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Rambam - 3 Chapters a Day

Sotah - Chapter Four, Issurei Biah - Chapter One, Issurei Biah - Chapter Two

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Sotah - Chapter Four

1

On the fifteenth of Adar, the court attends to the needs of the community at large.1 [At that time,] they check which women should be compelled to drink, so that they can compel them to drink,2 and to which should be given a warning so that they are divorced without receiving [the money due them by virtue of] their ketubah.

A sotah can, [however,] be compelled to drink at any time of the year.3

א

בַּחֲמִשָׁה עָשָׂר בַּאֲדָר נִפְנִין בֵּית דִּין לְצָרְכֵי הָרַבִּים. וּבוֹדְקִין עַל הָרְאוּיָה לִשְׁתּוֹת לְהַשְׁקוֹתָהּ. וְעַל הָרְאוּיָה לְקַנֵּא לָהּ וּלְהוֹצִיאָהּ בְּלֹא כְּתֻבָּה. וּבְכָל זְמַן מַשְׁקִין אֶת הַסּוֹטוֹת:

2

A sotah is compelled to drink the bitter water only during the daytime.4 The entire day is fit for this purpose.

Two sotot should not be compelled to drink at the same time, as implied by [the verse]:5 "And the priest shall have her stand."

ב

וְאֵין מַשְׁקִין אֶת הַסּוֹטָה אֶלָּא בַּיּוֹם. וְכָל הַיּוֹם כָּשֵׁר לְהַשְׁקוֹת סוֹטָה. וְאֵין מַשְׁקִין שְׁתֵּי סוֹטוֹת כְּאַחַת שֶׁנֶּאֱמַר (במדבר ה טז) "וְהֶעֱמִיד אֹתָהּ הַכֹּהֵן":

3

When a sotah says, "I will not drink [the bitter water]," because she is overcome by fear, she has the option of retracting and saying that she will drink the waters. If, however, she says that she will not drink when she is healthy and not affected by fear, she may not change her mind and say that she will drink [the bitter water].6

ג

סוֹטָה שֶׁאָמְרָה אֵינִי שׁוֹתָה מֵחֲמַת יִרְאָה וָפַחַד שֶׁיֵּשׁ לָהּ יְכוֹלָה לַחֲזֹר וְלוֹמַר הֲרֵינִי שׁוֹתָה. אֲבָל אָמְרָה אֵינִי שׁוֹתָה וְהִיא בְּרִיאָה וְאֵינָהּ יְרֵאָה וְלֹא פּוֹחֶדֶת אֵינָהּ יְכוֹלָה לַחֲזֹר וְלוֹמַר הִנְנִי שׁוֹתָה:

4

If she says, "I will not drink," before the scroll [with God's name] written for her is blotted out, the scroll is entombed. It is not fit to be used for another sotah.7 Her meal offering is scattered on the ash heap.8

If she says, "I will not drink [the water]," after the scroll has been blotted out, we take hold of her and force her to drink the water.

ד

אָמְרָה אֵינִי שׁוֹתָה קֹדֶם שֶׁתִּמָּחֵק הַמְּגִלָּה הֲרֵי מְגִלָּתָהּ נִגְנֶזֶת וְאֵינָהּ כְּשֵׁרָה לְהַשְׁקוֹת בָּהּ סוֹטָה אַחֶרֶת. וּמִנְחָתָהּ מִתְפַּזֶּרֶת עַל הַדֶּשֶׁן. וְאִם אָמְרָה אֵינִי שׁוֹתָה אַחַר שֶׁנִּמְחֲקָה הַמְּגִלָּה מְעַרְעֲרִין אוֹתָהּ וּמַשְׁקִין אוֹתָהּ בְּעַל כָּרְחָהּ:

5

We intimidate her so that she will drink, and we tell her: "My daughter. If you are certain that you are innocent, stand firm. Drink [the water] without fear. For the water can be compared to the powder of a drug placed on the skin. If there is a wound, it will penetrate and descend. If there is no wound, it will have no effect."

ה

וּמְאַיְּמִין עָלֶיהָ שֶׁתִּשְׁתֶּה וְאוֹמְרִין לָהּ בִּתִּי אִם בָּרוּר לָךְ הַדָּבָר שֶׁטְּהוֹרָה אַתְּ עִמְדִי עַל בֻּרְיֵךְ וּשְׁתִי וְאַל תִּפְחֲדִי לְפִי שֶׁאֵין הַמַּיִם דּוֹמִין אֶלָּא לְסַם יָבֵשׁ מֻנָּח עַל בָּשָׂר חַי. יֵשׁ שָׁם מַכָּה מְחַלְחֵל וְיוֹרֵד. אֵין שָׁם מַכָּה אֵינוֹ עוֹשֶׂה כְּלוּם:

6

If she says, "I committed adultery," although the scroll has been blotted out, the waters should be poured out,9 for they are not of a sacred nature,10 and her meal offering is scattered on the ash heap.

ו

אָמְרָה טְמֵאָה אֲנִי אַף עַל פִּי שֶׁנִּמְחֲקָה הַמְּגִלָּה הַמַּיִם נִשְׁפָּכִין מִפְּנֵי שֶׁאֵין בָּהֶן קְדֻשָּׁה. וּמִנְחָתָהּ מִתְפַּזֶּרֶת עַל הַדֶּשֶׁן:

7

When the scroll for a sotah is written at night, it is unacceptable, as [implied by Numbers 5:22-25], which states: "[The priest] shall write,... he shall give to drink,... and he shall offer," [establishing an equivalence between these different activities]. Just as the sacrifice must be offered during the daytime,11 so too the writing of the scroll and making the woman drink must be performed during the day.12

If [the scroll] is written in non-sequential order, it is not acceptable, [as implied by Numbers 5:23, which] states: "[The priest shall write] these [curses]" - i.e., in sequence.

If he wrote the scroll before she accepted the oath, it is unacceptable, [as implied by ibid.:21-23, which] state: "And he will administer the oath... and he will write."13

ז

מְגִלַּת סוֹטָה שֶׁכְּתָבָהּ בַּלַּיְלָה פְּסוּלָה שֶׁנֶּאֱמַר וְכָתַב וְגוֹ' (במדבר ה כד) "וְהִשְׁקָה" וְגוֹ' (במדבר ה כה) "וְהִקְרִיב" וְגוֹ' כְּשֵׁם שֶׁקָּרְבָּנָהּ בַּיּוֹם כָּךְ כְּתִיבַת הַמְּגִלָּה וְהַשְׁקָיָתָהּ בַּיּוֹם. כְּתָבָהּ לְמַפְרֵעַ פְּסוּלָה שֶׁנֶּאֱמַר הָאָלָה עַל הַסֵּדֶר. כְּתָבָהּ קֹדֶם שֶׁתְּקַבֵּל עָלֶיהָ הַשְּׁבוּעָה פְּסוּלָה שֶׁנֶּאֱמַר (במדבר ה כא) "וְהִשְׁבִּיעַ" וְכָתַב:

8

If he wrote it as a letter,14 it is unacceptable, for the verse states "on a scroll." If he writes it on two sheets [of parchment], it is unacceptable, for the verse states "on a scroll" - i.e., one and not two or three.

It may not be written on paper or on untreated parchment,15 but rather on a parchment scroll, [as implied by] the use of the term: "on a scroll." If it is written on paper or on untreated parchment, it is unacceptable.

ח

כְּתָבָהּ אִגֶּרֶת פְּסוּלָה שֶׁנֶּאֱמַר (במדבר ה כג) "בַּסֵּפֶר". כְּתָבָהּ עַל שְׁנֵי דַּפִּין פְּסוּלָה שֶׁנֶּאֱמַר בַּסֵּפֶר סֵפֶר אֶחָד וְלֹא שְׁנַיִם וּשְׁלֹשָׁה. וְאֵינוֹ כּוֹתֵב לֹא עַל הַנְּיָר וְלֹא עַל הַדִּפְתְּרָא אֶלָּא בִּמְגִלַּת סֵפֶר שֶׁנֶּאֱמַר בַּסֵּפֶר. וְאִם כְּתָבָהּ עַל נְיָר אוֹ דִּפְתְּרָא פְּסוּלָה:

9

If the scroll is written by an Israelite,16 or a priest who is a minor, it is unacceptable, for [Numbers 5:23] states: "And the priest shall write...."

He should not write it with kumos, kankantum,17 or with any other substance that leaves a permanent mark. Instead, he should use ink18 without kankantum, for the verse states: "And he will write and he will blot out." [Implied is that one must] write [with a substance] that can be blotted out. If one writes with a substance that leaves a permanent impression, it is unacceptable.

ט

וְאִם כְּתָבָהּ יִשְׂרָאֵל אוֹ כֹּהֵן קָטָן פְּסוּלָה שֶׁנֶּאֱמַר (במדבר ה כג) "וְכָתַב הַכֹּהֵן". אֵינוֹ כּוֹתְבָהּ לֹא בְּקוֹמוֹס וְלֹא בְּקַנְקַנְתּוֹם וְלֹא בְּכָל דָּבָר שֶׁרִשּׁוּמוֹ נִכָּר וְעוֹמֵד אֶלָּא בִּדְיוֹ שֶׁאֵין בּוֹ קַנְקַנְתּוֹם שֶׁנֶּאֱמַר וְכָתַב (במדבר ה כג) "וּמָחָה" כְּתָב שֶׁהוּא יָכוֹל לְהִמָּחוֹת. וְאִם כָּתַב בְּדָבָר הַמִּתְקַיֵּם פְּסוּלָה:

10

If [when the writing of the scroll is being blotted out] any trace of the writing remains, it is unacceptable until it is thoroughly blotted out.

If [the priest] writes one letter and then blots it out, and then writes another letter and blots it out, completing [the writing of the entire scroll in this manner], it is unacceptable. It must be written out completely [at one time to be acceptable].

י

נִשְׁאַר בַּמְּגִלָּה רשֶׁם כְּתָב נִכָּר פְּסוּלָה עַד שֶׁיִּמְחֹק יָפֶה יָפֶה. כָּתַב אוֹת אַחַת וּמְחָקָהּ וְחָזַר וְכָתַב אוֹת שְׁנִיָּה וּמְחָקָהּ עַד שֶׁהִשְׁלִים פְּסוּלָה עַד שֶׁתִּהְיֶה כֻּלָּהּ כְּתוּבָה:

11

If the scroll was not written for the sake of the woman, or it was not blotted out for the sake of the woman, it is unacceptable.

If [a priest] wrote two scrolls, [one for each of] two sotot and blotted them out into the same cup or blotted them out into two cups, but [afterwards] mixed them together in one cup and gave the two women to drink from it, it is unacceptable. Neither of the women drank [only the water in which] her scroll [was blotted out].

If [two scrolls] were blotted out in two different cups, mixed together and then separated again into two different cups, the women should not be given the water to drink. If, however, they were forced to drink [this water], it is acceptable.19

If [the water prepared for a sotah]20 is spilled, [the priest] should write another scroll and bring other water.21 If [the water] spills, but some remains, the woman should not be forced to drink it.22 If she drinks [the remianing water], it is acceptable.23

יא

כְּתָבָהּ שֶׁלֹּא לִשְׁמָהּ אוֹ מְחָקָהּ שֶׁלֹּא לִשְׁמָהּ פְּסוּלָה. כָּתַב שְׁתֵּי מְגִלּוֹת לִשְׁתֵּי סוֹטוֹת וּמְחָקָן לְתוֹךְ כּוֹס אֶחָד אוֹ לְתוֹךְ שְׁתֵּי כּוֹסוֹת וְעֵרְבָן בְּכוֹס אֶחָד וְהִשְׁקָה לִשְׁתֵּיהֶן פְּסוּלָה. לְפִי שֶׁכָּל אַחַת מֵהֶן לֹא שָׁתְתָה מְגִלָּתָהּ. מְחָקָן בִּשְׁנֵי כּוֹסוֹת וְעֵרְבָן וְחָזַר וְחִלְּקָן לִשְׁנֵי הַכּוֹסוֹת לֹא יַשְׁקֶה אוֹתָן וְאִם הִשְׁקָה כָּשֵׁר. וְאִם נִשְׁפְּכוּ הַמַּיִם הֲרֵי זֶה כּוֹתֵב מְגִלָּה אַחֶרֶת וּמֵבִיא מַיִם אֲחֵרִים. נִשְׁפְּכוּ וְנִשְׁתַּיֵּר מֵהֶן לֹא יַשְׁקֶה אֶת הַשְּׁאָר. וְאִם הִשְׁקָה כָּשֵׁר:

12

If the water for a sotah is kept overnight, it becomes unacceptable.24 If one placed the dust25 [in the cup] before the water, it is unacceptable.

If there is no dust in the Sanctuary, one should bring dust from outside the Sanctuary, leave it in the Sanctuary and then take some of it and place it on the water. He should not use ash;26 he may, however, use rotten produce,27 for it is considered to be dust.

יב

מֵי סוֹטָה שֶׁלָּנוּ נִפְסָלִין בְּלִינָה. הִקְדִּים עָפָר לַמַּיִם פְּסוּלָה. לֹא הָיָה שָׁם עָפָר בַּהֵיכָל מֵבִיא עָפָר מִבַּחוּץ וּמַנִּיחוֹ בַּהֵיכָל וְלוֹקֵחַ מִמֶּנּוּ וְנוֹתֵן עַל פְּנֵי הַמַּיִם. וְאֵינוֹ מֵבִיא אֵפֶר אֲבָל מֵבִיא רַקְבּוּבִית שֶׁהִיא כְּעָפָר:

13

[The priest] should not dig with a hatchet [under the floor of] the Sanctuary to remove dust, as [implied by Numbers 5:17]: "the dust that is on the earth of the Sanctuary."28 If one did dig and remove dust, it is acceptable.

