Ketubot 32a (לב.) — the Talmud in English

And

now this is difficult: this

is the established principle that one does not receive lashes and pay

but receives only the lashes and is exempt from the monetary payment; so how did we state in our Mishna that those liable for karet are subject to a fine?

Three answers to this difficulty are stated in the Gemara:

a. Ulla's answer here: In every case, “he pays and does not receive lashes,” and the Mishna in tractate Makkot is discussing a case in which he is not liable for a fine.

b. Rabbi Yohanan's answer [on the following page]: In every case, “he receives lashes and does not pay,” and our Mishna, which obligates payment of a fine, is discussing one who was not forewarned, and therefore does not receive lashes but pays. According to Rabbi Yohanan, those liable for lashes, when they act unwittingly, pay.

c. Reish Lakish's answer [33b]: Our Mishna is in accordance with the opinion of Rabbi Meir, who maintains that “he receives lashes and pays.”

The Gemara below [35b] mentions a fourth possibility: Our Mishna follows the opinion of the tanna who maintains that those liable for karet do not receive lashes, and therefore they pay. However, the Gemara rejects this answer, since it would still be difficult why one who engages in intercourse with a mamzeret pays a fine, as he is not among those liable for karet; rather, he receives lashes.

Ulla said:

In fact, he does not receive lashes and pay.

However, we do not mean that he receives lashes and does not pay; rather, 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, since he merely pays the fine and does not receive lashes.

And if you would say: If so, why did we state 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 discussing—

his adolescent sister,

for whom he is liable for a fine.

There—

the Mishna in tractate Makkot, where we stated that one receives lashes for his sister—is discussing

his adult sister,

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

a. We stated in the Mishna below, on 39a: “One who seduces gives three payments, and one who rapes gives four.” One who seduces gives compensation for humiliation, depreciation [caused by making her non-virgin], and a fine. One who rapes adds to these the payment for pain [and the Gemara there, on 39b, explains what this pain is]. What is the difference between one who rapes and one who seduces? One who rapes pays for the pain, whereas one who seduces does not pay for the pain. And the Gemara explains [there, on 39b] the reason for this: “The intelligent among them say: One who is seduced does not experience pain.”

b. According to Rashi, the basis of the obligation to pay for humiliation, depreciation, and pain is the law of one who injures another, who is liable for these payments. The depreciation is assessed as follows: We determine the market value of a maidservant when she is sold as a virgin, when her price is higher, since the master who purchases her wishes to acquire a virgin maidservant so that he can marry her to a slave in whom he takes pleasure, and we determine by how much her value has decreased now that she has engaged in intercourse; the man who had intercourse with her pays that difference.

c. The obligation to pay the fine applies only to a virgin adolescent girl, whereas the obligation to pay for humiliation, depreciation, and pain applies even to an adult woman.

d. The fine, humiliation, depreciation, and pain of an adolescent girl belong to her father. If she is an orphan, they belong to her.

Likewise, the payment for the humiliation, depreciation, and pain of an adult woman belongs to her.

e. Although the obligation for these payments [apart from pain] applies both to one who was raped and to one who was seduced, there is a distinction between rape and seduction when the girl is an orphan or when she is an adult woman.

This is because the orphan's fine and all the other payments belong to her, and likewise, in the case of an adult woman, all the payments made to her belong to her. Therefore, only one who rapes them is obligated to make payments. But one who seduces them is not obligated to pay them anything, since they act willingly and therefore waive all his monetary obligations.

The Gemara raises a difficulty according to Ulla's position, that one who becomes liable for lashes and a monetary payment pays and does not receive lashes—

But

an adult woman too—

which, according to your statement, is the case discussed by the Mishna in tractate Makkot—

there is

a monetary payment for

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 discussing

a mentally incompetent woman,

who has no humiliation, and since she has no market value, she likewise has no depreciation.

The Gemara nevertheless raises another difficulty:

But there is

a monetary payment for

pain,

even when she is an adult woman and mentally incompetent, and according to Ulla that monetary payment should exempt him from the lashes!?

And we answer: The Mishna in tractate Makkot is discussing

a woman who was seduced,

who has no pain.

