Yerushalmi Ketubot 3:1 ירושלמי כתובות ג׳:א׳

MISHNAH: The following adolescent girls¹The biblical law prescribes (Deut. 22:28–29) that the man raping נַעֲרָה בְתוּלָה “a virgin adolescent girl” has to pay her father 50 šeqel and must marry her. In the corresponding law about the seducer of a virgin (Ex. 22:15) he has to pay if he does not marry the girl. In that paragraph, the adolescent is not mentioned; but since it is stated that the father has the right to withhold her from the seducer, it follows that the girl cannot be an adult; she must be underage or adolescent. An adolescent is a girl in the first 6 months after she grows two pubic hairs, cf. Nedarim Chapter 10, Note 1. The age at which the fine can be claimed is the topic of Halakhah 3:9. can claim a fine: From someone who has intercourse with a bastard girl²Obviously, one who rapes or seduces an eligible Jewish girl has to pay. The Mishnah enumerates only those categories where there might be an argument that he should not be required to pay. Each category is discussed in the Halakhah. A bastard is excluded from contracting a valid marriage in the native congregation in Deut. 23:3., or a Gibeonite or a Samaritan girl, and one who comes to a female proselyte, a kidnap victim, or a slave girl who was redeemed, converted, or freed, at less than three years and one day of age³Cf. Mishnah 1:2.. Also from one who has intercourse with his sister, or his father’s sister, or his mother’s sister, or his wife’s sister, or his brother’s wife⁴If she was divorced or became a widow before the final marriage. The preliminary marriage activates all incest prohibitions implied by marriage., or his paternal uncle’s wife⁵But for a capital crime he does not pay since there cannot be two punishments for one crime. Extirpation is a divine punishment, outside the purview of a human court., or a menstruating girl; he has to pay the fine since it is not a capital crime⁶This word is in the ms. and editio princeps but should be deleted. even though he is subject to extirpation.

HALAKHAH: “The following adolescent girls,” etc. It is written⁷Deut. 22:29, speaking of the rapist.: “She should be his wife,” one who can be his wife⁸This argument will be used at the end of the paragraph to exclude the slave-girl from consideration since she cannot legally marry anybody. The bastard can legally marry a proselyte or another bastard (Mishnah Qiddušin4:1). The inverse question could be asked if a bastard rapes a regular Jewish girl. The question is asked in the Babli, 29b.. Can the bastard girl be his wife? Rebbi Simeon ben Laqish said, “he should weigh silver appropriate for the bride-price of virgins⁹Ex. 22:16, speaking of the seducer. In the Babli, 29b, R. Simeon ben Laqish argues differently.”, that added many virgins. Rebbi Ze‘ira said, if it had said “virgin’s brides-prices”; but it says only “appropriate for the bride-price of virgins”; the verse added them only for the bride-price¹⁰It implies only that even a virgin disqualified in general still has a claim to a full ketubah; e. g., if a bastard girl marries a proselyte.. But where was this said¹¹That the fine must be paid.? As Ḥizqiah stated: “If refusing her father should refuse⁹Ex. 22:16, speaking of the seducer. In the Babli, 29b, R. Simeon ben Laqish argues differently.,” not only if her father refuses; from where even if from Heaven they refuse¹²By a biblical prohibition.? The verse says “refusing should refuse”, in any case. But then a man who has intercourse with a slave girl should pay the fine! This is impossible, as it was stated: I could think that one who has intercourse with a Gentile slave-girl should be obligated, the verse says, “by bride-money he should take her as a wife to himself.” Only one whom he can marry; this excludes the Gentile slave whom he cannot marry¹³While the Gentile slave-girl of a Jewish owner becomes pseudo-Jewish by baptism in a miqweh, she would be able to contract a marriage only by manumission by which she would become a full-fledged proselyte. Cf. Halakhah 1:4, Notes 181–184.. But he cannot marry his sister and he pays the fine! There is a difference since she can be married to others. But his daughter can be married to others and he does not pay the fine¹⁴Mishnah 3:2.! There is a difference since it is a capital crime and nobody who commits a capital crime pays money¹⁵Even if he cannot be convicted because there were no two eyewitnesses to the act..

