Babylonian Talmud: Tractate Kethuboth

Folio 44a

Here also¹  [it may similarly be said:] This is the reason why she cannot distrain [for the additional jointure from the earlier date]: Since he did not write in her favour, 'I have added a hundred zuz to the two hundred'²  she [having accepted the deed] must have renounced her former lien.³

The Master⁴  has laid down that if she wishes she may distrain with the earlier kethubahs and if she prefers she may distrain with the later one.⁵  Is it then to be assumed [that this ruling] differs from that of R. Nahman who laid down that if two deeds⁶  were issued one after the other the latter cancels the former?⁷  — [No, for] has it not been stated in connection with this statement that R. Papa said: R. Nahman nevertheless admits that if the man has added⁸  one palm⁹  the insertion was intended as an additional privilege?¹⁰  And here also, Surely, [the husband] has added something.¹¹

[To turn to] the original text.¹²  R. Nahman laid down that if two deeds were issued one after the other the latter cancels the former. Said R. Papa: R. Nahman nevertheless admits that if the man has added one palm the insertion was intended as an additional privilege.¹³  It is obvious [that the reason why both deeds are valid where] the first [was a deed] of sale and the second [a deed] of gift¹⁴  [is because the action of the owner] was intended¹⁵  to improve the other's rights,¹⁶  as a safeguard against¹⁷  the law of pre-emption;¹⁸  and much more [is this¹⁹  obvious where] the first was for a gift and the second for a sale, for it may then be presumed that the latter was written in that manner in order to safeguard the other against a creditor's rights.²⁰  [What], however, [is the reason why] the second cancels the first where both deeds²¹  were for a sale or both for a gift? — Rafram replied: Because it may be presumed that [the holder of the deeds] has admitted to the other [the invalidity of the first deed].²²  R. Aha replied: Because it might be presumed that [the holder of the deeds] has surrendered his security of tenure.²³  What is the practical issue between them?²⁴  — The disqualification of the witnesses,²⁵  payment of compensation for unsufruct²⁶  and land tax.²⁷

What is [the decision] in respect of the kethubah?²⁸  — Come and hear what Rab Judah laid down in the name of Samuel who had it from R. Eleazar the son of R. Simeon:²⁹  [The statutory kethubah of] a maneh³⁰  or two hundred zuz³¹  [may be distrained for] from [the date of] the betrothal but the additional jointure only from the date of the marriage. The Sages, however, ruled: The one as well as the other [may be distrained for only] from the date of the marriage. The law is that the one as well as the other [may be distrained only] from the date of the marriage.

MISHNAH. THE DAUGHTER OF A PROSELYTE WOMAN WHO BECAME A PROSELYTE TOGETHER WITH HER MOTHER³²  AND THEN³³  PLAYED THE HARLOT IS SUBJECT TO THE PENALTY³⁴  OF STRANGULATION,³⁵  BUT NOT TO³⁶  [STONING AT] THE DOOR OF HER FATHER'S HOUSE³⁷  NOR [DOES HER HUSBAND PAY THE] HUNDRED SELA'.³⁸  IF SHE WAS CONCEIVED IN UNHOLINESS³⁹  BUT HER BIRTH WAS IN HOLINESS⁴⁰  SHE IS SUBJECT TO THE PENALTY OF STONING BUT NOT TO³⁶  [THAT OF BRINGING HER OUT TO 'THE DOOR OF HER FATHER'S HOUSE', NOR [DOES HER HUSBAND PAY THE] HUNDRED SELA'. IF SHE WAS BOTH CONCEIVED AND BORN IN HOLINESS⁴⁰  SHE IS REGARDED AS A DAUGHTER OF ISRAEL IN ALL RESPECTS.⁴¹ 

ONE⁴²  WHO HAD A FATHER BUT NO DOOR OF HER FATHER'S HOUSE',⁴³  OR A 'DOOR OF HER FATHER'S HOUSE' BUT NO FATHER, IS NEVERTHELESS SUBJECT TO THE PENALTY⁴⁴  OF STONING,⁴⁵  [FOR THE REGULATION, 'TO] THE DOOR OF HER FATHER'S HOUSE',⁴⁶  WAS ONLY INTENDED AS [AN INDEPENDENT] PRECEPT.⁴⁷

