Babylonian Talmud: Tractate Kethuboth

Folio 40a

why then should not this law¹  also be inferred?²  — Scripture stated, He shall surely pay a dowry for her to be his wife,³  'her'⁴  [implies]⁵  only if he is so minded [need he marry her].

WHAT IS MEANT BY 'MUST DRINK OUT OF HIS POT' etc.? R. Kahana said, I submitted the following argument before R. Zebid of Nehardea:⁶  Why should not the positive commandment⁷  supersede the negative one?⁸  And he replied to me: 'Where do we say that a positive commandment supersedes a negative one? [Only in a case], for instance, like circumcision in leprosy.⁹  since otherwise it would be impossible to fulfil the positive commandment, but here, if she should say that she did not want [the man for a husband], would [the question of the performance of] the positive commandment⁷  ever have arisen?'¹⁰

MISHNAH. IF AN ORPHAN WAS BETROTHED AND THEN DIVORCED, ANY MAN WHO VIOLATES HER, SAID R. ELEAZAR, IS LIABLE [TO PAY THE STATUTORY FINE]¹¹  BUT THE MAN WHO SEDUCES HER IS EXEMPT.¹²

GEMARA. Rabbah b. Bar Hana stated in the name of R. Johanan: R. Eleazar made his statement¹³  on the lines of the view of his master R. Akiba who ruled: She¹⁴  is entitled to receive the fine, and, moreover, the fine belongs to her. How is this¹⁵  inferred?¹⁶  — As it was stated, IF AN ORPHAN … ANY MAN WHO VIOLATES HER, SAID R. ELEAZAR, IS LIABLE [TO PAY THE STATUTORY FINE] BUT THE MAN WHO SEDUCES HER IS EXEMPT, [the difficulty arises: Is not the case of] an orphan self-evident?¹⁷  Consequently it must be this that we were taught: A girl WHO WAS BETROTHED AND THEN DIVORCED has the same status as AN ORPHAN. As [the fine of] an orphan belongs to the orphan herself so does that of a girl who was betrothed and then divorced belong to the girl herself.

R. Zera said in the name of Rabbah b. Shila who said it in the name of R. Hamnuna the Elder who had it from R. Adda b. Ahabah who had it from Rab: The halachah is in agreement with the ruling of R. Eleazar. Rab [in fact] designated R. Eleazar¹⁸  as the happiest¹⁹  of the wise men.

MISHNAH. WHAT IS [THE COMPENSATION THAT IS PAID FOR] INDIGNITY?²⁰  ALL DEPENDS ON THE STATUS OF THE OFFENDER AND THE OFFENDED.

[AS TO] BLEMISH,²⁰  SHE IS REGARDED AS IF SHE WERE A BOND WOMAN TO BE SOLD IN THE MARKET PLACE [AND IT IS ESTIMATED] HOW MUCH SHE WAS WORTH²¹  AND HOW MUCH SHE IS WORTH NOW.

THE STATUTORY FINE²²  IS THE SAME FOR ALL, AND ANY SUM THAT IS FIXED PENTATEUCHALLY REMAINS THE SAME FOR ALL.

GEMARA, Might it not be suggested that the All-Merciful intended the fifty sela'²³  to cover all the forms of compensation?²⁴  — R. Zera replied: [If that were so] it would be said, 'Should one who had intercourse with a princess pay fifty and one who had intercourse with the daughter of a commoner also pay only fifty?'²⁵  Said Abaye to him: If so, the same might be argued in respect of a slave:²⁶  'Should [compensation for] a slave who perforates pearls be thirty [and that for] one who does

