Babylonian Talmud: Tractate Kethuboth

Folio 38a

that this applied only where murder had been committed¹  in the course of an upward movement,²  because no atonement³  is allowed when such an act⁴  was committed unwittingly.⁵  but that where murder was committed in the course of a downward movement,²  which [is an offence that] may be atoned for³  if committed unwittingly,⁵  a monetary fine may be received from him and thereby he may be exempted [from the death penalty]. Hence we were taught⁶  [that in no circumstances may the death penalty be commuted for a monetary fine].

Said Raba to him,⁷  Does not this⁸  follow from what a Tanna of the School of Hezekiah [taught]; for a Tanna of the School of Hezekiah taught: He that smiteth a man⁹  [was placed in juxtaposition with] And he that smiteth a beast⁹  [to indicate that just] as in the case of the killing of¹⁰  a beast no distinction is made whether [the act was] unwitting or presumptuous, whether intentional or unintentional, whether it was performed in the course of a down ward movement or in the course of an upward movement, in respect of exempting him from a monetary obligation¹¹  but in respect of imposing a monetary obligation¹²  upon him,¹³  so also in the case of the killing of¹⁴  a man no distinction is to be made whether [the act was] unwitting or presumptuous. whether intentional or unintentional, whether it was performed in the course of a downward movement or in the course of an upward movement, in respect of imposing upon him a monetary obligation¹⁵  but¹⁶  in respect of exempting him from any monetary obligation?¹⁷  — But, said Rami b. Hama, [one of the texts¹⁸  was] required [to obviate the following assumption]: It might have been presumed that this¹⁹  applied only where a man blinded another man's eye and thereby killed him, but that where he blinded his eye and killed him²⁰  by another act a monetary fine must be exacted from him.²¹

Said Raba to him:²²  Is not this²³  also deduced from [the statement of] another Tanna of the School of Hezekiah; for a Tanna of the School of Hezekiah [taught:] Eye for eye²⁴  [implies] but not an eye²⁵  and a life for an eye?²⁶  — [This]. however, [is the explanation], said R. Ashi: [One of the texts²⁷  was] required [to obviate the following assumption]: It might have been presumed that since the law of a monetary fine is an anomaly²⁸  which the Torah has introduced, a man must pay it even though he also suffers the death penalty. Hence we were told²⁹  [that even a monetary fine may not be imposed in addition to a death penalty].

But according to Rabbah, who said that it is an anomaly²⁸  that the Torah has introduced by the enactment of the law of a monetary fine [and that therefore an offender]³⁰  must pay his fine even though he is also to be killed,³¹  what application can be made of the text 'None devoted…'?³²  — He³³  holds the view of the first Tanna who [is in dispute with] R. Hanania b. 'Akabia.³⁴

MISHNAH. A GIRL³⁵  WHO WAS BETROTHED AND THEN DIVORCED³⁶  IS NOT ENTITLED, SAID R. JOSE THE GALILEAN, TO RECEIVE A FINE [FROM HER VIOLATOR].³⁷  R. AKIBA SAID: SHE IS ENTITLED TO RECEIVE THE FINE AND, MOREOVER, THE FINE BELONGS TO HER.³⁸

GEMARA. What is R. Jose the Galilean's reason?³⁹  — Scripture said, That is not betrothed⁴⁰  [is entitled to a fine],⁴¹  one, therefore, who was betrothed is not entitled to a fine. And R. Akiba?⁴²  — [In the case of a girl] that is not betrothed [the fine is given] to her father but if she Was betrothed [the fine is given] to herself.

