13a - Le-Divrei Ha-makhshir Ba, Makhshir Be-vita
Translated by David Silverberg
The mishna (13a) cites a dispute between Rabban Gamliel and Rabbi Yehoshua concerning a woman who had a relationship with a man of unknown identity. According to Rabban Gamliel, the woman is believed to claim that the man is kasher - meaning, he is not someone forbidden for her to marry, in which case she would be forbidden from marrying a kohen. Rabban Gamliel maintains that we believe the woman and permit her to marry a kohen.
The Gemara cites a debate between the Amoraim as to the scope of Rabban Gamliel's position, namely, whether or not it applies as well to this woman's daughter who resulted from this union. According to one view, "le-divrei ha-makshir ba, makhshir be-vita" - the one [= Rabban Gamliel] who permits the woman to marry a kohen extends this permission to her daughter, as well. The other position argues that this ruling applies only to the woman herself, however her daughter may not marry a kohen.
This issue may be addressed on several different levels. The Gemara cites Rabba as attributing the stringent position to the fact that unlike the woman herself, the daughter does not have a chazaka (a presumed status quo by which she is permitted to a kohen). (The woman herself was originally permitted to a kohen and therefore has a status quo in her favor. However, if the daughter is prohibited, this took place at birth. Thus she has no chazaka working in her favor). The lenient view, however, may argue that no chazaka is necessary in this case; we permit the woman independent of her chazaka, and we may therefore apply this ruling even to her daughter, who does not have a chazaka. Additionally, perhaps it was only Rabba who introduces the factor of chazaka into this discussion; others, however, may understand this sugya as unrelated to the issue of chazaka. Although many Rishonim do, indeed, hinge the daughter's status on the question of chazaka, other approaches effectively divorce the two issues. We will begin our discussion by addressing these views.
The Rosh (1:18) writes that according to the lenient view, the woman's definite claim ("bari") is strong enough to allow the daughter to marry a kohen even without a chazaka. If so, the dissenting view argues for one of two reasons. First, the definitive claim of the woman has no bearing on her daughter (as this resembles the case of "bari li al yedei acher" - when one is certain of his position based solely on the claim of another; see Shev Shemateta (2,17), based on Bava Batra 135a and Ketubot 76a). Secondly, the permission given to the woman to marry a kohen may be predicated on the principle of "eid echad ne'eman be-issurin" - in the realm of "issur ve-heter," we believe the testimony of even a single individual. This principle will mandate that we permit the mother, however it might not affect the daughter. The Kehillat Yaakov explains that with respect to the mother, the question is whether or not something occurred that renders her forbidden. This case therefore falls under the general category of "issurin" for which the testimony of a single witness suffices. Regarding the daughter, however, we are uncertain of her lineage; the possibility of her marriage to a kohen thus belongs to a different area of halakha, "davar she-be'erva" (personal status), for which two witnesses are required ("ein davar she-be'erva pachot mi-shnayim").
The Meiri, too, makes no mention of chazaka in his discussion of the daughter's status. He emphasizes that a chazaka of this nature is required only against a chezkat mammon - meaning, when one seeks to extract money from its currently presumed owner. When, however, no monetary issue is involved, the mother is believed even without a chazaka. He writes: "She claims that [this child was fathered] by so-and-so, and he was a kohen, meaning, someone whose relations do not render her forbidden to a kohen, and not from a netin or a mamzer, in which case the daughter would have his status. She [the woman] is believed [when she makes such a claim], even though she does not have a chezkat kashrut, since no extraction of money is at stake." The Meiri does not clarify in this passage whether our acceptance of the woman's claim is due to her definitive claim, or to the principle of "eid echad ne'eman be-issurin." (In his comments to 9a, he writes explicitly that this evolves from "eid echad… ") Needless to say, the view prohibiting the daughter can adopt one of the two arguments we suggested earlier within the Rosh's approach. (We should note, however, that in his comments later in the Gemara, the Meiri does attribute this halakha to the woman's chazaka, seemingly contradicting his position in this passage.)
