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Issurei Biah - Chapter Twelve

Issurei Biah - Chapter Twelve

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Halacha 1

When a Jew engages in relations with a woman from other nations, [taking her] as his wife or a Jewess engages in relations with a non-Jew as his wife, they are punished by lashes, according to Scriptural Law.1 As [Deuteronomy 7:3] states: "You shall not intermarry with them. Do not give your daughter to his son, and do not take his daughter for your son."

This prohibition applies equally to [individuals from] the seven [Canaanite] nations and all other gentiles.2 This was explicitly stated in Ezra3 [Nechemiah 10:31]: "That we will not give our daughters to the gentiles in the land and that we will not take their daughters for our sons."

Halacha 2

The Scriptural prohibition applies only to marital relations.4 When, by contrast, one engages in relations with a gentile woman with a licentious intent, he is given "stripes for rebellious conduct" according to Rabbinic Law. [This is a] decree, lest this lead to marriage.

If [a Jew] designates [a gentile woman] for licentious relations, he is liable for relations with a niddah, a maid-servant, a gentile woman, and a licentious woman.5 If he did not designate her for himself, but instead, [engage in relations with her] spontaneously, he is only liable for relations with a gentile woman. All of these liabilities are Rabbinic in origin.6

Halacha 3

When does the above apply? When the man who engaged in relations was an Israelite. If, however, a priest engages in relations with a gentile woman, he is liable for lashes according to Scriptural Law, because of the prohibition against relations with a zonah.7 [This prohibition applies] both to a non-Jewish zonah and a Jewish one. He receives lashes for relations alone, for he cannot consecrate her.8

Halacha 4

Whenever a man has relations with a gentile woman in public, i.e., the relations are carried out in the presence of ten or more Jews, if a zealous person strikes him and kills him, he is considered praiseworthy and ardent.9 [This applies whether the relations were] in the context of marriage or licentious in nature. This matter is a halachah conveyed to Moshe at Sinai.10 Support for this can be derived from Pinchas' slaying of Zimri.11

Halacha 5

The zealous person can strike [the fornicators] only at the time of relations, as was the case with regard to Zimri, as [Numbers 25:8] states: "[He pierced]ו the woman into her stomach."12 If, however, [the transgressor] withdraws,13he should not be slain. Indeed, if [the zealous person] slays him, he may be executed [as a murderer].14

If the zealous person comes to ask permission from the court to slay him, they do not instruct him [to],15 even if this takes place at the time [of relations]. Not only that, if the zealous person comes to kill the transgressor and he withdraws and kills the zealous person in order to save himself, the transgressor is not executed for killing him.16

When a Jew has relations with the daughter of a resident alien,17 the zealous may not strike him. [The transgressor] should, however, be given stripes for rebellious conduct.

Halacha 6

If the zealous did not strike him, nor did he receive stripes from the court,18 his punishment is explicitly stated in the words of the prophetic tradition. He is liable for kerat,19 as [Malachi 2:11-12] states: "Judah desecrated that which is sacred to God, [by] loving and engaging in relations with the daughter of a foreign god. May God cut off from a man who does this any progeny and descendant." [Implied is]20 that if he is an Israelite, he will not have progeny among the wise who will raise issues, nor a descendant among the scholars who will respond. If he is a priest, he will not have [a descendant] who "presents an offering to the Lord of Hosts." Thus you have learned that a person who shares intimacy with a gentile woman is considered as if he married a false deity, as the verse states: "engaging in relations with the daughter of a foreign god." And he is called one who "desecrated that which is sacred to God."

Halacha 7

Although this transgression is not punishable by execution by the court, it should not be regarded lightly, for it leads to a detriment that has no parallel among all the other forbidden sexual relations. For a child conceived from any other forbidden sexual union, is [the father's] son with regard to all matters and is considered a member of the Jewish people, even if he is a mamzer.21A son conceived by a gentile woman, by contrast, is not considered his son. [This is derived from Deuteronomy 7:4:] "For he shall sway your son away from following Me." She turns him away from being one of those who follow God.

Halacha 8

This matter causes one to cling to the gentile nations from whom the Holy One, blessed be He, has separated us, and to turn away from following God and to betray Him.

Halacha 9

When a gentile engages in relations with a Jewish woman, if she is married, he should be executed.22 If she is single, he is not executed.

