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Babylonian Talmud: Tractate Kethuboth

Folio 39a

But is she,1  however, capable of [normal]

     

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    conception?2  Did not R. Bibi recite in the presence of R. Nahman:3  Three [categories of] women may use an absorbent4  in their marital intercourse:5   a minor, and an expectant and nursing mother. The minor,6  because otherwise she might become pregnant and die. An expectant mother,6  because otherwise she might cause her foetus to degenerate into a sandal.7   A nursing mother,6  because otherwise she might have to wean her child [prematurely]8  and this would result in his death.9  And what is [the age of such] a minor?10  From the age of eleven years and one day to the age of twelve years and one day. One who is under,11  or over this age12  must carry on her marital intercourse in a normal manner; so R. Meir. But the Sages said: The one as well as the other carries on her marital intercourse in a normal manner, and mercy13  will be vouchsafed from Heaven, for it is said in the Scriptures, The Lord preserveth the simple.14  And should you reply that this is a case where she conceived when she was a na'arah and gave birth to a child when she was still a na'arah [it could be objected:] Does one give birth to a child within six months [after conception]? Did not Samuel, in fact, state: The period between the age of na'aruth15  and that of bagruth16  is only six months? And should you suggest [that he meant to say] that there were no less but more [than six months] surely [it could be retorted] he used the expression, only'!17  It must be this, then, that he18  asked: Is the state of adolescence19  attainable in the grave20  and her father consequently forfeits21  [his right],22  or is perhaps the state of adolescence not attainable in the grave23  and the father, therefore, does not forfeit24  [his right]?

Mar son of R. Ashi raised the question25  in the following manner: Does death effect adolescence26  or not? — The question stands undecided.27

Raba enquired of Abaye: What [is the legal position if] he28  had intercourse and became betrothed?29  The other replied: Is it written in Scripture. 'Then the man … shall give unto the father of the damsel30  who was not a betrothed woman'?31  Following, however, your line of reasoning, [the first retorted, one can argue in respect] of what was taught: '[If the offender had] intercourse with her and she married [the fine] belongs to herself', is it written in Scripture. 'Then the man … shall give unto the father of the damsel32  who was not a married woman'? — What a comparison!33  There34  [the following analogy may well be made]: Since the state of

     

Dilling Exhibit 139
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    adolescence liberates a daughter from her father's authority35  and marriage also liberates a daughter from her father's authority36  [the two may be compared to one another]: As [in the case of] adolescence, if she attains adolescence after he had intercourse with her,37  [the fine] belongs to the girl herself,38  so also [in the case of] marriage, if she married after he had intercourse with her,37  [the fine] belongs to the girl herself. But as to betrothal, does it completely liberate a daughter from her father's authority? Surely we learned: [In the case of] a betrothed girl39  her father and her husband jointly may invalidate her vows.40

MISHNAH. THE SEDUCER PAYS THREE FORMS [OF COMPENSATION] AND THE VIOLATOR FOUR. THE SEDUCER PAYS COMPENSATION FOR INDIGNITY AND BLEMISH41  AND THE [STATUTORY] FINE, WHILE THE VIOLATOR PAYS AN ADDITIONAL [FORM OF COMPENSATION] IN THAT HE PAYS FOR THE PAIN.

WHAT [IS THE DIFFERENCE] BETWEEN [THE PENALTIES OF] A SEDUCER AND THOSE OF A VIOLATOR? THE VIOLATOR PAYS COMPENSATION FOR THE PAIN BUT THE SEDUCER DOES NOT PAY COMPENSATION FOR THE PAIN. THE VIOLATOR PAYS42  FORTHWITH43  BUT THE SEDUCER [PAYS ONLY] IF HE DISMISSES44  HER. THE VIOLATOR MUST DRINK OUT OF HIS POT45  BUT THE SEDUCER MAY DISMISS [THE GIRL] IF HE WISHES. WHAT IS MEANT BY46  'MUST DRINK OUT OF HIS POT'?

     

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    — EVEN IF SHE IS LAME, EVEN IF SHE IS BLIND AND EVEN IF SHE IS AFFLICTED WITH BOILS [HE MAY NOT DISMISS HER]. IF, HOWEVER, SHE WAS FOUND TO HAVE COMMITTED47  AN IMMORAL ACT OR WAS UNFIT TO MARRY AN ISRAELITE48  HE MAY NOT CONTINUE TO LIVE WITH HER, FOR IT IS SAID IN SCRIPTURE, AND UNTO HIM SHE SHALL BE FOR A WIFE,49  [IMPLYING] A WIFE THAT IS FIT 'UNTO HIM.

GEMARA. [For the] PAIN of what?50  — The father of Samuel replied: For the pain [he has inflicted] when he thrust her upon the ground.

