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ב"ה

Rambam - 3 Chapters a Day

Issurei Biah - Chapter Fifteen, Issurei Biah - Chapter Sixteen, Issurei Biah - Chapter Seventeen

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Issurei Biah - Chapter Fifteen

1

What is meant by the Torah's prohibition against relations with a mamzer? [The term refers to a person conceived from] a forbidden sexual relationship.1 A niddah is an exception. A son conceived from such relationships is blemished,2 but is not a mamzer. When, however, a man enters into any other forbidden sexual relationships, whether through rape, or willingly, whether conscious of the prohibition or not,3 the offspring produced is a mamzer. Both male and female [mamzerim] are forbidden forever, as [Deuteronomy 23:3] states: "[A mamzer shall not enter God's congregation.] Also the tenth generation...," i.e., [the prohibition is] everlasting.

א

אֵי זֶהוּ (דברים כג ג) "מַמְזֵר" הָאָמוּר בַּתּוֹרָה. זֶה הַבָּא מֵעֶרְוָה מִן הָעֲרָיוֹת. חוּץ מִן הַנִּדָּה שֶׁהַבֵּן מִמֶּנָּה פָּגוּם וְאֵינוֹ מַמְזֵר. אֲבָל הַבָּא עַל שְׁאָר הָעֲרָיוֹת בֵּין בְּאֹנֶס בֵּין בְּרָצוֹן בֵּין בְּזָדוֹן בֵּין בִּשְׁגָגָה הַוָּלָד מַמְזֵר. וְאֶחָד זְכָרִים וְאֶחָד נְקֵבוֹת אֲסוּרִין לְעוֹלָם שֶׁנֶּאֱמַר (דברים כג ג) "גַּם דּוֹר עֲשִׂירִי" כְּלוֹמַר לְעוֹלָם:

2

When a mamzer marries a Jewish women or a Jewish man marries a female mamzer, once they enter into relations after consecration, they are punished by lashes.4 If the man consecrates the woman, but does not enter into relations, he does not receive lashes.5 If they enter into relations without consecration, they6 do not receive lashes because of relations with a mamzer.7 For the only instance where relations that involve a negative prohibition incur the punishment of lashes without the woman being consecrated is relations between a High Priest and a widow, as will be explained.8

When a man remarries his divorcee after she married another person, 9the offspring are acceptable. For she is not considered an ervah.

ב

אֶחָד מַמְזֵר שֶׁנָּשָׂא יִשְׂרְאֵלִית אוֹ יִשְׂרְאֵלִי שֶׁנָּשָׂא מַמְזֶרֶת כֵּיוָן שֶׁבָּעֲלוּ אַחַר הַקִּדּוּשִׁין לוֹקִין. קִדֵּשׁ וְלֹא בָּעַל אֵינוֹ לוֹקֶה. בָּעַל וְלֹא קִדֵּשׁ אֵינָן לוֹקִין מִשּׁוּם מַמְזֵרוּת שֶׁאֵין לְךָ בְּכָל חַיָּבֵי לָאוִין מִי שֶׁלּוֹקֶה עַל בְּעִילָה בְּלֹא קִדּוּשִׁין אֶלָּא כֹּהֵן גָּדוֹל בְּאַלְמָנָה כְּמוֹ שֶׁיִּתְבָּאֵר. הַמַּחֲזִיר גְּרוּשָׁתוֹ מִשֶּׁנִּשֵּׂאת הַוָּלָד כָּשֵׁר שֶׁהֲרֵי אֵינָהּ עֶרְוָה:

3

When a gentile or a servant enter into relations with a Jewish woman, the child is acceptable. [This applies] whether the woman is unmarried or married, whether she was raped or engaged in relations willingly.10 When a gentile or a servant enter into relations with a female mamzer, the offspring is a mamzer.11 When a mamzer enters into relations with a female gentile, the offspring is a gentile. If [the child] converts, he is fit to marry within the Jewish people like other converts.12 If [a mamzer] enters into relations with a maid-servant, the offspring is a servant. If he is freed, the offspring is acceptable like other freed servants. He may marry a Jewish woman.

ג

עַכּוּ''ם וְעֶבֶד הַבָּא עַל בַּת יִשְׂרָאֵל הַוָּלָד כָּשֵׁר בֵּין פְּנוּיָה בֵּין בְּאֵשֶׁת אִישׁ בֵּין בְּאֹנֶס בֵּין בְּרָצוֹן. עַכּוּ''ם וְעֶבֶד הַבָּאִים עַל הַמַּמְזֶרֶת הַוָּלָד מַמְזֵר. וּמַמְזֵר הַבָּא עַל הָעַכּוּ''ם הַוָּלָד עַכּוּ''ם. נִתְגַּיֵּר הֲרֵי הוּא כָּשֵׁר כִּשְׁאָר גֵּרִים. וְאִם בָּא עַל הַשִּׁפְחָה הַוָּלָד עֶבֶד. שִׁחְרְרוֹ הַוָּלָד כָּשֵׁר כִּשְׁאָר עֲבָדִים מְשֻׁחְרָרִין וּמֻתָּר בְּבַת יִשְׂרָאֵל:

4

This is the general principle: When a child is born from a servant, a gentile, a maid-servant, or a female gentile, he is like his mother.13 We are not concerned with the father. For this reason, [the Sages] permitted a mamzer to marry a maid-servant to purify the lineage of his descendants. For he can free them and they will be free men.14 [Our Sages] did not ordain a decree forbidding a maid-servant to a mamzer,15 so that he can legitimize his sons.16

ד

זֶה הַכְּלָל בֵּן הַבָּא מִן הָעֶבֶד אוֹ מִן הָעַכּוּ''ם אוֹ מִן הַשִּׁפְחָה אוֹ מִן בַּת עַכּוּ''ם הֲרֵי הוּא כְּאִמּוֹ וְאֵין מַשְׁגִּיחִין עַל הָאָב. לְפִי דָּבָר זֶה הִתִּירוּ לְמַמְזֵר לִשָּׂא שִׁפְחָה כְּדֵי לְטַהֵר אֶת בָּנָיו שֶׁהֲרֵי הוּא מְשַׁחְרֵר אוֹתָם וְנִמְצְאוּ בְּנֵי חוֹרִין. וְלֹא גָּזְרוּ עַל הַשִּׁפְחָה לְמַמְזֵר מִפְּנֵי תַּקָּנַת הַבָּנִים:

