Babylonian Talmud: Tractate Kethuboth

Folio 46a

R. Papa replied: By the expression¹  If he had intercourse he is flogged',²  which was used there,³  the monetary fine⁴  [was meant].⁵  But could one describe a monetary fine as 'flogging'? — Yes, and so indeed we have learned:⁶  If a man said, 'I vow to pay half of my valuation'⁷  he most pay half of his valuation. R. Jose the son of R. Judah ruled: He is flogged⁸  and must pay his full valuation. [And in reply to the question,] why should he be flogged? R. Papa explained: He is 'flogged'⁸  by [having to pay his] full valuation.⁹  What is the reason?¹⁰  — [The ruling¹⁰  in the case of a vow for] a half of one's valuation¹¹  is a preventive measure against the possibility [of a vow for] the value of half of one's body,¹²  such a half¹³  being an organic part¹⁴  on which one's life depends.¹⁵

Our Rabbis taught: And they shall fine him¹⁶  refers to¹⁷  a monetary fine; And chastise him¹⁸  refers to¹⁷  flogging. One can readily understand why 'And they shall fine' refers to a monetary payment since it is written, 'And they shall fine him a hundred shekels of silver and give them unto the father of the damsel';¹⁹  whence, however, is it deduced that 'And chastise him' refers to flogging? — R. Abbahu replied: We deduce 'Shall chastise'¹⁸  from 'Shall chastise',²⁰  and 'Shall chastise'²⁰  from 'Son',²¹  and 'Son'²¹  from 'Son'²²  [occurring in the Scriptural text:] Then it shall be, if the wicked man deserve²³  to be beaten.²⁴

Whence is the warning²⁵  against bringing up an evil name [upon one's wife] deduced? R. Eleazar replied: From Thou shalt not go up and dawn as a talebearer.²⁶  R. Nathan replied: From Then thou shalt keep thee²⁷  from every evil thing.²⁸  What is the reason that R. Eleazar does not make his deduction²⁹  from the latter³⁰  text?²⁸  — That text²⁸  he requires for [the same deduction] as [that made by] R. Phinehas b. Jair: From the text,³¹  Then thou shalt keep thee from every evil thing;²⁸  R. Phinehas b. Jair deduced²⁹  that a man should not indulge in [morbid] thoughts by day that might lead him to uncleanness by night.³²  What then is the reason why R. Nathan does not make his deduction from the former³³  text?³⁴  — That text³⁴  is a warning to the court that it must not be lenient with one³⁵  [of the litigants] and harsh to the other.

If [a husband] did not tell the witnesses,³⁶  'Come and give evidence for me' and they volunteered to give it, he³⁷  is not to be flogged nor is he to pay the hundred sela'.³⁸  She, however, and the witnesses who testified falsely against her are hurried³⁹  to the place of stoning. 'She and the witnesses who testified against her'! Can this be imagined? — But [this is the meaning]: 'She or her witnesses are hurried to the place of stoning.³⁹  Now the reason then⁴⁰  is because he did not even tell them [to give their evidence].⁴¹  Had he, however, told them [he would have been subject to the prescribed penalties]⁴²  even though he did not hire them. [This ruling thus serves the purpose] of excluding the view of R. Judah concerning whom it was taught: R. Judah ruled, [a husband] incurs no penalties⁴²  unless he has hired the witnesses.⁴³

What is R. Judah's reason? R. Abbahu replied: An analogy is drawn between the two forms of the root 'to lay'.⁴⁴  Here⁴⁵  it is written, And lay⁴⁶  wanton charges against her,⁴⁷  and elsewhere it is written, Neither shall ye lay⁴⁸  upon him interest,'⁴⁹  as there⁴⁹  [the offence is committed through the giving of] money⁵⁰  so here [also it can be committed only by the giving of] money.⁵¹  R. Nahman b. Isaac said, and so did R. Joseph the Zidonian recite at the school⁵²  of R. Simeon b. Yohai: An analogy is drawn between the two forms of the root 'to lay'.⁵³

R. Jeremiah raised the question: What is the ruling⁵⁴  where [the husband] hired them⁵⁵  with a piece of land?⁵⁶  What [if he hired them] for a sum less than a perutah?⁵⁷  What [if both witnesses were hired] for one perutah?

