Ketubot 35b (לה:) — the Talmud in English

The Gemara still asks: Even if it is as you say, that the verse is interpreted as referring to lashes when the injury is not worth a peruta,

in the end

the analogy that you seek to derive concerning these lashes—that they exempt him from monetary payment, even when he was not forewarned—is not because the lashes exempt him, but because

he is not subject to a monetary payment,

since we are dealing with a blow that is not worth a peruta!?

And we answer:

It is necessary:

The analogy is not needed to exempt him from payment for the injury, since there is in fact no payment here, as he did not injure him in an amount worth a peruta.

Rather, the analogy is needed to exempt the assailant—even if he acted unintentionally—from other payments, for example:

While he was striking him,

[in the course of striking his fellow,]

he tore his silk garment,

[he tore his fellow’s silk garments]. And the analogy teaches that he is exempt from payment for the silk garment even when he struck his fellow unintentionally.

Said

he, in perplexity,

Rav Hiyya to Rava:

And according to the tanna of the school of Hezekiah, who says: “One who strikes a person and one who strikes an animal

are juxtaposed in order to teach: Just as in the case of striking an animal, you did not distinguish between intentional and unintentional action with regard to liability, so too, in the case of striking a person, you should not distinguish between unintentional and intentional action with regard to exemption—there is a difficulty:

From where

do you know that “one who strikes an animal shall pay” refers to a blow administered

on

a

weekday

and that it is

written

accordingly, and

there is no basis for distinguishing,

meaning, there is no basis for distinguishing in the liability to pay for the animal between unintentional and intentional action, since one who causes damage is liable in every case; and from this you infer that likewise, with regard to exemption from payment in the case of one who strikes a person, there is no distinction between unintentional and intentional action—

But

perhaps

it refers to a blow administered

on

a

Shabbat

and it is

written

“one who strikes an animal shall pay,”

for

even

in the case of the animal itself there is a basis for distinguishing: We should distinguish in the case of striking an animal itself between one who intentionally violated the prohibition of Shabbat and one who violated it unintentionally, since the Torah imposed liability only when he acted unintentionally with regard to Shabbat —

And if you say this, you cannot infer that in the case of “one who strikes a person” you did not distinguish, since even in the case of “one who strikes an animal” you did distinguish!?

And we answer:

It cannot enter your mind

to interpret the verse “one who strikes an animal shall pay” as referring to one who struck on Shabbat unintentionally, as you suggested!

For it is written

in this verse:

“One who strikes an animal shall pay, and one who strikes a person shall be put to death.”

But

what are the circumstances?

In what situation is this verse speaking?

If

it refers to one

whom they did not forewarn,

then

why should one who strikes a person be put to death

without being forewarned!?

Rather, obviously

the verse is speaking of one

whom they did forewarn—

and if

you say that “one who strikes an animal shall pay”

on Shabbat

is what it is referring to, then

does one who strikes an animal pay!?

He is exempt by virtue of the principle that when one incurs a more severe liability, he is exempt from the lesser one.

Rather, is it not

referring to a blow administered

on

a

weekday, as the verse speaks of it?

That is to say: You cannot interpret the beginning of the verse as referring to one who incurred the death penalty unintentionally, since the end of the verse indicates that the death penalty of which it speaks was incurred intentionally. Consequently, the first clause of the verse must be speaking of one who did not incur a death penalty at all. In any event, he is liable, and we can derive by analogy that one who strikes a person

is exempt from monetary payment in every case.

The Gemara now returns to the words of Rabba on page 34a:

Rav Pappa said to Abaye:

According to Rabba, who said

earlier, in the view of Rabbi Meir, that

it is an innovation that the Torah introduced concerning a fine,

and therefore

even though

he is killed,

he nevertheless

pays,

and is not exempt under the principle that when one incurs a more severe liability, he is exempt from the lesser one—

The Mishna—

our Mishna, in which we learned: “These are the young women for whom there is a fine: One who has intercourse with his sister”—

according to whom does he establish it,

Rabba, so that the difficulty “he does not receive lashes and pay” will not arise, as the Gemara asked at the beginning of the sugya above, on 32a!?

If

Rabba interprets it

according to Rabbi Meir,

who maintains that “he receives lashes and pays,” as Reish Lakish interpreted our Mishna [above, 32b]—

then

there is a difficulty

from the latter clause of our Mishna, in which we learned: One who has intercourse with

his daughter

is exempt from the fine. For according to Rabba’s understanding of Rabbi Meir, the principle that when one incurs a more severe liability, he is exempt from the lesser one does not apply to a fine!?

If

Rabba interprets our Mishna

according to Rabbi Nehunia ben HaKana,

who likewise maintains that “he receives lashes and pays” —

Then, if our Mishna is according to Rabbi Nehunia,

there is another difficulty concerning what we learned: One who has intercourse with

his sister

[and with all other women liable to karet] pays a fine. For according to Rabbi Nehunia, those liable to karet are not liable to a fine, since their liability to karet exempts them from payment, as explained above, on 31a. Thus, our Mishna is not according to Rabbi Nehunia ben HaKana!?

