The Eri B. Sitt Edition, an audio series on the Talmud Bavli. Massechet Ketubot has been dedicated by our dear friend, Mr. Elliot Shasho. May Hashem preserve and sustain him. May the merit of studying Massechet Ketubot stand for him. With God’s help, may this year be a good and blessed year for him, bringing happiness, wealth, honor, and peace in his home, and may he continue to support Torah and all holy projects. Amen.
Today’s daf is being studied on the page where we are holding, two lines from the bottom. Let us first review the discussion in which we are engaged.
There is a very important, fundamental dispute between Rabbi Yohanan and Resh Lakish concerning the laws of receiving lashes and making monetary payment, or receiving the death penalty and making monetary payment. We know that the Rabbis hold that a person does not receive lashes and make payment, and does not receive the death penalty and make payment. When two punishments apply simultaneously, he does not receive both; he receives either lashes or the death penalty.
Everyone agrees to that basic principle. The question is whether it applies only in a case in which the person is actually liable for lashes—for example, when he was given a formal warning. Once he was warned, everyone agrees that if he is liable both for lashes and for monetary payment, he receives the lashes and does not pay.
The dispute concerns a case in which he was not warned. Resh Lakish says that it does not matter. Since the act is inherently one for which lashes could apply, even though he was not warned and therefore will not actually receive lashes, he is still exempt from payment. Any act that is subject to lashes exempts the person from payment, whether or not he was warned.
Rabbi Yohanan says, “No, that is true only when he was warned and is liable for lashes. In a case where he was not warned, he must pay.” This is the question the Gemara asks: “Challenge Resh Lakish to Rabbi Yohanan.” Rabbi Yohanan maintains that the exemption applies specifically when the person was warned. In that case, he is liable for lashes and therefore does not pay. If he was not warned, however, he pays.
The Gemara brings the verse, “So that there will be no fatality.” Two men were fighting, one of them struck a woman, and she miscarried. The Torah says that if there was no fatality, the person must pay monetary compensation. The Gemara asks whether “fatality” means an actual death. If the woman did not die, he must pay; but if she died, there is no payment. This would indicate that even when there was no warning, once she dies, he is exempt from payment, because this is a case that is potentially subject to the death penalty. That would support Resh Lakish.
Rabbi Yohanan answers that “fatality” means a legal liability for death. The verse exempts him only in a case where, after the woman’s death, he would be liable for the death penalty—that is, where he had been warned. If she died but there had been no warning, he would still have to pay.
There is another version of the discussion in which the challenge is reversed: Rabbi Yohanan challenges Resh Lakish. The verse says that when there is no fatality, the person must pay. Does this not mean that when there is no legal liability for death—because there was no warning—he must pay? This would show that there is a distinction between a case with a warning and a case without one.
Resh Lakish would answer that the verse refers to an actual death. Once the woman dies, the person is exempt from payment, because there is a potential death penalty in this case even if he was not warned.
Abaye now returns to the matter and asks: Is there really an authority who says that a person who commits an act that carries the death penalty unintentionally is liable for payment? Are you suggesting that if a person commits an act unintentionally that would carry the death penalty, then, because he was not warned, he should be liable for payment? That is in fact how Rabbi Yohanan is being understood.
We have a teaching from the school of Rabbi Chizkiyah. It compares one who strikes a person with one who strikes an animal. Two adjacent verses discuss these cases: one concerns a person who strikes another person and kills him, and the other concerns a person who strikes an animal and kills it.
Just as, in the case of an animal, we make no distinction between whether the killing was unintentional or intentional, whether he intended to kill that particular animal or another one, and whether he struck it with the axe on its downward motion or its upward motion, he is always liable to pay. A person never receives the death penalty for killing an animal; he always pays, regardless of the circumstances.
The distinction between the downward and upward motions applies to a person who kills another person: whether he must go into exile depends on the motion with which he struck him. But in the case of an animal, there is no such distinction. He is never exempt from payment; whenever he kills an animal, he must pay.
