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Babylonian Talmud: Tractate Kethuboth
WHAT IS MEANT BY 'MUST DRINK OUT OF HIS POT' etc.? R. Kahana said, I submitted the following argument before R. Zebid of Nehardea:6 Why should not the positive commandment7 supersede the negative one?8 And he replied to me: 'Where do we say that a positive commandment supersedes a negative one? [Only in a case], for instance, like circumcision in leprosy.9 since otherwise it would be impossible to fulfil the positive commandment, but here, if she should say that she did not want [the man for a husband], would [the question of the performance of] the positive commandment7 ever have arisen?'10
GEMARA. Rabbah b. Bar Hana stated in the name of R. Johanan: R. Eleazar made his statement13 on the lines of the view of his master R. Akiba who ruled: She14 is entitled to receive the fine, and, moreover, the fine belongs to her. How is this15 inferred?16 — As it was stated, IF AN ORPHAN … ANY MAN WHO VIOLATES HER, SAID R. ELEAZAR, IS LIABLE [TO PAY THE STATUTORY FINE] BUT THE MAN WHO SEDUCES HER IS EXEMPT, [the difficulty arises: Is not the case of] an orphan self-evident?17 Consequently it must be this that we were taught: A girl WHO WAS BETROTHED AND THEN DIVORCED has the same status as AN ORPHAN. As [the fine of] an orphan belongs to the orphan herself so does that of a girl who was betrothed and then divorced belong to the girl herself.
R. Zera said in the name of Rabbah b. Shila who said it in the name of R. Hamnuna the Elder who had it from R. Adda b. Ahabah who had it from Rab: The halachah is in agreement with the ruling of R. Eleazar. Rab [in fact] designated R. Eleazar18 as the happiest19 of the wise men.
MISHNAH. WHAT IS [THE COMPENSATION THAT IS PAID FOR] INDIGNITY?20 ALL DEPENDS ON THE STATUS OF THE OFFENDER AND THE OFFENDED.
THE STATUTORY FINE22 IS THE SAME FOR ALL, AND ANY SUM THAT IS FIXED PENTATEUCHALLY REMAINS THE SAME FOR ALL.
GEMARA, Might it not be suggested that the All-Merciful intended the fifty sela'23 to cover all the forms of compensation?24 — R. Zera replied: [If that were so] it would be said, 'Should one who had intercourse with a princess pay fifty and one who had intercourse with the daughter of a commoner also pay only fifty?'25 Said Abaye to him: If so, the same might be argued in respect of a slave:26 'Should [compensation for] a slave who perforates pearls be thirty [and that for] one who does
needlework also be thirty?'1 — This, however, said R. Zera, [is the proper explanation]: If two men had intercourse with her, one in a natural, and the other in an unnatural manner, it would be argued,2 'Should one who had intercourse with a sound woman pay fifty and one who had intercourse with a degraded woman also pay fifty?'
Said Abaye to him: If so, the same might be argued in respect of a slave: 'Should [compensation for] a healthy slave be thirty [and that for] one afflicted with boils also be thirty?'1 — This, however, said Abaye, [is the explanation]: Scripture said,3 Because he hath humbled her4 [as if to say]: These5 [must be paid] 'because he hath humbled her',' thus it may be inferred that [compensation for] indignity and blemish6 must also be paid.7
Raba replied: Scripture said, Then the man that lay with her shall give unto the damsel's father fifty [shekels of] silver;8 for the gratification of 'lying' [he gives] fifty. Thus it may be inferred that [compensation for] indignity and blemish must also be paid.7
But say [perhaps] that [compensation for indignity and blemish is paid] to her?9 — Scripture said, Being in her youth in her father's house,10 [implying that] all advantages of 'her youth' belong to her father.