5

When a person who is half a servant and half a freed man17 engages in relations with a married woman, a son born of that relationship has no way of legitimizing [his marriage relationships], because the dimension of him which is a mamzer18 and the dimension of him which is an acceptable Jew19 are intermingled. Therefore he is forbidden to engage in relations with a maid-servant.20 and his offspring share his status forever.21

ה

מִי שֶׁחֶצְיוֹ עֶבֶד וְחֶצְיוֹ בֶּן חוֹרִין הַבָּא עַל אֵשֶׁת אִישׁ אוֹתוֹ הַבֵּן אֵין לוֹ תַּקָּנָה מִפְּנֵי שֶׁצַּד מַמְזֵרוּת וְצַד כַּשְׁרוּת מְעֹרָבִין בּוֹ. לְפִיכָךְ אָסוּר בְּשִׁפְחָה וְנִמְצְאוּ בָּנָיו כְּמוֹתוֹ לְעוֹלָם:

6

When a gentile engages in relations with a maid-servant who immersed herself, the offspring are servants. When a servant who immersed himself engages in relations with a female gentile, the offspring are gentile. He is given his mother's status. When, however, a gentile engages relations with a gentile maid-servant or a gentile servant engages relations with a gentile woman, the status of the offspring follows that of the father.

ו

עַכּוּ''ם הַבָּא עַל הַשִּׁפְחָה שֶׁטָּבְלָה הֲרֵי זֶה עֶבֶד וְעֶבֶד שֶׁטָּבַל שֶׁבָּא עַל עַכּוּ''ם הַוָּלָד עַכּוּ''ם הַלֵּךְ אַחַר הָאֵם אֲבָל עַכּוּ''ם הַבָּא עַל שִׁפְחָה עַכּוּ''ם אוֹ עֶבֶד עַכּוּ''ם שֶׁבָּא עַל עַכּוּ''ם בַּת חוֹרִין הַלֵּךְ אַחַר הַזָּכָר:

7

A mamzer may marry a female convert and a female mamzer may marry a male convert, the offspring of both relationships are mamzerim.22 For the status of the offspring follows that of the blemished one. [The license for such a marriage is derived from] the verse: "[A mamzer shall not enter] God's congregation." The congregation of converts is not considered as "God's congregation."

ז

מַמְזֵר מֻתָּר לִשָּׂא גִּיֹּרֶת. וְכֵן הַמַּמְזֶרֶת מֻתֶּרֶת לְגֵר. וְהַבָּנִים מִשְּׁנֵיהֶם מַמְזֵרִים שֶׁהַוָּלָד הוֹלֵךְ אַחַר הַפָּגוּם שֶׁנֶּאֱמַר (דברים כג ג) "בִּקְהַל ה'" וּקְהַל גֵּרִים אֵינוֹ קָרוּי (דברים כג ג) "קְהַל ה'":

8

When a female convert marries a male convert and gives birth to a son, he is permitted to marry a female mamzer even though he was both conceived and born in holiness.23 This also applies to the son of his grandson [- or any other descendant -] until his connection with conversion is forgotten and it is not known that he [descends from] converts.24 Afterwards, he will be forbidden to marry a female mamzer. Converts and freed servants are bound by the same laws.25

ח

גִּיֹּרֶת שֶׁנִּשֵּׂאת לְגֵר וְהוֹלִידוּ בֵּן אַף עַל פִּי שֶׁהוֹרָתוֹ וְלֵדָתוֹ בִּקְדֻשָּׁה הֲרֵי זֶה מֻתָּר בְּמַמְזֶרֶת. וְכֵן בֶּן בֶּן בְּנוֹ עַד שֶׁיִּשְׁתַּקַּע שֵׁם גֵּרוּתוֹ מִמֶּנּוּ וְלֹא יִוָּדַע שֶׁהוּא גֵּר וְאַחַר כָּךְ יֵאָסֵר בְּמַמְזֶרֶת. וְאֶחָד הַגֵּרִים וְאֶחָד הָעֲבָדִים מְשֻׁחְרָרִין דִּין אֶחָד לְכֻלָּן:

9

When a convert marries a native-born Jewess26 or a native-born Jew marries a convert, the son is a Jew in all contexts and is forbidden to marry a female mamzer.

ט

גֵּר שֶׁנָּשָׂא בַּת יִשְׂרָאֵל אוֹ יִשְׂרָאֵל שֶׁנָּשָׂא גִּיֹּרֶת הַוָּלָד יִשְׂרָאֵל לְכָל דָּבָר וְאָסוּר בְּמַמְזֶרֶת:

10

There are three categories of mamzerim: one that is definitely a mamzer, a mamzer whose status is a matter of doubt, and a mamzer by Rabbinic decree. What is meant by one who is definitely a mamzer? The offspring of a relationship that is definitely incestuous or adulterous, as we explained.27

A mamzer whose status is a matter of doubt is the offspring of a relationship that we are unsure whether it is adulterous or incestuous. For example, a man engaged in relations with a woman who was consecrated, but we are unsure if the consecration was effective,28 or who was divorced, but we are unsure whether the divorce was effective,29 or a similar situation.

A mamzer by Rabbinic decree: for example, a woman who heard that here husband died and remarried and then discovered that her husband was alive. Afterwards, her [first] husband engaged in relations with her while she was still married with her second husband, the offspring is a mamzer by Rabbinic decree.30

