SHIUR BEKIYUT #10: Kiddushin 77a-78a Chalalut
1. There are two different types of chalalut. One is the children of a kohen-prohibited relationship (77a); the second is the woman partner in such a relationship (77b). (Once chalalut is created, the question arises how it is passed on - this is the subject of the mishna [77a] and the first section of the gemara. We discussed this last point in the shiur on 67a, two months ago.) If the relationship is a yisrael prohibition, the woman becomes a "zona." (The definition of zona will be the subject of next week's shiur.) Hence, Rav Ashi's conclusion: if a kohen has relations with his sister (an erva), she becomes a zona; a second time, she becomes a chalala (since she was a zona, which is a kohen-prohibition). There is one additional case of chalala. According to most Rishonim, if a chalal marries a yisraelit, she becomes a chalala (even though there is no prohibition on this marriage). The Rambam disagrees, and includes this under zona.
You might ask what difference it makes whether we define the woman as a chalala or a zona, since in either case, the ramifications are the same. One answer is technical - if issur chal al issur (zona after chalala, as we learnt last week) there will be two malkot, since there are two distinct prohibitions. Another possible difference concerns hereditary chalalut. According to R. Dostai b. Yehuda, only if both parents are chalalim will the child be a chalal. Hence, if a chalal marries a zona, the daughter will not be a chalala. Essentially, however, we must try and determine whether there are really two distinct logical categories, or whether there is only a technical difference of internal classification for a general category that basically consists of "psul kehuna." We raised this point in the first shiur (66b) when the possibility that a chalal could inherit his status from his gerusha mother arose - in other words, a gerusha, chalala, and zona all share a quality of psul kehuna. We will discuss the question later on today, in regard to the disagreement between the Rambam and other Rishonim concerning the prohibition of "lo yechalel."
2. 78a. The prohibitions. The basic prohibitions of issurei kehuna are phrased as "lo yikach; "lo yikachu" (Vayikra 21). Since kiddushin is called "yikach" in the Torah ("ki yikach isha"), this is interpreted as refering to marriage, unlike other sexual prohibitions, where sexual relations constitute the prohibition ("lo tigale erva," or "lo yavo"). However, by kohen gadol, there appears an additional prohibition - "velo yechalel" (21,11). The gemara interprets this to refer to "profaning" (chalel) the woman through sexual relations. Rashi immediately states that this applies to all kohen prohibitions and not just kohen gadol. (Logically, the prohibition of a kohen with gerusha, chalala, and zona, although mentioned separately, is not distinct from that of any kohen with these women.) The gemara states that a kohen receives two sets of malkot, once for "lo yikach" and once for "lo yechalel." Abaye and Rava disagree on the particulars. Abaye says that the two issurim are independent; "kidesh lokeh (lo yikach) ba'al lokeh (lo yechalel). Rava says that if there was kiddushin and bia, he is lokeh twice; otherwise he isn't lokeh for lo yikach. (This is according to Rashi and other Rishonim; the Rambam's opinion will be discussed below). The prohibition of lo yechalel is independent (and hence, bia without kiddushin is also prohibited); however, lo yikach is only prohibited if it leads to bia.
Since the prohibition of "lo yikach" requires both kiddushin and bia according to Rava, the question is how to define the relationship. Off hand, since the basic phrase is lo yikach, it would be logical to assume that kiddushin is the prohibition, with a condition that it be consummated. If that is true, however, then if the kiddushin were permitted, there could not be any transgression. For instance, if a kohen married a kasher woman, who subsequently became a zona (this is the case of a kohen's wife who is raped), there should be no transgression of "lo yikach," since the kiddushin preceded the state of zona. Now the gemara (Yevamot 61b) says, "aishet kohen she-ne'ensa, ba'ala lokeh aleha" (if a kohen's wife is raped, her husband is lokeh [if he subsequently has relations with her]). This does not constitute in itself a question, as these malkot can be for "lo yechalel," which prohibits, even according to Rava, relations irrespective of kiddusin. However, the Rambam, as we shall see, denies that there is a prohibition of lo yechalel by a regular kohen. (The gemara refers explicitly only to kohen gadol.) Hence, according to the Rambam, the question is: why is the husband lokeh? Lo yechalel does not apply to a regular kohen; lo yikach requires kiddushin be-issur.