R. Zera demurred: Now then, if he had thrust her upon silk stuffs51  would he for a similar reason52  be exempt? And should you say that the law is so indeed,52  was it not [it may be retorted] taught: 'R. Simeon b. Judah stated in the name of R. Simeon.53  A violator does not pay compensation for the pain [he has inflicted] because

Original footnotes renumbered. See Structure of the Talmud Files
  1. A girl in her minority. In the case under discussion, which refers to a na'arah, who died before she became a bogereth the birth of a child is possible only if conception took place while she was a minor — under twelve years of age.
  2. I. e., one that would result in the birth of a child.
  3. V. Yeb. 12b, 100b, Nid. 45a.
  4. [H] 'hackled wool or flax'.
  5. To prevent conception.
  6. Is permitted the use of an absorbent.
  7. [H], lit., 'a flat fish', i.e., a fish-shaped abortion due to superfetation.
  8. On account of her second conception which causes the deterioration of her breast milk.
  9. [H], so MS.M. Cut. edd. omit.
  10. Who is capable of conception but is exposed thereby to danger.
  11. When no conception is possible.
  12. When pregnancy involves no fatal consequence.
  13. To protect them from danger.
  14. Ps. CXVI, 6; sc. those who are unable to protect themselves. From this it follows that a girl under the age of twelve is incapable of normal conception. How then could it be assumed by Raba that a na'arah (cf. supra p. 215, n. 14) might give birth to a child?
  15. Abstract of 'na'arah', (v. Glos).
  16. Abstract of 'bogereth'.
  17. Which implies 'no more'.
  18. Raba.
  19. V. supra p. 215, n. 12.
  20. And the fine is, therefore, payable to the deceased as if she had been alive. (V. infra 41b).
  21. [H] lit., 'bursts'.
  22. To the fine. As a fine is not inheritable before it has been collected, the father cannot inherit it from his daughter, and the offender is consequently altogether exempt from payment.
  23. And the deceased retains the status of a na'arah.
  24. V. supra note 5.
  25. Attributed (supra 38b ad fin.) to Raba.
  26. I. e., does a na'arah (v. Glos) assume the status of adolescence the moment she dies, and her father consequently forfeits his right to the fine as if she had actually attained her adolescence in her lifetime? The former version of Raba's question differs from this in that it assumes as a certainty, contrary to Abaye's ruling, that death does not effect adolescence, the only doubt being whether adolescence is attained in due course, in the grave. According to this, the latter version, however, Abaye's very certainty is questioned, and the statement (supra p. 215) 'This ruling which was so obvious to Abaye formed the subject of enquiry by Raba' refers to this version.
  27. Teku (v. Glos.)
  28. The offender spoken of in Deut. XXII, 28f.
  29. Before the payment was made. Does the fine still belong to her father or is it now payable to herself?
  30. Deut. XXII, 29.
  31. Of course not. Scripture draws no distinction between the one and the other.
  32. Deut. XXII, 29.
  33. Lit., 'thus, now'.
  34. Marriage.
  35. It is only a minor and a na'arah (v. Glos) over whom a father exercises his authority (v. infra 46b).
  36. The vows of a married woman may be invalidated by her husband only and not by her father.
  37. While she was still a na'arah.
  38. Since it is the 'father of the damsel' to whom the fine is to be paid (v. Deut. XXII, 29) and not the father of the girl who is adolescent.
  39. A na'arah.
  40. V. Ned. 66b and infra 46b; which shews that a father maintains partial control over his daughter as a na'arah even after her betrothal.
  41. This is explained infra.
  42. To the damsel's father.
  43. Even if he marries her.
  44. This is explained infra.
  45. [H], an earthen vessel used as a receptacle for refuse or as a plant pot; i.e., the violator must marry his victim whatever her merits or defects.
  46. Lit., 'how'.
  47. Lit., 'there was found in her'.
  48. Lit., 'to enter into (the congregation of) Israel', on account of her illegitimate or tainted birth.
  49. So lit. Deut. XXII, 29.
  50. Must the violator pay.
  51. A fall which is not painful.
  52. Lit., 'thus also'.
  53. The parallel passage in B.K. 59a has 'Simeon b. Menasya'.

Kethuboth 39b

the woman would ultimately have suffered the same pain from her husband, but they1  said to him: One who is forced to intercourse cannot be compared to one who acts willingly'?2   — [The reference.] in fact,3  said R. Nahman in the name of Rabbah b. Abbuha [is to the] pain of opening the feet, for so it is said in Scripture, And hast opened thy feet to every one that passed by.4  But if so, the same applies to one who has been seduced?5  R. Nahman replied in the name of Rabbah b. Abbuha: The case of one who has been seduced may be compared to that of a person who said to his friend, 'Tear up my silk garments and you will be free from liability'.6   'My'? Are they7

     

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    not her father's?8  — This, however, said R. Nahman in the name of Rabbah b. Abbuha, [is the explanation]: The smart women among them declare that one who is seduced experiences no pain. But do we not see that one does experience pain? — Abaye replied: Nurse9   told me: Like hot water on a bald head.10  Raba said: R. Hisda's daughter11  told me, Like the prick of the blood-letting lancet.12  R. Papa said: The daughter of Abba of Sura11  told me, Like hard crust in the jaws.13