י

שְׁלֹשָׁה מַמְזֵרִים הֵם. מַמְזֵר וַדַּאי וּמַמְזֵר סָפֵק וּמַמְזֵר מִדִּבְרֵי סוֹפְרִים. אֵי זֶהוּ מַמְזֵר וַדַּאי זֶה שֶׁבָּא מִן הָעֶרְוָה הַוַּדָּאִית כְּמוֹ שֶׁבֵּאַרְנוּ. וּמַמְזֵר סָפֵק זֶה שֶׁבָּא מִסְּפֵק עֶרְוָה כְּגוֹן הַבָּא עַל הָאִשָּׁה שֶׁנִּתְקַדְּשָׁה סְפֵק קִדּוּשִׁין אוֹ נִתְגָּרְשָׁה סְפֵק גֵּרוּשִׁין וְכַיּוֹצֵא בָּהֶן. מִדִּבְרֵי סוֹפְרִים. כְּגוֹן הָאִשָּׁה שֶׁשָּׁמְעָה שֶׁמֵּת בַּעְלָהּ וְנִשֵּׂאת וַהֲרֵי בַּעְלָהּ קַיָּם וּבָא בַּעְלָהּ הָרִאשׁוֹן עָלֶיהָ וְהִיא תַּחַת הַשֵּׁנִי הֲרֵי הַבֵּן מַמְזֵר מִדִּבְרֵי סוֹפְרִים:

11

When an unmarried woman becomes pregnant through a promiscuous relationship, we ask her: "What is [the status of] this fetus" or "...this child"? If she replies: "It is the child of a man of acceptable lineage; I entered into relations with an Israelite," her word is accepted and the son is acceptable.31 [This applies] even if most of the inhabitants of the city in which she engaged in relations are of unacceptable lineage.32

יא

פְּנוּיָה שֶׁנִּתְעַבְּרָה מִזְּנוּת אָמְרוּ לָהּ מַהוּ הָעֻבָּר הַזֶּה אוֹ הַיָּלוּד הַזֶּה אִם אָמְרָה בֵּן כָּשֵׁר הוּא וּלְיִשְׂרָאֵל נִבְעַלְתִּי הֲרֵי זוֹ נֶאֱמֶנֶת וְהַבֵּן כָּשֵׁר. וְאַף עַל פִּי שֶׁרֹב הָעִיר שֶׁזִּנְּתָה בָּהּ פְּסוּלִים:

12

If the child's mother was not questioned until she died, or she was a deaf-mute, mute, or intellectually or emotionally unstable, we consider the child as a mamzer whose status is questionable.33 [This ruling applies even] if she said: "I engaged in relations with so-and-so, the mamzer" or "...with so-and-so, the netin."34 Even if that person agrees with her statement, [the child's status is only doubtful. The rationale is:] Just as she engaged in relations with the person who admitted to her statement; so, too, she engaged in relations with others.35

This [child] is called a shituki.36 He knows the identity of his mother, but does not definitely know the identity of his father.

יב

וְאִם לֹא נִבְדְּקָה אִמּוֹ עַד שֶׁמֵּתָה אוֹ שֶׁהָיְתָה חֵרֶשֶׁת אוֹ אִלֶּמֶת אוֹ שׁוֹטָה אוֹ שֶׁאָמְרָה לִפְלוֹנִי הַמַּמְזֵר נִבְעַלְתִּי אוֹ לִפְלוֹנִי הַנָּתִין אֲפִלּוּ אוֹתוֹ פְּלוֹנִי מוֹדֶה שֶׁהוּא מִמֶּנּוּ הֲרֵי זֶה הַיָּלוּד סְפֵק מַמְזֵר. כְּשֵׁם שֶׁזִּנְּתָה עִם זֶה שֶׁהוֹדָה לָהּ כָּךְ זִנְּתָה עִם אַחֵר. וְזֶה הוּא הַנִּקְרָא שְׁתוּקִי שֶׁמַּכִּיר אֶת אִמּוֹ וְאֵינוֹ מַכִּיר אֶת אָבִיו וַדַּאי:

13

Similarly, a child that is found in the marketplace - he is called an asufi37 - is considered as a mamzer whose status is questionable.38for we do not know his [lineage].

יג

וְכֵן הַבֵּן הַנִּמְצָא בַּשּׁוּק וְהוּא הַנִּקְרָא אֲסוּפִי הֲרֵי הוּא סְפֵק מַמְזֵר שֶׁאֵין אָנוּ יוֹדְעִים מַה הוּא:

14

[The following rules apply when] an unmarried woman engages in promiscuous relations says: "This child is the son of so-and-so." If that person is of acceptable lineage, the son is considered acceptable. Nevertheless, her word is not accepted for the child to be considered as the man's son.39 It appears to me, however, that we give consideration to her words and because of the doubt, that child is forbidden to marry the relatives of the [named] person.

If the [named] person is a mamzer, we do not accept her word to definitely deem the offspring as a mamzer on this basis, as we explained.40 Instead, we consider the child as a mamzer whose status is questionable.

יד

פְּנוּיָה שֶׁזִּנְּתָה וְאָמְרָה בֵּן זֶה בֶּן פְּלוֹנִי הוּא. אִם אוֹתוֹ פְּלוֹנִי כָּשֵׁר הֲרֵי הַבֵּן כָּשֵׁר וְאֵינָהּ נֶאֱמֶנֶת לִהְיוֹת זֶה בְּנוֹ שֶׁל פְּלוֹנִי. וְיֵרָאֶה לִי שֶׁחוֹשְׁשִׁין לִדְבָרֶיהָ וְיִהְיֶה הַבֵּן אָסוּר בִּקְרוֹבוֹת אוֹתוֹ פְּלוֹנִי מִסָּפֵק. וְאִם אוֹתוֹ פְּלוֹנִי מַמְזֵר אֵינָהּ נֶאֱמֶנֶת לִהְיוֹת הַבֵּן מַמְזֵר וַדַּאי עַל פִּיהָ כְּמוֹ שֶׁבֵּאַרְנוּ אֶלָּא יִהְיֶה סְפֵק מַמְזֵר:

15

[Different laws apply with regard to] a father who [makes statements with regard to] a child who is presumed to be his son. If he says: "This son of mine is a mamzer,"41 his word is accepted.42 If the son himself has children, his word is not accepted.43 For the Torah accepted his word with regard to his son alone. [This is derived from Deuteronomy 21:17:] "He will recognize the firstborn, the son of the hated." [Implied is that] he makes his identity known to others.44

טו

אֲבָל הָאָב שֶׁהֻחְזַק שֶׁזֶּה בְּנוֹ וְאָמַר בְּנִי זֶה מַמְזֵר הוּא נֶאֱמָן. וְאִם יֵשׁ לַבֵּן בָּנִים אֵינוֹ נֶאֱמָן. שֶׁלֹּא הֶאֱמִינָה אוֹתוֹ תּוֹרָה אֶלָּא עַל בְּנוֹ שֶׁנֶּאֱמַר (דברים כא יז) "כִּי אֶת הַבְּכֹר בֶּן הַשְּׂנוּאָה יַכִּיר" יַכִּירֶנּוּ לַאֲחֵרִים:

16

Just as a father's word is accepted when he says: "This son of mine is my firstborn," so, too, his word is accepted if he says: "This son of mine is a mamzer," or "...the son of a divorced woman" or "...the son of a woman who performed chalitzah."45 Similarly, if his wife was pregnant, his word is accepted if he says: "This fetus is not my child. It is a mamzer." The child is definitely deemed as a mamzer.