As stated, however, many Rishonim viewed the Gemara's discussion as surrounding the question of chazaka, namely, whether or not the woman's chazaka can apply to the daughter.
This question itself has two different points of focus. First, we must question whether or not we grant the daughter her own chezkat kashrut. Perhaps, once we establish that the mother is permitted to a kohen because of her chezkat kashrut, then we naturally presume that her children share this status. Such an argument would be based on the notion of "chezkat dorot," by which we assume that children continue their parents and thus earn their status. The Gemara later (26a) discusses a case of a person whose father is presumed a kohen, and it appears from Tosefot (26b s.v. anan) that once the father is presumed a kohen, the son is, as well. The same concept might apply here, in our sugya. We assume that the daughter shares her mother's status; the daughter of a woman with a chezkat kashrut possesses a chezkat kashrut herself. The mother's chezkat kashrut thus naturally yields her daughter's chezkat kashrut.
Rashi, however, understood that the daughter has no independent chezkat kashrut. Rather, the Gemara contends that once we resolve the question concerning the mother based on her chazaka, we automatically have resolved the question regarding the daughter, as well; if we conclude that the mother had relations with a kasher and may marry a kohen, then we must permit the daughter as well based on this conclusion.
In Masekhet Kiddushin (66), the Gemara discusses the status of the Hasmonean king and high priest Yannai, whose mother was rumored to have been captured by enemy forces, during the Maccabean uprising (in which case we must assume that she had been raped by a non-Jew, thus disqualifying her son, Yannai, from serving as kohen gadol). Towards the end of its discussion, the Gemara records that this case was one of "trei u-trei" - meaning, two sets of witnesses rendered conflicting testimony as to whether or not Yannai's mother had fallen captive. The Rishonim ask, if indeed we have here a "trei u-trei," why did the rabbis not grant Yannai his mother's chezkat kashrut? Just as we cannot change our presumption of her status without conclusive evidence of her having been taken captive, we should presume his status of legitimacy, as well.
Rashi writes that since Yannai's mother did not personally come to a Bet-Din to determine her status, that question could not be resolved; consequently, Yannai's status could not be established, either. If his mother had come to Bet-Din and they had decided upon her legitimacy, we would afford the same status to Yannai himself. Once we determine her status of kashrut, we necessarily determine his, as well; we cannot have a situation whereby the mother is deemed kasher and her son pasul.
It emerges that Rashi denies the aforementioned notion of "chezkat dorot." According to him, the parent's chazaka is effective with regard to the child's status only incidentally, in that resolving the parent's status in effect resolves the child's, as well. Rashi maintains, however, that this incidental effect takes place only when we are explicitly called upon to determine the parent's status.
Tosefot (in Kiddushin) argue with Rashi and ask, "Why doesn't his mother's chazaka help him?" Tosefot express a similar viewpoint in Ketubot (26b), where they claim that the stringent position in our sugya, which forbids the daughter from marrying a kohen, does so only because of a unique provision instituted in cases of zenut. Otherwise, a child earns the parent's chazaka. There in Ketubot 26b, therefore, if someone has a presumed status as a kohen, his son may be likewise presumed a kohen. Clearly, according to Tosefot, there is no need for an actual determination of the father's status in order for us to consider the son a kohen by virtue of our formal establishment of his father's status. The child himself enjoys an independent chazaka, by virtue of his being the son of someone who has a chazaka.
We can explain Tosefot's position based on the notion of "chezkat dorot," whereby the status of the parents is assumed regarding the offspring. Alternately, we can adopt the explanation of the Kovetz Shiurim (Bava Batra 132) who writes that the father's status includes the presumption that his son is just like him. If we disqualify the son, this would mark a change in the father's status - which violates his chazaka.
We thus have two ways of explaining Tosefot's position regarding "chezkat dorot." First, they may have felt that a proper family has a chazaka that all its offspring are kesheirim; this chazaka is conferred upon all members of the family. Secondly, as the Kovetz Shiurim explained, the father himself has a presumed status by which his son is the same as he; changing the child's status would therefore be opposed by the father's chazaka.
