoted' from which deduction was made supra.
(7) Rami b. Hama.
(8) The deduction from 'None devoted' that, in the case of murder, the death penalty may not be commuted for a monetary fine irrespective of whether the offence had been committed in the course of an upward. or downward movement.
(9) Lev. XXIV, 21.
(10) Lit., 'he who kills'.
(11) Which in relation to the beast was not spoken of in the text of Lev. XXIV, 21.
(12) Which was spoken of in the text ibid.
(13) I. e., the man who killed the beast must in all cases mentioned pay compensation, and under no circumstance may he evade payment.
(14) Lit., 'he too kills'.
(15) Of which, in respect of murder, Lev. XXIV, 21 does not speak.
(16) Since the text (Lev. XXIV, 21) speaks of the death penalty as the only punishment for murder.
(17) V. supra 35a, B.K. 35a, Sanh. 79b. This shows that no distinction is made in the case of murder between a downward movement or an upward movement, but in every case no money payment can be imposed in addition to the major punishment. And the same principle must apply to the non-acceptance of a ransom in substitution for the death penalty. What need was there then for the text of 'None devoted' (cf. supra p. 208, n. 16)?
(18) Either 'None devoted' or 'He that smiteth' (cf. Rashi).
(19) That no monetary penalty may be imposed upon one who is to suffer the death penalty.
(20) Simultaneously (v. Rashi).
(21) As compensation for the eye, in addition to the death penalty for murder. [For the obvious difficulty involved in this reply of Rami b. Hama, which apparently is intended to explain the purpose of the verse 'none devoted' according to R. Ishmael b. R. Johanan b. Beroka; v. p. 210, n. 9.]
(22) Rami b. Hama.
(23) That for blinding an eye and thereby killing the man no monetary fine may be imposed in addition to the death penalty.
(24) Ex. XXI, 24.
(25) I. e., compensation for the loss of an eye.
(26) [From this is derived that the Law could not mean actual retaliation, as there was always the danger of loss of life to the offender while not an eye and life for a life (Tosaf.)]. B.K. 84a. The deduction from 'He that smiteth' since it is not needed for this case, must consequently apply to that 'when Be Blinded his eye and killed him By another act'; and the question arises again: What need was there for one or for the other of the two previously cited texts (v. supra p. 209. n. 8)?
(27) V. supra p. 209. n. 8.
(28) חידוש, lit., 'an innovation' sc. different from other laws. In many instances it cannot be justified on logical grounds and can only be accepted as a divine law the reason for which is beyond human comprehension.
(29) By means of one of the two texts (v. supra p. 209. n. 8) which is not required in respect of ordinary monetary payments.
(30) If his offence warrants it.
(31) Supra 34b, 3 5b.
(32) Which, according to his view . Is not required to exclude the case just mentioned (cf. supra n. 4).
(34) Supra 37b where deduction is made from this text that a vow to give to the Temple the value of a person who was led to his execution, is null and void. [The whole passage is extremely difficult; v. Tosaf. The main difficulty is presented by the second answer of Ram B. Hama. (v. p. 209 , n. 11). The following may be offered in explanation: To revert to the very beginning of the discussion the Talmud, assuming that the verse 'you shall take no fine' denotes that no money payment is to be imposed in addition to a death penalty, asked, what need was there for this verse, in view of the verse 'and yet no harm follow' (v. p. 205). There upon follows the reply that this verse meant to exclude the commutation of the death penalty for money payment. Then the question arises, what need was there for R. Ishmael b. R. Johanan b. Beroka to resort, for what practically amounts to the same ruling, to the verse 'None devoted'? To this Rami b. Hama in his first reply, answers that he needed this latter verse in the case where the murder was committed in a downward course. This reply, however, is rebutted by Raba, as such a contingency is already provided for in the verse 'he that smiteth etc.' This forces Rami b Hama to fall back on the original assumption that the verse 'you shall take no ransom' comes to teach that no money payment may be imposed in addition to the death penalty; and as to the very first question, what need is there, in view of the verse 'and yet no harm shall follow' for two verses to teach the same thing? - the reply is: it is necessary to provide for a case where the blinding and the killing result from two separate blows. Raba, however, objected that this contingency too was already provided for. Hence R. Ashi's reply, that the extra verse was required to 'extend the rule to the case of a fine (v. Shittah Mekubbezeth. a.l.). This answer, however, the Talmud did not regard as satisfactory according to Rabbah, who held that a fine may be imposed in addition to the death penalty. On his view the verse 'you shall take no ransom' cannot be taken as referring to the imposition of a money payment in addition to the death penalty. Consequently, he would be forced back on the alternative explanation that it serves to teach that no death penalty may be commuted for money payment and thus the question of supra p. 208 'what need is there of "None devoted"' remains. To this the answer is, that Rabbah would agree with the first Tanna who is in dispute with R. Hanania b. 'Akabia].
(35) Na'arah, v. Glos
(36) Had she not been divorced, the offender is put to death and there is consequently no fine.
(37) V. Deut. XXII, 29. The reason is stated infra.
(38) Not to her father.
(39) For his ruling in our Mishnah.
(40) Deut. XXII, 28.
(41) The man . . . shall give . . . fifty shekels (ibid. 29).
(42) How, in view of the Scriptural text cited, can he maintain that SHE IS ENTITLED TO RECEIVE THE FINE?
(43) Deut. XXII, 28, Heb. na'arah.
(44) A bogereth (v. Glos).
(45) Since R. Akiba laid down that the exclusion of a fine that was implied by the text of 'not betrothed' is restricted to the girl's father but that the girl herself is still entitled to it.
(46) But this is absurd, since no such law is anywhere to be found.
(47) Deut. XXII, 28.
(48) Lit., 'but'.
(49) I. e., no fine is paid either to the girl or to Bet father.
(50) The exclusion of which R. Jose the Galilean has spoken.
(51) The previous objection against R. Akiba's ruling (cf. supra p. 211, n. 8) thus arises again.
(52) Lit., 'that'.
(53) And is consequently not available for the deduction made by R. Jose the Galilean.
(54) V. supra p. 211, n. 1.
(55) The contradiction between this ruling of R. Akiba and Bis ruling in out Mishnah is discussed infro.
(56) That she is entitled to the fine even after she had been betrothed.
(57) V. infra 46b.
(58) V. Deut. XXII, 29.
(59) I. e., a second betrothal while she was still a damsel (na'arah). V. supra p. 211, n. 1.
(60) To one man.
(61) From him and then betrothed to the other man.
(62) If one who was betrothed and divorced is also entitled to a fine.
(63) V. Glos.
(64) In the case of an outrage.
(65) In the case of seduction.
(66) Ex. XXII, 15.
(67) In the case of an outrage.
(68) V Deut. XXII, 29.
(69) שקלים. The text (Ex. XXII, 16) reads ישקל (lit., 'shall weigh', E.V. pay) which is of the same rt. as שקל (shekel).
(70) Lit., 'you saw'.
(71) Deut. XXII, 28.
(72) From the tight to a fine.
Talmud - Mas. Kethuboth 38b
Might [not one equally well] suggest that 'Virgin' should be applied for the gezerah shawah1 and 'That is not betrothed' [should serve the purpose of] excluding2 a girl3 that was betrothed and divorced? - It stands to reason [that the text of] 'That is not betrothed' should be employed for the gezerah shawah,4 since such a girl3 is still5 designated. A damsel that is a virgin.6 On the contrary; [should not the expression of] 'Virgin' be applied for the gezerah shawah, since [a non-virgin] may still be described as one 'That is not betrothed'?7 - It stands to reason [that R. Akiba's first view8 is to be preferred, since] the body of the one9 had undergone a change while that of the other10 had not.11
As to R. Jose the Galilean,12 whence does he draw that logical inference?13 - He derives it from the following where it was taught: He shall pay money according to the dowry of virgins14 [implies] that this [payment] shall be the same sum as the dowry of the virgins and the dowry15 of the virgins shall be the same as this.16
Does not a contradiction arise between the two statements of R. Akiba?17 - [The respective statements represent the opinions of] two Tannaim who differ as to what was the ruling of R. Akiba.
[The ruling of] R. Akiba in our Mishnah presents no difficulty since the gezerah shawah does not altogether deprive the Scriptural text of its ordinary meaning.18 According to R. Akiba's ruling in the Baraitha, however, does not the gezerah shawah completely deprive the Scriptural text of its ordinary meaning?19 - R. Nahman b. Isaac replied. Read in the text:20 That is not a betrothed maiden.21 [But] is not a betrothed maiden one [for the violation of whom] the penalty of stoning [but not fine] is incurred?22 - It might have been assumed that, since it is an anomaly23 that the Torah had introduced by the enactment of the law of a monetary fine, an offender24 must, therefore, pay his fine even if he is also to be executed.25 According to Rabbah, however, who said that it was an anomaly23 that the Torah had introduced by the' enactment of the law of a monetary fine and that an offender24 must pay his fine even if he is also to be executed,26 what can be said [in reply to the objection raised]?27 - He28 adopts the same view as that of R. Akiba in our Mishnah.29
Our Rabbis taught: To whom is the monetary fine [of an outraged virgin30 to be given]? - To her father. Others say: To herself. But why 'to herself'?31 - R. Hisda replied: We are dealing here with the case of a virgin who was once betrothed and is now divorced, and they32 differ on the principles underlying the difference between the view of R. Akiba in our Mishnah and his view in the Baraitha. Abaye stated: If he33 had intercourse with her and she died,34 he is exempt [from the fine], for in Scripture it was stated, Then the man . . . shall give unto the damsel's father,35 but not unto a dead woman's father.36
This ruling which was so obvious to Abaye formed the subject of an enquiry by Raba.37 For Raba enquired: Is the state of adolescence legally attainable in the grave38 or not? 'Is the state of adolescence attainable in the grave and [the fine,35 therefore,] belongs to her son,39 or is perhaps the age of adolescence not attainable in the grave and [the fine, therefore,] belongs to her father?
(1) And not, as has been said, to exclude a non-virgin from her tight to the fine.
(2) From the tight to a fine.
(3) A na'arah.
(4) So that even a girl (na'arah) who was once betrothed and divorced should be entitled to the fine.
(5) Despite Bet Betrothal and divorce.
(6) Hence it is quite reasonable that her right to the fine shall not be lost. A non-virgin however, who is not described as 'a damsel that is a virgin' justly loses her tight to the fine.
(7) While a na'arah that was once betrothed and divorced and cannot so be described should not be entitled to the fine.
(8) That a na'arah that was once betrothed and divorced is entitled to the fine and that a non-virgin is not.
(9) The non-virgin.
(10) Who was betrothed and divorced.
(11) Cf. supra note 14.
(12) Who, unlike R. Akiba, does not use the expression of 'That is not betrothed' for a gezerah shawah
(13) Stated supra 38a ad fin., that a fine of fifty shekel is to be paid both in the case of seduction and that of violation.
(14) Ex. XXII, 16, the case of seduction
(15) Viz. fifty, as specified in Deut. XXII. 29
(16) Shekels, as implied from Ex. XXII, 16 (cf. supra p. 213. n. 5).
(17) In out Mishnah he laid down that the fine BELONGS TO HER while in the Baraitha (supra 38a) he maintains that it 'is shawah to her father'.
(18) Because in addition to the deduction of the gezerah shawah, the ordinary meaning of the text. viz. that if the 'damsel . . . is not betrothed' the fine is given 'unto the damsel's father' but if she was once betrothed it 'BELONGS TO HER', is also in agreement with the law.
(19) The implication of the ordinary meaning being that if the damsel vas betrothed the fine is paid not to her father but to herself (cf. supra note 4.) while according to R. Akiba it 'is given to her father' irrespective of whether she was, or was not betrothed.
(20) Deut. XXII. 28.
(21) Thus excluding one formerly betrothed but now divorced. The consonants of the original ארשה (Aram. ארסה) may be read as ארשה (as M.T.) 'was betrothed' as well as ארשה 'one who is betrothed'.
(22) Since no monetary fine may be imposed in addition to the penalty of death. What need then was there a for a Scriptural text to teach the same law?
(23) Cf. supra p. 210, n. 3.
(24) If his crime warrants it.
(25) Hence the necessity in this case for the additional Scriptural text.
(26) Supra 34a, 35b, 38a.
(27) Cf. supra p. 214, n. 5. The reply given by R. Nahman b. Isaac supra - that the offence referred to in the text is against one who was still betrothed and that the implication is that the offender, because he is suffering the penalty of death, is exempt from the monetary fine - is untenable; since, according to Rabbah, such an offender incurs both penalties.
(29) Which, as stated supra, does not 'deprive the Scriptural test of its ordinary meaning'.
(30) This is now assumed to mean a virgin 'that is not betrothed' who is spoken of in Deut. XXII. 28f.
(31) The Scriptural text, surely, lays down that the fine is to be given 'Unto the damsel's father'.
(32) The respective authors of the two opinions expressed in the last cited Baraitha.
(33) The offender spoken of in Deut. XXII, 28f.
(34) Before he was brought to trial.
(35) Deut. XXII, 29.
(36) V. supra 29b.
(37) V. infra p. 217, n. 10 final clause.
(38) In the case of a virgin who was violated while she was a na'arah (v. Glos) and died a na'arah but whose violator was not brought to trial until sometime later when the girl, had she been alive, would have attained the state of bagruth; (v. Glos).
(39) If she had one. As the fine would have been payable to her and not to her father if she had been alive (v. infra 41b) so it is now payable to her son who is her legal heir.
Talmud - Mas. Kethuboth 39a
But is she,1 however, capable of [normal] conception?2 Did not R. Bibi recite in the presence of R. Nahman:3 Three [categories of] women may use an absorbent4 in their marital intercourse:5 a minor, and an expectant and nursing mother. The minor,6 because otherwise she might become pregnant and die. An expectant mother,6 because otherwise she might cause her foetus to degenerate into a sandal.7 A nursing mother,6 because otherwise she might have to wean her child [prematurely]8 and this would result in his death.9 And what is [the age of such] a minor?10 From the age of eleven years and one day to the age of twelve years and one day. One who is under,11 or over this age12 must carry on her marital intercourse in a normal manner; so R. Meir. But the Sages said: The one as well as the other carries on her marital intercourse in a normal manner, and mercy13 will be vouchsafed from Heaven, for it is said in the Scriptures, The Lord preserveth the simple.14 And should you reply that this is a case where she conceived when she was a na'arah and gave birth to a child when she was still a na'arah [it could be objected:] Does one give birth to a child within six months [after conception]? Did not Samuel, in fact, state: The period between the age of na'aruth15 and that of bagruth16 is only six months? And should you suggest [that he meant to say] that there were no less but more [than six months] surely [it could be retorted] he used the expression. only'!17 It must be this, then, that he18 asked: Is the state of adolescence19 attainable in the grave20 and her father consequently forfeits21 [his right],22 or is perhaps the state of adolescence not attainable in the grave23 and the father, therefore, does not forfeit24 [his right]?
Mar son of R. Ashi raised the question25 in the following manner: Does death effect adolescence26 or not? - The question stands undecided.27
Raba enquired of Abaye: What [is the legal position if] he28 had intercourse and became betrothed?29 The other replied: Is it written in Scripture. 'Then the man . . . shall give unto the father of the damsel30 who was not a betrothed woman'?31 Following, however, your line of reasoning, [the first retorted, one can argue in respect] of what was taught: '[If the offender had] intercourse with her and she married [the fine] belongs to herself', is it written in Scripture. 'Then the man . . . shall give unto the father of the damsel32 who was not a married woman'? - What a comparison!33 There34 [the following analogy may well be made]: Since the state of ado lescence liberates a daughter from her father's authority35 and marriage also liberates a daughter from her father's authority36 [the two may be compared to one another]: As [in the case of] adolescence, if she attains adolescence after he had intercourse with her,37 [the fine] belongs to the girl herself,38 so also [in the case of] marriage, if she married after he had intercourse with her,37 [the fine] belongs to the girl herself. But as to betrothal, does it completely liberate a daughter from her father's authority? Surely we learned: [In the case of] a betrothed girl39 her father and her husband jointly may invalidate her vows.40
MISHNAH. THE SEDUCER PAYS THREE FORMS [OF COMPENSATION] AND THE VIOLATOR FOUR. THE SEDUCER PAYS COMPENSATION FOR INDIGNITY AND BLEMISH41 AND THE [STATUTORY] FINE, WHITE THE VIOLATOR PAYS AN ADDITIONAL [FORM OF COMPENSATION] IN THAT HE PAYS FOR THE PAIN.
WHAT [IS THE DIFFERENCE] BETWEEN [THE PENALTIES OF] A SEDUCER AND THOSE OF A VIOLATOR? THE VIOLATOR PAYS COMPENSATION FOR THE PAIN BUT THE SEDUCER DOES NOT PAY COMPENSATION FOR THE PAIN. THE VIOLATOR PAYS42 FORTHWITH43 BUT THE SEDUCER [PAYS ONLY] IF HE DISMISSES44 HER. THE VIOLATOR MUST DRINK OUT OF HIS POT45 BUT THE SEDUCER MAY DISMISS [THE GIRL] IF HE WISHES. WHAT IS MEANT BY46 'MUST DRINK OUT OF HIS POT'? - EVEN IF SHE IS LAME, EVEN IF SHE IS BLIND AND EVEN IF SHE IS AFFLICTED WITH BOILS [HE MAY NOT DISMISS HER]. IF, HOWEVER, SHE WAS FOUND TO HAVE COMMITTED47 AN IMMORAL ACT OR WAS UNFIT TO MARRY AN ISRAELITE48 HE MAY NOT CONTINUE TO LIVE WITH HER, FOR IT IS SAID IN SCRIPTURE, AND UNTO HIM SHE SHALL BE FOR A WIFE,49 [IMPLYING] A WIFE THAT IS FIT 'UNTO HIM
GEMARA. [For the] PAIN of what?50 - The father of Samuel replied: For the pain [he has inflicted] when he thrust her upon the ground.
R. Zera demurred: Now then, if he had thrust her upon silk stuffs51 would he for a similar reason52 be exempt? And should you say that the law is so indeed,52 was it not [it may be retorted] taught: 'R. Simeon b. Judah stated in the name of R. Simeon.53 A violator does not pay compensation for the pain [he has inflicted] because
(1) A girl in her minority. In the case under discussion, which refers to a na'arah, who died before she became a bogereth the birth of a child is possible only if conception took place while she was a minor - under twelve years of age.
(2) I. e., one that would result in the birth of a child.
(3) V. Yeb. 12b, 100b, Nid. 45a.
(4) מוך 'hackled wool or flax'.
(5) To prevent conception.
(6) Is permitted the use of an absorbent.
(7) סנדל, lit., 'a flat fish', i.e., a fish-shaped abortion due to superfetation.
(8) On account of her second conception which causes the deterioration of her breast milk.
(9) וימות, so MS.M. Cut. edd. omit.
(10) Who is capable of conception but is exposed thereby to danger.
(11) When no conception is possible.
(12) When pregnancy involves no fatal consequence.
(13) To protect them from danger.
(14) Ps. CXVI, 6; sc. those who are unable to protect themselves. From this it follows that a girl under the age of twelve is incapable of normal conception. How then could it be assumed by Raba that a na'arah (cf. supra p. 215, n. 14) might give birth to a child?
(15) Abstract of 'na'arah', (v. Glos).
(16) Abstract of 'bogereth'.
(17) Which implies 'no more'.
(19) V. supra p. 215, n. 12.
(20) And the fine is, therefore, payable to the deceased as if she had been alive. (V. infra 41b).
(21) פקע lit., 'bursts'.
(22) To the fine. As a fine is not inheritable before it has been collected, the father cannot inherit it from his daughter, and the offender is consequently altogether exempt from payment.
(23) And the deceased retains the status of a na'arah.
(24) V. supra note 5.
(25) Attributed (supra 38b ad fin.) to Raba.
(26) I. e., does a na'arah (v. Glos) assume the status of adolescence the moment she dies, and her father consequently forfeits his tight to the fine as if she had actually attained her adolescence in her lifetime? The former version of Raba's question differs from this in that it assumes as a certainty, contrary to Abaye's ruling, that death does not effect adolescence, the only doubt being whether adolescence is attained in due course, in the grave. According to this, the latter version, however, Abaye's very certainty is questioned, and the statement (supra p. 215) 'This ruling which was so obvious to Abaye formed the subject of enquiry by Raba' refers to this version.
(27) Teku (v. Glos.)
(28) The offender spoken of in Deut. XXII, 28f.
(29) Before the payment was made. Does the fine still belong to her father or is it now payable to herself?
(30) Deut. XXII, 29.
(31) Of course not. Scripture draws no distinction between the one and the other.
(32) Deut. XXII, 29.
(33) Lit., 'thus, now'.
(35) It is only a minor and a na'arah (v. Glos) over whom a father exercises his authority (v. infra 46b).
(36) The vows of a married woman may be invalidated by her husband only and nor by her father.
(37) While she was still a na'arah.
(38) Since it is the 'father of the damsel' to whom the fine is to be paid (v. Deut. XXII, 29) and not the father of the girl who is adolescent.
(39) A na'arah.
(40) V. Ned. 66b and infra 46b; which shews that a father maintains partial control over his daughter as a na'arah even after her betrothal.
(41) This is explained infra.
(42) To the damsel's father.
(43) Eden if he marries her.
(44) This is explained infra.
(45) עציץ, an earthen vessel used as a receptacle for refuse or as a plant
(46) Lit., 'how'.
(47) Lit., 'there was found in her'.
(48) Lit 'to enter into (the congregation of) Israel', on account of her illegitimate or tainted birth.
(49) So lit. Deut. XXII, 29.
(50) Must the violator pay.
(51) A fall which is not painful.
(52) Lit 'thus also'.
(53) The parallel passage in B.K. 59a has 'Simeon b. Menasya'.
Talmud - Mas. Kethuboth 39b
the woman would ultimately have suffered the same pain from her husband, but they1 said to him: One who is forced to intercourse cannot be compared to one who acts willingly'?2 - [The reference.] in fact,3 said R. Nahman in the name of Rabbah b. Abbuha [is to the] pain of opening the feet, for so it is said in Scripture, And hast opened thy feet to every one that passed by.4 But if so, the same applies to one who has been seduced?5 R. Nahman replied in the name of Rabbah b. Abbuha: The case of one who has been seduced may be compared to that of a person who said to his friend, 'Tear up my silk garments and you will be free from liability'.6 'My'? Are they7 not her father's?8 - This, however, said R. Nahman in the name of Rabbah b. Abbuha, [is the explanation]: The smart women among them declare that one who is seduced experiences no pain. But do we not see that one does experience pain? - Abaye replied: Nurse9 told me: Like hot water on a bald head.10 Raba said: R. Hisda's daughter11 told me, Like the prick of the blood-letting lancet.12 R. Papa said: The daughter of Abba of Sura11 told me, Like hard crust in the jaws.13
THE VIOLATOR PAYS FORTHWITH BUT THE SEDUCER [PAYS ONLY] IF HE DISMISSES HER etc. WHEN HE DISMISSES HER! Is she then his wife?14 Abaye replied: Read, 'If he does not marry her,15 So it was also taught: Although it was laid down that the seducer pays [the statutory fine] only if he does not marry her, he must pay compensation for indignity and blemish forthwith. And [in the case of] the violator as well as [of] the seducer, she herself or her father may oppose.16
As regards one who has been seduced, this17 may well be granted because it is written in Scripture. If her father will refuse,18 [since from 'refusing']19 I would only [have known that] her father [may refuse], whence [could it be deduced that] she herself [may also refuse]?20 It was, therefore, explicitly stated 'will refuse', implying either of them.21 But as regards a violator, though one may well grant that she [may refuse him since] it is written in Scripture. 'and onto him she shall be22 [which implies]23 only if she is so minded, whence, however, [it may be objected] is it deduced that her father [may also object to the marriage]? - Abaye replied: [Her father was given the right to object] in order that the sinner24 might not gain an advantage.25 Raba replied; It26 is deduced a minori ad majus: If a seducer who has acted against the wish of her father alone may be rejected either by herself or by her father how much more so the violator who has acted both against the wish of her father and against the wish of herself.
