וְכִֽי־יִנָּצ֣וּ אֲנָשִׁ֗ים וְנָ֨גְפ֜וּ אִשָּׁ֤ה הָרָה֙ וְיָצְא֣וּ יְלָדֶ֔יהָ וְלֹ֥א יִהְיֶ֖ה אָס֑וֹן עָנ֣וֹשׁ יֵעָנֵ֗שׁ כַּֽאֲשֶׁ֨ר יָשִׁ֤ית עָלָיו֙ בַּ֣עַל הָֽאִשָּׁ֔ה וְנָתַ֖ן בִּפְלִלִֽים׃
사람이 서로 싸우다가 아이 밴 여인을 다쳐 낙태케 하였으나 다른 해가 없으면 그 남편의 청구대로 반드시 벌금을 내되 재판장의 판결을 좇아 낼 것이니라
Jerusalem Talmud Terumot
60The commentators declare the text in Ketubot as original and the one here corrupt. However, the Babli in Ketubot 33a–36a seems more to refer to a text like the one in Terumot which is preferable as lectio difficilior. On the other hand, the last paragraph of the Halakhah shows that the text here is copied from Ketubot. Therefore, both versions have to be explained. Rebbi Judah bar Pazi asked: What say these Tannaïm about prohibitions and extirpation61The text here is based on the earlier text excluding payment in death penalty cases, Note 19. In the Babli, Ketubot 34b/35a, this is deduced as above and in addition from Ex. 21:22–23, where payment is due if a pregnant woman is injured and an abortion is caused, but no payment is due if the woman is murdered.? Rebbi Yose said, that is a problem for the rabbis. Rebbi Jonah said, why can we not understand it from what Rebbi Simeon ben Ioḥai stated? As Rebbi Simeon ben Ioḥai stated: “Rebbi Ṭarphon says, extirpation was mentioned for the Sabbath and the Day of Atonement. Since for extirpation mentioned for the Sabbath there is no payment in a case involving the death penalty61The text here is based on the earlier text excluding payment in death penalty cases, Note 19. In the Babli, Ketubot 34b/35a, this is deduced as above and in addition from Ex. 21:22–23, where payment is due if a pregnant woman is injured and an abortion is caused, but no payment is due if the woman is murdered., so for extirpation mentioned for the Day of Atonement there is no payment in a case involving extirpation62In the Babli, Ketubot 35a, only R. Simeon ben Laqish accepts this reasoning; R. Joḥanan admits payment concurrent with extirpation.
The text in Ketubot deals with the situation in which a simple transgression for which the punishment is flogging is combined with a transgression punishable by extirpation and there was cautioning for the first but not for the second; can the flogging be executed? There is no question that flogging is the earthly punishment for most extirpation transgressions, as stated in Mishnah Makkot 3:16: “All those subject to extirpation who were flogged became free from extirpation, as it is written (Deut. 25:3): ‘that your brother should not be degraded in your eyes;’ after he was flogged he is your brother.”.” Rebbi Mana said before Rebbi Yose: When do we need this? For Rebbi Simeon ben Laqish! But for Rebbi Joḥanan, if he admits flogging in death penalty cases, certainly payment in extirpation cases63In the Babli, Ketubot 35b, this is deduced from the Mishnah which assigns a fine to a brother who seduced his sister which, in absence of witnesses, is an extirpation case.
For the Ketubot text it is obvious that a capital crime can never lead to a sentence of flogging since no sentence can be delivered without the testimony of two witnesses. If there were witnesses it would be a case for the death penalty; without witnesses it is a case for the Heavenly court.. He said to him, we need it even for Rebbi Joḥanan! They disagreed: If somebody slaughters [an animal] and its young64Slaughtering an animal and its young on the same day is a simple transgression, Lev. 22:28. Idolatrous sacrifices are capital crimes. for idolatrous purposes. Rebbi Joḥanan says, if he was cautioned about an animal and its young, he is flogged, about idolatry, he is stoned to death. Rebbi Simeon ben Laqish said, even if he was cautioned about an animal and its young, he is not flogged since he would be stoned to death had he been cautioned about idolatry. Here are two cases65The prohibition of slaughtering an animal and its young on the same day also applies to profane slaughter; it is unrelated to the prohibition of idolatry. The parallel discussion in the Babli is Ḥulin 81b, where it is pointed out that the case discussed must be that the first animal was slaughtered for food but the second for idolatry; only in that case does one act result in two transgressions., there it is one case66The disagreement between R. Joḥanan and R. Simeon ben Laqish is the case that there is only one transgression which, however, cannot be prosecuted in criminal court for lack of eye witnesses..