Now then, [the expression,] A damsel⁴³  [implies] but not one who is adolescent;⁴⁴  could it here also⁴⁵  [be maintained] that [the fine is given] to herself?⁴⁶  [Likewise the expression] virgin⁴⁷  [implies] but not one who is no longer a virgin; would it here also⁴⁸  [be maintained] that [the fine is given] to herself?⁴⁶  Must it not consequently be admitted⁴⁸  [that the exclusion in the last mentioned case] is complete,⁴⁹  and so here also⁵⁰  it must be complete?⁵¹  — R. Akiba can answer you: The text of⁵²  'Not betrothed' is required for [another purpose].⁵³  as it was taught: 'That is not. betrothed' excludes a girl⁵⁴  that was betrothed and then divorced who has no claim to a fine; so R. Jose the Galilean. R. Akiba, however, ruled: She has a claim to a fine and her fine [is given] to her father.⁵⁵  This⁵⁶  is arrived at by analogy: Since her father is entitled to have the money of her betrothal⁵⁷  and he is also entitled to have the money of her fine⁵⁸  [the two payments should be compared to one another]: As the money of her betrothal⁵⁹  belongs to her father even after she had been betrothed⁶⁰  and divorced,⁶¹  so also the money of her fine should belong to her father even after she had been betrothed and divorced. If so⁶²  what was the object of the Scriptural text, 'That is not betrothed'? It is free for the purpose of a comparison with it and an inference from it by means of a gezerah shawah.'⁶³  Here⁶⁴  it is said, 'That is not betrothed' and elsewhere⁶⁵  it is said, That is not betrothed,⁶⁶  as here⁶⁷  [the fine is that of] fifty [silver coins]⁶⁸  so is it fifty [silver coins] there⁶⁵  also; and as there⁶⁵  [the coins must be] shekels⁶⁹  so here⁶⁷  also they must be shekels.

What, however, moved⁷⁰  R. Akiba [to apply the text] of 'That is not betrothed'⁷¹  for a gezerah shawah and that of 'Virgin' for the exclusion⁷²  of one who was no longer a virgin?

