Ketubot 40a (מ.) — the Talmud in English

And if so,

for this matter as well,

even with regard to this issue—that the one who had intercourse with her is obligated to marry her, even against his will—

let them be derived from one another: let the seducer be derived from the rapist, for just as the rapist is obligated to marry her, so too is the seducer!?

And we answer: Since

the verse

states

with regard to the seducer:

“He shall hasten to marry her for himself as a wife—‘for himself’,”

it indicates

with her consent,

meaning that if he does not wish to do so, he need not marry her.

We learned in the Mishna:

“How does he drink from his own vessel, etc.”

It follows that if she is found to have been forbidden to him, or is unfit to enter the Jewish people, he may not retain her:

Rav Kahana said: I stated this teaching

[I stated the following teaching—the forthcoming difficulty]

before Rav Zevid of Nehardea:

Why, if she is unfit to enter the Jewish people—for example, if she is a mamzeret—is he not required to marry her? After all,

let the positive mitzva

of “And she shall be his wife”

come and override the prohibition

of “A mamzer shall not enter the assembly of the Lord”!?

Rav Zevid of Nehardea said to me:

:

When do we say: Let a positive mitzva come and override a prohibition? For example, circumcision in a case of leprosy,

where, if he has leprosy on his foreskin and he is prohibited by a prohibition from removing it, as it is stated: “Take heed concerning the plague of leprosy,” the positive mitzva of circumcision overrides the prohibition—

And because

it is impossible to fulfill the positive mitzva

without transgressing the prohibition.

But here,

the positive mitzva does not override the prohibition, for

if she says, “I do not want him,” does the positive mitzva exist at all

[if she says that she does not want him to marry her, is there a positive mitzva to marry her]!?

And since this is so, we teach her to say: “I do not want him”!

Mishna:

Mishna:

An orphan complete [who has no father], whose fine belongs to her, and likewise an orphan during her father’s lifetime

who became betrothed and was subsequently divorced,

whose fine likewise belongs to her, in accordance with Rabbi Akiva’s opinion in the earlier Mishna, on page 38a:

Rabbi Elazar says: The rapist is liable

to pay the fine if he had intercourse with her,

but the seducer,

since she acted with her consent, is

exempt,

because she waives the payment for him.

Gemara:

Rabba bar bar Ḥana said that Rabbi Yoḥanan said: Rabbi Elazar

[who is Rabbi Elazar ben Shammua] who said in our Mishna that the seducer does not pay a fine for a young woman who became betrothed and was subsequently divorced—

stated this according to the method of Rabbi Akiva, his teacher—

For he said

in the earlier Mishna, on page 38a: A young woman who became betrothed and was subsequently divorced

has a fine, and her fine belongs to her—

And since it belongs to her, the seducer is not liable, for she waived it for him, since she acted with her consent.

From where

do we know that Rabbi Elazar holds in accordance with Rabbi Akiva?

Since it teaches

in our Mishna:

“An orphan; Rabbi Elazar says: The rapist is liable, but the seducer is exempt,”

and yet

an orphan

is obviously

self-evidently

a case in which the seducer is exempt, because since the fine belongs to her, she waives it; why did the tanna need to state this law at all?

Rather, this teaches us:

That a young woman who became betrothed and was subsequently divorced

has the same status

as an orphan. Just as an orphan’s

fine belongs

to her, so too a young woman who became betrothed and was subsequently divorced

has a fine that belongs

to her,

and therefore the seducer is exempt!

That is: The term “orphan” mentioned in our Mishna has two meanings:

The first: A literal orphan who has no father; since the fine belongs to her, the seducer is exempt.

The second: “An orphan during her father’s lifetime,” namely, a young woman who became betrothed and was subsequently divorced. She has the status of an orphan, whose fine belongs to her; therefore, the seducer is exempt.

Rabbi Zeira said that Rabba bar Sheila said that

Rav Huna the Elder said that Rav Adda bar Ahava said:

Rav said: The halakha is in accordance with Rabbi Elazar.

And

Rav called Rabbi Elazar

[Rav referred to Rabbi Elazar]

“the fortunate one among the sages”

[the fortunate one among the sages].

Mishna:

What is humiliation

for which the rapist and the seducer are liable to pay, as explained in the earlier Mishna, on page 39a?

Everything depends on the one who humiliates and the one who is humiliated:

The humiliation suffered by an average person who is humiliated is more severe than that suffered by a dissolute person, and less severe than that suffered by a distinguished person. Likewise, the humiliation suffered by the woman who is humiliated is assessed according to her importance. The judges consider her standing and his standing, and assess how much money her father and family would be willing to pay so that this event would not happen to them at the hands of this man; he must pay that amount.

What is

degradation

for which the rapist and the seducer are liable to pay, as explained in the Mishna there?

We view her as though she were a maidservant being sold

in the marketplace, and assess how much she would have been worth

before intercourse, when she was a virgin,

and how much she is worth

after intercourse. The Gemara explains why her value as a maidservant decreases when she has become one who has had intercourse.

The

fine is the same for every person

and for every woman: namely, fifty sela.

And every

monetary obligation

whose amount is fixed by the Torah,

such as the fine for rape and seduction, which is fixed at fifty sela, is

the same for every person.

Gemara:

The Gemara raises a difficulty concerning the fundamental obligation to pay humiliation and degradation in cases of rape and seduction:

But say: The Merciful One stated fifty sela for everything,

perhaps when the Torah required the payment of fifty sela, it already included humiliation and degradation in this sum, so that they are not an additional debt beyond it!?

Rabbi Zeira said:

It is impossible for the payment for humiliation to be the same for all women and to be included in the fifty sela fixed for every woman, because those who hear this will wonder and

say:

Is it possible that if someone

has intercourse with a king’s daughter—

whose humiliation is great—he

pays fifty

sela, which includes the humiliation, while if someone

has intercourse with the daughter of commoners—

whose humiliation is slight—he too

pays fifty

sela, including the humiliation!?

Necessarily, the payment for humiliation is made separately and depends entirely on the one who humiliates and the one who is humiliated; and just as humiliation is paid separately, so too degradation is paid separately.

Abaye said to him: If so,

even

with regard to

an ox that killed a

slave—

for whose master the owner of the ox is liable to pay the thirty sela fixed by the Torah—

they will also say:

If the ox killed a

slave who pierced pearls—

whose value is great—the owner of the ox

pays thirty

sela for the slave,