Ketubot 32a — the Talmud in English

And

now it is difficult: this

is established for us: he does not receive lashes and pay,

but he receives only the lashes and is exempt from the money; so how did we learn in our Mishna that those liable for excision have a fine!?

Three answers to this question were stated in the Gemara:

a. The answer of Ulla here: everywhere, “he pays and does not receive lashes,” and the Mishna in tractate Makkot is speaking of a case in which he is not liable for a fine.

b. The answer of Rabbi Yohanan [on the following page]: everywhere, “he receives lashes and does not pay,” whereas our Mishna, which makes him liable for a fine, is dealing with one who was not warned, and therefore he does not receive lashes but pays. For according to Rabbi Yohanan, those liable for lashes when inadvertent pay.

c. The answer of Resh Lakish [33b]: our Mishna is in accordance with Rabbi Meir, who holds that “he receives lashes and pays.”

And below, in the Gemara [35b], the Gemara mentions a fourth possibility: our Mishna follows the view of the tanna who holds that those liable for excision do not receive lashes, and therefore they pay. But the Gemara rejected this answer, since it would still be difficult why one who has intercourse with a mamzeret pays a fine, for he is not among those liable for excision, but receives lashes.

Ulla said:

In truth, he does not receive lashes and pay.

However, we do not say that he should receive lashes and not pay, but the opposite: he pays and does not receive lashes. And do not raise a difficulty from our Mishna, asking how he can receive lashes and pay; for he only pays the fine and does not receive lashes.

And if you will say: If so, why did we learn in the Mishna in tractate Makkot that he receives lashes, when he is liable for a fine, and the fine should exempt him from the liability for lashes—

This

is not difficult:

Here—

our Mishna is dealing—

with his sister, a young woman,

who is liable for a fine.

Here—

the Mishna in tractate Makkot, in which we learned that he receives lashes for his sister—is dealing

with his sister, an adult woman,

for whom he does not pay a fine, and therefore he is liable for lashes for her.

a. We learned in the Mishna below, 39a: “One who seduces gives three things, and one who rapes gives four.” One who seduces gives humiliation, depreciation [which results from her becoming one who has had intercourse through him], and a fine. One who rapes adds to this, giving the pain [and there, on 39b, the Gemara explains what the pain is]. What is the difference between one who rapes and one who seduces? One who rapes gives the pain, and one who seduces does not give the pain. And the Gemara explains [there, on 39b] the reason for the matter: “The clever ones among them say: A seduced woman has no pain.”

b. The basis of the liability for humiliation, depreciation, and pain is—in Rashi's view—the law of one who injures another, who is liable for these payments. And this is how the depreciation is assessed: they see what the price of a maidservant is when she is sold in the marketplace as a virgin, at which time her price is high, since the master who purchases her wishes to purchase a virgin maidservant so that he can marry her to a slave who pleases him, and how much her value has decreased now that she has had intercourse; and the one who had intercourse with her pays the difference.

c. The liability for payment of the fine applies only to a young virgin woman, whereas the liability for humiliation, depreciation, and pain applies even to an adult woman.

d. The fine, humiliation, depreciation, and pain of a young woman belong to her father. And if she is an orphan, they belong to her.

And likewise the humiliation, depreciation, and pain of an adult woman belong to her.

e. Even though the liability for these payments [apart from pain] applies both in the case of one who was raped and in the case of one who was seduced, there is a distinction between rape and seduction when the young woman is an orphan or when she is an adult.

For the orphan's fine and all the other payments belong to her, and likewise in the case of the adult woman, all the payments that are paid to her belong to her. Therefore, only one who rapes them has an obligation of payment. But one who seduces them is not liable to pay them anything, because since they act of their own accord, they waive all his liabilities to them.

And the Gemara raises an objection according to Ulla's view, that one who becomes liable for lashes and money pays and does not receive lashes—

But

an adult woman as well—

with whom, according to your words, the Mishna in tractate Makkot is dealing—

there is

a monetary payment of

humiliation and depreciation.

This monetary payment should have exempted him from the lashes, since he pays and does not receive lashes!? And we answer: the Mishna in tractate Makkot is dealing

with an intellectually disabled woman,

who has no humiliation, and since she has no worth for sale in the marketplace, she likewise has no depreciation.

And we still ask:

But there is

a monetary payment for

pain,

even when she is an adult and intellectually disabled, and this money should exempt him from the lashes according to Ulla's view!?

And we answer: the Mishna in tractate Makkot is dealing

with one who seduced,

who has no pain.

Now,

and from this point,

now that you have arrived at this [

since you have come] to explain the Mishna in tractate Makkot as dealing with one who was seduced, we no longer need to explain it as dealing with an adult woman, so that the liability for a fine should not exempt him from the lashes, nor as dealing with an intellectually disabled woman, so that the liability for humiliation and depreciation should not exempt him from the lashes. Rather:

Even if you say

that the Mishna in Makkot deals with

his sister, a young woman,

who ordinarily has a fine, and when she is intellectually competent she also has humiliation and depreciation, nevertheless the fine, humiliation, and depreciation will not exempt him from the lashes, because here, in the Mishna in Makkot, we are dealing

with an orphan,

to whom the fine, humiliation, and depreciation are paid and not to her father,

and

she is

one who was seduced.

