Babylonian Talmud: Tractate Kethuboth

Folio 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 forgotten.²⁰  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 life.⁴³  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.

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.