Talmud - Ketubot 43a כתובות מ״ג א׳

And the principle is that one who admits that he is liable to pay a fine is exempt. Since the man would not have been liable to pay even if he had admitted his guilt, his denial of guilt is not considered a denial of monetary liability, and even if he swears falsely that he is not liable, he still does not become liable to bring an offering. And the Rabbis hold that when the father claims payment in court, it is the compensation for the humiliation and degradation that he claims. His main focus is not on the fine, and therefore the denial refers to a regular monetary claim.

The Gemara asks: If this explanation is correct, with regard to what do the tanna’im disagree? Rav Pappa said: Rabbi Shimon holds that a person does not leave aside something that is fixed, e.g., a fine, and claim something that is not fixed, e.g., the compensation for humiliation and degradation, which need to be assessed by the court. Consequently, a claim of rape is essentially a demand for the fine. And conversely, the Rabbis hold that a person does not leave aside something that, if the defendant admits to it, he is not exempt from payment, e.g., humiliation and degradation, and claim something that, if the defendant admits to it, he is exempt from payment. Consequently, they contend that the lawsuit is mainly focused on the compensation for the humiliation and degradation.

§ Rabbi Avina raised a dilemma before Rav Sheshet: With regard to a daughter who is sustained by her brothers, i.e., an orphan whose brothers provide her with her sustenance from their father’s estate, in accordance with the stipulation in the marriage contract between their parents that requires the father to pay for his daughter’s sustenance from his property, to whom do her earnings belong?

Rabbi Avina explains the sides of the dilemma. One might say that the brothers stand in place of the father: Just as there, if their father is alive, her earnings go to the father, here too her earnings go to the brothers. Or perhaps this is not similar to the case of a living father. Why not? Because there, she is sustained from his own property, and therefore he is entitled to receive her earnings, whereas here, she is not sustained from their possessions but from the estate of their father, and consequently they should not receive her earnings.

Rav Sheshet said to him: You already learned the answer to this dilemma from a mishna (Ketubot 81a): A widow is sustained from the property of the orphans, and her earnings are theirs. This indicates that although a widow receives her sustenance from the estate of her deceased husband, in accordance with the stipulations of the marriage contract, the orphans are nevertheless entitled to her earnings. The same reasoning should apply to an orphan sustained by her brothers.

The Gemara refutes this argument: Are the two situations comparable? In the case of his widow, the deceased is not necessarily amenable to her living in comfort. Consequently, she is entitled only to the minimum guaranteed to her in the marriage contract, while her earnings go to his heirs. Conversely, with regard to his daughter, he is amenable and is interested in her living in comfort, and therefore he allows her to retain her earnings so that she can have the extra money.

The Gemara asks: Is that to say that the welfare of his daughter is more preferable to him than that of his widow? But didn’t Rabbi Abba say that Rabbi Yosei said: The Sages established the halakha of a widow with regard to the daughter, who is also entitled to sustenance from the estate, like the halakha of a daughter with regard to the brothers in a case of a small estate that is insufficient for the livelihoods of both the girl and her brothers?

Rabbi Abba explains: Just as in the case of a daughter with regard to the brothers, the halakha is that the daughter is sustained from the father’s estate, and if the brothers have nothing to eat they must go and beg for charity at people’s doors, so too, in the case of a widow with regard to the daughter, the widow is sustained and the daughters beg for charity at people’s doors. This indicates that a man is more concerned for his widow than his daughter. The Gemara explains: The two cases are not comparable. With regard to degradation, one’s widow is preferable to him, i.e., if one of them must be forced to go around requesting handouts, a man would rather it be his daughter than his widow. By contrast, with regard to comfort, the comfort of his daughter is more preferable to him than that of his widow.

Rav Yosef raised an objection to Rav Sheshet’s conclusion that the orphan girl’s earnings belong to the brothers, from the mishna: With regard to her earnings and the lost items that she has found, although she has not collected them, if the father died, they belong to her brothers. Rav Yosef infers: The reason for this halakha is that she acquired her earnings in her father’s lifetime, which indicates that the money she earns after the father’s death belongs to her. What, is it not referring even to a daughter who is sustained from his estate? The Gemara refutes this claim: No, it deals with a daughter who is not sustained from his property but who sustains herself through her own earnings.

