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Babylonian Talmud: Tractate Kethuboth

Folio 36a

are really forbidden relations1  and prohibitions of the second degree [are those relations which were forbidden] by the Rabbis?2  Why should the latter not receive the fine since they are fit for him Biblically? — But, forbidden relations are those with regard to which one is liable to the penalty of death at the hand of the Court,3  prohibitions of the second degree are those with regard to which there is kareth;4  but in the case of prohibitions with regard to which one trespasses a plain prohibitory law,5  they receive the fine. And whose opinion is it? [It is that of] Simeon the Temanite.5  Some say: 'Forbidden relations' are those with regard to which one is liable to the penalty of death at the hand of the Court or kareth, 'prohibitions of the second degree are those with regard to which one transgresses a plain prohibitory law. Whose opinion is this? That of R. Simeon b. Menassia.5

     

Dilling discussion of highlighted text
    [It is said above:]6  A woman who refuses her husband by mi'un has no claim to fine [for outrage] or to indemnity for seduction. But any other minor has a claim [to the fine]. Whose opinion would this be? That of the Rabbis, who say: A minor receives the fine.7  Read now the other clause: 'A barren woman has no claim to fine [for outrage] or to indemnity for seduction'. This is according to R. Meir, who says: The minor does not receive the fine; and this one came from her state as minor into the state of womanhood.8  The first clause would then be according to the Rabbis and the last clause according to R. Meir? And if you would say that all of it is according to R. Meir, but in the case of the woman who refuses her husband by mi'un he holds like R. Judah9  — does he indeed hold the view [of R. Judah]? Has it not been taught: Until when can the daughter exercise the right of mi'un? Until she grows two hairs10  — [these are] the words of R. Meir. R. Judah says: Until the black is more than the white?11  — But it is according to R. Judah,12  and with regard to a minor he holds like R. Meir,13  But does he14  hold this view?15  Did not Rab Judah say [that] Rab said: 'These are the words of R. Meir'?16  Now if it had been so,17  he ought to have said: 'These are the words of R. Meir and R. Judah'? — This Tanna18  holds according to R. Meir in one thing19  and differs from him in one thing.20  Rafram said: What is meant by 'a woman who refuses her husband by mi'un'? One who is entitled to refuse.21  Let him then teach22  'a minor'? — This is indeed difficult.

[It is said above:] 'A barren woman has no claim to fine [for outrage] or to indemnity for seduction. A contradiction was raised against this: A woman who is a deaf-mute, or an idiot, or barren, has a claim to fine [for outrage], and a suit can be brought [by her husband] against her concerning her virginity. What contradiction is there? The one [Baraitha]23  is according to R. Meir24  and the other [Baraitha] is according to the Rabbis! But he who raised the questions how could he raise it at all?25  — He wanted to raise another contradiction: Against a woman who is a deaf-mute, or an idiot, or has reached maturity,26  or lost her virginity through an accident, no suit can be brought concerning her virginity; against a woman who is blind or barren, a suit can be brought concerning her virginity. Symmachus says in the name of R. Meir: Against a blind woman a suit cannot be brought concerning her virginity! — Said R. Shesheth: This is not difficult: the one [Baraitha] is according to R. Gamaliel and the other [Baraitha] is according to R. Joshua.27  [But] say when does R. Gamaliel hold this view?28  When she pleads;29  but does he hold this view when she does not plead — Yes, since R. Gamaliel holds that she is believed, [we apply], in a case like this, [the verse], Open thy mouth for the dumb.30

'And against a woman who has reached maturity, one cannot bring a suit concerning her virginity.' Did not Rab say: To a woman who has reached maturity one gives the [whole] first night?31