יג

וְלֹא יַחְפֹּר בְּקוֹרְדוֹם בַּהֵיכָל וְיוֹצִיא עָפָר שֶׁנֶּאֱמַר (במדבר ה יז) "אֲשֶׁר יִהְיֶה בְּקַרְקַע הַמִּשְׁכָּן". וְאִם חָפַר וְהוֹצִיא עָפָר כָּשֵׁר:

14

If [the priest] first brought her meal offering and then had her drink the water, it is acceptable.29

If her meal offering became impure before it was placed in a sacred vessel, it should be redeemed like any other meal offering that became impure before being consecrated in a sacred vessel,30 and she should bring another meal offering.31 If the meal offering became impure after being consecrated in a sacred vessel, it should be burned.32

Similarly, if a woman admitted to committing adultery before the fistful of meal was taken from the meal offering,33 she refused to drink [the water],34 her husband was unwilling to have her drink [the water], witnesses came [and testified that she] committed adultery,35 [her husband] died, or she died,36 the entire meal offering should be burned. If any of these things happened after the fistful of meal was offered, the remainder of the meal offering should not be eaten.37

יד

הִקְרִיב אֶת מִנְחָתָהּ וְאַחַר כָּךְ הִשְׁקָהּ כְּשֵׁרָה. נִטְמֵאת מִנְחָתָהּ קֹדֶם שֶׁיַּנִּיחֶנָה בִּכְלִי שָׁרֵת הֲרֵי זוֹ תִּפָּדֶה כְּכָל הַמְּנָחוֹת שֶׁנִּטְמְאוּ קֹדֶם שֶׁיִּתְקַדְּשׁוּ בִּכְלִי שָׁרֵת וְיָבִיאוּ מִנְחָה אַחֶרֶת. נִטְמֵאת הַמִּנְחָה אַחַר שֶׁקִּדְּשָׁהּ בִּכְלִי שָׁרֵת הֲרֵי זוֹ תִּשָּׂרֵף. וְכֵן אִם אָמְרָה טְמֵאָה אֲנִי קֹדֶם שֶׁתִּקָּמֵץ הַמִּנְחָה. אוֹ שֶׁאָמְרָה אֵינִי שׁוֹתָה. אוֹ שֶׁלֹּא רָצָה בַּעְלָהּ לְהַשְׁקוֹתָהּ. אוֹ שֶׁבָּאוּ עֵדֵי טֻמְאָה. אוֹ שֶׁמֵּת הוּא. אוֹ שֶׁמֵּתָה הִיא. הֲרֵי הַמִּנְחָה כֻּלָּהּ נִשְׂרֶפֶת. וְאִם אֵרַע אֶחָד מֵאֵלּוּ אַחַר שֶׁקָּרַב הַקֹּמֶץ אֵין הַשְּׁיָרִים נֶאֱכָלִין:

15

If [the sotah's] husband was a priest, the remainder of her meal offering should not be eaten, because he has a portion in it.38 It should not, however, be burned on the altar in its entirety, as are other meal offerings brought by male priests, because the woman also has a portion in it.39 Therefore, the fistful [of meal] is offered as a distinct entity, and the remainder is scattered on the ash heap.

If the witnesses are discovered to have lied,40 the meal offering is considered to be a non-sacred entity.41

טו

הָיָה בַּעְלָהּ כֹּהֵן אֵין שְׁיָרֵי מִנְחָתָהּ נֶאֱכָלִין מִפְּנֵי שֶׁיֵּשׁ לַבַּעַל חֵלֶק בָּהֶם. וְאֵינָהּ עוֹלָה כֻּלָּהּ לְאִשִּׁים כְּמִנְחַת זִכְרֵי כְּהֻנָּה מִפְּנֵי שֶׁיֵּשׁ לָהּ חֵלֶק בָּהּ. אֶלָּא הַקֹּמֶץ קָרֵב לְעַצְמוֹ וּשְׁיָרִים מִתְפַּזְּרִין עַל בֵּית הַדֶּשֶׁן. נִמְצְאוּ עֵדֵיהָ זוֹמְמִין מִנְחָתָהּ תֵּצֵא לְחֻלִּין:

16

If a man warns his wife against [entering into privacy with] several men, and she entered into privacy with each of the men in question, she is required to bring one meal offering that includes them all when her husband requires her to drink [the bitter water].

[This is implied by Numbers 5:15, which uses a plural term when referring to "the meal offering [brought because of] the warnings" - i.e., one offering can requite several warnings.42

טז

הַמְקַנֵּא לְאִשְׁתּוֹ עַל יְדֵי אֲנָשִׁים הַרְבֵּה וְנִסְתְּרָה עִם כָּל אֶחָד וְאֶחָד מֵהֶם הֲרֵי זֶה מֵבִיא מִנְחָה אַחַת עַל יְדֵי כֻּלָּן כְּשֶׁמַּשְׁקֶה אוֹתָהּ שֶׁנֶּאֱמַר (במדבר ה טו) "מִנְחַת קְנָאֹת הִיא". מִנְחָה אַחַת לְקִנּוּיִין הַרְבֵּה:

17

[Based on the principle of] gilgul [sh'vuah],43 the husband may have the woman include in her oath that she did not commit adultery with the man concerning whom she was given a warning or with any other man, that she did not commit adultery during the time between her consecration and the consummation of the marriage, nor after the consummation.

He may not, however, have her include that she did not engage in relations [with another man] before she was consecrated or between the time she was divorced [and remarried], if she was in fact divorced and remarried. The rationale is that even if she engaged in relations [with other men at that time], she would not be forbidden [to her husband]. And whenever she is not forbidden to him, he cannot make any stipulations regarding her conduct.

For this reason, if a man married his yevamah, he cannot compel her to include in her oath that she did not engage in relations with others while she was waiting for him to perform yibbum.44 He may, however, compel her to include in her oath that she did not commit adultery when married to his brother. For if she committed adultery when married to his brother, she is forbidden to him.

Similarly, if [the husband] divorced his wife and remarried her, he may compel her to include in her oath that she did not commit adultery when married to him originally. Similarly, he may have her include in her oath that she will not commit adultery in the future or that she will not commit adultery if he divorces her and remarries her. [In such an instance,] if she commits adultery in the future, the waters will check her [fidelity], and [if she is guilty,] the physical phenomena [described above] will be visited upon her.

All the above is implied by [the woman's response to the oath, Numbers 5:22]: "Amen, Amen." [This can be interpreted as meaning] Amen with regard to this man; Amen with regard to others. Amen with regard to the time when I was married; Amen with regard to the time when I was consecrated. Amen with regard to the past; Amen with regard to the future.

יז

יֵשׁ לַבַּעַל לְגַלְגֵּל בִּשְׁבוּעָה עָלֶיהָ שֶׁלֹּא זִנְּתָה עִם אִישׁ זֶה שֶׁקִּנֵּא לָהּ בּוֹ וְלֹא עִם אִישׁ אַחֵר. וְשֶׁלֹּא זִנְּתָה תַּחְתָּיו מִשֶּׁנִּתְאָרְסָה קֹדֶם שֶׁתִּנָּשֵׂא וְלֹא אַחַר שֶׁנִּשֵּׂאת. אֲבָל אֵינוֹ מְגַלְגֵּל עָלֶיהָ שֶׁלֹּא זִנְּתָה קֹדֶם הָאֵרוּסִין וְלֹא אַחַר שֶׁגֵּרְשָׁהּ אִם גֵּרְשָׁהּ וְהֶחֱזִירָהּ. שֶׁאִם זִנְּתָה בְּעֵת זֶה לֹא תֵּאָסֵר עָלָיו. וְכָל שֶׁתִּבָּעֵל וְלֹא תִּהְיֶה אֲסוּרָה לוֹ אֵינוֹ מַתְנֶה עִמָּהּ. לְפִיכָךְ אִם כָּנַס יְבִמְתּוֹ אֵינוֹ מְגַלְגֵּל עָלֶיהָ שֶׁלֹּא זִנְּתָה כְּשֶׁהָיְתָה שׁוֹמֶרֶת יָבָם. אֲבָל מְגַלְגֵּל עָלֶיהָ שֶׁלֹּא זִנְּתָה תַּחַת אָחִיו שֶׁאִם זִנְּתָה תַּחַת אָחִיו הֲרֵי זוֹ אֲסוּרָה עָלָיו. וְכֵן אִם גֵּרְשָׁהּ וְהֶחֱזִירָהּ מְגַלְגֵּל עָלֶיהָ שֶׁלֹּא זִנְּתָה תַּחְתָּיו בַּנִּשּׂוּאִין הָרִאשׁוֹנִים. וְיֵשׁ לוֹ לְגַלְגֵּל עָלֶיהָ בִּלְהַבָּא שֶׁלֹּא תִּזְנֶה תַּחְתָּיו וְשֶׁלֹּא תִּזְנֶה אַחַר שֶׁיַּחְזִירֶנָּה אִם יְגָרֵשׁ וְיַחֲזִיר. לְפִיכָךְ כְּשֶׁתִּזְנֶה לְהַבָּא מַיִם בּוֹדְקִין אוֹתָהּ וְיֶאֶרְעוּ לָהּ אוֹתָן הַמְאֹרָעוֹת. לְכָךְ נֶאֱמַר (במדבר ה כב) "אָמֵן אָמֵן". אָמֵן מֵאִישׁ זֶה אָמֵן מֵאִישׁ אַחֵר. אָמֵן נְשׂוּאָה אָמֵן אֲרוּסָה. אָמֵן לְשֶׁעָבַר אָמֵן לְהַבָּא:

18

It is a mitzvah for Israelites to issue warnings to their wives,45 [as implied by Numbers 5:14] "And he shall warn his wife." [Our Sages said that] whoever issues a warning to his wife has become possessed by a spirit of purity.

A warning should not be issued in a spirit of levity, nor in the midst of conversation, nor with frivolity, nor in the midst of an argument, nor with the purpose of instilling fear.

If, however, a man transgressed and issued a warning to his wife under such circumstances, the warning is binding.

יח

מִצְוַת חֲכָמִים עַל בְּנֵי יִשְׂרָאֵל לְקַנְּאוֹת לִנְשֵׁיהֶן שֶׁנֶּאֱמַר (במדבר ה יד) "וְקִנֵּא אֶת אִשְׁתּוֹ". וְכָל הַמְקַנֵּא אֶת אִשְׁתּוֹ נִכְנְסָה בּוֹ רוּחַ טָהֳרָה. וְלֹא יְקַנֵּא לָהּ לֹא מִתּוֹךְ שְׂחוֹק וְלֹא מִתּוֹךְ שִׂיחָה וְלֹא מִתּוֹךְ קַלּוּת רֹאשׁ וְלֹא מִתּוֹךְ מְרִיבָה וְלֹא לְהַטִּיל עָלֶיהָ אֵימָה. וְאִם עָבַר וְקִנֵּא לָהּ בִּפְנֵי עֵדִים מִתּוֹךְ אֶחָד מִכָּל הַדְּבָרִים הָאֵלּוּ הֲרֵי זֶה קִנּוּי:

19

It is not proper for a man to rush and at the outset issue a warning in the presence of witnesses.46 Instead, he should [first speak to his wife] privately and gently, in a spirit of purity and caution, in order to guide her to the proper path and remove obstacles.

Whenever a person is not careful regarding [the conduct of] his wife, his sons and the members of his household, warning them,47 and scrutinizing their ways at all times so that he knows that they are perfect without sin or transgression, he is himself a sinner, as [implied by Job 5:24]: "And you shall know that your tent is at peace and scrutinize your dwelling, and you shall not sin."48

יט

אֵין רָאוּי לִקְפֹּץ וּלְקַנְּאוֹת בִּפְנֵי עֵדִים תְּחִלָּה אֶלָּא בֵּינוֹ לְבֵינָהּ בְּנַחַת וּבְדֶרֶךְ טָהֳרָה וְאַזְהָרָה כְּדֵי לְהַדְרִיכָהּ בְּדֶרֶךְ יְשָׁרָה וּלְהָסִיר הַמִּכְשׁוֹל. וְכָל מִי שֶׁאֵינוֹ מַקְפִּיד עַל אִשְׁתּוֹ וְעַל בָּנָיו וּבְנֵי בֵּיתוֹ וּמַזְהִירָן וּפוֹקֵד דַּרְכֵיהֶן תָּמִיד עַד שֶׁיֵּדַע שֶׁהֵן שְׁלֵמִין מִכָּל חֵטְא וּמֵעָוֹן הֲרֵי זֶה חוֹטֵא שֶׁנֶּאֱמַר (איוב ה כד) "וְיָדַעְתָּ כִּי שָׁלוֹם אָהֳלֶךָ וּפָקַדְתָּ נָוְךָ וְלֹא תֶחֱטָא":

Footnotes
1.

See Hilchot Arachin 8:1, Hilchot Kilayim 2:15, and Hilchot Rotzeach 8:6, where reference is made to various services performed by the court at that time.

2.

The commentaries note that the court cannot actually compel a woman to drink the bitter water. All it can do is issue a warning so that she will become forbidden to her husband, as stated in Chapter 1, Halachot 10:11.

3.

I.e., although the court pays attention to this matter in Adar, it is possible for a sotah to be compelled to drink at any time of the year. See Hilchot Sh'vitat Yom Tov 7:11, which states that it was customary to have a sotah drink the bitter water during Chol HaMo'ed when there will be many people visiting the Temple.

4.

See Halachah 7.

5.

The commentaries note that there is no verse in the Torah that uses the wording cited by the Rambam. There are, however, several from which it could be implied that only one sotah should be compelled to drink at one time.

6.

Her original refusal to drink the waters is interpreted as an admission of guilt that cannot be retracted.

7.

For every scroll must be written for the sake of the woman who drinks its waters, as stated in Chapter 3, Halachah 8. See also Halachah 11 of this chapter.

8.

The "ash heap" was a place in the Temple Courtyard, east of the altar, where sacrifices that became disqualified were burned. Rashi (Sotah 20a) states that this offering also had to be burned.

9.

She is not compelled to drink them. At the outset, their purpose was to determine whether or not she was innocent. Through her admission, that determination was made (Rashi, Sotah 20a).

10.

Although God's name was blotted out in it, this does not endow it with holiness.

11.

As must all sacrifices.

12.

Significantly, in his Commentary on the Mishnah (Sotah 2:4), the Rambam quotes a different proof-text as the source for this concept.

13.

I.e., in that order.

14.

The Kessef Mishneh quotes Rashi (Sotah 17b) as stating that this means without having the lines of the scroll ruled (sirtut) before it is written.

15.

For a more detailed definition of the term the Rambam uses, see Hilchot Tefillin 1:6.

16.

I.e., a person other than a priest.

17.

In his Commentary on the Mishnah, Gittin 2:3, the Rambam mentions Arabic terms for these words. Rav Kapach explains the meaning as follows: Kumos and kankantum are two similar substances, yellow and green powders, which when mixed with gallnut juice produce a black substance. Others translate kumos as gum or resin and kankantum as vitriol or atramentum sutorum.

18.

See Hilchot Tefillin 1:4, which describes how ink was made.

19.

Sotah 18a states that the decision in this instance resolves around the question of bererah - i.e., the idea that retroactively it can be considered that an activity was performed originally with an intent that becomes clarified only afterwards.

