Friday, March 27, 2015

Ketubot 35 – A loophole for the death penalty

If one commits an act for which he is liable to pay and also to be executed or given lashes, then he is only given the harsher punishment, and does not have to pay. Even if due to some technicality the death penalty or lashes cannot be given, there is a loophole that saves him from payment – this is the opinion of Resh Lakish.

Take, for example, a case of violating his sister. The only way to be punished for that is to have witnesses tell him shortly prior, what punishment he will get (lashes). He has to accept it on himself and proceed. Now, if it all happens as described above, then he does not have pay the penalty which applies to violating a virgin. Resh Lakish takes it further: if he was not warned, and the lashes are impossible, still he does not have to pay, since had they warned him, he would not have to pay.

Rabbi Yochanan, on the other hand, does not accept this loophole. If after all they did not warn him, so that the stricter punishment cannot be meted out, then he does have to pay.

Both use the case of “two men fighting and accidentally hitting a pregnant woman, with no fatality” as their source. “No fatality” leads to him paying, but we understand that if there is fatality, he does not pay, even though he was not warned. What fatality do we mean? – The death of the woman, of course – says Resh Lakish. However, Rabbi Yochanan says that the fatality refers to the man and means that he is sentenced to death. It comes out that if he is not sentenced to death, then he pays, even though there was no warning.

The Talmud then rejects this explanation of the disagreement and provides a different one.

Wednesday, March 25, 2015

Ketubot 34 – Liable on two counts – which gives?

Previously we learned about an act that carries two punishments, such as violating one's sister, where he is liable to a penalty for violating a virgin, and lashes for doing it to his sister. We also saw a case of scheming false witnesses, who can get lashes for false testimony, but who are also liable to money payment if what they wanted to cause to their fellow with their false testimony would be him paying money.

To understand this deeper, let's consider another case: someone steals a sheep or an ox, and then slaughters and sells the animal on Shabbat. Normally, one who steals and slaughters pays a special five-fold penalty for the ox, and four-fold for the sheep (because, presumably, he carried the sheep on his shoulders, and this humiliation atones for a small part of his penalty).

However, for slaughtering on Shabbat, he deserves stoning. We would expect that he gets the toughest of the punishments and does not have to pay. And yet, Rabbi Meir requires him to pay four- or five-fold. Our solution: he does not slaughter the animal himself, rather, he instructs someone to do it. He is indeed liable for stealing the animal, slaughtering it and selling the meat, because just as selling is done with the help of another, so can slaughter be done through an agent – but he himself did not violate Shabbat, so he is not stoned. (There is also an explanation for the opinion of the Sages, who do not punish him at all).

Art: The Payment of Dues by Georges de La Tour

Wednesday, March 18, 2015

Ketubot 33 – Which is worse, torture or death?

Continuing with the subject of money penalty vs. lashes, imagine that two witnesses testify about their fellow that he owes money to someone, and later it transpires that they were scheming false witnesses. On the one hand, they should repay the money which the subject of their testimony would otherwise have lost, since the Torah said “do to them what they schemed to do to their fellow.” On the other hand, they transgressed a very serious prohibition of being false witnesses, and perhaps should be given lashes, like for any prohibition on the Torah. Which should apply?

Said Abaye: “We cannot give them lashes, because we cannot warn them; and if we do warn them, they will refuse to testify!” Later Abaye disproved himself and said: “They did not warn the man about whom they testified falsely, so they themselves also should not require a warning.” But the fact remains that they pay and are not lashed.

Comparing death with torture, Rav said, “Even though Chananya, Mishael and Azaryah were ready to give up their lives but not bow down to an idol, had they whipped them, they would bow.” We thus see that when choosing a punishment, the court must consider whiplashes stricter than death. However, Rav Samma the son of Rav Ashi said to his father, “That is not the same! The court gives a fixed number of lashes, but the torture continues!” Others read this statement of Rav completely the opposite, as a question: “Even if they tortured them, would they bow down to an idol? -- Surely not!” Under this reading, idol worshiping would be permitted when faced with torture, but Chananya and his friends went beyond the letter of the law.

Art: An old woman counting money for a gentleman by Jan Josef Horemans

Thursday, March 12, 2015

Ketubot 32 – Corporal punishment or monetary payment?