1. That a seducer, like a violator. must marry his victims.
2. Lit., 'in respect of this thing also let them be inferred from one another'.
3. Ex. XXII, 15.
4. [H] lit., 'to him.
5. Since it is not stated, 'And she shall be his wife' (cf. supra. 220, n. 17).
6. Nehardea was a town on the Euphrates, situated at its junction with the Royal Canal about seventy miles north of Sura, and famous for its great academy in the days o Samuel, which is as rivalled only by that of Sura.
7. She shall be his wife (Deut. XXII, 29). Lit., 'let the positive command come and supersede etc.'.
8. The prohibition. e.g., to marry one who was UNFIT TO MARRY AN ISRAELITE.
9. It is forbidden to remove leprosy by means of a surgical operation; but if the leprosy covered the place or circumcision it is permitted to perform the circumcision although the leprosy is removed in the process. Thus the positive commandment of circumcision supersedes the negative one of leprosy.
10. Obviously not, since the girl has the right of objecting to marry him. Similarly, if she happens to be one who is forbidden to marry an Israelite she is advised to object to the marriage (Rashi). [Isaiah Trani: Since the command for the performance of this positive precept is not absolute, it is not sufficiently strong to supersede a negative prohibition.]
11. V. Deut. XXII, 29.
12. Her acquiescence in the offence is regarded as an intimation that she has renounced her claim to the fine, and since, owing to the death of Bet father, the fine belongs to her, she is fully entitled to remit it.
13. In our Mishnah.
14. A girl who was betrothed and risen divorced (v. Mishnah, supra 38a).
15. That R. Eleazar follows the ruling of R. Akiba?
16. Lit., 'from what'
17. Since she has no father the fine obviously belongs to her. What need then was there for our Mishnah
18. R. Eleazar b. Shammu'a, a disciple of R. Akiba (v. Yeb. 62b).
19. So Jast. or 'important', 'notable' (v. Levy).
20. V. Mishnah, supra 39a.
21. Before the offence.
22. V. Mishnah, supra 39a.
23. Deut. XXII, 29.
24. Lit., 'from all things'.
25. Though the indignity of the former is undoubtedly greater. Hence it follows that, in addition to the statutory sum which the Torah has awarded to all alike, an additional sum for indignity must be paid in accordance with the status of the offended party.
26. Compensation for whom is fixed at thirty shekels (v. Ex. XXI, 32).

needlework also be thirty?'¹  — This, however, said R. Zera, [is the proper explanation]: If two men had intercourse with her, one in a natural, and the other in an unnatural manner, it would be argued,²  'Should one who had intercourse with a sound woman pay fifty and one who had intercourse with a degraded woman also pay fifty?'

Said Abaye to him: If so, the same might be argued in respect of a slave: 'Should [compensation for] a healthy slave be thirty [and that for] one afflicted with boils also be thirty?'¹  — This, however, said Abaye, [is the explanation]: Scripture said,³  Because he hath humbled her⁴  [as if to say]: These⁵  [must be paid] 'because he hath humbled her',' thus it may be inferred that [compensation for] indignity and blemish⁶  must also be paid.⁷

Raba replied: Scripture said, Then the man that lay with her shall give unto the damsel's father fifty [shekels of] silver;⁸  for the gratification of 'lying' [he gives] fifty. Thus it may be inferred that [compensation for] indignity and blemish must also be paid.⁷

But say [perhaps] that [compensation for indignity and blemish is paid] to her?⁹  — Scripture said, Being in her youth in her father's house,¹⁰  [implying that] all advantages of 'her youth' belong to her father.

[Consider,] however, that which R. Huna said in the name of Rab: 'Whence is it deduced that a daughter's handiwork belongs to her father? [From Scripture] where it is said, And if a man sell his daughter to be a maidservant,¹¹  as¹²  the handiwork of a maidservant belongs to her master so does the handiwork of a daughter belong to her father'. Now what need is there¹³  [it may be asked, for this text when] the law¹⁴  can be deduced from [the text of] 'Being in her youth in her father's house'? Consequently [it must be admitted, must it not, that] that text was written in connection only with the annulment of vows?¹⁵  And should you suggest¹⁶  that we might infer¹⁷  from it,¹⁸  [it could be retorted that,] monetary matters¹⁹  cannot be inferred from ritual matters.²⁰  And should you suggest¹⁶  that we might infer it¹⁷  from the law of fine, is [it could be retorted, could it not, that,] monetary payments cannot be inferred from fines?²¹  — This, however, [is the explanation]:²²  it stands to reason that [her compensation should] belong to her father; for if he wished he could have handed her over²³  to an ugly man or to one afflicted with boils.²⁴

