Kiddushin 68a (סח.) — the Talmud in English

Even a menstruating woman -

who is also mentioned in that same passage of forbidden sexual relations, and was equated with a wife's sister through this analogy -

also

kiddushin do not take effect with her. And

why [

why]

did Abaye say:

Everyone agrees

with regard to one who has intercourse with a menstruating woman, or with a sota

after warning and seclusion, when she is permanently forbidden to her husband,

that the offspring is not a mamzer;

Abaye's reason with regard to a menstruating woman is that kiddushin take effect with her; and since kiddushin take effect with her, it necessarily follows that the offspring is not a mamzer.

It is therefore clear from Abaye's words that kiddushin take effect with a menstruating woman. But this is difficult: all forbidden sexual relations—including a menstruating woman—were equated with a wife's sister with regard to the non-taking effect of kiddushin!?

He said:

He answered:

Hezekiah:

Kiddushin take effect with a menstruating woman because

the verse says

with regard to a menstruating woman [Leviticus 15:24]: “And if a man lies with her at all,

her menstrual impurity shall be upon him

for seven days, and he shall be impure”; and “shall be” (tehi) is an expression of existence and kiddushin. We thereby learn: “

Even during the time of her menstruation, kiddushin shall take effect with her.”

We still ask:

Since

in the final analysis, because kiddushin take effect with a menstruating woman, then kiddushin should likewise take effect with the other forbidden relations—those that we needed to derive through the analogy, apart from a wife's sister—for

it is possible to equate [

it is possible to analogize] the other forbidden relations

to a menstruating woman

through Rabbi Yonah's analogy, and learn that kiddushin take effect with them, contrary to what you said;

and it is also possible

also

to equate

the other forbidden relations

to a wife's sister,

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

Why do you see fit to equate them with a wife's sister!?

Equate them with a menstruating woman [

What did you see that led you to equate them specifically with a wife's sister? You could equally well equate them with a menstruating woman]!? The Gemara answers: It is a principle that

when there is a lenient and a stringent interpretation, we make the analogy in the stringent direction,

meaning: whenever an analogy can be interpreted in a manner that produces a leniency, and can also be interpreted in a manner that produces a stringency, it is received as a tradition that the Torah intended the analogy in the stringent direction; therefore:

Since the law of the offspring's mamzerut depends upon the law of whether kiddushin take effect—everyone with whom kiddushin do not take effect produces a mamzer— it follows that equating all the forbidden relations with a menstruating woman, to teach that kiddushin take effect with them, is a leniency with regard to the offspring, since he is not a mamzer, whereas equating them with a wife's sister, to teach that kiddushin do not take effect with them, is a stringency with regard to the offspring, since he is a mamzer. Therefore, we make the analogy in the stringent direction, saying: kiddushin do not take effect with all the forbidden relations, just as they do not take effect with a wife's sister.

Rav Aḥa bar Ya'akov said

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

It is derived

that the other forbidden relations have no kiddushin taking effect with them

through a kal va-chomer from a yevama,

a woman obligated in levirate marriage, who is forbidden to the general public and with whom kiddushin do not take effect. They are derived as follows:

And if a yevama, who is

forbidden to the general public only

by a negative commandment [“The wife of the dead man shall not marry outside to a strange man”], nevertheless

kiddushin do not take effect with her,

as Rav expounded in Yevamot 13b from the verse “she shall not be”: it comes to teach, “There shall be no ‘existence [kiddushin]’ with her for a stranger”—

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

that kiddushin do not take effect with them?

And we ask:

If so—

if you derive the other forbidden women from a yevama who is forbidden to the general public—

the other women subject to negative commandments as well

should have kiddushin not take effect with them. Although you cannot derive them from a yevama through a kal va-chomer, since they too are prohibited only by a negative commandment, nevertheless, we could derive them from a yevama through a binyan av; yet according to our Mishna, kiddushin do take effect with those subject to negative commandments!?