1. Intentionally. Lit., 'he killed him'.
2. Of the hand, body or instrument.
3. By exile.
4. Murder in the course of an upward movement of the hand or body.
5. V. Mak. 7b.
6. By the text, 'None devoted' from which deduction was made supra.
7. Rami b. Hama.
8. The deduction from 'None devoted' that, in the case of murder, the death penalty may not be commuted for a monetary fine irrespective of whether the offence had been committed in the course of an upward. or downward movement.
9. Lev. XXIV, 21.
10. Lit., 'he who kills'.
11. Which in relation to the beast was not spoken of in the text of Lev. XXIV, 21.
12. Which was spoken of in the text ibid.
13. I. e., the man who killed the beast must in all cases mentioned pay compensation, and under no circumstance may he evade payment.
14. Lit., 'he too kills'.
15. Of which, in respect of murder, Lev. XXIV, 21 does not speak.
16. Since the text (Lev. XXIV, 21) speaks of the death penalty as the only punishment for murder.
17. V. supra 35a, B.K. 35a, Sanh. 79b. This shows that no distinction is made in the case of murder between a downward movement or an upward movement, but in every case no money payment can be imposed in addition to the major punishment. And the same principle must apply to the non-acceptance of a ransom in substitution for the death penalty. What need was there then for the text of 'None devoted' (cf. supra p. 208, n. 16)?
18. Either 'None devoted' or 'He that smiteth' (cf. Rashi).
19. That no monetary penalty may be imposed upon one who is to suffer the death penalty.
20. Simultaneously (v. Rashi).
21. As compensation for the eye, in addition to the death penalty for murder. [For the obvious difficulty involved in this reply of Rami b. Hama, which apparently is intended to explain the purpose of the verse 'none devoted' according to R. Ishmael b. R. Johanan b. Beroka; v. p. 210, n. 9.]
22. Rami b. Hama.
23. That for blinding an eye and thereby killing the man no monetary fine may be imposed in addition to the death penalty.
24. Ex. XXI, 24.
25. I. e., compensation for the loss of an eye.
26. [From this is derived that the Law could not mean actual retaliation, as there was always the danger of loss of life to the offender while not an eye and life for a life (Tosaf.)]. B.K. 84a. The deduction from 'He that smiteth' since it is not needed for this case, must consequently apply to that 'when Be Blinded his eye and killed him By another act'; and the question arises again: What need was there for one or for the other of the two previously cited texts (v. supra p. 209. n. 8)?
27. V. supra p. 209. n. 8.
28. [H], lit., 'an innovation' sc. different from other laws. In many instances it cannot be justified on logical grounds and can only be accepted as a divine law the reason for which is beyond human comprehension.
29. By means of one of the two texts (v. supra p. 209. n. 8) which is not required in respect of ordinary monetary payments.
30. If his offence warrants it.
31. Supra 34b, 3 5b.
32. Which, according to his view, is not required to exclude the case just mentioned (cf. supra n. 4).
33. Rabbah.
34. Supra 37b where deduction is made from this text that a vow to give to the Temple the value of a person who was led to his execution, is null and void. [The whole passage is extremely difficult; v. Tosaf. The main difficulty is presented by the second answer of Ram B. Hama. (v. p. 209, n. 11). The following may be offered in explanation: To revert to the very beginning of the discussion the Talmud, assuming that the verse 'you shall take no fine' denotes that no money payment is to be imposed in addition to a death penalty, asked, what need was there for this verse, in view of the verse 'and yet no harm follow' (v. p. 205). There upon follows the reply that this verse meant to exclude the commutation of the death penalty for money payment. Then the question arises, what need was there for R. Ishmael b. R. Johanan b. Beroka to resort, for what practically amounts to the same ruling, to the verse 'None devoted'? To this Rami b. Hama in his first reply, answers that he needed this latter verse in the case where the murder was committed in a downward course. This reply, however, is rebutted by Raba, as such a contingency is already provided for in the verse 'he that smiteth etc.' This forces Rami b Hama to fall back on the original assumption that the verse 'you shall take no ransom' comes to teach that no money payment may be imposed in addition to the death penalty; and as to the very first question, what need is there, in view of the verse 'and yet no harm shall follow' for two verses to teach the same thing? — the reply is: it is necessary to provide for a case where the blinding and the killing result from two separate blows. Raba, however, objected that this contingency too was already provided for. Hence R. Ashi's reply, that the extra verse was required to 'extend the rule to the case of a fine (v. Shittah Mekubbezeth. a.l.). This answer, however, the Talmud did not regard as satisfactory according to Rabbah, who held that a fine may be imposed in addition to the death penalty. On his view the verse 'you shall take no ransom' cannot be taken as referring to the imposition of a money payment in addition to the death penalty. Consequently, he would be forced back on the alternative explanation that it serves to teach that no death penalty may be commuted for money payment and thus the question of supra p. 208 'what need is there of "None devoted"' remains. To this the answer is, that Rabbah would agree with the first Tanna who is in dispute with R. Hanania b. 'Akabia].
35. Na'arah, v. Glos
36. Had she not been divorced, the offender is put to death and there is consequently no fine.
37. V. Deut. XXII, 29. The reason is stated infra.
38. Not to her father.
39. For his ruling in our Mishnah.
40. Deut. XXII, 28.
41. The man … shall give … fifty shekels (ibid. 29).
42. How, in view of the Scriptural text cited, can he maintain that SHE IS ENTITLED TO RECEIVE THE FINE?
43. Deut. XXII, 28, Heb. na'arah.
44. A bogereth (v. Glos).
45. Since R. Akiba laid down that the exclusion of a fine that was implied by the text of 'not betrothed' is restricted to the girl's father but that the girl herself is still entitled to it.
46. But this is absurd, since no such law is anywhere to be found.
47. Deut. XXII, 28.
48. Lit., 'but'.
49. I. e., no fine is paid either to the girl or to Bet father.
50. The exclusion of which R. Jose the Galilean has spoken.
51. The previous objection against R. Akiba's ruling (cf. supra p. 211, n. 8) thus arises again.
52. Lit., 'that'.
53. And is consequently not available for the deduction made by R. Jose the Galilean.
54. V. supra p. 211, n. 1.
55. The contradiction between this ruling of R. Akiba and Bis ruling in out Mishnah is discussed infro.
56. That she is entitled to the fine even after she had been betrothed.
57. V. infra 46b.
58. V. Deut. XXII, 29.
59. I. e., a second betrothal while she was still a damsel (na'arah). V. supra p. 211, n. 1.
60. To one man.
61. From him and then betrothed to the other man.
62. If one who was betrothed and divorced is also entitled to a fine.
63. V. Glos.
64. In the case of an outrage.
65. In the case of seduction.
66. Ex. XXII, 15.
67. In the case of an outrage.
68. V Deut. XXII, 29.
69. [H]. The text (Ex. XXII, 16) reads keah (lit., 'shall weigh', E.V. pay) which is of the same rt. as [H] (shekel).
70. Lit., 'you saw'.
71. Deut. XXII, 28.
72. From the tight to a fine.