[Consider,] however, that which R. Huna said in the name of Rab: 'Whence is it deduced that a daughter's handiwork belongs to her father? [From Scripture] where it is said, And if a man sell his daughter to be a maidservant,11 as12 the handiwork of a maidservant belongs to her master so does the handiwork of a daughter belong to her father'. Now what need is there13 [it may be asked, for this text when] the law14 can be deduced from [the text of] 'Being in her youth in her father's house'? Consequently [it must be admitted, must it not, that] that text was written in connection only with the annulment of vows?15 And should you suggest16 that we might infer17 from it,18 [it could be retorted that,] monetary matters19 cannot be inferred from ritual matters.20 And should you suggest16 that we might infer it17 from the law of fine, is [it could be retorted, could it not, that,] monetary payments cannot be inferred from fines?21 — This, however, [is the explanation]:22 it stands to reason that [her compensation should] belong to her father; for if he wished he could have handed her over23 to an ugly man or to one afflicted with boils.24
AS TO BLEMISH, SHE IS REGARDED AS IF SHE WERE A BONDWOMAN TO BE SOLD. How is she assessed? The father of Samuel replied: It is estimated how much25 more a man would pay for a virgin slave than25 for a non-virgin slave to attend upon him. 'A non-virgin slave to attend upon him'! What difference does this26 make to him? — [The meaning], however, [is this: How much more a man would pay for] a virgin slave than25 for a non-virgin slave25 for the purpose of marrying her to his bondman. But even if 'to his bondman', what difference does this27 make to him? — [We are dealing here] with a bondman who gives his master satisfaction.28
MISHNAH. WHEREVER THE RIGHT OF SALE APPLIES NO FINE IS INCURRED29 AND WHEREVER A FINE IS INCURRED NO RIGHT OF SALE APPLIES. IN THE CASE OF A MINOR THE RIGHT OF SALE30 APPLIES BUT NO FINE31 IS INCURRED;32 IN THE CASE OF A DAMSEL33 A FINE IS INCURRED32 BUT NO RIGHT OF SALE30 APPLIES. TO A DAMSEL WHO IS ADOLESCENT34 THE RIGHT OF SALE DOES NOT APPLY NOR IS A FINE INCURRED THROUGH HER.
GEMARA. Rab Judah stated in the name of Rab: This35 is the ruling of R. Meir, but the Sages rule: A fine is incurred32 even where the right of sale36 applies. For it was taught: The right of sale36 applies to a minor from the age of one day until the time when she grows two hairs,37 but no fine is incurred through her.38 From the time she grows two hairs until she comes of age a fine is incurred through her but no right of sales applies; so R. Meir, because R. Meir has laid down: Wherever the right of sale applies no fine is incurred, and wherever a fine is incurred no right of sale applies. The Sages, however, ruled: Through a minor from the age of three years and one day until the time she becomes adolescent a fine is incurred.39 Only a fine [you say] but not the right of sale?40 — Read: A fine also where the right of sale applies.41
R. Hisda said: What is R. Meir's reason?42 Scripture said, And unto him43 she shall be44 for a wife;45 the text thus speaks of a girl who may herself contract a marriage.46 And the Rabbis?47 Resh Lakish replied: Scripture said, na'ar48 which49 implies even a minor.50
R. Papa the son of R. Hanan of Be Kelohith heard this51 and proceeded to report it before R. Shimi b. Ashi [when the latter] said to him: You apply it52 to that law; we apply it to the following: Resh Lakish ruled; A man who has brought an evil name53 upon a minor is exempt,54 for it is said in Scripture, And give them unto the father of the damsel,53 Scripture expressed the term na'arah55 as plenum.56
R. Adda b. Ahabah demurred: Is the reason then57 because the All-Merciful has written na'arah, but otherwise it would have been said that even a minor [was included], surely [it may be objected] it is written in Scripture, But if this thing be true, and the tokens of virginity be not found in the damsel, then they shall bring out the damsel to the door of her father's house, and [the men of her city] shall stone her,58 while a minor is not, is she, subject to punishment?59 — [The explanation,] however, [is that since] na'arah [has been written] here60 [it may be inferred that here only is a minor excluded] but wherever Scripture uses the expression of na'ar even a minor is included.
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