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Wednesday, 18 Elul 5775 / September 2, 2015
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Rambam - 1 Chapter a Day

Rambam - 1 Chapter a Day

Issurei Biah - Chapter Three

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Issurei Biah - Chapter Three

Halacha 1

When a person has relations with the wife of a minor, he is not liable.1[This applies] even to a yevamah with whom a nine year old [brother] had relations.2 Similar [laws apply when] a person has relations with the wife of a deaf-mute,3the wife of a mentally or emotionally unstable individual,4the wife of a tumtum or an androgynus,5a female deaf-mute or a woman who is mentally or emotionally unstable married to a mentally capable individual,6 or a woman whose consecration is of doubtful status or whose divorce is of doubtful status. In all of the above situations, one is not liable. If they willfully transgress, they are given stripes for rebellious conduct.

Halacha 2

[The following rules apply if a man] engages in relations with a female minor, the wife of an adult male. If she was consecrated by her father, [the adulterer] is executed by strangulation.7 She is not liable for anything,8 [but] she is forbidden to her husband,9 as explained in Hilchot Sotah.10

If she has the right to perform mi'un11, he is given stripes for rebellious conduct and she is permitted to [remain married] to her husband, even if he is a priest.12

Halacha 3

When the daughter of a priest commits adultery while married, she is executed by burning, as [Leviticus 21:9] states: "When the daughter of a man who is a priest will begin to commit adultery, [she will be burnt by fire]." [This applies] whether she is married to a priest or an Israelite. [Indeed,] even if her husband was a mamzer13 or a nitin14 or another whom it is forbidden to marry because of a negative commandment,15 [she is given this punishment].

The man who engages in adultery with her is executed by strangulation.16 Similarly, the daughter of an Israelite who is married to a priest is [executed] by strangulation [if she commits adultery] as is the law with regard to any other married woman.

Halacha 4

When a man has relations with a consecrated maiden, they are both executed by stoning. They are not liable to be stoned to death until the maiden17 is a virgin, consecrated,18 and in her father's home. If she came of age19 or she entered the chupah20 even if the marriage was not consummated, they are executed by strangulation. [The lesser punishment is given] even if the father gave her to the emissaries of the husband21 and she committed adultery on the way.

Halacha 5

When a man has relations with a girl who is a minor and is consecrated while she is living in her father's house, he is executed by stoning22 and she is not liable.23 When a consecrated maiden who is the daughter of a priest commits adultery, she is stoned to death.24

Halacha 6

When ten men enter into relations with her one after the other while she is a virgin in her father's home, the first is executed by stoning and the remainder, by strangulation.25

When does the above apply? When they had vaginal intercourse. If, however, they had anal intercourse, she is still a virgin and they are all executed by stoning.26

Halacha 7

When a consecrated maiden was a freed slave or a convert, even if she was freed or converted before she reached the age of three,27 [the adulterer] is executed by strangulation,28 as is the law with regard to all married women.

Halacha 8

There is a new law that applies to a person who spreads a malicious report [about his wife].29 What is this new [law]? That if the gossip is discovered to be true and witnesses come [and testify] that she committed adultery when she was a consecrated maiden, even if she committed adultery after she left her father's house and even if she committed adultery after she entered the marriage canopy before she had relations with her husband, she is stoned to death at the entrance to her father's house. Other consecrated maidens concerning whom a malicious report was not spread are executed by strangulation if they committed adultery after they left their father's home, as we explained.30

Thus there are three types of execution for adultery with a married women: strangulation,31 burning to death,32 and stoning to death.33

Halacha 9

Where is a consecrated maiden who committed adultery stoned to death? If she committed adultery while in her father's house, even though the witnesses did not testify until she went to her father-in-law's house and married, she is stoned to death at the entrance to her father's house.34 If she committed adultery in her father-in-law's house before her father conveyed her [to her husband], she is stoned to death at the entrance to the gate of the city.35 [This applies] even if [the witnesses] testified concerning her after she returned to her father's house.

Halacha 10

If witnesses come [and testify] after she comes of age36 or after her husband has relations with her, she is stoned to death in the place for stoning.37[This applies] even if they testify that she committed adultery in her father's home when she was a maiden.38

Halacha 11

If [a woman] was conceived before her mother converted and born after her mother converted, she is stoned at the entrance to the gate of the city.

[The following rule applies to] every woman who is obligated to be stoned at the entrance to the gate of the city. If the city is predominantly populated by gentiles, we stone her at the entrance to the court.39

[The following rule applies to] every woman who is obligated to be stoned at the entrance to her father's house, if she does not have a father or she has a father, but he does not have a house, she is stoned at the place for stoning. The "entrance to her father's house" was mentioned only as a mitzvah.40

Halacha 12

When a person engages in relations many times with one of the arayot, he is liable for kerait or execution by the court for every time he engages in relations.41 Although the court can only execute the person only once, the different times he engages in relations are considered as different transgressions.

