Kiddushin 68a — the Talmud in English

Even a menstruant woman -

who too is written in that same section of forbidden sexual relations, and was equated with a wife's sister through this hekesh -

also

kiddushin do not take effect with her, and

why then [

why ]

did Abaye say:

Everyone agrees

with regard to one who has intercourse with a menstruant woman, and with a woman suspected of adultery

after warning and seclusion, that she is forever forbidden to her husband,

that the offspring is not a mamzer;

and Abaye’s reason regarding a menstruant woman is because kiddushin take effect with her, and since kiddushin take effect with her, it necessarily follows that the offspring is not a mamzer.

It is thus explained from Abaye’s words that kiddushin take effect with a menstruant woman, and one may object: Behold, all the forbidden relations—and a menstruant woman among them—were equated with a wife’s sister with regard to the non-taking effect of kiddushin!?

He said

he answered,

Hezekiah:

kiddushin therefore take effect with a menstruant woman, because

the verse says

concerning a menstruant woman [Leviticus 15:24]: “And if a man indeed lies with her,

and her menstrual impurity shall be upon him

and he shall be impure for seven days,” and “shall be” is an expression of existence and kiddushin, and we learn: “

Even at the time of her menstruation, there shall be existence with her.”

But we still ask:

since

after all, since kiddushin take effect with a menstruant woman, then also with the other forbidden relations—the ones that we needed to learn through the hekesh, apart from a wife’s sister—kiddushin should take effect, for:

It is possible to equate [

it is possible to equate ] the other forbidden relations

with a menstruant woman

through Rabbi Yona’s hekesh, and to learn that kiddushin take effect with them, contrary to your words,

and it is also possible

also

to equate

the other forbidden relations

with a wife’s sister,

and to learn that kiddushin do not take effect with them, as you said! And if so:

What have you seen that you equate them with a wife’s sister!?

Equate them with a menstruant woman [

What have you seen to equate them specifically with a wife’s sister, when you likewise have to equate them with a menstruant woman]!? And we answer: It is a rule:

When there is leniency and stringency, we equate for stringency,

that is: every hekesh that you can expound in a manner from which a leniency emerges, and you can expound it in a manner from which a stringency emerges, it is a tradition in our hands that the Torah’s intention was to equate them for stringency; and therefore:

since the law of the taking effect of kiddushin determines the law of the mamzer status of the offspring, for anyone with whom kiddushin do not take effect, the offspring from her is a mamzer, it follows, then, that equating all the forbidden relations with a menstruant woman, to say that kiddushin take effect with them, is a leniency regarding the offspring, since he is not a mamzer, whereas equating them with a wife’s sister, to say that kiddushin do not take effect with them, is a stringency regarding the offspring, since he is a mamzer; therefore we equate for stringency, saying: kiddushin do not take effect with all the forbidden relations, just as they do not take effect with a wife’s sister.

Rav Aha bar Yaakov said

to explain the source for the other forbidden relations, apart from a wife’s sister, with whom kiddushin do not take effect:

It comes

the other forbidden relations come to the non-taking effect of kiddushin -

through a kal va-chomer from a levirate wife

who is awaiting levirate marriage, who is forbidden to the wider public and kiddushin do not take effect with her, and they are learned as follows:

And if a levirate wife, who

is not forbidden to the wider public except

by a prohibition, [“The wife of the dead man shall not be to the outside, to a strange man”], nevertheless

kiddushin do not take effect with her,

as Rav expounds in Yevamot 13b from the verse “She shall not be”: it comes to teach, “There shall not be ‘existence [kiddushin]’ with her for a stranger” -

Those liable for court-imposed death penalties and those liable for karet—is it not all the more so

that kiddushin do not take effect with them.

And we ask:

If so -

that from a levirate wife to the wider public you learn regarding the other forbidden women -

the other persons liable for prohibitions also

kiddushin should not take effect with them; and although through a kal va-chomer you cannot learn them from a levirate wife, since they too are subject only to a prohibition, nevertheless let us learn them through a common principle from a levirate wife—and according to our Mishna, kiddushin take effect with those liable for prohibitions—!?

Rav Pappa said: Regarding those liable for prohibitions, it is explicitly written concerning them,

it is explicitly written in the Torah that kiddushin take effect with them, as it is stated [Deuteronomy 21:15]: “

If a man has two wives, one beloved and the other hated

and the beloved and the hated bear him sons, and the firstborn son is of the hated one. And it shall be on the day that he causes his sons to inherit what he has, he may not give the right of the firstborn to the son of the beloved one over the son of the hated one, the firstborn. For he shall acknowledge the firstborn, the son of the hated one, to give him a double portion”!