There is an unresolved debate among the Sages if the principle of bererah is accepted with regard to questions of Scriptural law, and therefore, the more stringent approach is taken. In this instance, this implies that God's name should not be blotted out a second time.

Note the Minchat Chinuch, who asks how this questionable drinking of the water is considered sufficient to release a woman from the prohibition she incurred after violating her husband's warning and entering into privacy with the man in question.

Note also that Halachah 2 states that two sotot should not be forced to drink at the same time.

20.

This is not a continuation of the previous subject, but rather deals with an ordinary instance in which water was prepared for one sotah.

21.

We do not say that God's name should not be blotted out a second time because of one woman.

22.

For at the outset, the woman must drink all the water in which her scroll was blotted out.

23.

Sotah (ibid.) also leaves this as an unresolved question. Since there is no binding decision that it is acceptable, the Rambam rules as above, that one may not blot out God's name in such a situation.

24.

Since it came from the basin - and was measured in a sacred vessel - it must be used on the day on which it was taken. See Hilchot Pesulei HaMukdashin, ch. 3.

25.

Mentioned in Chapter 3, Halachah 10.

26.

Although in some halachic contexts (see Hilchot Shechitah 14:13) ash is considered to be dust, in this instance, the phrase "from the dust that is on the earth of the Tabernacle" implies a similarity between dust and earth (Sotah 16a).

27.

Our translation follows Sotah 16b. The Meiri states that this refers to rotten wood.

28.

I.e., that it existed there previously (Sotah 15b).

29.

Although this deviates from the order stated in Chapter 3, Halachah 15, Sotah 19a states that this order is also acceptable, after the fact.

30.

See Hilchot Issurei Mizbe'ach 6:5. In such an instance, although the meal has been designated for use as a sacrifice, since it has not been placed in a sacred vessel, its actual substance has not become consecrated.

31.

With the money received from redeeming the first one.

32.

Since it was placed in a sacred vessel, it became consecrated. Consequently, once it became impure it must be burned, as stated in Hilchot Pesulei Hamukdashim 19:1.

33.

The meal offering must be burned, because the offering of a sotah is acceptable only when it is being used to test the fidelity of a woman. Once she has admitted her guilt, that is unnecessary. Nor may it be offered as a voluntary offering, for a sotah's offering is of barley meal, and voluntary offerings may be brought from wheat only, but not from barley.

34.

See Halachah 4.

35.

In this instance as well, the question of the woman's fidelity has been clarified.

36.

As stated above, the purpose of the offering is to test the woman's fidelity and thus allow her to resume relations with her husband. If that objective is no longer relevant, as in the latter two instances mentioned in the halachah, the offering is not brought.

37.

Many authorities maintain that a printer's error has crept into the text and the text should read "the remainder is eaten." Nevertheless, the majority favor the version stated above.

38.

As stated in Leviticus 6:15, a meal offering brought by a priest should not be eaten, but instead burned on the altar.

39.

The meal offerings brought by priests are offered on the altar entirely, without a fistful of meal being separated. For a meal offering brought by a non-priest to be acceptable, by contrast, the fistful of meal must be separated and burned as a distinct entity. See Hilchot Ma'aseh HaKorbanot 12:12.

40.

The term used by the Rambam (and his source, Sotah 6b) refers to hazamah, when the testimony of the witnesses is disqualified because others testify that they and the witnesses were together in another place at the time the witnesses say the act took place. Seemingly, the same law would apply if the witnesses' testimony was disqualified on other grounds.

41.

It need not be redeemed. The rationale is that it was consecrated based on a false premise - that the woman had entered into privacy with the man in question. Whenever an entity is consecrated on a false premise, the consecration is not binding.

42.

The commentaries have questioned why the Rambam quotes the derivation of this concept from the Midrash (Sifre Zuta), instead of citing the Talmud (Keritot 9b), which cites a different proof-text.

43.

Gilgul Sh'vuah implies that when taking an oath on one claim, a person may be required to include a variety of related claims in that oath. See Hilchot To'en V'Nit'an 1:12.

44.

For even if she did engage in relations with another man at that time, she would not be forbidden to her yavam (Hilchot Yibbum 2:20).

45.

Sotah 3a records a difference of opinion regarding this matter between Rabbi Akiva and Rabbi Yishmael. Rabbi Akiva states, as the Rambam rules here, that a man is obligated to issue a warning, while Rabbi Yishmael maintains that the matter is optional. Other commentaries note that the first mishnah in the tractate of Sotah appears to indicate that it is forbidden for a husband to issue a warning. (This concept is derived as follows: The mishnah begins: "When a man issued a warning...." From this wording, our Sages infer that the mishnah is speaking after the fact. At the outset, a warning should not be given.)

Significantly, Rabbi Akiva was noted for his love of his fellow man, as he stated: "'Love your fellow man as yourself,'... this is a great general principle within the Torah." This implies - and so is evident from the continuation of the Rambam's words - that the warning is not an instrument of strife, but rather is intended to prompt love and closeness.

46.

For this is likely to cause shame and embarrassment and prevent healthy communication between husband and wife. If, however, a warning that was delivered gently and in private is not effective, then the husband should warn his wife in the presence of witnesses.

47.

I.e., giving them gentle warnings, as mentioned in the first clause of this halachah.

48.

One may infer that failing to invest oneself in such scrutiny is sinful.

Issurei Biah - Chapter One

In the name of the Lord, the God of the world.
Prepare my steps with Your word, and do not allow any iniquity to rule over me.

The fifth book which is The Book of Holiness

It contains three sets of Halachot and this is their order:

The Laws of Issurei Biah
The Laws of Ma'achalot Assurot
The Laws of Shechita

Introduction to Hilchos Issurei Biah

They contain 37 mitzvot: one positive commandment and 36 negative commandments. They are:

1. Not to have sexual relations with one’s mother,
2. Not to have relations with one’s father’s wife,
3. Not to have relations with one’s sister,
4. Not to have relations with the daughter of one’s father’s wife,
5. Not to have relations with the daughter of one’s son,
6. Not to have relations with one’s daughter,
7. Not to have relations with the daughter of one’s daughter,
8. Not to marry a woman and her daughter,
9. Not to marry a woman and her son’s daughter,
10. Not to marry a woman and her daughter’s daughter,
11. Not to have relations with the sister of one’s father,
12. Not to have relations with the sister of one’s mother,
13. Not to have relations with the wife of the brother of one’s father,
14. Not to have relations with the wife of one’s son,
15. Not to have relations with the wife of one’s brother,
16. Not to have relations with the sister of one’s wife,
17. Not to have relations with an animal,
18. For a woman not to engage in relations with an animal,
19. For [a man] not to engage in relations with another man,
20. Not to have relations with one’s father,
21. Not to have relations with the brother of one’s father,
22. Not to have relations with a married woman,
23. Not to have relations with [a woman in] the niddah state,
24. Not to marry a gentile,
25. For an Ammonite [convert] or a Moabite [convert] not to marry into God’s congregation, [i.e., the Jewish people,]
26. Not to prevent a third generation Egyptian [convert] from marrying among the Jewish people,
27. Not to prevent a third generation Edomite [convert] from marrying among the Jewish people,
28. Not to allow a mamzer to marry among the Jewish people,
29. Not to allow a castrated male to marry among the Jewish people,
30. Not to castrate a male; [this includes] even an animal, beast, or fowl,
31. For a High Priest not to marry a widow,
32. For a High Priest not to engage in relations with a widow even outside the bounds of marriage,
33. That a High Priest should marry a virgin maiden,
34. That a priest should not marry a divorcee,
35. That he should not marry a zonah,
36. That he should not marry a chalalah,
37. That a person should not draw close to any of the woman forbidden to him even though he does not engage in relations.

These mitzvot are explained in the ensuing chapters.

בְּשֵׁם יי אֵל עוֹלָם (בראשית כא לג)
פְּעָמַי הָכֵן בְּאִמְרָתֶךָ, וְאַל תַּשְׁלֶט בִּי כָל אָוֶן (תהלים קיט קלג)

ספר חמישי והוא ספר קדושה

הלכותיו שלוש, וזה הוא סידורן:

הלכות איסורי ביאה
הלכות מאכלות אסורות
הלכות שחיטה הלכות איסורי ביאה - הקדמה הלכות איסורי ביאה יש בכללן שבע ושלשים מצות מצוה אחת עשה ושלשים ושש מצות לא תעשה וזה הוא פרטן: (א) שלא לבא על האם
(ב) שלא לבא על אשת אב
(ג) שלא לבעול אחות
(ד) שלא לבעול בת אשת אב
(ה) שלא לבעול בת הבן
(ו) שלא לבעול הבת
(ז) שלא לבעול בת הבת
(ח) שלא לישא אשה ובתה
(ט) שלא לישא אשה ובת בנה
(י) שלא לישא אשה ובת בתה
(יא) שלא לבעול אחות אב
(יב) שלא לבעול אחות אם
(יג) שלא לבעול אשת אחי האב
(יד) שלא לבעול אשת הבן
(טו) שלא לבעול אשת אח
(טז) שלא לבעול אחות אשתו
(יז) שלא לשכב עם בהמה
(יח) שלא תביא אשה בהמה עליה
(יט) שלא לשכב עם זכר
(כ) שלא לגלות ערות אב
(כא) שלא לגלות ערות אחי אב
(כב) שלא לבעול אשת איש
(כג) שלא לבעול נדה
(כד) שלא להתחתן בעכו"ם
(כה) שלא יבוא עמוני ומואבי בקהל ה'
(כו) שלא להרחיק דור שלישי מצרי מלבוא בקהל
(כז) שלא להרחיק דור שלישי אדומי מלבוא בקהל
(כח) שלא יבא ממזר בקהל
(כט) שלא יבא סריס בקהל
(ל) שלא לסרס זכר אפילו בהמה חיה ועוף
(לא) שלא ישא כהן גדול אלמנה
(לב) שלא יבעול כהן גדול אלמנה אפילו בלא נישואין
(לג) שישא כהן גדול בתולה בנערותיה
(לד) שלא ישא כהן גרושה
(לה) שלא ישא זונה
(לו) שלא ישא חללה
(לז) שלא יקרב אדם לאחת מכל העריות ואף על פי שלא בעל וביאור מצות אלו בפרקים אלו:

1

When a person voluntarily engages in sexual relations with one of the arayot1 mentioned in the Torah, he is liable for kerait,2 as [Leviticus 18:29] states: "Whenever anyone performs any of these abominations, the souls will be cut off...." [The plural is used, referring to] the man and the woman.3If they transgressed unknowingly, they are liable to bring a fixed4 sin offering. There are some arayot with whom relations are punishable by execution5 in addition to kerait which is applicable in all cases.6

א

הַבָא עַל אַחַת מִכָּל הָעֲרָיוֹת הָאֲמוּרוֹת בַּתּוֹרָה בְּמֵזִיד חַיָּב כָּרֵת שֶׁנֶּאֱמַר (ויקרא יח כט) "כִּי כָּל אֲשֶׁר יַעֲשֶׂה מִכּל הַתּוֹעֵבוֹת הָאֵלֶּה וְנִכְרְתוּ הַנְּפָשׁוֹת" וְגוֹ' שְׁנֵיהֶם הַבּוֹעֵל וְהַנִּבְעֶלֶת. וְאִם הָיוּ שׁוֹגְגִין חַיָּבִין חַטָּאת קְבוּעָה. וְיֵשׁ מִן הָעֲרָיוֹת שֶׁהוּא בְּמִיתַת בֵּית דִּין יֶתֶר עַל הַכָּרֵת הַשָּׁוֶה בְּכֻלָּן:

2

With regard to the arayot that are punishable by execution by the court. If there were witnesses, they delivered a warning,7 and the transgressors did not cease their actions, they are executed through the means prescribed for them.

ב

אוֹתָן הָעֲרָיוֹת שֶׁיֵּשׁ בָּהֶן מִיתַת בֵּית דִּין אִם הָיוּ שָׁם עֵדִים וְהַתְרָאָה וְלֹא פָּרְשׁוּ מִמַּעֲשֵׂיהֶם מְמִיתִין אוֹתָן מִיתָה הָאֲמוּרָה בָּהֶן:

3

Even if a transgressor was a Torah scholar neither execution or lashes is administered unless a warning was given. For [the obligation for] a warning was instituted universally only to make a distinction between a person who transgresses inadvertently and one who transgresses intentionally.8

ג

וַאֲפִלּוּ הָיָה הָעוֹבֵר תַּלְמִיד חָכָם אֵין מְמִיתִין וְלֹא מַלְקִין עַד שֶׁתִּהְיֶה שָׁם הַתְרָאָה. שֶׁלֹּא נִתְּנָה הַתְרָאָה בְּכָל מָקוֹם אֶלָּא לְהַבְחִין בֵּין שׁוֹגֵג לְמֵזִיד:

4

Among the arayot punishable through execution by the court are those for [which the violators are] executing by stoning, those for which they are executed by burning, and those for which they are executed by strangulation.9

The following transgressions are punishable by stoning: one who has relations with his mother, with his father's wife,10 his son's wife; she is called his daughter-in-law,11 one who sodomizes a male, a male who has relations with an animal, and a woman who has relations with an animal.

ד

הָעֲרָיוֹת שֶׁיֵּשׁ בָּהֶן מִיתַת בֵּית דִּין מֵהֶן שֶׁמִּיתָתָן בִּסְקִילָה. וּמֵהֶן שֶׁמִּיתָתָן בִּשְׂרֵפָה. וּמֵהֶן שֶׁמִּיתָתָן בְּחֶנֶק. וְאֵלּוּ שֶׁמִּיתָתָן בִּסְקִילָה. הַבָּא עַל אִמּוֹ. וְעַל אֵשֶׁת אָבִיו. וְעַל אֵשֶׁת בְּנוֹ וְהִיא הַנִּקְרֵאת כַּלָּתוֹ. וְהַשּׁוֹכֵב עִם זָכָר. וְהַשּׁוֹכֵב עִם בְּהֵמָה. וְהָאִשָּׁה הַמְּבִיאָה אֶת הַבְּהֵמָה עָלֶיהָ:

5

The following arayot are punishable by burning: a person who has relations with his wife's daughter12 during his wife's lifetime,13 with the daughter of her daughter, with the daughter of her son, with her mother, with the mother of her mother, with the mother of her father, with his own daughter, with the daughter of his daughter, or with the daughter of his son.

