Ketubot 39a — the Talmud in English

And the Gemara was astonished at the practical difference explained in Rava’s uncertainty, that if there is bogeret in the grave, “the son’s it is”:

And does she become pregnant?

But is it possible that she should become pregnant while she is a minor or a na'ara, while she is still subject to the fine, and give birth while she is a na'ara!? For while she is a minor, she is unable to become pregnant and give birth to a viable offspring, for:

And Rav Bibi taught

a beraita

before [

in the presence of]

Rav Nahman: Three women have intercourse using a wad

it is permitted for them to have intercourse using a wad in that place, and by doing so their pregnancy is prevented, even though they destroy semen, which is something forbidden for other women, these women are permitted because of the danger to themselves or the danger to the fetus.

And these are they:

1.

a minor;

2.

a pregnant woman;

3.

and a nursing woman.

And the reason that they are permitted to have intercourse using a wad is:

1.

A minor

has intercourse using a wad, because:

perhaps she will become pregnant, and

if she becomes pregnant, certainly

she will die

—she and her fetus.

2.

A pregnant woman

has intercourse using a wad, because

perhaps

she will become pregnant a second time, and

she will make her fetus

the first one like a

sandal,

that is: perhaps the second fetus will press against the first, and the form of the first fetus will be diminished.

3.

A nursing woman

has intercourse using a wad, because

perhaps

she will become pregnant, and her milk will spoil and will no longer be good for the infant, and

he

will be forced to

wean her son

from nursing him, and

the nursling

will die.

And which is a minor

with regard to the permission to use a wad?

From the age of eleven years and one day until the age of twelve years and one day.

That is: until she becomes a na'ara, for only during this time is there concern lest she become pregnant and die.

But

less than this,

from the age of eleven years, when she cannot become pregnant at all,

and beyond this,

after she has become a na'ara, so that if she becomes pregnant she does not die, she

has intercourse in the usual manner

without a wad,

and proceeds.

The words of Rabbi Meir.

And the Sages say: Both this one and that one have intercourse in the usual manner and proceed, and from Heaven they will have mercy

so that no evil should befall her,

as it is stated: “The Guardian of the simple’.”

We have therefore learned that a minor is unable to become pregnant and give birth.

And if you should say,

perhaps you will say, to resolve this: she did not conceive him while she was a minor, but

she conceived while she was a na'ara and gave birth while she was a na'ara,

so that both his conception and his birth occurred while she was a na'ara.

This too cannot resolve it, for

and in six months [

in six months of na'arut]

can she give birth [

and is she able to give birth], whereas she gives birth only once the seventh month has begun!?

And

this woman has only six months of na'arut, for

Shmuel said: There are only six months between na'arut and bogerut!

And if you should say

to resolve it, that Shmuel said only that

there is no less [

there is no woman who has fewer than six months of na'arut].

There is more

than six months of na'arut,

there are

women whose period of na'arut continues beyond six months.

And if so, we would say that it is possible for her to have conceived him while she was a na'ara and to have died after full months of pregnancy while she was still a na'ara, and to have become a bogeret in the grave.

This is not so, for

this:

“There are only six months between na'arut and bogerut”

only

six months

is what

Shmuel said; and the wording “only” means that it is impossible for there to be fewer than six months, and it is likewise impossible for there to be more than this!?

It has therefore been clarified that a woman cannot give birth while she is still a na'ara. Consequently, if the daughter dies during her na'arut, it is her father who inherits her, and once again there is no practical difference between whether there is boger in the grave or whether there is no boger in the grave, for either way it belongs to her father.

Rather,

because of this difficulty, the Gemara explains the practical difference in Rava’s problem according to what we hold: a person cannot bequeath the fine to his heirs.

And

this is how it was asked of him

by Rava, that is: this is the practical difference in Rava’s uncertainty:

There is boger in the grave, and

if so,

the right of the

father

is nullified

through the bogerut, and she is the one who was supposed to receive the fine; and since she died, and a person cannot bequeath a fine to his heirs, the father did not acquire the fine by the law of inheritance, and the violator is exempt from paying the fine.

Or perhaps there is no boger in the grave, and the father’s right was not nullified,

for she is like the other na'arot, whose father brings the violator to court and acquires the fine?

Mar bar Rav Ashi asked it in this manner,

that is: Mar bar Rav Ashi explains Rava’s uncertainty in a different manner: “

There is boger in the grave,” that is: does

death [

the grave] of the na'ara

do

to the fine what

the bogerut does to it, which nullifies the power that the Torah granted the father over his daughter’s fine, and this one too, when she dies, the father’s right is nullified, while she is not alive so that she should acquire it like one who becomes a bogeret, and she is also unable to bequeath it to her heirs; consequently, the violator will not pay a fine. “

Or there is no boger in the grave,” that is:

or the grave does not

make bogerut,

and the father’s power remains intact?

And we conclude concerning Rava’s problem:

teyku.

Rava asked Abaye:

According to the view of Rabbi Akiva in our Mishna,

that betrothal removes her from her father’s authority with regard to the fine, and one who has intercourse with a na'ara who became betrothed and was divorced—the fine belongs to her herself—if

he had intercourse with her and afterward

she became betrothed

before he was brought to court concerning the fine,

what

is the law of the fine—does it belong to her father or to her herself?

