Ketubot 38a (לח.) — the Talmud in English

For

one might have thought:

precise page location

these words—

that he does not give a ransom for a life and thereby become exempt—

apply when he killed him “by way of ascent,”

when he raised his hand upward, since

his inadvertent act is not subject to atonement;

for one who kills “by way of ascent” is not exiled, as it is stated: “and it fell upon him by way of falling, and he died,” but not when the blow was delivered by way of ascent.

However,

if

he killed him “by way of descent,” so that his inadvertent act is subject to atonement

through exile,

one might say

I would say that

we should take money from him and exempt him

from the death penalty.

It teaches us

the verse: “Every thing devoted to destruction that is devoted from man shall not be redeemed.” The additional wording “every thing devoted to destruction” teaches that even those liable to death whose inadvertent act is subject to atonement are not exempted from liability for death by giving a ransom for a life.

Rava said to him:

But

this—

the fact that there is no distinction in killing between way of descent and way of ascent, and in both cases he does not give money and become exempt—

is derived from the teaching of the school of Hezekiah;

we learned this matter from there!?

For the school of Hezekiah taught:

The Torah states: “One who strikes an animal shall pay for it, but one who strikes a person shall not pay money; he shall be put to death”—

The Torah juxtaposed

one who strikes a person—

to exempt him from monetary payment—

and

the

one who strikes an animal,

to obligate him in monetary payment.

The verse juxtaposed them in order to teach:

Just as with one who strikes an animal, you made no distinction

with regard to monetary payment:

a.

between

one who strikes an animal when he is

inadvertently

and one who strikes an animal when he is

intentionally,

as the Torah expanded the obligation through the phrase “wound for wound,” obligating a person who causes damage inadvertently in the same manner as one who causes damage intentionally, and one who causes damage under duress in the same manner as one who causes damage willingly.

b.

between one who intends

to strike the animal

and

one who

does not intend

to strike it.

c.

between

one who strikes the animal

“by way of descent,”

in the manner of those who strike by bringing the hand downward,

and

one who strikes it

by way of ascent,

striking by raising his hand or cutting with his sword from below upward [for the law of one who causes damage is not like the law of one who kills inadvertently with regard to exile. Only concerning one who kills inadvertently did the Torah distinguish between way of descent and way of ascent, and he is not exiled until “it fell upon him and he died” is fulfilled].

In all these cases, you made no distinction

to exempt him from monetary payment

in any one of the circumstances,

but rather to obligate him in monetary payment

in all the circumstances mentioned.

So too, with one who strikes a person, you shall make no distinction

with regard to monetary payment:

a.

between

one who kills

inadvertently,

who did not become liable to death,

and

one who kills

intentionally,

who became liable to death.

b.

between

one who

intends

to kill and became liable to death,

and

one who

does not intend

to kill and did not become liable to death.

c.

between

one who kills

by way of descent and

one who kills

by way of ascent.

For in all these cases you shall make no distinction

to obligate him in monetary payment

in any one of the circumstances,

but rather to exempt him from monetary payment

in all the circumstances mentioned.

And just as we learn that one does not distinguish between way of descent and way of ascent with regard to exemption from monetary payment, so you should learn with regard to ransom: one does not take ransom from him to exempt him, whether the act was performed by way of descent or by way of ascent.

And on the basis of this difficulty, the Gemara brings another explanation: Rather, Rami bar Ḥama said:

In fact, only one of the two verses, “every thing devoted to destruction” or “you shall take no ransom,” teaches that we do not take money from him and exempt him from execution; the other verse is needed to teach the law that “he is liable for the greater penalty.” As for what was difficult for you earlier, at the beginning of the sugya, that we derive the law that “he is liable for the greater penalty” from “but if there is no fatal outcome,” this is not difficult, because:

It was necessary—one of these two verses [either “Every thing devoted to destruction that is devoted from man shall not be redeemed,” or “You shall take no ransom for the life of a murderer”], because

one might have thought: these words

that death exempts one from monetary payment

apply when, in a single act,

he blinded his eye and killed him with it,

and only in such a case does the verse teach that liability for death exempts him from paying the value of the eye to his heirs.

