Ketubot 32b (לב:) — the Talmud in English

Rather

the rationale of

Ulla

is that he maintains that when one has intercourse with a woman who is subject to karet, he pays the fine and does not receive lashes; and likewise, in every case where one is liable for both lashes and monetary payment, he pays and does not receive lashes:

Because

he derives by a gezera shava based on the phrase “under”

the fine of the rapist from the case of one who injures another:

As

it is written here

with regard to the fine:

“under that he afflicted her”—

and it is written there

in the passage concerning one who injures another:

“an eye under an eye.”

And this gezera shava teaches us:

Just as there—

in the case of one who injures another—

he pays the money and does not receive lashes,

as the Gemara will explain below,

so too, wherever there is monetary payment and lashes,

wherever the Torah renders one liable for both lashes and monetary payment, the law is that

he pays the money and does not receive lashes.

The Gemara now returns to the question it raised at the beginning of the discussion concerning our Mishna. It seeks to uphold our Mishna, which imposes a fine in cases involving excision, together with the Mishna in Tractate Makkot, which imposes lashes in cases involving excision, while maintaining the rule that “one is not flogged and made to pay”:

The Gemara now returns to the question it raised at the beginning of the discussion concerning our Mishna, and seeks to uphold both our Mishna, which imposes a fine in cases subject to karet, and the Mishna in Makkot, which imposes lashes in cases subject to karet, while maintaining the principle that “one does not receive lashes and pay”:

Rabbi Yoḥanan said: You may even say

that the Mishna in Makkot is speaking of

his underage sister [and not specifically of an adult woman, as Ulla said]. It is nevertheless not difficult for the Mishna in Makkot in light of the principle, “But one does not receive lashes and pay,” because although he is liable for a fine for intercourse with her, the monetary payment does not exempt him from lashes; the principle “one does not receive lashes and pay” means that he is punished with lashes and not with monetary payment.

And if it is difficult for you that, since it is clear from the Mishna in Makkot that cases subject to karet entail lashes, how can our Mishna, which imposes a fine in such cases, be reconciled, it is not difficult:

Because

here

in the Mishna in Makkot, where we learned that those subject to karet receive lashes, it is speaking

when

they warned him.

Whereas

here,

in our Mishna, where we learned that he is liable to pay a fine when he has intercourse with his sister, it is speaking

when

they did not warn him, and he is not liable for lashes. Since he does not receive lashes, he therefore pays the fine.

Apparently,

it is demonstrated that

Rabbi Yoḥanan maintains: Wherever there is monetary payment and lashes, and they warned him [and warned him so that he would become liable for lashes],

he receives lashes and does not pay the money.

And we inquire:

What is the source for Rabbi Yoḥanan’s position?

From where does Rabbi Yoḥanan derive this?

The Gemara explains:

The verse says [Deuteronomy 25]: “The judge shall have him lie down and flog him in his presence

according to the measure of

his wickedness

by count.” From there we learn:

For one act of wickedness you may render him liable, but you may not render him liable for two acts of wickedness;

thus, if he became liable for lashes and monetary payment, he does not receive lashes and pay.

And it is juxtaposed to it,

the verse adjacent to this one: “[According to the measure of his wickedness by count,]

he shall flog him forty times,”

and the verse comes to teach that if he becomes liable for lashes and monetary payment, he receives forty lashes and does not pay.

The Gemara raises an objection:

But what of one who injures another, who has

both monetary payment and lashes,

and the law is that

he pays the money and does not receive lashes, whereas according to Rabbi Yoḥanan, everywhere one receives lashes and does not pay!?

And if you would say,

perhaps

to resolve the matter:

This applies—

that one who injures another is liable for monetary payment even though he is also liable for lashes—

where they did not warn him,

so that he does not become practically liable for lashes,

but

where

they did warn him,

indeed

he receives lashes

and

does not pay the money,

in accordance with Rabbi Yoḥanan’s position.

This cannot be the resolution of Rabbi Yoḥanan’s position:

Because

Rabbi Ami said that Rabbi Yoḥanan himself said

:

If he struck him with a blow worth less than a peruta,

he

receives lashes.