And since she acts of her own accord, she waives for him all the monetary payments due to her; and since he is not liable to her for any money, there is therefore a liability for lashes.

It follows

that it is established that

Ulla holds: wherever there is money and lashes,

wherever a person becomes liable for money and lashes, the law is that

the money is paid, but he does not receive lashes!

And therefore, in our Mishna, those liable for excision and lashes have a fine; we do not say that the liability for lashes exempts him from the money, but the monetary liability is what exempts him from the lashes.

And the Gemara discusses:

From where does Ulla derive this?

From where did Ulla learn that the one who pays does not receive lashes, and not that the one who receives lashes does not pay?

And we explain:

He derived,

Ulla learned this law

from one who injures another:

Just as concerning one who injures another, where there is

a liability for

money

of five matters [damage, pain, medical expenses, loss of work, and humiliation]

and lashes

because he transgressed “he shall not add to strike him,” the Torah said:

the money is paid, but he does not receive lashes

[the money is paid by the one who injures, and he does not receive lashes], as the source for this is explained later in the discussion.

So too, wherever there is

a liability for

money and

a liability for

lashes

at the same time, the law is that

the money is paid, but he does not receive lashes.

And we refute this:

What is so about one who injures another,

that it is logical that the Torah was stringent with him, requiring him to pay the more severe monetary obligation rather than be exempt through accepting the lighter punishment of lashes,

for

we find another stringency concerning him: he is

liable for five matters,

and therefore the Torah was stringent with him, requiring him to pay the money [and not receive lashes], and it was not sufficient for him to accept lashes.

And if money is lenient,

and perhaps you will say that, on the contrary, when the Torah made one who injures another liable for money and not lashes, this is a leniency with which the Torah was lenient toward him, because a monetary punishment is lighter than lashes, and it follows that one cannot refute that the Torah was lenient with him because he is liable for five matters —

You can refute in another manner: the Torah was therefore lenient in the case of one who injures another, allowing him to become exempt from the lashes through payment of money, rather than becoming liable for lashes and being exempt from the money,

for the prohibition was permitted

the prohibition “he shall not add”

from its general rule in the court,

for the court strikes and injures the wicked. Can you say this concerning the prohibition of his sister, which was not permitted from its general rule anywhere? And from where do we know to say that even concerning the punishment due for the transgression of this severe prohibition, the Torah exempted him because of the lighter monetary punishment?

Rather, he derived it

Ulla learned his principle—that wherever both monetary payment and lashes apply, one pays but does not receive lashes—

from conspiring witnesses

, who had schemed to cause the defendant to incur a monetary liability. This is how Ulla learned it:

Just as

in the case of

conspiring witnesses, where there are both a monetary liability and lashes

, they are liable to pay money because the Torah says: “You shall do to him as he schemed to do to his brother,” and they are liable to lashes for violating the prohibition: “You shall not bear false witness against your fellow”:

The Torah said that

the monetary liability is paid, but the lashes are not administered

, as the Gemara—the Talmudic discussion of the Mishna—demonstrates later in the discussion, on page 32b.

Likewise, wherever there is

a

monetary

liability and a

liability for lashes

at the same time, the law is that

the monetary liability is paid, but the lashes are not administered.

And we challenge this:

What is unique about conspiring witnesses is that

the Torah was stringent with them, in that

they do not require a prior warning

in order to render them liable under the law of “as he schemed,” whether they schemed to have the defendant receive the punishment of death, lashes, or monetary payment.

And if

you were to say that the punishment of

a monetary payment is lenient

, because a monetary punishment is less severe than a punishment of lashes,

you can also challenge it as follows: What is unique about conspiring witnesses, that the Torah made it lenient for them to be judged with the less severe punishment,

is that they performed no action

but are punished merely for speech.

Rather, he derived

Ulla’s principle that everywhere one pays but does not receive lashes

from both

, from both one who injures another and conspiring witnesses, since in both cases one pays but does not receive lashes:

And this is how he derives it:

What is common to both of them is that they involve both a monetary liability and lashes

, and the Torah said:

the monetary liability is paid, but the lashes are not administered. Likewise, wherever there is

both a monetary liability and lashes, the monetary liability is paid, but the lashes are not administered.

And we still challenge this:

What is unique to the common feature of both of them is that they contain

[in each of them]

a more severe aspect

: one who injures another is liable for five types of payment, and conspiring witnesses are punished without a prior warning.

And if

you were to say that

a monetary payment is lenient

, you can challenge the common feature as follows: What is unique to the common feature

is that they contain a lenient aspect

: injuring another is permitted in certain circumstances, whereas conspiring witnesses performed no action.