We are studying the Gemara in Ketubot, a tractate dedicated by Mr. Elliot Shasher in honor of his wife, Esten, with a blessing for his family. We begin today on 34b, toward the bottom of the page, at the word “Bishlama.”
We were discussing two statements that appear to contradict one another. One statement says that if a man has relations with his sister, he must pay the fine. Another says that if he has relations with his sister, he receives lashes. If he receives lashes, why would he also have to pay? Conversely, if he must pay, why would he receive lashes? How can these two statements be reconciled?
We saw several answers. One answer, given by Reish Lakish, is that the Mishnah follows Rabbi Meir, who maintains that a person can receive lashes and pay. According to Rabbi Meir, there is no difficulty: the man receives lashes and also pays the fine.
Rabbi Yohanan gave a different answer. He said that the Mishnah is discussing a case in which the man was not warned about the lashes. Since there was no warning, he does not receive lashes, and he therefore pays. The other source, which says that he receives lashes, is discussing a case in which he was warned.
According to Rabbi Yohanan, the warning makes the difference. According to Reish Lakish, it does not matter whether he was warned. Reish Lakish maintains that whenever an act belongs to a category for which lashes are potentially administered, that act exempts the person from payment, even if, in the particular case, he will not actually receive lashes because there was no warning.
Rav Ashi explains why Rabbi Yohanan would not answer like Reish Lakish. Rabbi Yohanan prefers not to establish the Mishnah according to Rabbi Meir if it can be explained without doing so. Rabbi Yohanan can explain the Mishnah simply: the man was not warned, so he does not receive lashes and must pay.
Why, then, did Reish Lakish not answer like Rabbi Yohanan? Reish Lakish responds that since, if the man had been warned, he would have been exempt from payment because of the principle of simultaneous punishments, the same exemption applies even when he was not warned. The fact that he does not actually receive lashes does not change the category of the act. Since the prohibition is one for which lashes are potentially imposed, he is exempt from payment.
In other words, according to Reish Lakish, the case leaves him with neither punishment: he does not receive lashes because there was no warning, but he is also exempt from payment because the act belongs to a category punishable by lashes. Therefore, Reish Lakish has no choice but to explain the Mishnah according to Rabbi Meir, who says that a person can receive lashes and pay.
The Gemara then says that Rabbi Yohanan and Reish Lakish are consistent with positions they expressed elsewhere. When Rav Dimi came from the Land of Israel to Babylonia, he reported a dispute concerning a person who performed an act that would ordinarily carry the death penalty, but did so either unintentionally or intentionally without a warning. In either case, he will not actually receive the death penalty. At the same time, the act caused monetary damage.
Rabbi Yohanan says that he must pay. His reasoning is that, in reality, no one is being put to death. Since the death penalty will not actually be administered, there is no reason to exempt him from payment. The person is liable for the monetary obligation, and he is not liable for death.
Reish Lakish says that he is exempt from payment. His position is that the actual administration of the death penalty is not the determining factor. Since the act belongs to a category that carries the death penalty, it exempts him from payment. He will not actually be put to death, but the potential death penalty is enough to create the exemption.
That is the basic distinction between them. Rabbi Yohanan looks at the actual circumstances: if the person is not actually receiving the death penalty, he should pay the monetary obligation. Reish Lakish looks at the potential inherent in the act: if the act could have resulted in the death penalty, it exempts the person from payment, even when the death penalty is not actually imposed.
Reish Lakish then challenges Rabbi Yohanan from the verse discussing two men who are fighting and strike a pregnant woman, causing her to miscarry. The Torah says that if “there is no tragedy,” the offender is punished financially. The Gemara understands this to mean that the woman did not die, and therefore the man must pay for the miscarriage. Reish Lakish asks: does this not imply that if there is a tragedy—meaning that the woman dies—the man is exempt from payment?
If the woman dies, the offender is exempt even if he was not warned and therefore will not actually receive the death penalty. This would seem to prove Reish Lakish’s principle: once the act is one that could carry the death penalty, the monetary obligation disappears, even when the death penalty will not actually be administered.
Rabbi Yohanan can answer that the phrase “there is no tragedy” refers not merely to whether the woman died, but to whether the offender has a legal status of liability for death. If there is no actual legal death penalty applicable to him—because the act was unintentional or because there was no warning—then he must pay, even if the woman died. Only when there is an actual legal death penalty does the monetary obligation disappear.
