MISHNAH. THESE ARE MAIDENS1 TO WHOM THE FINE IS DUE.2 IF ANYONE HAD INTERCOURSE WITH A MAMZERETH,3 A NETHINAH,4 A CUTHEAN,5 OR WITH A PROSELYTE [MAIDEN].6 A CAPTIVE, OR A SLAVE-WOMAN,7 WHO WAS REDEEMED,8 CONVERTED,9 OR FREED [WHEN SHE WAS] UNDER THE AGE OF10 THREE YEARS AND ONE DAY.11 IF ONE HAD INTERCOURSE WITH HIS SISTER, WITH THE SISTER OF HIS FATHER, WITH THE SISTER OF HIS MOTHER, WITH THE SISTER OF HIS WIFE, WITH THE WIFE OF HIS BROTHER,12 WITH THE WIFE OF THE BROTHER OF HIS FATHER, OR WITH A WOMAN DURING MENSTRUATION,13 HE HAS TO PAY THE FINE,14 [FOR] ALTHOUGH THESE [TRANSGRESSIONS]15 ARE PUNISHED THROUGH [THE TRANSGRESSOR] BEING CUT OFF,16 THERE IS NOT, WITH REGARD TO THEM, A DEATH [PENALTY] [INFLICTED] BY THE COURT.17
GEMARA. [Does it mean that only] these blemished maidens get the fine, [but] unblemished ones [do] not?18 — He means it thus: These are blemished maidens who get the fine:19 IF ANYONE HAD INTERCOURSE WITH A MAMZERETH, A NETHINAH, A CUTHEAN,20 etc.
[Only] [the Mishnah states] a maiden [receives a fine],21 [but not] a small girl.22 Who is the Tanna [who taught this]? Rab Judah said in the name of Rab: It is R. Meir, for it has been taught:23 A small child from the age of one day24 until [the time that] she grows two hairs25 sale applies to her,26 but not the fine;27 from [the time that] she grows two hairs until she becomes mature,28 the fine applies to her, but not sale.29 This is the view of R. Meir; for R. Meir said: Wherever sale applies,30 the fine does not apply, and wherever the fine applies, sale does not apply. But the Sages say: A small child from the age of three years and one day until [the time that] she becomes mature — the fine applies to her.31 [Does that mean] only the fine [and] not sale!32 — Say:
Original footnotes renumbered.
- Na'aroth pl. of na'arah, technically, a girl between twelve years and twelve and a half years of age.
- If a man has violated any of these maidens mentioned in our Mishnah, he must pay the fine fixed in Deut. XXII, 29.
- Fem. of mamzer, v. Glos.
- Fem. of nathin, v. Glos.
- A Samaritan, V. Glos.
- V. supra 11a.
- A maiden.
- In the text the word is in the plural, because it refers to a class and not to one person.
- It is interesting to note that 'CONVERTED' comes before, although it should come after, 'FREED'. The reason is probably because it is, in Hebrew, a shorter word. Of the three words the first has three, the second four, and the fourth, five syllables, not counting the suffix 'waw', ('and'). The sequence of the words chosen makes for symmetry.
- Lit., 'less than'.
- He has to pay the fine. For further notes v. supra 11a.
- Whom the brother divorced after the betrothal.
- And they are all maidens.
- Lit., 'the fine is due to them'.
- V. Lev. XVIII, 9ff
- From life, by premature or sudden death, Kareth V. Glos. Cf. Lev. XVIII, 29: For whosoever shall do any of these abominations, even the souls that do them shall be cut off from among their people.
- V. e.g., Lev. XX, 9ff. Only death penalty by the court releases from the money fine, v. Gemara.
- The phrasing of the Mishnah seems to imply that only the following maidens which are enumerated are entitled to fines — namely, only of blemished descent. Surely that is impossible.
- Although the fine has been fixed for unblemished maidens, whom the man could marry (V. Deut. XXII, 29), it is, the Mishnah tells us, due also to blemished maidens, whom he could not marry. That unblemished maidens get the fine need not be specially mentioned in the Mishnah.
- He has to pay the fine.
- Lit., 'a maiden, yes, a minor, no'.
- A ketannah. A girl is so called until the age of twelve years. If a minor was violated, the fine, according to the Mishnah, is not due to her.
- V. Tosef. Keth.
- Tosef.: A small child from the age of three years and one day. This is, no doubt, the correct reading. In the text of the Talmud 'three years and' is missing.
- The sign of beginning maturity.
- The father may sell his daughter as a maid-servant; v. Ex. XXI, 7.
- If she was violated; the word na'arah is used in Deut. XXII, 28, 29, excluding a minor.
- A girl becomes mature when she is twelve and a half years old. She is then called bogereth, v. Glos.
- When the girl is a na'arah the father has no more right to sell her.
