Babylonian Talmud: Tractate Kethuboth

Folio 41a

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.¹

HE WHO DECLARES, 'I HAVE STOLEN' MUST MAKE RESTITUTION FOR THE PRINCIPAL ON HIS OWN EVIDENCE BUT NEED NOT REPAY DOUBLE,²  FOURFOLD³  OR FIVEFOLD.³

[HE WHO STATES,] 'MY OX HAS KILLED SO-AND-SO' OR 'THE OX OF SO-AND-SO' MUST MAKE RESTITUTION⁴  ON HIS OWN EVIDENCE. [IF HE, HOWEVER, SAID.] 'MY OX HAS KILLED THE BONDMAN OF SO-AND-SO'⁵  HE NEED NOT MAKE RESTITUTION ON HIS OWN EVIDENCE.⁶

THIS IS THE GENERAL RULE: WHOEVER PAYS MORE THAN THE ACTUAL COST OF THE DAMAGE HE HAS DONE⁷  NEED NOT PAY IT ON HIS OWN EVIDENCE.

GEMARA. Why did not he⁸  include 'I have violated'?⁹  — 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,¹⁰  that he must pay compensation for indignity and blemish on his own evidence,¹¹  but [if a man declared.] 'I HAVE SEDUCED', in which case he does cast a reflection on her character,¹²  it might have been assumed that he does not pay [such compensation] on his own evidence,¹³  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 evidence¹⁴  because he¹⁵  cannot be trusted¹⁶  to tarnish the character of another man's daughter.

Said R. Papa to Abaye: What [is the ruling if] she is satisfied?¹⁷  — 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 somewhere¹⁸  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.¹⁹  R. Papa ruled: It is a civil obligation,²⁰  but R. Huna the son of R. Joshua ruled: It is penal.²¹  'R. Papa ruled: It is a civil obligation', for he is of the opinion that cattle as a rule²²  cannot be presumed to be safe.²³  Justice, therefore, demands that the owner should make full restitution,²⁴  but the All-Merciful has shown mercy towards him²⁵  because his cattle have not yet become mu'ad.²⁶  '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.²⁷  Justice. therefore, demands that the owner should make no restitution at all,²⁸  but it was Divine Law²⁹  that imposed a fine upon him in order that he should exercise special care over his cattle.³⁰

(Mnemonic:³¹  He damaged what, and killed a general rule.)

We have learned: The plaintiff and the defendant³²  are involved³³  in the payment.³⁴  Now according to him who holds that liability for half damages is a civil obligation³⁵  it is perfectly correct [to say] that the plaintiff is involved in the payment,³⁶  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 involved³⁷  in the payment?³⁸  — It³⁹  may apply⁴⁰  only to [a loss caused by] a decrease in the value of the carcass.⁴¹  [But have we not] already learned elsewhere [about] the decrease in the value of the carcass? 'To compensate for the damage'⁴²  means that the owner⁴³  must dispose of the carcass?⁴⁴  — One [of the statements deals] with a tam⁴⁵  and the other with a mu'ad.⁴⁵  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 compensation⁴⁶  but not [to that of] a tam.⁴⁷  [Both rulings were consequently] required.

Come and hear: What is the difference [in the case of compensation for damages] between a tam⁴⁵  and a mu'ad?⁴⁵  — In the case of a tam half damages are paid out of its own body,⁴⁸  while in the case of a mu'ad full compensation is paid out of the best of the [defendant's] estate.⁴⁹  Now if⁵⁰  it were the case [that liability for half damage⁵¹  is penal] why was it not also stated⁵²  that in the case of a tam no compensation is paid merely on one's own evidence⁵³  whereas in the case of a mu'ad⁵⁴  compensation is paid even on one's own⁵⁵  evidence?⁵⁶  — He⁵⁷  recorded [some distinctions]⁵⁸  and omitted others. What [else, however], did he omit [that should justify the assumption] that he omitted this distinction also.⁵⁹  — He omitted [also the payment of] half kofer.⁶⁰  If [the only point not mentioned] is that of⁶¹  half kofer it is no omission,

