Babylonian Talmud: Tractate Kethuboth

Folio 42a

HER HANDIWORK, HOWEVER, AND ANYTHING SHE FINDS EVEN IF SHE HAD NOT COLLECTED [THE PROCEEDS]. BELONG TO HER BROTHERS IF HER FATHER DIED.¹

GEMARA. What [new law] does he teach us?²  Have we not [already] learned: The seducer pays three forms [of compensation] and the violator four. The seducer pays compensation for indignity and blemish as well as the statutory fine, and the violator pays an additional [form of compensation] in that he pays for the pain?³  — It was necessary [to teach us²  that the compensation is due] TO HER FATHER.⁴  [But] that [the compensation is due] to her father is also obvious, since a seducer has to pay for it? For if [it were to be given] to herself [the objection could be raised], why should the seducer pay [to her when] he acted with her consent?⁵  — It was necessary [to tell us²  of the case where] HER ACTION WAS TRIED [which is a point in] dispute between R. Simeon and the Rabbis.⁶

We have learned elsewhere: [If a man said to another] 'You have violated or seduced my daughter', and the other replied. 'I did not violate or seduce her'. 'I adjure you' [said the first] and the other responded. 'Amen', but afterwards admitted his guilt, he is liable.⁷  R. Simeon, however, exempts him, for no fine is paid on one's own admission.⁸  They,⁹  however, said to him: Though no man pays a fine on his own admission he nevertheless pays compensation for indignity and blemish¹⁰  on his own admission.¹¹

Abaye enquired of Rabbah:¹²  What is the law according to R. Simeon¹³  where a man said to another, 'You have violated or seduced my daughter, and I have brought you to law and you were ordered to pay me [a stipulated sun, of] money' and the other replied. 'I have neither violated nor seduced her, nor have you brought me to law nor have I been ordered to pay you any money', and after he had taken an oath¹⁴  he admitted his guilt? Is [his liability], since his action had been tried,¹⁵  civil¹⁶  and he consequently incurs thereby a sacrifice for [having taken a false] oath, or is it possible that, though his action had been tried, his liability¹⁷  is still regarded as penal?¹⁸  — The other replied: It is a civil liability and he incurs thereby the obligation to bring a sacrifice for a false oath.¹⁹

He²⁰  pointed out to him²¹  the following objection: R. Simeon, said, As it might have been presumed that if a man said to another, 'You have violated or seduced my daughter' and the other replied 'I have neither violated nor seduced her', [or if the first said]. 'Your ox has killed my bondman' and the other replied, 'He did not kill him', or if a bondman said to his master,²²  'You have knocked out my tooth' or 'You have blinded my eye'.²³  and he replied. 'I have not knocked it out' or 'I have not blinded it' and [the defendant] took the oath²⁴  but afterwards admitted his liability it might have been presumed that he is liable,²⁵  hence It was explicitly stated in Scripture, And he deal falsely with his neighbour²³  a matter of deposit, or of pledge, or of robbery, or have oppressed his neighbour; or have found that which was lost, and deal falsely therein, and swear to a lie,²⁶  as these are distinguished by the characteristics of being civil cases so must all [other cases where similar liabilities²⁷  may be incurred be distinguished by the characteristics] of being civil. These, therefore, are excluded [from liability]²⁸  since they are penal.

1. Unlike compensation. Which is not due to their father before the action had been tried and decided in his daughter's favour, these are his due from the moment they come into existence. As they are consequently his 'actual property' he is entitled to transmit them to his heirs.
2. In our Mishnah.
3. V. 39a for notes.
4. This was not mentioned in the Mishnah cited.
5. If then it is also obvious that the compensation is to be paid to her father what need was there for our Mishnah?
6. The first Tanna (v. our Mishnah).
7. To pay the actual amount due as well as an additional fifth (v. Lev. V, 24). and also to bring a guilt-offering.
8. As the man would have been exempt from the penal liabilities if he had himself admitted the offence in the absence of any other evidence, he must also be exempt from all liabilities (v. supra note 6) in the case of a denial. For it was not a civil liability (mamon), but a penal liability (kenas) that he had denied.
9. The Rabbis who differed from him.
10. Which are not kenas but mamon.
11. V. Shebu. 36b.
12. Rabbah b. Nahmani who was his teacher.
13. Who (according to the Mishnah of Shebu. cited) exempts one from liability in the case of a denial.
14. In confirmation of his denial.
15. And he was ordered to pay.
16. [Having been ordered to pay, he can no longer secure exemption by his own admission; his liability is now considered of the mamon class (Rashi)].
17. Since it was originally penal.
18. [Var. lec. add: 'and he who confesses to a liability for a fine is exempt'. On this reading, Abaye's question was also whether his own admission, after the action had been tried, exempts him from payment; v. Tosaf.]
19. [Car. lec. omit: 'and he incurs … false oath'. In that case Rabbah's answer is given in general terms. He merely replied, 'it is a civil liability', which for the present is taken to mean that it is so both in respect of an obligation to an oath and to liability to payment; cf. n. 6, v. Tosaf.]
20. Abaye.
21. Rabbah.
22. Lit., 'his bondman said to him'.
23. In compensation for which he demands his freedom (v. Ex. XXI, 26f). Such compensation is also deemed to be penal, because a slave was regarded as his master's chattels.
24. In confirmation of his denial.
25. V. supra p. 236, n. 6.
26. Lev. V, 21f.
27. V. supra p. 236, n. 6.
28. The instances enumerated by R. Simeon.

