Ketubot 35 - A loophole for the death penalty

If one commits an act for which he is liable to pay and also to be executed or given lashes, then he is only given the harsher punishment, and does not have to pay. Even if due to some technicality the death penalty or lashes cannot be given, there is a loophole that saves him from payment - this is the opinion of Resh Lakish.

Take, for example, a case of violating his sister . The only way to be punished for that is to have witnesses tell him shortly prior, what punishment he will get (lashes). He has to accept it on himself and proceed. Now, if it all happens as described above, then he does not have pay the penalty which applies to violating a virgin. Resh Lakish takes it further: if he was not warned, and the lashes are impossible, still he does not have to pay, since had they warned him, he would not have to pay.

Rabbi Yochanan, on the other hand, does not accept this loophole. If after all they did not warn him, so that the stricter punishment cannot be meted out, then he does have to pay.

Both use the case of " two men fighting and accidentally hitting a pregnant woman, with no fatality " as their source. "No fatality" leads to him paying, but we understand that if there is fatality, he does not pay, even though he was not warned. What fatality do we mean? - The death of the woman, of course - says Resh Lakish. However, Rabbi Yochanan says that the fatality refers to the man and means that he is sentenced to death. It comes out that if he is not sentenced to death, then he pays, even though there was no warning.

The Talmud then rejects this explanation of the disagreement and provides a different one.

Art: Minna Wasmann, the sister of the artist by Friedrich Wasmann