ה

וְאֵלּוּ הֵן הָעֲרָיוֹת שֶׁמִּיתָתָן בִּשְׂרֵפָה. הַבָּא עַל בַּת אִשְׁתּוֹ בְּחַיֵּי אִשְׁתּוֹ. וְעַל בַּת בִּתָּהּ. וְעַל בַּת בְּנָהּ. וְעַל אֵם אִשְׁתּוֹ. וְעַל אֵם אִמָּהּ. וְעַל אֵם אָבִיהָ. וְהַבָּא עַל בִּתּוֹ. וְעַל בַּת בִּתּוֹ. וְעַל בַּת בְּנוֹ:

6

The only instance in which forbidden sexual relations are punishable by execution by strangulation is adultery, as [derived from Leviticus 20:10]: "The adulterer and the adulteress shall surely be put to death." Whenever the Torah mentions "putting to death" without further description, the intent is strangulation.14

If [the adulteress] is the daughter of a priest, she should be executed by burning and the adulterer by strangulation, as [ibid. 21:9] states: "The daughter of a priest, when she begins to act promiscuously, she shall be burnt with fire."15 If the adulteress is a consecrated16 maiden,17 both she and the adulterer should be stoned,18 as [Deuteronomy 22:23-24] states: "When a virgin maiden.... they shall be stoned with rocks...." Whenever the Torah uses the phrase "They shall surely be put to death, they are responsible for their own blood" [Leviticus 20:11] - they are executed by stoning.19

ו

אֵין לְךָ עֶרְוָה בְּחֶנֶק אֶלָּא אֵשֶׁת אִישׁ בִּלְבַד שֶׁנֶּאֱמַר (ויקרא כ י) "מוֹת יוּמַת הַנֹּאֵף וְהַנֹּאָפֶת" וּמִיתָה הָאֲמוּרָה בַּתּוֹרָה סְתָם הִיא חֶנֶק. וְאִם הָיְתָה בַּת כֹּהֵן הִיא בִּשְׂרֵפָה וּבוֹעֲלָהּ בְּחֶנֶק שֶׁנֶּאֱמַר (ויקרא כא ט) "וּבַת אִישׁ כֹּהֵן כִּי תֵחֵל לִזְנוֹת" (ויקרא כא ט) "בָּאֵשׁ תִּשָּׂרֵף". וְאִם הָיְתָה נַעֲרָה מְאֹרָשָׂה שְׁנֵיהֶם בִּסְקִילָה שֶׁנֶּאֱמַר (דברים כב כד) "כִּי תִּהְיֶה נַעֲרָה בְתוּלָה" וְגוֹ' (דברים כב כד) "וּסְקַלְתֶּם אֹתָם בָּאֲבָנִים". וְכָל מָקוֹם שֶׁנֶּאֱמַר בַּתּוֹרָה(ויקרא כ יג) (ויקרא כ טז) "מוֹת יוּמְתוּ דְּמֵיהֶם בָּם" הֲרֵי הֵן בִּסְקִילָה:

7

All of the other arayot are punishable by kerait alone and are not punishable by execution by the court. Therefore if there were witnesses and a warning was administered, the court punishes them with lashes, for all those who are obligated for kerait are lashed.

ז

שְׁאָר הָעֲרָיוֹת כֻּלָּן בְּכָרֵת בִּלְבַד וְאֵין בָּהֶם מִיתַת בֵּית דִּין. לְפִיכָךְ אִם הָיוּ שָׁם עֵדִים וְהַתְרָאָה בֵּית דִּין מַלְקִין אוֹתָן. שֶׁכָּל חַיָּבֵי כְּרֵתוֹת לוֹקִין:

8

When a person enters into relations with women who are forbidden by merely a negative commandment,20 both he and she are lashed. If they do so unknowingly, they are not liable for punishment. When a person enters into relations with one of the shniyot,21 Rabbinic Law ordains that he be given "stripes for rebellious conduct."22 When, however, a person enters into relations with a woman who is forbidden merely by a positive commandment,23he need not be punished. If, however, the court [wishes to] administer stripes for rebellious conduct to him to distance him from sin, they have that option.24

ח

הַבָּא עַל אַחַת מֵחַיָּבֵי לָאוִין בְּמֵזִיד. הוּא לוֹקֶה וְהִיא. וְאִם בְּשׁוֹגֵג פְּטוּרִין מִכְּלוּם. וְהַבָּא עַל אַחַת מֵהַשְּׁנִיּוֹת בְּמֵזִיד מַכִּין אוֹתוֹ מַכַּת מַרְדּוּת מִדִּבְרֵיהֶם. אֲבָל הַבָּא עַל אַחַת מֵחַיָּבֵי עֲשֵׂה אֵינוֹ לוֹקֶה. וְאִם הִכּוּ אוֹתָם בֵּית דִּין מַכַּת מַרְדּוּת כְּדֵי לְהַרְחִיק מִן הָעֲבֵרָה הָרְשׁוּת בְּיָדָם:

9

A person compelled [to engage in forbidden relations] is not liable at all, not for lashes nor for a sacrifice. Needless to say, there is no obligation for capital punishment, as [reflected by Deuteronomy 22:26]: "And to the maiden, do not do anything."25

To whom does the above apply? To the victim of rape. When, by contrast, a man engages in relations, there is no concept of being compelled against his will. For an erection is always a willful act.26

When a woman is compelled into relations at the outset and afterwards, she consents, she is not liable. Once [a man] compels her to engage in relations, it is beyond her control whether to desire [or] not. For man's natural tendency and inclination is compelling her to desire.27

ט

אָנוּס פָּטוּר מִכְּלוּם מִן הַמַּלְקוֹת וּמִן הַקָּרְבָּן וְאֵין צָרִיךְ לוֹמַר מִן הַמִּיתָה שֶׁנֶּאֱמַר (דברים כב כו) "וְלַנַּעֲרָה לֹא תַעֲשֶׂה דָבָר". בַּמֶּה דְּבָרִים אֲמוּרִים בְּשֶׁנֶּאֱנַס הַנִּבְעָל. אֲבָל הַבּוֹעֵל אֵין לוֹ אֹנֶס שֶׁאֵין קִשּׁוּי אֶלָּא לְדַעַת. וְאִשָּׁה שֶׁתְּחִלַּת בִּיאָתָהּ בְּאֹנֶס וְסוֹפָהּ בְּרָצוֹן פְּטוּרָה מִכְּלוּם שֶׁמִּשֶּׁהִתְחִיל לִבְעל בְּאֹנֶס אֵין בְּיָדָהּ שֶׁלֹּא תִּרְצֶה שֶׁיֵּצֶר הָאָדָם וְטִבְעוֹ כּוֹפֶה אוֹתָהּ לִרְצוֹת:

10

A person who inserts the corona into [the woman's vaginal channel] is referred to as one who "uncovers" as [Leviticus 20:18] states: "He uncovered her source."28 A person who inserts the entire organ is referred to as one who completes [intercourse]. With regard to all the forbidden relations [mentioned] by the Torah, one who "uncovers" and one who "completes [intercourse] are [equally] liable for execution by the court, kerait, lashes, or stripes for rebellious conduct. Even though the man did not ejaculate and even if he withdrew and did not complete relations, [the man and the woman] both become liable.29 Whether a person engages in vaginal or anal intercourse,30 when he "uncovers" [the woman], they both become liable for execution, kerait, lashes, or stripes for rebellious conduct. Whether they were lying or standing,31 liability is established by the insertion of the corona.

י

הַמַּכְנִיס רֹאשׁ הָעֲטָרָה בִּלְבַד הוּא הַנִּקְרָא מְעָרֶה מִלְּשׁוֹן (ויקרא כ יח) "אֶת מְקֹרָהּ הֶעֱרָה". וְהַמַּכְנִיס כָּל הָאֵיבָר הוּא הַנִּקְרָא גּוֹמֵר. וּבְכָל הַבִּיאוֹת הָאֲסוּרוֹת אֶחָד הַמְעָרֶה וְאֶחָד הַגּוֹמֵר וְאַף עַל פִּי שֶׁלֹּא הוֹצִיא שִׁכְבַת זֶרַע וְאַף עַל פִּי שֶׁפֵּרַשׁ וְלֹא גָּמַר כֵּיוָן שֶׁהִכְנִיס רֹאשׁ הָעֲטָרָה נִתְחַיְּבוּ שְׁנֵיהֶם מִיתַת בֵּית דִּין אוֹ כָּרֵת אוֹ מַלְקוֹת אוֹ מַכַּת מַרְדּוּת. (וְאֶחָד הַבָּא עַל הָעֶרְוָה כְּדַרְכָּהּ וְאֶחָד הַבָּא עָלֶיהָ שֶׁלֹּא כְּדַרְכָּהּ) מִשֶּׁיְּעָרֶה בָּהּ יִתְחַיְּבוּ שְׁנֵיהֶן מִיתָה אוֹ כָּרֵת אוֹ מַלְקוֹת אוֹ מַכַּת מַרְדּוּת בֵּין שֶׁהָיוּ שׁוֹכְבִין בֵּין שֶׁהָיוּ עוֹמְדִים עַל הַכְנָסַת הָעֲטָרָה הוּא הַחִיּוּב:

11

[There is never any liability when] a man engages in forbidden relations without an erection, instead his organ was hanging loosely like the organ of the dead, e.g., one who was sick or a person with a congenital malady, i.e., he was born sexually inadequate. Even though he inserts his organ with his hand, he is not liable for kerait or lashes. Needless to say, he is not liable for execution. For this is not considered sexual intercourse. Nevertheless, [such an act] disqualifies a woman from partaking of terumah.32 And the court subjects both of them to stripes for rebellious conduct.33

יא

כָּל הַבָּא בִּיאָה אֲסוּרָה בְּלֹא קִשּׁוּי. אֶלָּא שֶׁהָיָה הָאֵיבָר שֶׁלּוֹ מְדֻלְדָּל כְּמוֹ אֵיבָר הַמֵּתִים כְּגוֹן הַחוֹלִים. אוֹ מִי שֶׁנּוֹלַד כָּךְ כְּגוֹן סְרִיס חַמָּה אַף עַל פִּי שֶׁהִכְנִיס אֶת הָאֵיבָר בְּיָדוֹ אֵינוֹ חַיָּב לֹא כָּרֵת וְלֹא מַלִקוֹת וִאֵין צָרִיךְ לוֹמַר מִיתָה. שֵׁאֵין זוֹ בִּיאָה. אֲבָל פּוֹסֵל הוּא מִן הַתִּרוּמָה. וּבֵית דִּין מַכִּין אֵת שִׁנֵיהֵם מַכַּת מַרִדּוּת:

12

When a person enters into sexual relations with one of the arayot as a casual act,34 although he did not intend to do so, he is liable.35Similar concepts apply with regard to one who enters into relations with women forbidden by a negative commandment alone or with one of the shniyot.36

When, however, a man has relations with one of the arayot after she died, he is not liable at all.37 Needless to say, this applies with regard to those women with whom relations are forbidden by a negative commandment alone. When, by contrast, one has relations with a person who is trefe38 or who has relations with an animal which is trefe, he is liable. [The person or the animal] is [now] alive even though he will ultimately die from this illness. Even when the two signs39 which validate ritual slaughter were slit but [the woman or the animal] is making its last movements, if one enters into relations with [her or it] he is liable until she or it dies or is decapitated.

יב

הַבָּא עַל עֶרְוָה מִן הָעֲרָיוֹת כְּמִתְעַסֵּק אַף עַל פִּי שֶׁאֵין כַּוָּנָתוֹ לְכָךְ חַיָּב. וְכֵן בְּחַיָּבֵי לָאוִין וּבִשְׁנִיּוֹת. אֲבָל הַבָּא עַל עֶרְוָה מִן הָעֲרָיוֹת וְהִיא מֵתָה פָּטוּר מִכְּלוּם. וְאֵין צָרִיךְ לוֹמַר בְּחַיָּבֵי לָאוִין שֶׁהוּא פָּטוּר. וְהַבָּא עַל הַטְּרֵפָה אוֹ שֶׁשָּׁכַב עִם בְּהֵמָה טְרֵפָה חַיָּב. חַי הוּא אַף עַל פִּי שֶׁסּוֹפוֹ לָמוּת מֵחלִי זֶה. וַאֲפִלּוּ שָׁחַט בָּהּ שְׁנֵי סִימָנִין וַעֲדַיִן הִיא מְפַרְכֶּסֶת הַבָּא עָלֶיהָ חַיָּב עַד שֶׁתָּמוּת אוֹ עַד שֶׁיַּתִּיז רֹאשָׁהּ:

13

When an adult male enters into relations with any of the women forbidden in connection with the above transgressions who is three years and one day old or more,40 he is liable for execution, kerait, or lashes and she is not liable41 unless she is past majority. If she is younger than this, both participants are not liable, for the act is not considered as sexual relations.42

Similarly, when an adult woman enters into sexual relations with a minor, if he is nine years and one day old, she is liable for execution, kerait,43 or lashes and he is not liable. If he is younger than nine years old, they are both free of liability.44

יג

כָּל אִשָּׁה אֲסוּרָה מֵאֵלּוּ אִם הָיְתָה בַּת שָׁלֹשׁ שָׁנִים וְיוֹם אֶחָד וָמַעְלָה גָּדוֹל הַבָּא עָלֶיהָ חַיָּב מִיתָה אוֹ כָּרֵת אוֹ מַלְקוֹת וְהִיא פְּטוּרָה מִכְּלוּם אֶלָּא אִם כֵּן הָיְתָה גְּדוֹלָה. וְאִם הָיְתָה פְּחוּתָה מִזֶּה הֲרֵי שְׁנֵיהֶן פְּטוּרִין שֶׁאֵין בִּיאָתָהּ בִּיאָה. וְכֵן אִשָּׁה גְּדוֹלָה שֶׁבָּא עָלֶיהָ קָטָן אִם הָיָה בֶּן תֵּשַׁע שָׁנִים וְיוֹם אֶחָד וָמַעְלָה הִיא חַיֶּבֶת כָּרֵת אוֹ מִיתָה אוֹ מַלְקוֹת וְהוּא פָּטוּר. וְאִם הָיָה בֶּן תֵּשַׁע שָׁנִים וּלְמַטָּה שְׁנֵיהֶם פְּטוּרִין:

14

When a man enters into relations with a male or has a male enter into relations with him, once the corona is inserted [into the anus] they should both be stoned if they are both adults. As [Leviticus 18:22] states: "Do not lie with a man," [holding one liable for the act, whether] he is the active or passive partner.