And

if

Rabba will resolve that our Mishna holds

according to Rabbi Yitzhak,

who maintains that those liable to karet do not receive lashes, and that our Mishna disagrees with the Mishna in Makkot, which imposes lashes for intercourse with one’s sister, then when one has intercourse with a woman liable to karet, such as his sister, he pays a fine—

there is still

a difficulty from the first clause of our Mishna, in which we learned: One who has intercourse with

the

daughter of a forbidden union

pays a fine.

With regard to the daughter of a forbidden union, everyone agrees that there are lashes. The difficulty is: “He does not receive lashes and pay”!

This works well if

Rabba

holds like Rabbi Yohanan,

who maintains that those liable to lashes incurred unintentionally must pay the money;

he,

Rabba,

also resolves it

for our Mishna

according to Rabbi Yohanan,

who interpreted it [above, 32b] as referring to a case where they did not forewarn him, and therefore he pays the fine, both when he has intercourse with his sister and when he has intercourse with the daughter of a forbidden union.

But if he holds

Rabba

like Reish Lakish,

who exempts even those liable to lashes incurred unintentionally from payment, then

how does he resolve it

Rabba with regard to our Mishna, since he cannot interpret it according to any of the three resolutions offered above for this difficulty!?

And we conclude:

It is necessarily the case that

Rabba

holds like Rabbi Yohanan,

and he interprets our Mishna as referring to a case where they did not forewarn him.

The Gemara now returns to the words of Reish Lakish, who maintains that those liable to lashes incurred unintentionally are exempt from payment: Said

he asked

Rav Mattana to Abaye:

According to Reish Lakish, who says: The Torah explicitly included

those liable to lashes as equivalent to those liable to the death penalty,

and they too are exempt from payment when their act was unintentional—

Who is the tanna who disagrees with Rabbi Nehunia ben HaKana?

Who is the tanna who taught in several Mishnayot that one liable to karet is liable to payment [and not like Rabbi Nehunia, who exempts those liable to karet from payment], and did not exempt them because they are liable to lashes, given that those liable to lashes are exempt from payment—

For, according to Reish Lakish, you cannot say that those Mishnayot are dealing with persons liable to lashes incurred unintentionally [as Rabbi Yohanan will interpret those Mishnayot], since even those liable to lashes incurred unintentionally are exempt from payment!?

And we explain those Mishnayot as reflecting one of the following two tannaitic opinions:

If it is Rabbi Meir,

they are his—he maintains that he receives lashes and pays.

If it is Rabbi Yitzhak,

they are his—he maintains that there are no lashes for those liable to karet.

The Sages taught:

a.

Forbidden relations and secondary forbidden relations,

if he has intercourse with them,

they have neither a fine

for rape

nor one for seduction.

That is to say: Nor a fine resulting from seduction,

and this clause will be explained in the Gemara.

b.

The one who refuses,

who is a minor orphan whom her mother or brothers married off through a rabbinic marriage, and who leaves him without a bill of divorce, through refusal alone, thereby dissolving the marriage—

has neither a fine nor a seduction payment,

if she has intercourse after refusing, since she is presumed to have had intercourse, having already been married to a man.

c.

A woman incapable of conception —

who has no stage of maidenhood, but is either a minor or a grown woman—

has neither a fine nor a seduction payment,

since the fine for rape and seduction applies only to a young woman [according to the tanna of this beraita].

d.

And the woman who leaves because of a bad name,

whose husband brought against her a claim and witnesses that she had committed adultery while betrothed,

has neither a fine nor a seduction payment.

This is how the Gemara initially thought of interpreting the beraita, and it raises a difficulty against this interpretation below and explains this clause differently.

The Gemara explains all the clauses of the beraita:

a. Forbidden relations and secondary forbidden relations have no fine:

What does “forbidden relations”

in the beraita mean,

and what does “secondary forbidden relations” mean?

Earlier, on 29b, Shimon HaTimni and Rabbi Shimon ben Menasya disagreed concerning the law of a fine for women forbidden to him, with whom the command “he shall take her as his wife” cannot be fulfilled:

Shimon HaTimni’s view is that the Torah excluded from the fine only those women with whom marriage is impossible [with whom betrothal does not take effect], since the Torah said: “He shall take her as his wife.”

Rabbi Shimon ben Menasya’s view is that any woman whom he is not fit to retain as a wife, and with whom he cannot fulfill “he shall take her as his wife,” is excluded from liability for a fine when he has intercourse with her.

The view of our Mishna is that both one who has intercourse with women prohibited by negative commandments, with whom betrothal takes effect, and one who has intercourse with women liable to karet, with whom betrothal does not take effect, is liable to a fine.