R. Ashi enquired: What [is the ruling where a husband]⁵⁸  brought an evil name [upon his wife] in respect of their first marriage? What [if a levir⁵⁹  brought up an evil name] in respect of his brother's marriage? — You may at all events solve one [of these questions].⁶⁰  For R. Jonah taught: I gave my daughter unto this man⁶¹  only unto this man⁶²  but not to a levir.⁶³

What [is the ruling of] the Rabbis and what [is that of] R. Eliezer b. Jacob?⁶⁴  — It was taught: What constitutes⁶⁵  the bringing up of an evil name [against one's wife]?⁶⁶  If [a husband] came to the Beth din and said, 'I, So-and-so, found not in thy daughter the tokens of virginity'. If there are witnesses that she committed adultery while living with hint she is entitled to a kethubah for a maneh.⁶⁷  'If there are witnesses that she committed adultery while living with him [you say,] she is entitled to a kethubah for a maneh'! But is she not in that case subject to the penalty of stoning?⁶⁸  — It is this that was meant: If there are witnesses that she committed adultery while she was living with him she is to be stoned; if, however, she committed adultery before [her marriage] she is entitled to a kethubah for a maneh.⁶⁹  If it was ascertained that the evil name had no foundation in fact⁷⁰  the husband is flogged and he must also pay a hundred sela' irrespective of whether he had intercourse [with her] or whether he did not have intercourse [with her]. R. Eliezer b. Jacob said: These penalties⁷¹  apply only where he had intercourse [with her].

According to R. Eliezer b. Jacob⁷²  one can well understand why Scripture used the expressions, 'And go in unto her'⁷³  and 'When I came nigh to her',⁷⁴  but according to the Rabbis⁷⁵  what [could be the meaning of] 'And go in unto her'⁷³  and' When I came nigh unto her'?⁷⁴  'And go in unto her'⁷³  with wanton charges, and 'When I come nigh to her'⁷⁴  with words.

According to R. Eliezer b. Jacob⁷²  one can well see why Scripture used the expression, 'I found not in thy daughter the tokens of virginity',⁷⁶  but according to the Rabbis⁷⁵  what [could be the sense of the expression], 'I found not in thy daughter the tokens of virginity'? — I found not far⁷⁷  thy daughter witnesses to establish her claim to tokens of virginity.⁷⁸

It was quite correct for Scripture, according to R. Eliezer b. Jacob,⁷⁹  to state, And yet these are the tokens of my daughter's virginity;⁸⁰  but according to the Rabbis⁸¹  what could be the sense of [the expression,] 'And yet these are the tokens of my daughter's virginity'?⁸⁰  — And yet these are the witnesses who establish⁷⁸  the tokens of my daughter's virginity.

One can well understand, according to R. Eliezer b. Jacob,⁷⁹  why Scripture wrote, And they shall spread the garment,'⁸⁰  but according to the Rabbis⁸¹  what [could be the sense of the instruction,] And they shall spread the garment? — R. Abbahu replied: They explain⁸²  [the charge] which he submitted against her;⁸³  as it was taught: 'And they shall spread the garment' teaches that the witnesses of the one party and those of the other party come, and the matter is made as clear as a new garment. R. Eliezer b. Jacob said: The words are to be taken in their literal sense: [They must produce] the actual garment.⁸⁴

R. Isaac son of R. Jacob b. Giyori sent this message in the name of R. Johanan: Although we do not find anywhere in the Torah that Scripture draws a distinction between natural and unnatural intercourse In respect of flogging or other punishments, such a distinction was made in the case of a man who brought an evil name [upon his wife];⁸⁵  for he is not held guilty unless, having had intercourse with her, [even]⁸⁶  in an unnatural manner, he brought up an evil name upon her in respect of a natural intercourse.

In accordance with whose view?⁸⁷  If [it be said to be] in accordance with the view of the Rabbis [the husband, it could be retorted, should have been held guilty] even if he had no intercourse with her. If [it be said to be] in agreement with the view of R. Eliezer b. Jacob

