SHIUR BEKIYUT #4: 68a-68b
Nokhrit and Shifcha
The fourth rule of the mishna related to those "she-ein lo alav ve-lo al acheirim kiddushin." The result is that the child bears the status of the mother. The gemara first investigates the source that in these two cases - "shifcha" and "nokhrit," kiddushin is totally inapplicable and then the source that "vlada kemota" - the child follows the mother.
1. Tosafot (s.v. Vlada) point out a basic distinction between the relationship of the child to the mother in this case, and that of the child to one of his parents in the previous rules of the mishna. If a kohen marries a yisraelit, the child follows the father in respect to his status as a kohen - priesthood is patrilineal. The child has a relationship with both parents; this particular status - kehuna - is determined by the father. In the case of yisrael-nokhrit, however, it is not only that the status of being a Jew is matrilineal. The child follows the mother totally - he has a relationship only with his mother. In other words, halakhically, he has no father at all. Tosafot list four ramifications: inheritance, tum'a (if the father is a kohen, and the son dies, normally the father could become tamei - here, the son has the status of a stranger and it is prohibited), to do yibum (the son is not a brother to the father's other sons), to free from yibum (if the father dies, he is considered to have died without children and his wife requires yibum or chalitza). This list makes it clear that the son "lo mityaches achar aviv" - he doesn't bear a filial relationship with his father.
The question is: what is the relationship between the general suspension of relationship with the father and the particular determination that he has the status - eved or goy - of the mother? There are three possibilities:
a) Two parallel conditions. The son follows (meaning, he inherits the status of) the mother, and, secondly, the son relates only to the mother.
b) The general suspension of paternal relationship is primary. In cases of intermarriage, there is no relationship with the father. Hence, as a consequence, the status of the child derives from the mother, since she is the only parent he has. In other words, if someone could have two parents, a Jewish mother and a non-Jewish father, it is conceivable that the child would belong to the family of the father - le-mishpechotam le-veit avotam - and would consequently be non-Jewish. But, in fact, there is no such case, since the "father" is not the father halakhically.
c) The exact opposite. The primary law is that Jewishness, unlike kehuna, is matrilineal. However, if the child is Jewish and the father non-Jewish, or vice-versa, there can be no filial relationship between them, since a Jew and a non-Jew cannot be related.
Let me present another example of the logic of the third possibility. There is a famous principle of geirut (conversion) - "ger she-nitgayer ke-tinok she-nolad dami" (a convert is like a new-born child; i.e., all familial ties to his non-Jewish family are broken). The gemara cites no source for this principle. Rav Yosef Dov Soloveitchik claimed that it is a point of logic - once conversion is accomplished, the ger, a Jew, cannot be related familially to a non-Jew.
A twist on this logic can be used to explain the primary principle of the third explanation. Jewishness differs from other states in that it is matrilineal, as derived from the verses cited in our gemara. Why is this? If we follow the lead of the mishna's rule, we will try to determine a connection between "ein lo alav ve-lo al acherim kiddushin" and matrilineal descent. Off hand, it is hard to see a logical connection. One possibility is to use the converse of the logic above. During pregnancy, the mother and the child are one. It is impossible for a Jewish mother to have, as part of her, a non-Jewish child. Such a state would force us to cancel the familial relationship between them. However, in the case of a mother where this relationship is not merely a legal but a physical presence demonstrated by pregnancy, it cannot be suspended. Hence, the child is necessarily Jewish by virtue of being her unimpeachable child.
2. The gemara is clear that the child of a nokhrit or shifcha is like the mother. This is understood to imply the converse as well - the child of a Jewish mother, even if the father was a nokhri or eved, is fully Jewish; i.e., neither an eved nor a nokhri. The question remains whether there is a psul yichus associated with the child. The gemara in Yevamot (44b-45a) cites several opinions that he is a mamzer. Our gemara mentions this possibility obliquely, denying that Ravina agrees with it.
Why should nokhri-yisraelit result in mamzer? Last week, we advanced the explanation that mamzerut results from a contradiction or incompatibility in the yichus of the parents, as measured by the preclusion of kiddushin. Since the nokhri is precluded from kiddushin with the yisraelit, it follows that the child should be a mamzer.