1. Prescribed in Ex. XXII, 16, because one's own admission to having committed an act for which a fine is prescribed cannot tender one liable to pay it (v. B.K. 75a).
2. V. Ex. XXII, 3.
3. V. ibid. XXI, 37.
4. V. ibid. XXI, 30, 35.
5. The fine for which is (v. ibid. 32) thirty shekels.
6. Cf. supra n. 4.
7. When evidence against him is available.
8. The Tanna of our Mishnah.
9. In addition to 'I have seduced'.
10. Since the outrage was not her fault but her misfortune.
11. As the girl's character is not called in question the man's admission may well be regarded as a true confession to satisfy his conscience and as a desire to make amends.
12. Cf. supra note 3 mutatis mutandis.
13. I. e., his compensation is to be refused on the ground that his word which casts a reflection on the girl's reputation cannot be accepted without valid proof.
14. Cf. supra n. 1.
15. In the absence of other valid evidence.
16. Lit., 'not all from him'.
17. To put up with the reflection in order to gain her compensation.
18. Lit., 'in a province of the sea', 'a country beyond the sea'.
19. Restitution made for damage done by the 'Born' (v. B.K. 2b) of a tam (v. Glos).
20. And is consequently payable on one's own evidence.
21. Lit., 'fine', and is payable only where valid evidence, other than the admission of the offender, is available (cf. supra p. 228, n. 5).
22. Unless their owner takes special care to check them.
23. They might at any moment do some damage. Hence it is the duty of their owner to hold them under control.
24. For any damage done by his cattle, since such damage is the result of his carelessness (v. supra n. 2).
25. By releasing him from half of the payment.
26. 'Cautioned' (v. Glos). But whatever he does pay is a civil liability (v. supra p. 229. n. 13).
27. And no special care on the part of the owner is called for.
28. Since it was not his fault that his cattle had done the damage.
29. By ordering him to pay half damages.
30. Cf. B.K. 15a.
31. Containing key words occurring in the following four citations from which objections are raised against the ruling of R. Huna the son of R. Joshua.
32. Lit., 'he who suffered, and he who caused the damage'.
33. This is now assumed to imply 'loss'.
34. B.K. 14b.
35. And that the plaintiff should in strict justice be entitled to full compensation.
36. Since he loses (v. supra n. 14) a half of which is really his due.
37. Cf supra n. 12.
38. This an objection arises against R. Huna the son if R. Joshua.
39. The statement that the plaintiff also is 'involved in the payment'.
40. Lit., 'is required'.
41. Between the date on which the animal was killed and that on which the action was tried. Such loss is borne By the plaintiff, the defendant paying only half the difference between the value of the live animal and the carcass as it was on the day of the accident.
42. B.K. 9b.
43. Of the animal that was killed, i.e., the plaintiff.
44. I. e., he must take it in part payment of his compensation, and if its value decreases it is obvious that he must beat the loss (cf. p. 230, n. 20). What need then was there to state the same ruling twice?
45. V. Glos,
46. And, therefore, no further liability is imposed upon him.
47. Where the defendant pays only half of the damages and may, therefore, be expected to beat the loss whenever the value of the carcass had decreased.
48. I. e., of the tort-feasant animal. The defendant's estate remains exempt from all liability.
49. Mishnah, B.K. 26b.
50. So according to Rashal and the parallel passages in B.K. 15a. Cur. edd. omit 'if … case'.
51. In the case of a tam (cf. supra p. 229, n. 22).
52. As another distinction between a tam and a mu'ad.
53. Cf. supra p. 229, n. 14.
54. Where the liability is civil.
55. Cf. supra p. 229, n. 13 and text.
56. Cf. supra p. 230, n. 17.
57. The Tanna of this Mishnah.
58. Between a tam and a mu'ad,
59. In an enumeration the Tanna would not have omitted just one point.
60. 'Ransom' (v. Ex. XXI, 30) V. Glos. In the case of manslaughter a mu'ad pays full compensation while a tam does not pay even half (cf. B.K. 41a).
61. Lit., 'on account of'.

since that [Mishnah] may represent the view of¹  R. Jose the Galilean who ruled that [in the case of] a tam half kofer is paid.²

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?³  — 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: 'This⁴  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.⁵

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,⁶  [does it not, that if the payment is] less than the cost of the damage,⁷  one must pay compensation even on one's own evidence?⁸  Do not infer: '[But if payment is] less than the cost of the damage [one must pay … on one's own evidence]',⁷  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?⁹  Would no liability be established by one's own evidence? Then¹⁰  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 more¹¹  [it is to be paid on one's own evidence]?¹²  — This is indeed a refutation.¹³

The law, however, [is that the liability for] half damage is penal. 'A refutation' [of a ruling]¹⁴  and [yet it is] the law? — Yes; for the sole basis of the refutation¹⁵  was that¹⁶  the statement¹⁷  did not run, '[whoever does not pay an amount] corresponding to the actual cost of the damage he has done'; [but such a principle]¹⁸  was not regarded by him¹⁹  as exactly accurate, since there is the liability for half damages [in the case of the damage done by] pebbles²⁰  Concerning which there is an halachic tradition that the liability is civil.²¹  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 occurrence²²  and no distress is executed in Babylon.²³  If, however, they²⁴  were small the occurrence is a usual²⁵  one and distress is executed.²⁶  Should the plaintiff,²⁶  however, seize [the chattels of the defendant]²⁷  they are not to be taken away from him.²⁸  Furthermore, if²⁹  he pleads. 'Fix for me a date [by which the defendant must come with me] to the Land of Israel,'³⁰  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,³¹  however, [the defendant] is to be placed under the ban;³²  for he is told, 'Abate your nuisance', in accordance with a dictum of R. Nathan. For it was taught:³³  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.³⁴

CHAPTER IV

MISHNAH. IF A GIRL³⁵  WAS SEDUCED [THE COMPENSATION FOR] HER INDIGNITY AND BLEMISH AS WELL AS THE STATUTORY FINE BELONG TO HER FATHER³⁶  [TO WHOM BELONGS ALSO THE COMPENSATION FOR] PAIN IN THE CASE OF ONE WHO WAS VIOLATED.