But is there a hated one before the Omnipresent and a beloved one before the Omnipresent!?

That is: Is the husband’s love and the husband’s hatred significant before the Omnipresent, so as to alter the law of inheritance on their account, to the extent that the verse needed to say that he may not give the right of the firstborn to the son of the beloved one over the firstborn son of the hated one!? Surely it need only have said: “For he shall acknowledge the firstborn,” and I know on my own that there is no difference whether his mother is beloved or whether she is hated.

Rather

it necessarily follows that

“beloved”

is

beloved in her marriage [

her marriage is permitted], and

“hated”

is the

hated in her marriage [

her marriage is forbidden]; and the verse informs us that nevertheless he may not give the son of the fit woman preference over the son of the unfit woman -

And

behold,

the Merciful One says

concerning both of them: “

When there shall be,”

which implies that he has havaya and kiddushin with them—that is, that kiddushin takes effect for him with them. But with those liable to karet, it is impossible to explain [the verse in this manner], since kiddushin does not take effect with them. Necessarily, the verse is speaking of those liable to prohibitions, [and below it will explain from where it is known that the verse is not speaking of those liable to positive commandments].

And

we challenge

Rabbi Akiva, who says: kiddushin does not take effect

even

with those liable to prohibitions .

If so, “

When there shall be” —

which implies: there is a hated woman before the Omnipresent with whom kiddushin takes effect —

with what does he establish

it [with regard to what hatred is the verse speaking]!?

And we answer: The verse is speaking

of a widow [forbidden] to a High Priest

and of the other women disqualified from the priesthood, even [when forbidden] to an ordinary priest , for even according to Rabbi Akiva kiddushin takes effect with her,

and [it is] according to Rabbi Simai!

For Rabbi Simai said: From all

—from all forbidden acts of intercourse—

Rabbi Akiva would make

the offspring

a mamzer, except for a widow

who had intercourse

with a

High Priest

and with the other women disqualified from the priesthood, even [when forbidden] to an ordinary priest.

For the Torah said

concerning a High Priest: “A widow, a divorced woman, a profaned woman, a prostitute—these he shall not take … and he shall not profane his offspring among his people,” and we learn: “

He shall not profane,”

he makes profaned offspring, but he does not make mamzerut!

And since he does not make mamzerut, necessarily kiddushin takes effect with her, for whenever kiddushin does not take effect with her, the offspring is a mamzer.

And we still challenge the approach of Rabbi Akiva:

And according to Rabbi Yishbav, who said: “

Come, let us cry out against Akiva ben Yosef

because of

his saying: Whoever has no permitted intercourse in Israel, the offspring is a mamzer,”

and he increases the number of mamzerim in Israel!

And we learn from his words—when he said: “Whoever has no permitted intercourse in Israel”—that according to Rabbi Akiva there is mamzerut even from those liable to prohibitions of the priesthood, and kiddushin does not take effect with them. If so, how will Rabbi Akiva interpret the verse “When there shall be”!?: And the Gemara further explains:

And

this is well

even

according to Rabbi Yishbav, if

we say: Rabbi Yishbav

came only to exclude Rabbi Simai—

that he would say that according to Rabbi Akiva there is no mamzer from those liable to prohibitions of the priesthood—

he comes

alone, and his intention is not to include everyone who has no permitted intercourse in Israel, for then

properly

“When there shall be” can be interpreted even according to Rabbi Akiva as referring to those liable to positive commandments, such as an Egyptian and an Edomite.

But if

Rabbi Yishbav

stated his own reasoning,

that is: He is not referring to Rabbi Simai’s words in order to exclude them from his position; rather, he is stating his own view,

and even those liable to positive commandments

are included in what Rabbi Yishbav said: “Whoever has no permitted intercourse in Israel, the offspring is a mamzer.” Consequently, kiddushin also does not take effect with those liable to positive commandments—

With what does he establish it

Rabbi Akiva—according to the verse “When there shall be”!?

And we answer: Rabbi Akiva—according to Rabbi Yishbav—establishes the verse “When there shall be”

with a woman who had intercourse with a High Priest

[who is forbidden to him by the positive commandment “And he shall take a woman in her virginity,” which implies: and not a woman who had intercourse; and a prohibition derived from a positive commandment is a positive commandment], for with this prohibition of a positive commandment even Rabbi Yishbav agrees that kiddushin takes effect with her.