The text in Ketubot deals with the situation in which a simple transgression for which the punishment is flogging is combined with a transgression punishable by extirpation and there was cautioning for the first but not for the second; can the flogging be executed? There is no question that flogging is the earthly punishment for most extirpation transgressions, as stated in Mishnah Makkot 3:16: “All those subject to extirpation who were flogged became free from extirpation, as it is written (Deut. 25:3): ‘that your brother should not be degraded in your eyes;’ after he was flogged he is your brother.”.” Rebbi Mana said before Rebbi Yose: When do we need this? For Rebbi Simeon ben Laqish! But for Rebbi Joḥanan, if he admits flogging in death penalty cases, certainly payment in extirpation cases63In the Babli, Ketubot 35b, this is deduced from the Mishnah which assigns a fine to a brother who seduced his sister which, in absence of witnesses, is an extirpation case.
For the Ketubot text it is obvious that a capital crime can never lead to a sentence of flogging since no sentence can be delivered without the testimony of two witnesses. If there were witnesses it would be a case for the death penalty; without witnesses it is a case for the Heavenly court.. He said to him, we need it even for Rebbi Joḥanan! They disagreed: If somebody slaughters [an animal] and its young64Slaughtering an animal and its young on the same day is a simple transgression, Lev. 22:28. Idolatrous sacrifices are capital crimes. for idolatrous purposes. Rebbi Joḥanan says, if he was cautioned about an animal and its young, he is flogged, about idolatry, he is stoned to death. Rebbi Simeon ben Laqish said, even if he was cautioned about an animal and its young, he is not flogged since he would be stoned to death had he been cautioned about idolatry. Here are two cases65The prohibition of slaughtering an animal and its young on the same day also applies to profane slaughter; it is unrelated to the prohibition of idolatry. The parallel discussion in the Babli is Ḥulin 81b, where it is pointed out that the case discussed must be that the first animal was slaughtered for food but the second for idolatry; only in that case does one act result in two transgressions., there it is one case66The disagreement between R. Joḥanan and R. Simeon ben Laqish is the case that there is only one transgression which, however, cannot be prosecuted in criminal court for lack of eye witnesses..
Jerusalem Talmud Ketubot
MISHNAH: The one who comes to his daughter, his granddaughter from his daughter or his son, his wife’s daughter, his wife’s granddaughter from her daughter or her son42These are the only cases among the incest prohibitions of Lev. 18,20 which are both capital crimes and may involve a virgin girl. does not pay the fine since he committed a capital crime and should be executed by the court; for anybody committing a capital crime43Even if he cannot be executed because of missing eyewitnesses to a due warning and the deed. does not pay cash as it is said44Ex. 21:22. The next verse reads: “But if it is a case of murder, you shall take life for life.” This excludes the imposition of a fine in a murder trial.: “If there is no case of murder, a fine shall be imposed.”
Jerusalem Talmud Ketubot
Rebbi Jeremiah in the name of Rebbi Eleazar: We understand that, since it said44Ex. 21:22. The next verse reads: “But if it is a case of murder, you shall take life for life.” This excludes the imposition of a fine in a murder trial. “if there is no case of murder, a fine shall be imposed”, that if it is a case of murder, you shall take life for life? Why does the verse say, it is a case of murder? To add the case of premeditation and warning48Which is a case where a person actually could face execution.. Rebbi Yose said, is that not a Mishnah, “for anybody committing a capital crime does not pay cash”, that it deals not only with cases of error. 49Cf. fol. 27b, line 30; Terumot 7:1, Notes 16,18; Babli 35a.Ḥizqiah said, one states a baraita50Lev. 24:21.: “The slayer of an animal must pay for it but the slayer of a human shall be put to death.” Just as you did not make a difference between unintentional and intentional action of a slayer of an animal to force him to pay money, so you should not make a difference between unintentional and intentional action of a slayer of a human to free him from paying money.