If a person says that he himself is a mamzer, his word is accepted with regard to the prohibition against him marrying a native-born Jewess.46 He is, however, forbidden to marry a female mamzer47 until it is definitely known that he is a mamzer. The same laws apply to his son. If he has grandchildren, his word is not accepted with regard to the disqualification of his grandchildren. He can disqualify only himself.

טז

וּכְשֵׁם שֶׁנֶּאֱמָן לוֹמַר בְּנִי זֶה בְּכוֹר כָּךְ נֶאֱמָן לוֹמַר בְּנִי זֶה מַמְזֵר אוֹ בֶּן גְּרוּשָׁה אוֹ בֶּן חֲלוּצָה. וְכֵן אִם הָיְתָה אִשְׁתּוֹ מְעֻבֶּרֶת נֶאֱמָן לוֹמַר עֻבָּר זֶה אֵינוֹ בְּנִי וּמַמְזֵר הוּא וְיִהְיֶה מַמְזֵר וַדַּאי. וְהָאוֹמֵר עַל עַצְמוֹ שֶׁהוּא מַמְזֵר נֶאֱמָן לֶאֱסֹר עַצְמוֹ בְּבַת יִשְׂרָאֵל. וְאָסוּר בְּמַמְזֶרֶת עַד שֶׁיִּוָּדַע וַדַּאי שֶׁהוּא מַמְזֵר. וּבְנוֹ כָּמוֹהוּ. וְאִם יֵשׁ לוֹ בְּנֵי בָּנִים אֵינוֹ נֶאֱמָן לִפְסל בְּנֵי בָּנָיו וְלֹא יִפְסל אֶלָּא עַצְמוֹ:

17

[The following laws apply when] a woman who was consecrated48 becomes pregnant in her father's home. The offspring is assumed to be a mamzer.49 He is forbidden to marry both a native-born Jewess and a female mamzer.50

If his mother was questioned and said: "I became pregnant from the man who consecrated me," her word is accepted and the child is considered acceptable.51If, however, that man contravenes her and says: "I never engaged in relations with her," the child is considered a mamzer. For even if the child was assumed to be his son, his word is accepted if he says: "My son is a mamzer."52

[Even in the latter situation,] the woman is not assumed to be a zonah.53 Instead, her word is accepted if she says: "I engaged in relations with the man who consecrated me." [Since] she is not a zonah, if she married a priest,54 she need not be divorced55 and offspring which she bears him are acceptable [as priests].56

יז

אֲרוּסָה שֶׁנִּתְעַבְּרָה וְהִיא בְּבֵית אָבִיהָ הֲרֵי הַוָּלָד בְּחֶזְקַת מַמְזֵר וְאָסוּר בְּבַת יִשְׂרָאֵל וְאָסוּר בְּמַמְזֶרֶת. וְאִם נִבְדְּקָה אִמּוֹ וְאָמְרָה מֵאֲרוּסִי נִתְעַבַּרְתִּי נֶאֱמֶנֶת וְהַוָּלָד כָּשֵׁר. וְאִם הִכְחִישָׁהּ הָאָרוּס וְאָמַר מֵעוֹלָם לֹא בָּאתִי עָלֶיהָ הֲרֵי הַוָּלָד מַמְזֵר שֶׁאֲפִלּוּ הָיָה בְּחֶזְקַת בְּנוֹ וְאָמַר בְּנִי זֶה מַמְזֵר נֶאֱמָן. וְהָאִשָּׁה אֵינָהּ בְּחֶזְקַת זוֹנָה אֶלָּא נֶאֱמֶנֶת לוֹמַר לָאָרוּס נִבְעַלְתִּי וְאֵינָהּ זוֹנָה. וְאִם נִשֵּׂאת לְכֹהֵן לֹא תֵּצֵא וּוְלָדָהּ מִמֶּנּוּ כָּשֵׁר:

18

If people at large gossip about her while she is consecrated, [saying that] she was promiscuous with the man to whom she was consecrated and with others, the child is a mamzer whose status is questionable.57 [This applies] even if the man to whom she was consecrated was intimate with her in her father's home. For just as she acted loosely with the man to whom she was consecrated, she could have acted loosely with others. If she was questioned and said: "This fetus was conceived by the man to whom I am consecrated," the child is acceptable as explained [above].

יח

הָיוּ הָעָם מְרַנְּנִים אַחֲרֶיהָ וְהִיא אֲרוּסָה עִם אֲרוּסָהּ וְעִם אֲנָשִׁים אֲחֵרִים אַף עַל פִּי שֶׁבָּא עָלֶיהָ אֲרוּסָהּ בְּבֵית חָמִיו הֲרֵי זֶה סְפֵק מַמְזֵר. כְּשֵׁם שֶׁהִפְקִירָה עַצְמָהּ לַאֲרוּסָהּ הִפְקִירָה לַאֲחֵרִים. וְאִם נִבְדְּקָה וְאָמְרָה עֻבָּר זֶה מֵאֲרוּסִי הֲרֵי זֶה כָּשֵׁר כְּמוֹ שֶׁבֵּאַרְנוּ:

19

When a married woman58 is pregnant and says: "This fetus is not my husband's," her word is not accepted to render the child illegitimate. [Instead,] we assume that the child is acceptable. For the Torah accepted only the word of the father. If the father says that it is not his son or he is overseas,59 we assume that the son is a mamzer.60

If the woman said: "I was impregnated by a gentile," or "...by a servant," the child is acceptable.61 For the husband cannot deny her words.62 A fetus will not remain in its mother's womb for more than twelve months.63

