Babylonian Talmud: Tractate Kethuboth

Folio 37a

Could R. Judah hold the view that [a female captive] is deemed to have retained her virginity¹  when it was, in fact, taught. 'If a woman proselyte discovered [some menstrual] blood²  on [the day of] her conversion it is sufficient, R. Judah ruled, [to reckon her Levitical uncleanness from] the time she [discovered it].³  R. Jose ruled: She is subject to the same laws⁴  as all other women⁵  and, therefore, causes uncleanness [retrospectively] for twenty-four hours,⁶  or [for the period] intervening between⁷  [her last] examination and⁷  [her previous] examination.⁸  She must also wait⁹  three months;¹⁰  so R. Judah. but R. Jose permits her to be betrothed and married at once'?¹¹  — The other replied: You are pointing out a contradiction between a proselyte and a captive [who belong to totally different categories, since] a proselyte does not protect her honour while a captive does protect her honour.

A contradiction, however, was also pointed out between two rulings in relation to a captive.¹²  For it was taught: Proselytes,¹³  captives¹³  or slaves¹³  who were ransomed, or proselytized. or were manumitted, must wait three months¹⁴  if they were older than three years and one day; so R. Judah. R. Jose permits immediate betrothal and marriage.¹⁵  [The other] remained silent. 'Have you'. he said to him, 'heard anything on the subject?' — 'Thus', the former replied. 'said R. Shesheth: [This is a case] where people saw that the captive was seduced'. If so¹⁶  what could be R. Jose's reason? — Rabbah replied: R. Jose is of the opinion that a woman who plays the harlot makes use of an absorbent in order to prevent conception. This¹⁷  is intelligible in the case of a proselyte, who, since her intention is to proselytize, is careful.¹⁸  It¹⁷  is likewise [intelligible in the case of] a captive [who is also careful]¹⁸  since she does not know whither they would take her.¹⁹  It¹⁷  is similarly [intelligible in the case of] a bondwoman [who might also be careful]¹⁸  when she hears from her master.²⁰  What, however, can be said in the case of one who is liberated on account of the loss of a tooth or an eye?²¹  And were you to suggest that R. Jose did not speak²²  of an unexpected occurrence,²³  [it might be retorted,] there is the case of a woman who was outraged or seduced²⁴  which may happen unexpectedly and yet it was taught: A woman who has been outraged or seduced must wait three months; so R. Judah, but R. Jose permits immediate betrothal and marriage!²⁵  — The fact, however, is, said Rabbah,²⁶  that R. Jose is of the opinion that a woman who plays the harlot turns over in order to prevent conception.²⁷  And the other?²⁸  — There is the apprehension that she might not have turned over properly.²⁹

FOR IT IS SAID IN SCRIPTURE, AND YET NO HARM FOLLOW HE SHALL BE SURELY FINED etc. Is, however, the deduction³⁰  made from this text?³¹  Is it not in fact made from the following text:³²  According to the measure of his crime,³³  [which implies]³⁴  you make him liable to a penalty³⁵  for one crime, but you cannot make him liable [at the same time] for two crimes?³⁶  — One [text³⁷  deals] with [the penalties of] death and money and the other³⁸  with [the penalties of] flogging and money.

And [both texts³⁹  were] needed. For if we had been told [only of that which deals with the penalties of] death and money³⁷  it might have been assumed [that the restriction⁴⁰  applied only to the death penalty] because it involves loss of life,⁴¹  but not [to the penalties of] flogging and money where no loss of life is involved. And if we had been told only of flogging and money³⁸  it might have been assumed [that the restriction⁴⁰  applied only to flogging] because the transgression for which flogging is inflicted⁴²  is not very grave,⁴³  but not [to the penalties of] death and money where the transgression for which the death penalty is imposed⁴²  is very grave.⁴⁴  [Hence it was] necessary [to have both texts].