Raba did not give the same reply as Abaye, because, having paid the fine, [the offender can] no [longer be described as a] sinner gaining an advantage. Abaye does not give the same reply as Raba [because it may be argued:27 In the case of] a seducer, since he himself may object [to the marriage], her father also may object to it; [but in the case of] a violator, since he himself may not object [to the marriage] her father also may have no right to object to it.
Another Baraitha taught: Although it has been laid down that the violator pays forthwith28 she has no claim upon him29 when he divorces her.30 ['When he divorces her'! Can he divorce her?31 - Read: When she demands a divorce32 she has no claim upon him].29 If he died, the fine is regarded as a quittance for her kethubah.33 R. Jose the son of R. Judah ruled: She is entitled34 to a kethubah for one maneh.35
On what principle do they36 differ? - The Rabbis hold the view that the only reason why37 the Rabbis instituted a kethubah [for a wife was] in order that the man might not find it easy38 to divorce her,39 but [the violator,] surely, cannot divorce her.40 R. Jose the son of R. Judah, however, is of the opinion that this man too might torment her until she says to him, 'I do not want you'.41 THE VIOLATOR MUST DRINK OUT OF HIS POT. Said Raba of Parazika42 to R. Ashi. Consider! [The fines of a violator and a seducer] are deduced from one another.43
(1) The Rabbis who differed from his view.
(2) B.K. 59a. Nose if the PAIN referred to was that caused by the thrust the first Tanna would not have spoken of pain in the case of a husband.
(3) Lit., 'but'.
(4) Ezek XVI, 25.
(5) Why then is a seducer exempt from paying compensation6 for pain.
(6) By her consent to suffer the pain the woman has exempted the man from paying compensation.
(7) The silk garments, sc. her chastity and all it involves (v. infra 46b).
(8) How then could she grant exemption?
(9) Abaye's mother died from childbirth and he was brought up by his nurse (v. Kid. 31b).
(10) Slight but pleasurable pain.
(11) His wife.
(12) ריבדא 'puncture', כוסילתא 'lancer used for blood-letting'.
(13) V. Jast. Aliter: 'palate' (Rashi).
(14) Obviously not, since he has not legally married her. How then can the expression of dismissed be used?
(15) Since the woman, her father, or the seducer himself may object to the marriage.
(16) The marriage.
(17) That the girl as well as her father may oppose the marriage.
(18) So lit., Ex. XXII, 16. (E.v. utterly refuse).
(19) If the verb had nor been repeated.
(20) To marry the seducer.
(21) Lit., 'from any place'.
(22) Deut. XXII, 29.
(23) Since it was not stared, 'And he shall take her'.
(24) The violator.
(25) Over the seducer.
(26) Her father's right to oppose the marriage.
(27) Against his a minori inference.
(28) V. Our Mishnah.
(29) In respect of her kethubah.
(30) The fine he pays is regarded as a settlement of her kethubah, though it was Bet father who received the payment.
(31) Of course not, since Scripture stared, He may not put her away all his days (Deut. XXII, 29).
(32) Lit., 'when she goes out'.
(33) Cf. supra n, 7.
(34) Like a woman who married as a widow or divorcee.
(35) V. Glos.
(36) R. Jose the son of R. Judah and the Rabbis.
(37) Lit., 'what is the reason?'
(38) Lit., 'easy in his eyes'.
(39) V. infra 54a.
(40) Cf. supra note 8. Hence no kethubah was necessary.
(41) She too must, therefore, be protected by a kethubah.
(42) Farausag, a district near Bagdad (cf. Obermeyer p. 269).
(43) The former from the latter in respect of 'shekels' and the latter from the former in respect of the number 'fifty' (v supra 38a ad fin.).
Talmud - Mas. Kethuboth 40a
why then should not this law1 also be inferred?2 - Scripture stated, He shall surely pay a dowry for her to be his wife,3 'her'4 [implies]5 only if he is so minded [need he marry her].
WHAT IS MEANT BY 'MUST DRINK OUT OF HIS POT' etc.? R. Kahana said, I submitted the following argument before R. Zebid of Nehardea:6 Why should not the positive commandment7 supersede the negative one?8 And he replied to me: 'Where do we say that a positive commandment supersedes a negative one? [Only in a case], for instance, like circumcision in leprosy.9 since otherwise it would be impossible to fulfil the positive commandment, but here,if she should say that she did not want [the man for a husband],would [the question of the performance of] the positive commandment7 ever have arisen?'10
MISHNAH. IF AN ORPHAN WAS BETROTHED AND THEN DIVORCED, ANY MAN WHO VIOLATES HER, SAID R. ELEAZAR, IS LIABLE [TO PAY THE STATUTORY FINE]11 BUT THE MAN WHO SEDUCES HER IS EXEMPT.12
GEMARA. Rabbah b. Bar Hana stated in the name of R. Johanan: R. Eleazar made his statement13 on the lines of the view of his master R. Akiba who ruled: She14 is entitled to receive the fine, and, moreover, the fine belongs to her. How is this15 inferred?16 - As it was stated, IF AN ORPHAN . . . ANY MAN WHO VIOLATES HER, SAID R. ELEAZAR, IS LIABLE [TO PAY THE STATUTORY FINE] BUT THE MAN WHO SEDUCES HER IS EXEMPT, [the difficulty arises: Is not the case of] an orphan self-evident?17 Consequently it must be this that we were taught: A girl WHO WAS BETROTHED AND THEN DIVORCED has the same status as AN ORPHAN. As [the fine of] an orphan belongs to the orphan herself so does that of a girl who was betrothed and then divorced belong to the girl herself.
R. Zera said in the name of Rabbah b. Shila who said it in the name of R. Hamnuna the Elder who had it from R. Adda b. Ahabah who had it from Rab: The halachah is in agreement with the ruling of R. Eleazar. Rab [in fact] designated R. Eleazar18 as the happiest19 of the wise men.
MISHNAH. WHAT IS [THE COMPENSATION THAT IS PAID FOR] INDIGNITY?20 ALL DEPENDS ON THE STATUS OF THE OFFENDER AND THE OFFENDED. [AS TO] BLEMISH,20 SHE IS REGARDED AS IF SHE WERE A BOND WOMAN TO BE SOLD IN THE MARKET PLACE [AND IT IS ESTIMATED] HOW MUCH SHE WAS WORTH21 AND HOW MUCH SHE IS WORTH NOW. THE STATUTORY FINE22 IS THE SAME FOR ALL, AND ANY SUM THAT IS FIXED PENTATEUCHALLY REMAINS THE SAME FOR ALL.
GEMARA, Might it not be suggested that the All-Merciful intended the fifty sela'23 to cover all the forms of compensation?24 - R. Zera replied: [If that were so] it would be said, 'Should one who had intercourse with a princess pay fifty and one who had intercourse with the daughter of a commoner also pay only fifty?'25 Said Abaye to him: If so, the same might be argued in respect of a slave:26 'Should [compensation for] a slave who perforates pearls be thirty [and that for] one who does
(1) That a seducer, like a violator. must marry his victims.
(2) Lit., 'in respect of this thing also let them be inferred from one another'.
(3) Ex. XXII, 15.
(4) לו lit., 'to him.
(5) Since it is not stated, 'And she shall be his wife' (cf. supra. 220, n. 17).
(6) Nehardea was a town on the Euphrates, situated at its junction with the Royal Canal about seventy miles north of Sura, and famous for its great academy in the days o Samuel, which is as rivalled only by that of Sura.
(7) She shall be his wife (Deut. XXII, 29). Lit., 'let the positive command come and supersede etc.'.
(8) The prohibition. e.g., to marry one who was UNFIT TO MARRY AN ISRAELITE.
(9) It is forbidden to remove leprosy by means of a surgical operation; but if the leprosy covered the place or circumcision it is permitted to perform the circumcision although the leprosy is removed in the process. Thus the positive commandment of circumcision supersedes the negative one of leprosy.
(10) Obviously not, since the girl has the right of objecting to marry him. Similarly, if she happens to be one who is forbidden to marry an Israelite she is advised to object to the marriage (Rashi). [Isaiah Trani: Since the command for the performance of this positive precept is not absolute,it is not sufficiently strong to supersede a negative prohibition.]
(11) V. Deut. XXII, 29.
(12) Her acquiescence in the offence is regarded as an intimation that she has renounced her claim to the fine, and since, owing to the death of Bet father, the fine belongs to her, she is fully entitled to remit it.
(13) In our Mishnah.
(14) A girl who was betrothed and risen divorced (v. Mishnah, supra 38a).
(15) That R. Eleazar follows the ruling of R. Akiba?
(16) Lit., 'from what'
(17) Since she has no father the fine obviously belongs to her. What need then was there for our Mishnah
(18) R. Eleazar b. Shammu'a, a disciple of R. Akiba (v. Yeb. 62b).
(19) So Jast. or 'important', 'notable' (v. Levy).
(20) V. Mishnah, supra 39a.
(21) Before the offence.
(22) V. Mishnah, supra 39a.
(23) Deut. XXII, 29.
(24) Lit., 'from all things'.
(25) Though the indignity of the former is undoubtedly greater. Hence it follows that, in addition to the statutory sum which the Torah has awarded to all alike, an additional sum for indignity must be paid in accordance with the status of the offended party.
(26) Compensation for whom is fixed at thirty shekels (v. Ex. XXI, 32).
Talmud - Mas. Kethuboth 40b
needlework also be thirty?'1 - This, however, said R. Zera, [is the proper explanation]: If two men had intercourse with her, one in a natural, and the other in an unnatural manner, it would be argued,2 'Should one who had intercourse with a sound woman pay fifty and one who had intercourse with a degraded woman also pay fifty?'
Said Abaye to him: If so, the same might be argued in respect of a slave: 'Should [compensation for] a healthy slave be thirty [and that for] one afflicted with boils also be thirty?'1 - This, however, said Abaye, [is the explanation]: Scripture said,3 Because he hath humbled her4 [as if to say]: These5 [must be paid] 'because he hath humbled her',' thus it may be inferred that [compensation for] indignity and blemish6 must also be paid.7
Raba replied: Scripture said, Then the man that lay with her shall give unto the damsel's father fifty [shekels of] silver;8 for the gratification of 'lying' [he gives] fifty. Thus it may be inferred that [compensation for] indignity and blemish must also be paid.7
But say [perhaps] that [compensation for indignity and blemish is paid] to her?9 - Scripture said, Being in her youth in her father's house,10 [implying that] all advantages of 'her youth' belong to her father.
[Consider,] however, that which R. Huna said in the name of Rab: 'Whence is it deduced that a daughter's handiwork belongs to her father? [From Scripture] where it is said, And if a man sell his daughter to be a maidservant,11 as12 the handiwork of a maidservant belongs to her master so does the handiwork of a daughter belong to her father'. Now what need is there13 [it may be asked, for this text when] the law14 can be deduced from [the text of] 'Being in her youth in her father's house'? Consequently [it must be admitted, must it not, that] that text was written in connection only with the annulment of vows?15 And should you suggest16 that we might infer17 from it,18 [it could be retorted that,] monetary matters19 cannot be inferred from ritual matters.20 And should you suggest16 that we might infer it17 from the law of fine, is [it could be retorted, could it not, that,] monetary payments cannot be inferred from fines?21 - This, however, [is the explanation]:22 it stands to reason that [her compensation should] belong to her father; for if he wished he could have handed her over23 to an ugly man or to one afflicted with boils.24
AS TO BLEMISH, SHE IS REGARDED AS IF SHE WERE A BONDWOMAN TO BE SOLD. How is she assessed? The father of Samuel replied: It is estimated how much25 more a man would pay for a virgin slave than25 for a non-virgin slave to attend upon him. 'A non-virgin slave to attend upon him'! What difference does this26 make to him? - [The meaning], however, [is this: How much more a man would pay for] a virgin slave than25 for a non-virgin slave25 for the purpose of marrying her to his bondman. But even if 'to his bondman', what difference does this27 make to him? - [We are dealing here] with a bondman who gives his master satisfaction.28
MISHNAH. WHEREVER THE RIGHT OF SALE APPLIES NO FINE IS INCURRED29 AND WHEREVER A FINE IS INCURRED NO RIGHT OF SALE APPLIES. IN THE CASE OF A MINOR THE RIGHT OF SALE30 APPLIES BUT NO FINE31 IS INCURRED;32 IN THE CASE OF A DAMSEL33 A FINE IS INCURRED32 BUT NO RIGHT OF SALE30 APPLIES. TO A DAMSEL WHO IS ADOLESCENT34 THE RIGHT OF SALE DOES NOT APPLY NOR IS A FINE INCURRED THROUGH HER.
GEMARA. Rab Judah stated in the name of Rab: This35 is the ruling of R. Meir, but the Sages rule: A fine is incurred32 even where the right of sale36 applies. For it was taught: The right of sale36 applies to a minor from the age of one day until the time when she grows two hairs,37 but no fine is incurred through her.38 From the time she grows two hairs until she comes of age a fine is incurred through her but no right of sales applies; so R. Meir, because R. Meir has laid down: Wherever the right of sale applies no fine is incurred, and wherever a fine is incurred no right of sale applies. The Sages, however, ruled: Through a minor from the age of three years and one day until the time she becomes adolescent a fine is incurred.39 Only a fine [you say] but not the right of sale?40 - Read: A fine also where the right of sale applies.41
R. Hisda said: What is R. Meir's reason?42 Scripture said, And unto him43 she shall be44 for a wife;45 the text thus speaks of a girl who may herself contract a marriage.46 And the Rabbis?47 Resh Lakish replied: Scripture said, na'ar48 which49 implies even a minor.50
R. Papa the son of R. Hanan of Be Kelohith heard this51 and proceeded to report it before R. Shimi b. Ashi [when the latter] said to him: You apply it52 to that law; we apply it to the following: Resh Lakish ruled; A man who has brought an evil name53 upon a minor is exempt,54 for it is said in Scripture, And give them unto the father of the damsel,53 Scripture expressed the term na'arah55 as plenum.56
R. Adda b. Ahabah demurred: Is the reason then57 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,58 while a minor is not, is she, subject to punishment?59 - [The explanation,] however, [is that since] na'arah [has been written] here60 [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.
(1) Though the labour value of the one is undoubtedly higher than that of the other,
(2) If no compensation for indignity were paid in addition to the statutory fine.
(3) In stating the reason for the statutory fine.
(4) Deut. XXII, 29.
(5) The fifty shekels mentioned.
(6) Which are payable in other cases of injury.
(7) Lit., 'that there is'.
(8) Deut. XXII, 29.
(9) Since 'the damsel's father ' was mentioned (ibid.) only in respect of the fifty shekels of fine.
(10) Num. XXX, 17.
(11) Ex. XXI, 7.
(12) Since 'daughter' and 'maidservant' are mentioned in the same verse they may be compared to one another.
(13) Lit., 'wherefore to me?'
(14) That a daughter's handiwork belongs to her father,
(15) And, therefore, no deduction from it can be made in respect of handiwork. Similarly here also, no deduction from it could be made in respect of compensation for indignity and blemish. Thus an objection arises against Raba's explanation.
(16) In justification of Raba.
(17) That compensation for indignity and blemish belongs to the father,
(18) The law of the annulment of vows.
(19) Such as compensation.
(20) As the fine belongs to her father so does her compensation.
(21) The objection against Raba thus remains.
(22) Why compensation for indignity and blemish is paid to the father.
(23) As wife.
(24) Thus subjecting her to indignity and blemish while he himself derives there from pecuniary benefit. As her indignity and blemish are in his hands he is justly entitled to compensation from the man who inflicts them upon her.
(25) Lit., 'between . . . to'.
(26) The virginity of a slave whom one requires for service.
(27) Cf. previous note mutatis mutandis. The main object of a master is the acquisition of slave children.
(28) And his master in return desires to give him the satisfaction of marrying a virgin.
(29) This is illustrated anon.
(30) By her father (cf. Ex. XXI, 7 and 'Ar. 29b).
(31) V. Deut. XXII, 29 and Ex. XXII, 16.
(32) In case of violation or seduction.
(33) Na'arah (v. Glos.).
(34) Bogereth (v. Glos.).
(35) That IN THE CASE OF A MINOR . . . NO FINE IS INCURRED.
(36) V. p. 226, n. 8.
(37) As a sign of puberty.
(38) V. p. 226, n. 10.
(39) Tosef. Keth. II. Our Mishnah (v. p. 226, n. 13) must consequently represent the ruling of R. Meir.
(40) But this is contrary to the Pentateuchal law (cf. p. 226, n. 8).
(41) From the age of three years and one day until she grows two hairs. under the first age limit, no fine, and above the second age limit until she becomes adolescent, only a fine is incurred.
(42) V. supra p. 226, n. 13).
(43) The girl through whom the fine is incurred.
(45) So lit., Deut. XXII, 29.
(46) Lit., 'who causes herself to be'. תהיה implying action on the part of the girl herself independent of that of any other person. A minor whose marriage is dependent on the will of her father is consequently excluded from the text.
(47) How in view of the implication of the text could they maintain that through a minor a fine is incurred?
(48) נער (So MS.M. and Bah). Cur. edd. נערה.
(49) Since M.T. reads נער though the kere is נערה (damsel).
(50) [The Rabbis explain this form as an example of the epicene use of a noun; cf. GR. ** and GR. **, child].
(51) The deduction attributed to Resh Lakish.
(52) The deduction from נער, נערה.
(53) Deut. XXII, 19.
(54) From the fine of a hundred shekels of silver (v. ibid.).
(55) נערה 'damsel'.
(56) With a 'he' at the end, in order to exclude the minor. [This is the only place in the Pentateuch where the word is written plene].
(57) Why the fine of a hundred shekels is not payable in respect of a minor.
(58) Deut. XXII, 20f.
(59) A minor would consequently have been excluded even if na'ar had been written.
(60) Where a minor, as has been proved, must be excluded.
Talmud - Mas. Kethuboth 41a
MISHNAH. HE WHO DECLARES, 'I HAVE SEDUCED THE DAUGHTER OF SO-AND-SO' MUST PAY COMPENSATION FOR INDIGNITY AND BLEMISH ON HIS OWN EVIDENCE BUT NEED NOT PAY THE STATUTORY FINE.1
HE WHO DECLARES, 'I HAVE STOLEN' MUST MAKE RESTITUTION FOR THE PRINCIPAL ON HIS OWN EVIDENCE BUT NEED NOT REPAY DOUBLE,2 FOURFOLD3 OR FIVEFOLD.3
[HE WHO STATES,] 'MY OX HAS KILLED SO-AND-SO' OR 'THE OX OF SO-AND-SO' MUST MAKE RESTITUTION4 ON HIS OWN EVIDENCE. [IF HE, HOWEVER, SAID.] 'MY OX HAS KILLED THE BONDMAN OF SO-AND-SO'5 HE NEED NOT MAKE RESTITUTION ON HIS OWN EVIDENCE.6
THIS IS THE GENERAL RULE: WHOEVER PAYS MORE THAN THE ACTUAL COST OF THE DAMAGE HE HAS DONE7 NEED NOT PAY IT ON HIS OWN EVIDENCE.
GEMARA. Why did not he8 include 'I have violated'?9 - He implied that this was unnecessary: It was unnecessary [to state that if a man declared,] 'I have violated', in which case he casts no reflection on the girl's character10 , that he must pay compensation for indignity and blemish on his own evidence,11 but [if a man declared.] 'I HAVE SEDUCED', in which case he does cast a reflection on her character,12 it might have been assumed that he does not pay [such compensation] on his own evidence,13 hence he informs us [that he does].
Our Mishnah does not agree with the following Tanna. For it was taught: R. Simeon b. Judah stated in the name of R. Simeon, [Compensation for] indignity and blemish also a man does not pay on his own evidence14 because he15 cannot be trusted16 to tarnish the character of another man's daughter.
Said R. Papa to Abaye: What [is the ruling if] she is satisfied?17 - It is possible that her father might not be satisfied. And what if her father also is satisfied? - It is possible that the members of her family might not be satisfied. What if the members of her family are also satisfied? - It is impossible that there should not be one somewhere18 who is not satisfied.
HE WHO DECLARES, 'I HAVE STOLEN' MUST MAKE RESTITUTION FOR THE PRINCIPAL etc. It was stated: [In respect of liability for] half damages.19 R. Papa ruled: It is a civil obligation,20 but R. Huna the son of R. Joshua ruled: It is penal.21 'R. Papa ruled: It is a civil obligation', for he is of the opinion that cattle as a rule22 cannot be presumed to be safe.23 Justice, therefore, demands that the owner should make full restitution,24 but the All-Merciful has shown mercy towards him25 because his cattle have not yet become mu'ad.26 'R. Huna the son of R. Joshua ruled: It is penal', for he is of the opinion that cattle as a rule are presumed to be safe.27 Justice. therefore, demands that the owner should make no restitution at all,28 but it was Divine Law29 that imposed a fine upon him in order that he should exercise special care over his cattle.30
(Mnemonic:31 He damaged what, and killed a general rule.)
We have learned: The plaintiff and the defendant32 are involved33 in the payment.34 Now according to him who holds that liability for half damages is a civil obligation35 it is perfectly correct [to say] that the plaintiff is involved in the payment,36 but according to him who maintains that liability for half damages is penal [it may well be asked:] If he receives that which [in strict justice] is not his due how can he be involved37 in the payment?38 - It39 may apply40 only to [a loss caused by] a decrease in the value of the carcass.41 [But have we not] already learned elsewhere [about] the decrease in the value of the carcass? 'To compensate for the damage'42 means that the owner43 must dispose of the carcass?44 - One [of the statements deals] with a tam45 and the other with a mu'ad.45 And [both statements are] required. For if [that relating to] a tam only had been made it might have been presumed [to apply to that alone] because the animal has not yet become mu'ad but not to a mu'ad since [in the latter case the owner] has been duly warned. And if [only the statement relating to] a mu'ad had been made it might have been assumed [to apply to that case alone] because the owner pays full compensation46 but not [to that of] a tam.47 [Both rulings were consequently] required.
Come and hear: What is the difference [in the case of compensation for damages] between a tam45 and a mu'ad?45 - In the case of a tam half damages are paid out of its own body,48 while in the case of a mu'ad full compensation is paid out of the best of the [defendant's] estate.49 Now if50 it were the case [that liability for half damage51 is penal] why was it not also stated52 that in the case of a tam no compensation is paid merely on one's own evidence53 whereas in the case of a mu'ad54 compensation is paid even on one's own55 evidence?56 - He57 recorded [some distinctions]58 and omitted others. What [else, however], did he omit [that should justify the assumption] that he omitted this distinction also.59 - He omitted [also the payment of] half kofer.60 If [the only point not mentioned] is that of61 half kofer it is no omission,
(1) Prescribed in Ex. XXII, 16, because one's own admission to having committed an act for which a fine is prescribed cannot tender one liable to pay it (v. B.K. 75a).
(2) V. Ex. XXII, 3.
(3) V. ibid. XXI, 37.
(4) V. ibid. XXI, 30, 35.
(5) The fine for which is (v. ibid. 32) thirty shekels.
(6) Cf. supra n. 4.
(7) When evidence against him is available.
(8) The Tanna of our Mishnah.
(9) In addition to 'I have seduced'.
(10) Since the outrage was not her fault but her misfortune.
(11) As the girl's character is not called in question the man's admission may well be regarded as a true confession to satisfy his conscience and as a desire to make amends.
(12) Cf. supra note 3 mutatis mutandis.
(13) I. e., his compensation is to be refused on the ground that his word which casts a reflection on the girl's reputation cannot be accepted without valid proof.
(14) Cf. supra n. 1.
(15) In the absence of other valid evidence.
(16) Lit., 'not all from him'.
(17) To put up with the reflection in order to gain her compensation.
(18) Lit., 'in a province of the sea', 'a country beyond the sea'.
(19) Restitution made for damage done by the 'Born' (v. B.K. 2b) of a tam (v. Glos).
(20) And is consequently payable on one's own evidence.
(21) Lit., 'fine', and is payable only where valid evidence, other than the admission of the offender, is available (cf. supra p. 228, n. 5).
(22) Unless their owner takes special care to check them.
(23) They might at any moment do some damage. Hence it is the duty of their owner to hold them under control.
(24) For any damage done by his cattle, since such damage is the result of his carelessness (v. supra n. 2).
(25) By releasing him from half of the payment.
