Babylonian Talmud: Tractate Kethuboth

Folio 32a

and it is established that one does not receive lashes and pay!¹  — 'Ulla said: There is no difficulty. Here²  [it speaks] of his sister [who is] a maiden,³  and there⁴  [it speaks] of his sister [who is] a mature girl.⁵  [But in the case of] his sister [who is] a mature girl, too, [there are damages to be paid for the] shame and deterioration?⁶  — [It speaks of] an idiot.⁷  But [there are still damages to be paid for] the pain?⁸  [It speaks of] a girl who was seduced.⁹  Now that you have come to this,¹⁰  you can even say [that it speaks of] his sister [who was] a maiden [and namely when she was] an orphan¹¹  and [she was] seduced.¹²

Consequently, 'Ulla holds the view that wherever there is money [to be paid] and the punishment of lashes [to be inflicted], he pays the money and does not receive the lashes,¹³  Whence does 'Ulla derive this? — He derives it from [the law with regard to] one person who injures another person. Just as when one person injures another person, in which case there is money to [be paid]¹⁴  and the punishment of lashes,¹⁵  he pays the money and does not receive the lashes,¹⁶  so whenever there are payment of money and the punishment of lashes, he pays the money and does not receive the lashes. [But may it not be argued] it is different with [the case of] one person who injures another person because he is liable for five things?¹⁷  And [if you will say] that [the payment of] money is lighter,¹⁸  [one can say against this] that [here it has been excepted] from its rule [and] permitted to the Court!¹⁹  But he derives it from the refuted false witnesses.²⁰  Just as in the case of refuted false witnesses, whose transgression involves the payment of money and the punishment with lashes,²¹  they pay the money but do not receive the lashes,²²  so whenever there are payment of money and the punishment of lashes, he pays the money and does not receive the lashes. [But it may be argued] it is different with the case of refuted false witnesses, because they do not require a warning?²³  [And if you will say] that [the payment of] money is lighter, [one can say against this,] that they²⁴  have not done any deed!²⁵  — But he derives it from both.²⁶  The point common to both is that there are the payment of money and the punishment of lashes, and in either case he pays the money and does not receive the lashes. So whenever there are payment of money and the punishment of lashes, he pays the money and does not receive the lashes. But [it may be argued] the point common to both is [also] that they both have a strict side?²⁷  And if [you will say that the payment of] money is lighter, [one can say against this] that they have both a lighter side?²⁸

1. Since he receives lashes, according to the Mishnah just quoted, he should not pay the fine, and this would be against our Mishnah.
2. In our Mishnah.
3. A na'arah (v. Glos.) and the fine is payable; v. supra 29a. In this case the penalty of lashes would not be inflicted.
4. In Mak. 13a.
5. A bogereth (v. Glos.), and no fine is due, v. supra 29a. In this case the penalty of lashes is inflicted.
6. Which she has suffered, (v. infra 39a-40b). And there would be both lashes and payment.
7. The girl is not compos mentis, and thus neither shame nor deterioration applies.
8. Caused by the forced intercourse.
9. In the Mishnah Mak. 13a, it was not a case of violation, but of seduction; and in seduction there is no pain: v. infra 39b.
10. To say that the Mishnah Mak. speaks of seduction and not violation.
11. Since her father is not alive, the damages are payable to her.
12. And having yielded to his persuasion she will not claim the damages from him; hence lashes are inflicted.
13. Since 'Ulla explains the Mishnah Mak. 13a as dealing with a bogereth, as otherwise there would be, in his view, no lashes even if he were warned beforehand, but only the payment of the fine.
14. V. Ex. XXI, 19.
15. This is deduced from Deut. XXV, 3 (Rashi).
16. V. infra 32b.
17. He has to make five kinds of payments; v. B.K. 83b. The payment of money in this case is therefore particularly heavy and other money payments cannot be compared with it.
18. And if in this case payment of money is to be made and no lashes are to be given, the same should indeed apply to other cases. Whether the payment is greater or smaller, it is a lighter punishment than lashes, and we see here that the lighter punishment is chosen (cf. Rashi).
19. In this case the Torah has expressly stated that the Court may administer lashes (cf. Deut. XXV, 2). But the Court may prefer, and as a rule does prefer, that the person who was injured should receive money as compensation (Cf. Tosaf. s.v. htu). Therefore in this case the money is paid and no lashes are given. But in other cases, as in those of violation and seduction. the rule may be different. In these cases the giving of lashes is not mentioned explicitly in the Torah, and thus its permissiveness is not stated. And when in such cases the punishment of lashes and the payment of money are due, lashes are given. And you cannot derive other cases from this case. With regard to the punishment of lashes v. Mak. 13b.
20. Witnesses proved zomemim, v. Glos.
21. Cf. Mak. 4a.
22. V. infra 32b.
23. They are subject to the lex talionis without a warning.
24. The refuted false witnesses.
25. Their transgression consists in words and not in deeds. Therefore the money penalty is imposed and not that of lashes. But with regard to transgressions in deeds, it may be that the transgressor receives lashes!
26. The case of one person who injures another person and the case of the refuted false witnesses.
27. In the one case the five kinds of payment and in the other case the non-requirement of a warning.
28. In the one case the exception (v. p. 176, n. 9), and in the other case the transgression consisted of words and not of a deed. Therefore you cannot compare other cases with this case.