If a minor of nine years and a day or more is involved, the man who enters into relations or has the minor enter into relations with him should be stoned and the minor is not liable. If the male [minor] was less than nine years old, they are both free of liability.45 It is, however, appropriate for the court to subject the adult to stripes for rebellious conduct for homosexual relations46 although his companion was less than nine years old.

יד

הַבָּא עַל הַזָּכָר אוֹ הֵבִיא זָכָר עָלָיו כֵּיוָן שֶׁהֶעֱרָה אִם הָיוּ שְׁנֵיהֶם גְּדוֹלִים נִסְקָלִים שֶׁנֶּאֱמַר (ויקרא יח כב) "וְאֶת זָכָר לֹא תִשְׁכָּב" בֵּין שֶׁהָיָה בּוֹעֵל אוֹ נִבְעָל. וְאִם הָיָה קָטָן בֶּן תֵּשַׁע שָׁנִים וְיוֹם אֶחָד וָמַעְלָה זֶה שֶׁבָּא עָלָיו אוֹ הֱבִיאוֹ עַל עַצְמוֹ נִסְקָל וְהַקָּטָן פָּטוּר. וְאִם הָיָה הַזָּכָר בֶּן תֵּשַׁע אוֹ פָּחוֹת שְׁנֵיהֶן פְּטוּרִין וְרָאוּי לְבֵית דִּין לְהַכּוֹת הַגָּדוֹל מַכַּת מַרְדּוּת לְפִי שֶׁשָּׁכַב עִם זָכָר וְאַף עַל פִּי שֶׁהוּא פָּחוֹת מִבֶּן תֵּשַׁע:

15

One is liable for anal intercourse with an androgynus47 just as one is liable for relations with another male. One who engages in vaginal intercourse with [an androgynus] is not liable.48

There is a doubt concerning the gender of a tumtum.49 Therefore a person who has relations with a tumtum or vaginal intercourse with an androgynus should be given stripes for rebellious conduct.50

An androgynus may marry a woman.51

טו

[אֶחָד הַבָּא עַל הַזָּכָר אוֹ] הַבָּא עַל אַנְדְּרוֹגִינוּס דֶּרֶךְ זִכְרוּתוֹ חַיָּב. [וְאִם בָּא עָלָיו דֶּרֶךְ נְקֵבוּתוֹ פָּטוּר] וְהַטֻּמְטוּם סָפֵק הוּא לְפִיכָךְ הַבָּא עַל הַטֻּמְטוּם אוֹ עַל אַנְדְּרוֹגִינוּס [דֶּרֶךְ נְקֵבוּתוֹ] מַכִּין אוֹתוֹ מַכַּת מַרְדּוּת וְהָאַנְדְּרוֹגִינוּס מֻתָּר לִשָּׂא אִשָּׁה:

16

When a person sodomizes an animal or has an animal insert its organ in him, both the person and the animal should be stoned to death,52 as [Leviticus 18:23] states: "Do not lie down with any animal," prohibiting [such relations] whether he sodomizes the animal or has the animal enter him. All [living creatures] animals, beasts, and fowl should be stoned to death.53 The Torah did not make any distinction with regard to the age of an animal whether it is young or old. "Any animal" implies a prohibition on the day of its birth. Whether the person enters into vaginal or anal intercourse with the animal, when he inserts the corona or the animal inserts the corona within him, they are liable.

טז

הַבָּא עַל הַבְּהֵמָה אוֹ שֶׁהֵבִיא בְּהֵמָה עָלָיו שְׁנֵיהֶן נִסְקָלִין שֶׁנֶּאֱמַר (ויקרא יח כג) "וּבְכָל בְּהֵמָה לֹא תִתֵּן שְׁכָבְתְּךָ" בֵּין שֶׁרִבְּעָהּ אוֹ הֱבִיאָהּ עָלָיו. וְאֶחָד בְּהֵמָה וְאֶחָד חַיָּה וָעוֹף הַכּל בִּסְקִילָה. וְלֹא חִלַּק הַכָּתוּב בִּבְהֵמָה בֵּין גְּדוֹלָה לִקְטַנָּה שֶׁנֶּאֱמַר וּבְכָל בְּהֵמָה אֲפִלּוּ בְּיוֹם לֵדָתָהּ (הַבָּא עָלֶיהָ בֵּין כְּדַרְכָּהּ בֵּין שֶׁלֹּא כְּדַרְכָּהּ) כֵּיוָן שֶׁהֶעֱרָה בָּהּ אוֹ שֶׁהֶעֶרְתָה בּוֹ חַיָּב:

17

When a boy nine years old sodomizes an animal or has an animal engage in relations with him, the animal should be stoned, but he is not liable.54 If the boy was less than nine years old, the animal is not stoned. Similarly, when a girl three years old or more causes an animal or a beast to have relations with her, whether it is an older animal or a younger animal, once the corona of the animal is inserted into her vagina or anus, the animal is stoned to death and she is not liable.55 If she was past majority, they both should be stoned to death. If she was less than three years old, the animal should not be stoned.56

יז

קָטָן בֶּן תֵּשַׁע שָׁנִים וְיוֹם אֶחָד שֶׁבָּא עַל הַבְּהֵמָה אוֹ הֱבִיאָהּ עָלָיו הִיא נִסְקֶלֶת עַל יָדוֹ וְהוּא פָּטוּר. הָיָה בֶּן תֵּשַׁע אוֹ פָּחוֹת אֵין סוֹקְלִין אֶת הַבְּהֵמָה. וְכֵן קְטַנָּה בַּת שָׁלֹשׁ שָׁנִים וְיוֹם אֶחָד שֶׁהֵבִיאָה בְּהֵמָה וְחַיָּה עָלֶיהָ בֵּין בְּהֵמָה גְּדוֹלָה בֵּין בְּהֵמָה קְטַנָּה כֵּיוָן שֶׁהֶעֶרְתָה בָּהּ הַבְּהֵמָה (בֵּין כְּדַרְכָּהּ בֵּין שֶׁלֹּא כְּדַרְכָּהּ) הַבְּהֵמָה נִסְקֶלֶת וְהִיא פְּטוּרָה. וְאִם הָיְתָה גְּדוֹלָה שְׁנֵיהֶן נִסְקָלִין. וְאִם הָיְתָה מִבַּת שָׁלֹשׁ שָׁנִים וּלְמַטָּה אֵין הַבְּהֵמָה נִסְקֶלֶת:

18

When a person lies with an animal inadvertently or a woman causes an animal to have relations with her inadvertently,57 the animal is not stoned to death even though they are past majority.58 With regard to [relations with] all the arayot, when one is an adult and the other a minor, the minor is not liable and the adult is liable, as explained. If one is awake and one is sleeping, the one who is sleeping is not liable.59 If one [transgresses] intentionally and the other inadvertently, the one who [transgresses] intentionally is liable60 and the one who transgresses inadvertently must bring a sacrifice. If one acted under duress and one acted willingly, the one who acted under duress is not liable as stated above.61

יח

וְכֵן הַשּׁוֹכֵב עִם הַבְּהֵמָה בִּשְׁגָגָה וְהָאִשָּׁה שֶׁהֵבִיאָה אֶת הַבְּהֵמָה עָלֶיהָ בִּשְׁגָגָה אֵין הַבְּהֵמָה נִסְקֶלֶת עַל יָדָן וְאַף עַל פִּי שֶׁהֵן גְּדוֹלִים. כָּל הָעֲרָיוֹת כֻּלָּן שֶׁהָיָה אֶחָד גָּדוֹל וְאֶחָד קָטָן הַקָּטָן פָּטוּר וְהַגָּדוֹל חַיָּב כְּמוֹ שֶׁבֵּאַרְנוּ. אֶחָד עֵר וְאֶחָד יָשֵׁן הַיָּשֵׁן פָּטוּר. אֶחָד מֵזִיד וְאֶחָד שׁוֹגֵג הַמֵּזִיד חַיָּב וְהַשּׁוֹגֵג מֵבִיא קָרְבָּן. אֶחָד אָנוּס וְאֶחָד בְּרָצוֹן הָאָנוּס פָּטוּר כְּמוֹ שֶׁבֵּאַרְנוּ:

19

The witnesses are not required to see [the precise details] of couple's intimate relations, the man inserting [his organ]as one inserts a piston into a pipe. Instead, once they see them clinging together as is the way of all who engage in relations, they may be executed on the basis of this evidence. We do not say: Maybe he did not insert the corona, because we can assume that in this position, the corona was inserted.62

יט

אֵין הָעֵדִים נִזְקָקִין לִרְאוֹת הַמְנָאֲפִים שֶׁהֶעֱרוּ זֶה בָּזֶה וְהִכְנִיס כְּמִכְחוֹל בִּשְׁפוֹפֶרֶת. אֶלָּא מִשֶּׁיִּרְאוּ אוֹתָן דְּבוּקִין זֶה עִם זֶה כְּדֶרֶךְ כָּל הַבּוֹעֲלִין הֲרֵי אֵלּוּ נֶהֱרָגִין בִּרְאִיָּה זוֹ. וְאֵין אוֹמְרִים שֶׁמָּא לֹא הֶעֱרָה, מִפְּנֵי שֶׁחֶזְקַת צוּרָה זוֹ שֶׁהֶעֱרָה:

20

When an established presumption that people are close relatives has been established, we judge accordingly even though there is no clear proof that they were relatives.63 We give lashes and execute by burning, stoning, and strangulation based on such a presumption.

What is implied? If it is an accepted presumption that a particular woman is a man's sister, daughter, or mother and he had relations with her in the presence of witnesses, he is given lashes or executed by burning or stoning even though there is no clear-cut evidence that the woman is his sister, mother, or daughter, only the accepted presumption.

An incident occurred with a woman who came to Jerusalem carrying an infant on her shoulders and she raised it, [establishing] the assumption that he was her son. [After he grew older,] he had relations with her and they brought her to the court who executed her by stoning.64

A proof of this law can be drawn from the fact that the Torah speaks of the judgment of execution for one who curses his father and strikes his father65 How can we find clear proof that he is his father?66 Instead, we operate according to the existing presumption. So, too, with regard to other relatives, we operate according to the existing presumption.

כ

מִי שֶׁהֻחְזַק בִּשְׁאֵר בָּשָׂר דָּנִין בּוֹ עַל פִּי הַחֲזָקָה. אַף עַל פִּי שֶׁאֵין שָׁם רְאָיָה בְּרוּרָה שֶׁזֶּה קָרוֹב. וּמַלְקִין וְשׂוֹרְפִין וְסוֹקְלִין וְחוֹנְקִין עַל חֲזָקָה זוֹ. כֵּיצַד. הֲרֵי שֶׁהֻחְזַק שֶׁזּוֹ אֲחוֹתוֹ אוֹ בִּתּוֹ אוֹ אִמּוֹ וּבָא עָלֶיהָ בְּעֵדִים הֲרֵי זֶה לוֹקֶה אוֹ נִשְׂרָף אוֹ נִסְקָל וְאַף עַל פִּי שֶׁאֵין שָׁם רְאָיָה בְּרוּרָה שֶׁזּוֹ הִיא אֲחוֹתוֹ אוֹ אִמּוֹ אוֹ בִּתּוֹ אֶלָּא בַּחֲזָקָה בִּלְבַד. וּמַעֲשֶׂה בְּאִשָּׁה אַחַת שֶׁבָּאת לִירוּשָׁלַיִם וְתִינוֹק מֻרְכָּב לָהּ עַל כְּתֵפָהּ וְהִגְדִּילַתּוּ בְּחֶזְקַת שֶׁהוּא בְּנָהּ וּבָא עָלֶיהָ וֶהֱבִיאוּהָ לְבֵית דִּין וּסְקָלוּהָ. רְאָיָה לְדִין זֶה מַה שֶּׁדָּנָה תּוֹרָה בִּמְקַלֵּל אָבִיו וּמַכֶּה אָבִיו שֶׁיּוּמַת. וּמִנַּיִן לָנוּ רְאָיָה בְּרוּרָה שֶׁזֶּה אָבִיו, אֶלָּא בַּחֲזָקָה, כָּךְ שְׁאָר קְרוֹבִים בַּחֲזָקָה:

21

[The following rules apply when] a man and a woman come from overseas, he says: "This is my wife," and she says: "This is my husband." If in [their new] city, he establishes the presumption that she is his wife67 for 30 days,68 we execute [an adulterer who has relations] with her. Within 30 days, however, we do not execute anyone on the presumption that she is a married woman.69

כא

אִישׁ וְאִשָּׁה שֶׁבָּאוּ מִמְּדִינַת הַיָּם הוּא אוֹמֵר זֹאת אִשְׁתִּי וְהִיא אוֹמֶרֶת זֶה בַּעְלִי. אִם הֻחְזְקָה בָּעִיר שְׁלֹשִׁים יוֹם שֶׁהִיא אִשְׁתּוֹ הוֹרְגִין עָלֶיהָ. אֲבָל בְּתוֹךְ הַשְּׁלֹשִׁים יוֹם אֵין הוֹרְגִין עָלֶיהָ מִשּׁוּם אֵשֶׁת אִישׁ:

22

When a woman is presumed to be a niddah among her neighbors,70 her husband is given lashes for [engaging in relations] with her in the niddah state.71

[The following rule applies when] a person issues a warning [not to enter into seclusion with a specific man]72 to his wife and she enters into seclusion with him. If one witness comes and testifies that she was unfaithful,73 her husband was a priest, and he engaged in relations with her afterwards, he receives lashes because of her because he had relations with a zonah.74 Although the fundamental element of this testimony is established by one witness,75 [her conduct caused] her identity to be established as a zonah.76

כב

הָאִשָּׁה שֶׁהֻחְזְקָה נִדָּה בִּשְׁכוּנוֹתֶיהָ בַּעְלָהּ לוֹקֶה עָלֶיהָ מִשּׁוּם נִדָּה. הַמְקַנֵּא לְאִשְׁתּוֹ וְנִסְתְּרָה וּבָא עֵד אֶחָד וְהֵעִיד שֶׁנִּטְמָא וְהָיָה בַּעְלָהּ כֹּהֵן וּבָא עָלֶיהָ אַחַר כָּךְ הֲרֵי זֶה לוֹקֶה עָלֶיהָ מִשּׁוּם זוֹנָה. אַף עַל פִּי שֶׁעִקַּר הָעֵדוּת בְּעֵד אֶחָד כְּבָר הֻחְזְקָה בְּזוֹנָה:

23

When a father says: "My daughter is consecrated to this person," his word is accepted77 and she must marry him.78 [Nevertheless,] if she acts unfaithfully while [consecrated] to him, she is not stoned to death79 because of her father's statements unless there are witnesses [who testify] that she was consecrated in their presence.80

Similarly, when a woman states: "I have been consecrated," [if it is discovered that she engaged in relations with another man,] she is not executed on the basis of her own statements. Instead, there must be witnesses [that she was consecrated] or she must have established a common conception [that this was the case].

