Ketubot 33b (לג:) — the Talmud in English

Perhaps

the punishment of

lashes, which is more severe

than death!?

For

behold,

Rav said: Had they flogged

Hananiah, Mishael, and Azariah—

had they flogged Hananiah, Mishael, and Azariah

with afflictions in order to make them bow to the image, indeed they would have

worshipped the image;

they would not have been able to withstand it and would have worshipped it by bowing down. Even though they did not shrink from being thrown into the fiery furnace in order to die! This proves that afflictions are more severe than death, and it follows once again that one who was forewarned regarding death is not thereby forewarned regarding lashes; thus the proof that one who injures another pays money rather than receiving lashes is refuted!?

He said:

Rav Sama, son of

Rav Asi—and some say, Rav Sama, son of

Rav Ashi—

raised the following objection

to Rav Ashi,

concerning Rav Ashi’s comparison of lashes imposed by a court for violating a negative commandment to the tortures inflicted by the authorities, from which he had inferred that lashes are more severe than death:

Is there not a distinction

between

a beating that has a limit [

a defined limit], such as the lashes imposed by a court, which are thirty-nine,

and a beating

inflicted by the authorities

that has no limit,

like that suffered by Hananiah, Mishael, and Azariah!?

Rav Yaakov of Nehar Pekod raised an objection [

the name of a place] to the inference from the passage concerning payments for miscarried offspring that one who injures another receives lashes and also pays:

This works well according to the Rabbis, who say:

the Torah’s statement, “And if there is a fatality, you shall give a life for a life,” means that he becomes liable for

an actual life;

according to their view, the verse must indeed be speaking of one who struck with a forewarning that he would be liable to death, since otherwise he would not become liable for an actual life.

But according to Rabbi, who says:

the Torah does not mean that if the woman dies, the one who struck her becomes liable for his life, since he did not intend to strike her; and although he intended to strike another person, according to Rabbi, “one who intended to kill one person and killed another” is not liable for death—

the Torah’s statement that if the woman dies, “you shall give a life for a life,” means that the one who struck her must pay

money,

the monetary value of the woman—

according to Rabbi, there is no necessity to say that the verse is speaking of one who had been forewarned that he would be liable to death if he killed another person. If so,

what can be said

as to the source that one who injures another pays money and does not receive lashes!?

Rather, Rav Yaakov of Nehar Pekod said in the name of Rava: From here

one can learn that one who injures another pays money and does not receive lashes:

For it is written: “When men quarrel and one man strikes his fellow, and he does not die but falls into bed.

If he rises [

the injured man]

and walks outside on his support [

in full health, having returned to his former strength and vigor],

then the striker shall be cleared [

of death imposed by a court]; only his lost wages shall he pay, and he shall provide for his complete healing.”

The verse requires interpretation, for

would it enter your mind that this man—

the injured one—

is walking in the marketplace while this one—

the striker—

is executed, so that the Torah had to state, “then the striker shall be cleared”? Numerous verses establish that a murderer becomes liable only if the victim dies, as the Torah says, “One who strikes a person and he dies shall surely be put to death,” and other verses as well!?

so that the Torah had to say, “then the one who struck him shall be acquitted”? Many verses establish that a murderer is liable only if the victim dies, as the Torah states: “One who strikes a person and he dies shall surely be put to death,” and there are other verses as well!?

Rather,

this verse was written only so that it would

teach that they imprison

in a prison

him [

the striker],

and if the injured man dies

at that point,

we execute him

the striker, as a murderer;

and if the injured man does not die,

then the striker is completely cleared of the authority of the court, and

“his lost wages he shall pay—

the striker—

and he shall provide complete healing.”

Once the meaning of the verse has been clarified—that they imprison him so that if the injured man dies, the striker will become liable for his life—it can be inferred from this verse that one who injures another pays money and does not receive lashes:

For

what are the circumstances

in which the one who injured him would become liable for his life if the injured man died?

If he was not forewarned

that if the injured man died he would be liable to death,

why would he be executed

the striker, even if the injured man died!?