— But 'Ulla derives it from the two words 'for'.¹  It is written here for he hath humbled her²  and it is written there: 'Eye for eye'. As there³  he pays money and does not receive lashes, so wherever there are the payment of money and the punishment of lashes, he pays money and does not receive the lashes.

R. Johanan said: You can even say that it⁴  speaks of his sister who was a maiden. Only there⁴  it speaks of a case where they warned him,⁵  and here⁶  it speaks of a case where they did not warn him.⁷  Consequently R. Johanan holds the view that wherever there are the payment of money and the punishment of lashes and they warned him, he receives the lashes and does not pay the money. Whence does R. Johanan derive this? — The verse says: According to his guilt;⁸  [from this I infer that] you punish him because of one guilt but not because of two guilts, and immediately follow⁹  the words: Forty stripes he may give him.¹⁰  But behold when one person injures another person, in which case there are the payment of money and the punishment of lashes, he pays money and does not receive the lashes? And if you will say that this is only when they did not warn him, but when they warned him, he receives the lashes and does not pay — did not R. Ammi say in the name of R. Johanan that, if one person struck another person a blow, for which no perutah¹¹  can be claimed as damages,¹²  he receives the lashes? How shall we imagine this case? If they did not warn him, why does he receive the lashes? Hence it is clear that they warned him, and the reason [why he receives the lashes and does not pay] is because the damages do not amount to a perutah, but if they amount to a perutah he pays the money but does not receive the lashes!¹³  — [It is] as R. Elai said: The Torah has expressly stated¹⁴  that the Zomemim witnesses have to pay money; so [here] also the Torah has expressly stated that the person who injures another person has to pay money. With regard to what has that [teaching] of R. Elai been said? — With regard to the following:¹⁵  'We testify that So-and-so owes his fellow two hundred zuz' and they were found to be Zomemim, they receive the lashes and pay,¹⁶  for it is not the verse that imposes upon them¹⁷  the lashes¹⁸  which imposes upon them¹⁷  the payment¹⁹  [of money]. This is the view of R. Meir; and the Sages say: He who pays does not receive lashes.²⁰  [And] let us say: he who receives lashes does not pay?²¹  [Upon that] R. Elai said: The Torah has expressly stated that the Zomemim witnesses have to pay more money. Where has the Torah stated this? — Consider; it is written: 'Then shall ye do unto him as he had thought to do onto his brother'; why [is it written further,] 'hand for hand'?²²  [This means] a thing that is given from hand to hand, and that is money. [And] the same applies to the case of²³  one person who injures another person. Consider; it is written: 'As he hath done, so shall it be done to him';²⁴  why [is it written further] 'so shall it be rendered unto him'?²⁵  [This means] a thing that can be rendered,²⁶  and that is money.

Why does R. Johanan not say as 'Ulla?²⁷  — If so²⁸  you would abolish [the prohibitory law]: The nakedness of thy sister thou shalt not uncover.²⁹

1. [H]. A deduction based on similarity of expressions — a Gezerah shawah (v. Glos.).
2. Deut. XXII, 29.
3. Ex. XXI, 24.
4. The Mishnah, Mak. 13a.
5. And he is therefore liable to the payment of money and the penalty of lashes, and the Mishnah in Mak. 13a teaches us that, in that case, he receives the lashes and does not pay the money.
6. In our Mishnah.
7. And he is not liable to the penalty of lashes, and therefore he has to pay the money.
8. Deut. XXV, 2.
9. Lit., 'and next to it'.
10. Deut. XXV, 3. This shows that when there are two guilts, or two punishments for one guilt, he receives the punishment of lashes.
11. A small coin, v. Glos.
12. Lit., 'in which there is not the value of a perutah'.
13. Which contradicts R. Johanan's ruling.
14. Lit., 'increased'. This means: included something by using an additional word, or additional words.
15. Mak. 4a.
16. The amount they wanted to make the person pay. against whom they falsely testified.
17. Lit., 'brings them to'.
18. For transgressing the ninth commandment.
19. V. Deut. XIX, 19.
20. V. Mak. 4a.
21. According to the view of R. Johanan.
22. Deut. XIX, 21.
23. Lit., 'also'.
24. Lev. XXIV, 19.
25. Lev. XXIV, 20.
26. Lit., 'with regard to which there is a rendering', 'a giving'.
27. That our Mishnah speaks of the case where he had intercourse with his sister as a na'arah, which makes him liable to the fine and exempts him from lashes.
28. That is, if he who cohabited with his sister who is a maiden, would be free from receiving lashes after he had been warned.
29. Lev., XVIII, 9. A prohibitory law, if wilfully transgressed, and after a warning, is punishable (also) with lashes. Therefore R. Johanan holds that where there are the payment of money and the punishment of lashes, he receives the lashes and does not pay the money. Only our Mishnah speaks of a case where there was no warning, and therefore he pays the fine.