Does not [this ruling refer to a man] whose action had already been tried?¹  — No, [it deals] with one whose action had not yet been tried.²  But, surely, since the first clause deals with the case of a man whose action had been tried, would not the final clause also deal with such a case? For in the first clause it was stated: 'I only knew [that liability³  is incurred in] cases where compensation is paid for the actual value only, whence, however, is it deduced that [such liability is also incurred in] cases where the payment is double,⁴  fourfold⁵  or fivefold⁵  and [in those of] the violator, the seducer and the calumniator?⁶  From Scripture which explicitly stated, And commit a trespass,⁷  [implying that all such are] included'. Now, how is this statement to be understood? If [it is one referring to] a man whose action had not yet been tried [the objection could be raised:] Is double compensation payable in such circumstances?⁸  It is obvious, therefore, that [the reference is to one] whose action had already been tried. And since the first clause deals with one whose action had been tried, the final clause also must deal, must it not, with one whose action had already been tried?⁹  — The other replied: I could have answered you that the first clause deals with one whose action had already been tried, and the final clause with one whose action had not yet been tried and that the entire Baraitha represents the view of R. Simeon, but I would not give you forced interpretations, for, were I to do so, you might retort: Then either the first clause should begin with 'R. Simeon said' or the final clause should conclude with 'these are the words of R. Simeon'.¹⁰  The fact, however, is that the entire [Baraitha] refers to one whose action had already been tried, the first clause being the view of the Rabbis and the final clause that of R. Simeon, and I must agree with you in regard to the sacrifice for [taking a false] oath,¹¹  for the All-Merciful has exempted him¹²  [as may be deduced] from [the text] And he deal falsely.¹³  When I, however, said, that 'It is a civil liability' [I was only implying that a man had the right] to transmit such a liability as an inheritance to his sons.¹⁴

Again he¹⁵  raised an objection against him:¹⁶  R. SIMEON RULED, IF HER FATHER DIED BEFORE SHE COULD COLLECT [HER DUES] THEY BELONG TO HER. Now if you maintain [that such compensation] is a civil liability in respect of being transmitted as an inheritance to one's sons, why should the compensation belong to her? Should it not, in fact, belong to the brothers? — This subject, said Raba, both Rabbah and R. Joseph found difficult for twenty-two years¹⁷  and no solution was forthcoming. It was only when¹⁸  R. Joseph assumed the presidency of the academy¹⁹  that he solved it: There²⁰  it is different [from other penal liabilities] because Scripture said, Then the man that lay with her shall give unto the damsel's father fifty [shekels of] silver²¹  [which implies that] the Torah has not conferred upon the father the right of possession before the money had actually been handed to him; when Rabbah, however, said, 'It is a civil liability in respect of being transmitted as an inheritance to his sons' he was referring to other penal liabilities.²²  But then, in the case of a bondman it is written in Scripture, He shall give into their master thirty shekels of silver,²³  would it here²⁴  also [be maintained that] the Torah has not conferred upon the master the right of possession before the money had actually been handed to him? — The yitten²⁵  cannot be compared²⁶  with we-nathan.²⁷  If so,²⁸  [instead of deducing the exemption from sacrifice] from the Scriptural text, 'And he deal falsely',²⁹  should not the deduction rather be made from 'Then … shall give'?³⁰  — Raba replied: The text of 'And he deal falsely' was required in a case, for instance, where the girl's action had been tried and then she became adolescent³¹  and died, in which case³²  when the father receives³³  [the fine] he inherits [it] from her.³⁴  If so,³⁵  [however, how could it be said:] 'These, therefore, are excluded [from liability] since they are in fact penal' when they are in fact³⁶  civil? — R. Nahman b. Isaac replied: [The meaning is], These are excluded since they were originally penal.