The answer apparently is that we have misdefined "lo yikach." According to Rava, the act of lo yikach is not kiddushin, but the subsequent bia. Kiddushin is a prior condition. In other words, bia per se is not prohibited, but only biat ishut. Bia subsequent to kiddushin is a different act than biat znut. The act prohibited by "lo yikach" is conjugal relations. Hence, the kiddushin itself does not have to be b'issur, but only has to be in force at the time of bia b'issur. Hence, "eishet kohen she-ne'ensa, ba'ala lokeh aleha."
This proves that according to the Rambam, lo yikach must be defined as conjugal relations rather than a consummated kiddushin. The Malbushei YomTov (EH 7) brings an ingenious proof that Tosafot adopts our original definition of lo yikach, against the Rambam. This is a little complicated, so it will be best if you follow this with the Tosafot (Bava Metzia 10b s.v. "di'amar") open in front of you.
The gemara in Bava Metzia is discussing "ein shliach lidvar aveira" (agency for the commission of a crime is not valid). There are two contending definitions, and the gemara says that the case of a kohen who asks a yisrael to betroth a divorcee for him is a nafka mina between the two definitions. Tosafot asks: what difference does it make, since according to Rava there is no malkot for kiddushin without bia. Tosafot's SECOND answer is that "ein shliach lidvar aveira" means that the agency is cancelled, hence the kiddushin effected in this manner is not valid. The first answer of Tosafot apparently holds that only the criminal culpability is not transferred through agency, but the legal status of kiddushin is. Hence the divorcee is mekudeshet to the kohen. According to one definition, the transgression is the shliach's; according to the other it is the kohen's. But, ask Tosafot, there is no malkot for kiddushin alone. He answers that there will be malkot (if the shlichut is not invalidated) after bia. According to the definition which extends ein shliach lidvar aveira to this case, there will not be malkot even after bia. Now, argues the Malbushei YomTov, the woman is mekudeshet to the kohen even if ein shliach lidvar aveira, according to the first answer of Tosafot. So when he performs bia, it is within a conjugal context. Why isn't he lokeh? It must be because he is not responsible for the sinful act of kiddushin. This demonstrates that one transgresses lo yikach only if the act of kiddushin was a transgression; in other words, lo yikach is consummated kiddushin and not conjugal relations. In the case of eishet kohen she-ne'ensa, where there is no prohibited kiddushin, Tosafot will hold that the malkot are because of lo yechalel, which, in his opinion, like Rashi, applies to a regular kohen for bia alone.
Summary. Rashi and most Rishonim apply lo yechalel, as a prohibition of bia alone, to all kohen prohibitions. This permits them (as Tosafot in Bava Metzia holds) to define "lo yikach" as a prohibition of kiddushin. If the kiddushin was not a prohibited act (eishet kohen she-ne'ensa), the transgression is not lo yikach but lo yechalel.
The Rambam limits the prohibition of lo yechalel - bia alone - to kohen gadol. This forces him to define lo yikach as a prohibition of conjugal bia and not one of kiddushin, in order to account for the malkot in the case of eishet kohen she-ne'ensa.
Tosafot: lo yikach = consummated kiddushin
Rambam: lo yikach = conjugal bia
4. Why does the Rambam limit lo yechalel to kohen gadol? The Rambam (17,3) explains that this is not because kohen gadol is different than kohen hediot. It is because almana (widow) is different than gerusha, chalala, and zona. "A zona, chalala, and gerusha is profaned (mechulelet) already; hence only a kohen gadol with an almana is lokeh." In other words, lo yechalel is a prohibition to cause "chilul" in a woman. For this she must be kasher lekehuna before. The Rambam says that a gerusha is mechulelet; i.e., she is psula. To profane (lechalel) means to cause kohen disability.
According to the Rambam lo yechalel does not prohibit the act of sexual relations. It isn't the bia which is prohibited, but the result which happens to take place. Since an almana is permitted to a kohen, but will be prohibited by relations with a kohen gadol, these relations are the MEANS for a transgression. The transgression is the chilul itself. A consequence of this is that it is impossible to transgress this prohibition with a particular woman more than once.
Rashi and other Rishonim apply lo yechalel to all kohen relations. A simple explanation is that the prohibition is one of bia, despite the unusual phrasing. Lo yechalel doesn't require that she become mechulelet as a result of the bia. Any kohen-prohibited bia has the potential to cause chilul; hence, a kohen-prohibited bia is called lo yechalel. It is an act of chilul even though there is no result of chilul. Accordingly, the disagreement between Rashi and the Rambam is basic.