IF THE GIRL'S ACTION WAS TRIED³⁷  BEFORE HER FATHER DIED [ALL THE FORMS OF COMPENSATION] ARE DUE TO HER FATHER,³⁸  IF HER FATHER [SUBSEQUENTLY] DIED THEY ARE DUE TO HER BROTHERS.³⁹  IF HER FATHER, HOWEVER, DIED BEFORE HER ACTION WAS TRIED THEY⁴⁰  ARE DUE TO HER.⁴¹  IF HER ACTION WAS TRIED BEFORE SHE BECAME ADOLESCENT⁴²  [ALL FORMS OF COMPENSATION] ARE DUE TO HER FATHER; IF HER FATHER [SUBSEQUENTLY] DIED⁴³  THEY ARE DUE TO HER BROTHERS.³⁹  IF, HOWEVER, SHE BECAME ADOLESCENT BEFORE HER ACTION COULD BE TRIED THEY ARE DUE TO HER.⁴⁴  R. SIMEON RULED.' IF HER FATHER DIED,⁴⁵  BEFORE SHE COULD COLLECT [THE DUES] THEY BELONG TO HER.⁴⁶

1. Lit., 'this (is) according to whom?'
2. V. B.K. 26a. The distinction mentioned (v. supra n. 1) does not, therefore, apply. The other distinction also, viz, that between full kofer for a mu'ad and half kofer for a tam, cannot be regarded as an omission, since it is included in the first clause which lays down that in the case of a tam half damages are paid and in that of a mu'ad full compensation is paid, a ruling which applies to kofer as well as to damages. Since there is no other omission, this Mishnah proves that the liability for half damage is civil as supra.
3. And since liability is established by one's own evidence such liability cannot be penal but civil. Cf. supra 230. n, 17.
4. That liability is established by one's own admission.
5. To shew that even in respect of a mu'ad there is a case where no liability is incurred By one's own evidence.
6. Lit., 'but'.
7. Such as half damage payable in the case of a tam.
8. V. supra note 5.
9. V. p. 232. n. 9,
10. Instead of laying down a rule from which a wrong inference might be drawn.
11. Than the actual cost of the damage.
12. Since, however, the rule was not stated in this form it follows that liability for less than the actual cost of the damage (v. supra n. 1). is not payable on one's own admission. An objection thus arises against R. Huna the son of R. Joshua (cf. supra p. 231, n. 5),
13. The ruling, therefore, that half damages payable in the case of a tom is penal, stands refuted.
14. Cf. supra nn. 4 and 5.
15. Lit., 'what is the reason that it was refuted?'
16. Lit., 'because',
17. In out Mishnah.
18. Which would have excluded all cases of payment for half damages.
19. The Tanna of this Mishnah,
20. Kicked up by an animal (v. B.K. 17a and cf, 3b).
21. Despite the fact that the compensation is less than the actual damage.
22. And thus coming under the category of damage by the 'horn' (v. B.K. 2b) which is also one of unusual occurrence.
23. Since penal liabilities may be imposed in Palestine only by a judge who is specially ordained for the purpose (mumhe, v. Glos). No such judges lived in Babylon.
24. The lambs or the hens.
25. Falling under the category of damage by the 'tooth' (cf. B.K. 2b) which is also one of usual occurrence and compensation in which case is a civil liability.
26. Even in Babylon.
27. [So Rashi. R. Tam: the animal that caused the damage (Tosaf)].
28. And he retains an amount corresponding to half the damage.
29. Where no chattels were seized.
30. Cf. supra p. 233. n. 15.
31. Whether the plaintiff wishes the case to be tried in the Land of Israel or not.
32. 'Until he abates the nuisance'. (So B.K. 15b).
33. B.K. 15b, 46a.
34. Deut. XXII, 8, referring to the duty of removing a cause of danger though one is not directly responsible for any fatal result.
35. Na'Arah (v. Glos.).
36. Cf. Mishnah supra 39a and notes.
37. Lit.,'she stood before the law.
38. In accordance with Deut. XXII. 20.
39. As heirs of their father. Once the court had ordered payment, the amount in question is considered as the 'actual property' of the father which is inherited by his sons, v. infra 43a.
40. Being still penal liabilities.
41. V. infra 43a. Var. lec. adds, 'R. Simeon ruled: If her father died before she could collect (the dues) they belong to her'.
42. A bogereth (v. Glos.).
43. Wether before or after she became adolescent.
44. Because at that age she is no longer under her father's control.
45. Var. lec.; 'If she became adolescent'.
46. Because the fine does not become the 'actual property' of the father by mere decision of the court, (cf. supra notes 5 and 7).