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כתובות 41
Soncino English Talmud · Berean Standard Bible
MISHNAH. HE WHO DECLARES, 'I HAVE SEDUCED THE DAUGHTER OF SO-AND-SO' MUST PAY COMPENSATION FOR INDIGNITY AND BLEMISH ON HIS OWN EVIDENCE BUT NEED NOT PAY THE STATUTORY FINE. HE WHO DECLARES, 'I HAVE STOLEN' MUST MAKE RESTITUTION FOR THE PRINCIPAL ON HIS OWN EVIDENCE BUT NEED NOT REPAY DOUBLE, FOURFOLD OR FIVEFOLD. [HE WHO STATES,] 'MY OX HAS KILLED SO-AND-SO' OR 'THE OX OF SO-AND-SO' MUST MAKE RESTITUTION ON HIS OWN EVIDENCE. [IF HE, HOWEVER, SAID.] 'MY OX HAS KILLED THE BONDMAN OF SO-AND-SO' HE NEED NOT MAKE RESTITUTION ON HIS OWN EVIDENCE. THIS IS THE GENERAL RULE: WHOEVER PAYS MORE THAN THE ACTUAL COST OF THE DAMAGE HE HAS DONE NEED NOT PAY IT ON HIS OWN EVIDENCE. GEMARA. Why did not he include 'I have violated'? — He implied that this was unnecessary: It was unnecessary [to state that if a man declared,] 'I have violated', in which case he casts no reflection on the girl's character, that he must pay compensation for indignity and blemish on his own evidence, but [if a man declared.] 'I HAVE SEDUCED', in which case he does cast a reflection on her character, it might have been assumed that he does not pay [such compensation] on his own evidence, hence he informs us [that he does]. Our Mishnah does not agree with the following Tanna. For it was taught: R. Simeon b. Judah stated in the name of R. Simeon, [Compensation for] indignity and blemish also a man does not pay on his own evidence because he cannot be trusted to tarnish the character of another man's daughter. Said R. Papa to Abaye: What [is the ruling if] she is satisfied? — It is possible that her father might not be satisfied. And what if her father also is satisfied? — It is possible that the members of her family might not be satisfied. What if the members of her family are also satisfied? — It is impossible that there should not be one somewhere who is not satisfied. HE WHO DECLARES, 'I HAVE STOLEN' MUST MAKE RESTITUTION FOR THE PRINCIPAL etc. It was stated: [In respect of liability for] half damages. R. Papa ruled: It is a civil obligation, but R. Huna the son of R. Joshua ruled: It is penal. 'R. Papa ruled: It is a civil obligation', for he is of the opinion that cattle as a rule cannot be presumed to be safe. Justice, therefore, demands that the owner should make full restitution, but the All-Merciful has shown mercy towards him because his cattle have not yet become mu'ad. 'R. Huna the son of R. Joshua ruled: It is penal', for he is of the opinion that cattle as a rule are presumed to be safe. Justice. therefore, demands that the owner should make no restitution at all, but it was Divine Law that imposed a fine upon him in order that he should exercise special care over his cattle. (Mnemonic: He damaged what, and killed a general rule.) We have learned: The plaintiff and the defendant are involved in the payment. Now according to him who holds that liability for half damages is a civil obligation it is perfectly correct [to say] that the plaintiff is involved in the payment, but according to him who maintains that liability for half damages is penal [it may well be asked:] If he receives that which [in strict justice] is not his due how can he be involved in the payment? — It may apply only to [a loss caused by] a decrease in the value of the carcass. [But have we not] already learned elsewhere [about] the decrease in the value of the carcass? 'To compensate for the damage' means that the owner must dispose of the carcass? — One [of the statements deals] with a tam and the other with a mu'ad. And [both statements are] required. For if [that relating to] a tam only had been made it might have been presumed [to apply to that alone] because the animal has not yet become mu'ad but not to a mu'ad since [in the latter case the owner] has been duly warned. And if [only the statement relating to] a mu'ad had been made it might have been assumed [to apply to that case alone] because the owner pays full compensation but not [to that of] a tam. [Both rulings were consequently] required. Come and hear: What is the difference [in the case of compensation for damages] between a tam and a mu'ad? — In the case of a tam half damages are paid out of its own body, while in the case of a mu'ad full compensation is paid out of the best of the [defendant's] estate. Now if it were the case [that liability for half damage is penal] why was it not also stated that in the case of a tam no compensation is paid merely on one's own evidence whereas in the case of a mu'ad compensation is paid even on one's own evidence? — He recorded [some distinctions] and omitted others. What [else, however], did he omit [that should justify the assumption] that he omitted this distinction also. — He omitted [also the payment of] half kofer. If [the only point not mentioned] is that of half kofer it is no omission,