The Gemara presents another version of the discussion. According to this version, Rabbi Yohanan challenges Reish Lakish from the same verse. Rabbi Yohanan says that “there is no tragedy” means that there is no legal death penalty. When there is no actual legal death penalty, the offender must pay. Reish Lakish answers that the verse means that the woman herself did not die. If she died, the offender is exempt from payment regardless of whether he was legally liable for death. The two versions simply reverse who raises the challenge and who answers it. The underlying issue remains unresolved, because the verse can be explained in either direction.
Rabbah then asks whether there is really anyone who maintains that a person who performed an act punishable by death unintentionally must pay the monetary obligation. The question is directed toward Reish Lakish. Reish Lakish appears to say that even when the person will not receive the death penalty because the act was unintentional or there was no warning, the potential death penalty exempts him from payment.
The Gemara answers with a teaching from the school of Hezekiah. The Torah juxtaposes the laws of damaging an animal and killing a person. Concerning an animal, the Torah says that the offender must pay. Concerning a person, it says that the offender is put to death. The juxtaposition teaches that the rules are parallel.
With regard to an animal, the person must pay whether he acted unintentionally or intentionally, whether he intended to damage that particular animal or damaged another animal by mistake, and whether he struck the animal while moving downward or while moving upward. In every case, the monetary obligation applies.
From this juxtaposition, the school of Hezekiah teaches that the same range of cases applies to a person. Just as there is no distinction in the animal case with respect to the obligation to pay, there is no distinction in the human case with respect to exemption from payment. Whether the person acted unintentionally or intentionally, whether he intended to kill that particular person or not, and whether the blow came during a downward or upward motion, the monetary obligation does not apply. Even where the person will not actually receive the death penalty, the category of the act exempts him from payment.
This appears to be a proof for Reish Lakish and a challenge to Rabbi Yohanan. The verse teaches that the potential death penalty is sufficient to exempt the person from payment. Rabbi Yohanan, however, can respond that the verse is referring to an actual legal death penalty. The phrase “he is put to death” means that the person is actually liable for death. Where the act was unintentional or there was no warning, and therefore there is no actual death penalty, the person would still have to pay.
The Gemara then considers a similar derivation concerning lashes. Rabbi Levi says that the law of lashes is also compared to the law of damaging an animal. One verse says that a person who damages an animal must pay, and another verse discusses a person who injures another person. The Torah thereby connects the two subjects.
At first, the Gemara questions this derivation. Perhaps the comparison is only between the verse about damaging an animal and the verse about killing a person. That comparison concerns the death penalty, not lashes. Where do we see a comparison involving lashes?
Rabbi Levi answers that the relevant verse is the one that says, “A person who injures an animal shall pay,” followed by the verse concerning a person who injures another person. In the latter case, the punishment is lashes. The Torah is therefore comparing a case of lashes to the case of damaging an animal.
Just as the monetary obligation for damaging an animal applies regardless of whether the person acted intentionally or unintentionally, so too, in a case involving lashes, the Torah does not distinguish among the different circumstances. The person is exempt from payment whenever the act belongs to the category of lashes, even if, because of the particular circumstances, he will not actually receive lashes.
The Gemara clarifies that the teaching is not dealing with the ordinary case in which a person injures another person and causes damage worth at least a perutah. In that case, the person must pay the five categories of compensation. The verse is needed for a case in which the physical injury itself is not worth a perutah, and therefore there is no ordinary monetary obligation for the injury, but the person caused some additional damage—for example, he tore the victim’s garment while striking him.
The novelty is that the offender is exempt from paying for the torn garment. Since the act of striking his fellow belongs to a category punishable by lashes, the potential lashes exempt him from the monetary obligation for the garment, even though he will not actually receive lashes because the injury itself was not worth a perutah.
This provides support for the general principle of Reish Lakish: whether the category is a death penalty or lashes, when a monetary obligation accompanies an act that belongs to that category, the potential punishment exempts the person from payment. The case of an injury that is not worth a perutah demonstrates that the exemption applies to a separate monetary loss caused during the act.
The Gemara raises another challenge. Who says that the verse about damaging an animal is speaking about an ordinary weekday case? Perhaps it is speaking about a person who damaged an animal on Shabbat. In that case, there would be a distinction between an unintentional act and an intentional act. If he damaged the animal intentionally on Shabbat after being warned, he would be liable for desecrating Shabbat and would be exempt from payment. If he acted unintentionally, he would have to pay.
If so, the same distinction could apply to the verse concerning a person. When the person killed intentionally after a warning, he would be exempt from payment because of the death penalty. When he acted unintentionally, he would have to pay because he would not receive the death penalty. That would support Rabbi Yohanan rather than Reish Lakish.