According to R. Meir, however, who ruled: 'A man may be flogged and also ordered to pay'.⁴⁵  what need was there for the two texts?⁴⁶  — One⁴⁷  deals with the penalties of death and money

1. Cf. supra p. 199. n. 1.
2. Only the menstrual blood of an Israelite woman or of one who was converted to the Jewish faith causes Levitical uncleanness.
3. I. e., only such objects are deemed to be Levitically unclean as have been touched by her after, but not before her discovery.
4. Lit., 'behold she'.
5. Of the Jewish faith.
6. [H], lit., 'from time to time'.
7. Lit., 'from … to'.
8. Whichever period is the less; v. 'Ed. I, 1
9. After her conversion.
10. Before she is permitted to marry. in order to make sure that she was not with child prior to her conversion.
11. From which Baraitha it follows that R. Judah suspects illicit intercourse, contrary to the statement attributed to him in out Mishnah that a captive is presumed to protect her chastity.
12. Lit., 'captive on captive'.
13. In the original the noun appears in the sing.
14. Cf. notes 9 and 10 mutatis mutandis.
15. V. l.c. n. 11.
16. That there is definite evidence against her chastity.
17. Rabbah's explanation.
18. To have an absorbent in readiness in order to avoid conception and the mixing of legitimate, with illegitimate children. Lit., 'she protects herself'.
19. She makes provision (cf. preceding note) against the possibility of being sold to an Israelite master who might set her free.
20. Of her impending liberation.
21. Cf. Ex. XXI, 26f. The bondwoman, surely, could not know beforehand that such an accident would occur.
22. I. e., did not maintain his ruling that a period of three months must be allowed to pass.
23. Lit., 'of itself', when, as in the case of the loss of a tooth or an eye. the woman was not likely to have been possessed of an absorbent.
24. [Rashi does not seem to have read 'seduced' which appears here irrelevant; v. marginal Glosses.]
25. Which shows that even when the unexpected happens R. Jose requires no waiting period.
26. The reading in the parallel passage (Yeb. 35a) is 'Abaye'.
27. No absorbent is needed. Similarly in the case of a liberated captive or slave. Hence the ruling of R. Jose that no waiting period is required.
28. Why does he require a waiting period.
29. And conception might have taken place.
30. That one who suffers the death penalty is exempt from a monetary fine.
31. Lit., 'from here' sc. Ex XXI, 22, cited in our Mishnah.
32. Lit., 'from there'.
33. Deut. XXV, 2, A.V. 'fault', R.V. 'wickedness'.
34. Since the text makes use of the sing.
35. Flogging, spoken of in the text cited.
36. By the imposition of two forms of punishment. V. supra 32b and B.K. 83b, Mak. 4b, 13b.
37. Deut. XXI, 22.
38. Deut. XXV, 2.
39. V. preceding notes.
40. To one penalty.
41. The punishment being so severe it alone is sufficient.
42. Lit., 'its transgression'.
43. It is sufficient, therefore, if only one penalty is inflicted.
44. And two penalties might well have been regarded as a proper measure of justice.
45. Supra 33b. The second text, therefore, cannot be applied as suggested.
46. V. supra notes 6 and 7.
47. Deut. XXI, 22.

and the other¹  with those of death and flogging. And [both texts were] needed. For if we had been told [only of that which deals with the penalties of] death and money it might have been assumed [that the restriction²  applied to these two penalties only] because we must not inflict one penalty upon one's body and another upon one's possessions, but in the case of death and flogging, both of which are inflicted on one's body, it might have been assumed [that the flogging] is deemed to be [but] one pro tracted death penalty and both may, therefore, be inflicted upon one man.³  And if we had been told about death and flogging only [the restriction⁴  might have been assumed to apply to these penalties only] because no two corporal punishments may be inflicted on the same person, but in the case of the penalties of death and money one of which is corporal and the other monetary it might have been assumed that both may be inflicted.⁵  [Both texts were, therefore,] necessary.

What need was there⁶  for the Scriptural text, Moreover ye shall take no ransom for the life of a murderer?⁷  — The All-Merciful has here stated: You shall take no monetary fine from him and thus exempt him from the death penalty.

