with regard to the marriage with an Egyptian or an Edomite [woman], in which case there is a transgression [merely] of a positive law.1 — That is all right if R. Yeshebab [by his statement] only came to exclude the view of R. Simai.2 But if his statement was his own,3 whenever the marriage is forbidden in Israel, the child [of such a marriage] is a mamzer. It would include also a marriage with regard to which a positive law has been transgressed. What is [then] the difference between them? — The difference between them is with regard to a girl, who is no more a virgin, who married a high priest.4 — And why is this5 different?6 — It is a law which does not apply to all.7
R. Hisda said: All agree that he who has intercourse with a woman during menstruation8 [against her will] has to pay the fine,9 for according to him who holds that there must be the possibility of her10 'becoming' his wife, there is with regard to her11 the possibility of her becoming his wife,12 and according to him who holds that there must be the possibility of her13 remaining his wife, there is with regard to her14 the possibility of her remaining his wife.15
Our [Mishnah]16 likewise excludes the view of R. Nehunia b. ha-Kaneh, for it is taught: R. Nehunia b. ha-Kaneh, made the Day of Atonement equal to the Sabbath with regard to payment; as [he who desecrates] the Sabbath17 forfeits his life18 and is free from payment,19 so [he who desecrates] the Day of Atonement20 forfeits his life21 and is free from payment. What is the reason [for the view] of R. Nehunia b. ha-Kaneh? — Abaye said: It is said 'harm'22 [in the case of death]23 by the hand of man,24 and it is said 'harm'25 [in the case of death] by the hand of heaven, [so I say:] As in the case of the 'harm' done by the hand of man one is free from payment,26 so also in the case of 'harm' done by the hand of heaven, one is free from payment.27 To this R. Adda b. Ahaba, demurred: Whence [do you know] that Jacob warned his sons28 against cold and heat,29 which are by the hand of heaven?30 Perhaps [he warned them] against lions and thieves, which are 'by the hand of man?'31 — Is it that Jacob warned them against this and did not warn then, against that? Jacob warned then, against every kind of harm.32
[But] are cold and heat by the hand of heaven? Is it not taught: Everything is 'by the hand of heaven' except cold and heat, for it is said: 'Cold and heat are in the way of the froward; he that keepeth his soul holdeth himself far from them'?33 Further, are lions and thieves 'by the hand of man'? Did not R. Joseph say. and R. Hiyya teach: Since the day of the destruction of the Temple, although the Sanhedrin ceased,34 the four forms of capital punishment35 have not ceased? 'They have not ceased,' [you say]? Surely they have ceased! But [say]
Original footnotes renumbered.
- With regard to the Edomite and the Egyptian it is stated in Deut. XXIII, 9: 'The children of the third generation that are born unto them shall enter into the congregation of the Lord.' This is a 'positive law'. That the marriage with an Edomite and an Egyptian of the second generation is forbidden is derived from this positive law. And when a prohibitory law is derived from a positive law, it is regarded as a positive law. And in such a case the marriage takes effect, although it should be discontinued. Thus we would have a difference between Simeon the Temanite and Simeon the son of Menassia.
- If his statement refers only to R. Simai, it is limited by the words of R. Simai, and a positive law (i.e., a prohibitory law derived from a positive law) cannot be brought in.
- And is therefore unlimited.
- In Lev. XXI, 13 the high priest is commanded to take as his wife a virgin. If he marries a girl who is no more a virgin the marriage takes effect, although it should be discontinued. And so we have again a difference between Simeon the Temanite and R. Simeon b. Menassia.
- Prohibition derived from a positive law.
- From other such prohibitions (e.g., the prohibition with regard to the Edomite and Egyptian) v. p. 164. nn. 6 and 8.
- It applies only to the high priest. Therefore it is not treated as the other prohibitory laws that arc derived from positive laws, and it would not be included in the general ruling of R. Akiba even according to R. Yeshebab.
- The last case in the second clause of our Mishnah.
- Although the cohabitation with a woman during menstruation is prohibited and is punishable with kareth, v. Lev. XVIII, 19 and 29.
- The violated maiden.
- The menstruant woman.
- The marriage of a woman during menstruation takes effect. The fact that cohabitation during menstruation is forbidden does not affect the validity of the marriage, cf. Yeb. 49b and Kid. 68a. The condition of Simeon the Temanite is therefore fulfilled.
- The violated maiden.
- The menstruant woman.
- The marriage of a menstruous woman is entirely valid and may be continued. Thus the condition of R. Simeon b. Menassia is fulfilled.