- Sale applies only when the girl is a ketannah, and the fine applies only when the girl is a na'arah.
- According to the Sages, the fine is due to the girl both as a ketannah and a na'arah. In other words, the word na'arah in Deut. XXII, 28, 29 is not to be taken strictly.
- Lit., 'fine, yes; sale, no'!
also the fine [applies] when sale [applies].1
But are these [maidens]2 entitled to the fine! Why? Read here: 'and she shall be his wife', [that means] one who is fit to be his wife?3 — Said Resh Lakish: [It is written:] 'maiden', 'maiden', 'the maiden'4 once5 [the word 'maiden' is necessary] for itself,6 once to include [those maidens, the marrying of whom involves the transgression merely of] a plain prohibitory law,7 and once to include [those maidens, the marrying of whom involves] a transgression punishable with kareth.8 R. Papa said: [It is written:]9 'virgin','virgin', 'the virgins'; once [the word 'virgin' is necessary] for itself,10 once to include [those virgins, the marrying of whom involves the transgression merely of] a plain prohibitory law, and once to include [those virgins, the marrying of whom involves] a transgression punishable with kareth. Why does R. Papa not agree with Resh Lakish? — That [verse]11 he requires for [the same teaching] as that of Abaye, for Abaye said: If he cohabited with her12 and she died, he is free,13 for it is said: 'And he shall give unto the father of he maiden';14 [this means]: To the father of a maiden,15 but not to the father of a dead [person].16 And why did not Resh Lakish agree with R. Papa? — That [verse]17 he requires for an analogy18 for it is taught: [[t is written:] — 'he shall pay money according to the dowry of virgins,19 [this means that] this20 shall be like the dowry of virgins,21 and the dowry of virgins shall be like this.22 But Resh Lakish also requires it23 for [the same teaching] as that of Abaye, and R. Papa also requires it24 for the analogy?25 — Take therefore six words:26 'maiden', 'maiden', 'the maiden', 'virgin', 'virgins', 'the virgins': Two [are necessary] for themselves,27 one for the teaching of Abaye, and one for the analogy, [and] two remain over: one to include [those maidens, the marrying of whom involves the transgression] of a plain prohibitory law, and one to include [those maidens, the marrying of whom involves] a transgression punishable with kareth.
This28 [Mishnah] is to exclude [the view of] that Tanna.29 For it has been taught: [It is written:] and she shall be his wife.30 Simeon the Temanite says: [This means:] a woman who can become his wife;31 R. Simeon b. Menassia says: [This means:] a woman who can remain his wife.32 What difference is there between them?33 — R. Zera said: The difference between them is with regard to a mamzereth and a nethinah. According to him who says that there must be the possibility of her 'becoming' his wife, here34 also there is the possibility of her 'becoming' his wife.35 And according to him who says that there must be the possibility of her remaining his wife, here36 there is not the possibility of her remaining his wife.37 But according to R. Akiba, who says: Marriage takes no effect when there is a prohibitory law against38 it, what is the difference between them?39 — There is a difference between them in the case of a widow who marries a high priest, and this according to R. Simai, for it is taught:40 R. Simai says: Of all41 R. Akiba makes mamzerim,42 except [the issue of] a widow and a high priest, for the Torah says: 'he shall not take', and 'he shall not profane',43 [this teaches that] he makes [his issue] profane,44 but not mamzerim,45 And according to R. Yeshebab, who says: Come and let us cry out against Akiba b. Joseph, who says: Whenever the marriage is forbidden in Israel46 the child [of such marriage] is a mamzer,47 what is the difference between them?48 — The difference between them is
Original footnotes renumbered.
- During the whole period that sale applies to a girl, the fine also applies to her, extending however beyond that period, till her stage of bogereth.
- Mentioned in our Mishnah.
- Lit., 'a woman who is fit for him'. From the words of the Bible one would infer that the fine is payable only if he violated a maiden whom, in law, he could marry. But as to the maidens mentioned in the Mishnah, who are either generally prohibited to an Israelite for marriage, or there is kareth barring their way to marriage, (as in the case of the maidens enumerated in the second clause of the Mishnah), there should be no fine due to them.
- In Deut. XXII, 28 'maiden'; verse 29: 'the maiden', and 'the' in 'the maiden' is reckoned as a separate word representing the word 'maiden', so that we have the word 'maiden' written three times. To each of the three words a function is assigned in the Talmudic exposition. One 'maiden' refers to the ordinary unblemished maidens, one 'maiden' refers to the blemished maidens as mentioned in the first clause of the Mishnah, and one 'maiden' refers to the maidens enumerated in the second clause of the Mishnah. — The maidens mentioned in the second part of the first clause of the Mishnah seem to occupy a position of their own. V. Tosaf 29a, s.v. [H].