The conclusion of the sugya in Yevamot, however, and the halakha as ruled in the halakhic codes, is that the child is kasher - i.e., not a mamzer. Why not? The difference between this case and other cases of mamzerut (the third rule of our mishna) is that here kiddushin is precluded absolutely - "neither to him nor to others." The question is: Why is that a reason to legitimize the child? We can suggest two possibilities:
a) The approach outlined above, that the child is Jewish because he doesn't have any father at all, suggests a solution to this problem. If he doesn't have a father, there is no incompatibility between his parents. He only has one parent. Of course, one might claim that he has no father in terms of inheriting anything from him or in bearing any relationship with him. But mamzerut, one might claim, is not inherited from the father nor does it depend on a relationship with him. It is the RESULT of an incompatibility in his conception - and that is a fact. Nevertheless, understanding the principle of "no father" in a strong sense, to mean that halakhically it is as if the man never existed and is not responsible for the conception, would allow us to eliminate the problem of mamzerut completely.
b) Another possibility is to focus on the difference between the two types of kiddushin preclusion. No kiddushin, neither to him nor to others, represents a fundamentally different situation than no kiddushin between these two specific people. If a person cannot achieve kiddushin with another, that indicates a contradiction in their yichus, what we called an incompatibility. Their halakhic personalities, so to speak, clash. But a nokhri or eved is excluded from the category of kiddushin totally. The concept of kiddushin does not apply to them. It is not the clash with a Jewish spouse which precludes kiddushin, it is the inherent nature of the non-Jew that the category of kiddushin is inapplicable. Since mamzerut is not the result of the absence of kiddushin - again, out-of-wedlock birth is untainted - but of the preclusion of kiddushin, and that because of the conflict between the two parents, this does not exist in the case of goy-yisraelit.
These two possibilities may be checked against the gemara's statement in the continuation of the sugya in Yevamot. The gemara (45b) states that if the child of a goy-yisraelit is kasher (not a mamzer), this is true even if she is an eishet ish (married to a Jew). Here, we are not only saying that the goy-yisraelit relation doesn't cause mamzerut, but that it somehow prevents mamzerut from resulting from the prohibition of eishet ish. Why is this so? The gemara answers that mamzerut results only from a preclusion of kiddushin "lo" but not to others, whereas here he is precluded "lo ve-lo le-acherim." The Rashba (45b s.v. Hachin) quotes those who ask: Isn't that a greater degree of preclusion and hence worse? Why should it result in the PREVENTION of mamzerut?
The Rashba answers:
"He who legitimizes (the child of nokhri-yisraelit), this is his opinion: The dependence (of mamzerut) on (the preclusion of) kiddushin must necessarily refer only to one who has kiddushin generally. Since he has kiddushin with others, and here not, it must be because of the severity of this 'erva', and she is, in relation to him, like an eishet av (the archetypal case of mamzerut). However, the reason that an eved or nokhri have no kiddushin with a yisraelit may not be due to the severity of 'erva' but because they are not capable of kiddushin at all, even with their own kind."
Read the Rashba carefully. Off hand, it isn't clear how this answers the question. He seems to be making the point we made above, in the second explanation why nokhri-yisraelit does not result in mamzerut. A nokhri's yichus doesn't clash with that of the yisraelit, thereby precluding kiddushin between them (what the Rashba calls "erva"); he is not capable of kiddushin at all. The Rashba adds that there is no kiddushin between a nokhri and a nokhrit either - in other words; even where there is no incompatibility of yichus there is no kiddushin. But this doesn't answer why the transgression of eishet ish doesn't produce mamzerut. The answer must be that the Rashba assumes that the transgression doesn't cause mamzerut, but rather the incompatibility. Since a nokhri is incapable of achieving kiddushin in principle, then even in a case of eishet ish, although the transgression is serious (adultery), there can be no clash of yichus personalities. Only one who is capable of having kiddushin - but not with you - creates a yichus dissonance with you. The incompatibility, apparently, is measured as different types of kiddushin. A nokhri is not an incompatible kiddushin, he has no kiddushin at all. To use a simile, two different notes can be dissonant; silence cannot clash with any note.
It is clear that the Rashba is using our second explanation above. This explanation appears at first glance to be inapplicable to eishet ish, and the Rashba has to explain it and make it fit. He continues and cites an alternative explanation, in the name of Rav Hai Gaon.
"Rav Hai Gaon wrote in a responsum: We maintain the following version of the text (for the explanation of the gemara why the child is not a mamzer, even if the mother is an eishet ish. He who legitimizes the child compares it to eishet av. Just as eishet av, where the child has a familial relationship to him, the child is a mamzer, (so, too, all similar cases) - to the exclusion of this case, when the child does not have a relationship with him, so the child is kasher."
This is clearly our first explanation above. If the nokhri is not the father, and that is why the nokhri-yisraelit relation does not result in mamzerut, then the nokhri-eishet ish relation doesn't either, since there simply is no nokhri. The child is the child of only one kasher parent, the mother, so he is kasher too.
3. The gemara in Yevamot 45a adds that even though the child of a nokhri-yisraelit is not a mamzer, he is "pagum." If it is a girl, she may not marry a kohen. (Many commentators claim, on the basis of the stories cited in the continuation of the gemara, that this position is rejected and she is totally kasher, without any disability whatsoever.) This is an unusual case of a child bearing a psul kehuna that doesn't arise from a kehuna prohibition. That is why the gemara is careful not to call the child a challal, a term defined as the offspring of a kehuna-prohibited relation.