Might [not one equally well] suggest that 'Virgin' should be applied for the gezerah shawah¹  and 'That is not betrothed' [should serve the purpose of] excluding²  a girl³  that was betrothed and divorced? — It stands to reason [that the text of] 'That is not betrothed' should be employed for the gezerah shawah,⁴  since such a girl³  is still⁵  designated. A damsel that is a virgin.⁶  On the contrary; [should not the expression of] 'Virgin' be applied for the gezerah shawah, since [a non-virgin] may still be described as one 'That is not betrothed'?⁷  — It stands to reason [that R. Akiba's first view⁸  is to be preferred, since] the body of the one⁹  had undergone a change while that of the other¹⁰  had not.¹¹

As to R. Jose the Galilean,¹²  whence does he draw that logical inference?¹³  — He derives it from the following where it was taught: He shall pay money according to the dowry of virgins¹⁴  [implies] that this [payment] shall be the same sum as the dowry of the virgins and the dowry¹⁵  of the virgins shall be the same as this.¹⁶

Does not a contradiction arise between the two statements of R. Akiba?¹⁷  — [The respective statements represent the opinions of] two Tannaim who differ as to what was the ruling of R. Akiba.

[The ruling of] R. Akiba in our Mishnah presents no difficulty since the gezerah shawah does not altogether deprive the Scriptural text of its ordinary meaning.¹⁸  According to R. Akiba's ruling in the Baraitha, however, does not the gezerah shawah completely deprive the Scriptural text of its ordinary meaning?¹⁹  — R. Nahman b. Isaac replied. Read in the text:²⁰  That is not a betrothed maiden.²¹  [But] is not a betrothed maiden one [for the violation of whom] the penalty of stoning [but not fine] is incurred?²²  — It might have been assumed that, since it is an anomaly²³  that the Torah had introduced by the enactment of the law of a monetary fine, an offender²⁴  must, therefore, pay his fine even if he is also to be executed.²⁵

According to Rabbah, however, who said that it was an anomaly²³  that the Torah had introduced by the' enactment of the law of a monetary fine and that an offender²⁴  must pay his fine even if he is also to be executed,²⁶  what can be said [in reply to the objection raised]?²⁷  — He²⁸  adopts the same view as that of R. Akiba in our Mishnah.²⁹

Our Rabbis taught: To whom is the monetary fine [of an outraged virgin³⁰  to be given]? — To her father. Others say: To herself. But why 'to herself'?³¹  — R. Hisda replied: We are dealing here with the case of a virgin who was once betrothed and is now divorced, and they³²  differ on the principles underlying the difference between the view of R. Akiba in our Mishnah and his view in the Baraitha.