The teaching continues: So too, in the case of one who strikes a person and kills him, we do not distinguish between an unintentional act and an intentional act, between an act done with or without intent, or between a downward and an upward motion. In all such cases, the person is exempt from monetary payment.
The comparison is understood as follows: Just as in the case of striking an animal the person is always liable for payment and exempt from the death penalty, so, when he kills a person, since there is a potential death penalty, he is always exempt from payment. This supports Resh Lakish: since the act is of a type that is subject to the death penalty, the person is exempt from payment.
When the Sages came from the Land of Israel, they said that no one disputes the case of a person who is liable for the death penalty. Even when the act was unintentional, he is exempt from payment. The dispute exists only in the case of liability for lashes. Rabbi Yohanan says that if the person was not warned, he is liable to pay, whereas Resh Lakish says that he is exempt.
The reason is that the comparison between a person and an animal was stated only with respect to the death penalty. We do not extend the comparison to a case in which the person was not warned for an act carrying lashes. Resh Lakish, however, says that even there he is exempt, because the Torah explicitly compares liability for lashes to liability for the death penalty.
The comparison is made through the repeated expression “wicked.” With regard to the death penalty, the Torah says that the wicked person is to be put to death, and with regard to lashes, it says that the wicked person is to be beaten. The repeated expression teaches that the two cases are comparable. Just as in the case of the death penalty, the person does not pay even when the death penalty is not actually administered, so too in the case of lashes, he does not pay.
The Gemara then offers a different formulation. It says that the verse concerning striking an animal is compared to the verse concerning striking a person. Just as in the case of an animal the person always pays and never receives the death penalty, so, in the case of lashes, according to Resh Lakish, the person receives lashes and never pays.
The Gemara challenges this explanation. The verse does not use the same expression in the two cases. The response is that the comparison is not dependent on the precise word itself; it is based on the subject matter. The Torah juxtaposes the case of one who injures another person with the case of one who injures an animal. Just as an animal is a case of payment, so too the Torah teaches a rule regarding the human case.
The Gemara raises another difficulty. The verse concerning a person who injures another person refers to a case of injuring someone, and we learned earlier that an injury is an exceptional case: even according to the opinion that generally says a person receives lashes rather than making payment, in the case of injuring another person he makes payment.
If so, how can this verse be used to teach that a person is exempt from payment because he is subject to lashes? The case of injuring another person is specifically one in which he pays.
The Gemara answers that the verse could be referring to a case in which the injury was worth less than a perutah, the minimum amount that creates a monetary obligation. In such a case there is no monetary payment, and there can be lashes.
The Gemara objects that this is not truly a case of lashes and payment, because there is no monetary obligation at all. We are looking for a case in which the person is exempt from payment because the act is subject to lashes.
The Gemara therefore gives a final answer. The verse concerning one who strikes a person refers to a case in which, at the time he struck his friend, the injury itself was not worth a perutah, so there was no monetary obligation for the injury. At the same time, however, he tore his friend’s garment, and the garment was worth more than a perutah.
Let us examine this carefully. If he had done this intentionally and had received a warning for the lashes, then he would receive lashes for striking his friend and would not have to pay for the garment. Since he is not given two punishments for the same act, he receives only the lashes and is exempt from the monetary payment for the garment.
What, then, does the verse teach? It teaches that just as in the case of striking an animal we do not distinguish between the various forms of the act, so too in this case we do not distinguish based on whether the person was warned. Since, at the time he caused the monetary damage, he was performing an act that was subject to lashes, he is exempt from payment.
Let us review the explanation of Rashi. At the time that he struck his friend, if he had been warned, he would receive lashes for the injury and would be exempt from payment for the garment. The same applies whether or not he was warned. If he was not warned, he would not receive lashes, but he is nevertheless exempt from payment because of the comparison that teaches that there is no distinction. Since he committed the act at a time when he was potentially liable for lashes, he is exempt from the monetary payment.