The Gemara rejects this possibility. If the verse were speaking about Shabbat, the case of the animal would have to involve a warning, because the verse concerning the person says that he is put to death, which necessarily refers to a warned case. But if the animal case also involved a warning on Shabbat, the person would be exempt from payment rather than obligated to pay. Therefore, the opening verse must be referring to an ordinary weekday case, where the person must pay in every circumstance. The comparison then teaches that, in the human case, the person is exempt from payment in every circumstance.
The Gemara next returns to Rabbah’s earlier explanation concerning Rabbi Meir. Rabbi Meir may maintain that, in an ordinary case, a person does not receive lashes and pay simultaneously. The case of a fine is different because a fine is a novel Torah penalty. The Torah specifically teaches that even though the person is liable for another punishment, he still pays the fine.
This creates a difficulty concerning the two Mishnayot. One Mishnah says that a man who has relations with his daughter is exempt from the fine. If Rabbi Meir says that a fine is paid even together with another punishment, why is he exempt? The answer might be that the later Mishnah is a continuation of the earlier one, and the exemption refers to the death penalty that applies in the case of a daughter.
However, if it is a continuation, there is still a difficulty. The earlier Mishnah says that in certain cases the person pays the fine, while the later Mishnah says that in the case of his daughter he does not pay. How can the two statements be reconciled under Rabbi Meir’s principle?
The Gemara considers Rabbi Nechunya ben HaKannah as another possible author. Rabbi Nechunya ben HaKannah maintains that when an act carries the punishment of excision, the person is exempt from payment, even in a case involving a fine. He agrees with Rabbi Meir that lashes and a fine can coexist, but he distinguishes excision from lashes. Thus, in the case of a daughter, which is a case involving excision, there would be no payment.
That does not solve the entire problem, because the Mishnah also discusses a case involving a mamzeret, where the punishment is lashes. If lashes and a fine can coexist according to Rabbi Nechunya ben HaKannah, why does the Mishnah say that there is a fine? This prevents us from identifying the Mishnah simply with Rabbi Nechunya ben HaKannah.
The Gemara also considers Rabbi Yitzchak. Rabbi Yitzchak maintains that prohibitions carrying excision are not subject to lashes. Therefore, in a case involving excision, such as relations with one’s sister, there is no lashes penalty to exempt the person from payment, and he must pay. This could explain the Mishnah’s ruling concerning one’s sister.
However, Rabbi Yitzchak agrees that a case involving lashes does exempt the person from payment. The Mishnah says that there is a fine in the case of a mamzeret, even though relations with a mamzeret carry lashes. That appears to rule out Rabbi Yitzchak as well.
The Gemara therefore returns to Rabbi Yohanan and Reish Lakish. According to Rabbi Yohanan, the Mishnah can be explained as a case in which the offender was not warned. Since there is no actual punishment, he must pay. The later Mishnah, which says that there is no payment, can be explained as a case in which he was warned and is actually liable for the relevant punishment.
According to Reish Lakish, this explanation is not available, because Reish Lakish says that even a potential punishment exempts the person from payment. The Gemara must therefore identify the Mishnah with Rabbi Meir, who says that a person receives lashes and pays, or otherwise find an authority who permits payment in the particular category under discussion.
The Gemara asks directly: according to Reish Lakish, who is the author of the Mishnah? Reish Lakish says that even a potential obligation to receive lashes exempts a person from payment, yet the Mishnah says that the offender must pay. The answer must be that the Mishnah follows Rabbi Meir, who explicitly allows lashes and payment together.
The Gemara then asks who holds the opposing view to Rabbi Nechunya ben HaKannah, who says that an act carrying excision also exempts the person from payment. The answer may be Rabbi Meir, who maintains that even in such a case the person pays, or Rabbi Yitzchak, who maintains that excision is not connected to lashes and therefore does not exempt the person from payment.
There is a further difficulty with identifying the Mishnah as Rabbi Yitzchak, because of the case of the mamzeret. Since relations with a mamzeret carry lashes, even Rabbi Yitzchak would agree that the lashes exempt the person from payment. The Mishnah, however, says that there is a fine in that case.
The resolution is that the Mishnah’s case involving one’s sister may follow Rabbi Yitzchak, because excision is not connected to lashes and therefore does not exempt the person from payment. The case involving a mamzeret, however, must follow Rabbi Meir, who allows lashes and payment together. The two cases need not have the same author.
