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כתובות 38
Soncino English Talmud · Berean Standard Bible
that this applied only where murder had been committed in the course of an upward movement, because no atonement is allowed when such an act was committed unwittingly. but that where murder was committed in the course of a downward movement, which [is an offence that] may be atoned for if committed unwittingly, a monetary fine may be received from him and thereby he may be exempted [from the death penalty]. Hence we were taught [that in no circumstances may the death penalty be commuted for a monetary fine]. Said Raba to him, Does not this follow from what a Tanna of the School of Hezekiah [taught]; for a Tanna of the School of Hezekiah taught: He that smiteth a man [was placed in juxtaposition with] And he that smiteth a beast [to indicate that just] as in the case of the killing of a beast no distinction is made whether [the act was] unwitting or presumptuous, whether intentional or unintentional, whether it was performed in the course of a down ward movement or in the course of an upward movement, in respect of exempting him from a monetary obligation but in respect of imposing a monetary obligation upon him, so also in the case of the killing of a man no distinction is to be made whether [the act was] unwitting or presumptuous. whether intentional or unintentional, whether it was performed in the course of a downward movement or in the course of an upward movement, in respect of imposing upon him a monetary obligation but in respect of exempting him from any monetary obligation? — But, said Rami b. Hama, [one of the texts was] required [to obviate the following assumption]: It might have been presumed that this applied only where a man blinded another man's eye and thereby killed him, but that where he blinded his eye and killed him by another act a monetary fine must be exacted from him. Said Raba to him: Is not this also deduced from [the statement of] another Tanna of the School of Hezekiah; for a Tanna of the School of Hezekiah [taught:] Eye for eye [implies] but not an eye and a life for an eye? — [This]. however, [is the explanation], said R. Ashi: [One of the texts was] required [to obviate the following assumption]: It might have been presumed that since the law of a monetary fine is an anomaly which the Torah has introduced, a man must pay it even though he also suffers the death penalty. Hence we were told [that even a monetary fine may not be imposed in addition to a death penalty]. But according to Rabbah, who said that it is an anomaly that the Torah has introduced by the enactment of the law of a monetary fine [and that therefore an offender] must pay his fine even though he is also to be killed, what application can be made of the text 'None devoted…'? — He holds the view of the first Tanna who [is in dispute with] R. Hanania b. 'Akabia. MISHNAH. A GIRL WHO WAS BETROTHED AND THEN DIVORCED IS NOT ENTITLED, SAID R. JOSE THE GALILEAN, TO RECEIVE A FINE [FROM HER VIOLATOR]. R. AKIBA SAID: SHE IS ENTITLED TO RECEIVE THE FINE AND, MOREOVER, THE FINE BELONGS TO HER. GEMARA. What is R. Jose the Galilean's reason? — Scripture said, That is not betrothed [is entitled to a fine], one, therefore, who was betrothed is not entitled to a fine. And R. Akiba? — [In the case of a girl] that is not betrothed [the fine is given] to her father but if she Was betrothed [the fine is given] to herself. Now then, [the expression,] A damsel [implies] but not one who is adolescent; could it here also [be maintained] that [the fine is given] to herself? [Likewise the expression] virgin [implies] but not one who is no longer a virgin; would it here also [be maintained] that [the fine is given] to herself? Must it not consequently be admitted [that the exclusion in the last mentioned case] is complete, and so here also it must be complete? — R. Akiba can answer you: The text of 'Not betrothed' is required for [another purpose]. as it was taught: 'That is not. betrothed' excludes a girl that was betrothed and then divorced who has no claim to a fine; so R. Jose the Galilean. R. Akiba, however, ruled: She has a claim to a fine and her fine [is given] to her father. This is arrived at by analogy: Since her father is entitled to have the money of her betrothal and he is also entitled to have the money of her fine [the two payments should be compared to one another]: As the money of her betrothal belongs to her father even after she had been betrothed and divorced, so also the money of her fine should belong to her father even after she had been betrothed and divorced. If so what was the object of the Scriptural text, 'That is not betrothed'? It is free for the purpose of a comparison with it and an inference from it by means of a gezerah shawah.' Here it is said, 'That is not betrothed' and elsewhere it is said, That is not betrothed, as here [the fine is that of] fifty [silver coins] so is it fifty [silver coins] there also; and as there [the coins must be] shekels so here also they must be shekels. What, however, moved R. Akiba [to apply the text] of 'That is not betrothed' for a gezerah shawah and that of 'Virgin' for the exclusion of one who was no longer a virgin?
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Might [not one equally well] suggest that 'Virgin' should be applied for the gezerah shawah and 'That is not betrothed' [should serve the purpose of] excluding a girl that was betrothed and divorced? — It stands to reason [that the text of] 'That is not betrothed' should be employed for the gezerah shawah, since such a girl is still designated. A damsel that is a virgin. On the contrary; [should not the expression of] 'Virgin' be applied for the gezerah shawah, since [a non-virgin] may still be described as one 'That is not betrothed'? — It stands to reason [that R. Akiba's first view is to be preferred, since] the body of the one had undergone a change while that of the other had not. As to R. Jose the Galilean, whence does he draw that logical inference? — He derives it from the following where it was taught: He shall pay money according to the dowry of virgins [implies] that this [payment] shall be the same sum as the dowry of the virgins and the dowry of the virgins shall be the same as this. Does not a contradiction arise between the two statements of R. Akiba? — [The respective statements represent the opinions of] two Tannaim who differ as to what was the ruling of R. Akiba. [The ruling of] R. Akiba in our Mishnah presents no difficulty since the gezerah shawah does not altogether deprive the Scriptural text of its ordinary meaning. According to R. Akiba's ruling in the Baraitha, however, does not the gezerah shawah completely deprive the Scriptural text of its ordinary meaning? — R. Nahman b. Isaac replied. Read in the text: That is not a betrothed maiden. [But] is not a betrothed maiden one [for the violation of whom] the penalty of stoning [but not fine] is incurred? — It might have been assumed that, since it is an anomaly that the Torah had introduced by the enactment of the law of a monetary fine, an offender must, therefore, pay his fine even if he is also to be executed. According to Rabbah, however, who said that it was an anomaly that the Torah had introduced by the' enactment of the law of a monetary fine and that an offender must pay his fine even if he is also to be executed, what can be said [in reply to the objection raised]? — He adopts the same view as that of R. Akiba in our Mishnah. Our Rabbis taught: To whom is the monetary fine [of an outraged virgin to be given]? — To her father. Others say: To herself. But why 'to herself'? — R. Hisda replied: We are dealing here with the case of a virgin who was once betrothed and is now divorced, and they differ on the principles underlying the difference between the view of R. Akiba in our Mishnah and his view in the Baraitha. Abaye stated: If he had intercourse with her and she died, he is exempt [from the fine], for in Scripture it was stated, Then the man … shall give unto the damsel's father, but not unto a dead woman's father. This ruling which was so obvious to Abaye formed the subject of an enquiry by Raba. For Raba enquired: Is the state of adolescence legally attainable in the grave or not? 'Is the state of adolescence attainable in the grave and [the fine, therefore,] belongs to her son, or is perhaps the age of adolescence not attainable in the grave and [the fine, therefore,] belongs to her father?
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