כג

הָאָב שֶׁאָמַר בִּתִּי זוֹ מְקֻדֶּשֶׁת הִיא לָזֶה אַף עַל פִּי שֶׁהוּא נֶאֱמָן וְתִנָּשֵׂא לוֹ אִם זִנְּתָה אֵינָהּ נִסְקֶלֶת עַל פִּיו עַד שֶׁיִּהְיוּ שָׁם עֵדִים שֶׁנִּתְאָרְסָה בִּפְנֵיהֶם. וְכֵן הָאִשָּׁה שֶׁאָמְרָה מְקֻדֶּשֶׁת אֲנִי אֵינָהּ נֶהֱרֶגֶת עַל פִּיהָ עַד שֶׁיִּהְיוּ שָׁם עֵדִים אוֹ תֻּחְזַק:

Footnotes
1.

In Hilchot Ishut 1:5, the Rambam defines the term arayot as "[Those women] with whom relations are forbidden by Scriptural Law and with whom relations are punishable by kereit as enumerated in Parshas Acharei Mot.

2.

Literally, the soul's being cut off. This involves premature death in this world (before the age of 50, Mo'ed Kattan 28a) and the soul not meriting a portion in the world to come (Hilchot Teshuvah 8:1).

3.

The prohibition and the punishment is incumbent on them both equally.

4.

This term is used to distinguish the sacrifice from the "adjustable guilt offering" (korban olah viyoreid) that is brought for certain transgressions. See Hilchot Shegagot ch. 1 which describes the fixed sin offering , and ch. 10 which describes the adjustable guilt offering.

5.

See Halachot 4-6.

6.

Even if they cannot be executed because the court cannot find two appropriate witnesses, they are punishable by kerait.

7.

See Hilchot Sanhedrin 12:2 which describes the obligation to give a warning and states: "How is a warning administered? We tell him: 'Desist..." or 'Do not do it. It is a transgression and you are liable to be executed by the court....'.

8.

The Rambam's ruling reflects a unique instance in which he uses the wording of a Talmudic passage for the opposite intent. Sanhedrin 8b quotes Rabbi Yossi bar Rabbi Yehudah as coining the expression the Rambam employs: "A warning was instituted only to make a distinction between a person who transgresses inadvertently and one who transgresses intentionally." Rabbi Yossi, however, used this concept as support for his contention that a Torah scholar does not need a warning. Since he is knowledgeable, we assume that he is familiar with the laws. If he is transgressing, we can conclude that he is doing so as a conscious act of rebellion. Hence, he is deserving of punishment.

The Rambam differs, maintaining that even a Torah scholar might not be aware that his act violates a particular prohibition. We do not suspect that he did know the law, it was however possible that he was aware of the prohibition, but not know that it applied in this instance, e.g., he knew that adultery was forbidden, but did not know whether or not the woman was married or related to him. The warning will clarify that for him (Maggid Mishneh; Kessef Mishneh to Hilchot Sanhedrin, loc. cit.).

9.

See Hilchot Sanhedrin 15:1-5 for a description of these different modes of execution.

10.

Even if she is not his mother.

11.

The wording of the Hebrew emphasizes that his son married the woman, not merely engaged in relations with her.

12.

I.e., from a previous marriage.

13.

After his wife's death, her daughter is still prohibited to him and they are punishable by kerait. There is, however, no punishment to be administered by an earthly court. As stated in Chapter 2, Halachah 8, this applies to any woman prohibited because they are closely related to the person's wife.

14.

Sanhedrin 52b explains the rationale for this statement as follows: Just as death at the hand of heaven does not leave a mark; so, too, unless another form of execution is explicitly stipulated, death at the hand of the court should not leave a sign. This alludes to strangulation in which the condemned's body is not marred at all.

15.

See Chapter 3, Halachah 3.

16.

According to Jewish law, marriage is a two-staged process involving consecration (erusin or kiddushin) and marriage (nissuin). Consecration establishes the bond between a man and a woman. From that time onward, she is forbidden to engage in relations with other men. It is not until marriage, however, that the husband and wife relationship is consummated and the couple begin their life together.

In the present era, both of these stages of marriage are completed at the same time. In the Biblical and Talmudic eras, it was customary to wait a year between these two stages.

17.

I.e., between the age of twelve and twelve and a half and she is a virgin. Otherwise, adultery is punished by strangulation.

18.

See Chapter 3, Halachah 4.

19.

Sanhedrin 53a derives this concept from the fact that this phrase is used with regard to a person who divines with a yidoni concerning whom Leviticus 20:27 explicitly states that he should be stoned to death.

20.

I.e., the punishment of kerait is not mentioned with regard to them. They include nine forbidden relationships, e.g., a mamzer or a mamzeret to an acceptable Jew or a divorcee to a priest. These nine are mentioned in Hilchot Ishut 1:7.

21.

Literally, "secondary." In Hilchot Ishut 1:6, the Rambam explains that this term refers to "women with whom relations are forbidden according to the Oral Tradition. These prohibitions are Rabbinic in origin." He continues listing 20 such women with whom our Sages forbade relations as a safeguard for the Scriptural prohibitions. For example, as a safeguard against relations with one's mother, the Sages forbade relations with both of one's grandmothers.

22.

Lashes mandated by Rabbinic decree which are given as punishment for the violation of Rabbinic commandments and for other purposes. See Hilchot Sanhedrin 16:3, 18:5, which mentions this punishment.

23.

Relationships which the Torah does not explicitly prohibit, but the prohibition can be derived from a positive commandment. For example, there is no prohibition against a High Priest marrying a non-virgin. Nevertheless, since he is commanded (Leviticus 21:13) to marry a virgin bride, we assume that it is forbidden for him to marry a woman who is not a virgin. There are two other such relationships: Egyptian and Edomite converts who cannot marry into the Jewish people until the third generation. See Hilchot Ishut 1:8.

24.

See Hilchot Sanhedrin 24:4 which states that the court may administer punishment that is not required by Torah Law if they feel that it will lead to the moral development of the Jewish people.

25.

The verse cited speaks of the rape of a consecrated maiden in a field where even if she had called for help, there would have been none to save her. Since she was compelled to perform the transgression, she is not held responsible.

26.

The Ra'avad takes issue with the Rambam on this point, explaining that if a man develops an erection with the intent of having relations with his wife and while he is still erect, he is compelled to engage in forbidden relations, he is considered to have acted against his will. The Maggid Mishneh states that even the Rambam would accept such a ruling.

The Maggid Mishneh states, however, that there are authorities who maintain that if a man is compelled to engage in relations at the pain of death, he is considered to have been compelled to act against his will. Yevamot 53b, the source for the Rambam's ruling, is speaking about a situation when a person is not compelled by forces beyond his control. Other authorities maintain that he is liable, even in such a situation. It is, however, unlikely that the Rambam would maintain that the court should actually carry out capital punishment. For in Hilchot Yesodei HaTorah 5:4, the Rambam writes that a person who is compelled by gentiles to engage in adulterous or incestuous sexual relations should sacrifice his life rather than do so. If, however, he fails to chose martyrdom and transgresses, he should not be punished by the court. It would be difficult to explain that ruling applies only in a situation when he had already developed an erection for a woman with whom he was permitted to engage in relations and was then compelled to engage in forbidden relations. Thus it would appear that the man is not held responsible for capital punishment engaging in relations at the threat of death. [See Bayit Chadash (Yoreh De'ah 20)].

See also the Kessef Mishneh to Hilchot Sanhedrin 20:2 who states that since developing an erection comes as a result of the man's own pleasure and desire, he is considered to have acted willingly even though he was compelled to engage in the relations.

27.

Ketubot 51a states that even if the woman says: "Let him continue, for had he not taken me by force, I would have hired him," she is considered as acting under duress and freed of liability. For it was not until after she was overcome by desire that she consented.

28.

This expression is used with regard to relations with a woman in the nidah state. From that instance, Yevamot 54a derives a connection to the entire Torah.

29.

If, however, the man merely touches the entrance to the vaginal channel with his organ, he is not liable (see Beit Shmuel 20:3).

30.

Based on Leviticus 19:13, Sanhedrin 54a states that both forms of intercourse are equally forbidden.

31.

Or Sameach notes that Leviticus 18:23 explicitly mentions a woman standing while engaged in forbidden relates.

32.

I.e., if a priest's daughter or a priest's wife is involved in such a sexual act, she is forbidden to partake of terumah just as if she would be forbidden to do so had she engaged in ordinary relations (see Hilchot Terumah 6:6).

33.

"Stripes for rebellious conduct" is a punishment which is not dependent on the Torah's binding laws, but rather is left to the court's jurisdiction based on its conception of what is appropriate for the moral standards of the persons involved and the community. Although such an act is not formally considered as sexual relations, chastisement is necessary to prevent such behavior from continuing.

34.

The Hebrew term kimitasek literally means "as one was going about his business," i.e., he was performing other actions and without any intent, the forbidden act was performed.

35.

Since he derived pleasure from the physical act, he is liable even though originally he had no intent (Yevamot 62b).

This refers only to liability for a sin offering for inadvertent transgression. Needless to say, he is not liable for punishment by the court, because in such instances, he must acknowledge a warning (Maggid Mishneh).

The commentaries question how sexual relations can be performed "as one was going about his business." With regard to the Sabbath prohibitions, we can appreciate the use of such a term. For example, a person intended to cut produce that was not connected to the ground and in the course of doing so also cut produce that was connected to the ground. But with regard to sexual relations, how is it possible to say that a man performed the act without intention? As stated above, "an erection is always a willful act."

Based on Hilchot Shegagot 2:7, the Maggid Mishneh interprets this as referring to an instance in which a person intended to engage in relations with his wife, but accidentally engaged in relations with his sister.

36.

The Ra'avad questions the Rambam's statements and the Maggid Mishneh states that this clause is a printing error, for there is no sacrifice associated with these transgressions. The Kessef Mishneh offers a resolution, explaining that although he is not punished by an earthly court, nor is he obligated to bring a sacrifice, the transgressor is liable to God. He will reckon with the transgression on His scales of judgment. Rav David Arameah states that this teaches that the person has an obligation to confess his sin.

37.

Yevamot 55b derives this concept through the techniques of Biblical exegesis.

38.

An animal or a person that is sick or wounded and will die within a year.

39.

I.e., the esophagus and the windpipe were cut.

40.

I.e., she reaches the date of her third birthday.

41.

For a minor is never liable for punishment. Even though she consented to the transgression, she is not subjected to punishment, because she is not considered as responsible for her actions (Nidah 44b). Despite the fact that the woman is not punished, the man receives the punishment mandated by the transgression.

42.

For until that age, her signs of virginity will regenerate and hence, relations are not of consequence. Nevertheless, even when the girl is below that age, it is forbidden to enter into such relations (the Rambam's Commentary to the Mishnah, Sanhedrin 7:4).

43.

In his commentary to the Mishnah (ibid. ), the Rambam states that the punishment of kerait is not given until the violator is 20 years of age. Until that age, the person is considered immature and hence, not held liable by the heavenly court.

44.

For below that age, relations are not of consequence.

45.

For sexual relations with a male below the age of nine are not of consequence. Nevertheless, it is forbidden to enter into such relations (the Rambam's Commentary to the Mishnah, Sanhedrin 7:4).

46.

Although he is not liable according to Scriptural Law, his act certainly warrants punishment that will discourage him from continuing this pattern of conduct.

47.

A person with male and female sexual characteristics.

48.

For there is a doubt regarding the halachic status of such an individual.

49.

A person whose genital are is covered with a mass of flesh and whose gender is impossible to detect. With regard to an androgynus, the doubt concerns the individual's halachic status. With regard to the tumtum, the doubt concerns the actual facts: Which gender is covered by the mass of flesh?

50.

Since there is a possibility that such relations are prohibited, this punishment should be given to discourage them.

51.

I.e., although there is a question regarding the status of the androgynus, relations between him and her are permitted (Maggid Mishneh).

52.

Since the animal was the direct cause for the person's death, the animal is also executed. Alternatively, since the person was engaged in an unseemly transgression due to the animal, it is executed (Sanhedrin 54a).

53.

And it is forbidden to benefit from that animal (Hilchot Issurei Mizbeach 4:2).

54.

For a minor is never liable for punishment. Sanhedrin 55b explains that based on the first rationale mentioned in the previous note, one might think that the animal should not be executed. Nevertheless, the person is worthy of execution because of his deed, it is only that the Torah has pity on him. And the Torah has pity on the person and not on the animal.

55.

For she is not of age.

56.

For this is not considered relations.

57.

The question how such acts can be considered inadvertent has been raised by the commentaries. Among the answers given is that the person was not aware that the act which he performed was forbidden.

58.

Since the person is not executed, according to the first of the rationales mentioned above, the animal should not be executed. Since our Sages did not conclude which of the rationales should prevail, the matter is left undecided and therefore the animal is allowed to live.

59.

The person sleeping is considered as if he performed the forbidden act under duress.

60.

For punishment by the court or at the hand of heaven.

61.

Halachah 13.

62.

This and the following halachot are based on the principle that a chazzakah, a presumption that is firmly established, is binding and considered as actual fact.

63.

I.e., as long as it is the popular conception that two individuals are related, we judge accordingly. It is not necessary for the court to bring testimony from the midwife that in fact this-and-this woman bore this-and-this child.

64.

The punishment given for relations between a mother and her son.

66.

For we have no way of establishing the fact that his father conceived him.

67.

By living together as husband and wife in a way obvious to all.

68.

We see the concept of 30 days used to establish a person's identity in another context: After that period of time, his name may be mentioned in a legal document without fear of deception (Chelkat Mechokek 19:3; see Hilchot Malveh ViLoveh 24:4).

Although capital punishment is not enforced in the present age, there are certain aspects of this halachah which are relevant, for there are several halachic contexts in which it is necessary to determine whether or not a woman is married. Today, with the advances in recording keeping and communication, it is customary for the Jewish community - particularly, in Eretz Yisrael and in a partial way, in certain places in the Diaspora - to keep records and to be able to verify whether or not a couple are married.