1. The last cited ruling of R. Huna.
2. But has included the two hundred in the three hundred under a later date.
3. Her right to distraint does, therefore, begin on the later date only. In the case of ordinary kethuboth, however, to which R. Huna's first ruling refers, a special clause to the effect that the husband has willingly added the additional jointure to the statutory kethubah forms part of the contract. The woman's original rights consequently remain unimpaired (cf. supra p. 248, n. 8).
4. I.e., R. Huna in his second ruling. supra 43b.
5. Lit., 'with that'.
6. Relating to the same transaction and the same persons.
7. And the right to distrain begins with the second date. Were R. Nahman's ruling to be applied to the case spoken of by R. Huna, would not the second kethubah have cancelled the first and the woman would have had no choice in the matter?
8. In the text of the second deed.
9. Or any other object or money. The addition of a palm applies to a sale, or gift of a plot of land.
10. Lit., 'he wrote It for an addition'. The deed is not thereby impaired. and it is, therefore, within the right of the holder of the deeds to distrain either with the second deed and thus recover the original as well as the addition but from the later date only, or to distrain from the first date the original alone without the addition.
11. Another hundred zuz.
12. Which was cited in the discussion just concluded.
13. V. p. 249 for notes.
14. And related to the same transaction and the same persons as the first one.
15. Lit., 'he (intended) when he wrote for him'.
16. Even though no material addition was made to the original sale.
17. Lit., on account of'.
18. In virtue of which the next abutting neighbour can insist on exercising the right of first purchase. This right applies to a sale but not to a gift. [H] lit., 'one on the border', sc the owner of an adjacent field who has the right of Pre-emption.
19. The reason for the validity of both deeds.
20. Only a buyer may claim compensation from the original owner if a creditor of that owner had distrained upon the land he bought. A donee has no such right. By the writing of the second deed the owner has conferred upon the donee the additional rights of a buyer.
21. Lit., 'both of them'.
22. And willingly accepted the second though his rights of distraint were thereby restricted to the later date.
23. During the period intervening between the date of the first, and that of the second deed.
24. Rafram and R. Aha.
25. According to Rafram the witnesses, since they put their signatures to an invalid document, must be regarded as legally unfit for further evidence. (So Rashi. Tosaf., however, s.v. [H], object to this view and (a) restrict the disqualification of the witnesses in respect of such a deed only as is held by the man who had cast aspersion on their characters or (b) apply the disqualification to the signatures). According to R. Aha, who does not question the authenticity of the deed, the character of the witnesses is not in any way affected.
26. Which the holder of the deeds enjoyed between the first and the second date. According to Rafram, the holder of the deeds must pay such compensation since the first deed is presumed to be invalid. According to R Aha no such compensation is paid since the holder of the deeds renounced only his security of tenure but not his unsufruct.
27. The original owner must pay it according to Rafram and the holder of the deeds according to R. Aba.
28. I.e., 'from which date may distraint be effected?' (V. p. 247, n. 11 and 248, n. 1).
29. Var. lec. 'Eliezer b. Shamua' (Bomb. ed.).
30. V. Glos.
31. The respective amounts due (a) to a widow or divorcee, and (b) to a virgin.
32. Lit., 'the female proselyte whose daughter became a proselyte with her'.
33. Having become betrothed while she was still a na'arah (v. Glos).
34. Lit., 'behold this'.
35. The penalty prescribed for a faithless married woman.
36. Lit., 'she has not either'.
37. Prescribed in Deut. XXII, 21 for a betrothed Israelite damsel (na'arah) who played the harlot.
38. Due from a man who wrongfully accused his wife (v. Deut. XXII, 19). [Nor is he flagellated, the fine and the flogging being prescribed in juxtaposition to one another (Ritba)].
39. Sc. while her mother was still a heathen.
40. After her mother's conversion.
41. She is subject to the penalties and entitled to the privilege as prescribed in Deut. XXII. 19, 21.
42. Any daughter of Israel (Rashi) who played the harlot while she was a betrothed na'arah.
43. When her father, for instance, had no house.
44. Lit., 'behold this'.
45. V. supra note I.
46. [H] (Deut. XXII, 21). Cur. edd. read [H].
47. Not as an indispensable part of the penalty.

GEMARA. Whence is this¹  deduced? — Resh Lakish replied: Since Scripture said, That she die²  it³  included also her who WAS CONCEIVED IN UNHOLINESS BUT HER BIRTH WAS IN HOLINESS: If so, [should not her wrongful accuser]⁴  also be flogged⁵  and [condemned] to pay the hundred sela'?⁶  Scripture stated, That she die⁷  [implying that she] was included in respect of death but not in respect of the fine.

Might it not be suggested [that Scripture intended] to include one who was both conceived and born in holiness? — Such a person is a proper Israelite woman.⁸  But can it not be said that [Scripture intended] to include one conceived and born in unholiness? — If this were so what purpose would be served⁹  by the expression,¹⁰  'In Israel'?¹¹

R. Jose b. Hanina ruled: A man who brought an evil name upon an orphan girl is exempt, for it is said in Scripture, And give them unto the father of the damsel,¹²  Which excludes this girl who has no 'father'.