But when he blinded his eye

and became liable to pay money for it,

and killed him through another matter,

with a different blow, simultaneously,

one might say: We should take money from him

and the liability for death should not exempt him from the monetary payment, since he became liable for them through two acts.

with a different blow, at the same time,

Therefore, the other one of these verses, which is superfluous, is needed to teach that the principle “he is liable for the greater penalty” applies even to two acts performed simultaneously.

Rava said to Rami bar Ḥama: Why do we need a superfluous verse to teach that the principle “he is liable for the greater penalty” applies even to two separate acts?

After all, this—when he killed him and blinded his eye through one act—

is also derived, on the other hand, from the teaching of the school of Hezekiah!?

For the school of Hezekiah taught:

“An eye for an eye,” but not an eye and a life for an eye

The verse teaches that he is exempt from monetary payment for the eye, since he became liable for a life.

Since we have learned from the teaching of the school of Hezekiah that if he blinded his eye and killed him with it, he does not pay for the eye, we can again learn from “but if there is no fatal outcome” that even when there are two acts he does not pay. We therefore do not need additional verses for the law that “he is liable for the greater penalty,” and this indicates that the rule applies whether he died from the same blow or did not die from the same blow.

For the school of Hezekiah taught:

“An eye for an eye,” but not an eye and a life for an eye,

the verse teaches that he is exempt from paying for the eye because he became liable for taking a life.

Rather, Rav Ashi said:

It was necessary for one of the two verses, “You shall take no ransom” or “every thing devoted to destruction,” to teach the case of a fine that is exempted by liability to death. Since these verses are not needed to teach the rule concerning monetary payment together with death, apply them to the case of a fine together with death, according to the principle “if it is not needed for its own matter, apply it to another matter.” The Torah needed to teach this law, because one might have thought: Since it is a novelty introduced by the Torah with regard to a fine

that it must be paid, although it is not a legal obligation derived by ordinary reasoning but rather a royal decree, therefore the law should be that

even though he is executed

he

pays.

It teaches us

one of the verses, “You shall take no ransom” or “every thing devoted to destruction,” that even a fine is not paid together with death.

he nevertheless

We still ask:

And according to Rabba, who said

earlier: Indeed, since

it is a novelty introduced by the Torah with regard to a fine, therefore

even though he is executed, he pays—

What does he do with this verse, “every thing devoted to destruction”!?

And we answer: Since these resolutions were necessary only according to Rabbi Ḥananya ben Akavya, who maintains that even one going out to be executed is subject to valuation, and it is impossible to interpret the verse “every thing devoted to destruction” as teaching that one who says concerning a person going out to be executed, “My valuation is upon me,” is not liable,

therefore, according to Rabba, there is no difficulty:

he agrees with the first tanna of Rabbi Ḥananya ben Akavya

and according to his view “every thing devoted to destruction” is not superfluous.

Mishna:

The Torah states in the passage concerning rape [Deuteronomy 22:28–29]: “If a man finds a young woman, a virgin, who is not betrothed, and he seizes her and lies with her, and they are discovered, then the man who lay with her shall give the young woman’s father fifty shekels of silver, and she shall be his wife, because he afflicted her; he may not send her away all his days.”

And it states in the passage concerning seduction [Exodus 22:15–16]: “If a man seduces a virgin who is not betrothed and lies with her, he shall surely give her bride-price to make her his wife. If her father absolutely refuses to give her to him, he shall weigh out money according to the bride-price of virgins.”

We have thus learned that the verse speaks only of a young woman who is not betrothed. But a young woman who became betrothed, even if she has already been divorced, is not subject to the law stated by the Torah; and the tannaim disagreed concerning her law:

A young woman who became betrothed and was divorced—[and once she was divorced, she is no longer subject to a death penalty that would exempt him from the fine]:

Rabbi Yosei HaGelili says: She has no fine

at all.

Rabbi Akiva says: She has a fine, but

it belongs

to her herself,

and not, as in the case of other rape, to her father.

Gemara:

The Gemara explains:

What is the reason of Rabbi Yosei HaGelili,

who maintains that a young woman who became betrothed and was divorced has no fine?

The verse says

in the passage concerning rape and in the passage concerning seduction:

“Who is not betrothed,”

and we should infer:

If she was betrothed—

thereafter

she has no fine.

And Rabbi Akiva,

who obligates a fine for a young woman who had already become betrothed, explains the verse as follows:

“Who is not betrothed”—the fine shall be

for her father; if she was betrothed—the fine shall be

for her herself.