What was the need⁸  for the Scriptural text, And ye shall take no ransom for him that is fled to his city of refuge'?⁹  — The All-Merciful has here stated: You shall take no monetary fine from him to exempt him from exile.¹⁰

But why two texts?¹¹  — One deals with unwitting, and the other with intentional [murder]. And [both texts] were required. For if we had been told¹²  of intentional murder¹³  only it might have been assumed [that the restriction¹²  applied to this case only], because the transgression for which death is inflicted¹⁴  is grave,¹⁵  but not to the one of unintentional murder where the transgression is not so grave. And if we had been told¹⁶  of unintentional murder¹⁷  is only it might have been assumed [that the restriction¹⁶  applied to this case only] because no loss of life is involved,¹⁸  but not to intentional murder where a loss of life¹⁹  is involved.²⁰  [Both texts were consequently] required.

What was the object²¹  of the Scriptural text, And no expiation can be made for the land for the blood that is shed therein, but by the blood of him that shed it?²²  — It was required for [the following deduction] as it was taught: Whence is it deduced that, if the murderer has been discovered after the heifer's neck had been broken,²³  he is not to be acquitted?²⁴  From the Scriptural text, 'And no expiation can be made for the land for the blood that is shed therein etc.'²⁵

Then what was the need²⁶  for the text, So shalt thou put away the innocent blood front the midst of thee?²⁷  — It is required for [the following deduction] as it was taught: Whence is it deduced that execution by the sword²⁸  must be at the neck? It was explicitly stated in Scripture, 'So shalt thou put away the innocent blood from the midst of thee', all who shed blood are compared to the atoning heifer:²⁹  As its head is cut³⁰  at the neck³¹  so [is the execution of] those who shed blood at the neck.³²  If [so, should not the comparison be carried further]: As there³³  [its head is cut] with an axe and at the nape of the neck so here³⁴  too? — R. Nahman answered in the name of Rabbah b. Abbuha: Scripture said, But thou shalt love thy neighbour as thyself,³⁵  choose for him an easy death.³⁶

What need was there³⁷  for the Scriptural text, None devoted, that may be devoted of men, shall be ransomed?³⁸  — It is required for [the following] as it was taught: Whence is it deduced that, when a person was being led to his execution,³⁹  and someone said, 'I vow to give his value⁴⁰  [to the Temple].' his vow is null and void?⁴¹  [From Scripture] wherein it is said, 'None devoted, that may be devoted of man, shall be redeemed'.⁴²  As it might [have been presumed that the same law applied] even before his sentence had been pronounced⁴³  it was explicitly stated: 'Of men',⁴⁴  but not 'all men'.⁴⁵

According to R. Hanania b. 'Akabia, however, who ruled that the [age] value of such a person⁴⁶  may be vowed⁴⁷  because its price is fixed,⁴⁸  what deduction does he⁴⁹  make from the text of 'None devoted'?⁵⁰  — He requires it for [the following deduction] as it was taught: R. Ishmael the son of R. Johanan b. Beroka said, Whereas we find that those who incur the penalty of death at the hand of heaven⁵¹  may pay a monetary fine and thereby obtain atonement, for it is said in Scripture, If there be laid down on him a sum of money,⁵²  it might [have been assumed that] the same law applied also [to those who are sentenced to death] at the hands of men,⁵³  hence it was explicitly stated in the Scriptures. 'None … devoted⁵⁴  of men shall be redeemed'. Thus we know the law only concerning⁵⁵  severe death penalties⁵⁶  since [they are imposed for offences] which cannot be atoned for⁵⁷  if committed unwittingly;⁵⁸  whence, [however. is it inferred that the same law applies also to] lighter death penalties⁵⁹  seeing that [they are for offences] that may be atoned for⁶⁰  if committed unwittingly?⁶¹  It was explicitly stated in Scripture, 'None devoted'.⁶²  But could not this⁶³  be inferred independently from Ye shall take no ransom⁶⁴  which implies: You shall take no money from him to exempt him [from death]?⁶⁵  What need was there for 'None devoted'? — Rami b. Hama replied: It was required. Since it might have been assumed