“The Gibeonite.” Rebbi Yose said, they were worried about them only because of the detriment to the families¹⁶Gibeonites are descendants of genuine proselytes; they are only excluded from intermarrying with Jews because they are considered undesirable. The extended discussion of the problem of Gibeonites is in Qiddušin 4:1.. Could you not say, because of the disability of slaves¹⁷Would the fact that the Gibeonites were “wood cutters and water drawers for the congregation” (Jos. 9:21) imply that they had servile status? Since nowhere in the Bible we hear that they were freed, their descendants then would still be slaves and unable to contract marriages.? If that were true, one who cohabits with a Gibeonite would not be subject to a fine¹⁸Mishnah 3:2.; but we have stated: One who cohabits with a Gibeonite is subject to a fine¹⁹Therefore, even in the time of Joshua the Gibeonites were subordinate but not servile..

“A Samaritan.” That follows him who said, a Samaritan is a like full Jew. But for him who says that a Samaritan is like a Gentile, it is not so. As they disagreed²⁰Cf. Demay 3:4, Note 98; Berakhot 7:1, Note 59.: A Samaritan is like a Gentile, the words of Rebbi. Rabban Simeon ben Gamliel said, a Samaritan is like a Jew in every respect. Even if you say, a Samaritan is like a Gentile, why are Samaritans disqualified? Not because of a Gentile and a slave²¹Since 2K.17, 24ff. clearly states that the settlers from Babylon, Kuta, etc. at the start were idolators; if they intermarried with the remainders of the Israelite populations there, their descendants all acquired the status of descendants of Gentiles (or slaves) from Israelite mothers.? If a Gentile or a slave has intercourse with a Jewish woman, the child is a bastard²²This is the argument of R. Joḥanan and R. Simeon ben Laqish in Yebamot 7:6, Note 129; it is rejected there since the child of a Jewish woman from a Gentile, together with her mother, is disqualified from priesthood but not a bastard (Notes 130,131).. But a bastard girl can claim a fine! For restrictions or family relations you consider him a Gentile or a slave who had intercourse with a Jewish woman; the child is a bastard. But for a fine you consider this as a Jew having intercourse with a Gentile woman, in which case the child is a Gentile²³The separation from Samaritans is purely one of practice, with no theoretical basis, and disapproved of by the Mishnah. In the Babli, 29b/30a, the argument (attributed to R. Meïr) is rejected, in order not to reward a sinner (the rapist or seducer.).

Rebbi Yose ben Rebbi Ḥanina said, a man who rapes or seduces an orphan girl does not have to pay²⁴Since Deut. 22:29 states that “the man who had intercourse with her has to give her father 50 silver [šeqel].” This seems to negate the obligation if there is no father to collect the fine.. Rebbi Abba bar Mamai said, that is a disagreement, it follows Rebbi Yose the Galilean²⁵He holds in Mishnah 3:7 that an underage girl which was preliminarily married and then divorced as a virgin has no claim to the fine (since by the preliminary marriage she was emancipated from her father’s power.) R. Aqiba holds that she can claim the fine for herself.. But following Rebbi Aqiba she can claim the fine and the fine becomes her property. Rebbi Yose said, the Mishnah said “at less than three years and one day of age,” and is she not like an orphan²⁶Neither the proselyte nor the freedwoman are under the authority of a father; nevertheless, the Mishnah gives them the right to claim the fine.? And did we not state: “Because he raped her,²⁷Deut. 22:29. In the Babli, 44b, and Mekhilta dR. Ismael(Mišpaṭim 17; ed. Horovitz-Rabin p. 309), the inference is from Ex. 22:16. In any case, R. Yose the Galilean seems to contradict himself.” that includes an orphan for a fine, the words of Rebbi Yose the Galilean? Rebbi Aḥai said, explain it that he had intercourse with her when her father was alive; when her father died, he already had the obligation to give to her father²⁸For R. Yose the Galilean the fine belongs to the father’s heirs..