Halacha 10

If, by contrast, a Jewish male enters into relations with a gentile woman, when he does so intentionally, she should be executed.23 She is executed because she caused a Jew to be involved in an unseemly transgression, as [is the law with regard to] an animal.24 [This applies regardless of] whether the gentile women was a minor of three years of age,25 or an adult, whether she was single or married. And it applies even if [the Jew] was a minor of nine years old, [she is executed].26

This [punishment] is explicitly mentioned in the Torah, as [Numbers 31:16-17] states: "Behold they were [involved] with the children of Israel according to the advice of Balaamו.27 Execute any woman fit to know a man through lying with a male."

Halacha 11

Servants that have been immersed for the sake of servitude and accepted the mitzvot in which servants are obligated,28 have departed from the category of gentiles, but have yet to enter the category of Jews. For this reason, a maidservant is forbidden29 to a free Jew. [This applies to] both one's own maid-servant and a maid-servant belonging to a colleague.

When a person enters into relations with a maid-servant, he should be given stripes for rebellious conduct as prescribed by the Rabbis.30 [It is obvious that a Scriptural prohibition is not involved,] for it is explicitly stated in the Torah that a master may give a Hebrew servant a Canaanite maid-servant31 [for the sake of relations]32 and that she is permitted to him, as [Exodus 21:4] states: "If his master will give him a wife."

Halacha 12

The Sages did not issue a decree with regard to this matter,33 nor did the Torah require that lashes be given for [relations with] a maid-servant unless she was designated for a [Jewish] man, as we explained.34

Halacha 13

This transgression should not be light in one's eyes, because it does not involve lashes according to Scriptural Law. For this [act] also causes the son to be turned away from following God. For a son born of a maid-servant is a servant and is not a [full] member of Israel. Thus he causes [Israel's] holy seed to be profaned and produce servants. Behold Onkelos the translator35 included relations with a servant and a maid-servant in [the prohibitions, Deuteronomy 23:18]: "There shall not be a promiscuous manו and there shall not be a promiscuous woman."36

Halacha 14

When a person engages in relations with a maid-servant, even in public, a zealous person may not strike him, not even at the time of the transgression.37Similarly, if one marries a maid-servant,38 he does not receive lashes according to Scriptural Law. For from the time she immersed and accepted the mitzvot, she departed from the category of gentiles.

Halacha 15

If [the identity of] a Jewish child becomes confused with that of the child of a maid-servant, the status of both [children] is doubtful.39 Each of them is considered as possibly a servant. [Hence] we compel the owner of the maid-servant to free them both.40 If [the owner died and] the son [whose identity was confused] is the [only] son of the servant's master, when they come of age, they should free each other.41 Then they will be permitted to marry within the Jewish people.

Halacha 16

If the children whose identities were confused were female, they are both considered as possibly a maid-servant. If a person enters into relations with either of them, the offspring is considered as a servant because of the doubt.42

Similarly, if the identity of a gentile child becomes confused with that of a Jewish child, we immerse both of them as converts and they are both considered as possibly a convert.43

Halacha 17

Whenever any of the gentiles convert and accept all of the mitzvot in the Torah44 or a servant is freed,45 they are considered as Jews with regard to all matters,46 as [Numbers 15:15] states: "For the community: there will be one law [for you and the convert]." A convert may marry within the Jewish community immediately, i.e., a male convert or freed servant may marry a native-born Jewess and an Israelite47 may marry a female convert or a freed maid-servant.

There are four nations from which [converts] are exceptions: Ammon, Moab, Egypt, and Edom. When a person from one of these nations converts, he is like an Israelite with regard to all matters with the exception of marriage within the Jewish community.

Halacha 18

What are the laws that apply to them [in that context]? It is forbidden to marry an Ammonite and a Moabite forever. This applies to the males and not the females,48 as [Deuteronomy 23:4] states: "An Ammonite and a Moabite shall not enter the congregation of God." It is a halachah transmitted to Moses at Sinai that it is a male Ammonite and a male Moabite who are forbidden to marry a native-born Israelite forever,49 [including] even their son's grandson forever. An Ammonite woman and a Moabite woman are, by contrast, permitted immediately50 as are [converts] from other nations.

Halacha 19

An Egyptian and an Edomite convert - both a male and a female - are forbidden to marry among the Jewish people for the first and second generations. The third generation, however, is permitted, as [ibid.:9] states: "Children who are born to them [may enter the congregation of God in the third generation]."