As mentioned, Rashi does not accept this approach at all, for, as we saw, he denies the possibility of transferring a chazaka from one person to another. Similarly, Rashi maintains that if a child was born initially in a situation of safek, he cannot receive a personal chazaka unless this safek affects his parents, as well. Only in a case, when the doubt is resolved with respect to the parents, we may apply this resolution to establish the child's status, as well.
The Tosefot Ha-Rosh and the Rash (26b) challenge Rashi's view. It appears that while they accept his approach in principle, they argue with regard to its details. The Tosefot Ha-Rosh writes: "It is impossible for the mother to be kasher while the child is not." Meaning, since we cannot consider the woman kasher without making the same decision concerning the child, it makes no difference whether or not the woman comes before the Bet-Din; the chezkat kashrut of the mother must apply to the child, as well.
We may explain this debate between Rashi and the Tosefot Ha-Rosh as follows. In the case of Yannai, the question was whether or not his mother had been disqualified for the kehuna. The event in question related to the mother, not to Yannai himself. He was born to a perfectly kasher union. The only question at hand is whether or not the mother became disqualified in the past, and this question is laid to rest due to the mother's chazaka. In our sugya, we have one question concerning the mother - whether or not she had relations with a pasul - and we have a second question regarding the daughter who was born from that union itself. Although both these questions, regarding the status of the mother and the daughter, depend upon the same issue - the identity of the man, there is nevertheless room to argue that we have here two different questions to deal with, and the chazaka of the mother is not necessarily applied to the daughter.
If so, then perhaps, according to the Tosefot Ha-Rosh, the view in our sugya that considers the mother kasher and the daughter pasul arrives at this ruling because it sees this case as involving two distinct questions: with whom did this woman have relations, and, secondly, who is the father of this girl. The daughter's status depends not on the mother, but rather on the man's identity (even though in reality the mother obviously cannot be kasher if the daughter is pasul). In the case of Yannai, by contrast, the son's status depends entirely on the mother; on whether or not she had been taken captive. Therefore, according to the Tosefot Ha-Rosh, even if the mother never came for a halakhic ruling, when the son comes before us we deal with the case just as we would had the mother come, as the son's question flows from the status of the mother.
Rashi, by contrast, would argue that a chazaka does not take effect automatically; it is rather a decision made in a specific instance. Only when a particular question arises does a chazaka come along and resolve the question. If the question concerning the child's status comes up in Bet-Din, and the child himself does not have a chazaka, we cannot implement the mother's chazaka for this decision, since her status is not under discussion at the current hearing. Only if she does come before us and we issue a ruling based on her chazaka can we then apply this ruling to determine her son's status, as well.
We may also suggest a different explanation for Rashi's view. Rashi claims that we cannot rule on the basis of a chazaka unless a question arises relating directly to the subject of that chazaka. He might concede, however, that where we have a perfectly sound chazaka that has not been called into question, we may implement it even when the subject himself never came before the court to determine his status. Where, however, we have a "rei'uta," meaning, when the chazaka has been called into question, such as in our case, where the woman has definitely engaged in an illicit relationship, only we are unsure of the man's identity (read carefully Rashi's comments to 13b, s.v. it lei) - then we cannot employ the chazaka unless its subject - in this case, the woman - comes before us for a hearing. The same would therefore apply to the case of Yannai. Whether or not she had fallen captive is subject to a "trei u'trei"; her chazaka has thus been undermined, and it can therefore be invoked only to retain her status when she herself comes before the Bet-Din. Otherwise, the chazaka will be of no avail to determine the status of her son. (See previous shiur.)