1. Lit.,'what'.
2. [H]. The rt. [H] may signify (a) flogging and also (b) the infliction of any penalty or suffering.
3. In the last cited ruling of R. Judah.
4. The hundred shekels.
5. The payment of the fine only is dependent on previous intercourse, but flogging is inflicted in all circumstances (v. supra p. 259. n. 15).
6. MS.M., 'it was taught'. Cf. 'Ar. 20a and Tosef. 'Ar. III.
7. V. Lev. XXVII, 2ff.
8. [H] (cf. supra note 5).
9. Or 'he is punished by having to pay etc'.
10. For the payment of his full valuation when the man only vowed half of it.
11. [H], as prescribed in Lev. XXVII, 2ff.
12. [H]
13. Lit., 'and the value of his half'.
14. MS.M. [H] Cur. edd. [H] 'limb'.
15. And where the value of such a part or limb is vowed the full valuation must be paid.
16. Deut. XXII, 19.
17. Lit., 'this'.
18. Deut. XXII, 18.
19. Deut. XXII, 19.
20. Deut. XXI, 18.
21. Ibid.
22. Ibid. XXV, 2 (v. infra n. 14).
23. Lit., 'son'.
24. V. supra n. 13. As this text in which 'son' occurs (v. supra n. 14) speaks definitely of flogging (v. Deut. XXV, 2-3) the punishment of the 'son' spoken of in Deut. XXI, 18, concerning whom also the expression of 'chastise' (ibid.) was used, must also be that of flogging; and since 'chastise' (ibid.) implies flogging, 'chastise' in Deut. XXII, 18 must also mean flogging. V. Sanh. 71b.
25. Sc. a negative precept for the transgression of which flogging is incurred. No flogging is in- flicted for an offence unless there is a prohibition in regard to it.
26. Lev. XIX, 16.
27. [H] the Nif. of [H] which implies a negative precept.
28. Deut. XXIII, 10.
29. Lit., 'said'.
30. Lit., 'from that'.
31. Lit., 'from here'.
32. The verse following (Deut. XXIII, 11) speaking of a man … that is not clean … by night. V. A.Z. 20b.
33. Lit., 'from that'.
34. Lev. XIX, 16.
35. The Heb. of Lev. XIX, 16 cited, is [H] the third word being composed of the letters forming the phrase [H] 'lenient or gentle to me'.
36. Who testified that his wife committed adultery before her marriage.
37. Though the evidence had been proved to be false.
38. V. Deut. XXII, 18f.
39. For notes v. supra p. 255, n. 4ff.
40. Why the husband is exempt.
41. Since the ruling runs, 'did not tell them', and not 'did not hire them'.
42. V. Deut. XXII, 18f.
43. Who testified that his wife committed adultery before her marriage.
44. Or 'to put'. Lit., 'it comes (from) putting (and) putting'.
45. In the case of an evil name brought up by a husband (Deut. XXII, 13ff).
46. [H], rt. [H] 'to put', 'to lay'.
47. Deut. XXII, 14.
48. [H], rt. [H].
49. Ex. XXII, 24.
50. Interest.
51. Sc. the hiring of the witnesses.
52. MS.M. 'Zaidana of the school'. [Probably of Bethsaida].
53. V. supra p. 262, n. 13ff.
54. According to R. Judah who laid down that a husband incurs no penalties unless he has hired the witnesses.
55. The witnesses (v. supra p. 262, n. 12).
56. Does R. Judah include land also under the term of 'money', or does he, since his ruling was deduced from the law of interest, restrict the price of the hiring to movables only, such as money and foodstuffs, which are specifically mentioned in connection with the laws of interest, (v. Ex. XXII, 24 and Deut. XXIII, 20).
57. V. Glos.
58. Who remarried his wife after he had once divorced her.
59. Who was under the obligation to contract levirate marriage with his deceased brother's wife (cf. Deut. XXV, 5ff).
60. The last.
61. Deut. XXII, 16.
62. I.e., the husband.
63. Sc. the penalties prescribed in the section apply only to the former.
64. Referred to supra 45b ad fin.
65. Lit., 'how'.
66. V. Deut. XXII, 13ff.
67. V. Glos.
68. How then could one speak of giving her a kethubah?
69. The statutory sum due to a non-virgin.
70. Lit., 'is not an evil name'.
71. Lit., 'words', the penalties prescribed in the section of Deut. XXII, 13ff.
72. Who restricts the application of the penalties (v. supra n. 3) to a husband with whom intercourse had taken place.
73. Deut. XXII, 13.
74. Ibid. 14.
75. Who maintain that the penalties always apply, irrespective of intercourse.
76. Deut. XXII, 17.
77. The lamed in [H] may be rendered 'in' (as E.V.) or 'for' as here expounded.
78. By refuting the evidence of the first witnesses who accused her of the offence. [H] (read as [H]) is to be regarded as the Piel of [H], 'to make fit', and referring to the action of the witnesses who establish the fitness or honesty of the accused.
79. V. supra note 4.
80. Deut. XXII, 17.
81. V. supra note 7.
82. [H] (E.V., 'and they shall spread') is rendered, 'And they shall explain'. [H], 'to explain', [H], 'to spread', Shin and Sin being interchangeable.
83. [H] '(the allegation) which he submitted against her'. A play on the word [H] (E.V. the garment) v. Tosaf.
84. As proof of the tokens.
85. Only where his witnesses accused her of illicit intercourse in a natural manner is he, when their evidence is proved to be false, liable to pay the fine of a hundred shekels; but where his witnesses alleged unnatural intercourse he is exempt from the fine even though their evidence was proved to be false.
86. V. Rashi.
87. Has the last mentioned statement been made?