But

what are the circumstances—

in what situation was Rabbi Yoḥanan speaking?

If they did not warn him,

if Rabbi Yoḥanan’s statement was made in a situation in which there was no warning for lashes,

why does he receive lashes? There are no lashes without warning.

Rather, it is obvious

that Rabbi Yoḥanan’s statement was made in a case where

they did warn him

for lashes,

and

yet

the reason he receives lashes is

that it does not contain

in the blow

a peruta’s worth,

so that he did not become liable for monetary payment.

Had it contained

in the blow

a peruta’s worth,

the law would be that

he pays the money and does not receive lashes.

It is thus clear that Rabbi Yoḥanan’s own position is that, in the case of one who injures another, he “pays and does not receive lashes.” This is difficult: Rabbi Yoḥanan maintains that throughout the Torah one “receives lashes and does not pay”!

And we answer:

As Rabbi Ila’i said

with regard to conspiring witnesses:

The Torah explicitly included

conspiring

witnesses as liable for payment

and not for lashes.

Here too,

in the case of one who injures another,

the Torah explicitly included one who injures another as liable for payment.

The Gemara explains:

And where was Rabbi Ila’i’s statement said?

With regard to this—

with regard to the following Mishna in tractate Makkot (4a), Rabbi Ila’i stated his words:

As we learned:

“We testify concerning so-and-so that he owes his fellow two hundred dinars, and they were found

to be

conspiring witnesses.”

These witnesses

receive lashes

because they violated “You shall not bear false witness against your fellow.”

And they pay

the money as well, as the Torah says: “You shall do to him as he plotted to do to his brother.”

Therefore, they are liable for both, since

the designation [of the verse]

that

brings them to lashes

is not the same as the verse that

brings them to monetary payment.

Rather, they are liable for lashes because of “You shall not bear false witness,” whereas they are liable for monetary payment because of the verse, “You shall do to him as he plotted to do to his brother.”

These are the words of Rabbi Meir.

And the Sages say: Anyone who pays

money

does not receive lashes.

And we inquire:

Let us say: Anyone who receives lashes does not pay!?

And concerning this

Rabbi Ila’i said: The Torah explicitly included conspiring witnesses as liable for payment.

And we explain:

Where did the Torah explicitly include

conspiring witnesses as liable to pay?

Since it is written—

it is already written—

“You shall do to him as he plotted to do to his brother,”

and the verse teaches that the conspiring witnesses are liable for everything they sought to impose upon the defendant—

if so, the statement written in that passage, “Your eye shall not pity; life for life,”

“hand for hand,”

which in its plain sense means that witnesses who plotted to have a person judged in the case of one who injures another—by testifying that he severed another’s hand, thereby making the assailant liable to have his own hand severed—would themselves be liable to have their hand severed—

why do I need it—

why was it necessary for the verse to state this as well!?

Rather, the verse teaches: One who injures another pays

something that can be given from hand to hand—and what is that? Money,

and witnesses who plotted against a person by testifying that he injured another are likewise liable for monetary payment, and they pay it even when they were warned so as to incur lashes.

And just as Rabbi Ila’i said, “The Torah explicitly included conspiring witnesses as liable for payment,” so too

one who injures another

the Torah explicitly included as liable for payment:

Since,

for

it is written

in the passage concerning one who injures another (Leviticus 24): “And if a man gives a wound to his fellow,

as he did, so shall it be done to him.”

If so, the statement written [“fracture for fracture, eye for eye, tooth for tooth; as he gives a wound to a person,”]

“so shall it be given to him”—

why do I need it?

Rather, the verse teaches

something that involves giving—and what is that? Money,

even in a case where they warned him and he became liable for lashes.

And the Gemara explains:

And Rabbi Yohanan, what is the reason he did not say in accordance with Ulla?

Because

if so—

that one who has intercourse with his virgin sister pays a fine and is not flogged—

you have nullified “You shall not uncover the nakedness of your sister",

because wherever the Torah says “shall not,” its intention is to obligate the one who transgresses to receive lashes; and if he is not flogged, you have nullified the verse.