Ketubot 33a (לג.) — the Talmud in English

The Gemara is astonished: If so, concerning

one who injures another

, whom the Torah explicitly included among those liable for payment, and who does not receive lashes, this too should pose a difficulty to 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 concerning

conspiring witnesses

, whom the Torah explicitly included among those liable for payment, this too should pose a difficulty to 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 liable to be flogged”

, which the Torah stated concerning conspiring witnesses—

Rather

, it is necessarily because they pay and do not receive lashes that, concerning

conspiring witnesses, it is possible to fulfill

the mitzva of lashes, by flogging them [as derived from “And it shall be, if the wicked man is liable to be flogged”]

in

the case of witnesses who testified that a kohen was

the son of a divorced woman and the son of a

ḥalutza

, for whom “as he plotted” is not fulfilled; rather, they receive lashes. In the case of these witnesses, the words of the verse “And it shall be, if the wicked man is liable to be flogged” can be fulfilled, since there is no monetary liability there to exempt them from lashes.

And

one who injures another, too

, pays and does not receive lashes, because

it is possible to fulfill

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

one who struck him with a blow worth less than a peruta

, for which he is not liable to pay money; he is then liable to receive lashes.

Therefore,

his sister too

, even if you maintain in accordance with Ulla’s opinion 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

it is possible to fulfill

the mitzva of lashes

in

the case of one who has intercourse with

his sister

when she is

an adult

, in which case he is not liable to pay her a fine and is therefore liable to receive lashes.

The question has therefore returned to its original place: Why does Rabbi Yoḥanan not state his explanation like Ulla?

As a result of this difficulty, the Gemara retracts its previous explanation of Rabbi Yoḥanan’s position and provides another explanation:

Rather,

Rabbi Yoḥanan

does not interpret the expression “in place of—in place of” as Ulla does, namely, that it teaches that he pays and does not receive lashes for the fine imposed on one who rapes or seduces, for the following reason:

This “in place of his having afflicted her

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

is needed

, according to Rabbi Yoḥanan, for the purpose

that

Abaye

stated

[as will be explained below]. It follows that this gzera shava is a “gzera shava that is not free.” Although it is used for a derivation, one may nevertheless refute an inference based on it. It has already been explained that an inference concerning a fine may be refuted on the basis of one who injures another, as was explained above, on 32a.

For Abaye stated

, in order to explain the source for the law that, in addition to the fifty silver coins paid by one who rapes or seduces as a fine, he also pays for humiliation and loss of value, since he is liable for these as is anyone else who injures another, and we do not say that the fifty silver coins established by the Torah constitute a comprehensive payment for all the liabilities—

For

the verse states: “

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

—in place of his having afflicted her.”

The verse teaches that

these

fifty silver coins are payment

in place of his having afflicted her

alone.

And

from

this you learn

that there is

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

humiliation and loss of value

, which is a payment imposed in every case of one who injures another.

And

if

Ulla

—who holds that the verse “in place of his having afflicted her” is free for the purpose of deriving a gzera shava from it—

derives

this law, that in addition to the fine he must also pay for humiliation and loss of value,

from what

Rabbi

Rava stated!

For Rava stated

another source indicating that the fifty silver coins do not include the liability for humiliation and loss of value:

The verse states: “And the man who lies with her shall give the father of the young woman fifty silver coins.”

The Torah added the words “who lies with her,” rather than contenting itself with “and the man shall give the father of the young woman fifty silver coins,” to teach that for

the pleasure of intercourse

alone he pays

fifty

silver coins.

And

from

this you learn

that there are, besides the payment for the pleasure of intercourse, additional payments for

the

humiliation and

the

loss of value.

.

Here the Gemara returns to the law explained above: conspiring witnesses and one who injures another pay and do not receive lashes.

The Gemara offers another reason, different from the reason explained above, for why conspiring witnesses pay and do not receive lashes, and another reason why one who injures another pays and does not receive lashes.

Rabbi Elazar says: Conspiring witnesses pay money

from “as he plotted,”

but they do not receive lashes

for “You shall not bear false witness”

because

conspiring witnesses

are not subject to forewarning

before their testimony! It is impossible to warn them beforehand, since there is concern that they will withdraw and not testify, as Rava explains the reason for this shortly. Therefore, they do not receive lashes, since liability for lashes requires prior forewarning.

He said

—he explained—

Rava: Know

, that indeed conspiring witnesses are not subject to forewarning, for:

When should we warn them

?

When should we warn all witnesses who come to testify in court to testify truthfully and not violate the prohibition against false testimony?

If

we warn them beforehand

, a day or an hour before their testimony, outside the presence of the court—

it is impossible to impose lashes upon them on the basis of that forewarning.

For

the conspiring witnesses may say

—that is, they can claim [after their falsehood has been established], in order to avoid the punishment of lashes:

We forgot

the matter of the forewarning at the time we testified, since the forewarning did not immediately precede our testimony; therefore, it is not considered that we violated the prohibition against false testimony with forewarning.

And if

we warn them

when the witnesses come to testify,

at the time of the act

, in court, immediately before their testimony—

there is concern that perhaps they will

withdraw

, even if they are truthful witnesses,

and will not testify

, refusing to give the testimony because they will say to the court: “We do not wish to testify even truthfully, since, as you suspect us of lying to the extent that you warn us, why should we bring this trouble upon ourselves?”

If you would say:

Let us warn them at the end

, warning them after they have given their testimony, so that if they lied in their testimony they will retract it because of the forewarning—

this is impossible, and such forewarning would accomplish nothing, because

what happened has happened!