(26) 'Cautioned' (v. Glos). But whatever he does pay is a civil liability (v. supra p. 229. n. 13).
(27) And no special care on the part of the owner is called for.
(28) Since it was not his fault that his cattle had done the damage.
(29) By ordering him to pay half damages.
(30) Cf. B.K. 15a.
(31) Containing key words occurring in the following four citations from which objections are raised against the ruling of R. Huna the son of R. Joshua.
(32) Lit., 'he who suffered, and he who caused the damage'.
(33) This is now assumed to imply 'loss'.
(34) B.K. 14b.
(35) And that the plaintiff should in strict justice be entitled to full compensation.
(36) Since he loses (v. supra n. 14) a half of which is really his due.
(37) Cf supra n. 12.
(38) This an objection arises against R. Huna the son if R. Joshua.
(39) The statement that the plaintiff also is 'involved in the payment'.
(40) Lit., 'is required'.
(41) Between the date on which the animal was killed and that on which the action was tried. Such loss is borne By the plaintiff, the defendant paying only half the difference between the value of the live animal and the carcass as it was on the day of the accident.
(42) B.K. 9b.
(43) Of the animal that was killed, i.e., the plaintiff.
(44) I. e., he must take it in part payment of his compensation, and if its value decreases it is obvious that he must beat the loss (cf. p. 230, n. 20). What need then was there to state the same ruling twice?
(45) V. Glos,
(46) And, therefore, no further liability is imposed upon him.
(47) Where the defendant pays only half of the damages and may, therefore, be expected to beat the loss whenever the value of the carcass had decreased.
(48) I. e., of the tort-feasant animal. The defendant's estate remains exempt from all liability.
(49) Mishnah, B.K. 26b.
(50) So according to Rashal and the parallel passages in B.K. 15a. Cur. edd. omit 'if . . . case'.
(51) In the case of a tam (cf. supra p. 229, n. 22).
(52) As another distinction between a tam and a mu'ad.
(53) Cf. supra p. 229, n. 14.
(54) Where the liability is civil.
(55) Cf. supra p. 229, n. 13 and text.
(56) Cf. supra p. 230, n. 17.
(57) The Tanna of this Mishnah.
(58) Between a tam and a mu'ad,
(59) In an enumeration the Tanna would not have omitted just one point.
(60) 'Ransom' (v. Ex. XXI, 30) V. Glos. In the case of manslaughter a mu'ad pays full compensation while a tam does not pay even half (cf. B.K. 41a).
(61) Lit., on account of'.
Talmud - Mas. Kethuboth 41b
since that [Mishnah] may represent the view of1 R. Jose the Galilean who ruled that [in the case of] a tam half kofer is paid.2
Come and hear: [A MAN WHO SAID.] 'MY OX KILLED SO-AND-SO' OR 'THE OX OF SO-AND-SO MUST PAY COMPENSATION ON HIS OWN EVIDENCE. Now does not [this statement deal] with a tam?3 - No; with a mu'ad. What, however, [would be the law] in the case of a tam? Would no liability be established by one's own evidence? Then instead of stating in the final clause, '. . . THE BONDMAN OF SO-AND-SO HE NEED NOT MAKE RESTITUTION ON HIS OWN EVIDENCE, could not a distinction have been drawn in the very same case, thus: 'This4 applies only to a mu'ad but in respect of a tam no liability is incurred by one's own evidence'? - The entire [Mishnah prefers to] deal with a mu'ad.5
Come and hear: THIS IS THE GENERAL RULE: WHOSOEVER PAYS MORE THAN THE ACTUAL COST OF THE DAMAGE HE HAS DONE NEED NOT PAY ON HIS OWN EVIDENCE, from which it follows,6 [does it not, that if the payment is] less than the cost of the damage,7 one must pay compensation even on one's own evidence?8 Do not infer: '[But if payment is] less than the cost of the damage [one must pay . . . on one's own evidence]',7 but infer: '[If payment] corresponds to the actual amount of the damage one must pay compensation even on one's own evidence'. What, however, [would be the law if payment were] less than the amount of the damage?9 Would no liability be established by one's own evidence? Then10 why was it not stated, 'This is the general rule: Whoever does not pay an amount corresponding to the actual cost of the damage he has done pays no compensation on his own evidence', which would imply [that where compensation is] less or more11 [it is to be paid on one's own evidence]?12 - This is indeed a refutation.13
The law, however, [is that the liability for] half damage is penal. 'A refutation' [of a ruling]14 and [yet it is] the law? - Yes; for the sole basis of the refutation15 was that16 the statement17 did not run, '[whoever does not pay an amount] corresponding to the actual cost of the damage he has done'; [but such a principle]18 was not regarded by him19 as exactly accurate, since there is the liability for half damages [in the case of the damage done by] pebbles20 Concerning which there is an halachic tradition that the liability is civil.21 On account of this consideration he did not adopt [the form of the expression suggested].
Now that you have laid down that liability for half damage is penal, the case of a dog that devoured lambs or that of a cat that devoured big hens is one of unusual occurrence22 and no distress is executed in Babylon.23 If, however, they24 were small the occurrence is a usual25 one and distress is executed.26 Should the plaintiff,26 however, seize [the chattels of the defendant]27 they are not to be taken away from him.28 Furthermore, if29 he pleads. 'Fix for me a date [by which the defendant must come with me] to the Land of Israel,'30 such date must be fixed for him, and if [the defendant] does not go with him he must be placed under the ban. In any case,31 however, [the defendant] is to be placed under the ban;32 for he is told, 'Abate your nuisance',in accordance with a dictum of R. Nathan. For it was taught:33 R. Nathan said, Whence is it derived that a man may not breed a bad dog in his house nor place a shaking ladder in his house? [From Scripture] where it is said, That thou bring not blood upon thine house.34
MISHNAH. IF A GIRL35 WAS SEDUCED [THE COMPENSATION FOR] HER INDIGNITY AND BLEMISH AS WELL AS THE STATUTORY FINE BELONG TO HER FATHER36 [TO WHOM BELONGS ALSO THE COMPENSATION FOR] PAIN IN THE CASE OF ONE WHO WAS VIOLATED. IF THE GIRL'S ACTION WAS TRIED37 BEFORE HER FATHER DIED [ALL THE FORMS OF COMPENSATION] ARE DUE TO HER FATHER,38 IF HER FATHER [SUBSEQUENTLY] DIED THEY ARE DUE TO HER BROTHERS.39 IF HER FATHER, HOWEVER, DIED BEFORE HER ACTION WAS TRIED THEY40 ARE DUE TO HER.41 IF HER ACTION WAS TRIED BEFORE SHE BECAME ADOLESCENT42 [ALL FORMS OF COMPENSATION] ARE DUE TO HER FATHER; IF HER FATHER [SUBSEQUENTLY] DIED43 THEY ARE DUE TO HER BROTHERS.39 IF, HOWEVER, SHE BECAME ADOLESCENT BEFORE HER ACTION COULD BE TRIED THEY ARE DUE TO HER.44 R. SIMEON RULED.' IF HER FATHER DIED45 , BEFORE SHE COULD COLLECT [THE DUES] THEY BELONG TO HER.46
(1) Lit., 'this (is) according to whom?'
(2) V. B.K. 26a. The distinction mentioned (v. supra n. 1) does not, therefore, apply. The other distinction also, viz, that between full kofer for a mu'ad and half kofer for a tam, cannot be regarded as an omission, since it is included in the first clause which lays down that in the case of a tam half damages are paid and in that of a mu'ad full compensation is paid, a ruling which applies to kofer as well as to damages. Since there is no other omission, this Mishnah proves that the liability for half damage is civil as supra.
(3) And since liability is established by one's own evidence such liability cannot be penal but civil. Cf. supra 230. n, 17.
(4) That liability is established by one's own admission.
(5) To shew that even in respect of a mu'ad there is a case where no liability is incurred By one's own evidence.
(6) Lit., 'but'.
(7) Such as half damage payable in the case of a tam.
(8) V. supra note 5.
(9) V. p. 232. n. 9,
(10) Instead of laying down a rule from which a wrong inference might be drawn.
(11) Than the actual cost of the damage.
(12) Since, however, the rule was not stated in this form it follows that liability for less than the actual cost of the damage (v. supra n. 1). is not payable on one's own admission. An objection thus arises against R. Huna the son of R. Joshua (cf. supra p. 231, n. 5),
(13) The ruling, therefore, that half damages payable in the case of a tom is penal, stands refuted.
(14) Cf. supra nn. 4 and 5.
(15) Lit., 'what is the reason that it was refuted?'
(16) Lit., 'because',
(17) In out Mishnah.
(18) Which would have excluded all cases of payment for half damages.
(19) The Tanna of this Mishnah,
(20) Kicked up by an animal (v. B.K. 17a and cf, 3b).
(21) Despite the fact that the compensation is less than the actual damage.
(22) And thus coming under the category of damage by the 'horn' (v. B.K. 2b) which is also one of unusual occurrence.
(23) Since penal liabilities may be imposed in Palestine only by a judge who is specially ordained for the purpose (mumhe, v. Glos). No such judges lived in Babylon.
(24) The lambs or the hens.
(25) Falling under the category of damage by the 'tooth' (cf. B.K. 2b) which is also one of usual occurrence and compensation in which case is a civil liability.
(26) Even in Babylon.
(27) [So Rashi. R. Tam: the animal that caused the damage (Tosaf)].
(28) And he retains an amount corresponding to half the damage.
(29) Where no chattels were seized.
(30) Cf. supra p. 233. n. 15.
(31) Whether the plaintiff wishes the case to be tried in the Land of Israel or not.
(32) 'Until he abates the nuisance'. (So B.K. 15b).
(33) B.K. 15b, 46a.
(34) Deut. XXII, 8, referring to the duty of removing a cause of danger though one is not directly responsible for any fatal result.
(35) Na'Arah (v. Glos.).
(36) Cf. Mishnah supra 39a and notes.
(37) Lit.,'she stood before the law.
(38) In accordance with Deut. XXII. 20.
(39) As heirs of their father. Once the court had ordered payment, the amount in question is considered as the 'actual property' of the father which is inherited by his sons, v. infra 43a.
(40) Being still penal liabilities.
(41) V. infra 43a. Var. lec. adds, 'R. Simeon ruled: If her father died before she could collect (the dues) they belong to her'.
(42) A bogereth (v. Glos.).
(43) Wether before or after she became adolescent.
(44) Because at that age she is no longer under her father's control.
(45) Var. lec.; 'If she became adolescent'.
(46) Because the fine does not become the 'actual property' of the father by mere decision of the court, (cf. supra notes 5 and 7).
Talmud - Mas. Kethuboth 42a
HER HANDIWORK, HOWEVER, AND ANYTHING SHE FINDS EVEN IF SHE HAD NOT COLLECTED [THE PROCEEDS]. BELONG TO HER BROTHERS IF HER FATHER DIED.1
GEMARA. What [new law] does he teach us?2 Have we not [already] learned: The seducer pays three forms [of compensation] and the violator four. The seducer pays compensation for indignity and blemish as well as the statutory fine, and the violator pays an additional [form of compensation] in that he pays for the pain?3 - It was necessary [to teach us2 that the compensation is due] TO HER FATHER.4 [But] that [the compensation is due] to her father is also obvious, since a seducer has to pay for it? For if [it were to be given] to herself [the objection could be raised], why should the seducer pay [to her when] he acted with her consent?5 - It was necessary [to tell us2 of the case where] HER ACTION WAS TRIED [which is a point in] dispute between R. Simeon and the Rabbis.6 We have learned elsewhere: [If a man said to another] 'You have violated or seduced my daughter', and the other replied. 'I did not violate or seduce her'. 'I adjure you' [said the first] and the other responded. 'Amen', but afterwards admitted his guilt, he is liable.7 R. Simeon, however, exempts him, for no fine is paid on one's own admission.8 They,9 however, said to him: Though no man pays a fine on his own admission he nevertheless pays compensation for indignity and blemish10 on his own admission.11 Abaye enquired of Rabbah:12 What is the law according to R. Simeon13 where a man said to another, 'You have violated or seduced my daughter, and I have brought you to law and you were ordered to pay me [a stipulated sun, of] money' and the other replied. 'I have neither violated nor seduced her, nor have you brought me to law nor have I been ordered to pay you any money', and after he had taken an oath14 he admitted his guilt? Is [his liability], since his action had been tried,15 civil16 and he consequently incurs thereby a sacrifice for [having taken a false] oath, or is it possible that, though his action had been tried, his liability17 is still regarded as penal?18 - The other replied: It is a civil liability and he incurs thereby the obligation to bring a sacrifice for a false oath.19 He20 pointed out to him21 the following objection: R. Simeon, said, As it might have been presumed that if a man said to another, 'You have violated or seduced my daughter' and the other replied 'I have neither violated nor seduced her', [or if the first said]. 'Your ox has killed my bondman' and the other replied, 'He did not kill him', or if a bondman said to his master,22 'You have knocked out my tooth' or 'You have blinded my eye'.23 and he replied. 'I have not knocked it out' or 'I have not blinded it' and [the defendant] took the oath24 but afterwards admitted his liability it might have been presumed that he is liable,25 hence It was explicitly stated in Scripture, And he deal falsely with his neighbour23 a matter of deposit, or of pledge, or of robbery, or have oppressed his neighbour; or have found that which was lost, and deal falsely therein, and swear to a lie,26 as these are distinguished by the characteristics of being civil cases so must all [other cases where similar liabilities27 may be incurred be distinguished by the characteristics] of being civil. These, therefore, are excluded [from liability]28 since they are penal.
(1) Unlike compensation. Which is not due to their father before the action had been tried and decided in his daughter's favour, these are his due from the moment they come into existence. As they are consequently his 'actual property' he is entitled to transmit them to his heirs.
(2) In our Mishnah.
(3) V. 39a for notes.
(4) This was not mentioned in the Mishnah cited.
(5) If then it is also obvious that the compensation is to be paid to her father what need was there for our Mishnah?
(6) The first Tanna (v. our Mishnah).
(7) To pay the actual amount due as well as an additional fifth (v. Lev. V, 24). and also to bring a guilt-offering.
(8) As the man would have been exempt from the penal liabilities if he had himself admitted the offence in the absence of any other evidence, he must also be exempt from all liabilities (v. supra note 6) in the case of a denial. For it was not a civil liability (mamon), but a penal liability (kenas) that he had denied.
(9) The Rabbis who differed from him.
(10) Which are not kenas but mamon.
(11) V. Shebu. 36b.
(12) Rabbah b. Nahmani who was his teacher.
(13) Who (according to the Mishnah of Shebu. cited) exempts one from liability in the case of a denial.
(14) In confirmation of his denial.
(15) And he was ordered to pay.
(16) [Having been ordered to pay, he can no longer secure exemption by his own admission; his liability is now considered of the mamon class (Rashi)].
(17) Since it was originally penal.
(18) [Var. lec. add: 'and he who confesses to a liability for a fine is exempt'. On this reading, Abaye's question was also whether his own admission, after the action had been tried, exempts him from payment; v. Tosaf.]
(19) [Car. lec. omit: 'and he incurs . . . false oath'. In that case Rabbah's answer is given in general terms. He merely replied, 'it is a civil liability', which for the present is taken to mean that it is so both in respect of an obligation to an oath and to liability to payment; cf. n. 6, v. Tosaf.]
(22) Lit., 'his bondman said to him'.
(23) In compensation for which he demands his freedom (v. Ex. XXI, 26f). Such compensation is also deemed to be penal, because a slave was regarded as his master's chattels.
(24) In confirmation of his denial.
(25) V. supra p. 236, n. 6.
(26) Lev. V, 21f.
(27) V. supra p. 236, n. 6.
(28) The instances enumerated by R. Simeon.
Talmud - Mas. Kethuboth 42b
Does not [this ruling refer to a man] whose action had already been tried?1 - No, [it deals] with one whose action had not yet been tried.2 But, surely, since the first clause deals with the case of a man whose action had been tried, would not the final clause also deal with such a case? For in the first clause it was stated: 'I only knew [that liability3 is incurred in] cases where compensation is paid for the actual value only, whence, however, is it deduced that [such liability is also incurred in] cases where the payment is double,4 fourfold5 or fivefold5 and [in those of] the violator, the seducer and the calumniator?6 From Scripture which explicitly stated, And commit a trespass,7 [implying that all such are] included'. Now, how is this statement to be understood? If [it is one referring to] a man whose action had not yet been tried [the objection could be raised:] Is double compensation payable in such circumstances?8 It is obvious, therefore, that [the reference is to one] whose action had already been tried. And since the first clause deals with one whose action had been tried, the final clause also must deal, must it not, with one whose action had already been tried?9 - The other replied: I could have answered you that the first clause deals with one whose action had already been tried, and the final clause with one whose action had not yet been tried and that the entire Baraitha represents the view of R. Simeon, but I would not give you forced interpretations, for, were I to do so, you might retort: Then either the first clause should begin with 'R. Simeon said' or the final clause should conclude with 'these are the words of R. Simeon'.10 The fact, however, is that the entire [Baraitha] refers to one whose action had already been tried, the first clause being the view of the Rabbis and the final clause that of R. Simeon, and I must agree with you in regard to the sacrifice for [taking a false] oath,11 for the All-Merciful has exempted him12 [as may be deduced] from [the text] And he deal falsely.13 When I, however, said, that 'It is a civil liability' [I was only implying that a man had the right] to transmit such a liability as an inheritance to his sons.14
Again he15 raised an objection against him:16 R. SIMEON RULED, IF HER FATHER DIED BEFORE SHE COULD COLLECT [HER DUES] THEY BELONG TO HER. Now if you maintain [that such compensation] is a civil liability in respect of being transmitted as an inheritance to one's sons, why should the compensation belong to her? Should it not, in fact, belong to the brothers? - This subject, said Raba, both Rabbah and R. Joseph found difficult for twenty-two years17 and no solution was forthcoming. It was only when18 R. Joseph assumed the presidency of the academy19 that he solved it: There20 it is different [from other penal liabilities] because Scripture said, Then the man that lay with her shall give unto the damsel's father fifty [shekels of] silver21 [which implies that] the Torah has not conferred upon the father the right of possession before the money had actually been handed to him; when Rabbah, however, said, 'It is a civil liability in respect of being transmitted as an inheritance to his sons' he was referring to other penal liabilities.22 But then, in the case of a bondman it is written in Scripture, He shall give into their master thirty shekels of silver,23 would it here24 also [be maintained that] the Torah has not conferred upon the master the right of possession before the money had actually been handed to him? - The yitten25 cannot be compared26 with we-nathan.27 If so,28 [instead of deducing the exemption from sacrifice] from the Scriptural text, 'And he deal falsely',29 should not the deduction rather be made from 'Then . . . shall give'?30 - Raba replied: The text of 'And he deal falsely' was required in a case, for instance, where the girl's action had been tried and then she became adolescent31 and died, in which case32 when the father receives33 [the fine] he inherits [it] from her.34 If so,35 [however, how could it be said:] 'These, therefore, are excluded [from liability] since they are in fact penal' when they are in fact36 civil? - R. Nahman b. Isaac replied: [The meaning is], These are excluded since they were originally penal. He37 pointed out to him38 another objection: R. Simeon, however. exempts him, for no fine is paid on ones own admission.39 The reason then40 is because his action had not been tried41 but if it had been tried,42 in which case he does pay,43 even on his own admission,44 he would incur. also, would he not, [the obligation of bringing] a sacrifice for swearing [a false oath]?45 - R. Simeon argues with the Rabbis on the lines of their own view. According to my own view [he argued] the All-Merciful has exempted the man46 even after he had been tried [as may be deduced] from the text 'And deal falsely'.47 According to your view, however, you must at least admit that [the man is exempt] if he has not yet been tried, since the claim advanced against him is penal
(1) At one court where he was ordered to pay; and he now denies his liability before another court. As R. Simeon nevertheless exempts him from liability (cf. supra p. 236, n. 6), an objection arises against Rabbah.
(2) I.e., whose liability had not yet been legally established and the amount claimed is still 'kenas' and not 'mamon'.
(3) V. Supra p. 236. n. 6.
(4) V., Ex. XXII, 3.
(5) Ibid. XXI, 37.
(6) Lit., 'who brought out an evil name' (V. Deut. XXII, 19).
(7) Lev. V, 21, a general statement preceding the details enumerated in the following verses.
(8) certainly not. For, in the first instance, there is no proof that the mail had stolen the object and, secondly, even if he had stolen it he might yet make his own confession and thereby obtain exemption from the double payment.
(9) V. supra note 4.
(10) Why then did R. Simeon's name appear at the beginning of the final clause, thus indicating that only that, and not the first clause represented his view?
(11) That according to R. Simeon he is not liable to bring his sacrifice even if his action had already been tried.
(12) Even if his action had been previously tried.
(13) Lev. V, 22 (cf. supra p. 238, n. 1 and text).
(14) [And much more so in regard to liability to payment on self admission, cf. p. 237 n. 7, v. Shittah Mekubbezeth]. In this respect only is it deemed to be civil if the father died after the action had been tried, though the collection of the sum had not yet been effected.
(17) I.e., during all the period Rabbah occupied the presidency of the academy at Pumbeditha (cf. Ber. 64a and Hor. 14a).
(18) After the death of Rabbah.
(19) Cf. supra n. 8.
(20) The case of a fine for seduction or violation spoken of in our Mishnah.
(21) Deut. XXII, 29 emphasis on 'give'.
(22) [Cf. supra 237, n. 4). The whole passage is extremely difficult. Commentators explain that Rabbah had it on tradition that a penal liability becomes civil in respect of inheritance after action had been taken, and the whole discussion was to elucidate exactly the implications of this vague tradition; v. Tosaf. 42a, s.v. אמר].
(23) Ex. XXI, 32.
(24) Since the verb 'to give' was used.
(25) יתן which is used in Ex. XXI, 32.
(26) Lit., alone', 'is in a separate category'.
(27) ונתן (Perfect with waw consec.). The former indicates merely future action while the latter implies the pluperfect, 'he shall have given'.
(28) That deduction may be made from Deut. XXII, 29 to the effect that the fines of a violator and a seducer have a different legal status from that of other fines in that they remain penal even after the offender had been tried.
(29) Cf. supra p. 238, n. 1 and text.
(30) Cf. supra n. 8. While the text beginning 'And deal falsely' (Lev. V. 21) excludes only those liabilities which were originally penal but are not so now after the court had issued its ruling (v. supra 42a, ad fin.), the text of Then . . . shall give (Deut. XXII, 29) deals specifically with the fines of a violator and a seducer, laying down that so long as no collection of the fines had been effected, they remain penal even after the court had issued its ruling (v. Rashi and cf. Tosaf. a.l., s.v. אי). [Although the verse 'And deal falsely' is necessary for other penal liabilities, the fine of a violator should not have been included seeing that it belongs to a class by itself as is deduced from 'Then . . . shall give', v. Shittah Mekubbezeth].
(31) A bogereth. When the fine, according to R. Simeon (cf. supra p. 235. n. 11, and text), belongs to her.
(32) Lit., 'for there'.
(33) Lit., 'inherits'.
(34) And as far as he is concerned the liability, the payment of which had been ordered by the court, is no longer penal but civil. Hence the necessity for the text of 'And he deal falsely' to indicate that the defendant is nevertheless exempt from a sacrifice (cf. Tosaf. s.v. כי) because originally the liability was penal (v. Rashi).
(35) That the Baraitha (supra 42a) deals with a case where the action had already been tried and that the father inherits the fine from his daughter.
(36) Cf. supra n. 1.
(39) Mishnah cited supra 42a.
(40) Why the offender is exempt.
(41) Previously, before a court. For if it had been tried he could not subsequently make a voluntary admission that would exempt him.
(42) By the first court, and he was ordered to pay.
(43) On the ruling of the second court.
(44) The money involved being no longer penal but (on account of the ruling of the first court) civil.
(45) Though the sum involved was originally penal. A contradiction thus arises between this Mishnah and the Baraithas both of which speak in the name of R. Simeon.
(46) From the sacrifice for a false oath.
(47) Cf. supra 42a ad fin.
