Ketubot 36a (לו.) — the Talmud in English

“Forbidden relations”

as we learned:

actual forbidden relations,

those written in the passage of After the Death, for which one is liable to karet—

and

“secondary forbidden relations,”

as we learned, are forbidden relations of a second degree of kinship — those forbidden

by rabbinic ordinance?

This interpretation is certainly impossible. For secondary forbidden relations,

since from the perspective of Torah law she is fit for him,

are fit for him, and the phrase “she shall be his wife” applies to them;

why should they not be subject to a fine?

Why should they not receive a fine!?

Rather,

interpret it as follows:

“Forbidden relations,”

are those forbidden relations for which the one who engages in intercourse with them is

liable to a court-imposed death penalty,

and from which one should be exempted from a fine because he is liable to a court-imposed death penalty, according to the principle “one who is liable for the greater penalty is exempt from the lesser penalty”—

and

“secondary forbidden relations”

are forbidden relations for which one is not liable to a court-imposed death penalty, but they are

those liable for karet

alone. These too are not subject to a fine, since the phrase “she shall be his wife” does not apply to them, as it indicates a woman with whom a valid marital union exists.

The intention of the beraita is to say that not only are those liable to court-imposed death penalties not subject to a fine because of the principle “one who is liable for the greater penalty is exempt from the lesser penalty,” but even those liable for karet, to whom that principle does not apply, are nevertheless not subject to a fine, since a valid marital union cannot exist with them—

But those liable for prohibitions,

with whom a valid marital union exists,

are subject to a fine.

And whose opinion is this?

According to whose approach does the tanna of the beraita proceed?

It proceeds according to the approach of

Shimon HaTimni,

who taught above, on page 29b, that the women excluded from the fine by the verse “she shall be his wife” are only those with whom a valid marital union cannot exist, but not those liable for prohibitions, with whom kiddushin is effective.

There are those who say

that the beraita should be interpreted as follows:

“Forbidden relations”

means

those liable to court-imposed death penalties and those liable for karet,

since kiddushin is not effective for him with them, and they are not subject to a fine because a valid marital union cannot exist with them—

and

“secondary forbidden relations”

means even

those liable for prohibitions,

with whom a valid marital union exists, and even these are not subject to a fine, since they are not fit for him to maintain as wives.

And

whose opinion is this?

Whose is this beraita?—

It is the opinion of Rabbi Shimon ben Menasya,

who taught that all women whom it is not fitting for him to maintain as wives are excluded from the fine.

b. We learned further in a beraita:

“A girl who exercises refusal is entitled neither to a fine nor to compensation for seduction”:

And we raised the following question: A minor can exercise refusal of a minor marriage only while she is a minor. If so, when it is taught, “A girl who exercises refusal” is not entitled to a fine, she must necessarily be a minor. It follows from here that

an ordinary minor,

who was neither married nor exercised refusal,

does

have

a

fine.

If so,

whose opinion is this

beraita?—It must be that according to

the Rabbis it proceeds in the beraita brought at the beginning of the chapter],

[in the beraita brought at the beginning of the chapter],

who say:

Even

a minor is entitled to a fine.

But

consider the latter clause,

which we learned there:

“An aylonit is entitled neither to a fine nor to compensation for seduction.”

This latter clause must necessarily

be referring to Rabbi Meir, who says that a minor is not entitled to a fine,

but only a young woman is entitled to one.

And

therefore,

this

aylonit, who has no period of young womanhood, but

passes directly from minority to adulthood,

becomes an adult at the end of her period of minority, and therefore is not subject to a fine—

If so, the following difficulty arises: Is it possible that the

first clause

follows the approach of

the Rabbis,

while

and the

the

latter clause

follows the approach of

Rabbi Meir!?

!?

And if you would say

to interpret it as follows: In fact,

the entire

beraita follows the approach of

Rabbi Meir,

who holds that a minor is not subject to a fine, but only a young woman, and consequently an aylonit is not subject to a fine.

And when it teaches “a girl who exercises refusal,” it is referring to one who exercised refusal after she had already matured. The tanna of the beraita holds that she can exercise refusal even after reaching adulthood, since

with regard to a girl who exercises refusal that is, concerning the question until when a girl may exercise refusal,

[that is, concerning the question of until when a girl can refuse],

he holds that

Rabbi Meir follows

Rabbi Yehuda,

who says that even after she matures she can still exercise refusal until the black hair becomes abundant [as will be explained below]. Therefore, one cannot infer from the beraita that an ordinary minor is entitled to a fine, since it is referring to a girl who exercises refusal after reaching adulthood.