The Gemara asks: If the mishna is speaking of one who is not sustained from his estate, what is the purpose of stating this? It is obvious that this is the halakha, as even according to the one who said that a master can say to his slave: Work for me but I will not feed you, i.e., a master is not legally obligated to provide sustenance to his slave, this applies only to a Canaanite slave, with regard to whom it is not written in the Torah: “With you,” and therefore his master is not obligated to feed him.

However, in the case of a Hebrew slave, as it is written with regard to him: “With you” (Deuteronomy 15:16), which indicates that he is entitled to live with his master as an equal, the master may not compel the slave to serve him unless he feeds him. All the more so concerning his daughter, it cannot be the case that this young woman has to work and give her wages to the brothers if they are not obligated to sustain her at the same time.

Rabba bar Ulla said: It is necessary only for the surplus. The mishna is not implying that the brothers can take her earnings produced after the father's death and not sustain her, leaving her with nothing. Rather, the question concerns a young woman whose earnings provide her with more than she needs for her sustenance, leaving her with a surplus. It is this surplus that belongs to her, and not to her brothers. Rava said in response to Rabba bar Ulla’s explanation: Is it possible that a man as great as Rav Yosef does not know that there is an explanation according to which the implied case of the mishna is referring to the surplus, and in his ignorance he raises a refutation against Rav Sheshet? This certainly cannot be the case.

Rather, Rava said: The mishna itself poses a difficulty to the opinion of Rav Sheshet, and this difficulty led Rav Yosef to his conclusion. This is as the mishna teaches: Her earnings and the lost items that she has found, although she has not collected them. Rava analyzes this statement: With regard to items that she has found, from whom does she collect them? The concept of collecting is inappropriate in this case.

Rather, is it not the case that this is what the mishna said: Her earnings are like items she has found: Just as items she has found in her father’s lifetime belong to her father, and after the father’s death they belong to her, so too, the same rule applies to her earnings as well: In the father’s lifetime, they go to the father, and after the father’s death they belong to her, even when she is sustained from the inheritance. The Gemara concludes: We can learn from this inference that the mishna deals with her earnings themselves, not their surplus, in contrast to the interpretation of Rav Sheshet.

This halakha was also stated by amora’im, as Rav Yehuda said that Rav said: In the case of a daughter who is sustained by the brothers, her earnings nevertheless belong to her. Rav Kahana said: What is the reason for this? As it is written with regard to slaves: “And you may make them an inheritance for your sons after you” (Leviticus 25:46), from which it is inferred: It is them, slaves alone, that you bequeath to your sons, and you do not bequeath your daughters to your sons. This verse teaches that a man does not bequeath a right that he has over his daughter to his son. All the rights a man possesses over his daughter are personal rights, which are not transferable by inheritance.

Rabba strongly objects to this explanation that the verse is referring to a man’s rights to his daughter’s earnings: But one can say that the verse is speaking of the fine that a father is paid in the case of the seduction of his daughter, and the fines paid to him if she is raped, and compensation due to him for injuries that she suffered, and the verse indicates that these rights are not bequeathed to his heirs. And Rav Ḥanina likewise explicitly taught that the verse is speaking of payments a father is paid in the case of the seduction of his daughter, and the fines due to him if she is raped, and compensation for injuries she has suffered.

The Gemara questions this interpretation: With regard to injuries, they are the result of her bodily pain, and the guiding principle is that any compensation for a daughter’s physical pain does not belong to her father, who merely keeps it in trust for her. If so, the category of injuries should not have been included in this list. Rabbi Yosei bar Ḥanina said:

Traduction : The William Davidson digital edition of the Koren Noé Talmud, with commentary by Rabbi Adin Even-Israel Steinsaltz.

Ketuvot 43a explores whether a rape claim centers on the fixed fine or on damages for humiliation, then examines who owns the earnings of a sister supported by her brothers.