The central question in all of these discussions is whether a prohibition carrying excision also carries lashes. Rabbi Yitzchak says that excision is not connected to lashes. Lashes apply to ordinary negative commandments, but they do not apply to a prohibition whose punishment is excision. Therefore, in a case of excision, such as one’s sister or the desecration of Yom Kippur, the person remains liable for payment.
This explains the example of a person who burns his fellow’s field on Yom Kippur. Since the act carries excision but not lashes, the person must pay for the damage. The excision does not exempt him from the monetary obligation. The same reasoning can explain the case of relations with one’s sister.
The Mishnah’s case involving a mamzeret is different, because that prohibition carries lashes. Unless one follows Rabbi Meir, who allows lashes and payment together, the lashes would exempt the person from the fine. Therefore, the Mishnah as a whole cannot necessarily be attributed to one single opinion in every case.
At this point, we have three possible approaches. The Mishnah may follow Rabbi Meir, who says that a person can receive lashes and pay, even when the two punishments arise from the same act. It may follow Rabbi Yohanan, who distinguishes between an actual punishment and a potential punishment and explains the Mishnah as a case without a warning. Or, in the case involving excision, it may follow Rabbi Yitzchak, who says that excision is not connected to lashes and therefore does not exempt the person from payment.
The Gemara then brings a baraita: forbidden relations punishable by a death penalty or by excision carry neither a fine nor compensation for seduction. A girl who exercises her right of refusal also carries neither a fine nor compensation for seduction. An aylonit, who does not develop the signs of puberty, also carries neither a fine nor compensation. Finally, a young woman who was divorced because of a claim that her husband did not find signs of virginity also carries neither a fine nor compensation.
Rashi explains the case of the girl who refuses her marriage. This refers to an orphan whom her mother or brothers married off while she was a minor. Once she reaches the age at which she can exercise the right of refusal, she may reject the marriage. Since she had been married, she no longer has the presumption of being a virgin, and the fine for rape applies only to a virgin. Therefore, she receives neither a fine nor compensation for seduction.
The aylonit is a girl who remains legally a minor until the age of twenty because she does not develop the physical signs of puberty. At twenty, she becomes an adult without ever entering the intermediate status of a young woman. Since the laws of the fine apply specifically to a young woman, an aylonit is not subject to those laws.
The case of a woman divorced because of a claim concerning her virginity refers to a young woman whose husband claimed during the betrothal period that he had not found signs of virginity. The Gemara first asks what the baraita means by “forbidden relations.” Perhaps it refers to actual forbidden relations punishable by death. It then asks what is meant by the next category, “secondary forbidden relations.”
If “secondary forbidden relations” means relationships prohibited by rabbinic decree, the difficulty is that, on a Torah level, the woman should still be eligible for a fine. How could the Sages remove a Torah monetary obligation? The Gemara therefore answers that “forbidden relations” refers to relationships punishable by death at the hands of the court, while “secondary forbidden relations” refers to relationships punishable by excision. These are two levels of Torah-prohibited relationships, not a Torah prohibition followed by a rabbinic prohibition.
The Gemara then discusses the view of Rabbi Shimon ben Menasya, who says that any woman with whom the marriage is legally effective is subject to a fine. According to him, marriage is not effective in cases punishable by death or excision, but it is effective in cases involving ordinary negative commandments. Those women are therefore subject to the fine.
This creates a difficulty for our Mishnah, which includes one’s sister among the cases in which there is a fine, even though relations with one’s sister carry excision. The answer is that our Mishnah cannot follow Rabbi Shimon ben Menasya. It must follow an opinion that maintains that marriage is effective even in a case involving excision, or it must be explained according to one of the earlier approaches regarding the relationship between excision, lashes, and payment.
Another version of the baraita understands “forbidden relations” to include both relationships punishable by death and relationships punishable by excision, while “secondary forbidden relations” refers to relationships involving ordinary negative commandments. According to this interpretation, the baraita follows Rabbi Shimon ben Menasya, who says that there is a fine only where the marriage is legally effective.
Even according to that approach, the Mishnah requires explanation. Since it includes the case of one’s sister, the Mishnah cannot simply follow Rabbi Shimon ben Menasya. We must say either that the Mishnah follows a different authority or that its ruling is based on a different understanding of the effectiveness of marriage in cases involving excision.
The Gemara’s discussion therefore leaves us with the same central distinction: whether the relevant punishment is death, excision, or lashes; whether the punishment is actual or only potential; whether a warning was given; and whether the monetary obligation is an ordinary payment or a fine. Each distinction affects which authority can be identified as the source of the Mishnah’s ruling.
We will stop here.