SHIUR BEKIYUT #3: 67b
A. Mena Hani Mili
Our mishna provides the rule that "kol she-ein la alav kiddushin" results in mamzerut. The word "mamzer" is undefined in the Torah. A mamzer "shall not enter kahal Hashem (Devarim 23,3)." Two verses earlier appears the prohibition of "knaf aviv." The gemara (Yevamot 49a) derives that mamzerut results from a relationship similar to "knaf aviv" - the different opinions of the Tannaim concerning which issurim result in mamzerut (mishna Yevamot 49a) depend primarily on different definitions of the expression "knaf aviv."
1. Tosafot (66b) points out that our mishna assumes the opinion of R. Shimon Ha-Teimani that mamzerut results from karet relations. The gemara here is not questioning the source of the mishna's rule, but rather the source of the mishna's assumption: How do we know that kiddushin cannot be effected with chaivei kritut?
Tosafot (s.v. Mena) claims that there seems to be an assumption that wherever there is mamzerut, there must exist a parental relationship which precludes kiddushin. He cites two sources. 1) - R. Akiva holds that even the children of lav-relationships result in mamzerut. The derivation is explained in Yevamot (49a). In several places, the gemara states that R. Akiva holds that kiddushin is precluded between chaivei lava, but never cites a source for this. Tosafot deduce that this must be a necessary result of R. Akiva's opinion concerning mamzerut. 2) - More explicitly, our gemara (68a) states the child of a nida is not a mamzer (even though it is a karet prohibition) and explains this exception by demonstrating that kiddushin is not precluded. (Take another look at that passage. Is it clear that Tosafot's understanding - that the gemara is EXPLAINING the absence of mamzerut by citing a source for the preclusion of kiddushin - is correct?) It is clear that if there is kiddushin, there is no mamzerut; if there is mamzerut, there is no kiddushin.
Tosafot view this rule as having the status of a derivation - there is no need for another source for the preclusion of kiddushin in a given case other than the knowledge that it results in mamzerut. The case of R. Akiva demonstrates that. Hence, Tosafot states that our gemara, which is searching for the source of the preclusion of kiddushin in cases of chaivei kritut, is necessary only according to R. Yehoshua, the most restrictive of the Tannaim in Yevamot, who holds that only chaivei mita result in mamzerut. Nonetheless, he agrees that chaivei kritut are precluded from kiddushin and hence an independent source for this preclusion is required.
We have the following result. If kiddushin could be effected between the parents, the child cannot be a mamzer. However, it is possible (logically) that even if kiddushin is excluded, the child is yet not a mamzer (R. Yehoshua - chaivei kritut). According to R. Akiva and R. Shimon Ha-Teimani, according to their respective derashot, the two states, - exclusion of kiddushin and mamzerut - are, in fact, identified, though LOGICALLY (meaning, without recourse to a textual derivation) the relationship between them could have been one directional: All mamzerim result from kiddushin-excluded relations, but not all kiddushin-excluded relations result in mamzerut.
This seems to suggest that mamzerut is not a consequence of the parents' transgression (after all, nida is as serious a transgression as incest, at least as measured by the punishment, karet) but of a yuchsin-incompatibility between the parents, as measured by the preclusion of kiddushin. This is not meant to imply that actual kiddushin is required. A child born out of wedlock has no halakhic psul, disqualification, whatsoever. It is the PRECLUSION of kiddushin which is the crucial factor - what I have called the incompatibility of the parents. R. Yehoshua adds that this must be accompanied, or perhaps caused, by a particular level of transgression (mita), whereas according to R. Akiva and R. Shimon, whatever level of transgression is sufficient to result in the preclusion of kiddushin is sufficient to result in mamzerut. In terms of our mishna, this means that the third rule of "ein kiddushin" is not merely a summary rule of thumb, but is a logical explanation and cause. All cases of "ein kiddushin lo" result in mamzerut because "ein kiddushin lo" is the cause of mamzerut.
If it seems clear that, according to Tosafot, the preclusion of kiddushin is a cause of mamzerut, the question remains whether the transgression of the parents is also a cause. In other words, is the transgression, together with kiddushin-preclusion, a necessary cause of mamzerut, or is it merely the reason for the preclusion of kiddushin, which is, in turn, the sole cause of mamzerut. According to R. Yehoshua, it would be logical to conclude that both the preclusion and the transgression (in his case, a "mita" transgression) are necessary, since not all cases where kiddushin is precluded result in mamzerut. But even for R. Yehoshua, it can be argued that he believes that the yuchsin-incompatibility between chaivei mita is greater than between chaivei karet, though both are precluded from kiddushin, and only in the case of the former is the incompatibility great enough to be the cause of mamzerut. The transgression is not a cause of mamzerut, but only an indication of the degree of incompatibility. In any event, for R. Akiva and R. Shimon Ha-Teimani, the question surely arises whether the transgression of the parents is a cause, or only the incompatibility of yichus.
