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Babylonian Talmud: Tractate Kethuboth
[But could not one say] also [in the case of] one person who injures another person: If so1 you would abolish [the prohibitory law], 'he shall not exceed, lest, if he should exceed.'2 [And in case of] the Zomemim witnesses too, [one could say]: If so you would abolish [the law]: 'then it shall be, if the guilty man deserve to be beaten.'3 But [you must say that in the case of] the Zomemim witnesses it is possible to fulfil it4 when [the witnesses testified falsely about someone5 that he was] the son of a divorced woman or the son of a haluzah.6 [Similarly in the case of] a person who injured another person, it also is possible to fulfil it7 when he struck him a blow for which no perutah can be claimed as damages.8 [And so you can say] also [with regard to] his sister [that] it is possible to fulfil it9 in the case of his sister who was a mature girl!10 — R. Johanan can answer you: [The verse] for he hath humbled her11 is required for [the same teaching] as of Abaye, for Abaye said: The verse says, 'for he hath humbled her'. This12 [he shall pay] for he has humbled her, [from which we infer], by implication, that there are also [to be paid damages for] shame and deterioration.13 And 'Ulla?'14 — He derives it from a teaching of Raba, for Raba said: The verse says: Then the man that lay with her shall give unto the father of the maiden it fifty shekel of silver;15 [this means that] for the enjoyment of lying [with the maiden he has to pay] fifty [shekel of silver], [and we infer], by implication, that there are also [to be paid damages for] shame and deterioration.
R. Eleazar16 says: The Zomemim witnesses pay money and do not receive lashes, because they cannot be warned.17 Raba said: You may know it [from the following]:18 When shall we warn them? Shall we warn them at first?19 They will [then] say: We have forgotten.20 Shall we warn them during the deed?21 They would [then] withdraw and not give any evidence.22 Shall we warn them at the end?23 [Then] what has been has been.24 Abaye demurred to this: Let us warn them immediately after they have given their evidence?25 R. Aha, the son of R. Ika demurred: Let us warn them at first26 and gesticulate to them [afterwards].27 Later28 Abaye said: What I said29 was nothing. For if one were to say30 that Zomemim witnesses require a warning, [it would follow that], if we have not warned them, we would not kill them.31 [But then] is it possible32 that who they wished to kill without a warning,33 that they should require a warning? Surely, it is necessary34 [that the words be fulfilled,] 'then shall ye do unto him as he has thought to do onto his brother',35 and this would not be [the case here]? To this R. Samma the son of R. Jeremiah demurred. But now [according to your argument], [if the witnesses testified falsely about someone36 that he was] the son of a divorced woman or the son of a haluzah,37 since this case is not included in 'as he had thought etc.' a warning should be required!38 — The verse says: 'Ye shall have one manner of law';39 [this means] a law that is equal for you all.40
R. Shisha, the son of R. Idi, said: That a person who injures another person pays money and does not receive the lashes is derived from this:41 [It is written:] And if men strive together and hurt a woman with child, so that her fruit depart.42 [Upon this] R. Eleazar said: The verse speaks of a striving with intent to kill, for it is written, But if any harm follow, then thou shalt give life for life.43 How shall we imagine this case? If they did not warn him, why should he be killed? Hence it is obvious that he was warned, [and it is held], when one is warned regarding a severe matter44 one also is warned for a light matter,45 and [yet] the Torah says: And yet no harm follow, he shall be surely fined.46 To this R. Ashi demurred: Whence [do we know] that when one is warned regarding a severe matter one also stands warned for a light matter? Perhaps it is not so!47 And even if we will say that it is so, whence [do we know] that [the penalty of] death is severer?
Perhaps [the punishment with] lashes is severer, for Rab said: If they had lashed Hananiah, Mishael and Azariah, they would have worshipped the [golden] image?1 R. Samma the son of R. Assi said to R. Ashi; and some say [that] R. Samma the son of R. Ashi [said] to R. Ashi: Do you not make a distinction between a beating that has a limit2 and a beating that has no limit!3 R. Jacob from Nehar Pekod [also] demurred:4 That is alright according to the Rabbis who5 hold that life6 actually means [life].7 But according to Rabbi,8 who holds that it means money, what is there to say?9 — But, said R. Jacob from Nehar Pekod, in the name of Raba; [it is to be derived] from the following verse:10 [It is written,] 'If he rise again, and walk abroad upon his staff then shall he that smote him be quit.'11 Would it enter your mind that this one12 walks about in the street and that one13 should be killed?14 But it teaches that they imprison him;13 if he12 dies, they kill him; and if he does not die, 'he shall pay for the loss of his time, arid shall cause him to be thoroughly healed.'11 Now how shall we imagine this case? If they did not warn him, why should he be killed? Hence it is plain that they warned him, and [it is held], one who was warned for a severe matter stands warned for the lighter matter and [yet] the All-Merciful says [that if he does not die] 'he shall pay for the loss of his time, and shall cause him to be thoroughly healed'.15 To this R. Ashi asked: Whence [do you know] that one who was warned for a severe matter stands warned for a lighter matter? Perhaps not? And if you will even say that he does [stand warned for the lighter matter], whence [do you know] that death is severer? Perhaps [the punishment with] lashes is severer, for Rab said: If they had lashed Hananiah, Mishael and Azariah, they would have worshipped the [golden] image? R. Samma the son of R. Assi said to R. Ashi, and some say [that] R. Samma the son of R. Ashi [said] to R. Ashi: Do you not make a distinction between a beating that has a limit and a beating that has no limit?16 R. Mari [also] demurred:17 Whence [do you know] that [one smote the other] wilfully18 and 'he shall be quit' [means] from [the penalty of] death? Perhaps [one smote the other] inadvertently19 and 'he shall be quit' [means] from exile?20 The difficulty remains.
Resh Lakish said:21 This22 is the opinion of R. Meir,23 who says: He receives the lashes and pays [the money].24 — If it is according to R. Meir, [then one who violated] his daughter should also [pay the fine]?25 And if you will say that R. Meir holds [that] one may receive the lashes and pay [the money], but does not hold [that] one may receive the death penalty26 and pay [the money]27 — has it not been taught: If he has stolen and slaughtered [an animal] on Sabbath,28 or has stolen and slaughtered [an animal] for idolatry,28 or has stolen an ox that is to be stoned29 and slaughtered it, he shall pay fourfold or fivefold.30 This is the view of R. Meir,31 but the Sages declare him free [from payment]? — Has it not been stated regarding this: R. Jacob said in the name of R. Johanan, and some say [that] R. Jeremiah said in the name of R. Simeon b. Lakish: R. Abin and R. Elai and the whole company [of scholars] said in the name of R. Johanan [that it speaks of a case when] he [who stole the animal] let it be slaughtered by another person. But is it possible that one sins and another one is punished?32 Raba said: The Divine law says: and slaughter it or sell it; [this teaches that] as the sale is [effected] through [the participation of] another person, so [may] the slaughtering [of the animal] be through another person. In the School of R. Ishmael it was taught: [the word] 'or' [is] to include the agent. In the School of Hezekiah it was taught: [the word] 'instead'32 [is] to include the agent. Mar Zutra demurred to this: Is it anywhere to be found that if he does [the deed] himself he is not liable33 and if an agent does it he is liable? He himself [does not pay], not because he is not liable, but because he suffers the severer penalty. [But] if he [who stole the animal] let it be slaughtered by another person, what is the reason of the Rabbis who declare him free [from paying]? — Who are the Sages?
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