Talmud - Mas. Kethuboth 43a
and one who makes a voluntary admission in a penal case is exempt.1 But the Rabbis are of the opinion that the claim2 is [mainly] in respect of compensation for indignity and blemish.3 On what principle do they4 differ? - R. Papa replied: R. Simeon is of the opinion that a man would not leave that which is fixed5 to claim6 that which is not fixed,7 while the Rabbis hold the view that no man would leave a claim6 from which [the defendant] could not be exempt even if he made a voluntary admission8 and advance a claim9 from which he would be exempt10 if he made a voluntary admission. R. Abina enquired of R. Shesheth: To whom belongs the handiwork of a daughter who11 is maintained12 by her brothers?13 Are they14 in loco parentis and as in that case her handiwork belongs to her father so here also it belongs to her brothers; or [is it more reasonable that] they should not be compared to their father, for in his case she is maintained out of his own estate but here she is not maintained out of their estate?15 - He replied: You have learned about such a case: A widow is to be maintained out of the estate of [her deceased husband's] orphans, and her handiwork belongs to them.16 [But] are [the two cases in every way] alike? It may not be any satisfaction to a man that his widow should be liberally provided for,17 but he might well be pleased, might he not, that his daughter should?18 Does this19 imply that a man has preference for his daughter than for his widow? Surely. R. Abba said in the name of R. Jose:20 The relationship between21 a widow and her daughter, in the case of a small estate,22 has been put on the same level as that of the relationship between21 a daughter and her brothers. As in the case of the relationship between a daughter and her brothers, the daughter is maintained23 while the brothers can go begging at [people's] doors, so also in the case of the relationship between a widow and her daughter, the widow is maintained and the daughter can go begging at [people's] doors;24 [which shews, does it not, that the widow is given preference]? - As regards [provision against] degradation25 a man gives preference to his widow;26 as regards liberal provision27 he gives preference to his daughter.28
R. Joseph objected: HER HANDIWORK, HOWEVER, AND ANYTHING SHE FINDS, EVEN IF SHE HAS NOT COLLECTED [THE PROCEEDS], BELONG TO HER BROTHERS IF HER FATHER DIED. The reason29 then is30 that [they originated during] the lifetime of their father, but [if they originated] after his death [they would belong] to herself. Does not [this refer to a daughter] who is maintained?31 - No; [this is a case of one] who is not maintained.32 If she is not maintained, what need is there to state [such a case]?33 For even according to him who ruled that a master is entitled to say to his bondman, 'Work for me and I will not maintain you'34 the ruling applies only to a Canaanite bondman concerning whom 'With thee' was not written in Scripture, but not to a Hebrew slave concerning whom with thee35 was written in Scripture. How much less [then would such a ruling apply] to one's daughter? - Rabbah b. 'Ulla replied: It36 was only required in the case of a surplus.37 Said Raba: Did not such a great man as R. Joseph know that [sometimes there may] be a surplus when he raised his objection?38 The fact however is, Raba explained, that R. Joseph raised his objection from our very Mishnah. For it was stated, HER HANDIWORK, HOWEVER, AND ANYTHING SHE FINDS, EVEN IF SHE HAS NOT COLLECTED [THE PROCEEDS]; but from whom [it may be asked] is she to collect anything she finds? Consequently it must be conceded that it is this that was meant: HER HANDIWORK is like ANYTHING SHE FINDS; as anything she finds belongs to her father39 [if she finds it] during his lifetime, and to herself [if she finds it] after his death40 so also in the case of her handiwork, [if it was done] during the lifetime of her father it belongs to her father [but if it was done] after his death it belongs to herself. Thus it may be concluded [that the ruling of R. Shesheth stands refuted].41 So it was also stated:42 Rab Judah ruled in the name of Rab, The handiwork of a daughter who is maintained by her brothers belongs to herself. Said R. Kahana: What is the reason? Because it is written in Scripture And ye make them an inheritance for your children after you,43 [implying]: 'them'44 [you may make an inheritance] 'for your children', but not your daughters for your children. This tells us that a man may not transmit his authority45 over his daughter to his son.46 To this Rabbah demurred: It might be suggested that the Scriptural text47 speaks of [payments in connection with] the seduction of one's daughter, fines and mayhem!48 And so did R. Hanina learn: The Scriptural text47 speaks of [payments in connection with] the seduction of one's daughter, fines and mayhem!49 Is not mayhem injury involving bodily pain?50 - R. Jose b. Hanina replied:
(1) Cf. supra p. 236, n. 7.
(2) Of the father, in the Mishnah of Shebu. 36b, cited supra 42a.
(3) Which are civil liabilities.
(4) R. Simeon and the Rabbis.
(5) The statutory fine, prescribed in Deut. XXII, 29.
(6) Compensation for indignity and blemish.
(7) Since it varies according to the status of each individual.
(8) Cf. p. 241, n. 17.
(9) Cf. supra n. 1.
(10) Since it is penal.
(11) In accordance with the terms of her mother's kethubah (v. Glos.); cf. infra 52b.
(12) Until she is married. (V. infra 52b).
(13) The sons of her deceased father.
(14) Since they maintain her.
(15) But of that which their father had left them (cf. supra nn. 7 and 8).
(16) Mishnah, infra 59b. As the handiwork of a widow who is entitled to maintenance by the terms of her kethubah belongs to the sons of the deceased, so obviously does that of a daughter who is also maintained by virtue of a claim in the kethubah of her mother. (Cf. supra n. 7).
(17) By retaining her handiwork for herself. הרװחה, lit., 'relief', 'comfort'. (Rt. רװח or רוח, lit., 'to be far', 'to be placed wide apart', hence 'to have space or room to live in comfort'.)
(18) Her handiwork may, therefore, belong to her.
(19) The suggestion just made.
(20) The parallel passage in B.B. 140b reads, 'Assi'.
(21) Lit., 'at', 'at the side of'.
(22) Which does not suffice for the maintenance of the dependents of the deceased man for a period of twelve months (v. B.B. 139b).
(23) Out of the estate of the deceased.
(24) B.B. 140b.
(26) He feels more humiliation when his widow goes begging than when his daughter does so.
(27) Cf. supra p. 242, n. 13.
(28) It is a father's wish, as a rule, that his daughter shall be enabled to save up some money for her marriage dowry.
(29) Why these BELONG TO HER BROTHERS.
(30) As in the case of COMPENSATION and FINE spoken of in the same Mishnah.
(31) Out of her father's estate by her brothers. How then could R. Shesheth rule that the handiwork of a daughter in such circumstances belongs to her brothers?
(32) Where the deceased, for instance, left no property.
(33) I.e., what need was there for the author of our Mishnah to provide a text from which we are to infer that a daughter's handiwork and anything she finds that originated after her father's death belong to herself?
(34) Git. 12a.
(35) Deut. XV, 16, He fareth well with thee.
(36) The text of our Mishnah from which the inference mentioned is to be drawn (v. p. 243 n. 11).
(37) Sc. if the daughter's earnings exceeded the cost of her maintenance. Our Mishnah was necessary for the purpose of the inference (cf. p. 243 n. 11) that the surplus also belongs to herself.
(38) Of course he knew and, therefore, he could not possibly have raised an objection in the form attributed to him.
(39) In return for her board. A father is under no legal obligation to maintain his daughter (v. infra 49a) and it was, therefore, enacted that in recognition of his consideration for her all she finds shall belong to him (v. B.M. 12b).
(40) Her father's heirs can lay no claim to her finds because the board they provide for her is not an act of kindness on their part but a legal obligation, cf. supra p. 243, n. 7.
(41) Cf. supra p. 243. n. 9.
(42) By Amoraim.
(43) Lev. XXV, 46.
(44) Canaanite bondmen.
(45) Lit., 'privilege', 'advantage'.
(46) Hence the ruling that the handiwork of a daughter, though it belongs to her father, does not belong to her brothers.
(47) Lev. XXV, 46, from which the ruling mentioned (v. supra p. 244, n. 11) has been deduced.
(48) Assault involving bodily injury. V. infra n. 3.
(49) All of which are unusual income and cannot be regarded as an income that brothers might properly expect. Handiwork, however, which may normally be expected, the brothers may justly expect from their sister in return for the maintenance with which they provide her.
(50) Compensation for which is not due even to her father (v. B.K. 87b). What need then was there to exclude his heirs?
Talmud - Mas. Kethuboth 43b
The wound [may be supposed to] have been made in her face1 . Rab2 Zera stated in the name of R. Mattena who had it from Rab:
(others assert [that it was] Rabbi2 Zera who stated in the name of R. Mattena who had it from Rab): The handiwork of a daughter who is maintained by her brothers belongs to herself, for it is written in Scripture, And ye make them an inheritance for your children after you3 [implying]: 'Them'4 [you may make an inheritance] 'for your children', but not your daughters for your children. This tells us that a man may not transmit his authority over his daughter to his son.5 Said Abimi b. Papi to him: Shakud6 made this statement.7 Who is Shakud? - Samuel. But, surely, was it not Rab who made this statement? - Read: Shakud also made this statement. Mar the son of Amemar said to R. Ashi, Thus the Nehardeans have laid down: The law is in agreement with the ruling of R. Shesheth.8 R. Ashi [however] said: The law is in agreement with Rab.9 And the law is to be decided in agreement with the view of Rab.
MISHNAH. IF A MAN GAVE HIS DAUGHTER10 IN BETROTHAL AND SHE WAS DIVORCED, [AND THEN] HE GAVE HER [AGAIN] IN BETROTHAL AND SHE WAS LEFT A WIDOW, HER KETHUBAH11 BELONGS TO HIM.12 IF HE GAVE HER IN MARRIAGE AND SHE WAS DIVORCED [AND THEN] HE GAVE HER [AGAIN] IN MARRIAGE AND SHE WAS LEFT A WIDOW, HER KETHUBAH13 BELONGS TO HER.14 R. JUDAH SAID: THE FIRST15 BELONGS TO HER FATHER.16 THEY,17 HOWEVER, SAID TO HIM: HER FATHER, AS SOON18 AS HE GIVES HER IN MARRIAGE, LOSES ALL CONTROL OVER HER.19
GEMARA. The20 reason21 is that when HE GAVE HER IN MARRIAGE [the first time] SHE WAS DIVORCED [and that when] HE GAVE HER [AGAIN] IN MARRIAGE, SHE WAS LEFT A WIDOW [for the first time],22 but if she had been left a widow twice23 she would not have been fit to marry again. The Tanna24 has thus indirectly laid down an anonymous ruling in agreement with Rabbi who holds that if [a thing has happened] twice presumption is established.25 R. JUDAH SAID: THE FIRST BELONGS TO HER FATHER. What is R. Judah's reason? - Both Rabbah and R. Joseph explained: Since her father has acquired the right to it26 at the time of the betrothal.27 Raba objected: 'R. Judah ruled that the first28 belonged to her father; R. Judah nevertheless admitted that if a father gave his daughter in betrothal while she was still a minor and she married after she had attained adolescence he has no authority over her'.29 But why? Might it not here also be argued,30 'Since her father has acquired the right to it at the time of the betrothal'?31 The fact, however, is that if any statement [in the nature mentioned] has at all been made it must have been made in the following terms:32 Both Rabbah and R. Joseph explained: Because it33 was written while she was still under his authority.34 As to the recovery [of a kethubah],35 from which date may distraint be effected?36 - R. Huna replied: The hundred37 or the two hundred38 from the date of the betrothal39 and the additional jointure40 from that of the marriage.41 R. Assi, however, replied: The former as well as the latter [may be distrained upon only] from the date of the marriage.42 But could R. Huna, however, have given such a ruling?43 Has it not been stated: If a wife produced against her husband two kethuboth, one for two hundred, and one for three hundred zuz, she may, said R. Huna, distrain from the earlier date if she wishes to collect the two hundred zuz [but if she desires to collect the] three hundred zuz she may distrain from the later date only. Now if the ruling were as stated44 she should be entitled, should she not, to distrain to the extent of two hundred zuz from the earlier date and to that of one hundred from the later date? - But [even] according to your conception [it might equally be objected why] should she [not] distrain for all the five hundred zuz, two hundred from the earlier date and three hundred from the later date? What then is the reason why she cannot distrain for all the five hundred? [Obviously this:] Since the man did not write in her favour,45 'I willingly added to your credit three hundred zuz to the two hundred' he must have meant to imply: 'If you desired to distrain from the earlier date you would recover [no more than] two hundred, and if you desired to distrain from the later date you would receive three hundred'.
(1) As an exposed wound decreases her value, compensation is due to her father, since it is he who suffers the loss.
(2) Zera traveled from Babylon to Palestine where he was ordained by R. Johanan and had the title of Rabbi conferred upon him. His former title was only Rab. The following statement was made by him, according to the first reading, before, and according to the second reading after his ordination.
(3) Lev. XXV, 46.
(4) Canaanite bondmen.
(5) Cf. supra p. 244, n. 11.
(6) שקוד 'careful speaker' (cf. Rashi a.l.), 'industrious scholar' (Jast.) 'studious' (Aruk).
(7) The ruling and deduction reported by R. Zera.
(8) V. supra p. 242, n. 12 and text.
(9) In opposition to R. Shesheth.
(10) While she was a minor or a na'arah (v. Glos.).
(11) Of the second, as well as that of the first betrothal.
(12) Because the income of a daughter under the state of bogereth (V. Glos.) belongs to her father.
(13) Whether of the first or the second marriage.
(14) Because a father's control over his daughter, even if she is a minor, ceases as soon as he gives her in marriage; and since the collection of a kethubah, though not its writing, must always follow the marriage the amount collected is the rightful possession of the daughter.
(15) Sc. the kethubah of the first marriage.
(16) The reason is stated infra.
(17) The Rabbis who differed from his view.
(18) Cur. edd. insert in parentheses, 'if'.
(19) Hence it is she who is entitled to receive her kethubah.
(20) The interpretation of this passage is difficult and that of Rashi is here adopted (v. Tosaf. s.v. טעמא)
(21) For the illustration in the second clause of the Mishnah.
(22) So that it is possible for her to remarry a third time.
(23) Instead of having been divorced.
(24) Of our Mishnah by avoiding any unhappy illustration in which the woman cannot marry again.
(25) If a woman, for instance, was widowed twice she is deemed to be a dangerous companion to men, and is, therefore, forbidden to marry again (v. Yeb. 64b).
(26) Lit., 'them'. The plural referring generally to the two respective amounts of the statutory kethubah, two hundred so for a virgin and one hundred for a widow or divorcee (v. Rashi, s.v. הואיל).
(27) When the daughter was still under her father's authority. In the case (if the second kethubah, however, which is subsequent to the first marriage R. Judah agrees, of course, with the Rabbis.
(28) Cf supra p. 246, n. 8.
(29) Sc. the kethubah belongs to herself and not to her father.
(30) That the kethubah should being to the father (cf supra n. 5).
(31) Since such argument, however, was not used the statement attributed above to Rabbah and R. Joseph cannot be authentic.
(32) Lit., 'but if it was said, it was said thus'.
(33) The kethubah for the first marriage. On the use of the pl. נכתבין cf. supra n. 2. [Although the liability in regard to the kethubah began at betrothal, it was not reduced to writing till nuptials proper; cf. Rashi. For other interpretations v. Asheri].
(34) Unlike the Rabbis who were guided by the time of the collection (cf. supra p. 246, n. 7) R. Judah holds that the date of the writing of the kethubah is the determining factor. Hence his ruling in our Mishnah (where the writing took place while the daughter was in her minority) that the kethubah is the father's property. In the Baraitha cited, however, (where the writing took place when the daughter was already adolescent, I. e., shortly before her marriage) the kethubah rightly belongs no longer to her father but to herself.
(35) From property sold between the date of the betrothal and that on which the kethubah was written.
(36) I.e., does the right of distraint begin on the date of the betrothal (when the man becomes Rabbinically liable for the kethubah) or (as in the case just dealt with) on the date the kethubah was written? (V. Rashi. Cf., however, Tosaf s.v. ומיגבא).
(37) For a widow or a divorcee.
(38) In the case of a virgin.
(39) Since these amounts are statutory liabilities applicable to all.
(40) Which differs according to individual arrangements, v. infra.
(41) When the kethubah is written and formal acquisition (kinyan v. Glos.) is effected.
(42) Having accepted the written kethubah that bore the later date on which her marriage took place the woman is assumed to have surrendered her rights to the statutory amount, which she had acquired earlier on betrothal, in favour of her new advantages as well as any disadvantages that were conferred by the written document.
(43) Lit., 'did H. Huna say so'? That the earlier obligation (statutory kethubah) is recoverable from the earlier date
(betrothal). and the latter one (additional jointure) from the later date (marriage).
(44) V. supra note 8. Lit., 'there is'.
(45) In her second kethubah.
Talmud - Mas. Kethuboth 44a
Here also1 [it may similarly be said:] This is the reason why she cannot distrain [for the additional jointure from the earlier date]: Since he did not write in her favour, 'I have added a hundred zuz to the two hundred'2 she [having accepted the deed] must have renounced her former lien.3 The Master4 has laid down that if she wishes she may distrain with the earlier kethubahs and if she prefers she may distrain with the later one.5 Is it then to be assumed [that this ruling] differs from that of R. Nahman who laid down that if two deeds6 were issued one after the other the latter cancels the former?7 - [No, for] has it not been stated in connection with this statement that R. Papa said: R. Nahman nevertheless admits that if the man has added8 one palm9 the insertion was intended as an additional privilege?10 And here also, Surely, [the husband] has added something.11 [To turn to] the original text.12 R. Nahman laid down that if two deeds were issued one after the other the latter cancels the former. Said R. Papa: R. Nahman nevertheless admits that if the man has added one palm the insertion was intended as an additional privilege.13 It is obvious [that the reason why both deeds are valid where] the first [was a deed] of sale and the second [a deed] of gift14 [is because the action of the owner] was intended15 to improve the other's rights,16 as a safeguard against17 the law of pre-emption;18 and much more [is this19 obvious where] the first was for a gift and the second for a sale, for it may then be presumed that the latter was written in that manner in order to safeguard the other against a creditor's rights.20 [What], however, [is the reason why] the second cancels the first where both deeds21 were for a sale or both for a gift? - Rafram replied: Because it may be presumed that [the holder of the deeds] has admitted to the other [the invalidity of the first deed].22 R. Aha replied: Because it might be presumed that [the holder of the deeds] has surrendered his security of tenure.23 What is the practical issue between them?24 - The disqualification of the witnesses,25 payment of compensation for unsufruct26 and land tax.27 What is [the decision] in respect of the kethubah?28 - Come and hear what Rab Judah laid down in the name of Samuel who had it from R. Eleazar the son of R. Simeon:29 [The statutory kethubah of] a maneh30 or two hundred zuz31 [may be distrained for] from [the date of] the betrothal but the additional jointure only from the date of the marriage. The Sages, however, ruled: The one as well as the other [may be distrained for only] from the date of the marriage. The law is that the one as well as the other [may be distrained only] from the date of the marriage.
MISHNAH. THE DAUGHTER OF A PROSELYTE WOMAN WHO BECAME A PROSELYTE TOGETHER WITH HER MOTHER32 AND THEN33 Played THE HARLOT IS SUBJECT TO THE PENALTY34 OF STRANGULATION,35 BUT NOT TO36 [STONING AT] THE DOOR OF HER FATHER'S HOUSE37 NOR [DOES HER HUSBAND PAY THE] HUNDRED SELA'.38 IF SHE WAS CONCEIVED IN UNHOLINESS39 BUT HER BIRTH WAS IN HOLINESS40 SHE IS SUBJECT TO THE PENALTY OF STONING BUT NOT T36 [THAT OF BRINGING HER OUT TO 'THE DOOR OF HER FATHER'S HOUSE', NOR [DOES HER HUSBAND PAY THE] HUNDRED SELA'. IF SHE WAS BOTH CONCEIVED AND BORN IN HOLINESS40 SHE IS REGARDED AS A DAUGHTER OF ISRAEL IN ALL RESPECTS.41 ONE42 WHO HAD A FATHER BUT NO DOOR OF HER FATHER'S HOUSE',43 OR A 'DOOR OF HER FATHER'S HOUSE' BUT NO FATHER, IS NEVERTHELESS SUBJECT TO THE PENALTY44 OF STONING,45 [FOR THE REGULATION, 'TO] THE DOOR OF HER FATHER'S HOUSE',46 WAS ONLY INTENDED AS [AN INDEPENDENT] PRECEPT.47
(1) The last cited ruling of R. Huna.
(2) But has included the two hundred in the three hundred under a later date.
(3) Her right to distraint does, therefore, begin on the later date only. In the case of ordinary kethuboth, however, to which R. Huna's first ruling refers, a special clause to the effect that the husband has willingly added the additional jointure to the statutory kethubah forms part of the contract. The woman's original rights consequently remain unimpaired (cf. supra p. 248, n. 8).
(4) I.e., R. Huna in his second ruling. supra 43b.
(5) Lit., 'with that'.
(6) Relating to the same transaction and the same persons.
(7) And the right to distrain begins with the second date. Were R. Nahman's ruling to be applied to the case spoken of by R. Huna, would not the second kethubah have cancelled the first and the woman would have had no choice in the matter?
(8) In the text of the second deed.
(9) Or any other object or money. The addition of a palm applies to a sale, or gift of a plot of land.
(10) Lit., 'he wrote It for an addition'. The deed is not thereby impaired. and it is, therefore, within the right of the holder of the deeds to distrain either with the second deed and thus recover the original as well as the addition but from the later date only, or to distrain from the first date the original alone without the addition.
(11) Another hundred zuz.
(12) Which was cited in the discussion just concluded.
(13) V. p. 249 for notes.
(14) And related to the same transaction and the same persons as the first one.
(15) Lit., 'he (intended) when he wrote for him'.
(16) Even though no material addition was made to the original sale.
(17) Lit., on account of'.
(18) In virtue of which the next abutting neighbour can insist on exercising the right of first purchase. This right applies to a sale but not to a gift. בר מצרא lit., 'one on the border', sc the owner of an adjacent field who has the right of Pre-emption.
(19) The reason for the validity of both deeds.
(20) Only a buyer may claim compensation from the original owner if a creditor of that owner had distrained upon the land he bought. A donee has no such right. By the writing of the second deed the owner has conferred upon the donee the additional rights of a buyer.
(21) Lit., 'both of them'.
(22) And willingly accepted the second though his rights of distraint were thereby restricted to the later date.
(23) During the period intervening between the date of the first, and that of the second deed.
(24) Rafram and R. Aha.
(25) According to Rafram the witnesses, since they put their signatures to an invalid document, must be regarded as legally unfit for further evidence. (So Rashi. Tosaf., however, s.v. איכא, object to this view and (a) restrict the disqualification of the witnesses in respect of such a deed only as is held by the man who had cast aspersion on their characters or (b) apply the disqualification to the signatures). According to R. Aha, who does not question the authenticity of the deed, the character of the witnesses is not in any way affected.
(26) Which the holder of the deeds enjoyed between the first and the second date. According to Rafram, the holder of the deeds must pay such compensation since the first deed is presumed to be invalid. According to R Aha no such compensation is paid since the holder of the deeds renounced only his security of tenure but not his unsufruct.
(27) The original owner must pay it according to Rafram and the holder of the deeds according to R. Aba.
(28) I.e., 'from which date may distraint be effected?' (V. p. 247, n. 11 and 248, n. 1).
(29) Var. lec. 'Eliezer b. Shamua' (Bomb. ed.).
(30) V. Glos.
(31) The respective amounts due (a) to a widow or divorcee, and (b) to a virgin.
(32) Lit., 'the female proselyte whose daughter became a proselyte with her'.
(33) Having become betrothed while she was still a na'arah (v. Glos).
(34) Lit., 'behold this'.
(35) The penalty prescribed for a faithless married woman.
(36) Lit., 'she has not either'.
(37) Prescribed in Deut. XXII, 21 for a betrothed Israelite damsel (na'arah) who played the harlot.
(38) Due from a man who wrongfully accused his wife (v. Deut. XXII, 19). [Nor is he flagellated, the fine and the flogging being prescribed in juxtaposition to one another (Ritba)].
(39) Sc. while her mother was still a heathen.
(40) After her mother's conversion.
(41) She is subject to the penalties and entitled to the privilege as prescribed in Deut. XXII. 19, 21.