The Rashba (45a, s.v. Ha) and the Ramban (ad loc., quoted by the Rashba) disagree about this status. The Ramban treats it as a kind of quasi-challalut. It applies to both sons and daughters. Since the son is, in any event, not a kohen (his father is not a kohen; in fact, he has no father), what difference does it make to call him a "pagum?" The Ramban answers that HIS daughter, if he marries a yisraelit, is also prohibited to a kohen, just like a challal who marries a yisraelit. The Rashba disagrees, arguing that this status is not hereditary. Hence, it only has ramifications for the first generation, and hence only for a daughter and not a son.
What is the rationale for the Rashba's position? Having posited a new kind of psul kehuna, why shouldn't it follow the rules of challalut? I think the answer is as follows. If the nokhri-yisraelit relationship could result in a yichus psul, the child would have been a mamzer. As we saw, this is not the case. According to the first possibility, that there is no father, the child's yichus is unblemished. Even according to the second possibility, we argued that the nokhri's yichus is not incompatible with the yisraelit, since he is excluded from the entire category of kiddushin. The status of "pagum" is not equivalent to "challal," which is a result of a kohen yichus incompatibility. This psul is a totally new kind of psul, resulting from the FACT of a prohibited sexual act, and not from the yichus of the parents. The gemara is claiming that while the psulim of masekhet Kiddushin are yichus psulim, as we argued last week, which does not exist in the case of a nokhri, the TRANSGRESSION committed results in a state of "pagum." Since this is not a yichus psul, it is not hereditary. A kohen may not marry a child born out of sin - but that is a personal blemish on this daughter and does not apply to the grandchildren. The grandchild was not "conceived in sin" and also does not have yichus incompatibility (neither did her father), so she suffers no disability whatsoever.
The new psul is derived by comparison with the child of widow-kohen gadol. How is "pagum" derived from a kohen prohibition? The answer is that widow-kohen gadol is not a kohen prohibition. She is prohibited only to a kohen gadol; nonetheless, the child is prohibited to ALL kohanim. The gemara derives from this that any sin results in "pagum," even though there is no blemish in the yichus, even in the kohen yichus. (As a yichus problem, it would make sense if general yisrael yichus incompatibility resulted in mamzerut, kohen yichus incompatibility resulted in challal, and kohen gadol incompatibility resulted in "pasul le-kohen gadol." But that is not the case - the child of the last case is prohibited to all kohanim, so it is clearly not a yichus psul.) Hence, it applies only to a daughter, and is not hereditary.
(If the final halakhic conclusion is that the child of nokhri-yisraelit is not pagum, then this new principle simply doesn't exist; and widow-kohen gadol is apparently a kind of kohen yichus problem after all. One might view the kohen gadol as a more sensitive kind of kohen, rather than as a separate category, and widow as a weak kohen prohibition. It is noteworthy that in Yechezkel (44:24), a widow is prohibited to all kohanim.)
1) The last mishna of the third perek. In order to understand R. Tarfon's suggestion, it is necessary to examine the prohibition of shifcha. See Devarim 23:18 - Rashi and the Ramban; Rambam Hilkhot Issurei Bi'a 12:11-13 (If you have time, read over the first ten halakhot of chapter 12 and compare to the halakhot dealing with shifcha); 15:4. Within the sugya, see the Ramban or the Rashba (s.v. Kol), who quote Rabbeinu Tam. What is the difference between the prohibition of shifcha and all other prohibitions, according to Rabbeinu Tam?
2) Is it permissible to commit an act of theft in order to be sold as a slave and thereby be permitted to marry a shifcha? See the Rashba (s.v. D'minsav).
3) We will continue with the first mishna of the fourth perek. Concerning "Netinim" - see the Rashba (s.v. Giri).
4) The next three pages of gemara are basically aggada. Normally, in yeshiva we would skip this section. There are, in this case, two reasons not to do so. Firstly, a significant part of the aggada deals with the significance of yichus and thus provides some midrashic background to the topics we are learning. And, secondly, I am going to "milu'im" (army reserve) the following week, and so will not have time to write a full shiur in any event. So - you have the next week and a half to learn the aggada up to the bottom of 72b. This may seem like a lot. In fact it is - especially since aggadic pages are longer than halakhic ones. On the other hand, the material is much less complicated than usual, and consists almost entirely of gemara and Rashi alone. Most importantly, you don't have to finish it by the end of next week. It is unconnected, in terms of the halakhic study of gemara, with what we are doing, and there is no reason not to skip whatever is not finished in time, or leave it for another time.
So, after finishing the first mishna of the fourth perek, simply read on in the gemara, at whatever pace is appropriate to you.