AS TO BLEMISH, SHE IS REGARDED AS IF SHE WERE A BONDWOMAN TO BE SOLD. How is she assessed? The father of Samuel replied: It is estimated how much²⁵  more a man would pay for a virgin slave than²⁵  for a non-virgin slave to attend upon him. 'A non-virgin slave to attend upon him'! What difference does this²⁶  make to him? — [The meaning], however, [is this: How much more a man would pay for] a virgin slave than²⁵  for a non-virgin slave²⁵  for the purpose of marrying her to his bondman. But even if 'to his bondman', what difference does this²⁷  make to him? — [We are dealing here] with a bondman who gives his master satisfaction.²⁸

MISHNAH. WHEREVER THE RIGHT OF SALE APPLIES NO FINE IS INCURRED²⁹  AND WHEREVER A FINE IS INCURRED NO RIGHT OF SALE APPLIES. IN THE CASE OF A MINOR THE RIGHT OF SALE³⁰  APPLIES BUT NO FINE³¹  IS INCURRED;³²  IN THE CASE OF A DAMSEL³³  A FINE IS INCURRED³²  BUT NO RIGHT OF SALE³⁰  APPLIES. TO A DAMSEL WHO IS ADOLESCENT³⁴  THE RIGHT OF SALE DOES NOT APPLY NOR IS A FINE INCURRED THROUGH HER.

GEMARA. Rab Judah stated in the name of Rab: This³⁵  is the ruling of R. Meir, but the Sages rule: A fine is incurred³²  even where the right of sale³⁶  applies. For it was taught: The right of sale³⁶  applies to a minor from the age of one day until the time when she grows two hairs,³⁷  but no fine is incurred through her.³⁸  From the time she grows two hairs until she comes of age a fine is incurred through her but no right of sales applies; so R. Meir, because R. Meir has laid down: Wherever the right of sale applies no fine is incurred, and wherever a fine is incurred no right of sale applies. The Sages, however, ruled: Through a minor from the age of three years and one day until the time she becomes adolescent a fine is incurred.³⁹  Only a fine [you say] but not the right of sale?⁴⁰  — Read: A fine also where the right of sale applies.⁴¹

R. Hisda said: What is R. Meir's reason?⁴²  Scripture said, And unto him⁴³  she shall be⁴⁴  for a wife;⁴⁵  the text thus speaks of a girl who may herself contract a marriage.⁴⁶  And the Rabbis?⁴⁷  Resh Lakish replied: Scripture said, na'ar⁴⁸  which⁴⁹  implies even a minor.⁵⁰

R. Papa the son of R. Hanan of Be Kelohith heard this⁵¹  and proceeded to report it before R. Shimi b. Ashi [when the latter] said to him: You apply it⁵²  to that law; we apply it to the following: Resh Lakish ruled; A man who has brought an evil name⁵³  upon a minor is exempt,⁵⁴  for it is said in Scripture, And give them unto the father of the damsel,⁵³  Scripture expressed the term na'arah⁵⁵  as plenum.⁵⁶

R. Adda b. Ahabah demurred: Is the reason then⁵⁷  because the All-Merciful has written na'arah, but otherwise it would have been said that even a minor [was included], surely [it may be objected] it is written in Scripture, But if this thing be true, and the tokens of virginity be not found in the damsel, then they shall bring out the damsel to the door of her father's house, and [the men of her city] shall stone her,⁵⁸  while a minor is not, is she, subject to punishment?⁵⁹  — [The explanation,] however, [is that since] na'arah [has been written] here⁶⁰  [it may be inferred that here only is a minor excluded] but wherever Scripture uses the expression of na'ar even a minor is included.