Original footnotes renumbered. See Structure of the Talmud Files
  1. Those forbidden in Lev. XVIII.
  2. Lit., 'the Scribes', v. Yeb. 21a.
  3. V. Lev. XX.
  4. v. Lev. XVIII.
  5. V. supra 29b.
  6. Supra 35b.
  7. V. supra 29a.
  8. Without having been in the state of na'arah, since she did not have the signs of maidenhood. And only a na'arah receives the fine.
  9. That a maiden can exercise the right of mi'un, v. infra.
  10. The signs of puberty, i. e., as long as she is a minor.
  11. I. e., after she has reached the state of na'arah, the growth of the hair having advanced. This shews that R. Meir does not agree with R. Judah in the matter of mi'un.
  12. According to R. Judah the Baraitha can deal with a na'arah.
  13. That she has no claim to fine; hence the ruling with regard to a naturally barren woman, v. supra p. 195. n. 9,
  14. R. Judah.
  15. Of R. Meir.
  16. V. infra 40b.
  17. As it has just now been said.
  18. Of the Baraitha, cited supra.
  19. That a minor has no claim to fine.
  20. With regard to mi'un.
  21. I. e., a minor. The whole Baraitha would then be according to R. Meir.
  22. I. e., state expressly.
  23. The former Baraitha.
  24. That a minor has no claim and similarly a naturally barren woman. cf. n. 4.
  25. The answer being so obvious.
  26. A bogereth, v. Glos.
  27. V. supra 12b. According to R. Gamaliel's view, since the woman is believed on saying that she was violated after betrothal, in the case of a deaf-mute we admit this plea on her behalf and mutatis mutandis on the view of R. Joshua. v. infra.
  28. That she is believed.
  29. That she was forced after betrothal.
  30. Prov. XXXI, 8. I. e., the Court pleads what she could have pleaded.
  31. For intercourse. We assume that any bleeding that may proceed is not due to menstruation but to virginity, V. Nid. 64b. And this would shew that she has virginity.

Kethuboth 36b

— If he raises the complaint with regard to the bleeding,1  it is really so;2  here we treat of a case where he raises the complaint of the 'open door'.3

[It is said above:] 'Symmachus says in the name of R. Meir: Against a blind woman a suit cannot be brought concerning her virginity'. What is the reason of Symmachus? — R. Zera said: 'because she may have struck against the ground'.4  All the others5  may also have struck against the ground?6  All the others see it7  and show it to their mothers,8  this one does not see it and does not shew it to her mother.9

[It is said above]:10  'And a woman who goes out because of an evil name has no claim to fine [for outrage] and to indemnity for seduction'. A woman who goes out because of an evil name is liable to be stoned?11  — R. Shesheth said: He12  means it thus: if an evil name has gone out concerning her in her childhood13  she has no claim to fine [for outrage] or to indemnity for seduction. R. Papa said: Infer from this [that] one does not collect [a debt] with an unsound document. How shall we imagine this case? If to say that a rumour has gone out that the document is forged, and similarly here that a rumour has gone out that she has been unchaste? — Did not Raba say [that] if the rumour has gone out in the town [that] she is unchaste one does not pay any attention to it?14  — But [the case is that] two [persons] came and said [that] she asked them to commit with her a transgression15  and similarly here [that] two [persons] came and said [that] he16  said to them: Forge me [the document]. It is all right there,17  since there are many unrestrained men.18  But here19  — if he20  has been established,21  have [therefore] all Israelites been established?22  — Here also, since he23  was going round searching for a forgery, I can say [that] he [him. self] has forged it and written it.24

MISHNAH. AND25  IN THE FOLLOWING CASES NO FINE26  IS INVOLVED: IF A MAN HAD INTERCOURSE WITH A FEMALE PROSELYTE, A FEMALE CAPTIVE OR A BONDWOMAN, WHO WAS RANSOMED, PROSELYTIZED OR MANUMITTED AFTER THE AGE OF27  THREE YEARS AND A DAY.28  R. JUDAH RULED: IF A FEMALE CAPTIVE WAS RANSOMED SHE IS DEEMED TO BE IN HER VIRGINITY29  EVEN IF SHE BE OF AGE.