R. Jose b. Abin, or it might be said, R. Jose b. Zebida, raised an objection: If her father utterly refuse¹³  [was meant]¹⁴  to include an orphan girl in respect of the fine;¹⁵  so R. Jose the Galilean.¹⁶  [Why then should the orphan in this case¹⁷  be excluded]? — He raised the objection and he himself supplied the answer: [This¹⁸  is a case of a girl] who became an orphan after the man had intercourse with her.¹⁹

Rabbah²⁰  ruled: He²¹  is guilty. Whence [did he infer this]? — From that which Ammi taught: A virgin of Israel,²²  but not a proselyte virgin.²³  Now if you assume that in a case of this nature²⁴  in Israel²⁵  guilt is incurred, one can well see why it was necessary for a Scriptural text to exclude proselytes. If you, however, assume that in a case of this nature in Israel²⁵  [the offender] is exempt [the difficulty would arise:] Now [that we know that the offender] is exempt [even if he sinned] against Israelites²⁵  was it any longer necessary [to mention exemption if the offence was] against proselytes?²⁶

Resh Lakish ruled: A man who has brought an evil name²⁷  upon a minor is exempt,²⁸  for it is said in Scripture, And give them unto the father of the damsel,²⁹  Scripture expressed the term na'arah³⁰  as plenum.³¹  To this R. Aha³²  b. Abba³³  demurred: Is the reason then³⁴  because in this case 'the na'arah'³⁵  was written [in Scripture], but otherwise it would have been said that even a minor [was included], surely, [it may be objected] it is written in Scripture, But if the things be true, and the tokens of virginity be not found in the damsel, then they shall bring out the damsel to the door of her father's house and [the men of the city] shall stone her,³⁶  while a minor is not, is she, subject to punishment?³⁷  — [The explanation,] however, [is that, since] na'arah [has been written] here³⁸  [it may be inferred that only where na'arah³⁹  is used is a minor excluded] but wherever Scripture uses the expression na'arah⁴⁰  even a minor is included.⁴¹

Shila taught: There are three modes [of execution] in the case of a [betrothed] damsel⁴²  [who played the harlot]. If witnesses appeared against her in the house of her father-in-law⁴³  [testifying] that she had played the harlot in her father's house⁴⁴

1. That IF SHE WAS CONCEIVED IN UNHOLINESS BUT HER BIRTH WAS IN HOLINESS SHE IS SUBJECT TO THE PENALTY OF STONING.
2. Deut. XXII, 21, which is superfluous after Shall stone her with stones (ibid.).
3. By the insertion of the superfluous expression.
4. Supra p. 251, n. II.
5. In accordance with Deut. XXII, 18, v. p. 251. n. 11.
6. V. Deut. XXII, 19.
7. Ibid. 21; emphasis on 'die'.
8. And requires no special text to include her.
9. Lit., 'what would it benefit him'.
10. Deut. XXII, 21.
11. None whatever. Hence it follows that the last mentioned was excluded.
12. Ibid. 29.
13. itnh itn Ex. XXII, 16, dealing with a case of seduction.
14. Since the verb was repeated (v. note 2).
15. One form of the verb ([H]) referring to the father and the other (the infin. [H]) to a girl who has no father.
16. Which shews that, though the laws in respect of seduction (Ex. XXII, 15f) are inferred from those of outrage (Deut. XXII, 28) and vice versa, and though in the latter case Scripture specifically stated that the fine is payable to the damsel's father (ibid. 29), an orphan is nevertheless entitled to the fine.
17. In that of an evil name.
18. The Tannaitic ruling of R. Jose the Galilean.
19. Only such an orphan is included. All others are excluded by the Scriptural mention of father.
20. In opposition to the view of R. Jose b. Hanina supra.
21. The man who brought an evil name upon an orphan.
22. Deut. XXII, 19.
23. I.e., the penalties spoken of in the Scriptural text apply only to the former and not to the latter.
24. Sc. that of a girl who is fatherless. A proselyte, though his or her heathen parents are alive, has the status of one who is fatherless.
25. Sc. an Israelite girl who is fatherless.
26. Of course not, since the latter case would be self-evident a minori ad majus. As exemption, however, was specified in this case it may be concluded that in that of an Israelite orphan guilt is incurred.
27. V. Deut. XXII, 19.
28. From paying the prescribed fine 'of a hundred shekels'.
29. V. Deut. XXII, 19.
30. Damsel, Heb. [H].
31. With 'he' at the end of the word. As elsewhere [H] is written [H] (na'ara) defective, it is assumed that the plenum here was intended to refer to na'arah (v. Glos.) only, and not to a minor, v. supra 40b, and notes.
32. Var. 'Adda' (cf. supra 40b).
33. Var. 'Ahabah' (cf. l.c. and MS.M.).
34. Why the fine mentioned is not incurred where a minor is concerned.
35. [H], 'the … damsel'.
36. Deut. XXII. 20f.
37. And a minor would consequently have been excluded even if [H] defective had been written.
38. Where a minor is obviously excluded because she is not subject to penalties.
39. [H].
40. [H].
41. I.e., the exclusion mentioned was not necessary for the case spoken of in this context where it is obvious (v. supra n. 11) but for the purpose of a general deduction.
42. Na'arah (v. Glos.).
43. Sc. after her marriage.
44. While she was betrothed.