(42) Any daughter of Israel (Rashi) who played the harlot while she was a betrothed na'arah.
(43) When her father, for instance, had no house.
(44) Lit., 'behold this'.
(45) v. supra note I.
(46) פתח בית אביה (Deut. XXII, 21). Cur. edd. read אב.
(47) Not as an indispensable part of the penalty.
Talmud - Mas. Kethuboth 44b
GEMARA. Whence is this1 deduced? - Resh Lakish replied: Since Scripture said, That she die2 it3 included also her who WAS CONCEIVED IN UNHOLINESS BUT HER BIRTH WAS IN HOLINESS: If so, [should not her wrongful accuser]4 also be flogged5 and [condemned] to pay the hundred sela'?6 Scripture stated, That she die7 [implying that she] was included in respect of death but not in respect of the fine. Might it not be suggested [that Scripture intended] to include one who was both conceived and born in holiness? - Such a person is a proper Israelite woman.8 But can it not be said that [Scripture intended] to include one conceived and born in unholiness? - If this were so what purpose would be served9 by the expression,10 'In Israel'?11 R. Jose b. Hanina ruled: A man who brought an evil name upon an orphan girl is exempt, for it is said in Scripture, And give them unto the father of the damsel,12 Which excludes this girl who has no 'father'. R. Jose b. Abin, or it might be said, R. Jose b. Zebida, raised an objection: If her father utterly refuse13 [was meant]14 to include an orphan girl in respect of the fine;15 so R. Jose the Galilean.16 [Why then should the orphan in this case17 be excluded]? - He raised the objection and he himself supplied the answer: [This18 is a case of a girl] who became an orphan after the man had intercourse with her.19 Rabbah20 ruled: He21 is guilty. Whence [did he infer this]? - From that which Ammi taught: A virgin of Israel,22 but not a proselyte virgin.23 Now if you assume that in a case of this nature24 in Israel25 guilt is incurred, one can well see why it was necessary for a Scriptural text to exclude proselytes. If you, however, assume that in a case of this nature in Israel25 [the offender] is exempt [the difficulty would arise:] Now [that we know that the offender] is exempt [even if he sinned] against Israelites25 was it any longer necessary [to mention exemption if the offence was] against proselytes?26 Resh Lakish ruled: A man who has brought an evil name27 upon a minor is exempt,28 for it is said in Scripture, And give them unto the father of the damsel,29 Scripture expressed the term na'arah30 as plenum.31 To this R. Aha32 b. Abba33 demurred: Is the reason then34 because in this case 'the na'arah'35 was written [in Scripture], 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 the things 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 the city] shall stone her,36 while a minor is not, is she, subject to punishment?37 - [The explanation,] however, [is that, since] na'arah [has been written] here38 [it may be inferred that only where na'arah39 is used is a minor excluded] but wherever Scripture uses the expression na'arah40 even a minor is included.41 Shila taught: There are three modes [of execution] in the case of a [betrothed] damsel42 [who played the harlot]. If witnesses appeared against her in the house of her father-in-law43 [testifying] that she had played the harlot in her father's house44
(1) That IF SHE WAS CONCEIVED IN UNHOLINESS BUT HER BIRTH was IN HOLINESS SHE IS SUBJECT TO THE PENALTY OF STONING.
(2) Deut. XXII, 21, which is superfluous after Shall stone her with stones (ibid.).
(3) By the insertion of the superfluous expression.
(4) Supra p. 251, n. II.
(5) In accordance with Deut. XXII, 18, v. p. 251. n. 11.
(6) V. Deut. XXII, 19.
(7) Ibid. 21; emphasis on 'die'.
(8) And requires no special text to include her.
(9) Lit., 'what would it benefit him'.
(10) Deut. XXII, 21.
(11) None whatever. Hence it follows that the last mentioned was excluded.
(12) Ibid. 29.
(13) מאן ימאן Ex. XXII, 16, dealing with a case of seduction.
(14) Since the verb was repeated (v. note 2).
(15) One form of the verb (ימאן) referring to the father and the other (the infin. מאן) to a girl who has no father.
(16) Which shews that, though the laws in respect of seduction (Ex. XXII, 15f) are inferred from those of outrage (Deut. XXII, 28) and vice versa, and though in the latter case Scripture specifically stated that the fine is payable to the damsel's father (ibid. 29), an orphan is nevertheless entitled to the fine.
(17) In that of an evil name.
(18) The Tannaitic ruling of R. Jose the Galilean.
(19) Only such an orphan is included. All others are excluded by the Scriptural mention of father.
(20) In opposition to the view of R. Jose b. Hanina supra.
(21) The man who brought an evil name upon an orphan.
(22) Deut. XXII, 19.
(23) I.e., the penalties spoken of in the Scriptural text apply only to the former and not to the latter.
(24) Sc. that of a girl who is fatherless. A proselyte, though his or her heathen parents are alive, has the status of one who is fatherless.
(25) Sc. an Israelite girl who is fatherless.
(26) Of course not, since the latter case would be self-evident a minori ad majus. As exemption, however, was specified in this case it may be concluded that in that of an Israelite orphan guilt is incurred.
(27) V. Deut. XXII, 19.
(28) From paying the prescribed fine 'of a hundred shekels'.
(29) V. Deut. XXII, 19.
(30) Damsel, Heb. נערה.
(31) With 'he' at the end of the word. As elsewhere נערה is written נער (na'ara) defective, it is assumed that the plenum here was intended to refer to na'arah (v. Glos.) only, and not to a minor, v. supra 40b, and notes.
(32) Var. 'Adda' (cf. supra 40b).
(33) Var. 'Ahabah' (cf. l.c. and MS.M.).
(34) Why the fine mentioned is not incurred where a minor is concerned.
(35) הנערה, 'the . . . damsel'.
(36) Deut. XXII. 20f.
(37) And a minor would consequently have been excluded even if נער defective had been written.
(38) Where a minor is obviously excluded because she is not subject to penalties.
(41) I.e., the exclusion mentioned was not necessary for the case spoken of in this context where it is obvious (v. supra n. 11) but for the purpose of a general deduction.
(42) Na'arah (v. Glos.).
(43) Sc. after her marriage.
(44) While she was betrothed.
Talmud - Mas. Kethuboth 45a
she is stoned at the door of her father's house,1 as if to say,2 'See the plant that you have reared'. If witnesses came [to testify] against her in her father's house that she played the harlot in his house she is stoned at the entrance of the gate of the city. If having committed the offence3 she eventually4 attained adolescence5 she is condemned to strangulation.6 This7 then implies that wherever there occurred a change in one's person, one's mode of execution also must be changed. But is not this contradicted by the following: 'If a betrothed damsel8 played the harlot and [her husband] brought upon her an evil name9 after she had attained adolescence,10 he is neither to be flogged11 nor is he to pay the hundred sela',12 but she and the witnesses who testified falsely against her13 are hurried14 to the place of stoning'?15 'She and the witnesses who testified falsely against her'! Can this be imagined?16 - But [this is the meaning:] 'She17 or18 her witnesses19 are hurried14 to the place of stoning'?20 - Raba replied: You speak [of the law relating to a husband] who brought up an evil name; but this law is different [from the others],21 because it is an anomaly.22 For, elsewhere, if a girl23 entered the bridal chamber,24 though no intercourse followed, she is condemned to strangulation if she committed adultery, but [a woman upon whom a husband] brought an evil name is condemned to Stoning.25 Said R. Huna the son of R. Joshua to Raba: Is it not possible that the All-Merciful created the anomaly only where no constitutional change had taken place,26 but where a constitutional change had occurred27 the All-Merciful has created no anomaly?28 - The fact however is, explained R. Nahman b. Isaac, [that the question whether a change in status] involves, or does not involve a change [in the penalty] is [a point in dispute between] Tannaim. For we have learned: If they29 committed a sin before they were appointed [to their respective offices] and [then] were appointed, they are regarded30 as laymen. R. Simeon ruled: If their sin came to their knowledge before they were appointed31 they are liable,32 but if after they were appointed33 they are exempt.34
(1) Cf. Deut. XXII. 21.
(2) To the parents.
(3) While she was a na'arah.
(4) Before her trial.
(5) V. Glos. s.v. bogereth.
(6) The penalty prescribed for adults. Only a na'arah (v. Glos.) is subject to the penalty of stoning.
(7) R. Shila's last mentioned ruling that the penalty of a na'arah who attained majority is changed from stoning to strangulation.
(8) V. p. 254, n. 20.
(9) V. Deut. XXII, 14.
(10) Sc. when their marriage took place (Rashi).
(11) v. ibid. 18.
(12) V. ibid. 19.
(13) And were proved Zomemim (v. Glos.).
(14) מקדימין lit., 'go early', sc. they cannot escape their doom and might as well get it over as soon as possible (Rashi).
(15) בית הסקילה, a structure twice a man's height (i.e. six cubits) from which the condemned man was thrown before he was stoned (v. Sanh. 453 [Sone. ed.] p. 295).
(16) Obviously not. If she is condemned they must be true witnesses, and if they are condemned she must be innocent.
(17) If she was found guilty.
(18) The waw of it may be rendered 'or' as well as 'and'.
(19) In the case where their falsehood was established by other witnesses.
(20) Thus, at all events, it follows that despite the change in her person she is still subject to the former penalty, which is in contradiction with the ruling of Shila (v. supra note 1). (The penalty of a na'arah is stoning and that of one who is in her adolescence is only strangulation).
(21) Such as the law of Shila which deals with an accusation by witnesses and not with an evil name brought by a husband.
(22) Lit., 'novelty', and no comparison with, or inference from an anomalous law may he made.
(23) Even a na'arah (v. Glos. and cf. infra 48b).
(24) Huppah (v. Glos.).
(25) [Although had she committed the offence at the time of the defamation, i.e., after marriage, she would he strangled. This proves that in the case where the husband himself, and not witnesses, brings a charge, after marriage, of infidelity having taken place during betrothal, we do not apply the principle that the intervening change in the woman's status effects retrospectively a change in the penalty. And it is the exception which the law makes in this case which proves the general rule to the contrary elsewhere, v. Tosaf.].
(26) As in the case just cited where the change affects only her status - from betrothal to marriage.
(27) I.e., when the girl had attained her adolescence as In the case spoken of by Shila.
(28) The contradiction pointed out (v. supra p. 255, notes 1 and 14) would consequently arise again.
(29) A High Priest and a ruler whose sin-offerings differ from those of laymen. The former's offering being a bullock (Lev., IV, 3) the latter's a he-goat (ibid. 23) while that of a layman is a she-goat (ibid. 28) or a lamb (ibid. 32).
(30) In respect of their sin-offerings.
(31) So that both the commission of the sin and their awareness of it occurred while they were in the same status as laymen.
(32) To bring sin-offerings as prescribed for laymen (v. supra note 4).
(33) So that their sin was committed while they were still laymen and subject to one kind of offering, and their awareness set in when, as a ruler or High Priest, another kind of offering was due.
(34) Completely; on account of the change in their status (Hor. 10a). Consequently it may be assumed that the first Tanna who holds that a change in status does not involve a change of offering, maintains also that a change in the person involves no change of penalty, while R. Simeon who maintains that a change of status removes the obligation of an offering, will hold all the more so that a change in the person removes a man's liability to his former penalty and thus subjects him to the penalty appropriate to his new condition, and thus Shila's teaching will be in accordance with R. Simeon.
Talmud - Mas. Kethuboth 45b
[But] is it not to be maintained that R. Simeon was heard to be guided by [the time of] the awareness also,1 did you, how ever, hear that he Was guided by [the time of] awareness alone and not also by that of the commission of sin? For were that so,2 should they3 not have brought an offering in accordance with their present status, the High Priest a bullock, and the ruler a he-goat?4 - Surely R. Johanan said to the Tanna:5 Read, 'She is to be condemned to stoning.'6 But why?7 Did not the All-Merciful8 speak of a betrothed 'damsel'9 and this one is adolescent? - R. Elai replied: Scripture said, the damsel10 [implying] her who was a damsel9 before.11 Said R. Hanania to R. Elai: If so,12 should not [the husband] also be flogged and pay the hundred sela'?13 - 'May the All-Merciful', the other replied, 'save us from such an opinion'.14 'On the contrary [the first retorted], may the All-Merciful save us from such an opinion as yours'. What, however, is the reason?15 - R. Isaac b. Abin, or, as some say, R. Isaac b. Abba, replied: In her case it was16 her behaviour that brought about her [punishment] but in his case it was is the inclination of his lips17 that brought about his [penalties]. 'In her case it was her behaviour that brought about her [punishment]' and when she played the harlot she was still a na'arah.18 'But in his case it was the inclination of his lips that brought about his [penalty]'; and when does he incur his guilt? Obviously at that time,19 and at that time she Was already adolescent. Our Rabbis taught: A betrothed damsel18 who played the harlot is to be stoned at 'the door of her father's house'20 . If she had no 'door of her father's house'21 she is stoned at the entrance of the gate of that city. But in a town which is mostly inhabited by idolaters she is stoned at22 the door of the court. Similarly you may say: A man who worships idols23 is to be stoned at the gate [of the city] where he worshipped, and in a city the majority of whose inhabitants are idolaters he is stoned at the door of the court .24 Whence are these rulings derived? - From what our Rabbis have taught: [By the expression] thy gates25 [was meant] the gate [of the city] wherein the man has worshipped. You say, 'The gate [of the city] wherein the man has worshipped', might it not mean the gate where he is tried?26 - [Since the expression] 'thy gates' is used below27 and also above28 [an analogy is to be made:] As 'thy gates' mentioned above29 refers to the gate [of the city] wherein he worshipped30 so does 'thy bates' that was mentioned below27 refer to the gate [of the city] wherein the man had worshipped. Another interpretation: 'Thy gates',25 but not the gates of idolaters.31 [As to] that [expression of] 'thy gates', has not a deduction already been drawn from it?32 - If [the purpose of the expression were only] this deduction33 Scripture would have used the expression 'gate'; why thy gates'? Both deductions may, therefore, be made. Thus we obtain [rulings in respect of] idolatry,34 whence do we [derive the law in respect of] a betrothed girl?35 R. Abbahu replied: 'Door'36 is inferred from 'door',37 and door37 from 'gate',38 and 'gate'37 from 'thy gates'.39 Our Rabbis taught: [A husband] who brings up an evil name [upon his wife] is flogged40 and he must also pay a hundred sela'.41 R. Judah ruled: As to flogging, [the husband is] flogged in all circumstances; as to the hundred sela', however, where he had intercourse with her42 he pays them but if he did not have intercourse with her43 he does not pay. They44 differ on the same principles as those on which R. Eliezer b. Jacob and the Rabbis differed,45 and it is this that [each of the former group] meant: [A husband] who brought an evil name [upon his wife] is flogged and he must also pay a hundred sela', whether he had intercourse, or did not have intercourse with her, [this being] in agreement with the Rabbis.46 R. Judah ruled: As to flogging [the husband is] flogged in all circumstances;47 as to the hundred sela', however, where he had intercourse with her he pays them but if he did not have intercourse with her he does not pay; in agreement with R. Eliezer b. Jacob.48 Another reading.49 All the statement50 is in agreement with the opinion of R. Eliezer b. Jacob48 and it is this that [each of the former group]51 meant: [A husband] who brought an evil name [upon his wife] is flogged and he must also pay the hundred sela' only where he had intercourse with her.52 R. Judah ruled: As to flogging, [the husband is] flogged in all circumstances.53 Can R. Judah, however, maintain that 'as to flogging, [the husband] is flogged in all circumstances' when it was taught: R. Judah ruled, If he had intercourse he is flogged but if he did not have intercourse he is not flogged? - R. Nahman b. Isaac replied: [By the ruling of R. Judah that the husband] 'is flogged'54 [was meant] chastisement55 which is a Rabbinical penalty.56
(1) I.e., the nature of an offering cannot be determined by that status alone in which a man finds himself at the time he committed his sin. If his liability to that offering is to be established he must have the same status when he becomes aware of his sin. It is on this account, and not because a change of status involves a change of penalty, that R. Simeon exempts a man from an offering where he became aware of his sin after he had assumed a new status.
(2) That a change of status involves a man in the offering or penalty of his new condition, in agreement with Shila's ruling, irrespective of that man's former status in which his sin was committed.
(3) Laymen who became aware of their sins after they had been appointed High Priests or rulers.
(4) The answer being in the affirmative the objection against Shila again arises (v. supra p. 255, notes 1 and 14).
(5) Who recited Shila's ruling in his presence.
(6) Sc. despite the change in her person her penalty remains unaltered. That is, Shila's teaching is rejected.
(7) I.e., why (v. supra note 5) is she to be stoned.
(8) In prescribing the penalty of stoning.
(9) Na'arah (v. Glos.).
(10) Deut. XXII, 21 emphasis on 'the', הנערה with the 'he' article.
(11) Sc. at the time of the offence (v. supra note 5).
(12) That the determining factor is the time of the offence.
(13) The penalties prescribed in Deut. XXII, 18f.
(14) An evasive reply. R. Elai held the reason to be so obvious that he refused to discuss it. Cf. the reason given infra.
(15) Why the girl's constitutional change alters the man's penalties and not hers.
(16) Lit., 'this'.
(17) Sc. his organs of speech. It was his talk that brought an evil name upon her.
(18) Na'arah (v. Glos.).
(19) When he spread the report.
(20) If the witnesses came after she had married (v. Rashi). Cf. supra p. 251, n. 10.
(21) Cf. supra p. 252, n. 3.
(22) Or 'outside'; cf. Tosaf. s. v. על, a.l.
(23) MS M., 'and in the case of idolatry'.
(24) Tosef. Sanh. X.
(25) Deut. XVII, 5
(26) The judges' seat was at the city gate (cf. Ruth IV, 1ff).
(27) Deut. XVII, 5, which follows, and prescribes the punishment of the crime mentioned in v. 2 that precedes R.
(28) Deut. XVII. 2.
(29) Where the commission of the crime is spoken of.
(30) Since the text specifically deals with that subject. (v. n. 12).
(31) I.e., if most of the inhabitants of a city are idolaters the execution is not carried out at the gate of the city but at the court gate.
(32) In the analogy supra. Lit., 'you have drawn it out'. How could two deductions be made from one word?
(33) Lit., 'so'.
(34) Since the texts cited deal with that subject.
(35) Na'arah (v. Glos.).
(36) Door of her father's house (Deut. XXII, 21) in the text dealing with the punishment of a betrothed girl.
(37) Door of the gate of the court פתח שער החצר (Num. IV, 26).
(38) V. supra n, 5. Since both nouns (פתח) 'door', and (שער) 'gate' are placed in juxtaposition, the analogy may be made: As 'door' (פתח) in this text is near 'gate' (שער) so is 'door' in Deut. XXII, 21 (v. supra n. 4) to be regarded as occurring near 'gate'. Hence the ruling that if the girl has no 'door of her father's house' she is to be stoned at the 'gate' of the city.
(39) Deut. XVII, 5, which deals with idolatry; the analogy being: As in the case of idolatry so also in that of a betrothed girl the execution takes place at the gate of the court wherever the city is inhabited by a majority of idolaters.
(40) As prescribed in Deut. XXII, 18.
(41) V. Deut. XXII, 19.
(42) And then brought up the evil name by alleging that he had found no tokens of virginity (v. ibid. 17).
(43) And his allegation is based on the evidence of witnesses.
(44) The Rabbis and R. Judah.
(46) Who maintain that the Scriptural section dealing with the case of a husband who 'brought up an evil name' upon his wife applies in all circumstances, whether intercourse did or did not take place.
(47) For even where the Scriptural section under discussion does not apply, the penalty of flogging must still be inflicted on account of the infringement of the prohibition against tale bearing.
(48) Who holds that the section under discussion deals only with a case where intercourse preceded the allegation.
(49) Lit., 'some there are who say'.
(50) Lit., 'all of it', sc. the views of both the Rabbis and R. Judah.
(51) V. p. 259, n. 12.
(52) In full agreement with R. Eliezer b. Jacob (cf. supra n. 1).
(53) For the reason given p. 259, n. 15; but he is exempt from the payment of the hundred sela'.
(54) 'In all circumstances'.
(55) מכת מרדות V. Glos. s.v. makkath marduth.
(56) Pentateuchally, however, no flogging is inflicted unless intercourse preceded the charge.
Talmud - Mas. Kethuboth 46a
R. Papa replied: By the expression1 If he had intercourse he is flogged',2 which was used there,3 the monetary fine4 [was meant].5 But could one describe a monetary fine as 'flogging'? - Yes, and so indeed we have learned:6 If a man said, 'I vow to pay half of my valuation'7 he most pay half of his valuation. R. Jose the son of R. Judah ruled: He is flogged8 and must pay his full valuation. [And in reply to the question,] why should he be flogged? R. Papa explained: He is 'flogged'8 by [having to pay his] full valuation.9 What is the reason?10 - [The ruling10 in the case of a vow for] a half of one's valuation11 is a preventive measure against the possibility [of a vow for] the value of half of one's body,12 such a half13 being an organic part14 on which one's life depends.15 Our Rabbis taught: And they shall fine him16 refers to17 a monetary fine; And chastise him18 refers to17 flogging. One can readily understand why 'And they shall fine' refers to a monetary payment since it is written, 'And they shall fine him a hundred shekels of silver and give them unto the father of the damsel';19 whence, however, is it deduced that 'And chastise him' refers to flogging? - R. Abbahu replied: We deduce 'Shall chastise'18 from 'Shall chastise',20 and 'Shall chastise'20 from 'Son',21 and 'Son'21 from 'Son'22 [occurring in the Scriptural text:] Then it shall be, if the wicked man deserve23 to be beaten.24 Whence is the warning25 against bringing up an evil name [upon one's wife] deduced? R. Eleazar replied: From Thou shalt not go up and dawn as a talebearer.26 R. Nathan replied: From Then thou shalt keep thee27 from every evil thing.28 What is the reason that R. Eleazar does not make his deduction29 from the latter30 text?28 - That text28 he requires for [the same deduction] as [that made by] R. Phinehas b. Jair: From the text,31 Then thou shalt keep thee from every evil thing;28 R. Phinehas b. Jair deduced29 that a man should not indulge in [morbid] thoughts by day that might lead him to uncleanness by night.32 What then is the reason why R. Nathan does not make his deduction from the former33 text?34 - That text34 is a warning to the court that it must not be lenient with one35 [of the litigants] and harsh to the other. If [a husband] did not tell the witnesses,36 'Come and give evidence for me' and they volunteered to give it, he37 is not to be flogged nor is he to pay the hundred sela'.38 She, however, and the witnesses who testified falsely against her are hurried39 to the place of stoning. 'She and the witnesses who testified against her'! Can this be imagined? - But [this is the meaning]: 'She or her witnesses are hurried to the place of stoning.39 Now the reason then40 is because he did not even tell them [to give their evidence].41 Had he, however, told them [he would have been subject to the prescribed penalties]42 even though he did not hire them. [This ruling thus serves the purpose] of excluding the view of R. Judah concerning whom it was taught: R. Judah ruled, [a husband] incurs no penalties42 unless he has hired the witnesses.43 What is R. Judah's reason? R. Abbahu replied: An analogy is drawn between the two forms of the root 'to lay'.44 Here45 it is written, And lay46 wanton charges against her,47 and elsewhere it is written, Neither shall ye lay48 upon him interest,'49 as there49 [the offence is committed through the giving of] money50 so here [also it can be committed only by the giving of] money.51 R. Nahman b. Isaac said, and so did R. Joseph the Zidonian recite at the school52 of R. Simeon b. Yohai: An analogy is drawn between the two forms of the root 'to lay'.53 R. Jeremiah raised the question: What is the ruling54 where [the husband] hired them55 with a piece of land?56 What [if he hired them] for a sum less than a perutah?57 What [if both witnesses were hired] for one perutah? R. Ashi enquired: What [is the ruling where a husband]58 brought an evil name [upon his wife] in respect of their first marriage? What [if a levir59 brought up an evil name] in respect of his brother's marriage? - You may at all events solve one [of these questions].60 For R. Jonah taught: I gave my daughter unto this man61 only unto this man62 but not to a levir.63 What [is the ruling of] the Rabbis and what [is that of] R. Eliezer b. Jacob?64 - It was taught: What constitutes65 the bringing up of an evil name [against one's wife]?66 If [a husband] came to the Beth din and said, 'I, So-and-so, found not in thy daughter the tokens of virginity'. If there are witnesses that she committed adultery while living with hint she is entitled to a kethubah for a maneh.67 'If there are witnesses that she committed adultery while living with him [you say,] she is entitled to a kethubah for a maneh'! But is she not in that case subject to the penalty of stoning?68 - It is this that was meant: If there are witnesses that she committed adultery while she was living with him she is to be stoned; if, however, she committed adultery before [her marriage] she is entitled to a kethubah for a maneh.69 If it was ascertained that the evil name had no foundation in fact70 the husband is flogged and he must also pay a hundred sela' irrespective of whether he had intercourse [with her] or whether he did not have intercourse [with her]. R. Eliezer b. Jacob said: These penalties71 apply only where he had intercourse [with her]. According to R. Eliezer b. Jacob72 one can well understand why Scripture used the expressions, 'And go in unto her'73 and 'When I came nigh to her',74 but according to the Rabbis75 what [could be the meaning of] 'And go in unto her'73 and' When I came nigh unto her'?74 'And go in unto her'73 with wanton charges, and 'When I come nigh to her'74 with words. According to R. Eliezer b. Jacob72 one can well see why Scripture used the expression, 'I found not in thy daughter the tokens of virginity',76 but according to the Rabbis75 what [could be the sense of the expression], 'I found not in thy daughter the tokens of virginity'? - I found not far77 thy daughter witnesses to establish her claim to tokens of virginity.78 It was quite correct for Scripture, according to R. Eliezer b. Jacob,79 to state, And yet these are the tokens of my daughter's virginity;80 but according to the Rabbis81 what could be the sense of [the expression,] 'And yet these are the tokens of my daughter's virginity'?80 - And yet these are the witnesses who establish78 the tokens of my daughter's virginity. One can well understand, according to R. Eliezer b. Jacob,79 why Scripture wrote, And they shall spread the garment,'80 but according to the Rabbis81 what [could be the sense of the instruction,] And they shall spread the garment? - R. Abbahu replied: They explain82 [the charge] which he submitted against her;83 as it was taught: 'And they shall spread the garment' teaches that the witnesses of the one party and those of the other party come, and the matter is made as clear as a new garment. R. Eliezer b. Jacob said: The words are to be taken in their literal sense: [They must produce] the actual garment.84 R. Isaac son of R. Jacob b. Giyori sent this message in the name of R. Johanan: Although we do not find anywhere in the Torah that Scripture draws a distinction between natural and unnatural intercourse In respect of flogging or other punishments, such a distinction was made in the case of a man who brought an evil name [upon his wife];85 for he is not held guilty unless, having had intercourse with her, [even]86 in an unnatural manner, he brought up an evil name upon her in respect of a natural intercourse. In accordance with whose view?87 If [it be said to be] in accordance with the view of the Rabbis [the husband, it could be retorted, should have been held guilty] even if he had no intercourse with her. If [it be said to be] in agreement with the view of R. Eliezer b. Jacob
(2) לוקה. The לקה vek may signify (a) flogging and also (b) the infliction of any penalty or suffering.