Halacha 20

When a female Egyptian converts while she is pregnant, her son is considered a second [generation Egyptian convert]. When a second [generation] Egyptian male [convert] marries a first [generation] Egyptian female [convert] or a first [generation] Egyptian male [convert] marries a second [generation] Egyptian female [convert], the child is considered a second generation [convert].51 [This is derived from the phrase]: "Children who are born to them."52 The verse made the matter dependent on birth.

Halacha 21

When a male Ammonite convert marries a female Egyptian,53 the offspring are considered as Ammonites.54 When a male Egyptian convert marries a female Ammonite, the offspring are considered as Egyptians.55 This is the general principle: Among gentiles, the identity [of the offspring] is determined by the male. Once they convert, [the offspring] is given the identity that is of the lowest status.

Halacha 22

A person from the seven [Canaanite] nations who converts is not forbidden to marry among the Jewish people according to Scriptural Law.56 It is known that of them, only the Gibeonites converted.57 Joshua decreed that they be forbidden to marry among the Jewish people,58 both males and females.

He instituted this prohibition only during the time a Sanctuary is standing, as [Joshua 9:23] states: "[You shall be] wood-choppers and water-drawers for the house of my God." He made their ban dependent on the Sanctuary.

Halacha 23

They are called Netinim, "the designated ones," for they were designated for the service in the Sanctuary. David came and decreed that they should never be allowed to marry among the Jewish people, even at a time when the Sanctuary is no longer standing. This is explicitly stated in Ezra [8:20]: "From the Netinim whom David and the officers designated for the service of the Levites." From this, we see that he did not make the matter dependent on the Sanctuary.59

Halacha 24

Why did David and his court pass this decree against them? Because he saw that they were characterized by brazenness and cruelty. For they asked to kill and hang the seven sons of Saul, God's chosen one,60 and they did not have mercy upon them.

Halacha 25

When Sannecherib, King of Assyria, arose, he confused the identity of all the nations, mixing them together, and exiling them from their place.61 The Egyptians that live in the land of Egypt at present are of other nationalities. This also applies with regard to the Edomites in the field of Edom.

Since these four forbidden nations became intermingled with all the nations of the world [with] whom it is permitted [to marry once they convert], all [converts] are permitted. For when anyone of them separates himself [from them by] converting, we operate under the presumption that he became separate from the majority.62 Therefore in the present age, in all places, whenever a convert converts, whether he be an Edomite, an Egyptian, an Ammonite, a Moabite, a Kushite, or from any of the other nations, whether male or female, he or she is permitted to marry among the Jewish people immediately.63

FOOTNOTES
1.

Licentious relations with a gentile man or woman are not included in the scope of this Scriptural prohibition, as stated in the following halachah.

2.

Although the verse the Rambam cites as a prooftext refers to the seven Canaanite nations, all other gentiles are also included as reflected by the verse from Nechemiah.

The Tur (Even HaEzer 16) differs with the Rambam, explaining that the verse should be understood within its limited context, referring only to the seven nations. (The Rambam's opinion has a source in the Sheiltot D'Rabbenu Achai Gaon, while that of the Tur is found in the Sefer Mitzvot Gadol) The crux of the difference is the exegesis of the continuation of the verse cited by the Rambam: "For he shall sway your son away." Kiddushin 68b quotes Rabbi Shimon as focusing on the motivating rationale for the verse and thus including all those who might sway a person's heart. Thus it refers to all gentiles. The Sages, however, do not accept this perspective.

3.

Although the verse is contained in the Book of Nechemiah, the Rambam considers Ezra and Nechemiah as one book. See Hilchot Sefer Torah 7:15. Similarly, Sanhedrin 93b states that none of the books of the Tanach are named after Nechemiah.

The verse cited by the Rambam is part of the oath taken by the people to remain true to their faith upon their return to Zion. At that time, the gentiles living in the land were not Canaanites.

4.

The Tur, loc. cit., differs with the Rambam concerning this point as well, stating that there is no concept of marriage between a Jew and non-Jew.

5.

This was a decree passed by the court of the Hasmoneans when they saw that the Jews were sharing intimacy with Greek women (Avodah Zarah 36b). The transgressor is given stripes several times, once for each of the Rabbinic prohibitions he ignored.

6.

According to Scriptural Law, if a Jew engages in relations with a gentile woman in public "the zealous may strike him," as stated in Halachah 4. The Hasmoneon's decree, however, applies even when relations were carried out in private.

7.

The term zonah is generally translated as "prostitute." It has, however, a precise halachic definition, as stated in Chapter 18, Halachah 1.

8.