Similarly, if a person is liable for several different transgressions for engaging in relations once,42 if he transgressed inadvertently, he must bring a sacrifice for every transgression he performed even though he engaged in relations only once, as will be explained in Hilchot Shegagot43 If he transgressed intentionally, it is considered as if he violated many transgressions. Similarly, there is a situation where a person engages in relations once and incurs liability for lashes many times as will be explained.44

Halacha 13

The term shifchah charufah employed by the Torah refers to [a woman] who is half a Canaanite maidservant and half a freed woman45 who has been consecrated by a Hebrew servant.46 [Concerning the infidelity of such a woman, Leviticus 19:20] states: "They shall not die, because she was not freed."47 If she was freed entirely, one is liable for execution by the court, for she becomes a married woman in a complete sense, as explained in Hilchot Ishut.48

Halacha 14

[The laws regarding] relations with this maidservant are different than [those regarding] all other forbidden relations in the Torah. For she is lashed, as [ibid.] states: "There shall be an inquiry."49 He is liable to bring a guilt offering, as [ibid.:21] states: "And he shall bring his guilt offering."50Whether he transgresses intentionally or inadvertently with a shifchah charufah, he must bring a guilt offering.

When he enters into relations with her many times, whether intentionally or unintentionally, he is required to bring only one sacrifice.51 She, however, is liable for lashes for every act of relations if she acted intentionally, as is the law with regard to other instances [where relations are forbidden] by merely a negative commandment.

Halacha 15

When a person just inserts his corona into the female organ of the shifchah charufah, but does not insert the entire organ, he is not liable. [Liability is incurred only when] he inserts the entire organ.52

He is only liable when she is above majority, had engaged in relations previously and acts intentionally and willfully.53 If, however, she is a minor, she had never engaged in relations, or she transgressed inadvertently, was raped, or was sleeping, he is not liable. Similarly, if he had anal intercourse with her, he is not liable, for with regard to a shifchah charufah an equation was not established between vaginal intercourse and anal intercourse, for [Leviticus 19:20] speaks of: "ly[ing] while emitting seed."54 With regard to other [forbidden] relations, the Torah did not distinguish between one type of relations and the other, for [ibid. 18:22] speaks of "the ways [in which a man] lies with a woman." Implied is that the Torah recognizes two ways of lying with a woman.

Halacha 16

In every instance concerning a maidservant where we said there was no liability, he is not liable for a sacrifice and she is not liable for lashes. He,55 however, is given "stripes for rebellious conduct" according to Rabbinic Law56 if they were both adults who acted intentionally.

Halacha 17

When a youth nine years old engages in relations with a shifchah charufah, she is given lashes and he is required to bring a sacrifice,57 provided that she is an adult, not a virgin, and acts willfully, as we explained.58For a man is not liable to bring a sacrifice until she is liable for lashes, as [implied by] the verse: "There shall be an inquiry.... And he shall bring his guilt offering."

FOOTNOTES
1.

For there is no concept of marriage with regard to a male below the age of majority.

The term liable in this context means "liable for execution" if the transgression was performed willfully or "liable for a sacrifice" if it was performed inadvertently.

2.

A yevamah is a childless widow whom one of the brothers of the deceased is obligated to marry. Now, relations with a yevamah do not require the conscious intent of the brother who seeks to marry her (Hilchot Yibbum 2:3) and relations carried out by a nine year old are of consequence in certain contexts (Chapter 1, Halachah 14). Hence, one might think that by carrying out relations with the yevamah, the nine year old would acquire her as his wife. See also Hilchot Yibbum 5:18.

3.

A deaf-mute is not considered of sufficient mental capacity to be responsible for his actions. Hence, as the Rambam states in Hilchot Ishut 4:9, he cannot consecrate a woman according to Scriptural Law. Although according to Rabbinic Law, his consecration is binding, he is not held liable for execution or a sacrifice for violating a Rabbinic prohibition.

4.

In this instance, the consecration is not binding even according to Rabbinic Law (ibid.).

5.

As mentioned in the notes to Chapter 1, Halachah 15, there is an unresolved doubt with regard to the halachic status of an androgynus and a doubt with regard to the physiological makeup of a tumtum. Hence we cannot be certain whether the adulterer is engaging in relations with a woman whose marriage is halachicly significant.

6.

Since such women are not considered as capable of making responsible decisions, the man's consecration is not effective according to Scriptural Law. And since the consecration is not effective according to Scriptural Law, there are no punishments that result from it. In particular, however, there is a difference between the two situations, for the consecration of a woman who is mentally or emotionally unstable is not effective at all. The consecration of a female deaf-mute, by contrast, is effective according to Rabbinic Law (Hilchot Ishut, loc. cit.).