That is clear in the case where he was warned: he receives lashes for striking his friend. According to the teaching from the school of Rabbi Chizkiyah, however, he is exempt from payment even when he was not warned.
According to the teaching from the school of Rabbi Chizkiyah, which compares striking a person with striking an animal, the rule is that just as payment always applies in the case of an animal, so, when a person kills another person, payment never applies. The principle is that whenever there is a potential death penalty, there is no monetary payment, even when the warning was not given.
The Gemara challenges this understanding: Who says that the verse concerning the animal is speaking about a weekday, when there is no death penalty involved? Perhaps it is speaking about an animal killed on the Sabbath. In that case, there would be a distinction. If a person killed the animal on the Sabbath after receiving a warning, he would be liable for the death penalty, and because of the principle that one who is liable for two punishments receives the more severe one, he would not pay. The case in which the verse says that he pays could then be one in which he was not warned. Since there was no death penalty, he would owe the money.
If so, the verse would actually show that we distinguish between a case with a warning and a case without one. When there was a warning, the person receives the death penalty and does not pay; when there was no warning, he pays.
The Gemara answers that the verse must be referring to a weekday. If it were speaking about the Sabbath, then in a case where there was a warning, the person would receive the death penalty and would not pay, while in a case without a warning he would pay. That would create a distinction that the verse does not indicate. Therefore, the verse is speaking about a person who killed an animal on an ordinary weekday, when there is no death penalty. In that case, regardless of whether he was warned or not, there is always a monetary obligation.
Similarly, when the verse discusses one who strikes a person, it teaches that the circumstances do not matter: whether he was warned or not, there is no monetary payment. The rule is that whenever there is a potential death penalty, there is no payment, whether or not the warning was actually given.
Rav Papa now says that this difficulty applies to Abaye, but not to Rava. According to Rava, there is a special principle concerning a penalty. Ordinarily, when a person is liable both for the death penalty and for payment, he does not receive both. A penalty, however, is a novel obligation established by the Torah, and therefore, in a case involving a penalty, the person can receive the death penalty and still be required to pay.
Rava brought proofs for this from cases such as a person who stole a kid on a weekday and then slaughtered it on the Sabbath. We say that he must pay the fourfold or fivefold payment even though he is liable for the death penalty for slaughtering on the Sabbath. In cases involving a penalty, the rule can therefore be that the person receives the death penalty and still makes payment.
According to Rava, the Gemara asks, whose opinion is reflected in our Mishnah? There appears to be a contradiction between the Mishnah in Massechet Ketubot and the Mishnah in Massechet Makkot. In Massechet Ketubot, we learned that if a person has relations with his sister, he must pay the penalty. In Massechet Makkot, we learned that for the same act he receives lashes.
Perhaps our Mishnah follows the opinion of Rabbi Meir, as Resh Lakish answered. Rabbi Meir holds that a person can receive lashes and still make payment. That would explain why the person pays the penalty and receives lashes.
But there is still a difficulty. Later, our Mishnah discusses a person who has relations with his daughter and says that he is exempt from the penalty because he is liable for the death penalty. According to Rabbi Meir, however, a person receives the death penalty and still makes payment. If so, the Mishnah cannot follow Rabbi Meir, because it says that in the case of one who has relations with his daughter, he receives the death penalty and does not pay.
Let us pause and clarify the question. This difficulty is being raised according to Rava, because Rava maintains that in a case involving a penalty, a person can receive the death penalty and still make payment. The question is therefore: Who is the author of our Mishnah?
According to Resh Lakish, there is no difficulty. Rashi explains that the case of one who has relations with his daughter is different. Resh Lakish understands the case brought elsewhere—of a person who stole an animal and slaughtered it on the Sabbath—as involving one person who stole the animal and another person who slaughtered it. Since the monetary payment is returned to the thief, the principle that one cannot receive two punishments does not create the same difficulty.