Rather, it is obvious that he was forewarned

of death;

and one who was forewarned regarding a severe matter

is therefore

forewarned

also

regarding a lesser matter,

namely, lashes for injuring another if the injured man does not die—

and

nevertheless

the Merciful One said: “His lost wages he shall pay and he shall provide complete healing,”

and he is not exempt from the payments on account of the lashes to which he became liable.

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

Rav Ashi raised an objection

in the same manner as he objected to the previous inference:

From where do you know that one who was forewarned regarding a severe matter is forewarned regarding a lesser matter!?

Perhaps he is not

forewarned—

and

even

if you say

that one who was forewarned regarding a severe matter

is

forewarned regarding a lesser matter—

from where do you know that death is more severe

than lashes?

Perhaps lashes are more severe

than death—

For

behold,

Rav said: Had they flogged Hananiah, Mishael, and Azariah,

they would have

worshipped the image.

He said

Rav Sama, son of

Rav Asi, to Rav Ashi—and some say it was Rav Sama, son of Rav Ashi—

who raised this objection

to Rav Ashi,

when he challenged Rav Ashi’s previous objection:

Is there not a distinction between a beating that has a limit and a beating that has no limit!?

Furthermore,

Rav Mari raised an objection:

From where do you know that

the verse is speaking of one who strikes

intentionally, and “shall be cleared”

as stated by the verse means

of execution [

by a court], which requires a forewarning?

Perhaps

the verse is speaking of one who struck

unintentionally,

and the meaning of the verse is that they imprison the striker to determine whether the injured man will die, in which case the striker will become liable for exile, which is imposed upon one who kills a person unintentionally; but if the injured man does not die,

“he shall be cleared

the injured man

of exile.”

Since the verse is speaking of an unintentional act, a forewarning is irrelevant here!?

And we conclude: Indeed,

the objection is difficult.

Here the Gemara returns to the objection that it raised above, on page 32a, concerning what is stated in our Mishna regarding one who engages in intercourse with women who are liable for karet and who are entitled to a fine, whereas the Mishna in Makkot states that one who engages in intercourse with women who are liable for karet is subject to lashes. Since it is an established principle that “one does not receive lashes and pay,” why does he pay the fine when he has become liable to lashes? The Gemara offers another resolution to this objection.

Reish Lakish said

to resolve the objection:

Whose opinion is this

—our Mishna, which obligates one who engages in intercourse with his sister to pay a fine even though he is liable to lashes?

It is Rabbi Meir’s, who says:

one who becomes liable for lashes and money

receives lashes and pays

at the same time. This is as we learned in the Mishna in Makkot cited above, on page 32b: the same legal designation that brings him to receive lashes [“You shall not uncover the nakedness of your sister”] does not bring him to make payments [“The man who lies with her shall give the father of the young woman fifty silver coins”].

The Gemara asks:

If

our Mishna is according to

Rabbi Meir,

then

even

when he engages in intercourse with

his daughter as well,

he should be liable for a fine. Yet the latter clause of our Mishna [i.e., the following Mishna] states that one who engages in intercourse with his daughter is not liable for a fine, since the principle “he is subject to the more severe punishment” applies and he is not made liable for death and money simultaneously.

And if you would say, as a resolution, that

to resolve this by saying that

Rabbi Meir accepts “he receives lashes and pays”,

but

does not accept “he dies and pays”,

and agrees with the Rabbis that he is judged only by the more severe punishment, then when he engages in intercourse with his daughter, Rabbi Meir would say that he is not liable for a fine, and our Mishna is successfully explained according to Rabbi Meir.

No: Does Rabbi Meir not also hold that

“he dies and pays”?

One who steals an ox, a sheep, or any other object becomes liable to pay double the value of the theft: the principal, which is a monetary obligation, and an additional payment equal to the value of the theft, the double payment, which is a fine for the theft. If he slaughters or sells the sheep, he pays four times the value of the theft: the principal, the double payment for the theft, and two additional payments as a fine for the slaughter. If he slaughters or sells an ox, he pays five times the value: one part is the principal, and the other four are fines.

And it was taught in a beraita: One who stole

an ox or a sheep

and slaughtered

it

on Shabbat,

for execution by a court applies to slaughtering on Shabbat—

and likewise one who

stole

an ox or a sheep

and slaughtered

it

for

the sake of

idol worship, since execution by a court applies to one who offers an animal for idol worship—or one who

when court-imposed death is incurred for offering an animal for idol worship—or

stole an ox sentenced to stoning [

because the ox killed a person and became liable to be stoned], which is forbidden to derive benefit from,

and slaughtered it.