7.

He is given the punishment due any adulterer, for the consecration is binding according to Scriptural Law (Hilchot Ishut3:11). This is speaking about a situation where the couple later married. Otherwise, the adulterer would be stoned to death. Also, it is speaking about a situation where the child is over three years old. Otherwise, the relations are not significant.

8.

Neither punishment, nor a sacrifice. For she is a minor and is not responsible for her conduct.

9.

As the Rambam states in Hilchot Gerushin 11:14, a woman who engages in adulterous relations becomes forbidden to her husband.

10.

Chapter 2, Halachah 4. The Ra'avad both here and in Hilchot Sotah differs with the Rambam, basing his objections on Yevamot 33b which states "The seduction of a minor is always considered equivalent to rape." Since she is not responsible for her actions, her consent is of no significance. And if a woman is raped, she is permitted to her husband if he is not a priest (Hilchot Ishut 24:19).

The Maggid Mishneh admits that the question raised by the Ra'avad is substantial, but points to a passage in Ketubot 9a which appears to support the Rambam's decision. The Shulchan Aruch (Even HaEzer 178:3) cites both views without stating which to favor. The Beit Shmuel 178:3 states that the Ra'avad's view is accepted by most authorities.

11.

Mi'un refers to a means of terminating a Rabbinically originated marriage arrangement. When a girl's father is not alive, our Sages gave her mother and/or her brothers the opportunity to consecrate her. This consecration is not binding according to Scriptural Law (see Hilchot Ishut 4:8, Hilchot Gerushin 11:1). Hence, an adulterer is not punished for relations with her.

This law also applies to a deaf-mute and anyone else whose consecration is acceptable only according to Rabbinic Law (Rav David Arameah).

12.

A priest is not allowed to remain married to a woman who engaged in forbidden relations, even if she was compelled to do so. Nevertheless, in this instance, she can end her marriage whenever she desires without a formal divorce, it is as if she was never married. Hence, her "adultery" is not of consequence.

13.

A person born from an incestuous or adulterous relationship whom it is forbidden to marry.

14.

See Chapter 12, Halachot 22-23, which explain that this term refers to a person descended from one of the seven Canaanite nations who converted. Such a person is forbidden to marry into the Jewish people.

15.

When the prohibition against marriage is punishable by execution or kerait, the marriage is not considered valid and there is no punishment for adultery. If, however, it is forbidden only by a negative prohibition, the marriage is binding.

16.

For the Torah states the severe punishment only for the woman herself.

17.

The term maiden has a specific halachic definition: a girl who at the age of 12 (or over) manifested signs of physical maturity. She remains in this category for six months (Hilchot Ishut 2:1).

18.

But not married.

19.

I.e., the six months mentioned above passed.

20.

I.e., completed the marriage ceremony.

21.

For from this time, she is no longer under her father's control.

22.

Although the verse speaks about "a consecrated maiden," relations with even a younger girl are given the same punishment.

23.

Since she is a minor, she is not responsible for her actions and is not subjected to any punishment.

24.

I.e., she is given the more severe punishment.

25.

Because after relations with the first, she is no longer a virgin. Hence, they are given the ordinary penalty for adultery.

26.

For with regard to punishment, there is no difference between anal intercourse and vaginal intercourse.

27.

In which instance, even if she had engaged in relations beforehand, her signs of virginity would return.

28.

Ketubot 44a states that this concept is derived from a Scriptural reference. When speaking of this transgression, Deuteronomy 22:21 states: "He committed an abuse in Israel," i.e., involving a native-born Jewess. In his Commentary to the Mishneh (Ketubot 4:3), the Rambam offers a different explanation, one which has raised questions among the commentaries.

29.

See Deuteronomy 22:13-21 and Hilchot Na'arah, ch. 3, where this instance is discussed. A man enters into relations with his newly-wed wife and afterwards, claims she is not a virgin. Moreover, he produces witnesses who testify that the women committed adultery before entering into relations with him. If the testimony of the witnesses is not disproved, the women is executed as the Rambam continues to explain.

30.

Halachah 4. The Ra'avad differs with the Rambam's ruling, explaining that once a woman enters the marriage canopy as a virgin, she is executed by strangulation as are all other married women. The difference of opinion centers on the interpretation of Ketubot 45a. Rashi and Tosafot also differ in their interpretation of that passage.

31.

An ordinary case of adultery.

32.

The daughter of a priest who committed adultery.

33.

A consecrated maiden who committed adultery in her father's house or a maiden about whom a malicious report was spread and it was discovered to be true.