If one violates his virgin sister, he pays the 50-shekel payment mentioned earlier. However, when we studied the corporal punishment in detail, we said that he gets lashes for the same thing!?

In explaining this, Ulla suggested that the corporal punishment applies because he violated his sister who is somewhat grown up, past 12 ½ (no penalty) and who is moreover mentally deranged (no humiliation payment). And yet, she suffers pain! – We conclude that he seduces her (no pain).

Be that as it may, we see that for Ulla it is really important to defend his principle that if one faces two punishments, lashes and money payment, he should be given the less severe money penalty. But usually we give him the more stringent one, on the theory that the punishment is for the correction of his soul. So where does Ulla get his principle from?

The Talmud tries to derive this from logic (because such a proof would be preferred), but ends up using the comparison based on similar words. The word “tachat” in the sense of “as a compensation for” is used talking about the girl and in the “eye for an eye” – where we know very well that the Torah meant a monetary payment, and not taking his actual eye out.

Art: Sister of the Artist By Christen Kobke

Tuesday, March 10, 2015

Ketubot 31 – Stealing on Shabbat

Previously we mentioned that if one violates a girl for relations with whom he is liable with his soul, then only this punishment applies, and he does not have to pay the penalty of fifty shekalim. The prototypical example of this, however, is found on Shabbat, when one steals a purse from a house, and then carries it into the street. Since for carrying the purse into the street on Shabbat he is liable to death by the Court, he does not have to pay the penalty for stealing and only has to return the stolen goods. This will apply even if he is not executed, such as if there were no witnesses or no proper warning.

And yet, what are the precise circumstances of his stealing? If he lifts the purse while in the house, he acquires it right then and there, becomes liable to return double, and Shabbat violation – which comes only later, when he crosses the doorstep – would not relieve him of the penalty. The Talmud tries to construct various ways of his walking where this would be true, but finds faults with them. Final conclusion is that this applies when he is dragging the purse on the floor, since he only acquires it when he crosses the doorstep – and then the Shabbat violation happens simultaneously with stealing.

Art: Still Life With Book And Purse By Gerrit Dou

Sunday, March 8, 2015

Ketubot 30 – The logic of punishment

Earlier we saw that a rapist who violates a girl must pay a penalty and, if she so desires, must marry her without the possibility of divorce unless she grants it. We also said that if he cannot marry her because of another prohibition, he still pays the penalty.

However, some say that the Torah only meant for two things to go together, and if he cannot marry her (such as in the case of a girl who is a mamzer), he does not pay the penalty either. He would still pay the regular assault damages. And yet, if he violates a girl who is a niddah, they agree that even though he deserves a punishment of being cut off from the people, he still pays the penalty.

Why should the last be true? We have a rule that when one causes damages but at the same time puts his soul in danger, he is only given the harsher penalty, but is free from repayment!? – That law only applies to actual execution by the court, but not to that by the hand of Heaven.

The last explanation still does not work according to Rabbi Nechunia ben HaKanah, who makes all kinds of danger, whether by the hand of man (court) or Heaven (cut off) the same, so that he would not pay the penalty for violation. – True, according to Rabbi Nechunia, he does not pay the penalty for violating a niddah, because he puts his soul in danger.

Incidentally, all mishaps that happen to a person are considered by the hand of Heaven, except for illnesses come from too cold or too hot weather, because it is the person's own negligence that causes him to become sick.

Art: The sick neighbour By Jozef Israels

Saturday, March 7, 2015

Ketubot 29 – Rapist

If one violates a young virgin girl and is caught while doing this, he has to pay a fine of 50 silver shekels (equal to a normal dowry, or approximately $25,000). He is also liable to regular damages for assault: pain, humiliation and depreciation. Furthermore, if she and her father so desire, he must marry her and may never divorce her against her will.

This law applies primary to a young girl who just became a bat mitzvah (12 years) and thus an adult, but has not become a more grown-up (12 ½ years). If he rapes a girl who is a mamzer and whom he is prohibited to marry, the penalty still applies. It also applies to all who were converted or ransomed before they were three years of age.

Similarly, if one violates girls who are prohibited to him on the pain of karet (being cut off from the people) – such as his sister, brother's wife divorced before chuppah, or a niddah – the penalty is the same.

Art: Young Girl Reading By Hendricus Jacobus Burger