must not the intercourse in both cases be in a natural manner?¹  — The fact, however, is, said R. Kahana in the name of R. Johanan, that the husband is not held guilty unless he had intercourse In a natural manner and he brought up an evil name upon her in respect of a natural intercourse.

MISHNAH. A FATHER HAS AUTHORITY OVER HIS DAUGHTER²  IN RESPECT OF HER BETROTHAL [WHETHER IT WAS EFFECTED] BY MONEY,³  DEED⁴  OR INTERCOURSE;⁵  HE IS ENTITLED TO ANYTHING SHE FINDS AND TO HER HANDIWORK; [HE HAS THE RIGHT] OF ANNULLING HER VOWS⁶  AND HE RECEIVES HER BILL OF DIVORCE;⁷  BUT HE HAS NO USUFRUCT⁸  DURING HER LIFETIME.⁹  WHEN SHE MARRIES, THE HUSBAND SURPASSES HIM [IN HIS RIGHTS] IN THAT HE HAS¹⁰  USUFRUCT DURING HER LIFETIME,¹¹  BUT HE IS ALSO UNDER THE OBLIGATION OF MAINTAINING AND RANSOMING HER¹²  AND TO PROVIDE FOR HER BURIAL. R. JUDAH RULED: EVEN THE POOREST MAN IN ISRAEL MUST PROVIDE¹³  NO LESS THAN TWO FLUTES AND ONE LAMENTING WOMAN.

GEMARA. 'BY MONEY'. Whence is this¹⁴  deduced? — Rab Judah replied: Scripture said, Then shall she go ant for nothing without money,¹⁵  [which implies that] this master¹⁶  receives no money¹⁷  but that another master does receive money;¹⁸  and who is he? Her father.¹⁹  But might it not be suggested that it²⁰  belongs to her?²¹  — Since²²  it is her father who contracts²³  her betrothal, as it is written in Scripture, I gave my daughter unto this man,²⁴  would she take the money!²⁵  But can it not be suggested that this²⁶  applies only to a minor²⁷  who has no legal right²⁸  [to act on her own behalf], but that a na'arah²⁹  who has such rights³⁰  may herself contract her betrothal, and she herself receives the money? — Scripture stated, Being in her youth in her father's house,³¹  [implying that] all the 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 daughte handiwork belongs to her father? [From Scripture] where it is said, And if a van sell his daughter to be a maidservant,³²  as³³  the handiwork of a maidservant belongs to her master so does the handiwork of a daughter belong to her father'.³⁴  Now what need was there,³⁵  [it may be asked, for this text when] deduction³⁶  could have been made from [the text of] 'Being in her youth in her father's house'?³¹  Consequently [it must be admitted, must it not, that] that text was written in connection only with the annulment of vows?³⁷  And should you suggest that we might infer this³⁸  from it,³⁹  [it could be retorted that] monetary matters cannot be inferred from ritual matters.³⁹  And should you suggest that we might infer it is from [the law of] fine,⁴⁰  [it could be retorted, could it not, that] monetary payments cannot be inferred from fines? And should you suggest that it is might be inferred from [the law of compensation for] indignity and blemish,⁴¹  [it could be retorted] that indignity and blemish are different,⁴²  since [the rights] of her father [are also, are they not], involved⁴³  in it?⁴⁴  — [This], however, [is the explanation]:⁴⁵  It is logical to conclude that when the All-Merciful excluded⁴⁶  [another] going out,⁴⁷  the exclusion Was meant to be [understood in a manner] similar to the original.⁴⁸  But⁴⁹  one 'going out', surely, is not like that of the other: For⁵⁰  in the case of the master [the maidservant] goes entirely out of his control while in the 'going out' from the control of her father [the daughter's] transfer to the bridal chamber is still lacking?⁵¹  — In respect of the annulment of vows, at any rate, she passes out of his control; for we have learned: In the case of a betrothed damsel⁵²  it is her father and her husband who jointly annul her vows.⁵³