(3) In the last cited ruling of R. Judah.
(4) The hundred shekels.
(5) The payment of the fine only is dependent on previous intercourse, but flogging is inflicted in all circumstances (v. supra p. 259. n. 15).
(6) MS.M., 'it was taught'. Cf. 'Ar. 20a and Tosef. 'Ar. III.
(7) V. Lev. XXVII, 2ff.
(8) לוקה (cf. supra note 5).
(9) Or 'he is punished by having to pay etc'.
(10) For the payment of his full valuation when the man only vowed half of it.
(11) חצי ערכו, as prescribed in Lev. XXVII, 2ff.
(12) ערך חציו
(13) Lit., 'and the value of his half'.
(14) MS.M. דבר Cur. edd. אבר 'limb'.
(15) And where the value of such a part or limb is vowed the full valuation must be paid.
(16) Deut. XXII, 19.
(17) Lit., 'this'.
(18) Deut. XXII, 18.
(19) Deut. XXII, 19.
(20) Deut. XXI, 18.
(22) Ibid. XXV, 2 (v. infra n. 14).
(23) Lit., 'son'.
(24) V. supra n. 13. As this text in which 'son' occurs (v. supra n. 14) speaks definitely of flogging (v. Deut. XXV, 2-3) the punishment of the 'son' spoken of in Deut. XXI, 18, concerning whom also the expression of 'chastise' (ibid.) was used, must also be that of flogging; and since 'chastise' (ibid.) implies flogging, 'chastise' in Deut. XXII, 18 must also mean flogging. V. Sanh. 71b.
(25) Sc. a negative precept for the transgression of which flogging is incurred. No flogging is in- flicted for an offence unless there is a prohibition in regard to it.
(26) Lev. XIX, 16.
(27) ונשמרת the Nif. of שמר which implies a negative precept.
(28) Deut. XXIII, 10.
(29) Lit., 'said'.
(30) Lit., 'from that'.
(31) Lit., 'from here'.
(32) The verse following (Deut. XXIII, 11) speaking of a man . . . that is not clean . . . by night. V. A.Z. 20b.
(33) Lit., 'from that'.
(34) Lev. XIX, 16.
(35) The Heb. of Lev. XIX, 16 cited, is לא תלך רכיל the third word being composed of the letters forming the phrase רך לי 'lenient or gentle to me'.
(36) Who testified that his wife committed adultery before her marriage.
(37) Though the evidence had been proved to be false.
(38) V. Deut. XXII, i8f.
(39) For notes v. supra p. 255, n. 4ff.
(40) Why the husband is exempt.
(41) Since the ruling runs, 'did not tell them', and not 'did not hire them'.
(42) V. Deut. XXII, 18f.
(43) Who testified that his wife committed adultery before her marriage.
(44) Or 'to put'. Lit., 'it comes (from) putting (and) putting'.
(45) In the case of an evil name brought up by a husband (Deut. XXII, 13ff).
(46) ושם, rt. שום 'to put', 'to lay'.
(47) Deut. XXII, 14.
(48) תשימון, rt. שופ.
(49) Ex. XXII, 24.
(51) Sc. the hiring of the witnesses.
(52) MS.M. 'Zaidana of the school'. [Probably of Bethsaida].
(53) V. supra p. 262, n. 13ff.
(54) According to R. Judah who laid down that a husband incurs no penalties unless he has hired the witnesses.
(55) The witnesses (v. supra p. 262, n. 12).
(56) Does R. Judah include land also under the term of 'money', or does he, since his ruling was deduced from the law of interest, restrict the price of the hiring to movables only, such as money and foodstuffs, which are specifically mentioned in connection with the laws of interest, (v. Ex. XXII, 24 and Deut. XXIII, 20).
(57) V. Glos.
(58) Who remarried his wife after he had once divorced her.
(59) Who was under the obligation to contract levirate marriage with his deceased brother's wife (cf. Deut. XXV, 5ff).
(60) The last.
(61) Deut. XXII, 16.
(62) I.e., the husband.
(63) Sc. the penalties prescribed in the section apply only to the former.
(64) Referred to supra 45b ad fin.
(65) Lit., 'how'.
(66) V. Deut. XXII, 13ff.
(67) V. Glos.
(68) How then could one speak of giving her a kethubah?
(69) The statutory sum due to a non-virgin.
(70) Lit., 'is not an evil name'.
(71) Lit., 'words', the penalties prescribed in the section of Deut. XXII, 13ff.
(72) Who restricts the application of the penalties (v. supra n. 3) to a husband with whom intercourse had taken place.
(73) Deut. XXII, 13.
(74) Ibid. 14.
(75) Who maintain that the penalties always apply, irrespective of intercourse.
(76) Deut. XXII, 17.
(77) The lamed in לבתך may be rendered 'in' (as E.V.) or 'for' as here expounded.
(78) By refuting the evidence of the first witnesses who accused her of the offence. כשרי, (read as kashre) is to be regarded as the Piel of כשר, 'to make fit', and referring to the action of the witnesses who establish the fitness or honesty of the accused.
(79) V. supra note 4.
(80) Deut. XXII, 17.
(81) V. supra note 7.
(82) ופרשו (E.V., 'and they shall spread') is rendered, 'And they shall explain'. פרש, 'to explain', פרש 'to spread'. Shin and Sin being interchangeable.
(83) השם לה '(the allegation) which he submitted against her'. A play on the word השמלה (E.V. the garment) v. Tosaf.
(84) As proof of the tokens.
(85) Only where his witnesses accused her of illicit intercourse in a natural manner is he, when their evidence is proved to be false, liable to pay the fine of a hundred shekels; but where his witnesses alleged unnatural intercourse he is exempt from the fine even though their evidence was proved to be false.
(86) V. Rashi.
(87) Has the last mentioned statement been made?
Talmud - Mas. Kethuboth 46b
must not the intercourse in both cases be in a natural manner?1 - The fact, however, is, said R. Kahana in the name of R. Johanan, that the husband is not held guilty unless he had intercourse In a natural manner and he brought up an evil name upon her in respect of a natural intercourse.
MISHNAH. A FATHER HAS AUTHORITY OVER HIS DAUGHTER2 IN RESPECT OF HER BETROTHAL [WHETHER IT WAS EFFECTED] BY MONEY,3 DEED4 OR INTERCOURSE;5 HE IS ENTITLED TO ANYTHING SHE FINDS AND TO HER HANDIWORK; [HE HAS THE RIGHT] OF ANNULLING HER VOWS6 AND HE RECEIVES HER BILL OF DIVORCE;7 BUT HE HAS NO USUFRUCT8 DURING HER LIFETIME.9 WHEN SHE MARRIES, THE HUSBAND SURPASSES HIM [IN HIS RIGHTS] IN THAT HE HAS10 USUFRUCT DURING HER LIFETIME,11 BUT HE IS ALSO UNDER THE OBLIGATION OF MAINTAINING AND RANSOMING HER12 AND TO PROVIDE FOR HER BURIAL. R. JUDAH RULED: EVEN THE POOREST MAN IN ISRAEL MUST PROVIDE13 NO LESS THAN TWO FLUTES AND ONE LAMENTING WOMAN.
GEMARA. 'BY MONEY'. Whence is this14 deduced? - Rab Judah replied: Scripture said, Then shall she go ant for nothing without money,15 [which implies that] this master16 receives no money17 but that another master does receive money;18 and who is he? Her father.19 But might it not be suggested that it20 belongs to her?21 - Since22 it is her father who contracts23 her betrothal, as it is written in Scripture, I gave my daughter unto this man,24 would she take the money!25 But can it not be suggested that this26 applies only to a minor27 who has no legal right28 [to act on her own behalf], but that a na'arah29 who has such rights30 may herself contract her betrothal, and she herself receives the money? - Scripture stated, Being in her youth in her father's house,31 [implying that] all the advantages of her youth belong to her father. [Consider], however, that which R. Huna said in the name of Rab: 'Whence is it deduced that a daughte handiwork belongs to her father? [From Scripture] where it is said, And if a van sell his daughter to be a maidservant,32 as33 the handiwork of a maidservant belongs to her master so does the handiwork of a daughter belong to her father'.34 Now what need was there,35 [it may be asked, for this text when] deduction36 could have been made from [the text of] 'Being in her youth in her father's house'?31 Consequently [it must be admitted, must it not, that] that text was written in connection only with the annulment of vows?37 And should you suggest that we might infer this38 from it,39 [it could be retorted that] monetary matters cannot be inferred from ritual matters.39 And should you suggest that we might infer it is from [the law of] fine,40 [it could be retorted, could it not, that] monetary payments cannot be inferred from fines? And should you suggest that it is might be inferred from [the law of compensation for] indignity and blemish,41 [it could be retorted] that indignity and blemish are different,42 since [the rights] of her father [are also, are they not], involved43 in it?44 - [This], however, [is the explanation]:45 It is logical to conclude that when the All-Merciful excluded46 [another] going out,47 the exclusion Was meant to be [understood in a manner] similar to the original.48 But49 one 'going out', surely, is not like that of the other: For50 in the case of the master [the maidservant] goes entirely out of his control while in the 'going out' from the control of her father [the daughter's] transfer to the bridal chamber is still lacking?51 - In respect of the annulment of vows, at any rate, she passes out of his control; for we have learned: In the case of a betrothed damsel52 it is her father and her husband who jointly annul her vows.53 DEED OR INTERCOURSE. Whence do we [deduce this]?54 - Scripture said, And becometh another man's wife is [from which it may be inferred that] the various forms of betrothal55 are to be compared to one another.56 HE IS ENTITLED TO ANYTHING SHE FINDS,
(1) Since he takes the verses literally.
(2) While she is under the age of twelve and a half years and one day.
(3) Sc. the money belongs to him.
(4) The receipt of the deed by him effects his daughter's betrothal.
(5) It is within his rights to allow such an act to have the validity of a kinyan (v. Glos.).
(6) V. Num. XXX. 4ff.
(7) If she was divorced during her betrothal before attaining her adolescence (v. Glos. s.v. bogereth).
(8) Of property that came into her possession from her mother's side.
(9) Such property passes into the possession of a father as heir to his daughter only after her death.
(10) In addition to the privileges enjoyed by a father.
(11) Cf. infra 65b, Kid. 3b.
(12) If she was taken captive.
(13) For his wife's funeral.
(14) That the money of the betrothal belongs to her father.
(15) Ex. XXI, 11, referring to a Hebrew maidservant.
(16) To whom a father sold his daughter (v. ibid. 7).
(17) When she leaves him on becoming a na'arah (v. Glos. and cf. Kid. 4a).
(18) When, on marriage, she passes out of his control.
(19) Since beside the master spoken of in the Scriptural text (cf. Ex. XXI, 8) the daughter of an Israelite has no other master but her father.
(20) The money of her betrothal.
(21) The implication of the text cited merely indicating that, unlike the case of the liberation of an Israelite maidservant, her passing out of her father's control at betrothal is attended by money, without necessarily meaning that this money goes to her father.
(22) Lit 'now'.
(23) Lit., 'accepts'.
(24) Deut. XXII, 16.
(25) Of course not. Hence it must be concluded that it, as stated in our Mishnah, belongs to her father.
(26) A father's right to the betrothal money of his daughter, as implied in the Scriptural text cited.
(27) Though the Scriptural text referred to deals with an evil name brought upon a na'arah (v. Glos.) it might nevertheless be contended that the betrothal of that na'arah took place while she was still a minor.
(28) Lit., 'a hand'.
(29) V. Glos.
(30) Lit., 'a hand'.
(31) Num. XXX, 17.
(32) Ex. XXI, 7.
(33) Since 'daughter' and 'maidservant' appear in juxtaposition an analogy between them may be drawn.
(34) Supra 40b, infra 47a, Kid. 8a.
(35) Lit., 'wherefore to me'.
(36) That a father is entitled to his daughter's handiwork.
(37) And, therefore, no deduction from it can be made in respect of handiwork. Similarly, here also, no deduction from it could be made in respect of a father's right to his daughter's money of betrothal. The previous question, therefore, arises again.
(38) That a father is entitled to his daughter's money of betrothal.
(39) From the law of the annulment of vows.
(40) As the fine prescribed in Deut. XXII, 19, belongs to her father so does the money.
(41) Which belongs to her father (v. supra 40b).
(42) From the case under consideration.
(43) As a father has the right to dispose of the indignity and blemish of his daughter while she is still a na'arah, by allowing any sort of person to marry her, he is also entitled to compensation for any indignity or blemish anyone inflicted upon her without his consent.
(44) The question, whence is it deduced that the money of betrothal belongs to her father, thus arises again.
(45) Why deduction may be made from Ex. XXI, 11 (cf. supra p. 266 notes 13-20, and text).
(46) Cf. supra p. 266 notes 15-18 and text.
(47) V. supra p. 266, n. 17.
(48) As in the original it is the master, and not the maidservant, who, in the absence of the specific text to the contrary, would have received the money for the latter's redemption, so in the implication it must be the father (who corresponds to the master), and not his daughter, who is to receive the money when she passes out of his control at betrothal (v. Rashi). [Now since we learn that her father is entitled to her betrothal money, it follows that the right to effect her betrothal is vested in him, Tosaf.].
(49) Lit., 'but that'.
(50) Lit., there'.
(51) Until her entry into the bridal chamber (Huppah, v. Glos.) a daughter is still partially under the control of her father who is still entitled to her handiwork and remains her heir.
(52) Na'arah (v. Glos.).
(53) The father alone has no longer the right to do so. For further notes on the passage v. Kid. (Sonc. ed.) p. 36.
(54) A father's absolute right to effect the betrothal of his young daughter (v. supra p. 266, nn. 3-4) by these two methods. (15) Deut. XXIV, 2; and becometh והיתה.
(55) הײװת lit., 'beings', 'becomings', of the same rt. היה as that of והיתהה (v. supra p. 268, n. 15).
(56) As betrothal by money is entirely in the hands of the father (to whom the money belongs, as has been shewn supra) so is betrothal by deed or intercourse.
Talmud - Mas. Kethuboth 47a
in order [to avert] ill feeling.1 TO HER HANDIWORK. Whence do we deduce this? - [From that] which R. Huna quoted in the name of Rab: Whence is it deduced that a daughter's handiwork belongs to her father? - [From Scripture] where it is stated, And if a man sell his daughter to be a maidservant,2 as the handiwork of a maidservant belongs to her master so does the handiwork of a daughter belong to her father.3 But may it not be suggested that this4 [applies only to] a minor whom he may sell, but the handiwork of a na'arah5 whom he cannot sell belongs to herself? - It is but logical to assume that it should belong to her father; for should it be imagined that her handiwork does not belong to him [the objection could well be advanced against] the right6 which the All-Merciful has conferred upon a father to consign his daughter to the bridal chamber: How could he consign her when he thereby7 prevents her from doing her work?8 R. Ahai demurred: Might it not be suggested that he9 pays her compensation [for the time] she is taken away [from her work] or else, that he consigns her during the night,10 or else that he might consign her on Sabbaths11 or festivals?11 - [The fact], however, [is that in the case of] a minor no Scriptural text was necessary.12 For since is he may even sell her was it at all necessary [to state that her handiwork belongs to him]?13 If a Scriptural text14 then was at all necessary [it must have been] in respect of a na'arah. TO ANNUL HER VOWS. Whence do we [deduce this]? [From Scripture] where it is written,15 Being in her youth in her father's house.16 AND HE RECEIVES HER BILL OF DIVORCE. Whence is this deduced? - From Scripture where it is written, And she departeth and And becometh,17 'departure'18 being compared to 'becoming'.19 BUT HE HAS NO USUFRUCT DURING HER LIFETIME. Our Rabbis taught: A father has no usufruct20 during the lifetime of his daughter.21 R. Jose the son of R. Judah ruled: A father is entitled to usufruct20 in the lifetime of his daughter. On what principle do they differ? - The first Tanna is of the opinion that the Rabbis were well justified in allowing usufruct to a husband, since otherwise he might refrain from ransoming [his wife].22 What, however, can be said23 in respect of a father? That he would refrain from ransoming her? [It is certain that] he would ransom her in any case. R. Jose the son of R. Judah, however, is of the opinion that a father also might refrain from ransoming [his daughter], for he might think: She is carrying a purse24 about her, let her proceed to ransom herself.25 WHEN SHE MARRIES, THE HUSBAND SURPASSES HIM [IN HIS RIGHTS] IN THAT HE HAS USUFRUCT etc. Our Rabbis taught: If [a father] promised his daughter in writing26 fruit,27 clothes or other movable objects28 that she might take29 with her30 from her father's house to that of her husband, and she died,31 her husband does not acquire these objects. In the name of R. Nathan it was stated: The husband does acquire them. Must it be assumed that they32 differ on the same principles as those on which R. Eleazar b. Azariah and the Rabbis differed? For we learned: A woman who was widowed or divorced, either after betrothal or after marriage, is entitled to collect all33 [that is due to her]. R. Eleazar b. Azariah ruled: [Only a woman widowed or divorced] after her marriage recovers all [that is due to her], but if after a betrothal a virgin recovers only two hundred zuz34 and a widow only one maneh34
(1) Between father and daughter.
(2) Ex. XXI, 7.
(3) Cf. supra 40b, 46b, Kid. 3b.
(4) Lit., 'these words', a father's right to his daughter's handiwork.
(5) V. Glos.
(6) Lit., 'but that'.
(7) Lit., 'surely'.
(8) During her preparations for, and the performance of the bridal chamber ceremonial. Since, however, a father does enjoy the right it must be concluded that a daughter's handiwork does belong to her father.
(9) A father who consigns his daughter into the bridal chamber.
(10) When people usually rest from their work.
(11) On which days work is forbidden. The question thus arises again: Whence is it deduced that a daughter's handiwork belongs to her father?
(12) To confer upon her father the right to her handiwork. (15) Lit., 'now'.
(13) Obviously not.
(14) Viz., the superfluous word לאמה, to be a maidservant (Ex. XXI, 7), from which the analogy is drawn supra. The ordinary text deals, of course, with a minor.
(15) In the Section dealing with the invalidation of vows.
(16) Num. XXX. 17. 'Being in her youth' בנעוריה, sc. while she is yet a na'arah (v. Glos.).
(17) Deut. XXIV, 2.
(18) I.e., divorce.
(19) Sc. a wife (cf. Deut. XXIV, 2: Becometh . . . wife). As a father may contract his daughter's betrothal so may he accept her divorce.
(20) V. supra p. 266, n. 7.
(21) V. l.c. n. 8.
(22) Should she ever be taken captive.
(23) In justification of his claim to the usufruct of his daughter's property.
(24) The savings of the proceeds of her property.
(25) And should her savings be insufficient he would refuse to supplement them.
(26) Lit., 'wrote for her', as her dowry.
(27) Detached from the ground (v. infra).
(28) Lit., 'vessels', 'chattels'.
(29) Lit., 'which shall come'.
(30) On betrothal.
(31) During the period of her betrothal.
(32) R. Nathan and the first Tanna.
(33) I.e., her additional jointure as well as her statutory kethubah.
(34) V. Glos., sc. her statutory kethubah only.
Talmud - Mas. Kethuboth 47b
for the man wrote [the additional jointure] for her with the sole object of marrying her.1 [Must it then be assumed] that he who ruled that 'her husband does not acquire' [upholds the same principle] as R. Eleazar b. Azariah2 while he3 who ruled that 'the husband does acquire' [upholds the same principle] as the Rabbis?4 - No; all5 [may, in fact, hold the same view] as R. Eleazar b. Azariah.6 [For] he who ruled, 'her husband does not acquire',[is obviously] in agreement with R. Eleazar b. Azariah.7 And as to him3 who ruled, 'the husband does acquire' [it may be explained that] only [in respect of undertakings] from him8 towards her9 did R. Eleazar b. Azariah maintain his view,10 [for the reason that] 'the man wrote [the additional jointure] for her with the sole object of marrying her',11 but [in respect of undertakings] from her12 towards him13 even R. Eleazar b. Azariah may admit [that betrothal has the same force as marriage] since [undertakings of such a nature]14 are due to [a desire for] matrimonial association, and such association, surely, had taken place.15
HE IS ALSO UNDER THE OBLIGATION OF MAINTAINING HER etc. Our Rabbis taught: Maintenance was provided for a wife in return for her handiwork, and her burial16 in return for her kethubah.17 A husband is, therefore, entitled to usufruct. 'Usufruct'! Who mentioned it?18 - A clause is missing, and this is the proper reading: Maintenance was provided for a wife in return for her handiwork, her ransom In return for usufruct,19 and her burial in return for her kethubah;20 a husband, therefore, is entitled to usufruct.19 What [was the need for] 'therefore'?21 - It might have been presumed [that a husband] must not consume the fruits19 but should rather leave them,22 since, otherwise,23 he might refrain from ransoming her, hence we were informed that that [course]24 was preferable, for sometimes [the proceeds of the fruit] might not suffice25 and he26 would have to ransom her at his own expense. Might I not transpose [the sequence]?27 - Abaye replied: They28 ordained the common for the common29 and the uncommon for the uncommon.30 Said Raba: The following Tanna is of the opinion that maintenance31 is a Pentateuchal duty. For it was taught: She'erah32 refers to33 maintenance, for so it is said in Scripture, Who also eat the she'er34 of my peaple;35 Her raiment36 [is to be understood] according to its ordinary meaning; 'Onatha37 refers to the time for conjugal duty38 prescribed in the Torah,39 for so it is said in Scripture, If than shalt afflict40 my daughters.41 R. Eleazar said: 'She'erah' refers to the prescribed time for conjugal duty,39 for so it is said in Scripture, None of you shall approach to any that is near of kin42 to him to uncover their nakedness;43 'Her raiment' [is to be taken] according to its literal meaning; 'Onatha refers to maintenance, for so it is said in Scripture, And he afflicted thee,44 and suffered thee to hunger.45
(1) And since he did not marry her she can have no claim to it. V. Infra 54b, 89b; B.M. 17b.