- Lit., 'one ("maiden")'.
- For the ordinary maiden, v. note 3.
- Lit., 'those guilty of a negative prohibition', which carries with it the punishment of flagellation only.
- V. Glos.
- Ex. XXII, 15, 16. There it speaks of seduction. R. Papa, apparently, puts seduction and violation on one level.
- V. supra nn. 3 and 5.
- Deut. XXII, 29.
- By force.
- From paying the fine.
- The full half-verse is: 'And the man that lay with her shall give unto the father of the maiden fifty silver pieces'. (Deut. XXII, 29.)
- I.e., of maiden that lives.
- If the maiden is dead, the father cannot be called any more the father of the maiden'. He can only be called the father of the dead maiden, and to such the fine is not payable.
- Ex. XXII, 16.
- Gezerah shawah; an analogy based on similarity of expressions. V. Glos.
- Ex. XXII, 16.
- The money to be pact in the case of seduction. (Ex. XXII, 16.)
- By 'the dowry of virgins' is meant, according to this teaching, the sum of money to be paid as a fine in Deut. XXII, 29, which is fifty; so here (Ex. XXII, 16) it has to be fifty.
- As in Ex. XXII, 16 the money consists of shekels, (this is derived from the special word [H], employed for 'pay')' so in Deut. XXII, 29, the fifty have to be shekels.
- The word 'the maiden'.
- The word 'the virgin'.
- Both the teaching of Abaye and the analogy are important to Resh Lakish and P. Papa.
- Lit., 'but six verses are written'. — Make your expositions from all the six words taken together.
- For the ordinary cases of seduction and violation.
- Our Mishnah, in which it is taught that the fine is due also in the case of the violation of maidens, the marriage with whom is prohibited, as a mamzereth or his sister.
- I.e., the author of the Baraitha. As to the Tannaim mentioned in the Baraitha, the views of both of them are excluded, v. Tosaf a.l.
- Deut. XXII, 29.
- Lit., 'to whom there is "becoming".' But his sister cannot 'become' his wife. The very act of marriage is impossible. No marriage, no betrothal, can take effect. V. Kid. 66b. Therefore the law of the fine would not apply to his sister or to any of the other five maidens mentioned in the second clause of the Mishnah.
- Lit., 'who is fitting to be retained'. He takes the word 'be', [H], in the sense of 'remaining'. This excludes a mamzereth, for although marriage with a mamzereth takes effect, there is 'prohibitory law' attached to it. (v. Kid. 66b). The marriage ought therefore to be discontinued. The mamzereth is thus a woman who cannot remain his wife. Therefore, according to R. Simeon the son of Menassia, the law of fine does not apply to her. — We thus see that our Mishnah excludes both the view of Simeon the Temanite and the view of R. Simeon the son of Menassia.
- Between Simeon the Temanite and R. Simeon b. Menassia (Rashi).
- In the case of mamzereth and nethinah.
- The marriage with a mamzereth or nethinah takes effect although there is a 'prohibitory law' against it. The mamzereth or nethinah can therefore become his wife, although she should not remain his wife. In the view of Simeon the Temanite it is the possibility of her becoming his wife that matters, and therefore they are entitled to the fine.
- In the case of mamzereth and nethinah.
- In the view of R. Simeon b. Menassia, it is the possibility of her remaining his wife that matters. And since a mamzereth or nethinah cannot remain his wife, they are not entitled to the fine.
- V. Yeb. 44a and 49a and v. ibid. 10b and 52b.
- Between Simeon the Temanite and R. Simeon the son of Menassia. A mamzereth or nethinah could not, on this view, become his wife even according to R. Simeon b. Menassia; what is then the difference between him and Simeon the Temanite?
- In a Baraitha; v. Yeb. 64a and 68a.
- I.e., of all the issues of prohibited unions.
- R. Akiba declares the offspring of all prohibited unions to be mamzerim, v. Yeb. 49a.
- Lev. XXI, 14f. The two verses read: A widow or a divorced woman, or a profane woman, or a harlot, these shall he not take; but a virgin of his own people shall he take to wife. And he shall not profane his seed among his people, for I am the Lord who sanctify him. Vv. 10-15 deal with the high priest.
- The children are only unfit for the priesthood.
- In this case R. Akiba admits that the marriage takes effect, although there is a prohibitory law against it, so that, in this case, according to Simeon b. Menassia, though the marriage would take effect, since he could not retain her owing to the prohibition, there is no fine, whereas according to Simeon the Temanite, there is a fine.
- Lit., 'he who has no (permission of) union in Israel'.
- This rule would include also the marriage of a widow and a high priest and would make also the child of such a marriage a mamzer.
- What difference would there be now between Simeon the Temanite and R. Simeon b. Menassia?