Rav Pappa said: With regard to those subject to negative commandments, it is written explicitly concerning them,

that the Torah explicitly states that kiddushin take effect with them, as it says [Deuteronomy 21:15]:

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

and the beloved and the hated have borne him sons, and the son of the hated is the firstborn. 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 over the son of the hated, the firstborn. For he must acknowledge the firstborn, the son of the hated, to give him a double portion”!

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, such that they should alter the law of inheritance on their account, to the extent that the verse had to state that he may not give the right of the firstborn to the son of the beloved over the son of the hated? Surely it need only have said: “For he must acknowledge the firstborn,” and I would know on my own that there is no difference whether his mother is beloved or hated.

Rather,

it necessarily follows that

“beloved”

means

beloved with regard to her marriage [

her marriage is permitted], and

“hated”

means

hated with regard to her marriage [

her marriage is forbidden]. The verse teaches us that nevertheless he may not give precedence to the son of the fit wife over the son of the disqualified wife—

And

therefore

the Merciful One says

concerning both of them:

“When there shall be”,

which implies that he has a valid relationship and kiddushin with them—that is, that kiddushin takes effect with regard to them. But with regard to those liable to karet, it is impossible to interpret the verse in this manner, since kiddushin does not take effect with them. Necessarily, then, the verse is speaking of those subject to prohibitions punishable by lashes, [and below the Gemara explains how we know that the verse is not speaking of those subject to a prohibition by virtue of a positive mitzva].

And

we challenge

Rabbi Akiva, who says: kiddushin does not take effect

even

with those subject to prohibitions punishable by lashes,

if so,

“When there shall be”—

which implies that there is a woman hated by the Omnipresent with whom kiddushin nevertheless takes effect—

to what does he apply

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

And we answer: The verse is speaking

of a widow [who marries] a High Priest

and of the other women disqualified from marrying a kohen, even one who is an ordinary kohen, since even according to Rabbi Akiva kiddushin takes effect with her,

and in accordance with Rabbi Simai!

As Rabbi Simai said: Of all—

of all forbidden unions—

Rabbi Akiva would render

the offspring

a mamzer, except for a widow

who had intercourse

with a

High Priest

or with the other women disqualified from marrying a kohen, even one who is an ordinary kohen,

for the Torah said

with regard to a High Priest: “A widow, a divorced woman, a profaned woman, or a harlot, these he shall not take ... and he shall not profane his offspring among his people.” And we derive:

“He shall not profane”—

he creates profaned offspring, but he does not create mamzerut!

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

We still challenge the position of Rabbi Akiva:

And according to Rabbi Yishvav, who said:

“Come and let us cry out against Akiva ben Yosef

for

saying: Anyone with whom he may not have intercourse within Israel, the offspring is a mamzer,”

and he thereby increases the number of mamzerim in Israel!

And we learn from his statement—when he said, “Anyone with whom he may not have intercourse within Israel”—that according to Rabbi Akiva there is mamzerut even from those subject to prohibitions punishable by lashes that apply to the priesthood, and kiddushin does not take effect with them. If so, how will Rabbi Akiva interpret the verse “When there shall be”? The Gemara adds an explanation:

And

this works well

even

according to Rabbi Yishvav, if

we say that Rabbi Yishvav

came only to exclude Rabbi Simai—

who maintained that, according to Rabbi Akiva, there is no mamzer from those subject to prohibitions punishable by lashes that apply to the priesthood—

is what he came

to say, and he did not intend to include everyone with whom intercourse is forbidden within Israel, for then

it is indeed

possible to interpret “When there shall be” even according to Rabbi Akiva as referring to those subject to a positive mitzva, such as an Egyptian or an Edomite.

But if

Rabbi Yishvav

is stating his own reasoning,

that is, he is not referring to Rabbi Simai’s statement in order to exclude it from his position; rather, he is stating his own view,

and even those subject to a positive mitzva

are included in what Rabbi Yishvav said: “Anyone with whom he may not have intercourse within Israel, the offspring is a mamzer.” Consequently, kiddushin does not take effect even with those subject to a positive mitzva—

to what does he apply it

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

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

to a woman who has previously had intercourse and [then seeks to marry] a High Priest [

who is forbidden to him by the positive mitzva “And he shall take a woman in her virginity,” which implies: not a woman who has previously had intercourse; and a prohibition derived from a positive mitzva has the status of a positive mitzva], for even Rabbi Yishvav concedes that with regard to this positive-mitzva prohibition kiddushin takes effect with her.