69.

The transgressors are given "stripes for rebellious conduct" for certainly there is at least a possibility that the couple who claim to be husband and wife are married (Rabbi Akiva Eiger to Halachah 15).

70.

I.e., she wore clothes that she set aside to wear while she is in her niddah state. See Turei Zahav 185:2 who states that even if the woman later gives an explanation for her conduct, her explanation is not accepted and we consider her status to have changed. The Siftei Cohen and others, however, differ. See Chapter 4, Halachah 10.

71.

A man is forbidden to have relations with a woman while she is in the niddah state. In this instance, although we do not know for certain that she was in the niddah state, we act according to the presumption created by her conduct.

72.

When a man issues such a warning to his wife and she violates it, he is forbidden to engage in relations with her until she drinks the sotah waters (Hilchot Sotah 1:2).

73.

In which instance, she is not given the sotah waters to drink. Instead, her husband is required to divorce her (ibid.:14).

74.

The term zonah is halachicly defined as any woman who engages in relations with a man forbidden to her. The term literally means "a prostitute" or "a promiscuous woman." Here, however, the term is given the specific halachic meaning mentioned above. Whether she willingly or unwillingly engages in such relations, she is placed in this category. A priest is forbidden to engage in relations with such a woman. See Chapter 18, Halachah 12.

75.

One might think that it was necessary for the change in the status of the woman to be established through the testimony of two witnesses.

76.

I.e., since she violated the warning her husband gave her, we assume that she acted unfaithfully. Hence, the testimony of one witness is sufficient to bring about a change in her status.

The Ra'avad differs with the Rambam and maintains that the man is given lashes for violating a different prohibition, the prohibition against relations with a wife who has been unfaithful. The Ra'avad, however, speaks of the woman being raped and maintains that a woman is not placed in the category of a zonah when only one person observes her being raped.

The Maggid Mishneh questions the Ra'avad's statements, noting that the Rambam does not mention rape at all. The Maggid Mishneh also states that the Rambam does not require lashes when a man engages in relations with his wife after she was unfaithful. The Kessef Mishneh questions that statement, noting that in Hilchot Gerushin 11:14, the Rambam specifically rules that a man is given lashes in such a situation. See also the notes to Chapter 18, Halachah 7.

77.

We are speaking about a girl who is a na'arah between the age of twelve and twelve and a half. Her father has the right to consecrate her to whoever he desires. Therefore we accept his word when he states that he consecrated her, as Deuteronomy 22:16 states: "I gave my daughter to this man" (Kiddushin 64a).

(A father's word is also accepted with regard to consecrating his daughter is she is younger. We are, nevertheless, compelled to say that here we are speaking about a na'arah, because punishment is mentioned and a girl below the age of twelve is never punished by the court.)

78.

Or undergo formal divorce proceedings before marrying another man.

79.

The punishment given for relations with a consecrated maiden.

80.

Although the father's statement is given a certain amount of legal credibility, it is not considered as sufficient basis for capital punishment (Kiddushin 63b).

Issurei Biah - Chapter Two

1

The [following] four women: the wife of a man's father, the wife of his son, the wife of his brother, and the wife of the brother of his father, are considered an ervah1 for him forever, whether after consecration or after marriage, in the lifetime of their husbands or after their deaths, [even] if they were divorced - with the exception of the wife of one's brother who did not leave a son.2

If a man engages in relations with one of these woman during the lifetime of their husbands, he is liable for two [sin-offerings3]: for incestuous relations and adulterous relations, for both of these prohibitions take effect at the same time.4

א

אֵשֶׁת אָבִיו וְאֵשֶׁת בְּנוֹ וְאֵשֶׁת אָחִיו וְאֵשֶׁת אֲחִי אָבִיו אַרְבַּעְתָּן עֶרְוָה עָלָיו לְעוֹלָם. בֵּין מִן הָאֵרוּסִין בֵּין מִן הַנִּשּׂוּאִין. בֵּין שֶׁנִּתְגָּרְשׁוּ בֵּין שֶׁלֹּא נִתְגָּרְשׁוּ. בֵּין בְּחַיֵּי בַּעְלֵיהֶן בֵּין אַחַר מִיתַת בַּעְלֵיהֶן. חוּץ מֵאֵשֶׁת אָחִיו שֶׁלֹּא הִנִּיחַ בֵּן. וְאִם בָּא עַל אַחַת מֵהֶן בְּחַיֵּי בַּעְלָהּ חַיָּב שְׁתַּיִם. מִשּׁוּם שְׁאֵר בָּשָׂר וּמִשּׁוּם אֵשֶׁת אִישׁ. שֶׁהֲרֵי שְׁנֵיהֶן הָאִסּוּרִין בָּאִין כְּאֶחָד:

2

Therefore a person who engages in relations with his mother who is his father's wife is liable for two [sin-offerings], one because [the woman is] his mother and one because she is his father's wife. [This applies] both during his father's lifetime and after his father's death.5

The wives of both a person's paternal brother and his maternal brother are considered an ervah for him. [This applies regardless if he and/or his brother were conceived] in marriage or in a promiscuous relationship.6 The wife of the maternal brother of a man's father is, however, forbidden [only] as a shniyah, as explained.7 Both a person's paternal sister and his maternal sister are considered an ervah for him. [This applies regardless if he and/or his sister were conceived] in marriage or in a promiscuous relationship, e.g., his mother or his father acted promiscuously with others and his sister was conceived promiscuously, as [implied by Leviticus 18:9]: "one born at home or one born beyond [marriage]."

ב

לְפִיכָךְ הַבָּא עַל אִמּוֹ שֶׁהִיא אֵשֶׁת אָבִיו חַיָּב שְׁתַּיִם. בֵּין בְּחַיֵּי אָבִיו בֵּין לְאַחַר מִיתַת אָבִיו. אַחַת מִשּׁוּם אִמּוֹ וְאַחַת מִשּׁוּם אֵשֶׁת אָבִיו. אֶחָד אָחִיו מֵאָבִיו אוֹ אָחִיו מֵאִמּוֹ. בֵּין מִנִּשּׂוּאִין בֵּין מִזְּנוּת. אִשְׁתּוֹ עֶרְוָה עָלָיו. אֲבָל אֵשֶׁת אֲחִי אָבִיו מִן הָאֵם הֲרֵי הִיא שְׁנִיָּה כְּמוֹ שֶׁבֵּאַרְנוּ. וְאֶחָד אֲחוֹתוֹ מֵאָבִיו אוֹ מֵאִמּוֹ. בֵּין מִן הַנִּשּׂוּאִין בֵּין מִזְּנוּת. כְּגוֹן שֶׁזָּנְתָה אִמּוֹ אוֹ אָבִיו עִם אֲחֵרִים וְהָיְתָה לוֹ אָחוֹת מִזְּנוּת. הֲרֵי זוֹ עֶרְוָה עָלָיו שֶׁנֶּאֱמַר (ויקרא יח ט) "מוֹלֶדֶת בַּיִת אוֹ מוֹלֶדֶת חוּץ":

3

The daughter of his father's wife who is his paternal sister is an ervah for him, [as ibid.:11] states: "the nakedness of the daughter of your father's wife, your father's offspring." If, however, a man's father marries a woman and she has a daughter from another man, that daughter is permitted to him.8 She is not "your father's offspring." Behold one is already liable for [relations] with her because she is a sister, why then [does the Torah mention]: "the daughter of your father's wife"? So that one should be liable for this prohibition as well.9

ג

בַּת אֵשֶׁת אָבִיו שֶׁהִיא אֲחוֹתוֹ מֵאָבִיו הֲרֵי הִיא עֶרְוָה עָלָיו שֶׁנֶּאֱמַר (ויקרא יח יא) "עֶרְוַת בַּת אֵשֶׁת אָבִיךָ מוֹלֶדֶת אָבִיךָ". אֲבָל אִם נָשָׂא אָבִיו אִשָּׁה וְיֵשׁ לָהּ בַּת מֵאִישׁ אַחֵר אוֹתָהּ הַבַּת מֻתֶּרֶת לוֹ שֶׁאֵין זוֹ מוֹלֶדֶת אָבִיו. וַהֲלֹא מִשּׁוּם אֲחוֹתוֹ חַיָּב עָלֶיהָ וְלָמָּה נֶאֱמַר (ויקרא יח יא) "בַּת אֵשֶׁת אָבִיךָ" לְחַיֵּב עָלֶיהָ אַף מִשּׁוּם זֶה:

4

Therefore a man who engages in relations with his sister who was born to his father's wife in marriage is liable for two [sin offerings]: one because of "the nakedness of your sister" and one because of "the nakedness of the daughter of your father's wife." If, however, one's father raped or seduced a woman and conceived a daughter, one is liable only for having relations with one's sister. For the daughter of the woman who was raped is not the daughter of the wife of one's father.10

ד

לְפִיכָךְ הַבָּא עַל אֲחוֹתוֹ שֶׁהִיא בַּת נְשׂוּאַת אָבִיו חַיָּב שְׁתַּיִם. אַחַת מִשּׁוּם (ויקרא יח ט) "עֶרְוַת אֲחוֹתְךָ" וְאַחַת מִשּׁוּם (ויקרא יח יא) "עֶרְוַת בַּת אֵשֶׁת אָבִיךָ". אֲבָל אִם אָנַס אָבִיו אִשָּׁה אוֹ פִּתָּה אוֹתָהּ וְהוֹלִיד מִמֶּנָּה בַּת וּבָא עָלֶיהָ אֵינוֹ חַיָּב אֶלָּא מִשּׁוּם אֲחוֹתוֹ בִּלְבַד. שֶׁאֵין בַּת הָאֲנוּסָה בַּת אֵשֶׁת אָבִיו:

5

The sister of his mother is considered an ervah for him. [This applies to both her paternal and maternal sister and applies regardless whether she [was conceived] in marriage or in a promiscuous relationship. Similarly, his father's sister - both his paternal and maternal sister, whether she [was conceived] in marriage or in a promiscuous relationship - is considered an ervah for him.

ה

אֲחוֹת אִמּוֹ בֵּין אֲחוֹתָהּ מֵאָבִיהָ בֵּין אֲחוֹתָהּ מֵאִמָּהּ בֵּין מִן הַנִּשּׂוּאִין בֵּין מִזְּנוּת הֲרֵי זוֹ עֶרְוָה עָלָיו מִשּׁוּם אֲחוֹת אֵם. וְכֵן אֲחוֹת הָאָב בֵּין מִן הָאֵם בֵּין מִן הָאָב בֵּין מִן הַנִּשּׂוּאִין בֵּין מִזְּנוּת הֲרֵי זוֹ עֶרְוָה עָלָיו מִשּׁוּם אֲחוֹת אָב:

6

When a person has promiscuous relations with a woman and conceives a daughter with her, that daughter is considered an ervah for him.11 Although the Torah does not state: "Do not reveal the nakedness of your daughter," the prohibition is of Scriptural origin. Since [the Torah] forbade [relations] with the daughter of one's daughter, it did not mention [the prohibition against] one's daughter. This is not from the words of our Sages.12 Therefore a person who has relations with a daughter born of his wife is liable for two [sin offerings],13 for [relations with] his daughter and for relations with a woman and her daughter.14

ו

הַבָּא עַל אִשָּׁה דֶּרֶךְ זְנוּת וְהוֹלִיד מִמֶּנָּה בַּת אוֹתָהּ הַבַּת עֶרְוָה עָלָיו מִשּׁוּם בִּתּוֹ. וְאַף עַל פִּי שֶׁלֹּא נֶאֱמַר בַּתּוֹרָה עֶרְוַת בִּתְּךָ לֹא תְּגַלֶּה מֵאַחַר שֶׁאָסַר בַּת הַבַּת שָׁתַק מִן הַבַּת וְאִסּוּרָהּ מִן הַתּוֹרָה. וְאֵינוֹ מִדִּבְרֵי סוֹפְרִים. לְפִיכָךְ הַבָּא עַל בִּתּוֹ מִנְּשׂוּאָתוֹ חַיָּב שְׁתַּיִם. מִשּׁוּם בִּתּוֹ וּמִשּׁוּם עֶרְוַת אִשָּׁה וּבִתָּהּ:

7

When a person consecrates a woman, her close relatives - six women - become forbidden to him as an ervah forever. This applies whether he consummates [the bond through nisuin] or divorces her, in the lifetime of his wife and after her death. They are: a) her mother, b) her mother's mother, c) her father's mother, d) her daughter,15 e) her daughter's daughter, and f) her son's daughter. If he has relations with one of these women during the lifetime of his wife, both [he and she] are executed by burning.

ז

כֵּיוָן שֶׁקִּדֵּשׁ אָדָם אִשָּׁה נֶאֶסְרוּ עָלָיו מִקְּרוֹבוֹתֶיהָ שֵׁשׁ נָשִׁים. וְכָל אַחַת מֵהֶן עֶרְוָה עָלָיו לְעוֹלָם בֵּין כָּנַס בֵּין גֵּרֵשׁ בֵּין בְּחַיֵּי אִשְׁתּוֹ בֵּין לְאַחַר מוֹתָהּ. וְאֵלּוּ הֵן. אִמָּהּ וְאֵם אִמָּהּ וְאֵם אָבִיהָ וּבִתָּהּ וּבַת בִּתָּהּ וּבַת בְּנָהּ. וְאִם בָּא עַל אַחַת מֵהֶן בְּחַיֵּי אִשְׁתּוֹ שְׁנֵיהֶן נִשְׂרָפִין:

8

If he has relations with one of these women after his wife's death, they are liable for kerait,16 but they are not executed by the court, as [derived from Leviticus 20:14]: "In fire, he and they shall be burnt." [This implies17 that only] when both women - his wife and the woman with whom he had relations - are alive, he and the ervah are executed by burning. When both [women] are not alive, there is no execution by burning.18

ח

בָּא עֲלֵיהֶן לְאַחַר מִיתַת אִשְׁתּוֹ הֲרֵי אֵלּוּ בְּכָרֵת וְאֵין בָּהֶן מִיתַת בֵּית דִּין. שֶׁנֶּאֱמַר (ויקרא כ יד) "בָּאֵשׁ יִשְׂרְפוּ אֹתוֹ וְאֶתְהֶן". בִּזְמַן שֶּׁשְּׁתֵּיהֶן קַיָּמוֹת שֶׁהֵן אִשְׁתּוֹ וְזוֹ שֶׁבָּא עָלֶיהָ הֲרֵי הוּא וְהָעֶרְוָה נִשְׂרָפִין. וּבִזְמַן שֶׁאֵין שְׁתֵּיהֶן קַיָּמוֹת אֵין שָׁם שְׂרֵפָה:

9

Similarly, the sister of his wife is considered an ervah for him until his wife dies.19 Both her maternal sister and her paternal sister, whether conceived in marriage or promiscuously, are considered as an ervah for him.