A MAN WHO HAD INTERCOURSE WITH HIS DAUGHTER. HIS DAUGHTER'S DAUGHTER, HIS SON'S DAUGHTER. HIS WIFE'S DAUGHTER. HER SON'S DAUGHTER OR HER DAUGHTER'S DAUGHTER INCURS NO FINE,30  BECAUSE HE FORFEITS HIS LIFE, THE DEATH PENALTIES OF SUCH TRANSGRESSORS BEING31  IN THE HANDS OF BETH DIN, AND HE WHO FORFEITS HIS LIFE PAYS NO MONETARY FINE FOR IT IS SAID IN SCRIPTURE, AND YET NO HARM FOLLOW HE SHALL BE SURELY FINED.32

GEMARA. R. Johanan said: Both R. Judah and R. Dosa taught the same thing. As to R. Judah [we have the ruling] just mentioned. As to R. Dosa? — It was taught: A female captive33  may eat terumah;34  so R. Dosa. 'What after all is it', said R. Dosa, 'that that Arab35  has done to her? Has he rendered her unfit to be a priest's wife merely because he squeezed her between her breasts?'36

Said Raba:37  Is it not possible that there is really no [agreement between them]?38  R. Judah may have laid down his ruling39  here40  only in order that the sinner may gain no advantage,41  but there42  he may hold the same opinion as the Rabbis;43  or else: [May not] R. Dosa have laid down his ruling44  only there45  [where it concerns] terumah which [at the present time is only] a Rabbinical enactment,46  but in the case of a fine which is a Pentateuchal law47  he may well hold the same view as the Rabbis?48

Abaye answered him: Is R. Judah's reason here49  'that the sinner may gain no advantage'? Surely it was taught: R. Judah ruled, 'If a female captive was ransomed50  she is deemed to be in her virginity,51  and even if she is ten years old her kethubah is two hundred52  zuz'.53  Now how54  [could the reason] 'that the sinner shall gain no advantage' apply55  there?56  — There also [a good reason exists for R. Judah's ruling, since otherwise57  men]58  would abstain from marrying her.59

Could R. Judah, however, maintain the view [that a female captive] retains the status of a virgin60  when in fact, it was taught: A man who ransoms a female captive may marry her, but he who gives evidence on her behalf61  may not marry her,62  and R. Judah ruled: In either case he62  may not marry her!63

Is not this,64  however, self-contradictory? You said, 'A man who ransoms a female captive may marry her', and then it is stated, 'He65  who gives evidence on her behalf may not marry her'; shall he66  not marry her [it may well be asked] because he gives also evidence on her behalf? — This is no difficulty. It is this that was meant: A man who ransoms a female captive and gives evidence on her behalf may marry her,67  but he who merely gives evidence on her behalf may not marry her.68

In any case, however, does not the contradiction against R. Judah remain?69  — R. Papa replied: Read, 'R. Judah ruled: In either case he may marry her'.

R. Huna the son of R. Joshua replied: [The reading may] still be as it was originally given,70  but R. Judah was speaking to the Rabbis in accordance with their own ruling. 'According to my view71  [he argued] the man may marry her in either case; but according to your view72  it should have been laid down that in either case he may not marry her'.

And the Rabbis?73  — 'A man who ransoms a captive and gives evidence on her behalf may marry her' because no one would throw money away for nothing,74  but 'he who merely gives evidence on her behalf may not marry her' because he may have fallen in love with her.75