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since that [Mishnah] may represent the view of R. Jose the Galilean who ruled that [in the case of] a tam half kofer is paid. Come and hear: [A MAN WHO SAID.] 'MY OX KILLED SO-AND-SO' OR 'THE OX OF SO-AND-SO MUST PAY COMPENSATION ON HIS OWN EVIDENCE. Now does not [this statement deal] with a tam? — No; with a mu'ad. What, however, [would be the law] in the case of a tam? Would no liability be established by one's own evidence? Then instead of stating in the final clause, '… THE BONDMAN OF SO-AND-SO HE NEED NOT MAKE RESTITUTION ON HIS OWN EVIDENCE, could not a distinction have been drawn in the very same case, thus: 'This applies only to a mu'ad but in respect of a tam no liability is incurred by one's own evidence'? — The entire [Mishnah prefers to] deal with a mu'ad. Come and hear: THIS IS THE GENERAL RULE: WHOSOEVER PAYS MORE THAN THE ACTUAL COST OF THE DAMAGE HE HAS DONE NEED NOT PAY ON HIS OWN EVIDENCE, from which it follows, [does it not, that if the payment is] less than the cost of the damage, one must pay compensation even on one's own evidence? Do not infer: '[But if payment is] less than the cost of the damage [one must pay … on one's own evidence]', but infer: '[If payment] corresponds to the actual amount of the damage one must pay compensation even on one's own evidence'. What, however, [would be the law if payment were] less than the amount of the damage? Would no liability be established by one's own evidence? Then why was it not stated, 'This is the general rule: Whoever does not pay an amount corresponding to the actual cost of the damage he has done pays no compensation on his own evidence', which would imply [that where compensation is] less or more [it is to be paid on one's own evidence]? — This is indeed a refutation. The law, however, [is that the liability for] half damage is penal. 'A refutation' [of a ruling] and [yet it is] the law? — Yes; for the sole basis of the refutation was that the statement did not run, '[whoever does not pay an amount] corresponding to the actual cost of the damage he has done'; [but such a principle] was not regarded by him as exactly accurate, since there is the liability for half damages [in the case of the damage done by] pebbles Concerning which there is an halachic tradition that the liability is civil. On account of this consideration he did not adopt [the form of the expression suggested]. Now that you have laid down that liability for half damage is penal, the case of a dog that devoured lambs or that of a cat that devoured big hens is one of unusual occurrence and no distress is executed in Babylon. If, however, they were small the occurrence is a usual one and distress is executed. Should the plaintiff, however, seize [the chattels of the defendant] they are not to be taken away from him. Furthermore, if he pleads. 'Fix for me a date [by which the defendant must come with me] to the Land of Israel,' such date must be fixed for him, and if [the defendant] does not go with him he must be placed under the ban. In any case, however, [the defendant] is to be placed under the ban; for he is told, 'Abate your nuisance', in accordance with a dictum of R. Nathan. For it was taught: R. Nathan said, Whence is it derived that a man may not breed a bad dog in his house nor place a shaking ladder in his house? [From Scripture] where it is said, That thou bring not blood upon thine house. MISHNAH. IF A GIRL WAS SEDUCED [THE COMPENSATION FOR] HER INDIGNITY AND BLEMISH AS WELL AS THE STATUTORY FINE BELONG TO HER FATHER [TO WHOM BELONGS ALSO THE COMPENSATION FOR] PAIN IN THE CASE OF ONE WHO WAS VIOLATED. IF THE GIRL'S ACTION WAS TRIED BEFORE HER FATHER DIED [ALL THE FORMS OF COMPENSATION] ARE DUE TO HER FATHER, IF HER FATHER [SUBSEQUENTLY] DIED THEY ARE DUE TO HER BROTHERS. IF HER FATHER, HOWEVER, DIED BEFORE HER ACTION WAS TRIED THEY ARE DUE TO HER. IF HER ACTION WAS TRIED BEFORE SHE BECAME ADOLESCENT [ALL FORMS OF COMPENSATION] ARE DUE TO HER FATHER; IF HER FATHER [SUBSEQUENTLY] DIED THEY ARE DUE TO HER BROTHERS. IF, HOWEVER, SHE BECAME ADOLESCENT BEFORE HER ACTION COULD BE TRIED THEY ARE DUE TO HER. R. SIMEON RULED.' IF HER FATHER DIED, BEFORE SHE COULD COLLECT [THE DUES] THEY BELONG TO HER.
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