Note the contrast to the laws applying to a Jewish zonah, as mentioned in Chapter 17, Halachah 2.

9.

The Ra'avad rules that the zealous person must warn the transgressor before striking him. The Maggid Mishneh states that the concept of a warning is relevant only with regard to execution by the court and not to the independent actions taken by a zealous person. The Rama (Choshen Mishpat 425:4) quotes the Ra'avad's view.

10.

I.e., a law which is not commanded by the Written Torah, yet communicated by the Oral Tradition.

11.

As Numbers, ch. 25 relates, the Jews began worshiping idols, because they were lured to by Midianite women. Enraged Moses commanded that the worshipers be executed. Zimri, the prince of the tribe of Shimon, took a Midianite woman and confronted Moses, engaging in relations before him. When Pinchas saw this, he slew Zimri, giving expression to the law mentioned by the Rambam.

12.

Our Sages relate that Pinchas' javelin went through Zimri's back and into her gut, killing them both in the midst of relations.

13.

Even if he transgressed already.

14.

Needless to say, a warning must be given and two acceptable witnesses must observe the slaying.

15.

The initiative to slay the transgressor must be totally that of the zealous person. For the court has no obligation - and there no license - to exact such punishment.

16.

For the zealous person is considered as a rodef, pursuer, whom the intended victim has the right to slay, as stated in Hilchot Rotzeach, ch. 1.

17.

As explained in Chapter 14, Halachah 7, this refers to a non-Jew who accepted the seven universal laws commanded to Noah and his descendants. In his Commentary to the Mishnah (Sanhedrin 9:6), the Rambam states that the woman herself - not only her father - must not be an idolater.

18.

The Maggid Mishneh writes that if he was given "stripes for rebellious conduct" by the court, he is no longer liable for kereit. Our Sages (Makkot 23b) state a similar concept with regard to a person who receives lashes for the violation of a Scriptural prohibition. The Rambam extends the idea to include a person who is punished on the basis of Rabbinic decree.

19.

This applies even if relations are conducted in private.

20.

As interpreted by Yevamot 22b, 23a.

21.

Indeed, Horiot 13a states that a mamzer who is a scholar receives precedence over a High Priest who is unlearned.

22.

For the gentiles are prohibited against adultery.

23.

Note the gloss of the Maggid Mishneh who questions the source for the Rambam's ruling, arguing that the passage from Numbers cannot be interpreted as definitive proof.

24.

See Chapter 1, Halachot 16-18.

25.

If, however, she is younger than three, the relations are not considered significant.

26.

From that age onward, sexual relations in which he engages are significant, as stated in Chapter 1, Halachah 13.

27.

Who advised the Midianites and the Moabites to have their women seduce Jewish men to provoke God's wrath.

28.

See Chapter 14, Halachah 9.

29.

I.e., the prohibition is Rabbinic in origin, as indicated by the conclusion of this halachah and the following halachot.

30.

And not lashes, as is the punishment for the violation of a Scriptural commandment.

31.

Were there to be a Scriptural prohibition involved, it would not be relaxed in the case of a servant.

32.

So that the offspring will be the master's.

33.

Forbidding such relations to a Hebrew servant (Ma'aseh Rokeach).

34.

Chapter 3, Halachah 13.

35.

Who composed the standard Aramaic translation of the Torah.

36.

The Rambam does not fully accept the view of Onkelos. For Onkelos defines the scope of the Biblical prohibition as including these relations and the Rambam does not, as evident from the fact that the Rambam does not considered these relations as punishable by lashes. (The Rambam also has a different conception of the prohibition of relations with "a promiscuous woman"; see Hilchot Ishut 1:4.) Nevertheless, the Rambam uses the view of Onkelos as support for his condemnation of this act (Mayim Chayim; see also Beit Shmuel 16:6).

37.

In contrast to relations with a gentile woman (Halachah 4).

38.

In contrast to marriage to a gentile woman (Halachah 1).

39.

When explaining this possibility the Talmud gives the example of women who gave birth together in a cave. Today, unfortunately, such confusion has happened in hospitals.

40.

Otherwise, because of the doubt, neither of the children would be able to marry. They could not marry a Jewess, for perhaps they were servants, nor a maid-servant, for perhaps they were Jews (compare to Hilchot Avadim 7:7).

41.

Since we do not know which is the servant and which is the master, they must both free each other. And thus the servant will certainly have been freed by the master.

Before they reach adulthood, however, it is impossible for one to free the other, because a minor may not free a servant.