²⁹The parallel (with very minor deviations) to the remainder of the Halakhah is in Terumot 7:1, fully explained there in Notes 3–73, shortened also Baba Qama 7:2 (fol. 5d), Makkot 1:1 (fol. 31a); Babli Ketubot32b, Baba Qama 36a, Makkot 7b, 13b. The variant readings from Terumot are noted ת. There, we have stated: “If somebody eats heave intentionally, he pays the principal but not the fifth.” And we have stated: “The following are flogged.” Here you say, he is flogged, and there you say, he pays. Rebbi Joḥanan said, the Mishnah is two-sided: If he was cautioned, he is flogged; if he was not cautioned, he pays. Rebbi Joḥanan is of the opinion that in a case where there is flogging or restitution, when he pays he is not flogged. Why should he not be flogged and have to pay? (Deut. 25:2) “Corresponding to his guilt.” You sentence him for one offence but you may not sentence him for two offences. The verse speaks of one who may incur two punishments (Deut. 25:2): “The judge shall have him laid down and flogged in his presence a number [of times] because of his guilt.”

³⁰The text in Terumot is close enough that the explanations given there are valid here, but the details of the texts differ too much to be presented as variant readings of one and the same text. Rebbi Simeon ben Laqish said, even if he was not cautioned should he not pay since when cautioned he would be flogged? A Mishnah disagrees with Rebbi Simeon ben Laqish: “If somebody eats heave in error, he pays principal and fifth³¹Mishnah Terumot 6:1.,” but if he was cautioned, will he not be flogged? He explains it following Rebbi Meïr since Rebbi Meïr said, he is flogged and pays. A Mishnah disagrees with Rebbi Simeon ben Laqish, as we have stated: “The following adolescent girls can claim a fine,” but if he was cautioned, will he not be flogged? He explains it following Rebbi Meïr since Rebbi Meïr said, he is flogged and pays. Rebbi Abbahu in the name of Rebbi Simeon ben Laqish: Rebbi Meïr learned from the calumniator. (Deut. 22:18) “They shall punish him,” flogging; (Deut. 22:19) “and they shall fine him”, money. But the rabbis say, [the law of] the calumniator is separate because of its novelty; one cannot learn from a novelty! Because nowhere else will a person become guilty by speech, but here he becomes guilty by speech; therefore, nothing can be inferred. Another explanation: one cannot transfer the rules of either payment or flogging. Did not Rebbi Abbahu say in the name of Rebbi Joḥanan: If he [eats] fat in error but is intentional about the sacrifice, if he was cautioned he will be flogged and has to bring a sacrifice? So here, he is flogged and he pays. Rebbi Abun bar Ḥiyya in the name of Rebbi Samuel bar Rav Isaac said, (Deut. 25:2) “Because of his guilt.” If two possibilities are given to the court, one chooses one of them. This excludes matters in the power of Heaven.

Everybody agrees that there is no money payment in capital cases, as it is written (Lev. 24:21): “The slayer of an animal must pay for it but the slayer of a human shall be put to death.” Just as you did not make a difference between unintentional and intentional action of a slayer of an animal to force him to pay money, so you should not make a difference between unintentional and intentional action of a slayer of a human to free him from paying money. Where do they differ? About money in a flogging case. Rebbi Joḥanan said, there is no money in a capital case but there is money in a flogging case, but Rebbi Simeon ben Laqish said, just as there is no money in a capital case so there is no money in a flogging case.