The Gemara challenges Rabbi Akiva’s view:

But from now on:

a. What the Torah says in the passage concerning rape and in the passage concerning seduction:

“Young woman”—which implies “but not an adult woman”—

should it also be

interpreted

that

an adult woman has a fine, and the verse came only to say that her fine is

for her herself!?

Yet we have not heard this stated in any Mishna or beraita: that an adult woman has a fine and that her fine belongs to her herself, so that we could interpret the verse according to Rabbi Akiva.

b. And what the Torah says:

“Virgin”—which implies “but not one who has had intercourse”—

should it also be

interpreted

that

she has a fine and that her fine is

for her herself!?

Rather,

certainly the Torah excluded them

entirely;

here too, with regard to “who is not betrothed,” you should expound that the Torah excluded a woman who had already become betrothed from the fine

entirely.

Rabbi Akiva could say to you: I do not exclude from “who is not betrothed” that she should have no fine at all, because

this phrase “who is not betrothed” is needed

by Rabbi Akiva

for that which is taught

in the following beraita [at its end]:

for her herself!?

The Torah states:

“Who is not betrothed,”

and the verse teaches:

excluding a young woman who became betrothed and was divorced, who has no fine—these are the words of Rabbi Yosei HaGelili.

Rabbi Akiva says: She has a fine, and her fine belongs to her father.

the Torah excluded a woman who had already been betrothed

And the law dictates

that the fine should belong to her father:

Since her father

of a young woman

is entitled to the money of her betrothal, and her father

of a young woman

is entitled to the money of her fine—

Just as with the money of her betrothal, even after she became betrothed and was divorced

and then became betrothed again, the money of her betrothal belongs to her father

—

the verse teaches:

This excludes a young woman who was betrothed and then divorced, who has no fine; this is the statement of Rabbi Yosei HaGelili.

So too, with the money of her fine, even after she became betrothed and was divorced, it belongs to her father

This is the case.

And the beraita continues:

If so, what does the verse “who is not betrothed” teach?

Since her father

of a young woman

It is available for exposition,

meaning: it is superfluous, in order

to use it as the basis for a verbal analogy:

It is stated here,

in the passage concerning rape,

“who is not betrothed”—

—

And it is stated below,

in the passage concerning seduction, “who is not betrothed.”

Just as here—

in the case of rape— fifty silver is the fine, as the Torah says concerning rape: “The man who lay with her shall give the young woman’s father fifty silver pieces”—

so too below—

in the case of seduction—

fifty

silver is what he pays, although there the Torah did not specify the amount, but merely said: “He shall weigh out silver.”

And just as below,

in the case of seduction, it says

“shekels,” as the Torah says: “He shall weigh out silver,” so too here, in the case of seduction,

“shekels” is what he pays, although the Torah said only “fifty silver pieces.”

And just as according to Rabbi Akiva in the beraita the primary function of “who is not betrothed” is for the verbal analogy, so too according to Rabbi Akiva of our Mishna. However, according to Rabbi Akiva of our Mishna, a verse does not depart from its plain meaning, and it also comes to say that the fine of a young woman who was betrothed and then divorced belongs to her herself.

The Gemara still asks concerning Rabbi Akiva:

And Rabbi Akiva, what did you see that “who is not betrothed”

is available

for a verbal analogy, whereas

“virgin” serves to exclude one who has had intercourse?

so too below—

in the case of seduction—

fifty

silver coins are what he pays, although there the Torah did not specify the amount, but merely said: “He shall weigh out money.”

And just as below

in the case of seduction it says

“shekels,”

as the Torah says: “He shall weigh out money,”

so too here

in the case of seduction it says

“shekels,”

which is what he pays, even though the Torah said only “fifty silver coins.”

And just as according to Rabbi Akiva in the beraita the main purpose of “who was not betrothed” is to establish an inference based on an identical expression, so too according to the Rabbi Akiva of our Mishna. However, according to the Rabbi Akiva of our Mishna, a verse does not depart from its plain meaning, and it also teaches that the fine of a young woman who was betrothed and then divorced belongs to her herself.

The Gemara still questions Rabbi Akiva:

And Rabbi Akiva, what did you see that led you to say that “who was not betrothed”

is available

for an inference based on an identical expression,

whereas

“virgin” is available to exclude one who has had intercourse?