ט

וְכֵן אֲחוֹת אִשְׁתּוֹ עֶרְוָה עָלָיו עַד שֶׁתָּמוּת אִשְׁתּוֹ. בֵּין אֲחוֹתָהּ מֵאִמָּהּ בֵּין אֲחוֹתָהּ מֵאָבִיהָ בֵּין מִן הַנִּשּׂוּאִין בֵּין מִזְּנוּת הֲרֵי זוֹ עֶרְוָה עָלָיו:

10

If a man transgressed and engaged in relations with one of these seven women, whether intentionally or inadvertently, although he and the woman are liable for execution by the court or kerait, he is not forbidden to engage in relations with his wife.20 The only exception is [when he engages in relations with] the sister of the woman he consecrated. In this instance, his wife is forbidden to him, as explained in Hilchot Gerushin.21

י

עָבַר וְנָאַף עִם אַחַת מִשֶּׁבַע נָשִׁים אֵלּוּ בֵּין בְּזָדוֹן בֵּין בִּשְׁגָגָה אַף עַל פִּי שֶׁהוּא וְהַנּוֹאֶפֶת בְּמִיתַת בֵּית דִּין אוֹ בְּכָרֵת לֹא נֶאֶסְרָה אִשְׁתּוֹ עָלָיו חוּץ מֵאֲחוֹת אֲרוּסָתוֹ שֶׁהִיא אוֹסֶרֶת אִשְׁתּוֹ עָלָיו כְּמוֹ שֶׁבֵּאַרְנוּ בְּהִלְכוֹת גֵּרוּשִׁין:

11

When a man engages in promiscuous relations with a woman, the seven relatives mentioned above are not forbidden to him [according to Scriptural Law].22 Nevertheless, our Sages23 prohibited anyone who had promiscuous relations with a woman from marrying one of these seven relatives during the promiscuous woman's lifetime.24 [The rationale is that] the promiscuous woman will come to visit her relatives. He will thus enter into solitude with her. [Since] he is familiar with her, we fear that they will transgress and thus he will engage in relations with an ervah.25

Even if a man is merely suspected of relations with a woman,26 he should not marry one of her relatives until the woman with whom he was suspected of having relations died. If, however, he married the relative of the woman with whom he was suspected of having relations, he should not divorce her.

יא

הַבּוֹעֵל אִשָּׁה דֶּרֶךְ זְנוּת לֹא נֶאֶסְרוּ עָלָיו קְרוֹבוֹתֶיהָ שֶׁהֵן הַשֶּׁבַע נָשִׁים שֶׁאָמַרְנוּ. אֲבָל חֲכָמִים אָסְרוּ עַל מִי שֶׁנָּאַף עִם אִשָּׁה לִשָּׂא אַחַת מִן הַשֶּׁבַע נָשִׁים קְרוֹבוֹתֶיהָ כָּל זְמַן שֶׁהַזּוֹנָה קַיֶּמֶת. מִפְּנֵי שֶׁהַזּוֹנָה בָּאָה לִקְרוֹבוֹתֶיהָ לְבַקֵּר אוֹתָן וְהוּא מִתְיַחֵד עִמָּהּ וְלִבּוֹ גַּס בָּהּ וְיָבוֹא לִידֵי עֲבֵרָה שֶׁיִּבְעל הָעֶרְוָה. וְלֹא עוֹד אֶלָּא אֲפִלּוּ נִטְעַן עַל אִשָּׁה הֲרֵי זֶה לֹא יִשָּׂא אַחַת מִקְּרוֹבוֹתֶיהָ עַד שֶׁתָּמוּת זוֹ שֶׁנִּטְעַן עָלֶיהָ. וְאִם כָּנַס הַקְּרוֹבָה שֶׁזָּנָה עִם קְרוֹבוֹתֶיהָ לֹא יוֹצִיא:

12

When a person was suspected of having relations with an ervah or a rumor to that effect was circulated, he should not dwell together with her in the same lane or appear in the same neighborhood.27 An incident occurred concerning a man who was rumored [to have engaged in relations] with his mother-in-law and our Sages had him beaten28 because he passed by the entrance to her home.

יב

מִי שֶׁנִּטְעַן עַל עֶרְוָה אוֹ שֶׁיָּצָא לוֹ שֵׁם רַע עִמָּהּ לֹא יָדוּר עִמָּהּ בְּמָבוֹי אֶחָד וְלֹא יֵרָאֶה בְּאוֹתָהּ שְׁכוּנָה. וּמַעֲשֶׂה שֶׁהָיוּ מְרַנְּנִין אַחֲרָיו עִם חֲמוֹתוֹ וְהִכּוּ אוֹתוֹ חֲכָמִים מַכַּת מַרְדּוּת מִפְּנֵי שֶׁעָבַר עַל פֶּתַח בֵּיתָהּ:

13

When a person has promiscuous relations with a woman and her daughter or a woman and her sister or the like, it is as if he had relations with two unrelated woman. One is considered an ervah because of the other only in the instance of marriage, not in an instance of promiscuity. Similarly, if a man's father, son, brother, or father's brother raped a woman or seduced her, she is permitted to him and he may marry her. [The prohibition involving these individuals] mentions "the wife of" and here there is no context of marriage.

יג

הַבָּא עַל אִשָּׁה וּבִתָּהּ דֶּרֶךְ זְנוּת אוֹ עַל אִשָּׁה וַאֲחוֹתָהּ וְכַיּוֹצֵא בָּהֶן הֲרֵי זֶה כְּמִי שֶׁבָּא עַל שְׁתֵּי נָשִׁים נָכְרִיּוֹת שֶׁאֵין נַעֲשׂוֹת עֶרְוָה זוֹ עִם זוֹ אֶלָּא בְּנִשּׂוּאִין לֹא בִּזְנוּת. וְכֵן אִם אָנַס אָבִיו אוֹ בְּנוֹ אוֹ אָחִיו אוֹ אֲחִי אָבִיו אִשָּׁה אוֹ פִּתָּה אוֹתָהּ הֲרֵי זוֹ מֻתֶּרֶת לוֹ וְיִשָּׂאֶנָּה שֶׁלֹּא נֶאֱמַר אֶלָּא אֵשֶׁת וְאֵין כָּאן אִישׁוּת:

14

When a man's father or son marries a woman, that man may marry her daughter or her mother as we explained.29 A person may marry the wife of his brother's son.30 A man may marry a woman and her sister's daughter or her brother's daughter at the same time. It is a mitzvah from the Sages for a man to marry his sister's daughter,31 as [alluded to by Isaiah 58:7]: "Do not turn away from your own flesh." This law also applies to his brother's daughter.32

יד

אָבִיו אוֹ בְּנוֹ שֶׁנָּשָׂא אִשָּׁה הֲרֵי זֶה מֻתָּר לִשָּׂא בִּתָּהּ אוֹ אִמָּהּ כְּמוֹ שֶׁבֵּאַרְנוּ. וּמֻתָּר לְאָדָם לִשָּׂא אֵשֶׁת בֶּן אָחִיו. וְנוֹשֵׂא אָדָם אִשָּׁה וּבַת אֲחוֹתָהּ אוֹ בַּת אָחִיהָ כְּאַחַת. וּמִצְוַת חֲכָמִים שֶׁיִּשָּׂא אָדָם בַּת אֲחוֹתוֹ וְהוּא הַדִּין לְבַת אָחִיו שֶׁנֶּאֱמַר (ישעיה נח ז) "וּמִבְּשָׂרְךָ לֹא תִתְעַלָּם":

Footnotes
1.

The singular of the term arayot mentioned in the first chapter.

2.

When a man dies childless, one of the brothers of the deceased is obligated to marry his widow to propagate his name. This obligation, yibbum in Hebrew, is described in Deuteronomy, ch. 25, and in Hilchot Yibbum ViChalitzah.

3.

I.e., if he transgresses inadvertently. If he transgresses intentionally, he is liable for execution, by stoning for relations with his father's wife and his son's wife, and by strangulation for relations with his brother's wife and the wife of his father's brother. (For the latter two transgressions are punishable by kerait and so he receives the penalty for adultery alone.)

4.

See Chapter 17, Halachah 8, and notes where this concept is explained.

5.

Since the Rambam speaks of laws that apply after the father's death, he mentions only two prohibitions. During the father's lifetime, he is liable for a third prohibition: relations with a married woman.

6.

For the prohibition against relations with all blood relatives applies regardless of whether the person was conceived within marriage or outside of it.

7.

Hilchot Ishut 1:5. This is merely a Rabbinical prohibition.

8.

Even if they were raised in the same household like a brother and a sister, marriage between them is permitted. We are not considered with the possible impression such a union might create [Shulchan Aruch (Even HaEzer 15:11)].

9.

And thus be required to bring two sin offerings.

10.

This applies even if afterwards, the father marries the woman who he raped or seduced (Minchat Chinuch, mitzvah 196).

11.

The fact that her mother was not married to him is not significant.

12.

The Rambam's statements touch on an involved issue. In his Sefer HaMitzvot (General Principle 2), he writes that every concept derived through the principles of Biblical exegesis has the power of Scriptural Law. Nevertheless, commandments derived through these principles are not considered as part of the 613 mitzvot, but are instead "from the words of our Sages."

The prohibition against relations with one's daughter, the Rambam states, is not in that category. Although it is not explicitly mentioned in the Torah and Sanhedrin 76a uses different principles of exegesis to derive it, it is not "from the words of our Sages." Instead, it is as if it was explicitly stated in the Torah. From Hilchot Ma'achalot Assurot 9:2, it appears that the Rambam's intent is that since the Torah mentions the prohibition against relations with the daughter of one's daughter, the prohibition against relations with one's daughter is obvious. There is no need for the Torah to mention it. It must be mentioned that many other authorities do not follow the same understanding as the Rambam and consider concepts derived through the principles of Biblical exegesis as fully binding Scriptural Law. According to their understanding, there is no difficulty with the prohibition against relations with one's daughter being considered of Scriptural origin.

13.

From the Ra'avad's statements, it appears that he does not require a sin offering for relations with one's daughter. The parenthesis are based on the understanding of the Maggid Mishneh.

14.

As stated in the following halachah.

15.

When stating this law, Shulchan Aruch (Even HaEzer 15:13) emphasizes that if a man rapes a woman, after her death, he may marry her daughter who was conceived by another man. The Ramah adds that even if the rapist marries her daughter during her lifetime, he is not compelled to divorce her.

16.

This is based on the Rambam's understanding of Sanhedrin 76b. Rashi, the Ramban, and the Rashba differ and maintain that after the death of the man's wife, he is prohibited against relations with her close relatives, but is not liable for kerait.

17.

The use of the plural term "them" should not be interpreted to mean that the man's wife should be executed by being burnt to death. For what evil has she committed? Instead, the intent is that only in her lifetime is the death penalty applied (Rashi, Sanhedrin 76b).

18.

Sanhedrin, loc. cit., speaks about relations with one's mother-in-law, stating that only when one's wife is alive are these relations punishable by death. Since, however, the prohibition against relations with all the other five women mentioned above is derived from the prohibition against relations with one's mother-in-law, they are bound by the same laws (Maggid Mishneh).

19.

For Leviticus 18:18 explicitly states that the prohibition against relations with the sister of one's wife is "in her lifetime." While the wife is alive, even if she is divorced, the man is forbidden to engage in relations with her sister [Shulchan Aruch (Even HaEzer 15:26)]. After his wife's death, however, he may marry her sister.

20.

For his wife has not transgressed and there is no reason that she should become forbidden.

21.

The Rambam is referring to Hilchot Gerushin 10:8-10 which states:

A man consecrated a woman, she journeyed to another country, the husband heard she died, and [then] married her sister. [If,] afterwards, it was discovered that she had not died, he must divorce both women.... Why did they require that the sister of the woman whom the man consecrated be divorced? Lest people say that the [first] kiddushin were given conditionally, [the condition was not fulfilled,] and thus the law would allow marriage to her sister. Since the [first] woman's sister was divorced... the man's first wife is also forbidden to him lest people think that he married his divorcee's sister.

The Maggid Mishneh explains that the Rambam maintains that a divorce is required only in such an instance. If, by contrast, he enters into promiscuous relations with the sister of the woman he consecrated, he may still marry her if she consents. This explanation resolves the protests made by the Ra'avad to the Rambam's statements.

22.

For the verses (Leviticus 18:18, 20:14) on which these prohibitions are based mention "taking," i.e., marriage.

23.

See Yevamot 97a.

24.

After her death, however, there are no restrictions on marrying her relatives (ibid., for the reason for the decree no longer applies.

25.

For since he is married to one of her close relatives, she is an ervah for him.

26.

In his Commentary to the Mishnah (Yevamot 11:1), the Rambam states that this applies when the suspicion is verified.

27.

This ruling is derived from the law stated in the following clause of the halachah. The Ra' avad questions the Rambam's deduction, stating that extra stringency is appropriate with regard to one's mother-in-law, but otherwise, there is no need to enforce such a restriction. The Maggid Mishneh states that for that reason, lashes were given only with regard to one's mother-in-law, but agrees with the Rambam's ruling, stating that curbs should be placed on any conduct that may lead to promiscuity. See also Chapter 21, Halachah 27.

28.

See Hilchot Sanhedrin 24:5 which states that a judge has the power to subject a person to lashes even if he is not liable according to Torah Law.

29.

Halachah 3.

30.

After she was widowed or divorced.

31.

The Maggid Mishneh explains that a person has a natural affection for his close relatives. Those positive feelings provide a fertile ground of support for the marriage relationship to flourish.

32.

Other Rishonim [Rashi, Rabbenu Tam (Sanhedrin 76) differ and maintain that the mitzvah applies only with regard to one's sister's daughter.

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The Mishneh Torah was the Rambam's (Rabbi Moses ben Maimon) magnum opus, a work spanning hundreds of chapters and describing all of the laws mentioned in the Torah. To this day it is the only work that details all of Jewish observance, including those laws which are only applicable when the Holy Temple is in place. Participating in one of the annual study cycles of these laws (3 chapters/day, 1 chapter/day, or Sefer Hamitzvot) is a way we can play a small but essential part in rebuilding the final Temple.
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