Kesubos - Daf 33
- עדים זוממין לאו בני התראה נינהו
Rebbe Elazar says: Eidim zomemim pay the money and do not receive malkus משום דלאו בני התראה נינהו – because they are not subject to receiving warning before they commit their transgression. Rashi explains that we do not subject someone to a physical punishment if they have not been warned. Rava explained: If we warn them a day or an hour before they testify, they will say, “We forgot the warning.” If we warn them right before they testify, they will withdraw and not testify. Rashi explains that they will say, “If you suspect us, why should we testify at all?” If we warn them after they testify, then it is too late. Rashi explains that they cannot retract their testimony. Abaye objected to this and said they should be warned after they testify בתוך כדי דיבור – within the time it takes to make a greeting. A statement is not considered completed until after the time to make a greeting elapses. Rav Acha brei d’Rav Ika also objected and suggested that they should be warned beforehand and then hinted to at the time of giving the testimony. Rashi explains that the gentle hint will not provoke them to not testify. Abaye then retracted his position and explained why eidim zomemim should not require a warning.
- מותרה לדבר החמור הוי מותרה לדבר הקל
When Rav Shisha brei d’Rav Idi brings a source that a חובל בחבירו – one who wounds another pays money and does not receive malkus, he mentions the rule: מותרה לדבר החמור הוי מותרה לדבר הקל – One who is warned for a severe matter is considered warned for a lighter matter. For example, if someone was warned that striking and killing someone would result in the death penalty, he is considered warned that striking and wounding his opponent would subject him to lashes. Rav Ashi objected to this and asked on what basis do we assume this rule? And even if one does follow this rule, on what basis does he consider the death penalty more severe than lashes? Perhaps lashes are more severe, as Rav said: אילמלי נגדוה לחנניה מישאל ועזריה פלחו לצלמא – Had they whipped Chananya, Mishael and Azaryah, they would have worshiped the statue. This implies that lashes are more severe, since they did not bow when they were threatened with their lives. Rav Samma brei d’Rav Assi (or possibly brei d’Rav Ashi) said to Rav Ashi, ולא שני לך בין הכאה שיש לה קצבה להכאה שאין לה קצבה – Is there no difference between a beating that has a limit to one that does not? Malkos administered by Beis Din have a limit and are certainly less severe than death.
- A thief that steals a sheep or ox and has another person shecht it on Shabbos is chayav misa and pays
Reish Lakish attempts to resolve the discrepancy between our Mishnah that says one pays a fine when violating a sister, and the Mishnah in Makkos that says he gets lashed, by saying the Tanna is Rebbe Meir who holds לוקה ומשלם – one gets lashed and pays for the same transgression. The Gemara challenges this, for if the Tanna is Rebbe Meir, then our Mishnah should have included the case of one who violates his daughter as one who pays a fine, even though it is capital case? For Rebbe Meir holds מת ומשלם – someone receives the death penalty and pays, as evident from a Baraisa where Rebbe Meir says that one who steals an ox or sheep and shechted it on Shabbos, pays four or five times, even though he also gets the death penalty. The Gemara answers that the Baraisa is dealing with a case of בטובח על ידי אחר – it was shechted through another person. Rava explains that even though we hold, אין שליח לדבר עבירה – there is no shaliach for a transgression, in this case the Torah states, "וטבחו או מכרו" – and shechts it or sells it. Just as the thief brings about the sale by involving another person, referring to a buyer, so too he is chayav when the shechting is through another person.