יט

אֵשֶׁת אִישׁ שֶׁהָיְתָה מְעֻבֶּרֶת וְאָמְרָה עֻבָּר זֶה אֵינוֹ מִבַּעֲלִי אֵינָהּ נֶאֱמֶנֶת לְפָסְלוֹ. וַהֲרֵי הַבֵּן בְּחֶזְקַת כַּשְׁרוּת. שֶׁלֹּא הֶאֱמִינָה תּוֹרָה אֶלָּא הָאָב. אָמַר הָאָב אֵינוֹ בְּנִי אוֹ שֶׁהָיָה בַּעְלָהּ בִּמְדִינַת הַיָּם הֲרֵי זֶה בְּחֶזְקַת מַמְזֵר. וְאִם אָמְרָה מֵעַכּוּ''ם וְעֶבֶד נִתְעַבַּרְתִּי הֲרֵי הַוָּלָד כָּשֵׁר. שֶׁאֵין הַבַּעַל יָכוֹל לְהַכְחִישָׁהּ בִּדְבָרֶיהָ. וְאֵין הָעֻבָּר מִשְׁתַּהֶה בִּמְעֵי אִמּוֹ יֶתֶר עַל שְׁנֵים עָשָׂר חֹדֶשׁ:

20

Although there is a rumor circulating to the fact that a woman has committed adultery and everyone is gossiping about her, we do not suspect that her children are mamzerim. [The rationale is that] the person who most frequently has relations with her is her husband. It is permitted to marry her daughter, even as an initial and preferred option.64 With regard to her own status, we suspect that she is a zonah.65 If her conduct was very lewd, we also suspect the lineage of her children.66

כ

אֵשֶׁת אִישׁ שֶׁיָּצָא עָלֶיהָ קוֹל שֶׁהָיְתָה זוֹנָה תַּחַת בַּעְלָהּ וְהַכּל מְרַנְּנִין אַחֲרֶיהָ אֵין חוֹשְׁשִׁין לְבָנֶיהָ שֶׁמָּא מַמְזֵרִים הֵם שֶׁרֹב בְּעִילוֹת אֵצֶל הַבַּעַל. וּמֻתָּר לִשָּׂא בִּתָּהּ לְכַתְּחִלָּה. אֲבָל הִיא עַצְמָהּ חוֹשְׁשִׁין לָהּ מִשּׁוּם זוֹנָה. וְאִם הָיְתָה פְּרוּצָה יוֹתֵר מִדַּאי אַף לְבָנֶיהָ חוֹשְׁשִׁין:

21

According to Scriptural Law, a person suspected of being a mamzer is permitted to marry among the Jewish people.67 [Deuteronomy 23:3] states: "A mamzer shall not enter God's congregation." [Implied is that] one who is definitively a mamzer may not marry among the Jewish people, not one whose status is questionable. Nevertheless, our Sages raised the level [of purity required] with regard to lineage and forbade those of questionable status from marrying among the Jewish people.

According a male and a female who are definitely mamzerim may marry. A mamzer whose status is a matter of doubt,68 a shituki,69 or an asufi70 are forbidden to marry native-born Jewesses.

כא

דִּין תּוֹרָה שֶׁסְּפֵק מַמְזֵר מֻתָּר לָבוֹא בַּקָּהָל שֶׁנֶּאֱמַר (דברים כג ג) "לֹא יָבֹא מַמְזֵר בִּקְהַל ה'" מַמְזֵר וַדַּאי אָסוּר לָבוֹא בַּקָּהָל וְלֹא סָפֵק. אֲבָל חֲכָמִים עָשׂוּ מַעֲלָה בְּיוּחֲסִין וְאָסְרוּ גַּם הַסְּפֵקוֹת לָבוֹא בַּקָּהָל. לְפִיכָךְ מַמְזֵר וַדַּאי מֻתָּר לִשָּׂא מַמְזֶרֶת וַדָּאִית אֲבָל מַמְזֵר סָפֵק אוֹ שְׁתוּקִי אוֹ אֲסוּפִי אָסוּר לִשָּׂא בַּת יִשְׂרָאֵל:

22

[A man of the latter status] is forbidden to marry a female mamzer. Even a female mamzer whose status is questionable is forbidden to him. For perhaps one of them is not a mamzer, but the other is definitely a mamzer. A mamzer by Rabbinic decree may marry a female mamzer by Rabbinic decree.71 Similarly, in any other instances [where a person is forbidden to marry] because of a doubt, one person of this status may not marry another.72

כב

וְאָסוּר לִשָּׂא מַמְזֶרֶת וַאֲפִלּוּ מַמְזֶרֶת מִסָּפֵק אֲסוּרָה לוֹ שֶׁמָּא אֶחָד מֵהֶן אֵינוֹ מַמְזֵר וְהַשֵּׁנִי מַמְזֵר וַדַּאי. וּמַמְזֵר שֶׁל דִּבְרֵיהֶם מֻתָּר לִשָּׂא מַמְזֶרֶת שֶׁל דִּבְרֵיהֶם. וְכֵן שְׁאָר הַסְּפֵקוֹת אֲסוּרִין לִשָּׂא זֶה מִזֶּה:

23

What is implied? Shitukim, asufim, and those whose status as mamzerim is indefinite are forbidden to marry each other. If they married, the union may not be maintained. Instead, they must divorce with a formal bill of divorce.73 The offspring of such relationships are [mamzerim of] indefinite status like their parents.

Individuals of indefinite status like this have no option except to marry converts.74 The status of their offspring follows their blemish.

כג

כֵּיצַד. שְׁתוּקִים וַאֲסוּפִים וּסְפֵק מַמְזֵרִים אֲסוּרִים לָבוֹא זֶה עִם זֶה וְאִם נָשְׂאוּ לֹא יְקַיְּמוּ אֶלָּא יוֹצִיאוּ בְּגֵט וְהַוָּלָד סָפֵק כַּאֲבוֹתָיו. וְאֵין לִסְפֵקוֹת אֵלּוּ תַּקָּנָה אֶלָּא שֶׁיִּשְּׂאוּ מִן הַגֵּרִים וְהַוָּלָד הוֹלֵךְ אַחַר הַפָּגוּם:

24

What is implied? When a shituki or an asufi marries a female convert or a freed maid-servant, a convert, or a freed servant marries a female shituki or asufi, the offspring are shitukim or asufim.