- In the second clause of which it is taught that he who violates his sister or any of the other six maidens enumerated, the intercourse with whom is punishable by kareth, has to pay the fine.
- By doing forbidden work on that day.
- I.e., he is guilty of a transgression punishable by death (by the hand of man, that is by the court), v. Ex. XXXI, 15 and XXXV, 2.
- If, in doing the forbidden work on the Sabbath, he caused damage to someone's property (e.g., if he set fire to a stack of corn) he is free from paying for the damage done, since the transgression involves the death penalty, and where there is the death penalty, there is no payment of money, on the principle that the smaller offence, for which the payment of money is due, is merged in the greater offence v. infra.
- By doing forbidden work on that day.
- I.e., he is guilty of a transgression punishable by kareth; v. Lev. XXIII, 29, 30. kareth is a divine visitation. Compare 'And (that soul) shall be cut off from among his people' (v. 29) with 'and I will destroy that soul from among his people' (v. 30). Kareth is called in the Talmud 'death by the hand of heaven', while the death penalty, i.e., death by the court, is called 'death by the hand of man'. T. Nehunia b. ha-Kaneh makes 'death by the hand of heaven' (although it is not known when it will come, and when it comes it may be regarded by some people as a natural death; cf. Sema. III, 10) equal to 'death by the hand of man (which is executed through the Court, and all see that the penalty of death was inflicted for the transgression) and applies to it also the principle that the lesser offence is merged in the greater. On this view since the intercourses mentioned in the second clause of our Mishnah are punishable with kareth, the fine would not he paid.
- [H] Ex. XXI. 22, 23.
- 'Harm' in Ex. XXI, 22, 23 means (also) death as v. 23 ('then thou shalt give life for life') clearly shews.
- Cf. v. 22: And if men strive together and hurt a woman with child etc.
- V. Gen. XLII. 4. also XLIV, 29 There the reference is to 'harm' that may befall Benjamin on the Journey which may result in death. V. infra.
- In Ex. XXI, 22, when no death (or other 'harm') follows, a payment of money is made. But when death follows, the death penalty is inflicted (v. 23) and no payment of money is made. This is clear, since payment of money is only mentioned to v. 22, and in v. 23 only 'life for life' is mentioned.
- Abaye's reasoning is as follows: i. He proves that 'harm' refers both to the harm done by man (including death) and to the harm caused by heaven (including death). Therefore 'death by the hand of heaven' equals 'death by the hand of man'. ii. In the case in which 'death by the hand of man' is mentioned, it is stated that the penalty of death is inflicted ('life for life'), and no payment of money is made. The same applies to a case where the penalty is 'death by the hand of heaven'. The analogy could only he between the two words 'harm'. Once the equality of the two kinds of death is established (through the analogy), the equality of the consequences of these two kinds of death follows.
- In Gen. XLII, 4.
- So Rashi; fast. 'blowing cold winds'. The words are taken from Prov. XXII, 5.
- Cold and heat come from God.
- Thieves are 'the hand of man'. Lions are apparently called 'the hand of man', as they are not 'the hand of heaven in the same sense in which cold and heat are 'the hand of heaven,' v., however, infra.
- Lit., 'all things'. And such harm as is 'the hand of heaven is included.
- Prov. XXII. 5. also A.Z. (Sonc. ed.) p. II, n. 2.
- And capital punishment could no longer he decreed by the Jewish Courts.
- Lit., 'the four deaths', v. Sanh. 49b.
the judgment of the four forms of capital punishment has not ceased.1 He who would have been sentenced to stoning,2 either falls down from the roof or a wild beast treads him down.3 He who would have been sentenced to burning, either falls into a fire4 or a serpent bites him.5 He who would have been sentenced to decapitation.6 is either delivered to the government7 or robbers come upon him.8 He who would have been sentenced to strangulation, is either drowned in the river or dies from suffocation.9 But reverse it: Lions and thieves are 'by the hand of heaven', and cold and heat are 'by the hand of man'.