R. Papa b. Samuel pointed out the following contradiction to R. Joseph:

Original footnotes renumbered. See Structure of the Talmud Files
  1. I. e., the lack of it.
  2. He is entitled to raise this complaint.
  3. V. supra 9a. This complaint cannot be raised against a bogereth.
  4. And thus lost her virginity.
  5. All other girls. Lit., 'all of them'.
  6. And yet a suit can be brought against them concerning their virginity.
  7. I. e., notice the accidental loss of their virginity.
  8. And it is known that the virginity is lost by accident and no claim arises concerning the virginity at their marriage. And if no accidental loss was made known the claim concerning virginity does arise.
  9. But the accidental loss may have happened all the same. Therefore there is no virginity claim against a blind woman.
  10. V. supra 35b. (*) The translation from here to the end of the Tractate is by the Rev. Dr. I. W. Slotki.
  11. Cf. Deut. XXII, 20, 21.
  12. The Tanna.
  13. Before she was betrothed.
  14. V. Git. 89b. And the same would apply to the document.
  15. To have intercourse with her.
  16. The alleged creditor.
  17. In the case of the woman.
  18. Since she solicited two men she might have solicited other men with more success.
  19. In the case of the document.
  20. The alleged creditor.
  21. As a forget.
  22. As forgers. He may therefore not have found men who would sign a forged document.
  23. The alleged creditor.
  24. I. e., forged the signatures of the witnesses.
  25. Cf. the previous Mishnah, supra 29a.
  26. Lit., 'they have no fine', sc. of fifty shekels. (cf. Deut. XXII, 29).
  27. Lit., 'more than'.
  28. An age when intercourse is possible, and girls in the circumstances mentioned are likely to have succumbed to temptation or violence.
  29. Lit., 'behold she is in her sanctity'.
  30. Lit., 'they have no fine'.
  31. Lit., 'because their death'.
  32. Ex. XXI, 22; from which it may be inferred that if 'harm' (i.e., death) follows no monetary fine is incurred.
  33. Who was the daughter or wife of a priest.
  34. Because she is not suspected of intercourse with her captors. A seduced or violated woman is regarded as a harlot who is forbidden to a priest (cf. Lev. XXI, 7) and is, therefore, also ineligible to eat terumah.
  35. Sc. her captor. Arabs were ill-famed for their carnal indulgence (v. Kid. 49b and Tosaf. s.v. [H] a.l.).
  36. Git. 81a; cf. 'Ed'. III. 6. Captors. R. Dosa maintains, only play about with their captives but did not violate them.
  37. So MS.M. Cut. edd., 'Rabbah'. Cf. Tosaf. supra 11a s.v. [H] and infra 37a s.v. [H].
  38. R. Judah and R. Dosa.
  39. That a ransomed captive retains the status of virgin and consequently is entitled to a fine from her seducer.
  40. In our Mishnah.
  41. By an exemption from the statutory fine (cf. supra p. 198. n. 16).
  42. In the case of terumah cited from Git. 81a.
  43. That a female captive is forbidden to a priest and is ineligible to eat terumah.
  44. That a captive retains her status of chastity and may eat terumah if she is a priest's wife or daughter.
  45. V. p. 199, n. 14.
  46. Pentateuchally even a woman whose seduction was a certainty is permitted to eat such terumah. Hence no prohibition was imposed even in Rabbinic law where seduction is doubtful.
  47. And subject to greater restrictions.
  48. The first Tanna of our Mishnah.
  49. In our Mishnah.
  50. [H] so MS.M. Cut. edd., [H], 'was taken captive', is difficult.
  51. Cf. supra p. 199, n. 1.
  52. The statutory sum to which a virgin is entitled. A widow is entitled to one hundred zuz only.
  53. Tosef. Keth. III.
  54. Lit., 'what'.
  55. Lit., 'there is'.
  56. Where the husband had committed no sin. Now since this reason is here inapplicable and R. Judah nevertheless gives the captive the status of a virgin, it follows, as R. Johanan has laid down supra, that R. Judah maintains his view in all cases including., of course, that of terumah also.
  57. I. e., if the captive were only allowed a kethubah of one hundred zuz.
  58. On learning that her kethubah was not the one given to a virgin, and suspecting, therefore, that she had been seduced.
  59. As such a reason, however, is inapplicable to terumah R. Judah, as Raba had suggested. may well be of the same opinion as the Rabbis.
  60. Cf. supra p. 199, n. 1.
  61. That she had not been seduced.
  62. If he is a priest (cf. supra p. 199, n. 6).
  63. Tosef. Yeb. IV; which proves that a female captive does lose her status of virginity. How then could R. Judah maintain in our Mishnah and in the Baraitha cited from Tosef. Keth. III that she retains the status of a virgin?
  64. The Baraitha just cited from Tosef. Yeb.
  65. Implying presumably anyone. even the man who ransomed her.
  66. The man who ransomed the captive and who in such circumstances is permitted to marry her.
  67. Because no man would spend money on the ransom of a captive with the object of marrying her unless he was convinced of her chastity.
  68. In the absence of any special effort on his part to ransom the woman while she was captive he is suspected of tendering false evidence in a desire to gratify his passions.
  69. V. supra p. 200, n. 20.
  70. I. e., that R. Judah ruled: 'He may not marry her'.
  71. That a captive retains her status of chastity.
  72. That a captive loses the status of a virgin.
  73. On what grounds do they draw a distinction between the man who ransoms a captive and the one who only tenders evidence in her favour?
  74. Cf. supra note 4.
  75. Lit., 'put his eyes on her'. Cf. supra note 5.