But in the case of one who himself both stole and slaughtered the animal, the principle that one who is liable for two punishments receives only the more severe punishment would apply. Thus, even according to the position that in certain penalty cases a person can receive the death penalty and still make payment, the details of the case must be carefully distinguished.
Perhaps the Mishnah follows the opinion of Rabbi Nechunya ben HaKanah. We learned earlier that Rabbi Nechunya ben HaKanah agrees with Rabbi Meir in maintaining that a person receives lashes and makes payment. His position was stated regarding a case in which a person sets fire to his friend’s field on Yom Kippur, where he is exempt from payment because he is liable for excision. Similarly, if he sets fire to his friend’s field on the Sabbath, he is exempt from payment because of the punishment connected with the Sabbath.
That was the teaching we learned earlier: he is exempt from payment because he is liable for excision on Yom Kippur, and this was learned through an analogy that equates excision with the ordinary death penalty. According to Rabbi Nechunya ben HaKanah, however, the principle was stated only with respect to excision and the death penalty. Regarding lashes, he holds that the person receives lashes and makes payment.
So the Gemara asks: If you want to say that our Mishnah follows Rabbi Meir, perhaps it follows Rabbi Nechunya ben HaKanah. But there is a difficulty in the case of his sister. Our Mishnah says that one who has relations with his sister must pay the penalty. According to Rabbi Nechunya ben HaKanah, it should not be only a penalty; he should also receive lashes.
The relationship with one’s sister carries liability for excision. According to Rabbi Nechunya ben HaKanah, as in the case of burning a field on Yom Kippur, a person who is liable for excision is exempt from payment. Why, then, does our Mishnah say that one who has relations with his sister must pay the penalty? That does not fit Rabbi Nechunya ben HaKanah.
Perhaps the Mishnah follows the opinion of Rabbi Yitzhak. Rabbi Yitzhak disputes the teaching in Massechet Makkot and maintains that in a case involving excision there are no lashes. In other words, when a person commits a transgression carrying excision, he does not receive lashes for it.
Rabbi Yitzhak holds that in a transgression carrying excision, the person still makes payment. Thus, in the case of one who has relations with his sister, he is liable for the penalty because there are no lashes, and the excision does not exempt him from payment. That would explain the case of the sister.
But then there is a difficulty in the case of a woman of illegitimate status. Our Mishnah says that one who has relations with such a woman is liable for the penalty. According to Rabbi Yitzhak, however, this case involves lashes, and where lashes apply, the person should be exempt from the penalty. Thus, the Mishnah cannot straightforwardly follow Rabbi Yitzhak either.
The basic question according to Rava is therefore: Who is the author of our Mishnah? One possible way out is to say that it follows Rabbi Yohanan. Rabbi Yohanan holds that the exemption applies only when the person was warned. If the act carries lashes but he was not warned, then he pays. In that way, one could explain the Mishnah as referring to a case in which there was no warning.
According to this approach, the Mishnah in Massechet Makkot would be discussing a case in which there was a warning, while our Mishnah would be discussing a case in which there was no warning. That would answer the contradiction according to Rabbi Yohanan.
Rav Matna says to Abaye: Resh Lakish explicitly maintains that the Torah compares liability for lashes with liability for the death penalty. Just as, in a case of liability for the death penalty, there is no payment whether or not there was a warning, so too, in a case of liability for lashes, there is no payment whether or not there was a warning.
The Gemara then asks: Which Tanna disputes this position? Rabbi Nechunya ben HaKanah agrees that a person who is liable for excision can still make payment, so who is the Tanna who holds that there is a monetary obligation?
The Gemara answers: It could be Rabbi Meir, who says that a person receives lashes and makes payment. Alternatively, it could be Rabbi Yitzhak, who holds that there are no lashes in a case of excision. Since there are no lashes in a case carrying excision, excision does not exempt the person from payment. Thus, excision does not exempt him from payment; lashes do, but there are no lashes in a case of excision, and therefore the person pays.