Rebbi Immi the Babylonian in the name of the rabbis from there: The reason of Rebbi Simeon ben Laqish is “criminal, criminal.” “Criminal” is mentioned in capital cases, “criminal” is mentioned in cases of flogging. Just as for the criminal in capital cases there is no monetary fine, so for the criminal mentioned in flogging cases there is no monetary fine.

Nathan bar Hoshiah said, one speaks about an adolescent girl, the other about an adult woman. The adolescent has a fine but nobody is flogged for her; for the adult he is flogged but pays no fine, she cannot be sold; she has no claim for shame and blemish. The rabbis of Caesarea said, explain it that she seduced him or remitted [the fine] for him. Nathan bar Hoshaiah thinks that in a case of flogging and payment he pays but is not flogged. Why should he not be flogged and have to pay? (Deut. 25:2) “Because of his guilt.” You sentence him for one offence but you may not sentence him for two offences. From perjured witnesses. Just as you say there, perjured witnesses pay but are not flogged, here also he pays and is not flogged. Rebbi Jonah said, the reason of Rebbi Nathan bar Hoshaiah: (Deut. 25:2): “For his evil deed.” It refers to one whose flogging frees him from his guilt, excluding one who is told: get up and pay.

Our Mishnah disagrees with Rebbi Simeon ben Laqish! “If somebody eats heave intentionally he pays the principal but not the fifth.” In the opinion of Nathan bar Hoshaiah who said he pays, it is understandable. In the opinion of Rebbi Joḥanan who said, if he was cautioned he is flogged, but if he was not cautioned he pays, he explains it as intentional without cautioning. In the opinion of Rebbi Simeon ben Laqish there is no difference between intentional and unintentional, between cautioned or not cautioned. He explains following Rebbi Meïr who says, he is flogged and he pays.

Rebbi Ḥinena said before Rebbi Mana: Even if Rebbi Simeon ben Laqish thought the entire Mishnaiot were Rebbi Meïr’s, does the verse agree with Rebbi Meïr? Is it not written (Lev. 22:14): “If a person ate consecrated food in error”? But Rebbi Simeon ben Laqish must hold that the fifth is a sacrifice. But even if he holds that the fifth is a sacrifice, can the principal be a sacrifice? Rebbi Yudan bar Shalom said, the Mishnah declares that the principal is a fine, as we have stated: “He does not pay in heave but in totally profane food which is turned into heave.” If he had to pay from what he ate, it would be fine. And it was stated: “If he ate impure heave, he has to pay in pure profane food, but if he paid in impure profane, he discharged his obligation.” Does he not owe him the price of wood? That shows that the principal is a fine and since the principal is a fine, the fifth also is a fine. But Rebbi Simeon ben Laqish follows his own opinion. Just as Rebbi Simeon ben Laqish said, there, everybody was under the obligation of (Ex. 20:16) “Do not become a false witness against your neighbor”, but this one was treated separately, (Deut. 19:19) “do to him what he intended to do to his brother”, to pay money; also here, everybody was under the obligation of (Lev. 22:10) “no outsider shall eat holy [food],” but this one was treated separately, (Lev. 22:14) “if somebody should eat holy [food] in error,” to pay money.

Did we not state: The Sages admit to Rebbi Meïr that one who stole his neighbor’s heave is flogged and has to pay since whoever eats heave is flogged. Did we not state: The Sages admit to Rebbi Meïr that one who stole his neighbor’s fat is flogged and has to pay since whoever eats fat is flogged. Did we not state: The Sages admit to Rebbi Meïr that one who muzzled his neighbor’s cow is flogged and has to pay six qab per cow and four qab for a donkey since whoever muzzles his cow is flogged. Rebbi Yose said, the same holds if death is the penalty. If he stole Temple heave and ate it, he is whipped and has to pay since in any case he caused monetary loss.