He³⁷  pointed out to him³⁸  another objection: R. Simeon, however. exempts him, for no fine is paid on ones own admission.³⁹  The reason then⁴⁰  is because his action had not been tried⁴¹  but if it had been tried,⁴²  in which case he does pay,⁴³  even on his own admission,⁴⁴  he would incur. also, would he not, [the obligation of bringing] a sacrifice for swearing [a false oath]?⁴⁵  — R. Simeon argues with the Rabbis on the lines of their own view. According to my own view [he argued] the All-Merciful has exempted the man⁴⁶  even after he had been tried [as may be deduced] from the text 'And deal falsely'.⁴⁷  According to your view, however, you must at least admit that [the man is exempt] if he has not yet been tried, since the claim advanced against him is penal

1. At one court where he was ordered to pay; and he now denies his liability before another court. As R. Simeon nevertheless exempts him from liability (cf. supra p. 236, n. 6), an objection arises against Rabbah.
2. I.e., whose liability had not yet been legally established and the amount claimed is still 'kenas' and not 'mamon'.
3. V. Supra p. 236. n. 6.
4. V., Ex. XXII, 3.
5. Ibid. XXI, 37.
6. Lit., 'who brought out an evil name' (V. Deut. XXII, 19).
7. Lev. V, 21, a general statement preceding the details enumerated in the following verses.
8. certainly not. For, in the first instance, there is no proof that the mail had stolen the object and, secondly, even if he had stolen it he might yet make his own confession and thereby obtain exemption from the double payment.
9. V. supra note 4.
10. Why then did R. Simeon's name appear at the beginning of the final clause, thus indicating that only that, and not the first clause represented his view?
11. That according to R. Simeon he is not liable to bring his sacrifice even if his action had already been tried.
12. Even if his action had been previously tried.
13. Lev. V, 22 (cf. supra p. 238, n. 1 and text).
14. [And much more so in regard to liability to payment on self admission, cf. p. 237 n. 7, v. Shittah Mekubbezeth]. In this respect only is it deemed to be civil if the father died after the action had been tried, though the collection of the sum had not yet been effected.
15. Abaye.
16. Rabbah.
17. I.e., during all the period Rabbah occupied the presidency of the academy at Pumbeditha (cf. Ber. 64a and Hor. 14a).
18. After the death of Rabbah.
19. Cf. supra n. 8.
20. The case of a fine for seduction or violation spoken of in our Mishnah.
21. Deut. XXII, 29 emphasis on 'give'.
22. [Cf. supra 237, n. 4). The whole passage is extremely difficult. Commentators explain that Rabbah had it on tradition that a penal liability becomes civil in respect of inheritance after action had been taken, and the whole discussion was to elucidate exactly the implications of this vague tradition; v. Tosaf. 42a, s.v.[H].
23. Ex. XXI, 32.
24. Since the verb 'to give' was used.
25. [H] which is used in Ex. XXI, 32.
26. Lit., alone', 'is in a separate category'.
27. [H] (Perfect with waw consec.). The former indicates merely future action while the latter implies the pluperfect, 'he shall have given'.
28. That deduction may be made from Deut. XXII, 29 to the effect that the fines of a violator and a seducer have a different legal status from that of other fines in that they remain penal even after the offender had been tried.
29. Cf. supra p. 238, n. 1 and text.
30. Cf. supra n. 8. While the text beginning 'And deal falsely' (Lev. V. 21) excludes only those liabilities which were originally penal but are not so now after the court had issued its ruling (v. supra 42a, ad fin.), the text of Then … shall give (Deut. XXII, 29) deals specifically with the fines of a violator and a seducer, laying down that so long as no collection of the fines had been effected, they remain penal even after the court had issued its ruling (v. Rashi and cf. Tosaf. a.l., s.v. ht). [Although the verse 'And deal falsely' is necessary for other penal liabilities, the fine of a violator should not have been included seeing that it belongs to a class by itself as is deduced from 'Then … shall give', v. Shittah Mekubbezeth].
31. A bogereth. When the fine, according to R. Simeon (cf. supra p. 235. n. 11, and text), belongs to her.
32. Lit., 'for there'.
33. Lit., 'inherits'.
34. And as far as he is concerned the liability, the payment of which had been ordered by the court, is no longer penal but civil. Hence the necessity for the text of 'And he deal falsely' to indicate that the defendant is nevertheless exempt from a sacrifice (cf. Tosaf. s.v. [H]) because originally the liability was penal (v. Rashi).
35. That the Baraitha (supra 42a) deals with a case where the action had already been tried and that the father inherits the fine from his daughter.
36. Cf. supra n. 1.
37. Abaye.
38. Rabbah.
39. Mishnah cited supra 42a.
40. Why the offender is exempt.
41. Previously, before a court. For if it had been tried he could not subsequently make a voluntary admission that would exempt him.
42. By the first court, and he was ordered to pay.
43. On the ruling of the second court.
44. The money involved being no longer penal but (on account of the ruling of the first court) civil.
45. Though the sum involved was originally penal. A contradiction thus arises between this Mishnah and the Baraithas both of which speak in the name of R. Simeon.
46. From the sacrifice for a false oath.
47. Cf. supra 42a ad fin.