כד

כֵּיצַד. שְׁתוּקִי אוֹ אֲסוּפִי שֶׁנָּשָׂא גִּיֹּרֶת אוֹ מְשֻׁחְרֶרֶת אוֹ גֵּר וּמְשֻׁחְרָר שֶׁנָּשָׂא שְׁתוּקִית אוֹ אֲסוּפִית. הַוָּלָד שְׁתוּקִי אוֹ אֲסוּפִי:

25

When an asufi is found in a city inhabited by gentiles, whether the majority are gentiles or the majority are Jews, the child is considered as gentile of indefinite status with regard to his lineage.75 If he consecrates a woman, she needs a bill of divorce because of the doubt.76 If someone kills him, he is not executed for doing so.77

כה

הָאֲסוּפִי שֶׁנִּמְצָא בְּעִיר שֶׁיֵּשׁ בָּהּ עַכּוּ''ם בֵּין שֶׁהָיָה רֹב עַכּוּ''ם אוֹ רֹב יִשְׂרָאֵל הֲרֵי זֶה סְפֵק עַכּוּ''ם לְעִנְיַן יוּחֲסִין. קִדֵּשׁ אִשָּׁה צְרִיכָה גֵּט מִסָּפֵק. מִי שֶׁהֲרָגוֹ לֹא הָיָה נֶהֱרַג עָלָיו:

26

If the court had him immersed for the sake of conversion78 or he immersed on his own initiative after he attained majority, his status is the same as any asufi that is found in Jewish cities.79

If the majority of the inhabitants of the city are gentile, it is permitted to feed him meat from animals that were not ritually slaughtered.80 If the majority were Jewish, we return his lost articles as is the law with regard to Jews. If the populations are equally balanced,81 it is a mitzvah to maintain his life82 and we remove an avalanche from him on the Sabbath.83 With regard to damages, we follow the same principle that applies in all cases of doubt in financial law: When a person who seeks to expropriate [money] from a colleague, the burden of proof is upon him.84

כו

הִטְבִּילוּהוּ בֵּית דִּין לְשֵׁם גֵּרוּת אוֹ שֶׁטָּבַל מִשֶּׁהִגְדִּיל הֲרֵי הוּא כִּשְׁאָר אֲסוּפִים הַנִּמְצָאִים בְּעָרֵי יִשְׂרָאֵל. הָיָה רֹב הָעִיר עַכּוּ''ם מֻתָּר לְהַאֲכִילוֹ נְבֵלוֹת. הָיָה רֻבָּן יִשְׂרָאֵל מַחְזִירִין לוֹ אֲבֵדָתוֹ כְּיִשְׂרָאֵל. מֶחֱצָה עַל מֶחֱצָה מִצְוָה לְהַחֲיוֹתוֹ כְּיִשְׂרָאֵל. וּמְפַקְּחִין עָלָיו אֶת הַגַּל בְּשַׁבָּת וַהֲרֵי הוּא לְעִנְיַן נְזָקִין כְּכָל סְפֵק מָמוֹן הַמּוֹצִיא מֵחֲבֵרוֹ עָלָיו הָרְאָיָה:

27

It appears to me that whenever there is a gentile woman or a maid-servant who is fit to give birth in a city, since an asufi that is discovered there is considered to possibly have the status of a gentile or a servant, if he marries a female convert as we stated,85 there is a doubt whether his wife is a married woman.86 One who enters into relations with her is not liable, because we do not execute individuals when there is a doubt involved.87

Similarly, it appears to me that when a shituki marries a woman who could be forbidden to him as an ervah,88 there is a doubt whether she is a married woman, for consecration is not effective with regard to the ariot.

כז

יֵרָאֶה לִי שֶׁכָּל מְדִינָה שֶׁיֵּשׁ בָּהּ שִׁפְחָה אוֹ עַכּוּ''ם הָרְאוּיָה לֵילֵד הוֹאִיל וְהָאֲסוּפִי הַנִּמְצָא שָׁם סְפֵק עַכּוּ''ם אוֹ סְפֵק עֶבֶד כְּשֶׁיִּשָּׂא הַגִּיֹּרֶת כְּמוֹ שֶׁבֵּאַרְנוּ הֲרֵי זוֹ סְפֵק אֵשֶׁת אִישׁ וְהַבָּא עָלֶיהָ פָּטוּר שֶׁאֵין הוֹרְגִין עַל סָפֵק. וְכֵן יֵרָאֶה לִי שֶׁהַשְּׁתוּקִי שֶׁנָּשָׂא אִשָּׁה שֶׁאֶפְשָׁר שֶׁהִיא עֶרְוָה עָלָיו וַהֲרֵי הִיא סְפֵק אֵשֶׁת אִישׁ שֶׁאֵין קִדּוּשִׁין תּוֹפְסִין בַּעֲרָיוֹת:

28

What is meant by "a woman who could be forbidden to him as an ervah"? Any woman whose father or brother was alive when his mother became pregnant89 or any woman who was divorced or widowed. For it is possible that she is his father's wife or the wife of his father's brother.90

כח

וְאֵי זוֹ הִיא הָאִשָּׁה שֶׁאֶפְשָׁר שֶׁתִּהְיֶה עֶרְוָה עָלָיו. כָּל אִשָּׁה שֶׁהָיָה אָבִיהָ אוֹ אָחִיהָ קַיָּם כְּשֶׁנִּתְעַבְּרָה בּוֹ אִמּוֹ. וְכָל אִשָּׁה שֶׁנִּתְגָּרְשָׁה אוֹ נִתְאַלְמְנָה שֶׁמָּא אֵשֶׁת אָבִיו הִיא אוֹ אֵשֶׁת אֲחִי אָבִיו:

29

What is the source on which I rely to say that a shituki or an asufi are not forbidden to marry any woman who could be forbidden to him as an ervah?91 For an acceptable child whose mother was questioned92is not forbidden to marry any woman who could be forbidden to him as an ervah. And it is written in the Torah [Leviticus 19:29]: "Do not desecrate your daughter to have her act promiscuously." [Commenting on this verse,] our Sages state:93 If this would happen, a father will marry his daughter and a brother will marry his sister.

