Ketubot 33a — the Talmud in English

And the Gemara is astonished: If so, regarding

one who injures his fellow

, whom the Torah explicitly included for monetary payment, and he does not receive lashes, this too should be difficult for you:

if so

, since he pays and does not receive lashes, it follows that you have

nullified

the verses

“He shall not add

” and

“lest he add

”, whose meaning is lashes—

And likewise regarding

conspiring witnesses

, whom the Torah explicitly included for monetary payment, this too should be difficult for you:

if so

, since he pays and does not receive lashes, it follows that you have

nullified “And it shall be, if the wicked man is deserving of lashes

”, which the Torah said regarding conspiring witnesses—

the verse that the Torah states regarding conspiring witnesses ; [unclear: the commentary discusses two explanations for why this verse is cited here, while the preceding text refers to the prohibition “You shall not bear false witness”] . Rather

, it must be that the reason they pay and do not receive lashes is that, in the case of

conspiring witnesses, it is possible to fulfill

Rather

, necessarily, the reason that they pay and do not receive lashes is that regarding

witnesses who testified concerning a koen that he is

the son of a divorced woman and the son of a

woman released by halitza

, it is possible to fulfill the mitzva of lashes, with which they are to be lashed [which is derived from “And it shall be, if the wicked man is deserving of lashes”], for with them “as he plotted” is not carried out; rather, they receive lashes. And with these witnesses it is possible to fulfill the words of the verse, “And it shall be, if the wicked man is deserving of lashes,” since there is no monetary obligation there that exempts them from lashes.

And

one who injures his fellow, too

, pays and does not receive lashes, because

there is a possibility of fulfilling

the mitzva of lashes for the prohibitions “He shall not add” and “lest he add” in

a case where he struck him with a blow that is not worth a peruta

, for he is not liable for monetary payment on account of it, and then he becomes liable for lashes.

And therefore

his sister, too

, even if you say in accordance with Ulla’s view, that one who has intercourse with his virgin sister does not receive lashes for “You shall not uncover the nakedness of your sister,” there is no nullification of the verse here, because

there is a possibility of fulfilling

the mitzva of lashes

in

a case where he had intercourse with

his sister

when she was

an adult

, in which case he is not liable for a fine on her account, and therefore he is liable for lashes.

And the question returns to its place: Why does Rabbi Yohanan not say like Ulla?

And because of this difficulty, the Gemara retracts the previous explanation of Rabbi Yohanan’s view and explains another explanation:

Rather

Rabbi Yohanan

does not explain like Ulla, that “under—in place of” comes to teach that he pays and does not receive lashes for the fine of rape and seduction, for:

This “in place of which she was afflicted

”—from which Ulla learned that he pays and does not receive lashes—

is needed for him

, this verse is needed, according to Rabbi Yohanan,

for that which

Abaye

said

[as will be explained below]. It follows that this gzera shava is a “gzera shava that is not free.” And although they derive from it, they may refute it. And it has already been explained that the derivation of a fine from one who injures his fellow may be refuted, as was explained above, 32a.

For Abaye said

, to explain the source for the fact that besides the fifty silver that the rapist or seducer pays as a fine, he also pays the value of humiliation and defect, since he is liable for them like any other person who injures his fellow,

and we do not say that the fifty silver fixed by the Torah is an inclusive payment for all the obligations.

For the verse says:

“And the man who lies with her shall give the father of the young woman fifty silver

in place of which he afflicted her.”

The verse teaches that

this

fifty silver is payment

in place of which he afflicted her

alone.

And

from the implication of

this you learn

that there is

, that there is an additional payment, besides the silver paid for the affliction, for

humiliation and defect

, which is a payment made in all cases of one who injures.

And

if

Ulla

—who holds that the verse “in place of which she was afflicted” is free in order to derive a gzera shava from it—

derives for himself

this law, that besides the fine he must also pay the value of humiliation and defect,

from what

Rabbi

Rava said

For Rava said

, another source that the fifty silver do not include the obligation of humiliation and defect:

The verse says: “And the man who lies with her shall give the father of the young woman fifty silver

”.

The Torah added “who lies with her,” and did not suffice with “the man shall give the father of the young woman fifty silver,” to teach that for

the pleasure of intercourse

alone he pays

fifty silver.