This cannot be answered in this manner. For—

Can it be

that one may say that

Rabbi Meir holds

like Rabbi Yehuda, that refusal is possible even after she has matured!?

But it was taught: Until when may a girl exercise refusal?

Until she produces two pubic hairs.

Once she matures through the production of two pubic hairs, she can no longer exercise refusal,

the words of Rabbi Meir.

Rabbi Yehuda says:

If her husband has not yet engaged in intercourse with her after she matured, she can exercise refusal

until the

hair becomes

abundant and black.

This means that there must be an abundance of black hairs in that place. Nevertheless, two hairs lying flat are sufficient, if their appearance is such that it may be said that “the black hair has become abundant.”

It follows that according to Rabbi Meir only a minor can exercise refusal. If so, the following difficulty arises: If the earlier beraita follows the approach of Rabbi Meir, why does it teach there, “A girl who exercises refusal is not entitled to a fine”? After all, according to Rabbi Meir every minor, including one who does not exercise refusal, is not entitled to a fine!?

Rather,

perhaps say that that beraita was stated according to the opinion of

Rabbi Yehuda,

who holds that she can exercise refusal even after reaching adulthood; consequently, one cannot infer from that beraita that an ordinary minor is entitled to a fine—

And with regard to a minor he holds

that the tanna of that beraita follows

Rabbi Meir,

who says that she is not entitled to a fine. Therefore he said that an aylonit is not entitled to a fine, since she passes directly from minority to adulthood.

This too cannot be said.

For

can it be

that

Rabbi Yehuda holds

like Rabbi Meir, that a minor is not entitled to a fine, so that he exempts an aylonit from a fine because she has no period of young womanhood?

But Rav Yehuda said that Rav said: This

that we learned in the Mishna [below, 40b], that a minor is not entitled to a fine,

is the statement of Rabbi Meir

alone.

But the Rabbis say: A minor is entitled to a fine.

And if it is so

as you say, that Rabbi Yehuda holds like Rabbi Meir, that a minor is not entitled to a fine, then Rav should have said:

“This is the statement of Rabbi Meir and Rabbi Yehuda”—

he should have needed

to say this!

The Gemara therefore resolves the beraita in another manner:

This beraita does not entirely follow the approach of Rabbi Meir, nor does it entirely follow the approach of Rabbi Yehuda. Rather, one part follows Rabbi Meir and another part follows Rabbi Yehuda.

This tanna,

who taught this beraita,

holds like Rabbi Meir in one matter,

that a minor is not entitled to a fine, and therefore an aylonit is likewise not entitled to a fine.

But he disagrees with him—

with Rabbi Meir—

in one matter,

in that he holds that a woman can exercise refusal only while she is a minor. Rather, he follows the opinion of Rabbi Yehuda, who holds that she can exercise refusal even after reaching adulthood. Therefore, it is specifically because she exercises refusal that she is not entitled to a fine.

Rafram said

to resolve the beraita in another manner:

In fact, it follows the approach of Rabbi Meir, and therefore an aylonit is not entitled to a fine. And concerning the difficulty you raised from “a girl who exercises refusal,” there is no difficulty:

For

what does “a girl who exercises refusal

mean? A woman

who is fit to exercise refusal,

had she been married. That is, a minor is entitled neither to a fine nor to compensation for seduction.

And

the Gemara challenges this resolution: Why

should it teach

the matter explicitly in the beraita, namely, that a

minor

is not entitled to a fine or to compensation for seduction? Why did it mention the minor using the expression “a girl who exercises refusal”!?

And we conclude: Indeed,

it is difficult,

this question.

c. We learned in a beraita:

“An aylonit is entitled neither to a fine nor to compensation for seduction.” And we raise a contradiction

from another beraita:

As it was taught:

“A deaf-mute woman, a mentally incapacitated woman, and an aylonit:

are subject to a fine,

since they are presumed to be virgins.

And they are subject to

a claim concerning

virginity,

if they married under the presumption that they were virgins: If he engaged in intercourse with her and did not find evidence of virginity, she forfeited her ketuba.

It is therefore explicitly stated in this beraita that an aylonit is subject to a fine, unlike the beraita that we learned, which states that an aylonit is not subject to a fine!?

The Gemara expresses surprise at the question:

But what contradiction is there here?

What contradiction is there!?

This

beraita that we learned, which states that an aylonit is not subject to a fine, follows the approach of

Rabbi Meir,

who holds that a minor is not subject to a fine, but only a young woman. Since an aylonit has no period of young womanhood, she is not subject to a fine.