Raba said: The reason [for the view] of R. Nehunia b. hakaneh, is [derived] from here:10 [It is written:] And if the people of the land do not all hide their eyes from that man, when he giveth of his seed unto Molech, [and put him not to death]; then I will set my face against that man, and against his family, and will cut him off.11 [With these words] the Torah says:12 My kareth is like your death [-penalty]; as [in the case of] your death[-penalty] one is free from payment, so [in the case of] my kareth one is free from payment. What is the difference between Raba and Abaye? — The difference is [with regard to] a stranger13 who ate terumah.14 According to Abaye he is free [from payment],15 and according to Raba he is bound [to pay].16 But is he free [from payment] according to Abaye? Did not R. Hisda say: R. Nehunia b. ha-Kaneh admits that he who stole [forbidden] fat17 belonging to his neighbour, and ate it, is bound [to pay],18 because he was guilty of stealing before he came to [the transgression of] the prohibition with regard to [forbidden] fat?19 Hence [you say that] as soon as20 he lifted it21 up he acquired it,22 but he did not become guilty of the transgression23 punishable with death until he had eaten it. Here24 also, when he lifted it25 up he acquired it, but he did not become guilty of the transgression26 punishable with death until he had eaten it!27 — Here we treat of a case where his friend stuck it28 into his mouth.29 [But] even then,30 as soon as he chewed it, he acquired it, but he is not guilty of the transgression punishable with death until he has swallowed it!31 — When [his friend] stuck it into his oesophagus.32 How shall we imagine this case? If he can give it back,33 let him give it back.34 And if he cannot give it back, why should he be guilty?35 — It speaks of a case when he can give it back only with an effort.36 R. Papa said, When his friend put liquids of terumah into his mouth.37 R. Ashi said: [it speaks of a case] when a stranger ate his own terumah.38
Original footnotes renumbered.
- The punishment comes in corresponding forms.
- To death by stoning.
- And kills him.
- A conflagration.
- And the poison burns and kills him.
- With a sword, v. Sanh. 49b.
- To the Roman Government.
- And slay him.
- [H]; so Jast.; Rashi: croup.
- From the following passage of the Bible.
- Lev. XX, 4f.
- I.e., God says in the Torah to Israel.
- I.e., A non-priest.
- If a stranger eats terumah, he is punished with death, not with death 'by the hand of man' but with death 'by the hand of heaven'. V. Lev. XXII, 9, 10 and cf. Sanh. 83a. The death 'by the hand of heaven' in this case is, however, a milder form of kareth. Kareth proper means the cutting off of the life of the transgressor and of his family. The death in the case of a stranger eating terumah means death similar to that of kareth, namely 'by the hand of heaven,' but applied only to the offender. V. Rashi, a.l. Cf. also Lev. XX, 5 (then I will set my face against that man and against his family and I will cut him off).
- For the terumah. 'Harm' indicates any kind of death, also the milder form of death 'by the hand of heaven', as that in the case of eating terumah.
- To the priest for the terumah. Raba derives the reason for the view of R. Nehunia b. ha-Kaneh, from Lev. XX, 4, 5, and there kareth proper is spoken of. According to Raba, therefore, only kareth proper is made equal to death 'by the hand of man' with regard to one being free from payment, but not the milder form of kareth, of death 'by the hand of heaven, as in the case of a stranger eating terumah. In that case, payment must be made.
- Heleb; v. Lev. III, 17; VII, 23 and 25. In the latter verse kareth is the punishment mentioned for eating heleb. Cf. Ker. 2a, 4a-b.
- Although the eating of heleb is punishable with kareth; v. preceding note.
- Since the crime of stealing was committed before the sin of eating heleb, the principle of the lesser offence being merged in the greater (v. supra 30a) does not apply.
- Lit., 'from the time that'.
- The heleb.
- And from that moment becomes liable for the theft.
- Of eating the heleb.
- In the case of terumah.
- The terumah.
- Of eating terumah.
- And he should therefore he liable to pay for it.
- The terumah.
- So that he did not acquire it by lifting it up but only from the moment he eats it, so that the offence of stealing and of eating the terumah are committed simultaneously.
- Lit., 'the end of the end'.
- The theft is thus committed before the offence of eating the terumah, whereas there is no liability for eating terumah before he swallows it.
- So there was no chewing.
- I.e., if he can bring it out of his oesophagus.
- And by failing to do so he becomes liable from that very moment for stealing it.
- Of the transgression of eating terumah, seeing it was a case of force majeure.
- [So that even if he had brought it up, it would have been useless. Consequently he cannot be held guilty of stealing. What he can be made liable to pay for is for actually eating the terumah. This act, however, carries with it also a death penalty which applies in this case, since he could by an effort have brought it up. As both penalties do thus arise simultaneously, he is free from payment.]
- In this case also both penalties come at the same time; cf. previous note.
- Terumah of his own produce, which he separated and was going to give to the priest. In eating it he is guilty of a transgression punishable with death 'by the hand of heaven'.