And

from the implication of

this you learn

that there is, besides the payment for the pleasure of intercourse, further payments, for

the

humiliation and

for the

defect.

.

And here the Gemara returns to the law explained above, that conspiring witnesses and one who injures his fellow pay and do not receive lashes.

And the Gemara brings another reason, different from the reason explained above, for the fact that conspiring witnesses pay and do not receive lashes, and another reason for one who injures his fellow, that he pays and does not receive lashes.

Rabbi Elazar says: Conspiring witnesses pay money

from “as he plotted,”

but do not receive lashes

for “You shall not bear false witness”

—

because

conspiring witnesses

are not capable of warning

, before their testimony! It is impossible to warn them before the testimony, since there is concern that they will withdraw and not testify, as Rava explains the reason for this shortly. And therefore there are no lashes for them, since for liability to lashes a warning must precede it. He said

—he explained—

Rava: Know

, that indeed conspiring witnesses are not capable of warning, for:

Let us warn them—

when?

When should all witnesses who come to testify in court be warned to testify truthfully and not violate the prohibition of false testimony?

If

we warn them from the outset

, on the day or at the hour before the testimony, outside the presence of the court—

It is impossible to make them liable for lashes because of this warning.

For

they say

, the conspiring witnesses—that is, they can claim [after their falsehood becomes clear], in order to escape the punishment of lashes:

We forgot

, we forgot the matter of the warning at the time we testified, since the warning was not adjacent to our testimony, and this is not considered that we violated the prohibition of false testimony with a warning.

And if

we warn them

, the witnesses coming to testify,

at the time of the act

, in court, immediately before their testimony—

There is concern lest

they withdraw

, even if they are truthful witnesses,

and do not testify

, they will not give the testimony, because they will say to the court: We do not wish to testify even truthfully, for since you suspect us of lying to the point that you warn us—what need have we of this trouble?

Perhaps you will say:

Let us warn them at the end

, warn them after they have testified, so that if they lied in their testimony they will retract because of the warning—

This is impossible, and this warning will accomplish nothing, for

whatever happened, happened!

What was, was; they cannot return and retract their testimony. For this is the rule concerning every witness who testifies: once he has spoken [his testimony in court], he may no longer return and speak [other things that retract what he said]!

Rather, certainly conspiring witnesses are not capable of warning, and it is impossible to give them lashes for violating “You shall not bear false witness”; therefore, they pay.

Abaye challenged him

, concerning Rava’s words that it is impossible to warn conspiring witnesses:

It is possible to warn them after the testimony.

And what you said—that after the testimony the warning is of no benefit because “whatever happened, happened”—this is not a refutation, for—

Let us warn them within the time of speech

[the time required to offer a greeting], after the second witness’s testimony, since during this time they can retract their testimony and invalidate the testimony. And if they do not retract because of the warning, and afterward their testimony is found to be false, they will become liable for lashes!? And further,

Rav Aḥa son of Rav Ika challenged him

in another manner concerning Rava’s reasoning:

Let us warn them from the outset

before their testimony. And so that they will not be able to claim, when their testimony is found to be false, that they forgot the warning at the time of their testimony—

let us hint to them with hints

at the time of the testimony, in gentle language, concerning the warning; and since they do this by hint and in gentle language, the witnesses will not object to the warning and will not withdraw from giving truthful testimony, and the warning will be effective to remind them!?

Abaye then retracted

, Abaye retracted again, and said:

What I said is not a matter

, the matter is not as I said, that conspiring witnesses require a warning, for

if it enters your mind

that

conspiring witnesses require a warning

, it should be difficult—

And

for

if

we do not warn them

—

—

do we not execute them!?

But behold,

is there anything that they need to be executed without a warning, while they

the witnesses

need a warning!?

Is it possible that they plot to kill the one concerning whom they testified that he is liable for execution without that defendant having been warned about it—for the act about which they testified that he performed was not performed at all, and it is obvious that he was not warned—while we would not make them liable for death unless they were warned!? And

we require “And you shall do to him

[to the conspiring witness]—

as he plotted to do to his brother

; and

if you make them liable only upon a warning,

there is none

, “as he plotted to do to his brother” is not fulfilled in them.

