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Week 90 - Friday - 17 August 2001

KIDDUSHIN: CHAPTER 3: MISHNAH 12

In every case where there is kiddushin and there is no transgression, the offspring follows the male. And which is this? It is a priestess, a Levitess, or an Israelite woman who is wed to a priest, and to a Levite, and to an Israelite. And in every case where there is kiddushin and there is a transgression, the offspring follows the blemished. And which is this? It is a widow to a High Priest, a divorced woman and a woman who had halitzah to a common priest, a mamzeret and a nalin woman to an Israelite, an Israelite daughter to a mamzer and a natin. And whoever does not have kiddushin with him, but has kiddushin with others - the offspring is a mamzer. And which is this? One who has sexual relations with one of the arayot in the Torah. And whoever does not have kiddushin, with him or with others - the offspring is like her. And which is this? It is the offspring of a maidservant and a Gentile woman.

Kehati

This mishnah deals with the lineage of offspring, and teaches that offspring from a legitimate marriage follow the father, while offspring from a prohibited union - in some cases follow the blemished parent, in some cases are mamzerim and in some cases follow the mother.

In every case where there is kiddushin - the kiddushin is valid, and there is no transgression - in their marriage, the offspring follows the male - the father, as it is written, "by their families, by their fathers' houses" (Num. 1:2). And which case is this? where kiddushin is valid and there is no transgression? It is a priestess, a Levitess, or an Israelite woman who is wed to a priest, and to a Levite, and to an Israelite - if the daughter of an Israelite marries a priest, the offspring is a priest, if the daughter of a priest marries an Israelite, the offspring is an Israelite, and so forth.

And in every case where there is kiddushin - the kiddushin is valid, and there is a transgression - in their marriage, the offspring follows the blemished - partner in the marriage. And which case is this? It is a widow to a High Priest, a divorced woman and a woman who had halitzah (see Deut. 25:9) to a common priest - the offspring is a halal, and is unfit for the priesthood, as it is written, "And he shall not profane (yehalel) his seed" (Lev. 21:15), a mamzeret - bastard, and a natin (Gibeonite descendant) woman to an Israelite, an Israelite daughter to a mamzer and a natin - the offspring is a mamzer or a natin, as it is written regarding a mamzer "A bastard shall not enter into the assembly of the Lord; even to the tenth generation shall he not enter" (Deut. 23:3), and the law of the natin is learned from that of the mamzer. In each of these cases, although the marriage involves a transgression of a Torah prohibition (hayavei laavin) kiddushin is valid, since the Tanna of our mishnah is of the opinion that kiddushin involving the transgression of a Torah prohibition is effective.

And whoever does not have kiddushin with him - if he betroths her, the kiddushin is not valid, but has kiddushin with others - she is not intrinsically invalid and is only forbidden to the one betrothing her due to family relations (e.g., she is his sister, or some similar relation) but if another person were to betroth her, the kiddushin would be valid, the offspring is a mamzer. And which is this? One who has sexual relations with one of the arayot in the Torah - women forbidden because of incest (which is punishable by karet [premature death]) who are listed in the Torah portion of Aharei Mot (Lev. 18:6-20), (with the exception of the niddah). In Tractate Yevamot (49a), this is derived from the verse, "A man shall not take his father's wife" (Deut. 23:1), which is interpreted as referring to the widow of his father's brother, who requires yibum from his father and with whom relations are punishable by karet (Lev. 18:14; 20:20), and from the verse "a mamzer shall not enter into the assembly of the Lord" (Deut. 23:3). From the juxtaposition of the two verses it is learned that if a person engages in a union punishable by karet, the offspring is a mamzer. It was already taught (2:7) that kiddushin is not valid in a union punishable by karet, as it is written (Lev. 18:18), "And you shall not take a woman to her sister" - you shall not "be able" to take with kiddushin.

And whoever does not have kiddushin, with him or with others - a woman with whom kiddushin cannot be effected, the offspring is like her - like the mother. And which is this? It is the offspring of a - Canaanite - maidservant - whose offspring also becomes a servant, as it is written, "the wife and her children shall be her master's" (Ex. 21:4); and a Gentile woman - whose offspring is also a Gentile, as it is written, "For he will turn away your son from following Me" (Deut. 7:4), if you give your daughter to the son of a non-Jew, he will turn away your son (i.e., grandson) born to him by your daughter from following Me - your son born to an Israelite woman is called "your son," but your son born to a non-Jewish woman is not called "your son," but rather "her son," for regarding, "his daughter you shall not take for your son" (ibid.), the Torah did not write, "she will turn away your son."

How do we know that kiddushin is not valid for the maidservant or for the Gentile woman? Regarding the Canaanite maidservant, it is written, "Abide you here with the ass" (Gen. 22:5), from which it was learned, "with one who is like an ass, and regarding the Gentile woman, it is written, "Neither shall you make marriages with them" (Deut. 7:3), - you shall not be able to form a marriage bond with them (Gemara and Rashi, Kidd. 68b). Although this verse refers specifically to the Seven Nations living in Canaan at the time of the Israelite conquest, it is nevertheless the law regarding a non-Jewess from any other people; this is learned, in the Gemara, from that which is written regarding the yefat to'ar (a Gentile woman captive) (see Deut. 21:11 ff.), "and after that you may go in to her, and be her husband, and she shall be your wife" (Deut. 21:13), teaching that, beforehand, kiddushin was not valid for her.

The principle "the offspring is like her" is also learned from a verse in this passage, as it is written, "If a man has two wives... and they have borne him children" (Deut. 21:15) - wherever we say "a man has" (i.e., kiddushin is valid) we say "and they have borne him" - the offspring follow the lineage of the father, and wherever we do not say "a man has" we do not say "and they have born him," but rather "the offspring is like her."

KIDDUSHIN: CHAPTER 3: MISHNAH 13

Rabbi Tarfon says, mamzerim can purify. How so? If a mamzer weds a maidservant, the offspring is a servant. If he frees him - the son consequently is a freeman. Rabbi Eliezer says, This one is a mamzer servant.

Kehati

After the previous mishnah taught that the offspring of a mamzer is also a mamzer and that he is prohibited from entering the assembly of Israel, Rabbi Tarfon teaches that there is a way in which a mamzer may purify his children so that they will not be mamzerim.

Rabbi Tarfon says, mamzerim can purify - their seed from blemish, so that their children will not be like them. How so - can they be purified? If a mamzer weds a - Canaanite - maidservant, the offspring - borne to him by the maidservant, is a servant - as was taught in the preceding mishnah: the offspring is like her. If he - the child's father, who is also his master, frees him - the son consequently is a freeman - he is an unblemished Israelite. The Gemara concludes (Kidd. 69a) that according to Rabbi Tarfon a mamzer may even acquire a Canaanite maidservant and wed her in order to purify his offspring since a mamzer is permitted to wed a maidservant (Rabbeinu Nissim; see Tosefot Yom Tov);

Rabbi Eliezer says, This one is a mamzer servant - since the offspring is like her, he is a servant, but he is also a mamzer, because the blemish of being a mamzer stays with him forever. The law is in accordance with Rabbi Tarfon. In the case of a Canaanite servant who weds a mamzeret, however, even Rabbi Tarfon would concede that the offspring is a mamzer since the offspring does not follow his father the servant, but rather his mother.

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