What happened has happened, and they cannot 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 speak again [to say something else that retracts what he said]!

Rather, certainly, conspiring witnesses are not subject to forewarning, and it is impossible to flog them for violating “You shall not bear false witness”; therefore, they pay.

Abaye challenged him

—Rava’s statement that it is impossible to warn conspiring witnesses:

It is possible to warn them after the testimony.

And your statement that forewarning after the testimony is useless because “what happened has happened” is not a valid refutation, for—

let us warn them within the time of speech

[the time required to exchange greetings], after the second witness has testified, since during this interval they can retract their testimony and invalidate it. If they do not retract their testimony in response to the forewarning, and it is subsequently discovered that their testimony was false, they will be liable for lashes! Furthermore,

Rav Aḥa, son of Rav Ika, challenged him

in another way concerning Rava’s reasoning:

Let us warn them beforehand

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 forewarning at the time of their testimony—

let us hint to them subtly

at the time of the testimony, mentioning the forewarning in gentle language. Since this is done by hint and in gentle language, the witnesses will not object to the warning and will not withdraw from giving truthful testimony, while the forewarning will serve to remind them!

Abaye then said

, Abaye again retracted his position and said:

What I said is not a valid matter

; the matter is not as I said, that conspiring witnesses require forewarning. For

if it enters your mind

that

conspiring witnesses require forewarning

, this would pose the following difficulty:

And

if

they

are not warned

—

—

do we not execute them!?

Is it possible that if they were not warned not to testify falsely, we would not execute them when they plotted to have a person executed through false testimony!?

But is there such a thing, that the person whom they sought to have executed would

be liable to execution without forewarning, while they,

would require forewarning!?

Is it possible that they could plot to execute the person about whom they testified that he deserved execution without that defendant having been warned concerning the act, since the act they testified that he committed never occurred at all, and it is obvious that he was not warned, whereas we would impose execution upon them only if they had been 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 hold them liable only when they were warned,

there is no

fulfillment for them of “as he plotted to do to his brother.”

Rav Sama, son of Rav Yirmeya, challenged Abaye

concerning Abaye’s statement:

But if that is so,

that conspiring witnesses do not require forewarning because we require “as he plotted to do to his brother”—

if so, concerning conspiring witnesses who testified that a kohen was disqualified and invalid for the priesthood because he was

the son of a divorced woman and the son of a ḥalutza

, and who are liable to receive lashes [as explained in the Mishna at the beginning of tractate Makkot],

for they are not included in the law of “as he plotted”

with regard to lashes, since they did not plot to have him flogged, 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 they require forewarning

, so that without it they would not receive lashes!? The Gemara answers Abaye’s statement:

The verse states: “There shall be one law for you all”

—a law that is equal for all of you!

Since most conspiring witnesses, who incur punishment under the law of “as he plotted,” do not require forewarning, these witnesses too, whose liability is not under the law of “as he plotted,” shall have the same law as most conspiring witnesses: they do not require forewarning.

Rav Shisha, son of Rav Idi, said:

There is another source that one who injures another pays and does not receive lashes:

One who injures another also: he pays money and does not receive lashes—

from here:

It is written:

“And when men quarrel and strike a pregnant woman,

and her children emerge

[the fetuses, and they die], but there is no fatality [to the woman]—he shall surely be punished,” meaning that the one who struck her must pay the husband the value of the offspring.

And Rabbi Elazar said: The verse speaks of a quarrel involving a death

[a quarrel that could result in death]

the verse speaks;

the one who struck had intended to kill the other man.

As it is written

in that passage:

“But if there is a fatality

[the woman was killed, but not the man whom he had intended to kill]—

then you shall give a life for a life.”

That is, the court puts the man who struck her to death, since through his blow he had intended to deliver a fatal blow to the other man. And although it was the woman who was killed by the blow, and not the man whom he had intended to kill, he is liable to death according to Rabbi Shimon, who holds that “one who intends to kill this person but kills that person is liable.”

But

what are the circumstances

of the passage that renders the one who struck the woman liable to death?

If he was not warned,

if he was not warned, “If you kill your fellow, you will be liable to death”—

why is he put to death,

why is he liable to death for killing the woman, seeing that he was not warned at all!?

Rather, it is obvious

that the case is one in which

he was warned

with a warning of liability to death if he killed the other man. Therefore he is liable to death for killing the woman, even though it was the woman who was killed, and not the man whom he intended to kill.

And once we have established that the verse is dealing 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 another 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 renders him liable to death, as here, where he was warned not to kill his fellow, and that if he killed him he would be liable to death],

is considered warned

also

concerning a less severe matter.

For a warning of liability to death also serves as a warning of liability to lashes. Here, the warning not to kill his fellow also serves as a warning not to injure his fellow, even if he does not kill him.

If so, by law he should receive lashes for injuring the woman, since he was warned with regard to lashes for the prohibition against causing 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,

“but there shall be no fatality

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

he shall surely be punished”

the one who injured the woman with a monetary payment, the payment for the offspring.

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

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

Rav Ashi raised an objection to this: From where

do you know

that one who is warned concerning a severe matter is considered warned concerning a less severe matter?

But

perhaps he is not considered

warned concerning the less severe matter. In that case, he should not be liable to lashes for the injury and therefore pays; and we still have not learned that one who is liable to lashes pays for an 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 less severe matter—

from where is it established that death is more severe

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