Rav Sama son of Rav Yirmeya challenged him

concerning Abaye’s words:

But from now

, since conspiring witnesses do not require a warning because we require “as he plotted to do to his brother”—

If so, conspiring witnesses who testified concerning a koen that he is a disqualified one, and unfit for the priesthood because he is

the son of a divorced woman and the son of a woman released by halitza

, and who are liable for lashes [as explained in the Mishna at the beginning of Tractate Makkot],

who are not included for lashes from “as he plotted”

, since they did not plot to have him lashed, but rather to disqualify him from the priesthood, and the lashes are for the prohibition “You shall not bear false witness against your fellow”—

should require a warning

, that they should require a warning, and without it they should not receive lashes!? And the Gemara answers Abaye’s words:

The verse says, “One judgment shall be for you”

a judgment equal for all of you!

And since most conspiring witnesses, who become liable for punishment because of “as he plotted,” do not require a warning, these witnesses too, whose liability is not by the law of “as he plotted,” shall have a judgment equal to that of most conspiring witnesses, that they do not require a warning.

Rav Shisha, son of Rav Idi, said:

There is another source for one who injures his fellow, that he pays and does not receive lashes:

One who injures his fellow also: he pays money, and does not receive lashes —

from here:

as it is written:

“And when men fight, and they strike a pregnant woman,,

and her children emerge

the fetuses, and they die], “and there shall be no disaster [to the woman]—he shall surely be punished,” the one who struck her, and he is liable to pay the husband the value of the offspring.

And Rabbi Elazar said: It speaks of a quarrel involving a death

a quarrel involving death,

the verse is speaking,

for the one who struck had intended to kill his fellow.

As it is written

in that passage:

“And if there shall be a disaster

the woman was killed, and not his fellow, whom he intended to kill]—

then you shall give a life for a life.”

That is to say, the court kills the man who struck her, since he had intended, through his blow, a lethal blow against his fellow. And although the woman was killed by the blow, and not his fellow, whom he intended to kill, he is liable for death, according to Rabbi Shimon, who holds that “a person who intends to kill this one, but kills that one, is liable

And

what are the circumstances,

in what manner does that passage speak, which makes the one who strikes the woman liable to death?

If he was not warned,

if they did not warn him, “If you kill your fellow, you will incur the death penalty

why is he killed,

why does he incur the death penalty for killing the woman, when he was not warned at all!?

Rather, it is obvious

that it is speaking of a case in which

they warned him

with regard to death if he killed his fellow; and therefore he is liable to death for killing the woman, even though it was the woman who was killed, and not his fellow, whom he intended.

And since we have proved that the verse deals with one who was warned that he would be put to death if he killed, you can learn from this verse that one who injures his fellow pays money and does not receive lashes—

And

since a person who is

warned concerning a severe matter

one who was warned not to transgress a prohibition that makes him liable to death, as here, where they warned him not to kill his fellow, and if he killed him he would incur the death penalty,

is considered warned

also

concerning a lenient matter.

For warning for death also serves as warning for lashes; and here, the warning not to kill his fellow also serves as warning not to injure his fellow, even if he does not kill him.

And if so, by law he should receive lashes for injuring the woman, for he is warned with regard to lashes for the prohibition against injury [and although he intended to injure his fellow, but injured the woman, he is liable]—

And

nevertheless,

the Merciful One said

that if he struck the woman,

“and there shall be no disaster

that the woman did not die, but was merely injured and her offspring emerged]—

he shall surely be punished,”

the one who injures the woman with money, by payment of the value of the offspring.

Thus the verse teaches that one who injures his fellow pays money and does not receive lashes.

For here he should have received lashes for striking the woman, and nevertheless the Torah made him liable for the value of the offspring and not for lashes.

Rav Ashi challenged this: From where

do you know

that one who is warned concerning a severe matter is considered warned concerning a lenient matter,

when perhaps

he is not considered

warned concerning a lenient matter, and it turns out that he cannot be made liable for lashes for the injury, and therefore he pays; but we still have not learned that one who incurs liability for lashes pays for the injury and does not receive lashes!?

And even

if you should say

that one who is warned concerning a severe matter

is considered

warned concerning a lenient matter—

from where is death more severe

than lashes, such that you say that one who is warned concerning death is considered warned concerning lashes!?