The "nafka mina" of this question is a modern development. Given that all cases of kiddushin-preclusion are cases of chaivei kritut, how can one have parents who are precluded from marriage, but no transgression is committed? The answer is through artificial insemination. The parents cannot marry because of the level of transgression in their relations - but no actual transgression is committed in the course of this particular fertilization. (R. Yoel Teitelbaum, the Satmar Rebbe, argued that for a married woman to be artificially inseminated by someone other than her husband constitutes an act of adultery. This opinion eliminates our "nafka mina.") Rav Moshe Feinstein (EH 1:10) argued that if there is no sexual relations, there is no transgression, and hence there cannot be mamzerut. Others argued, along the lines outlined above, that mamzerut is determined totally by the halakhic incompatibility of the parents and is not dependent on the actual commission of a transgression. (Technically, mamzerut is derived from the juxtaposition of the verse dealing with mamzer (23:5) and the preceding verse (23:1) prohibiting relations with "knaf aviv." The Torah describes a case of actual incest and proceeds to disqualify the children. Of course, we would not expect the Torah to describe a case of artificial insemination. Nonetheless, Rav Moshe argued that there is no source for mamzerut without an actual transgression of incest. For this reason, he permitted ,under certain conditions, donor artificial insemination.)
2. The Ramban (68a, s.v. Ee Hakhi) rejects the interdependence of kiddushin preclusion and mamzerut as a derivative principle. He claims that in all cases, mamzerut is derived from the juxtaposition of the verses, as explained in Yevamot 49a. The gemara (68a) does not EXPLAIN the absence of mamzerut in nida because kiddushin is not precluded. Rather, the mishna has presented a summary rule - it is a fact that whenever there is no kiddushin, there is mamzerut. Since there is no mamzerut by nida, it must be that kiddushin is not precluded. This is a question on the general principle expounded in 67b that all arayot preclude kiddushin. The gemara, in response, gives the source for the exception of nida. The reason for the fact that there is no mamzerut by nida is not an issue in our gemara. The real reason is that nida does not resemble "knaf aviv" and cannot be derived from it. The Rambam rejects Tosafot's claim that the knowledge that a given child is a mamzer can serve as the legal source for the preclusion of kiddushin. It remains possible that the Ramban would agree that, having derived from a verse that all cases of chaivei kritut, with the exception of nida and sota, are both precluded from kiddushin and result in mamzer, we may argue that there is a causal connection between the two - namely, that kiddushin preclusion is the cause of mamzerut. Nonetheless, it is tempting to assume that, according to the Ramban, the LOGIC of mamzerut follows the textual source of mamzerut - namely, that it is the transgression of eishet aviv and similar transgressions (transgressions of karet) which is the sole cause of mamzerut.
Although the conclusion is not absolutely uncontestable, we have argued that Tosafot hold that mamzerut is caused by yuchsin-incompatibility (possibly together with a transgression), while the Ramban holds that it is caused by a karet transgression.
B. (68a): Nida
The gemara cites a pasuk which posits that the state of nida does not preclude kiddushin. Since this is a gezeirat ha-katuv, it could be understood as an exception. Basically, a karet prohibition SHOULD preclude kiddushin; here, however, it would clearly be impractical if every time a woman entered a state of nida, the kiddushin would be annulled, so the Torah arbitrarily suspended the rule.
However, I would like to suggest the following logical explanation. The other cases we are considering are all cases of personal identity. Last week, we distinguished between familial identity (kohen etc.) and personal status (mamzer etc.). Both categories answer the question: Who are you? The very fact that the status is either conferred at birth and is inherited - whether from the father or mother, or is conferred by entering a new family through marriage, indicates that we are dealing with the identity of the individual. Nida, on the other hand, is a STATE and not a status or identity. It doesn't answer the question of who you are, but what state you are in. The fact that the state is cyclical is itself an indication of this. The preclusion of kiddushin in cases of chaivei kritut, according to this, is not because relations are forbidden. Kiddushin is a formal relation, even though the purpose clearly includes sexual relations, and can exist even if it cannot be legally consummated. Preclusion of kiddushin is dependant not on the issur involved in the sexual act but on the contradiction involved in the union of these two people. It is the incompatibility of the individuals, rather than the prohibition on the act, that is the cause of preclusion. This depends on their identities, rather than on a factor which happens to cause a prohibition. (It follows from what we saw above that mamzerut also depends on the incompatibility of the individuals, not the prohibition in their relations.)