(2) As the latter makes the woman's right to her additional jointure dependent on marriage, so also does the former make the husband's right to the dowry his wife brings from her father's house dependent on marriage. In the opinion of both betrothal entitles one only to the prescribed statutory rights.
(3) R. Nathan.
(4) As they deem betrothal to he as valid as marriage in respect of conferring upon a woman the right to her additional jointure as well as to her statutory kethubah, so does R. Nathan deem betrothal to be conferring upon a husband the right to the dowry his wife has brought him. As the additional jointure which is included in the document of the kethubah is acquired on betrothal by the woman, so is the dowry which is also included in the same document acquired on betrothal by the man.
(5) R. Nathan and the first Tanna.
(6) Whose ruling is (as stated infra) the accepted law.
(7) Cf. supra note 6.
(8) A husband.
(9) A wife.
(10) That betrothal does not confer upon a woman the right of acquisition.
(11) V. supra p. 271. n. 5.
(12) A wife.
(13) A husband.
(14) The dowry e.g., which her father promises to her husband.
(15) By the betrothal. Hence the ruling that, in this respect, betrothal alone confers the same rights as marriage.
(16) Variant, 'ransom' (Sheiltoth).
(17) Here it means the dowry (v. supra n. 4) which, like the statutory kethubah and the additional jointure, is also entered in the kethubah document.
(18) Lit., 'their (sc. the fruits') name'; the first clauses of the Baraitha cited speak only of 'handiwork' and 'kethubah' and these, surely, provide no reason for a husband's right to usufruct.
(19) Of her melog (v. Glos.) property which was not entered in the kethubah.
(20) V. supra note 7.
(21) The ruling 'a husband therefore . . . usufruct' seems superfluous after the statement, 'her ransom in return for usufruct'.
(22) I. e., allow their proceeds to accumulate, and thus create a fund for his wife's ransom.
(23) Lit., 'if so'; were he to consume the fruit or to spend their proceeds.
(24) That the husband shall enjoy usufruct and that in return for this he shall assume the obligation of ransoming his wife.
(25) To cover the full amount of the ransom. Lit., 'that they he not full'.
(26) Since, in accordance with the ordinance, he enjoyed usufruct and undertook the obligation of ransom. (V. supra note 14).
(27) In the Baraitha, thus: Maintenance in return for usufruct and ransom in return for handiwork. A wife would consequently be prevented from retaining her handiwork even if she declined maintenance.
(28) The Rabbis.
(29) Maintenance and handiwork are both part of a person's daily routine.
(30) Usufruct for ransom. It is rare that a wife should own melog (v. Glos.) property or that she should be carried away as a captive. Both usufruct and ransom are consequently uncommon.
(31) Of a wife by her husband.
(32) E.V. Her food, שאר) שארה with pronom suffix; v. infra n. 8) Ex. XXI. 10.
(33) Lit., 'these'.
(34) שאר E. V. flesh.
(35) Micah III, 3.
(36) Ex. XXI. 10.
(37) עונתה, R.V., Her duty of marriage; A.J.V., Her conjugal rights, Ex. XXI, 10. עונתה (rt. ענה in Piel, 'to afflict'; v. infra nn. 12 and 14).
(38) עונה (rt. ענה; v. supra n. 11).
(39) Cf. infra 61b.
(40) תענה, (rt. ענה).
(41) Gen. XXXI, 50.
(43) Lev. XVIII, 6.
(44) ויענך (rt. ענה).
(45) Deut. VIII, 3.
Talmud - Mas. Kethuboth 48a
R. Eliezer b. Jacob interpreted: [The expressions] She'erah kesutha,1 [imply]: Provide her with raiment according to her age, viz. that a man shall not provide his old wife2 [with the raiment] of a young one nor his young wife with that of an old one. [The expressions], Kesutha we- 'Onatha3 [imply.] Provide her with raiment according to the season of the year,4 viz. that he shall not give her new raiment5 in the summer nor worn out raiment6 in the winter.7 R. Joseph learnt: Her flesh8 implies close bodily contact,9 viz, that he must not treat her in the manner of the Persians who perform their conjugal duties in their clothes. This provides support for [a ruling of] R. Huna who laid down that a husband who said, 'I will not [perform conjugal duties] unless she wears her clothes and I mine', must divorce her and give her also her kethubah. R. JUDAH RULED: EVEN THE POOREST MAN IN ISRAEL etc. This10 then implies that the first Tanna is of the opinion that these11 are not [necessary]. But how is one to imagine [the case]? If these11 were required by the woman's status,12 what [it may be objected could be] the reason of the first Tanna who ruled [that these11 were] not [required]? And if these11 were not required by the woman's status,13 what [it may be objected could be] the reason of R. Judah? - [The ruling was] necessary only [in a case], for instance, where these were demanded by his status but not by hers. The first Tanna is of the opinion that the principle that she14 rises with him15 but does not go down with him16 is applied only during her lifetime17 but not after her death, while R. Judah maintains [that the principle applies] even after her death. R. Hisda laid down in the name of Mar 'Ukba that the halachah is in agreement with R. Judah. R. Hisda further stated in the name of Mar 'Ukba: If a man became insane Beth din take possession18 of his estate and provide food and clothing for his wife, sons and daughters, and for anything else.19 Said Rabina to R. Ashi: Why should this20 be different from that concerning which it was taught: If a man went to a country beyond the sea and his wife claimed maintenance, Beth din take possession of21 his estate and provide food and clothing for his wife, but not for his sons and daughters or for anything else?22 The other replied: Do you not draw a distinction between one who departs23 deliberately and one who departs24 without knowing it?25 What [is meant by] 'anything else'? - R. Hisda replied: Cosmetics were meant,26 R. Joseph explained: Charity. According to him who replied, 'Cosmetics', the ruling27 would apply with even greater force to charity.28 He, however, who explained, 'charity' [restricts his ruling27 to this alone] but cosmetics [he maintains] must he given to her, for [her husband] would not be pleased that she shall lose her comeliness. R. Hiyya b. Abin stated in the name of R. Huna: If a man went to a country beyond the sea, and his wife died, Beth din take possession29 of his estate and bury her in a manner befitting the dignity of his status. [You say] 'In a manner befitting the dignity of his status', and not that of her status!30 - Read, In a manner befitting his status also; and it is this that he31 informs us: She rises with him [in his dignity] but does not go down with him [to a lower status] even after her death. R. Mattena ruled: A man32 who gave instructions that when [his wife] died she shall not be buried at the expense of his estate must be obeyed.33 What, however, is the reason [for obeying the man] when he has left instructions? Obviously because the estate falls to the orphans;34 but the estate falls to the orphans, does it not, even if he left no instructions?35 - [The proper reading], however, is: A man32 who gave instructions that when he dies be shall not be buried at the expense of his estate36 is not to be obeyed, for it is not within his power37 to enrich his sons and throw himself upon the public.
MISHNAH. SHE38 REMAINS39 UNDER THE AUTHORITY OF HER FATHER40 UNTIL SHE ENTERS
(1) שארה כסותה (Ex. XXI, 10), 'her age, her raiment'. שאר = flesh (cf. supra note 8), hence 'body', 'age'.
(2) Lit., 'to her'.
(3) כסותה ועונתה (Ex. XXI, 10), 'her raiment and her time' עונה = 'time', 'season'.
(4) Lit., 'her season'.
(5) Which might be too warm for her in the hot weather.
(6) Being worn thin they would not provide sufficient protection from cold.
(7) Lit., 'in the days of the rains'.
(8) Cf. supra p. 273, n. 6.
(9) Lit., 'nearness of flesh'.
(10) Since the ruling is attributed to R. Judah.
(11) Two flutes and one lamenting woman.
(12) Lit. 'that it is her (sc. her family's) custom'.
(13) Cf. supra n. 8 mutatis mutandis.
(14) A wife.
(15) Her husband.
(16) I.e., enjoys his advantages but does not suffer his disadvantages.
(17) As in the instance dealt with infra 61a.
(18) Lit., 'go down into'.
(19) This is explained infra.
(20) The case dealt with by R. Huna.
(21) This is explained infra.
(22) Infra 107a.
(23) From his home to a foreign country.
(24) From society. sc. becomes insane.
(25) In the former case the man could have left instructions, if he were minded to do so, that his wife and family should be provided for. Since, however, he left no such instructions, it is obvious that he had no intention of providing for them. Hence the ruling that his wife, whom he is under a legal obligation to maintain, (her claim being secured on his estate in accordance with the terms of her kethubah) must be provided for by the Beth din out of his estate; not however, his sons and daughters who have no legal claim upon their father's estate. Where, however, a man becomes insane it may well be assumed that it was his wish that both his wife and family shall be properly provided for out of his estate.
(26) Lit., 'this'.
(27) Of the Baraitha that 'anything else' was not to be provided for.
(28) Since the court which has no right to provide from a man's estate for his own wife's personal enjoyments would have much less power to exact from that estate for charity.
(29) Lit., 'go down into'.
(30) Why should she suffer indignity on account of his lower status?
(31) R. Huna.
(32) While in a dying condition. The instructions of a dying man have the force of a legally written document.
(33) Having survived her husband and collected her kethubah a wife has no further claim upon his estate which is consequently inherited by his sons.
(34) Cf. supra n. 2.
(35) And they, of course, are under no obligation to bury the widow.
(36) But at the public cost.
(37) Lit., 'all from him'.
(38) A na'arah (v. Glos.). This Mishnah is a continuation of the previous one, supra 46b.
(39) לעולם, lit., 'for ever', 'always'.
(40) Even after her betrothal. He is entitled to all his privileges; and,' if she is the daughter of an Israelite, although betrothed to a priest, terumah is forbidden to her.
Talmud - Mas. Kethuboth 48b
UNDER THE AUTHORITY OF HER HUSBAND1 [BY GOING INTO THE BRIDAL CHAMBER]2 AT MARRIAGE. IF HER FATHER DELIVERED HER TO THE AGENTS OF THE HUSBAND3 SHE PASSES4 UNDER THE AUTHORITY OF HER HUSBAND. IF HER FATHER WENT WITH HER HUSBAND'S AGENTS5 OR IF THE FATHER'S AGENTS WENT WITH THE HUSBAND'S AGENTS5 SHE REMAINS4 UNDER THE AUTHORITY OF HER FATHER. IF HER FATHER'S AGENTS DELIVERED HER TO HER HUSBAND'S AGENTS6 SHE PASSES4 UNDER THE AUTHORITY OF HER HUSBAND.
GEMARA. What [is the purport of] REMAINS?7 - To exclude [the ruling] of an earlier8 Mishnah where we learned: If the respective periods9 expired10 and they were not married11 they are entitled to maintenance out of the man's estate12 and [if he is a priest]13 may also eat terumah.14 Therefore 'REMAINS'15 Was used.16 IF HER FATHER DELIVERED HER TO THE AGENTS OF THE HUSBAND SHE PASSES UNDER THE AUTHORITY OF HER HUSBAND etc. Rab ruled: Her delivery [is regarded as entry into the bridal chamber] in all respects17 except that of terumah;18 but R. Assi ruled in respect of terumah also. R. Huna, (or as some Say, Hiyya b. Rab,) raised an objection against R. Assi: She remains15 under the authority of her father until she enters the bridal chamber.19 'Did I not tell you', said Rab to them,20 'that you should not be guided by an ambiguous statement?21 He22 can answer you that "her delivery" is regarded as her entry into the bridal chamber'. Samuel, however, ruled: [Her delivery has the force of entry into the bridal chamber only in respect] of her inheritance.23 Resh Lakish ruled: [Only in respect] of her kethubah.24 What is meant by 'her kethubah'? [If it means] that should [the woman] die he inherits it,25 [then this ruling is, is it not,] the same as that of Samuel?26 Rabina replied: The meaning is27 that her [statutory] kethubah from a second husband28 is only a maneh.29 Both R. Johanan and R. Hanina ruled: Her delivery [is regarded as entry into the bridal chamber] in all respects. even that of terumah.30 An objection was raised: If the father went with the agents of the husband, or if the agents of the father went with the agents of the husband, or if she had a court-yard on the way, and she entered it with him31 to rest there for the night,32 her father inherits from her if she died, although her kethubah33 is already in the house of her husband. If, however, her father delivered her to her husband's agents, or if her father's agents delivered her to her husband's agents, or he34 had a court-yard on the way, and she entered it with him with an intention to matrimony, her husband is her heir if she died, although her kethubah33 was still in her father's house.35 This ruling36 applies only in respect of her inheritance37 but in respect of terumah [the law is that] no woman is allowed to eat terumah until she enters the bridal chamber.38 [Does not this represent] a refutation of all?39 This is indeed a refutation. [But] is not this,40 however, self-contradictory? You said. 'She entered it with him to rest for the night'. The reason [why such an act is not regarded as entry into the bridal chamber is] because [the entrance was made specifically for the purpose of] resting for the night. Had it, however, been made with no specified intention [it would be deemed to have been made] with an intention to matrimony. Read, however, the final clause: 'She entered it with him with an intention to matrimony', from which it follows, does it not, that if the entrance was made with no specified intention [it would be deemed to have been made just] in order to rest there for the night? - R. Ashi replied: Both entrances mentioned41 are such as were made with no specified intention, but any unspecified [entrance into] a court-yard of hers [is presumed to have been made] in order to rest there for the night while any unspecified [entrance into] a court-yard of his42 [is presumed to have been made] with an intention to matrimony. A Tanna taught: If a father delivered [his daughter]43 to the agents of her husband and she played the harlot44 her penalty is that45 of strangulation.46 Whence is this ruling deduced? - R. Ammi b. Hama replied: Scripture stated,47 To play the harlot in her father's house,48 thus excluding one whom the father had delivered to the agents of the husband. Might it not be suggested that this48 excludes one who entered her bridal chamber but with whom no cohabitation had taken place?49 - Raba replied: Ammi told me [that a woman50 who entered her] bridal chamber was explicitly51 mentioned in Scripture: If there be a damsel that is a virgin betrothed unto a man;52 'a damsel' but not a woman who is adolescent, 'a virgin' 'but not a woman with whom intercourse took place, 'betrathed' but not one married.53 Now what [is meant by] 'one married'? If it be suggested: One actually married, [it can be objected that stich a deduction]54 would be practically the same as that of 'a virgin but not one with whom intercourse took place'. Consequently it must be concluded41 [that by 'married' was meant one] who entered into the bridal chamber but with whom no intercourse took place.55
(1) far. lec. 'to the bridal chamber' (v. Tosaf. 48a, s.v. לעולם).
(2) Huppah (v. Glos.); cf. Rashi, a.l. and cf. supra n. 10.
(3) Who were sent to bring her from her father's house to that of her husband.
(4) Lit., 'behold she is'.
(5) To her husband's house.
(6) Neither they nor her father who sent them accompanying her to the house of her husband.
(7) לעולם, lit., 'for ever', 'always'. The omission of לעולם would not in any way alter the actual ruling except the wording which would then read, 'She is under' etc. Why then was an apparently superfluous word inserted?
(8) Lit., 'first'.
(9) One of twelve months for a virgin and of thirty days for a widow (from the date their intended husbands claimed them) in which to prepare their marriage outfits.
(10) Lit., 'the time arrived'.
(11) Through their future husbands' delay or neglect.
(12) Lit., 'eat of his'.
(13) Though they are daughters of Israelites.
(14) Infra 57a.
(15) V. note I.
(16) Sc. despite the expiry of the prescribed period a daughter REMAINS UNDER THE AUTHORITY OF HER FATHER UNTIL etc. and is consequently forbidden to eat terumah (cf. supra p. 276, n. 9).
(17) Sc. the man obtains all the privileges to which a husband is entitled from the moment the bride enters the bridal chamber (e.g., the right to her handiwork, heirship).
(18) The woman, if she is the daughter of an Israelite, is forbidden to eat it though the man is a priest (v. infra 57b).
(19) And until then she is forbidden to eat terumah (cf. supra p. 276, n. 9). How then could R. Assi maintain that terumah is permitted to her?
(20) His disciple R. Huna and his son Hiyya.
(21) איפכא, lit., 'reverse'.
(22) Sc. R. Assi. MS.M., TT.
(23) I.e., if she died on the way between her father's house and that of her husband, her dowry (given to her by her father) is inherited by her husband although he is not entitled to his other rights until her entrance into the bridal chamber.
(24) This is explained anon.
(25) Viz., the dowry her father gave her which forms one of the entries in her kethubah.
(26) V. p. 277 n. 17
(27) Lit., 'to say'.
(28) If her first husband died while she was on the way with his agents.
(29) V. Glos. The amount prescribed for a widow. A virgin is entitled to two hundred zuz.
(30) Cf. supra p. 277. n. 12 mutatis mutandis.
(31) Her husband.
(32) With no matrimonial intention.
(33) I.e., the dowry her father gave her.
(34) Her husband.
(35) I.e., the objects specifically assigned to her as dowry were still in her father's house.
(36) That delivery to the husband's agents has the force of a marriage.
(37) V. supra p. 277, n. 17.
(38) Tosef. Keth. IV.
(39) Lit., 'all of them', those (with the exception of Samuel) whose rulings differ from this Baraitha.
(40) The Baraitha last mentioned.
(41) In the first and second clauses.
(42) Her husband.
(43) Cf. supra p. 276, n. 7.
(44) Prior to her entry into the bridal chamber.
(45) Lit., 'behold this'.
(46) Like that of a married woman; not stoning which is the penalty of one betrothed.
(47) In prescribing the penalty of stoning.
(48) Deut. XXII, 21.
(49) What proof is there that one who had not even entered the bridal chamber is also excluded?
(50) Prior to marriage
(51) I.e., is deduced from a specific expression.
(52) Deut. XXII, 23.
(53) V. Sanh. 66b.
(54) Betrothed but not actually married'. (15) Lit., 'but not?'
(55) Since this text excluded such a case from the penalty of stoning no other text is required for the same purpose. Deut. XXII, 21, is consequently free for the deduction made by R. Ammi.
Talmud - Mas. Kethuboth 49a
But might not one suggest that if she1 returned2 to her parental home she resumes her former status?3 - Raba replied: A Tanna of the school of R. Ishmael has long ago settled this difficulty. For a Tanna of the school of R. Ishmael taught: What need was there for Scripture to state, But the vow of a widow, or of her that is divorced, even everything wherewith she bath bound her soul, shall stand against her?4 Is she not free from the authority of her father5 and also from that of her husband?6 [The fact], however, is that where7 her father had delivered her to the agents of her husband, or where the agents of her father had delivered her to the agents of her husband and, on the way,8 she became a widow or was divorced9 [one would not know] whether she was to be described as of10 the house of her father11 or as of the house of her husband;12 hence the need for the text13 to tell you that as soon as she has left her father's authority,14 even if only for a short while, he may no longer annul her vows.15 Said R. Papa: We also learned [a similar ruling]:16 A man who has intercourse with a betrothed girl incurs no penalties17 unless she is a na'arah,18 a virgin, betrothed, and in her father's house.19 Now one can well see that 'na'arah' excludes20 one who is adolescent, 'virgin' excludes20 one with whom a man has had intercourse, and 'betrothed' excludes one who married [by entry into the bridal chamber].21 What, [however, could the expression] 'in her father's house' exclude? Obviously this:22 [The case where] her father delivered her to the agents of the husband.23 R. Nahman b. Isaac said: We also learned [a similar ruling]:24 Should one have intercourse with a 'married woman'25 the latter,26 provided she entered under the authority of her husband,27 although no intercourse had taken place, is to he punished by strangulation.28 'She entered under the authority of her husband' [implies]29 in any form whatever.30 This is conclusive proof.
MISHNAH. A FATHER31 IS UNDER NO OBLlgation TO MAINTAIN HIS DAUGHTER. THIS EXPOSITION32 WAS MADE BY R. ELEAZAR B. AZARIAH33 IN THE PRESENCE OF THE SAGES IN THE VINEYARD OF JABNEH:34 [SINCE IT WAS ENACTED THAT] THE SONS SHALL BE HEIRS [TO THEIR MOTHER'S KETHUBAH]35 AND THE DAUGHTERS SHALL BE MAINTAINED [OUT OF THEIR FATHER'S ESTATE,35 THE TWO CASES MAY BE COMPARED:] AS THE SONS CANNOT BE HEIRS EXCEPT AFTER THE DEATH OF THEIR FATHER, SO THE DAUGHTERS CANNOT CLAIM MAINTENANCE EXCEPT AFTER THE DEATH OF THEIR FATHER.
GEMARA. [Since it has been said that] he is UNDER NO OBLIGATION TO MAINTAIN HIS DAUGHTER Only, it follows36 that he is under an obligation to maintain his son, [and in the case of] his daughter also, since he is only exempt from37 legal OBLIGATION he is, obviously, still subject38 to a moral duty; who, [then, it may be asked, is the author] of our Mishnah? [Is it] neither R. Meir nor R. Judah nor R. Johanan b. Beroka? For it was taught: It is a moral duty39 to feed one's daughters, and much more so ones sons,
(since the latter are engaged in the study of the Torah);40 so R. Meir. R. Judah ruled: It is a moral duty to feed ones sons, and much more so one's daughters,
(in order [to prevent their] degradation).41 R. Johanan b. Beroka ruled: It is a legal obligation to feed one's daughters42 after their father's death; but during the lifetime of their father neither sons nor daughters need be43 fed.44 Now who [could be the author of] our Mishnah? If R. Meir, he, surely, [it may be objected] ruled that [the maintenance of] sons [was only] a moral duty.45 If R. Judah, he, surely ruled that also46 [the maintenance of] sons [was only] a moral duty.45 And if R. Johanan b. Beroka [should be suggested, the objection would be: Is not his opinion that] one is not even subject to47 a moral duty?45 - If you wish I might say [that the author is] R. Meir; If you wish I might Say: R. Judah; and if you prefer I might Say: R. Johanan b. Beroka. 'If you wish I might say [that the author is] R. Meir', and it is this that he meant:48 A FATHER IS UNDER NO OBLIGATIon TO MAINTAIN HIS DAUGHTER, and the same law applies to his son. [Maintenance], however, is a moral duty in the case of his daughter and, much more so, in the case of his sons; and the reason why49 HIS DAUGHTER was mentioned50 was to teach us this:
(1) Whom HER FATHER DELIVERED TO THE AGENTS OF THE HUSBAND.
(2) Before she reached her husband's house.
(3) Since she is again 'in her father's house' her penalty might again be changed from strangulation (the penalty for a married woman) to stoning (the penalty for one betrothed who is in her father's house, (Deut. XXII, 21). This does not exactly raise a difficulty against our Mishnah, but is an attempt merely at elucidating the law (Rashi).
(4) Num. XXX, 10.
(5) Since she was once married. A father's control over his daughter ceases with her marriage.
(6) Being now a widow or a divorcee. Now since neither father nor husband may annul her vows it is self-evident that her vows 'stand against her'. What need then was there for the text of Num. XXX, 10.
(7) Lit., 'behold'.
(8) To her husband's house.
(9) And so returned to her parental home.
(10) Lit., 'how I read about her'.
(11) Because, not having reached her husband's house, she has not passed entirely out of her father's control. Her father should consequently be entitled to annul her vows.
(12) Who is now dead or divorced. Her vows consequently, like those of any other widow or divorcee, could no longer be annulled.
(13) Lit., 'but'.
(14) As, for instance, where she was delivered to the husband's agents.
(15) Yeb. 87a. As in respect of vows the woman is no longer regarded as being 'in her father's house' so also in respect of her penalties.