And we explain:

And what is different

about the positive commandment concerning a woman who had intercourse [forbidden] to a High Priest from the other cases of those liable to positive commandments, with whom kiddushin does not take effect?

Because it is a positive commandment that is not the same for all

for only a High Priest is forbidden through it, and in this Rabbi Akiva agrees, even according to Rabbi Yishbav.

Here the Gemara returns to the words of the Sages, who learned from “When there shall be” that kiddushin takes effect with all those liable to prohibitions, even though in the case of a widow awaiting levirate marriage to the public kiddushin does not take effect, although she is one of those liable to prohibitions,

and

the Gemara challenges

the Sages:

Rather than establishing it,

while they interpret “When there shall be”

as referring to those liable to prohibitions,

and learn from this that kiddushin takes effect with those liable to prohibitions, unlike a widow awaiting levirate marriage to the public,

let us establish it—

let us interpret the verse “When there shall be”—

as referring only to those liable to positive commandments

and learn from this verse only that kiddushin takes effect with those liable to positive commandments; but concerning those liable to prohibitions, let it be said that kiddushin does not take effect, since this can be learned from a widow awaiting levirate marriage to the public!?

And we answer: It is impossible to interpret the verse “When there shall be” as referring to those liable to positive commandments, because

what are these cases of those liable to positive commandments,

that is: In what manner can we interpret the verse as referring to those liable to positive commandments!? For

if

we interpret it as referring to

both of them being Egyptian women

[or Edomite women], who are liable to a positive commandment, this cannot be the interpretation, because:

Behold,

both are hated,

whereas the verse is speaking of one beloved woman and one hated woman.

And

if

we interpret the verse as referring to one woman who was

an Egyptian

[or an Edomite, who is liable to a positive commandment],

and

the other woman were

an Israelite,

who is fit and beloved, even so this cannot be the interpretation, because:

Two women from one people

we require,

and not that one should be from one people and the other from another people.

And if

we interpret the verse as referring to

a woman who had intercourse with a High Priest,

who is liable to a positive commandment, even so this cannot be the interpretation according to the Sages, because

is it written: “

There shall be [women] for a priest,”

whereas the verse simply says “There shall be [women] for a man,” and this implies that the verse is speaking of Israelites.

It follows that it is impossible to interpret the verse as referring to those liable to positive commandments, and necessarily the verse is speaking of those liable to prohibitions. We learn from this verse that kiddushin takes effect with those liable to prohibitions.

The Gemara returns to explain the reasoning of Rabbi Akiva, who does indeed interpret the verse—according to Rabbi Yishbav—as referring to those liable to positive commandments, such as an Egyptian or an Edomite, even though they are not from one people, or as referring to a woman who had intercourse with a High Priest, even though it is not written: “When there shall be [women] for a priest”:

And Rabbi Akiva

will say to you: The verse is speaking either of an Egyptian woman or of a priest, and the reason the verse did not state this explicitly is that

against your will, leave the verse, for it is forced and establishes itself

[leave the verse, for it will force itself and explain itself] as speaking of an Egyptian woman or of a priest; for since we learn from a widow awaiting levirate marriage to the public that kiddushin does not take effect with those liable to prohibitions, we can learn concerning all those liable to prohibitions that kiddushin likewise does not take effect with them. As for the verse “When there shall be,” we are compelled to force it and interpret it as referring to an Egyptian or Edomite woman, or to a woman who had intercourse with a High Priest.

We learned in the Mishna:

And anyone with whom she does not have:

And anyone with whom she has no kiddushin, neither with him nor with others, the offspring is like her. And who is this? This is the offspring of a maidservant and a non-Jewish woman. And we explain:

From where do we know concerning a Canaanite maidservant

that kiddushin does not take effect with her?

Rav Huna said:

Because

the verse says

concerning Abraham, who went to bind Isaac, with his son and his two young men with him, one of whom was Eliezer his slave: “

Sit here for yourselves with the donkey,”

and this implies: “

with one resembling a donkey,”

and it teaches us that slaves are like a donkey: kiddushin does not take effect for them, and not even for their females.

We further explain:

We find,

indeed, we find a derivation

that kiddushin does not take effect with her—

with a maidservant—

of kiddushin,

as was explained,