42.

In this instance, the Rambam does not say that the owner must free the offspring, because there is no obligation for a woman to marry and bear children. Compare to Hilchot Avadim, loc. cit.; see Maggid Mishneh, Beit Shmuel 16:7. The master may not, however, compel either of them to work. For they both can require him to prove his claims.

43.

Thus they are forbidden to marry a priest, as stated in Chapter 18, Halachah 3 (Maggid Mishneh).

44.

As described in Chapter 13.

45.

At which time his conversion process is completed.

46.

I.e., there is no difference between a convert and a native Israelite with regard to any matter of Jewish observance.

47.

But not a priest (Maaseh Rokeach).

48.

The rationale for this leniency is explained as follows. The Torah explains the reason for this prohibition: "Because of the fact that they did not greet you with bread and water on the way." Now it is not appropriate for women to greet travelers with food. Hence, since the sin does not apply with regard to women - the consequence of it - the prohibition against marrying into the Jewish people also does not apply with regard to them.

49.

They may, however, marry women who converted to Judaism or freed maid-servants. Shaar HaMelech also states that these individuals may even marry maid-servants who were not yet freed.

50.

Indeed, Ruth the maternal ancestor of King David - and ultimately of Mashiach - was a female Moabite convert. Initially, and indeed for several generations, there were questions whether she and her descendants were allowed to marry within the Jewish. Ultimately, however, the ruling stated by the Rambam was accepted throughout the Jewish community. See Yevamot 76b.

51.

Rashi differs and maintains that the child's status depends on that of its mother. Thus if the mother is a second generation Egyptian convert, the child is a third generation convert and is permitted. The Shulchan Aruch (Even HaEzer 4:4) quotes both views.

52.

The Maggid Mishneh explains that the intent is that everyone knows that birth involves both a man and a woman. Hence the child must be the third generation from both of the male and the female.

53.

Who has converted.

54.

The Maggid Mishneh refers to Yevamot 78b and maintains that this ruling applies only when the offspring are male. If they are female, they are not considered as Ammonites (and hence, permitted). Instead, they are considered as Egyptian and forbidden for three generations, i.e., we follow the greater blemish. This view is quoted by the Shulchan Aruch (Even HaEzer 4:7).

55.

This also can be considered as applying only when the offspring are male. If they are female, some opinions considered them as permitted (as a female Ammonite) and others as Egyptian [Rama (Even HaEzer, loc. cit.)].

56.

This ruling depends on the Rambam's interpretation of the prohibition: "You shall not intermarry with them" mentioned at the beginning of the chapter. As explained, according to the Rambam, the verse applies to all gentiles, not only Canaanites, and only before they convert. Once they convert, all gentiles - except the four nations mentioned in the previous halachot - may marry freely among the Jewish people.

The other authorities, by contrast, maintain that the prohibition applies to the Canaanite nations alone and after conversion. Otherwise, they maintain, it is unnecessary, for there is no concept of marriage between a Jew and a non-Jew.

57.

Note Joshua, ch. 9, which relates how the Gibeonites deceived the Jewish people and established a covenant with them.

58.

Because of the deception they perpetrated.

59.

For the narrative in Ezra speaks of a time when the Temple had already been destroyed.

60.

As related in II Samuel, ch. 21, there was a famine for three years in Eretz Yisrael. Through prophetic vision, David learned that the reason for the famine was Saul's oppression of the Gibeonites (exactly what Saul did to oppress them is a matter of discussion among the Rabbis). David asked the Gibeonites what they desired to be appeased for this oppression. They answered that they wanted to slay seven of his descendants. David handed over seven of Saul's descendants to them and they hung them and left their corpses on the gallows. For this act of cruelty, David decreed that they should never marry among the Jewish people. For Israel should be characterized by kindness and mercy. See Chapter 19, Halachah 17, which further develops this theme.

61.

I.e., in order to thwart the possibility of local peoples organizing rebellions against him, Sannecherib destroyed the national identity of people by exiling them from their native lands and forcing them to intermingle with other peoples.

62.

This principle applies in many instances when forbidden and permitted substances or individuals become mixed together. See for example, Yoma 84b, Zevachim 73a,b.

63.

The Shulchan Aruch (Even HaEzer 4:10) quotes this ruling, but states that according to the opinion of Rabbenu Asher, Sannecherib did not succeed in erasing the identity of the Egyptians and the prohibition against marrying their converts still applies.

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