DEED OR INTERCOURSE. Whence do we [deduce this]?⁵⁴  — Scripture said, And becometh another man's wife⁵⁵  is [from which it may be inferred that] the various forms of betrothal⁵⁷  are to be compared to one another.⁵⁷

HE IS ENTITLED TO ANYTHING SHE FINDS,

1. Since he takes the verses literally.
2. While she is under the age of twelve and a half years and one day.
3. Sc. the money belongs to him.
4. The receipt of the deed by him effects his daughter's betrothal.
5. It is within his rights to allow such an act to have the validity of a kinyan (v. Glos.).
6. V. Num. XXX. 4ff.
7. If she was divorced during her betrothal before attaining her adolescence (v. Glos. s.v. bogereth).
8. Of property that came into her possession from her mother's side.
9. Such property passes into the possession of a father as heir to his daughter only after her death.
10. In addition to the privileges enjoyed by a father.
11. Cf. infra 65b, Kid. 3b.
12. If she was taken captive.
13. For his wife's funeral.
14. That the money of the betrothal belongs to her father.
15. Ex. XXI, 11, referring to a Hebrew maidservant.
16. To whom a father sold his daughter (v. ibid. 7).
17. When she leaves him on becoming a na'arah (v. Glos. and cf. Kid. 4a).
18. When, on marriage, she passes out of his control.
19. Since beside the master spoken of in the Scriptural text (cf. Ex. XXI, 8) the daughter of an Israelite has no other master but her father.
20. The money of her betrothal.
21. The implication of the text cited merely indicating that, unlike the case of the liberation of an Israelite maidservant, her passing out of her father's control at betrothal is attended by money, without necessarily meaning that this money goes to her father.
22. Lit., 'now'.
23. Lit., 'accepts'.
24. Deut. XXII, 16.
25. Of course not. Hence it must be concluded that it, as stated in our Mishnah, belongs to her father.
26. A father's right to the betrothal money of his daughter, as implied in the Scriptural text cited.
27. Though the Scriptural text referred to deals with an evil name brought upon a na'arah (v. Glos.) it might nevertheless be contended that the betrothal of that na'arah took place while she was still a minor.
28. Lit., 'a hand'.
29. V. Glos.
30. Lit., 'a hand'.
31. Num. XXX, 17.
32. Ex. XXI, 7.
33. Since 'daughter' and 'maidservant' appear in juxtaposition an analogy between them may be drawn.
34. Supra 40b, infra 47a, Kid. 8a.
35. Lit., 'wherefore to me'.
36. That a father is entitled to his daughter's handiwork.
37. 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 a father's right to his daughter's money of betrothal. The previous question, therefore, arises again.
38. That a father is entitled to his daughter's money of betrothal.
39. From the law of the annulment of vows.
40. As the fine prescribed in Deut. XXII, 19, belongs to her father so does the money.
41. Which belongs to her father (v. supra 40b).
42. From the case under consideration.
43. As a father has the right to dispose of the indignity and blemish of his daughter while she is still a na'arah, by allowing any sort of person to marry her, he is also entitled to compensation for any indignity or blemish anyone inflicted upon her without his consent.
44. The question, whence is it deduced that the money of betrothal belongs to her father, thus arises again.
45. Why deduction may be made from Ex. XXI, 11 (cf. supra p. 266 notes 13-20, and text).
46. Cf. supra p. 266 notes 15-18 and text.
47. V. supra p. 266, n. 17.
48. As in the original it is the master, and not the maidservant, who, in the absence of the specific text to the contrary, would have received the money for the latter's redemption, so in the implication it must be the father (who corresponds to the master), and not his daughter, who is to receive the money when she passes out of his control at betrothal (v. Rashi). [Now since we learn that her father is entitled to her betrothal money, it follows that the right to effect her betrothal is vested in him, Tosaf.].
49. Lit., 'but that'.
50. Lit., there'.
51. Until her entry into the bridal chamber (Huppah, v. Glos.) a daughter is still partially under the control of her father who is still entitled to her handiwork and remains her heir.
52. Na'arah (v. Glos.).
53. The father alone has no longer the right to do so. For further notes on the passage v. Kid. (Sonc. ed.) p. 36.
54. A father's absolute right to effect the betrothal of his young daughter (v. supra p. 266, nn. 3-4) by these two methods.
55. Deut. XXIV, 2; and becometh [H].
56. [H] lit., 'beings', 'becomings', of the same rt. [H] as that of [H] (v. supra p. 268, n. 15).
57. As betrothal by money is entirely in the hands of the father (to whom the money belongs, as has been shewn supra) so is betrothal by deed or intercourse.