Taking this line a bit further, we can suggest an amendment to the second possibility mentioned above. We asked whether the prohibition was a cause of mamzerut, or whether it was only an indication or cause of kiddushin-preclusion, which was in turn the sole cause of mamzerut. Now we can reverse the relationship entirely. The prohibition doesn't cause preclusion; preclusion is the cause of the prohibition. If the identity of someone is such that he is halakhically precluded from effecting a union with another, then that alone creates a prohibition to engage in sexual relations. It is also the reason that a child whose yichus derives from such an incompatibility is a mamzer. There are other prohibitions, such as nida, which do not derive from incompatibility. Obviously, there is no reason for mamzerut to obtain in such cases.
C. 68a: "Lichumra makshinon"
The gemara states that preclusion of kiddushin is a chumra. The Rishonim ask: The immediate ramification of kiddushin preclusion is a kula, not a chumra. She is not mekudeshet, - hence she is not assura. They answer that the chumra being referred to is that, in consequence of the preclusion of kiddushin, the children are mamzerim. This would seem to favor the opinion that mamzerut is CAUSED by kiddushin preclusion. If mamzerut is caused by the transgression, which also causes the preclusion of kiddushin, then preclusion itself is not a chumra.
D. 67b: "Eishet ish, eishet ach"
The gemara states that preclusion of kiddushin in a case of achot isha would not imply preclusion in a case of a married woman, or a brother's wife, since in both those cases there exists a method to change the situations, in the first by divorce, and in the second in a case of yibum. If the reason for preclusion is the transgression, it is not clear why the fact that a karet transgression is potentially subject to change would make it less likely to preclude kiddushin. However, if the reason for preclusion is the personal status, yichus, of the woman, then a temporary status might be more akin to nida, a state, rather than to achot isha, an identity.
E. 68a: "Shomeret yabom"
A woman whose husband has died without children is forbidden to marry without chalitza from her brother-in-law. This prohibition is either a lav (no karet) or an asei. Rav maintains that kiddushin is nevertheless precluded (he cites a gezeirat ha-katuv). Shmuel is unsure about this point (Yevamot 92b). The Rambam, who rules (Hilkhot Ishut 4, 14) that kiddushin is precluded mi-safek, nonetheless rules (Hilkhot Yibum 3, 19) that the child is definitely not a mamzer. Here we see that preclusion of kiddushin is not enough; there must be a karet-prohibition. One might have claimed that although a yevama is precluded from kiddushin, this is not because of her status but for some other reason. The Rambam (Ishut 4, 14) however, explicitly explains the preclusion of kiddushin because she "is an erva", i.e., possesses an identity similar to other arayot.
The Ramban raises this case against the rule of the mishna. Here is a case where kiddushin is precluded, but nonetheless the child is not a mamzer. He answers that since she is not mekudeshet, nor can be mekudeshet to anyone, this belongs more properly to the fourth rule of the mishna than to the third.
The Ramban is technically asking about the summary rule of the mishna and not its logic. If the REASON that the child of a yevama is not a mamzer is that she is prohibited to all, this might be understood to mean that she isn't an erva, but an unobtainable woman (like a non-Jewess - next week's shiur). It is not the contradiction in yichus which precludes kiddushin, but simply her personal state. This would also explain why there is no karet in this case. The exact nature of the state of a shomeret yabom is a rather complicated question and cannot be fully explicated here.
The difference between erva and a non-Jewess (the third and fourth rules of the mishna) will be discussed in next week's shiur.
Next week: 68a (bottom) "Ve-khol mi she-ein lo..." - 69a (The mishna).
The topic is nokhrit (non-Jewess) and shifcha (female slave, and, by extension, nokhri and eved. Our sugya discusses two points:
1) How do we know that kiddushin is precluded with these categories, and;
2) How do we know that the child follows the mother. This is the source for matrilineal determination of Jewish identity.
You should also see the sugya in Yevamot 44b (bottom) "Amar Rabba bar bar Chana ..." - 45a "ha-vlad kasher;" and 45b "ve-amri Nehardai mishmei de-Rav Yaakov ... kiddushin klal." (The section on 45a which you can skip includes a fascinating story concerning the ethics of shiddukh and yuchsin. If you have time, it is definitely worth it to cover this section as well. However, the shiur next week will not refer to it.)
This sugya discusses the status of the child of nokhri-yisraelit. Given that he is Jewish like his mother, is he pasul in some way? This complements not only next week's sugya concerning nokhri-yisrael, but this week's sugya concerning mamzerut as well. Try and see the Rashba, Yevamot 45b, s.v. Hakhin." We will discuss it at length. He presents two explanations for the status of nokhrit-yisraelit, which basically represent two approaches to understanding our sugya in Kiddushin. What are they? Why is nokhri (the fourth rule of the mishna) different from erva (the third rule in the mishna)?