Rebbi Mana said before Rebbi Yose: If it is so, he who sleeps with his minor sister should be flogged and have to pay since if he sleeps with his adult sister he is flogged. He reversed himself and said, there death and payment fall on him simultaneously. But here, when he muzzled he is subject to flogging but only later for payment. Rebbi Ze‘ira objected before Rebbi Mana: He who sets fire to his neighbor’s grain stack on the Sabbath is subject to capital punishment from the first ear but only later for payment! One cannot say that because for every single ear there is cautioning for the death penalty. Here also, for every moment of muzzling there is cautioning for flogging. Rebbi Yose bar Abun said, two Amoraïm. One said, if he muzzled for heave which is Temple property. The other one said, if he muzzled through an agent. Then the agent is flogged and he is free (Lev. 17:4): “As a blood guilt it will be charged on this man,” not on his employers.

In error for heave and intentional for leavened, in error for heave and intentional for nazir, in error for heave and intentional for the Day of Atonement. If one explains it with two things, it is fine. If one explains it for one, this is the disagreement of Rebbi Joḥanan and Rebbi Simeon ben Laqish.

There, we have stated: “The only difference between the Sabbath and the Day of Atonement is that intentional infraction of the former is punished by the hands of man, but intentional infraction of the latter is punished by extirpation.” Therefore, for payment both follow the same rules. This is by Rebbi Neḥoniah ben Haqanah since “Rebbi Neḥoniah ben Haqanah says, the Day of Atonement follows the rules of Sabbath for payment. But Rebbi Simeon ben Menassiah says those subject to extirpation equal those subject to capital punishment.” What is between them? Rebbi Aḥa in the name of Rebbi Avina said, a menstruating adolescent girl is between them. Rebbi Mana said, also his wife’s sister is between them. In the opinion of Rebbi Neḥoniah ben Haqanah, just as the Sabbath does not become permitted after its prohibition started; so theDay of Atonement does not become permitted after its prohibition started. However, these may become permitted after their prohibition started, he has to pay. But Rebbi Simeon ben Menassiah said, extirpation applies to the Sabbath and the day of Atonement; extirpation does not apply to these, he has to pay.

Rebbi Judah bar Pazi asked: What say these Tannaïm about whipping and extirpation? Rebbi Yose said, that is a problem for the rabbis. Rebbi Jonah said, why can we not understand it from what Rebbi Simeon ben Ioḥai stated? As Rebbi Simeon ben Ioḥai stated: “Rebbi Ṭarphon says, extirpation was mentioned for the Sabbath and the Day of Atonement. Since for extirpation mentioned for the Sabbath there is no payment in a case involving the death penalty, so for extirpation mentioned for the Day of Atonement there is no payment in a case involving extirpation.” Rebbi Mana said before Rebbi Yose: When do we need this? Not for Rebbi Simeon ben Laqish? But for Rebbi Joḥanan, if he admits flogging in death penalty cases, certainly flogging in extirpation cases, since they disagreed: If somebody slaughters [an animal] and its young for idolatrous purposes. Rebbi Joḥanan says, if he was cautioned about an animal and its young, he is flogged, about idolatry, he is stoned to death. Rebbi Simeon ben Laqish said, even if he was cautioned about an animal and its young, he is not flogged since he would be stoned to death had he been cautioned about idolatry. He said to him, we need it even for Rebbi Joḥanan! Here are two cases, there it is one case.

According to Rebbi Simeon ben Laqish, what is between these Tannaïm and those rabbis? Prohibitions without extirpation. Rebbi Judan said, he who sleeps with a bastard girl is between them. Rebbi Ḥananiah said, he who puts fire to the grain stack of his neighbor on a holiday is between them. These Tannaïm think, since there is no extirpation, he pays. Those rabbis think, since there is flogging he does not pay. But then “these are the adolescent girls who can claim a fine” cannot follow the rabbis! Rebbi Mattaniah said, explain it according to everybody if it refers to a bastard male who sleeps with a bastard girl.

But is his brother’s wife not his sister-in-law? Explain it that the man’s brother had children and had performed the preliminary wedding with a woman when he died and [the surviving] brother came and raped her.