1. Though the labour value of the one is undoubtedly higher than that of the other,
2. If no compensation for indignity were paid in addition to the statutory fine.
3. In stating the reason for the statutory fine.
4. Deut. XXII, 29.
5. The fifty shekels mentioned.
6. Which are payable in other cases of injury.
7. Lit., 'that there is'.
8. Deut. XXII, 29.
9. Since 'the damsel's father' was mentioned (ibid.) only in respect of the fifty shekels of fine.
10. Num. XXX, 17.
11. Ex. XXI, 7.
12. Since 'daughter' and 'maidservant' are mentioned in the same verse they may be compared to one another.
13. Lit., 'wherefore to me?'
14. That a daughter's handiwork belongs to her father,
15. And, therefore, no deduction from it can be made in respect of handiwork. Similarly here also, no deduction from it could be made in respect of compensation for indignity and blemish. Thus an objection arises against Raba's explanation.
16. In justification of Raba.
17. That compensation for indignity and blemish belongs to the father,
18. The law of the annulment of vows.
19. Such as compensation.
20. As the fine belongs to her father so does her compensation.
21. The objection against Raba thus remains.
22. Why compensation for indignity and blemish is paid to the father.
23. As wife.
24. Thus subjecting her to indignity and blemish while he himself derives there from pecuniary benefit. As her indignity and blemish are in his hands he is justly entitled to compensation from the man who inflicts them upon her.
25. Lit., 'between … to'.
26. The virginity of a slave whom one requires for service.
27. Cf. previous note mutatis mutandis. The main object of a master is the acquisition of slave children.
28. And his master in return desires to give him the satisfaction of marrying a virgin.
29. This is illustrated anon.
30. By her father (cf. Ex. XXI, 7 and 'Ar. 29b).
31. V. Deut. XXII, 29 and Ex. XXII, 16.
32. In case of violation or seduction.
33. Na'arah (v. Glos.).
34. Bogereth (v. Glos.).
35. That IN THE CASE OF A MINOR … NO FINE IS INCURRED.
36. V. p. 226, n. 8.
37. As a sign of puberty.
38. V. p. 226, n. 10.
39. Tosef. Keth. II. Our Mishnah (v. p. 226, n. 13) must consequently represent the ruling of R. Meir.
40. But this is contrary to the Pentateuchal law (cf. p. 226, n. 8).
41. From the age of three years and one day until she grows two hairs. under the first age limit, no fine, and above the second age limit until she becomes adolescent, only a fine is incurred.
42. V. supra p. 226, n. 13).
43. The girl through whom the fine is incurred.
44. [H].
45. So lit., Deut. XXII, 29.
46. Lit., 'who causes herself to be'. [H], implying action on the part of the girl herself independent of that of any other person. A minor whose marriage is dependent on the will of her father is consequently excluded from the text.
47. How in view of the implication of the text could they maintain that through a minor a fine is incurred?
48. [H] (So MS.M. and BaH). Cur. edd. [H].
49. Since M.T. reads rgb though the kere is [H] (damsel).
50. [The Rabbis explain this form as an example of the epicene use of a noun; cf. [G] and [G], child].
51. The deduction attributed to Resh Lakish.
52. The deduction from [H].
53. Deut. XXII, 19.
54. From the fine of a hundred shekels of silver (v. ibid.).
55. [H] 'damsel'.
56. With a 'he' at the end, in order to exclude the minor. [This is the only place in the Pentateuch where the word is written plene].
57. Why the fine of a hundred shekels is not payable in respect of a minor.
58. Deut. XXII, 20f.
59. A minor would consequently have been excluded even if na'ar had been written.
60. Where a minor, as has been proved, must be excluded.