And we explain:

And what is different

about the positive mitzva prohibiting a woman who has previously had intercourse from marrying a High Priest, from other positive-mitzva prohibitions with which kiddushin does not take effect?

Because it is a positive mitzva that is not equally applicable to all,

since only a High Priest is forbidden to her, and in this Rabbi Akiva concedes, even according to Rabbi Yishvav.

Here the Gemara returns to the words of the Rabbis, who derived from “When there shall be” that kiddushin takes effect with all those subject to prohibitions punishable by lashes, even though kiddushin does not take effect with a yevama to the marketplace, although she too is subject to a prohibition punishable by lashes,

and

the Gemara challenges

the Rabbis:

Rather than applying it

—before they interpret “When there shall be”

as referring to those subject to prohibitions punishable by lashes,

and derive from it that kiddushin takes effect with those subject to prohibitions punishable by lashes, unlike a yevama to the marketplace—

let us apply it

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

as referring only to those subject to a positive mitzva

and derive from this verse only that kiddushin takes effect with those subject to a positive mitzva, whereas with regard to those subject to prohibitions punishable by lashes, we should say that kiddushin does not take effect, since this can be derived from a yevama to the marketplace!?

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

who are these persons subject to a positive mitzva,

that is, in what manner can we interpret the verse as referring to those subject to a positive mitzva?

If

we interpret it as referring to

both women being Egyptian [

or Edomite women], who are subject to a positive mitzva, this cannot be the interpretation, because:

They are

both 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 woman, who is subject to a positive mitzva],

and

the other woman was

an Israelite,

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

Two women from one people

are required,

and one cannot be from one people and the other from another people.

And if

we interpret the verse as referring to

a woman who has previously had intercourse and [then seeks to marry] a High Priest,

who is subject to a positive-mitzva prohibition, this too cannot be the interpretation according to the Rabbis, because

does it say:

“When there shall be [women] for a High Priest”?

The verse simply says, “When there shall be [women] for a man,” and this implies that the verse is speaking of an Israelite.

It follows that it is impossible to interpret the verse as referring to those subject to a positive mitzva. Necessarily, the verse is speaking of those subject to prohibitions punishable by lashes, and we learn from this verse that kiddushin takes effect with those subject to prohibitions punishable by lashes.

The Gemara returns to explain the reasoning of Rabbi Akiva, who does interpret the verse—according to Rabbi Yishvav—as referring to those subject to a positive mitzva, such as an Egyptian or an Edomite woman, even though they are not from one people, or to a woman who has previously had intercourse and [then seeks to marry] a High Priest, even though it does not say, “When there shall be [women] for a High Priest”:

And Rabbi Akiva

would say to you: The verse is indeed speaking of an Egyptian woman or of a woman who seeks to marry a kohen, and the reason the verse did not state this explicitly is that

you are compelled to leave the verse alone, for it is forced to press and apply itself [

leave the verse to force itself and interpret itself as speaking of an Egyptian woman or of a woman who seeks to marry a kohen]; for once we have learned from a yevama that kiddushin does not take effect with those subject to prohibitions punishable by lashes, we can derive that with regard to all those subject to prohibitions punishable by lashes, kiddushin likewise does not take effect. As for the verse “When there shall be,” we are compelled to force its interpretation and apply it to an Egyptian or Edomite woman, or to a woman who has previously had intercourse and [then seeks to marry] a High Priest.

We learned in the Mishna:

“And anyone with whom she has no [valid relationship]”:

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

From where do we know regarding a Canaanite maidservant

that kiddushin does not take effect with her?

Rav Huna said:

Because

the verse says

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

“Remain here with the donkey,”

which implies:

“with a people resembling a donkey.”

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

We further explain:

We find

indeed a derivation

that kiddushin does not take effect with her—

with a maidservant—

the kiddushin,

as was explained,