1. Deut. XXV, 2.
2. To one penalty.
3. Lit., 'and we shall do on him'.
4. To one penalty.
5. V. note 1.
6. Since it has been laid down that no monetary fine may be imposed upon one who suffers the death penalty.
7. Num. XXXV, 31. It is now assumed that rpuf, (E.V. ransom) signified 'a monetary fine' that is imposed upon the murderer in addition to his major penalty.
8. Since no monetary fine may be imposed upon one who is flogged, much less upon one who must flee to a city of refuge. Alter: Since a monetary fine is not imposed upon a murderer. Cf. [H], and Tosaf. s.v. [H].
9. Num. XXXV, 32. Cf. supra n. 3.
10. Sc. the fleeing to a city of refuge.
11. Num. XXXV, 31 (death and money) and ibid. 32 (exile and money). As both deal with murder, could not the lesson of the one be deduced from the other?
12. That no ransom may be substituted for the death penalty.
13. Num. XXXV, 31.
14. Lit., 'its transgression'.
15. And a monetary fine is no adequate punishment.
16. Cf. supra note 10, mutatis mutandis.
17. Num. XXXV, 32.
18. The murderer's punishment being exile only.
19. The penalty being death.
20. And it might have been presumed that in order to save a human life ransom was allowed to be substituted.
21. In view of Num. XXXV, 31 which forbids ransom to he substituted for capital punishment.
22. Num. XXXV, 33.
23. V. Deut. XXI, 1ff.
24. Though the heifer atones for the people if the murderer is unknown.
25. V. Sot. 47b.
26. In view of the text of Num. XXXV. 33 and the deduction just made.
27. Deut. XXI, 9, forming the conclusion of the section dealing with the ceremony of the 'atoning heifer' (v. note 12).
28. Lit., 'those executed by the sword'.
29. [H], lit., 'the heifer whose neck was broken'.
30. Lit., 'there'.
31. V. Deut. XXI, 4.
32. Sanh. 52b.
33. In the case of the atoning heifer.
34. The execution of a murderer.
35. Lev. XIX, 18.
36. Pes. 75a, Sanh. 52b and 45a.
37. Cf. supra note 9.
38. The conclusion is He shall surely be put to death. Lev. XXVII, 29.
39. Lit., 'goes out to be killed'.
40. Lit., 'his valuation upon me'. Cf Lev. XXVII, 2ff.
41. Lit., 'he said nothing'.
42. Since his life is forfeited his value is nil.
43. Lit., 'his judgment was concluded'.
44. I. e., 'a part of a man', 'an incomplete one', viz. one sentenced to death.
45. I. e., 'a full man', 'one whose life is still in his own hands', viz. a man still on trial before his sentence of death has been pronounced.
46. Who 'was led to his execution'.
47. Lit., 'he is valued', if the person who made the vow used the expression, 'I vow his value' not 'his life'.
48. In Lev. XXVII. Though his forfeited life has no value, his ace (according to Lev. XXVII, 3-7) has a fixed legal value; and the vow, since it did not refer to his life but his value, is interpreted in the Biblical sense and is consequently valid. V. 'Ar. 7b.
49. Who does not apply it to a condemned man.
50. Lit., 'that … what does he do to it?'
51. Offenders who ate not subject to the jurisdiction of a court of law' (v. Sanh. 15b).
52. Ex. XXI. 30.
53. Sc. by a sentence of a criminal court.
54. [H] denotes dedication, excommunication and also condemnation to destruction or death.
55. Lit., 'there is not to me but', 'I have only'.
56. For offences committed intentionally.
57. By a sacrifice.
58. E.g. wounding one's father or stealing a man (V. Ex. XXI, 15f).
59. If they were committed intentionally.
60. By a sacrifice.
61. E.g., idolatry or adultery.
62. 'Ar. 7b.
63. That no ransom may be substituted for the death penalty even in the cases of lighter death penalties.
64. Num. XXXV, 31.
65. The death penalty for murder is considered of a lighter character since, the crime, if committed unwittingly, is atoned for by exile.