34.

As Ketubot 45a states, this is intended to dishonor her parents, as if to say: "See the offspring which you raised."

35.

As stated in Deuteronomy 22:23. This is a mark of dishonor for the city, a sign that the environment is not moral. The Rambam's ruling is based on his version of Ketubot 45a. Rashi (and the standard published text of that passage) follow a different version.

Or Sameach states that since the transgression did not take place in her father's home, it is not fitting that he be dishonored in this fashion.

36.

I.e., six months after she manifests signs of physical maturity.

37.

As Hilchot Sanhedrin 13:1, 15:1, the place for stoning was a two storey building somewhat removed from the city.

38.

Since she has already come of age, the laws governing her change and she is not stoned at her father's house. If she would commit adultery at this age, she would be executed by strangulation. Hence, when she is punished for the adultery she committed beforehand, her sentence is commuted somewhat and she is not executed at her parents' home (Maggid Mishneh).

The Ra'avad and the Maggid Mishneh himself note that when a man spreads a malicious report about a woman and his statements are proved to be correct, the woman is executed at her father's home. Although she already had relations with her husband, she is executed in the same place as before. This would indicate that her coming of age is also not significant. Rav Akiva Eiger explains that since when a malicious report was proven true, a woman is stoned to death even though she has already married her husband, it obviously is a different type of instance than an ordinary case of a maiden committing adultery.

39.

For the verse mentions stoning her "at the entrance to your gates." If the city is predominantly populated by gentiles, its entrance is not "your gates" (Tosafot, Sanhedrin 45b).

40.

I.e., the optimum manner for the execution to be performed.

41.

With regard to his obligation to bring a sin-offering for inadvertent transgression, see Hilchot Shegagot 5:1 which states that even though a person transgressed several times, as long as he does not become aware of his transgression, he is liable for only one sin offering. If he transgresses inadvertently again after he became aware of his first transgression(s), he must bring another sin-offering.

42.

E.g., he had relations with his brother's wife while she is in the niddah state, in which instance he is liable for relations with a married woman, relations with his brother's wife, and relations with a woman in the niddah state.

43.

Chapter 4, Halachah 2.

44.

Chapter 17, Halachot 9-10.

45.

Such a situation is possible when a Canaanite maidservant was owned by two partners. One released her from bondage and one did not. In this situation, she is obligated to serve her master one day and on the following day, she is free to do as she chooses.

46.

In contrast to other Jewish men, a Hebrew servant is permitted to engage in relations with a Canaanite maid-servant. Hence, the fact that this woman is half a maid-servant will not represent a difficulty for him. And because, she is half a freed woman, he may consecrate her.

47.

And since she was not freed, the Hebrew servant's consecration of her is contingent on her freedom. Until she is freed, they are not fully married.

48.

Chapter 4, Halachah 16.

49.

Keritot 11a interprets this phrase as indicating that she - and not the man - should be given the above punishment.

50.

See Hilchot Shegagot, ch. 9, which describes the particulars of this sacrifice.

51.

Keritot 9a derives this concept through the principles of Biblical exegesis. If, however, he enters into relations with many different maid-servants, he is liable for each act (Ra'avad; Hilchot Shegagot 9:5).

52.

The term literally means "complete relations." Our translation is based on the definition given by the Rambam in Chapter 1, Halachah 10. It must be noted that Tosafot, Yevamot 55b understands Rashi as interpreting the phrase "conclude relations" to mean "to ejaculate." Support for that interpretation is brought from the fact that the prooftext from Leviticus speaks of "lying with her with seed." Somehave also pointed to the Rambam's Commentary to the Mishnah (Keritot 2:5 for support for this interpretation.

53.

For Keritot 11a teaches: Whenever the woman is lashed, he is required to bring a sacrifice. Whenever she is not punished, he is not liable. And she is not punished unless she is an adult who acts willfully.

54.

And that is significant only with regard to vaginal intercourse.

55.

This is the version of the standard printed text of the Mishneh Torah. Many authentic manuscripts and early printings state "they," i.e., both the male and the female.

56.

For they committed an immoral act which requires punishment lest they continue the pattern.

57.

Since he is already nine years old, his sexual acts are of consequence. Hence, since she transgressed willfully, she is liable. And since she is liable, he is liable for a sacrifice. For a sacrifice is not punishment, but atonement. Although he is still a minor, atonement is still required. In Hilchot Shegagot 9:3, the Rambam clarifies: "It appears to me that he does not bring [the sacrifice] until he comes of age."

The Ra'avad differs with the Rambam's ruling, maintaining that a minor is never required to bring such a sacrifice, for this sacrifice is a punishment. And since the male is not liable, the female is also not liable.

58.

In Halachah 15.

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