As cited earlier from Tosefot (26b), the debate as to whether Rabban Gamliel's lenient ruling applies to the daughter might merely surround the issue of "ma'ala" - whether Chazal instituted a unique stringency in situations of zenut. Quite possibly, however, this debate might touch upon the nature of this chazaka. One could view a chazaka as functioning in one of two ways: either it resolves the question at hand, and allows us to assume one of the two sides of the safek, or it merely provides instruction as to how to proceed in a case of uncertainty. If the chazaka resolves the safek, then we would likely consider the daughter a kasher on the basis of the chazaka of the mother. Conversely, if chazaka simply tells us how to proceed in cases of doubt, then this may apply only to the mother, and not to the daughter, since only the mother has a chazaka. On the other hand, one could still argue that we cannot issue a self-contradictory ruling; hence, since, when all is said and done, the status of both mother and daughter is interdependent, once we rule leniently with regard to the mother, we must do so with regard to the daughter. (See Shev Shemateta (4,4); see also Shitta Mekubetzet in the name of the Ri Migash.)
The Ra'a writes that we may consider the daughter kasher because of the principle of "ubar yerekh imo" - a fetus is viewed as a part of the mother's body. We could explain this approach to mean that since we see the daughter and mother as "one body," a resolution with regard to one compels a resolution with regard to the other; we cannot distinguish between the two. One could also explain the Ra'a that he refers to the concept of "chezkat dorot" developed by Tosefot; once we view the fetus as part of the mother's body, she naturally acquires the mother's chazaka. A full discussion of this approach requires further analysis.
Tosefot (14a, s.v. almenet) write that in the case of almenet isa (the widow of a "safek chalal" - a kohen who has a questionable status of a "chalal," or a disqualified kohen; see next week's shiur), even one who permits her to marry a kohen forbids her daughter from doing so. Tosefot then question this distinction, in light of the fact that regarding both we have a "sefeik-sefeika" - a "double doubt" as to whether they are forbidden to a kohen, and therefore both should be permitted. They answer that since the daughter does not have a chezkat kashrut, Chazal instituted as an added stringency, to preserve the integrity of the kehuna ("ma'ala asu be-yuchesin"), that we should not rely on a sefeik-sefeika in this case. The question arises as to why, according to Tosefot's position developed earlier, that the mother's chazaka may be applied to the daughter through the concept of "chezkat dorot," does the daughter of the almenet isa not automatically receive her mother's chazaka? The answer may be that in this case, the safek initially arises concerning the father; it is he who potentially renders his wife and daughter pasul. Since it is more reasonable to transfer to the daughter her father's chazaka rather than her mother's, in this case, when the father is a safek chalal, the daughter does not receive her mother's chezkat kashrut.
According to the other approach we have seen, that the mother's chazaka affects the daughter because resolving one issue necessarily resolves the second, this argument would not apply in this case, either. In the case of our mishna, the daughter's status depends solely on the mother's actions, on the question of with whom she had engaged in relations. One could thus argue that once we establish the mother's status we have necessarily determined her daughter's, as well. In the situation of almenet isa, by contrast, the daughter's status depends on the father's, and, unlike the case of our mishna, we know precisely who the father is. We therefore cannot claim that resolving the woman's status automatically determines the daughter's. To the contrary, we should instead hinge the daughter's status on that of her father and thus render her forbidden.
A different view appears in the Tosefot Ha-Rosh in Kiddushin, which claims (according to one approach) that the lenient position in the case of almenet isa extends this ruling to the daughter; the Ritva in our sugya adopts this view, as well.
Sources and questions for next week's shiur:
1. 13b "amar R. Yochanan... miyuchas acharav."
2. Rosh 1:18 "umihu nireh li... umihemna."
3. Kiddushin 66a "ma'aseh biYanai... smoche ahanee;" Rashi s.v. smoche.
4. Ketubot 26a "Rebbi Yehuda... lo chayshinan;" Tosefot s.v. anan [till "be-chezkat heiter"], Tosefot Ha-Rosh s.v. anan [till "mi-bi'ima"]
1. Is there an actual possibility in our case, that the mother is permitted to kohanim while the daughter is prohibited?
2. What is the basis to distinguish between the halakhic ruling regarding the mother and that of the daughter?
3. Is it possible to claim that the daughter has a chezkat kashrut?
4. According to Rashi, what is the difference between the case in Kiddushin and our sugya?
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