This

beraita that we learned, which states that an aylonit is subject to a fine, follows the approach of

the Rabbis,

who hold that even a minor is subject to a fine. Therefore, an aylonit too is subject to a fine until she reaches adulthood.

The Gemara explains:

And what was the reasoning of the one who raised this question?

What was the questioner’s reasoning in raising this contradiction, when the Gemara has such a simple resolution!?

And we explain: The questioner did not bring this beraita to the beit midrash in order to raise it as a contradiction to the beraita that we cited, since that is not a question at all.

Rather, he brought it to the beit midrash

because he has

a further questioner

to raise against it, since the beraita states that a deaf-mute woman and a mentally incapacitated woman are subject to a claim concerning virginity, while another beraita states the opposite:

since the questioner had a difficulty against this beraita, in which it is explained that a deaf-mute woman and an imbecile have a claim concerning virginity, from another beraita in which the opposite is explained:

As it was taught:

“A deaf-mute woman, a mentally incapacitated woman, an adult woman, and one injured by a piece of wood

in that place—

all of these

are not subject to a claim concerning virginity.

A deaf-mute woman and a mentally incapacitated woman, because perhaps they were raped after betrothal [as will be explained further in the course of the discussion]; and an adult woman and one injured by a piece of wood, because they do not have virginity.

But a

blind woman and an aylonit—

are subject to a claim concerning virginity.

Sumakhos says in the name of Rabbi Meir:

A

blind woman is not subject to a claim concerning virginity,

and the reason will be explained later in the course of the discussion.

It is therefore explicit in this beraita that a deaf-mute woman and a mentally incapacitated woman are not subject to a claim concerning virginity, contrary to the earlier beraita, which states that “a deaf-mute woman and a mentally incapacitated woman are subject to a claim concerning virginity”!?

Rav Sheshet said: It is not difficult.

The cases of “a deaf-mute woman and a mentally incapacitated woman” in the one source can be distinguished from those in the other source:

This

—the second beraita, which holds that a deaf-mute woman and a mentally incapacitated woman are not subject to a claim concerning virginity—

is the opinion of Rabban Gamliel,

as stated in the Mishna in the first chapter [12b]. He holds that any woman who is found not to have evidence of virginity and says, “I was raped after my betrothal,” is deemed credible. Therefore, in the case of a mentally incapacitated woman and a deaf-mute woman, since they do not know how to present this claim, we present it on their behalf, saying that this is what occurred; consequently, they do not forfeit their ketuba.

And this

—the first beraita, which holds that a deaf-mute woman and a mentally incapacitated woman are subject to a claim concerning virginity—

is the opinion of Rabbi Yehoshua,

who holds that a woman is not deemed credible when she says, “I was raped after my betrothal,” because “we do not sustain ourselves financially on the basis of her statement.” Therefore, a mentally incapacitated woman and a deaf-mute woman too are subject to a claim concerning virginity.

The Gemara challenges the assertion that according to Rabban Gamliel a deaf-mute woman and a mentally incapacitated woman are not subject to a claim concerning virginity, and that although they did not themselves claim before us, “I was raped after my betrothal,” we present this claim on their behalf. But one may say:

Did you hear Rabban Gamliel say this only where she herself makes the claim?

We have heard Rabban Gamliel deem her credible only in a case where she herself claims, “I was raped after my betrothal.”]

But

where she herself makes no claim

, such as a deaf-mute woman or a mentally incapacitated woman, who makes no claim at all—

do you hear him say

that claims are made on her behalf?!

And we answer:

Yes

, indeed, according to Rabban Gamliel, these women do not even require a claim.

Since Rabban Gamliel said

that if she were to make a claim, she would be

believed

[believable]—

In a case such as this, “Open your mouth for the mute” applies!

The court must make the claim on their behalf, since they do not know how to make a claim, and in this matter they are considered mute.

We learned in the beraita cited nearby:

And a bogeret has no claim concerning virginity:

The blood of virginity does not render the woman impure with the impurity of a niddah.

And we challenge this:

But did Rav not say: A bogeret

who married,

is given

the entire

first night

, since with regard to all the acts of intercourse he performs that night in which she sees blood, we attribute the blood to the blood of virginity, and she is not impure?

It is thus evident that even a bogeret has blood of virginity, and therefore, if he did not find signs of virginity, by law he should cause her to forfeit her ketuba, since he took her in marriage on the presumption that she was a virgin, whereas she is found [unclear: the text says “to be a virgin,” which conflicts with the context] not to be a virgin, and it is a mistaken transaction?!