Now,

from this point onward,

that you have arrived at this [

since you have come to explain the Mishna in tractate Makkot as referring to a seduced woman, we no longer need to explain it as referring to an adult woman, in order that the liability for the fine should not exempt him from the lashes, nor as referring to a mentally incompetent 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 is discussing

his adolescent sister,

who ordinarily is subject to a fine, and when she is mentally competent is also subject to payment for 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

a seduced woman.

Since she acts willingly, she waives all the monetary payments due to her. Since he is not liable to pay her anything, he is therefore liable for lashes.

Apparently,

it is established that

Ulla maintains: Wherever there are both a monetary payment and lashes,

wherever a person becomes liable for both a monetary payment and lashes, the law is that

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

Therefore, in our Mishna, those liable for karet and lashes are subject to a fine. We do not say that the liability for lashes exempts him from the monetary payment; rather, it is the monetary liability that exempts him from the lashes.

The Gemara analyzes:

From where does Ulla derive this?

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

And we explain:

He derived

this law,

from one who injures another:

Just as regarding one who injures another, there is

an obligation of

payment

for the five types of compensation [damage, pain, medical expenses, loss of livelihood, and humiliation],

and lashes

because he violated “he shall not add to his blows,” the Torah states:

the money is paid, and he does not receive lashes

[the one who injured him pays money and does not receive lashes], as the source for this is explained later in the sugya.

So too, wherever there is

an obligation of

money and

an obligation of

lashes

at the same time, the law is that

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

And we refute this:

What is distinctive about one who injures another,

that it is logical that the Torah treated him more stringently, requiring him to pay the more severe monetary obligation rather than exempting him through the acceptance of the lighter punishment of lashes,

for

we find another stringency in his case: He is

liable for five types of compensation,

and therefore the Torah treated him more stringently by requiring him to pay the money [and not receive lashes], so that receiving lashes would not suffice.

And if monetary payment is lenient,

and perhaps you will say that, on the contrary, when the Torah obligated one who injures another to pay money rather than receive lashes, this is a leniency that the Torah granted him, because the punishment of money is lighter than lashes; consequently, one cannot refute the derivation by saying that the Torah was lenient with him because he is liable for five types of compensation—

You can refute the derivation in another way: The reason the Torah was lenient with one who injures another, allowing him to be exempt from lashes through payment of money rather than making him liable for lashes and exempting him from payment, is

because it was permitted

the negative commandment “he shall not add”

in its general scope in the court,

since the court strikes and injures the wicked. Can you say the same regarding the negative commandment concerning his sister, which was never permitted in any context? From where do we know that, even with regard to the punishment incurred for violating this severe negative commandment, the Torah exempted him from the lighter monetary punishment?

Rather, he derived it

that Ulla's ruling—that in every case one pays and does not receive lashes—was derived

from conspiring witnesses

, who conspired to cause the defendant to incur a monetary obligation. This is how Ulla derived it:

Just as

in the case of

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

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

The Torah stated that

for the monetary liability, he pays; for the lashes, he does not receive lashes

, as the Gemara demonstrates later in the discussion, on page b.

So too, wherever there is

a liability for

a monetary payment and

a liability for

lashes

at the same time, the law is that

for the monetary liability, he pays; for the lashes, he does not receive lashes.

And we challenge this:

What is unique about conspiring witnesses, in that

the Torah was stringent with them, so that

they do not require a warning

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

And if

you would say that the punishment of

a monetary payment is lenient

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

you can also challenge it: What is unique about conspiring witnesses, that the Torah was lenient with them, allowing them to be judged with the lenient punishment,

in that they did not perform an act

but are punished merely for speech.

Rather, he derived it

that in every case one pays and does not receive lashes

from both of them

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

And this is how he derives it:

What they have in common is that in both there are a monetary payment and lashes

and the Torah stated,

“For the monetary liability, he pays; for the lashes, he does not receive lashes.” So too, wherever there are

a monetary payment and lashes, for the monetary liability, he pays; for the lashes, he does not receive lashes,

and we still challenge it:

What is unique about what they have in common, in that they contain

in each of them

a stringent aspect

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

And if

you would say

that a monetary payment is lenient

, you can challenge the common denominator as follows: What is unique about the common denominator,

in that they contain a lenient aspect

, since the case of one who injures another is an exception to the general rule, and conspiring witnesses did not perform an act.