Babylonian Talmud: Tractate Kethuboth

Folio 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.

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.