If the law was that anyone who does not definitely know the identity of his father would be forbidden to marry any woman who could be forbidden to him as an ervah, this situation could not arise and the earth would never become filled with incestuous relations.94 From this,95 we learn that we do not forbid ariot and consider them as relatives because of the doubt unless we definitely know that she is forbidden to him as an ervah. For were we to say this, all of the orphans in the world who did not know their fathers would be forbidden to marry in all situations lest they encounter a forbidden relationship.

כט

וּמִנַּיִן אֲנִי אוֹמֵר שֶׁאֵין הַשְּׁתוּקִי וְהָאֲסוּפִי אָסוּר בְּכָל אִשָּׁה שֶׁאֶפְשָׁר שֶׁתִּהְיֶה עֶרְוָה עָלָיו. שֶׁהֲרֵי הַכָּשֵׁר שֶׁנִּבְדְּקָה אִמּוֹ אֵינוֹ אָסוּר בְּכָל אִשָּׁה שֶׁאֶפְשָׁר שֶׁתִּהְיֶה עֶרְוָה עָלָיו. וַהֲרֵי נֶאֱמַר בַּתּוֹרָה (ויקרא יט כט) "אַל תְּחַלֵּל אֶת בִּתְּךָ לְהַזְנוֹתָהּ". וְאָמְרוּ חֲכָמִים שֶׁאִם יַעֲשֶׂה זֶה נִמְצָא אָב נוֹשֵׂא בִּתּוֹ וְאָח נוֹשֵׂא אֲחוֹתוֹ. וְאִלּוּ הָיָה הַדִּין שֶׁכָּל מִי שֶׁאֵינוֹ יוֹדֵעַ אָבִיו בְּוַדַּאי אָסוּר בְּכָל אִשָּׁה שֶׁאֶפְשָׁר שֶׁתִּהְיֶה עֶרְוָה עָלָיו. לֹא הָיִינוּ בָּאִים לַמִּדָּה הַזֹּאת לְעוֹלָם וְלֹא תִּהְיֶה הָאָרֶץ מְלֵאָה זִמָּה. הָא לָמַדְתָּ שֶׁאֵין אוֹסְרִין עֲרָיוֹת וּמַחֲזִיקִין אוֹתָן בִּשְׁאֵר בָּשָׂר בְּסָפֵק עַד שֶׁיִּוָּדַע בְּוַדַּאי שֶׁזּוֹ עֶרְוָה עָלָיו. שֶׁאִם אַתָּה אוֹמֵר כֵּן כָּל הַיְתוֹמִים שֶׁבָּעוֹלָם שֶׁלֹּא הִכִּירוּ אֲבוֹתֵיהֶם הָיוּ אֲסוּרִין לְהִנָּשֵׂא בְּכָל מָקוֹם שֶׁמָּא יִפְגְּעוּ בְּעֶרְוָה:

30

When a child was abandoned on the road and afterwards,96 one came and said: "He is my son and I abandoned him," his word is accepted. Similarly, the mother's word is accepted. If the child was taken in from the marketplace and afterwards, his father and mother came and said: "This is our son," their word is not accepted. [The rationale is that] he has already been categorized as an asufi.

In the years of famine, their word is accepted. It is because of the famine that they abandoned him, for they desire that others sustain them. Therefore they remained silent until the child was gathered in.

ל

הַוָּלָד שֶׁהָיָה מֻשְׁלָךְ בַּדֶּרֶךְ וּבָא אֶחָד וְאָמַר בְּנִי הוּא וַאֲנִי הִשְׁלַכְתִּיו נֶאֱמָן. וְכֵן אִמּוֹ נֶאֱמֶנֶת. נֶאֱסַף מִן הַשּׁוּק וּבָאוּ אָבִיו וְאִמּוֹ אַחַר כֵּן וְאָמְרוּ בְּנֵנוּ הוּא אֵין נֶאֱמָנִין הוֹאִיל וְיָצָא עָלָיו שֵׁם אֲסוּפִי. וּבִשְׁנֵי רְעָבוֹן נֶאֱמָנִין שֶׁמִּפְּנֵי רָעָב הִשְׁלִיכוּהוּ וְהֵן רוֹצִין שֶׁיָּזוּנוּ אוֹתוֹ אֲחֵרִים וּלְפִיכָךְ שָׁתְקוּ עַד שֶׁנֶּאֱסַף:

31

If the child was found circumcised, bundled, salted,97 blue eye-paint98 was applied to his eyes, an amulet was placed around his neck,99 it was placed under a interwoven tree that a wild beast could not enter and was close to the city, or it was found in a synagogue near the public domain or at the side of the public domain, the laws pertaining to an asufi do not apply. Since [the parents] are protecting the child so that it does not die, we can assume that it is acceptable.100

If, however, it is abandoned in the midst of the road or far away from a city, even under a tree, or in a synagogue, or it is found hanging in a place accessible by a wild beast,101 it is considered as an asufi.

לא

נִמְצָא הַוָּלָד מָהוּל אוֹ שֶׁהֻחְתַּל אוֹ שֶׁהֻמְלַח אוֹ שֶׁהָיָה הַכֹּחַל בְּעֵינָיו אוֹ הַקְּמֵעִין בְּצַוָּארוֹ אוֹ שֶׁנִּמְצָא תַּחַת אִילָן מְסֻבָּךְ שֶׁאֵין חַיָּה נִכְנֶסֶת לוֹ וְהָיָה סָמוּךְ לָעִיר אוֹ שֶׁנִּמְצָא בְּבֵית הַכְּנֶסֶת הַסָּמוּךְ לִרְשׁוּת הָרַבִּים אוֹ בְּצִדֵּי רְשׁוּת הָרַבִּים אֵין כָּאן מִשּׁוּם אֲסוּפִי. מֵאַחֵר שֶׁהֵן מְשַׁמְּרִין אוֹתוֹ שֶׁלֹּא יָמוּת בְּחֶזְקַת כָּשֵׁר הוּא. אֲבָל אִם נִמְצָא מֻשְׁלָךְ בְּאֶמְצַע הַדֶּרֶךְ אוֹ רָחוֹק מִן הָעִיר אֲפִלּוּ תַּחַת אִילָן אוֹ בְּבֵית הַכְּנֶסֶת אוֹ שֶׁנִּמְצָא תָּלוּי בָּאִילָן מָקוֹם שֶׁחַיָּה מַגַּעַת לוֹ הֲרֵי זֶה אֲסוּפִי:

32

A mid-wife's word is accepted if she states: "This child is a priest," "...a Levite," "...a netin,"102 or "...a mamzer," because the child's lineage has not been established and is not known.