He said to him,

Abaye said to Rava:

Is it written [

but is it written]

“And he shall give it to the father of the na'ara who is not betrothed”

until you should expound: if she is betrothed at the time of the giving, the fine does not belong to her father!?

And according to your reasoning—

you should raise for yourself

that which was taught: He had intercourse with her and she married,

before the adjudication, and the fine belongs

to her herself.

And why?

Is it written, “And he shall give it to the father of the na'ara who is

not married”!?

Rather, certainly, since marriage removes her from her father’s authority, it removes her from him even after he had intercourse with her, and he does not receive the fine, even though there is no verse indicating this; and so we must say concerning one who became betrothed: since betrothal removes her from her father’s authority with regard to the fine, it removes her from her father’s authority even after he had intercourse with her.

is not married”!? Rather, it is certainly because marriage removes her from her father’s authority that it removes her from him even after he had intercourse with her, and he does not receive the fine, even though there is no verse that explicitly indicates this. We should likewise say regarding one who became betrothed: since betrothal removes her from her father’s authority with regard to the fine, it removes her from her father’s authority even after he had intercourse with her.

And we answer:

Now can this be compared there is no similarity between the case under discussion and the proof! For

there,

in the case of marriage, it is indeed learned from the verse, and this is how we derive it:

since bogerut removes her from her father’s authority,

for once she has become a bogeret, her father no longer has any authority over her.

And marriage

too

removes her from her father’s authority.

Just as bogerut if

removes her from her father’s authority.

he had intercourse with her

while she was a na'ara

and she became a bogeret

before the adjudication, the fine belongs

to her herself,

for the Torah said: “And the man who lay with her shall give it to the father of the na'ara,” and the verse teaches that she must be a na'ara at the time of the giving; then he gives the fine to her father.

So too marriage,

if

he had intercourse with her

before she married

and she married

before the adjudication, the fine belongs

to her herself.

But betrothal—does it remove her entirely from the father’s authority,

and do betrothal and bogerut truly become comparable!?

For although betrothal removes her partially from her father’s authority with regard to the annulment of vows, so that he may not annul them alone as he annulled them until her betrothal, nevertheless, even after betrothal she still remains somewhat under his authority, for

we learned: A betrothed na'ara—her father and her husband

together

annul her vows.

And since betrothal is not comparable to the verse that was stated concerning bogerut, we can no longer say, by logical reasoning, that betrothal removes her from her father’s authority after he had intercourse with her.

Mishna:

The seducer gives three things, and the rapist

gives

four

things.

The seducer gives:

a.

shame;

b.

degradation;

c.

and the fine.

3.

The rapist adds

the

pain,

so there are four things for the rapist.

payment for pain

What is the difference between a rapist and a seducer?

And the Mishna explains three distinctions between them: a.

The rapist gives the pain, whereas

the

seducer does not give the pain.

b.

The rapist gives immediately

the fine, even though he marries her as the Torah commanded him: “And she shall be his wife because he afflicted her; he may not send her away all his days.”

But

the

seducer

does not give the fine except

when he sends her away,

that is: if he does not marry her,

for so the Torah said: “He shall surely give her as a wife to himself. And if her father utterly refuses to give her to him, he shall weigh out money according to the dowry of virgins”; thus, he was commanded to weigh out the fine only if he does not marry her.

c. The rapist drinks from his vessel [

in the vessel he chose to drink from],

that is: he must marry her against his will and may never send her away, as it is stated, “And she shall be his wife because he afflicted her; he may not send her away

all his days,” and even if she is undesirable to him, he must marry her, as the Mishna proceeds to explain.

And the seducer, if he wishes to take out

his seduced woman

he takes her out,

and likewise, if he wishes, he need not marry her from the outset.

The Mishna explains:

How

does the rapist

drink from his own vessel?

Even

if

she is lame,

and

even

if

she is blind, and even

if

she is afflicted with boils,

he must fulfill “she shall be his wife” if she wishes this.

But if

a matter of sexual transgression is found in her,

that she committed adultery after he married her and became forbidden to him according to the law of a sota,

or if

from the outset

she is not fit to enter into the congregation of Israel,

for example, she was a mamzeret.

In that case he

is not permitted to keep her, as it is stated: “She shall be his wife”—a wife who is fit for him.

Gemara:

We learned in the Mishna: The rapist adds to him, for he gives the payment for the pain:

The Gemara explains:

The pain of what,

what pain does the raped woman have for which he must pay?

Avuh of Shmuel said: The pain from striking her on the ground

in order to rape her—that is the pain for which the rapist is liable to pay.

Rabbi Zeira objected to this:

But if so,

that he is liable for the pain of the striking, then if

he struck her on silk cloth,

so that she has no pain from the striking,

is it also so that he is exempt,

and will he be exempt from paying for pain!?

And should you say: It is also so,

meaning, perhaps you will say: Indeed, if there was no pain of striking, he does not pay for the pain?

There is another proof from a beraita that it is not for this pain that he is liable!