(16) Sc. a Mishnah which supports the ruling of the Baraitha supra 48b: 'If a father delivered . . . her penalty is that of strangulation'.
(17) Sc. the penalties prescribed in Deut. XXII, 24ff.
(18) V. Glos.
(19) Sanh. 66b.
(20) Lit., 'and not'.
(21) Before intercourse Lad taken Place (cf. supra 48b 3d fit.).
(22) Lit., 'not, to exclude?'
(23) Cf. supra p, 280, notes 4 and 16.
(24) V. supra p. note 1.
(25) Lit., 'the wife of a man'.
(26) Sc. the woman. So according to MS.M. (v. infra n. 13).
(27) So MS.M. Cur. edd. insert 'for marriage'.
(28) So MS.M., הרי זו בהנק Cur. edd. הבא עליה הרי זה בחנק
(29) Since even 'bridal chamber' was not mentioned.
(30) Lit., 'in the world'; even mere delivery to the husband's agents.
(31) During his lifetime. V. infra.
(32) On the formula of the kethubah.
(33) On the day when he was appointed president of the College (Rashi, cf. Ber. 27b).
(34) Or Jamnia. The כרם יבנה was either the name of the school, so called because the students 'sat in rows' like 'vines in a vineyard' (Rashi), or an actual vineyard in which the scholars met (Krauss). The school of Jabneh was established by R. Johanan b. Zakkai during the siege of Jerusalem by Vespasian. Cf. B.B. (Sonc. ed.) p. 549, n. 4.
(35) A formula to that effect must be entered in a kethubah, v. Mishnah infra 52b.
(36) As DAUGHTER only was mentioned.
(37) Lit., 'there is not'.
(38) Lit., 'there is'.
(39) Though after a certain age there is no legal obligation.
(40) The bracketed words are the Talmudic comment on this teaching. (V. Rashb. s.v. דעסקי B.B. 141a).
(41) In their search for a livelihood, cf. n. 6.
(42) In accordance with the terms of their mother's kethubah.
(43) Lit., 'these and these are not'
(44) Cf. Tosef. Keth. IV and BB. 141a.
(45) While our Mishnah implies a legal obligation.
(46) נמי. This may be omitted with MS.M.
(47) Lit., 'there is not.
(48) In his statement in our Mishnah.
(49) Lit, 'and that'.
(50) And not 'son'. Cf. supra p. 282, n. 2 and text.
Talmud - Mas. Kethuboth 49b
That even in the case of his daughter1 he is only exempt from a legal obligation but is nevertheless subject to a moral duty.2 'If you wish I might say: R. Judah'; and it is this that he meant: A FATHER is UNDER NO OBLIGATION TO MAINTAIN HIS DAUGHTER, and much more so3 his son.4 It is, however, a moral duty [to maintain] one's son and, much more so, ones daughters; and the only reason why HIS DAUGHTER was mentioned Was to teach us this: That even [the maintenance of] one's daughter is no5 legal obligation. 'And if you prefer I might say: R. Johanan b. Beroka', and what Was meant is this: HE IS UNDER NO OBLIGATION TO MAINTAIN HIS DAUGHTER, and the same law applies to his son; and this, furthermore, means6 that [such maintenance] is not even5 a moral duty; only because [the maintenance of daughters] after their father's death is a legal obligation, the expression, HE IS UNDER NO OBLIGATION, was used here also.7 R. Elai stated in the name of Resh Lakish who had it from R. Judah8 b. Hanina: At Usha9 it was ordained that a man must maintain his sons and daughters while they are young.10 The question was raised: Is the law in agreement with his statement or not? - Come and hear: When people came before Rab Judah,11 he used to tell them, 'A Yarod12 bears progeny and13 throws them upon [the tender mercies of] the townspeople'.14 When people came before R. Hisda,10 he used to tell them, 'Turn a mortar15 for him upside down,16 in public and let one17 stand [on it] and say: The raven cares18 for its young but that man19 does not care for his children'.20 But does a raven care18 for its young? Is it not written in Scripture,21 To the young ravens which cry?22 - This is no difficulty. The latter23 applies to white ravens24 and the former25 to black ones.26 When a man27 came before Raba he used to tell him, 'Will it please you that your children should be maintained from the charity funds?'28 This ruling,29 however, has been laid down only for one who is not a wealthy man, but if the man is wealthy he may be compelled30 even against his wish; as was the case with31 Raba who used compulsion against R. Nathan b. Ammi32 and extracted front him four hundred zuz33 for charity.34 R. Elai stated in the name of Resh Lakish: It was enacted at Usha35 that if a man assigned all his estate to his sons in writing, he and his wife36 may nevertheless37 be maintained out of it. R. Zera, or as some say, R. Samuel b. Nahmani, demurred: Since the Rabbis went so far as to rule38 that [in the case that follows] a widow is maintained out of her husband's estate, was there any necessity [to state that such maintenance is allowed to] the man himself and his wife? For Rabin had sent in his letter:39 If a man died and left a widow and a daughter, his widow is to receive her maintenance from his estate?40 If the daughter married,41 his widow is still to receive her maintenance from his estate. If the daughter died?42 Rab43 Judah the son of the sister of R. Jose b. Hanina said: I had such a case, and it was decided44 that his widow was to receive her maintenance from his estate.45 [In view of this ruling we ask: Was it] necessary [to give a similar ruling46 in respect of] the man himself47 and his wife? - It might have been assumed [that the law applies only] there,48 because there is no one else to provide for her,49 but here [it might well be argued:] Let him provide for himself and for her;50 hence we were taught [that here also the same ruling applies]. The question was raised: Is the law in agreement with his view51 or not? - Come and hear: R. Hanina and R. Jonathan were once standing together when a man approached them and bending down kissed R. Jonathan upon his foot. 'What [is the meaning of] this?' said R. Hanina to him.52 'This man', the other52 replied, 'assigned his estate to his sons in writing
(1) Who is not engaged in the study of the Torah.
(2) Had 'son' been mentioned instead of DAUGHTER it might have been assumed that the maintenance of a daughter is not even a moral duty.
(3) MS.M., 'and the same law applies to'.
(4) Since it is easier for a man to earn his livelihood.
(5) Lit., 'there is not'.
(6) Lit., 'and that is the law'.
(7) In fact, however, there is neither legal obligation nor moral duty.
(8) Variant, 'R. Jose' (Alfasi and Rosh).
(9) Usha was a town in Galilee, in the vicinity of Sepphoris and Shefar'am, where the Sanhedrin met after it left Jabneh (Jamnia). It was also the place where, after the wars of Bar Cochba, on the cessation of the religious persecutions which characterised the Hadrianic reign in the middle of the second century, an important Rabbinical synod was held. Cf. B.B. (Sonc. ed.) p. 139, n. 1; p. 141, n. 4 and p. 207, n. 3. [On the Synod of Usha v. J.E, XI, 645ff.].
(10) Lit., 'small', under age of puberty (Rashi).
(11) With the case of a father who refused to maintain his young children.
(12) יארוד (Heb. תנים) 'A bird of solitary habits' (Jast.); 'dragon' or 'jackal' (Rashi). Cf. the rendering of תנים, in Jer. IX, 10 by A.V. and R.V. respectively.
(13) Neglecting them.
(14) From which observation it follows that a judge can only censure a heartless father but has no power to compel him to provide for the maintenance of his children.
(15) אסיתא, v. Krauss, TA, I, 447.
(16) An improvised platform.
(17) Aliter, 'him', sc. the father.
(18) Lit., 'asks'.
(19) ההוא גברא, sc. the father. According to the second interpretation, (supra note 8) the expression, as elsewhere, may refer to the speaker himself.
(20) V. supra note 5,
(21) Ps. CXLVII, 9.
(22) Presumably for food; which shews that the parent neglects them.
(23) Lit., 'that', the text implying neglect of the young ravens.
(24) Sc. very young ones. These are disliked by their parents (Rashi).
(25) Rab Judah's statement that ravens do care for their young.
(26) Older birds. For such the parents do care.
(27) Who refused to maintain his young children.
(28) V. supra note 5.
(29) That a father cannot legally be compelled to maintain his children.
(30) To maintain his children.
(31) Lit., 'like that of'.
(32) Who was a wealthy man.
(33) V. Glos.
(34) How much more then may compulsion be used against a wealthy father who refuses to provide for his own children.
(35) Cf. supra p. 183, n. 12.
(36) Though the sons are now the legal owners of the estate.
(37) By virtue of the enactment of Usha.
(38) Lit., 'greater than this did they say'.
(39) From Palestine to Babylon.
(40) In accordance with his undertakings in her kethubah.
(41) And the estate was transferred into her husband's ownership.
(42) And her possessions were inherited by her husband who is her heir.
(43) So in the parallel passage. B.B. 193a. Cur. edd 'Rabbi'.
(44) Lit., 'they said'.
(45) B.B. 193a.
(46) That despite the assignment, maintenance may be drawn from the estate.
(47) Who made the assignment.
(48) The case of the widow spoken of in Rabin's letter.
(49) Lit., 'who may take the trouble'. Her husband being dead she would have been helpless without the allowance for her maintenance.
(50) And consequently should not be allowed to draw upon the estate he assigned to his sons.
(51) That of R. Elai.
(52) R. Jonathan.
Talmud - Mas. Kethuboth 50a
and I compelled them to maintain him'. Now if it be conceded that this1 was not [in accordance with the strict] law one can well understand why he had to compel them,2 but if it be contended that this3 is the law, would it have been necessary for him [it may be objected] to compel them?4 R. Elai stated: It was ordained at Usha5 that if a man wishes to spend liberally6 he should not spend more than a fifth.7 So it was also taught: If a man desires to spend liberally6 he should not spend more than a fifth,7 [since by spending more] he might himself come to be in need [of the help] of people.8 It once happened that a man wished to spend6 more than a fifth7 but his friend did not allow him. Who was it?9 - R. Yeshebab. Others say [that the man who wished to spend was] R. Yeshebab, but his friend did not allow him. And who was it?9 R. Akiba. R. Nahman, or as some say, R. Aha b. Jacob, said: What [is the proof from] Scripture?10 - And of all that Thou shalt give me I will surely give the tenth11 into thee.12 But the second tenth,13 surely, is not like the first one? - R. Ashi replied: I will . . . give a tenth of it14 [implies 'I will make] the second like the first'. Said R. Shimi b. Ashi: [The number of those who report] these traditions15 steadily diminishes,16 and your mnemonic17 is 'The young18 assigned in writing19 and spend liberally'.20 R. Isaac stated: It was ordained at Usha21 that a man must bear22 with his son until [he is] twelve years [of age]. From that age23 onwards he may threaten24 his life.25 But could this be correct?26 Did not Rab, in fact, say to R. Samuel b. Shilath,27 'Do not accept [a pupil] under the age of six; a pupil of the age of six you shall accept and stuff him like an ox'?28 - Yes, 'stuff him like an ox', but he may not 'threaten him'24 until after [he has reached the age of] twelve years. And if you prefer I may say: This29 is no difficulty, since one may have referred30 to Scripture31 and the other to Mishnah; for Abaye stated: Nurse32 told me that a child of six [is ripe] for Scripture; one of ten, for Mishnah; one of thirteen,33 for a full twenty-four hours'34 fast,35 and, in the case of a girl,36 [one who is of] the age of twelve.37 Abaye stated, Nurse32 told me: A child of the age of six whom a scorpion has bitten on the day on which he has completed his sixth year does not survive [as a rule].38 What is his remedy? - The gall of a white stork39 in beer. This should be rubbed into the wound [and the patient] be made to drink it. A child of the age of one year whom a bee has stung on the day he has completed his first year does not survive [as a rule].38 What is his remedy? - The creepers of a palm-tree in water. This should be rubbed in and [the patient] be made to drink it. Said R. Kattina: Whosoever brings his son [to school] under the age of six will run after hint but never overtake him.40 Others say: His fellows will run after him but will never overtake him.41 Both statements, however, are correct:42 He is feeble but learned. If you prefer I might say: The former43 applies to one44 who is emaciated; the latter, to one44 who is in good health. R. Jose b. Hanina stated:45 At Usha46 it was ordained that if a woman had sold usufruct property47 during the lifetime of her husband and then died, the husband48 may seize it from the buyers.49 R. Isaac b. Joseph found R. Abbahu standing among a crowd of people.50 'Who', he said to hint, 'is the author of the traditions of Usha?' - 'R. Jose b. Hanina', the other informed him. He learned this from him forty times and then it appeared to him as if he had it safely in his bag.51 Happy are they that keep justice, that do righteousness at all times.52 Is it possible to do righteousness at all times? - This, explained our Rabbis of Jabneh53
(or, as others say. R. Eliezer), refers to a man who maintains his sons and daughters54 while they are young.55 R. Samuel b. Nahmani said: This52 refers to a man who brings up an orphan boy or orphan girl in his house and enables them to marry. Wealth and riches are in his house; and his merit endureth for ever.56 R. Huna and R. Hisda [expounded the text in different ways]. One said: It applies to a man who studies the Torah57 and teaches it to others;58 and the other said: It applies to a man who writes the Pentateuch, the Prophets and the Hagiographa and lends them to others.59 And see thy children's children,' peace be upon Israel.60 R. Joshua b. Levy said: As soon as your children have children there will be peace upon Israel; for they will not be subject to halizah61 or levirate marriage.62 R. Samuel b. Nahmani said: As soon as your children have children63 there will be peace for the judges of Israel, for [doubtful claimants] will not come to quarrels.64 THIS EXPOSITION WAS MADE BY R. ELEAZAR B. AZARIAH65 IN THE PRESENCE OF THE SAGES etc.
(1) Maintenance of their father by sons to whom he had assigned his estate.
(2) He compelled them to obey the enactment of Usha though they pleaded adherence to the strict law'.
(3) V supra note 2.
(4) Naturally not, Since the sons would have had no ground whatsoever on which to base their refusal.
(5) V. Supra p. 283, n. 12.
(6) In charity.
(7) Of his wealth. (The reason is given anon. Cf. infra 76b, 'Ar. 282).
(8) Lit., 'creatures'.
(9) His friend.
(10) That no more than a fifth may be spent on charity.
(11) שנועשר אע (Infinitive and Imperfect), the repetition of the verb עשר ('to give a tenth') implies two tenths or one fifth.
(12) Gen. XXVIII, 22.
(13) Which, being taken from the nine tenths that remained after the first tenth had been given away. represents only (1/10 X 9/10 _ ) 9/100 of the original capital.
(14) אעשרנו, So lit. imperfect with suffix of 3rd sing. instead of the imperfect אעשר
(15) The enactments of Usha reported supra by R Elai.
(16) The first enactment was reported by three Amoraim: R Elai, Resh Lakish and R. Judah (or Jose) b. Hanina (supra 40b), the second only by two: R. Elai and Resh Lakish (supra l.c.). while the third was reported by R Elai alone.
(17) An aid to the recollection of the order in which they were cited and thereby the order of the diminutions.
(18) 'A man shall maintain . . . while they are young' (supra 49b.
(19) 'If a man assigned . . . in writing' (supra l.c.).
(20) 'If a man wishes to spend liberally' (the last cited enactment).
(21) V. Supra p. 183, n. 12.
(22) Lit ,'roll', i.e., have patience with him, and employ gentle means to induce him to study.
(23) Lit., 'from here'.
(24) Lit., 'go down with him into'.
(25) Sc. he may adopt drastic measures if his son is neglectful or indifferent.
(26) Lit., 'I am not (in agreement)'.
(27) A teacher of young children (v. B.B. 8b).
(28) B.B. 21a. This seems to shew that the age of compulsion is six, contrary to R. Isaac's tradition which puts it at twelve.
(29) Cf. supra n. 14.
(30) Lit., 'that'.
(31) Which a child should begin studying at the age of six.
(32) His mother died while he was an infant, and his upbringing was entrusted to a nurse from whom he learned many proverbs and maxims, legends and folklore; v. Kid. 31b.
(33) תתליסר, V n. 23 .
(34) מעת לעת, lit., 'from time to time', from a certain hour of one day to the same hour on the following day.
(35) The fast of the Day of Atonement and that of the Ninth of Ab last for a full twenty-four hours, beginning near sunset and terminating at nightfall on the following day.
(36) Who matures earlier.
(37) Sc. twelve years and one day (Tosaf s.v. ובת, a.l., contrary to Rashi who interprets 'twelve' as 'twelfth', viz., from the age of eleven years and a day). [The text is uncertain. MS.M. and Asheri read 'and one of twelve () for a full twenty four hours' fast and in the case of a little girl'. This may mean; (a) 'and that applies to a little girl', whereas in the case of a boy the age for a full fast begins at thirteen, or (b) 'and the same law applies to a girl'; v. Isaiah Trani. Tosaf. seems to have had a still shorter text with no reference to a boy; y. Tosaf. s.v. ].
(38) Unless the appropriate remedy is applied (Rashi). Cf., however, Tosaf. s.v. ומאי a.l.
(39) vhs. The 'white dayyah' is the Talmudic interpretation of חסידה (Lev. XI, 19), E.V. stork (cf. Hul. 63a).
(40) Sc. all his efforts to restore his child to normal health will be of no avail. His health remalns irrevocably ruined.
(41) He will always surpass them in knowledge and attainments.
(42) Lit., 'they are.
(43) V. supra n. 3.
(44) Lit., 'that'.
(45) Infra 78b, B.K. 88b, B.M. 35a, 96b, B.B. 50a. 139b.
(46) V. supra p. 183, n. 12.
(47) Melog (v.Glos).
(48) Who has the legal status of a buyer.
(49) Since he is in the position of the earliest purchaser.
(50) באוכלוסא דאינשי, so MS. M. Cur. edd. דאושא 'of Usha'. Var. lec. קאי בהילכתא דאושא 'engaged in teaching the laws passed at Usha' (Jast.).
(51) Sc. would never forget it.
(52) Ps. CVI, 3.
(53) V. supra p. 181, n. 19.
(54) This is a charitable act, since legally they have no claim upon him for maintenance.
(55) Children being 'at all times' dependent on their father, the text cited may well be applied to such a man. צדקה 'righteousness' may also signify 'charity'.
(56) Ps. CXII, 3.
(57) Which is compared to 'wealth and riches'.
(58) His Torah is not thereby diminished so that 'wealth and riches' (v. supra note 7) 'are in his house', and 'his merit' for teaching other people 'endureth for ever'.
(59) Cf. supra notes 7 and 8 mutatis mutandis. The scrolls remain his, while his 'merit endureth for ever' for enabling others to study.
(60) Ps. CXXVIII, 6.
(61) V. Glos.
(62) Which are frequently the cause of quarrels.
(63) Sc. legal heirs.
(64) On the disposal of the estate of the deceased.
(65) So MS. M. and our Mishnah supra 493. Cur. edd. omit 'b. Azariah' from the quotation.
Talmud - Mas. Kethuboth 50b
R. Joseph sat before R. Hamnuna while R. Hamnuna was sitting and discoursing: As sons may obtain their inheritance only from landed property so may one's daughters obtain their maintenance only from landed property. All shouted at him: 'Is it only from a man who leaves land that sons inherit while from him who leaves no land his sons do not inherit?'1 Said R. Joseph to him:2 Might not the Master have been speaking of the kethubah [that is due to] male children?3 The other2 replied: The Master who is a great man understood precisely what I meant.4 R. Hiyya b. Joseph stated: Rab allowed maintenance [to daughters]5 from wheat6 of 'aliyyah.7 The question was raised: Was [Rab's allowance made for] a marriage outfit,8 and by 'aliyyah is meant,9 'in accordance with her father's generans10 disposition', [his ruling being] in agreement with that of Samuel who laid down that in respect of marriage outfit the assessment11 is determined by [the disposition of] the father;12 or was it rather for actual maintenance,13 and by 'aliyyah was meant9 'in accordance with the chivalrous14 enactments made15 in an upper chamber',16 for R. Isaac b. Joseph stated: In an upper chamber it was enacted that daughters shall be maintained even out of movable property?17 - Come and hear: R. Benai the brother of R. Hiyya b. Abba had in his possession orphans' movable property, and when [he and the daughters of the deceased] came before Samuel, the latter said to him, 'Go and provide maintenance [for them]'. Does not [maintenance refer] to actual maintenance, he being of the same opinion as R. Isaac b. Joseph?18 - No; there19 [the claim] was in respect of marriage outfit, and Samuel [acted] in accordance with his own view, since he laid down that in respect of marriage outfit the assessment20 is determined by [the disposition of] the father.21 [Such] a case22 occurred at Nehardea,23 and the Nehardean judges issued an order24 [in favour of the daughters]. At Pumbeditha also25 R. Hana b. Bizna allowed [daughters] to collect [for their maintenance].26 R. Nahman, however, said to them: Proceed to withdraw [your orders], otherwise27 I shall order the seizure of your mansions. R. Ammi and R. Assi intended to allow maintenance28 out of movable property.29 Said R. Jacob b. Idi to them: In a matter concerning which R. Johanan and Resh Lakish hesitated to act30 would you [venture to] act? R. Eleazar intended to allow maintenance28 out of movable property.29 Said R. Simeon b. Eliakim to him: 'Master, I know that in your decision31 you are not acting on the line32 of justice but on the line of mercy, but [the possibility ought to be considered that] the students might observe this ruling and fix it as an halachah for future generations'. A similar case33 was once submitted to34 R. Joseph. 'Give her', he ordered, 'of the dates that [are spread] on the reed-mat'.35 Said Abaye to him, 'Even if she were a creditor36 would the Master have allowed her [a privilege] of such a nature?'37 - 'What I mean is', the other said to him, '[dates] that are suitable38 for [spreading on] the reed-mat'.39
(1) Certainly not. The Torah did not restrict the laws of inheritance to landed estates only.
(2) R. Hamnuna.
(3) If their mother pre-deceased their father they are entitled to recover her kethubah from his estate over and above the shares to which they like the other sons are entitled.
(4) The comparison made between the maintenance of daughters and the inheritance of sons was not, as the others who shouted assumed, the ordinary inheritance of sons, which is a Pentateuchal right, but their inheritance of their mother's kethubah (v. supra n. 3) which, like the maintenance of daughters, is merely a Rabbinical obligation undertaken by their father in accordance with the terms of the kethubah which he gave to their mother. Cf. infra 52b, and 91b.
(5) In the absence of real estate.
(6) Sc. movable property.
(7) דעלײה. The noun עליה may signify either 'upper chamber' or 'best' 'generous'. The meaning is discussed anon.
(8) Which is levied from movables also.
(9) Lit., 'and what 'aliyyah?'
(10) Cf. supra n. 7.
(11) For a daughter, out of her deceased father's estate.
(12) Infra 68a. A bigger allowance if he was known to be generous, and a smaller one if he was known to be niggardly.
(13) Which, forming one of the terms of the kethubah, may legally be recovered like the statutory kethubah itself, from landed property only.
(14) Lit., 'good'.
(15) In favour of daughters.
(16) Cf. 'the upper chamber of Hananiah b. Hezekiah' (Shab. 13b) and v. supra
(17) [Despite the fact that the lien clause in the Mishnah on which they base their claims to maintenance did not include movables, v. infra 56b].
(18) Who testified supra to the enactment made in favour of daughters.
(19) In the case dealt with by Samuel.
(20) V. p. 290, n. 11.
(21) V. p. 290, n. 12.
(22) In which daughters claimed maintenance from their deceased father's movable property.
(23) V. supra p. 222, n. 8.
(24) Lit., 'judged'.
(25) Where a similar case (v. supra n. 6) occurred.
(26) From the movable property of their deceased father.
(27) Lit., 'and if not'.
(28) Of daughters.
(29) V. supra n. 10.
(30) Lit., 'did not do a deed'.
(31) Lit., 'in you'.
(32) Lit., 'measure'.
(33) Of a daughter who claimed maintenance out of her deceased father's estate.
(34) Lit., 'that (case) which came before'.
(35) To dry; sc. movable property.
(36) Who is entitled to distrain upon sold property, a right to which a daughter is not entitled.
(37) The seizure of movable assets. The answer being in the negative, the question arises: How could R. Joseph allow a daughter the privilege to which even a creditor is not entitled?
(38) I. e., ripe.
(39) But are still attached to the tree. Attached fruit has the status of landed property.