THE VIOLATOR PAYS FORTHWITH BUT THE SEDUCER [PAYS ONLY] IF HE DISMISSES HER etc. WHEN HE DISMISSES HER! Is she then his wife?14  Abaye replied: Read, 'If he does not marry her,15  So it was also taught: Although it was laid down that the seducer pays [the statutory fine] only if he does not marry her, he must pay compensation for indignity and blemish forthwith. And [in the case of] the violator as well as [of] the seducer, she herself or her father may oppose.16

As regards one who has been seduced, this17  may well be granted because it is written in Scripture. If her father will refuse,18  [since from 'refusing']19  I would only [have known that] her father [may refuse], whence [could it be deduced that] she herself [may also refuse]?20  It was, therefore, explicitly stated 'will refuse', implying either of them.21  But as regards a violator, though one may well grant that she [may refuse him since] it is written in Scripture. 'and onto him she shall be22  [which implies]23  only if she is so minded, whence, however, [it may be objected] is it deduced that her father [may also object to the marriage]? — Abaye replied: [Her father was given the right to object] in order that the sinner24  might not gain an advantage.25  Raba replied; It26  is deduced a minori ad majus: If a seducer who has acted against the wish of her father alone may be rejected either by herself or by her father how much more so the violator who has acted both against the wish of her father and against the wish of herself.

Raba did not give the same reply as Abaye, because, having paid the fine, [the offender can] no [longer be described as a] sinner gaining an advantage. Abaye does not give the same reply as Raba [because it may be argued:27  In the case of] a seducer, since he himself may object [to the marriage], her father also may object to it; [but in the case of] a violator, since he himself may not object [to the marriage] her father also may have no right to object to it.

Another Baraitha taught: Although it has been laid down that the violator pays forthwith28  she has no claim upon him29  when he divorces her.30  ['When he divorces her'! Can he divorce her?31  — Read: When she demands a divorce32  she has no claim upon him].29  If he died, the fine is regarded as a quittance for her kethubah.33  R. Jose the son of R. Judah ruled: She is entitled34  to a kethubah for one maneh.35

On what principle do they36  differ? — The Rabbis hold the view that the only reason why37  the Rabbis instituted a kethubah [for a wife was] in order that the man might not find it easy38  to divorce her,39  but [the violator,] surely, cannot divorce her.40  R. Jose the son of R. Judah, however, is of the opinion that this man too might torment her until she says to him, 'I do not want you'.41  THE VIOLATOR MUST DRINK OUT OF HIS POT. Said Raba of Parazika42  to R. Ashi. Consider! [The fines of a violator and a seducer] are deduced from one another.43

Original footnotes renumbered. See Structure of the Talmud Files
  1. The Rabbis who differed from his view.
  2. B.K. 59a. Now if the PAIN referred to was that caused by the thrust the first Tanna would not have spoken of pain in the case of a husband.
  3. Lit., 'but'.
  4. Ezek XVI, 25.
  5. Why then is a seducer exempt from paying compensation for pain.
  6. By her consent to suffer the pain the woman has exempted the man from paying compensation.
  7. The silk garments, sc. her chastity and all it involves (v. infra 46b).
  8. How then could she grant exemption?
  9. Abaye's mother died from childbirth and he was brought up by his nurse (v. Kid. 31b).
  10. Slight but pleasurable pain.
  11. His wife.
  12. [H] 'puncture', [H] 'lancer used for blood-letting'.
  13. V. Jast. Aliter: 'palate' (Rashi).
  14. Obviously not, since he has not legally married her. How then can the expression of dismissed be used?
  15. Since the woman, her father, or the seducer himself may object to the marriage.
  16. The marriage.
  17. That the girl as well as her father may oppose the marriage.
  18. So lit., Ex. XXII, 16. (E.v. utterly refuse).
  19. If the verb had nor been repeated.
  20. To marry the seducer.
  21. Lit., 'from any place'.
  22. Deut. XXII, 29.
  23. Since it was not stared, 'And he shall take her'.
  24. The violator.
  25. Over the seducer.
  26. Her father's right to oppose the marriage.
  27. Against his a minori inference.
  28. V. Our Mishnah.
  29. In respect of her kethubah.
  30. The fine he pays is regarded as a settlement of her kethubah, though it was Bet father who received the payment.
  31. Of course not, since Scripture stared, He may not put her away all his days (Deut. XXII, 29).
  32. Lit., 'when she goes out'.
  33. Cf. supra n, 7.
  34. Like a woman who married as a widow or divorcee.
  35. V. Glos.
  36. R. Jose the son of R. Judah and the Rabbis.
  37. Lit., 'what is the reason?'
  38. Lit., 'easy in his eyes'.
  39. V. infra 54a.
  40. Cf. supra note 8. Hence no kethubah was necessary.
  41. She too must, therefore, be protected by a kethubah.
  42. Farausag, a district near Bagdad (cf. Obermeyer p. 269).
  43. The former from the latter in respect of 'shekels' and the latter from the former in respect of the number 'fifty' (v supra 38a ad fin.).