Abaye stated: If he³³  had intercourse with her and she died,³⁴  he is exempt [from the fine], for in Scripture it was stated, Then the man … shall give unto the damsel's father,³⁵  but not unto a dead woman's father.³⁶

This ruling which was so obvious to Abaye formed the subject of an enquiry by Raba.³⁷  For Raba enquired: Is the state of adolescence legally attainable in the grave³⁸  or not? 'Is the state of adolescence attainable in the grave and [the fine,³⁵  therefore,] belongs to her son,³⁹  or is perhaps the age of adolescence not attainable in the grave and [the fine, therefore,] belongs to her father?

1. And not, as has been said, to exclude a non-virgin from her tight to the fine.
2. From the tight to a fine.
3. A na'arah.
4. So that even a girl (na'arah) who was once betrothed and divorced should be entitled to the fine.
5. Despite Bet Betrothal and divorce.
6. Hence it is quite reasonable that her right to the fine shall not be lost. A non-virgin however, who is not described as 'a damsel that is a virgin' justly loses her tight to the fine.
7. While a na'arah that was once betrothed and divorced and cannot so be described should not be entitled to the fine.
8. That a na'arah that was once betrothed and divorced is entitled to the fine and that a non-virgin is not.
9. The non-virgin.
10. Who was betrothed and divorced.
11. Cf. supra note 14.
12. Who, unlike R. Akiba, does not use the expression of 'That is not betrothed' for a gezerah shawah
13. Stated supra 38a ad fin., that a fine of fifty shekel is to be paid both in the case of seduction and that of violation.
14. Ex. XXII, 16, the case of seduction
15. Viz. fifty, as specified in Deut. XXII. 29
16. Shekels, as implied from Ex. XXII, 16 (cf. supra p. 213. n. 5).
17. In out Mishnah he laid down that the fine BELONGS TO HER while in the Baraitha (supra 38a) he maintains that it 'is shawah to her father'.
18. Because in addition to the deduction of the gezerah shawah, the ordinary meaning of the text. viz. that if the 'damsel … is not betrothed' the fine is given 'unto the damsel's father' but if she was once betrothed it 'BELONGS TO HER', is also in agreement with the law.
19. The implication of the ordinary meaning being that if the damsel vas betrothed the fine is paid not to her father but to herself (cf. supra note 4.) while according to R. Akiba it 'is given to her father' irrespective of whether she was, or was not betrothed.
20. Deut. XXII. 28.
21. Thus excluding one formerly betrothed but now divorced. The consonants of the original [H] (Aram. [H]) may be read as [H] (as M.T.) 'was betrothed' as well as [H] 'one who is betrothed'.
22. Since no monetary fine may be imposed in addition to the penalty of death. What need then was there a for a Scriptural text to teach the same law?
23. Cf. supra p. 210, n. 3.
24. If his crime warrants it.
25. Hence the necessity in this case for the additional Scriptural text.
26. Supra 34a, 35b, 38a.
27. Cf. supra p. 214, n. 5. The reply given by R. Nahman b. Isaac supra — that the offence referred to in the text is against one who was still betrothed and that the implication is that the offender, because he is suffering the penalty of death, is exempt from the monetary fine — is untenable; since, according to Rabbah, such an offender incurs both penalties.
28. Rabbah.
29. Which, as stated supra, does not 'deprive the Scriptural test of its ordinary meaning'.
30. This is now assumed to mean a virgin 'that is not betrothed' who is spoken of in Deut. XXII. 28f.
31. The Scriptural text, surely, lays down that the fine is to be given 'Unto the damsel's father'.
32. The respective authors of the two opinions expressed in the last cited Baraitha.
33. The offender spoken of in Deut. XXII, 28f.
34. Before he was brought to trial.
35. Deut. XXII, 29.
36. V. supra 29b.
37. V. infra p. 217, n. 10 final clause.
38. In the case of a virgin who was violated while she was a na'arah (v. Glos) and died a na'arah but whose violator was not brought to trial until sometime later when the girl, had she been alive, would have attained the state of bagruth; (v. Glos).
39. If she had one. As the fine would have been payable to her and not to her father if she had been alive (v. infra 41b) so it is now payable to her son who is her legal heir.