Rambam: Lo yechalel = not to profane a woman
Rashi: Lo yechalel = issur bia
The Malbushei YomTov offers another explanation of Rashi's opinion. Basically the Rambam is correct - the prohibition is to create a state of chilul in the woman. However, this is not measured by a new state of being prohibited, but the technical "shem chalala." A gerusha who has relations with a kohen becomes a chalala (issur mosif chal al issur). Hence, she has become mechulelet. This applies to gerusha. It will apply to zona as well, if we assume that even in a case of ein issur chal al issur, the state of the second issur is chal and only the transgression is not added to (see last week's shiur). However, it will not apply to chalala. No change in her status takes place, since she already has the "shem chalala."
Accordingly, the disagreement of the Rambam and Rashi concerns the relationship between chalala, as a technical state, and the other psulei kehuna. The Rambam basically views them as inherently equivalent. A gerusha and a zona are "mechulelet" just as much as a chalala. The difference is merely technical. Turning a gerusha into a chalala cannot be the subject of lo yechalel. Rashi limits the concept of "chilul" to "chalala." Gerusha and zona, although prohibited to a kohen, are different states. They are not "profaned," merely prohibited. Hence, the prohibition of "profaning" a woman can apply (once) to them as well.
[Read carefully the Raavad 17,2, who disagrees with the Rambam. Is he supporting Rashi?]
5. Rambam (part 2).
The Rambam (15,2) applies Rava's requirement of kiddushin to all chaivei lavin, not just psulei kehuna. (This is based on the last lines of the sugya, see the Ritva.) Yisrael-mamzer is only lokeh if bia is preceded by kiddushin. The prohibition of mamzer is "lo yavo bekahal," not "lo yikach." It follows that the Rambam defines "entering the kahal" as marrying into the kahal; i.e., it is a family prohibition. (This makes a lot of sense - see the shiur on the aggada at the beginning of this perek.) We can define two types of prohibitions. 1- sexual relations. According to the Rambam, these are karet or mita prohibitions. 2- family relations. These are lavin (malkot).
According to other Rishonim, only kehuna is a family prohibition. Sexual prohibitions generally refer to bia. Kohanim don't have additional sexual prohibitions, but "protect" the kehuna by being limited in the family relationships.
Tosafot (Nedarim 90b) cites R. Eliezer of Metz as stating that a kohen is prohibited in a zona, but the zona is not prohibited in a kohen. This contradicts the well-known rule that all sexual prohibitions are mutual; both the man and the woman are prohibited, even though the Torah's language is generally addressed to the man. For this reason, Tosafot rejects this opinion.
The Oneg YomTov (170) explains the Re'em as follows. The case in Nedarim refers to an eishet kohen she-ne'ensa. The kiddushin was permitted. According to Tosafot (BM) there is therefore no prohibition of "lo yikach." The prohibition is "lo yechalel." If we define "lo yechalel" as profaning the woman and not as a synonym for bia (the Rambam's definition - but applying it to zona as well), it is logical to limit it to the man. It isn't the bia per se which is forbidden, which would be a mutual act performed by two people, but the profaning of the woman. This is an act done by the man to the woman, where he is the subject and she is the object of the transgression. (The conclusion is not necessary, "lo yechalel" as profaning COULD be a mutual prohibition as well.)
[The Rashba quotes the Re'em somewhat differently. In his version, the Re'em says that the woman does not transgress "lo yechalel" unless the man does. She participates in his transgression but is not considered an independent transgressor. This requires a separate explanation... but we have run out of time, so I'll leave it to you.]
Next week: Bat Ger (78a-78b)
The last topic belonging to the general category of "yuchsin" is "zona." This is actually not discussed here, except for the psul of giyoret. Previously we discussed the status of ger in regard to "kahal" (i.e., heter mamzer); here we have the status of ger (giyoret) in regard to kehuna.
The major source for the definition of zona generally is the mishna in Yevamot (61a, "kohen hediot") and the gemara (61b, "Vehatania zona zona ke-shma"). The number of totally different opinions cited there is itself an indication how unclear the concept of zona is. In any event, the gemara in Yevamot does not explain why giyoret should be included. Our gemara (78a) cites a source from Yechezkel, which doesn't mention the category of zona.
See: Rambam (and Raavad), Hilchot Issurei Bia 18, 1-3.
Ritva s.v. "Tania."
Next week's shiur will deal only with the status of giyoret, and will be the last shiur that will be sent out in Kiddushin. We will send out short "mar'eh mekomot" for the rest of the perek so you can continue learning Kiddushin. After Sukkot, we will begin the study of Pesachim.