In all these cases, he

pays the fourfold and fivefold payments; this is the statement of Rabbi Meir.

But the Rabbis exempt him.

It is therefore established from the beraita that Rabbi Meir holds that one becomes liable for death—i.e., for slaughtering on Shabbat and offering for idol worship—and for money simultaneously. If our Mishna is according to Rabbi Meir, the latter clause is difficult: why does the tanna exempt him from the fine when he has become liable for execution by a court?

And we answer:

it was stated concerning it

that beraita:

Rabbi Yaakov said that Rabbi Yoḥanan said—

And some say: Rabbi Yirmeya said that Rabbi Shimon ben Lakish said—

and also

Rabbi Avin and Rabbi Ila, and the entire group in the name of Rabbi Yoḥanan, said:

That beraita is speaking

of one who slaughters through another,

where the thief sent another person to slaughter the animal, and that other person slaughtered it on Shabbat or for idol worship.

It follows that the thief, who becomes liable for the monetary payments on account of the agent’s slaughter, did not become liable for death, and therefore he pays money. However, Rabbi Meir concedes that one who engages in intercourse with his daughter does not pay money, because “he is subject to the more severe punishment.”

The Gemara challenges this interpretation of the beraita:

Is it possible that this one—

the agent—

sins

by slaughtering the stolen animal,

while this one—

the thief—

becomes liable

for the fourfold and fivefold payments because of the agent’s sin in slaughtering it!?

But it is an established principle: “There is no agency for a transgression”!

Rava said:

Slaughtering a stolen animal has a different law, and agency for a transgression applies to it.

This is because

the Merciful One said: “And he slaughtered it or sold it,”

where the verse juxtaposed slaughtering and selling in order to teach:

Just as selling

makes him liable

through another,

since the thief’s sale cannot take place without a buyer,

so too slaughtering

makes him liable even

through another,

whom the thief sent to slaughter it.

The school of Rabbi Yishmael taught

another source for liability for the fourfold and fivefold payments through an agent:

The verse says, “And he slaughtered it or sold it”; therefore the Torah said

“or”

rather than “and he slaughtered it and sold it,” in order

to include the one who

slaughters through an

agent.

The school of Hezekiah taught

another source:

The verse says, “He shall pay five cattle in place of the ox and four sheep in place of the sheep.” Therefore the verse said

“in place of”

the ox, rather than “he shall pay with an ox,” in order

to include the

one who slaughters through an

agent—

meaning, even if someone acting on behalf of the thief slaughters it, the thief is liable to pay.

Mar Zutra raised an objection

to the interpretation of the beraita, according to which when the slaughter is performed by an agent, the sender becomes liable even though the agent became liable to death for his slaughter:

Is there any such thing that, had he himself acted

the sender, in the same manner as the agent acted,

he would not become liable

because “he is subject to the more severe punishment,”

while the agent acts

and

becomes liable,

and the sender becomes liable!? Could the power of the agent, who acts through the sender’s power, be greater than the power of the sender himself!?

And we answer:

He,

the sender,

does not fail to become liable

because the sender is entirely exempt from liability for slaughtering.

Rather,

he is exempt from paying when he slaughters on Shabbat

because “he is subject to the more severe punishment,”

and it is the liability for death that exempts him. Therefore, when he sends an agent and he himself does not become liable for death, he is liable to pay.

The Gemara challenges this interpretation of the beraita:

If

the beraita is speaking

of one who slaughters through another,

then

what is the reason of the Rabbis, who exempt him!?

If the beraita were speaking of the thief himself slaughtering the animal, the dispute between Rabbi Meir and the Rabbis concerning slaughtering on Shabbat or for idol worship would be readily understood: Rabbi Meir holds “he dies and pays,” whereas the Rabbis hold “he does not die and pay.” But according to this interpretation of the beraita, that the sender himself did not become liable for death, but only his agent did, what is the reason of the Rabbis, who exempt the sender!?

And we answer:

Who are the Sages?

Who are the Sages in the beraita who exempt—