When does the above apply? When her faithfulness has been established and an objection is not raised against her. If, however, an objection was raised against her and one person said: "She is testifying falsely," her word is not accepted.103 The child is considered as acceptable,104 but is not considered as [a priest or Levite].105

לב

נֶאֱמֶנֶת חַיָּה לוֹמַר זֶה הַבֵּן כֹּהֵן הוּא אוֹ לֵוִי אוֹ נָתִין אוֹ מַמְזֵר מִפְּנֵי שֶׁלֹּא הֻחְזַק וְאֵין אָנוּ יוֹדְעִין יִחוּסָן. בַּמֶּה דְּבָרִים אֲמוּרִים בְּשֶׁהֻחְזְקָה בְּנֶאֱמָנוּת וְלֹא עִרְעֵר עָלֶיהָ אָדָם. אֲבָל אִם עִרְעֵר עָלֶיהָ אֲפִלּוּ אֶחָד וְאָמַר בְּשֶׁקֶר מְעִידָה אֵינָהּ נֶאֱמֶנֶת וַהֲרֵי הַבֵּן בְּחֶזְקַת כָּשֵׁר וְאֵין לוֹ יִחוּס:

33

It is a clear matter that a shituki is forbidden to marry a shituki and an asufi is forbidden to marry an asufi, because their status is doubtful.106 Nevertheless, even mamzerim of a definite status and netinim may intermarry. The offspring is a mamzer.107 A shituki or an asufi are permitted to marry netinim and other converts. The offspring is considered as [a mamzer] of doubtful status.

לג

דָּבָר בָּרוּר שֶׁהַשְּׁתוּקִי אָסוּר לִשָּׂא שְׁתוּקִית. וַאֲסוּפִי אָסוּר בַּאֲסוּפִית מִפְּנֵי שֶׁהֵן סְפֵקוֹת. אֲבָל מַמְזֵרִים וַדָּאִים וּנְתִינִים מֻתָּרִים לָבוֹא זֶה בָּזֶה וְהַוָּלָד מַמְזֵר. וּשְׁתוּקִי וַאֲסוּפִי מֻתָּרִין בִּנְתִינִים וּבִשְׁאָר הַגֵּרִים וְהַוָּלָד סָפֵק:

Footnotes
1.

These refer to a variety of incestuous and adulterous relationships as listed in the beginning of this text.

2.

I.e., he has a spiritual taint to his character.

3.

The difference between whether relations were willful, forced, or inadvertent is relevant only with regard to the punishment received by the man and woman. The child born of the offspring is considered as a mamzer regardless. This law teaches us an important lesson with regard to sexual morality. The effects of our deeds on our offspring is binding, regardless of whether we repent and/or seek to refine ourselves afterwards.

4.

As is the punishment for the violation of any Scriptural commandment.

5.

For the consecration alone does not involve the violation of a Scriptural commandment.

6.

Here the Rambam mentions both the man and the woman, for both are forbidden to engage in relations. In the former clause, he refers to the man, because the consecration is his responsibility.

7.

The Rambam's wording implies that the couple do receive lashes for their relations, for they have violated the prohibition: "There shall not be a promiscuous woman" (Deuteronomy 23:18) which forbids relations that are not carried out for the sake of marriage (Maggid Mishneh, based on Hilchot Ishut 1:4).

The Rambam's opinion is that the prohibition against relations with a mamzerapplies only within the context of marriage depends on the prooftext cited above: "A mamzer shall not enter the congregation of God," i.e., shall not marry among the Jewish people. According to the Rambam, the implication is that the prohibition must involve marriage (Rav Avraham, the son of the Rambam, as quoted in the Kessef Mishneh).

The Ra'avad, the Ramban, Rav Moshe HaCohen, and others do not agree with the Rambam's ruling and maintain that this prohibition applies even if there was no consecration. Relations alone are sufficient to establish liability. See the discussion of the issue in the Maggid Mishneh and Kessef Mishneh.

8.

Chapter 17, Halachah 3.

9.

I.e., and her second husband died or divorced her. The Rambam describes the prohibition against a man remarrying his divorcee after she was consecrated by another man in Hilchot Gerushin 11:12. The Maggid Mishneh states that the Rambam feels it necessary to emphasize that the offspring of such relations are not mamzerim even though the prohibition is not punishable by kereit, because Deuteronomy 24:4, the source for the prohibition describes such relations as "an abomination." That term is often used with regard to the ariot, the more severe sexual prohibitions.

10.

Thus although the woman committed adultery and is forbidden to her husband, the child is not considered as a mamzer. The rationale is that we pay no attention to the seed of the gentile or the servant, as stated in Halachah 4. Halachicly, it is as if the woman conceived the child independently.

11.

This law is based on the same rationale. Since we pay no attention to the seed of the servant or the gentile, the child takes on the same quality as the mother. Just as she is disqualified, so, too, is he.

12.

For there is no difference between him and other gentiles. See the following halachah.

13.

Whether Jewish, gentile, or a servant.

The Maggid Mishneh and Shulchan Aruch (Even HaEzer 7:17) quote views which state that if the offspring is female, she may not marry into the priesthood.

14.

The mamzer will purchase the servant and treat her as his wife. The children she bears him will be his property and they will not be mamzerim. If he desires, he may free them, at which point, their status is the same as other converts. If, by contrast, a mamzer would marry a convert, although there is no prohibition involved, the offspring would be mamzerim (Halachah 7).

15.

As she is forbidden to an ordinary Jewish male by Rabbinic decree (Chapter 12, Halachah 11).

16.

There are Rabbis today who advise that this practice should be followed by mamzerim. They should meet gentile woman, have them convert as servants, and live with them.

17.

E.g., a slave was owned by two partners, one of whom freed him and one did not. See Hilchot Avadim 5:4.

18.

The dimension of the father which was free causes him to have a dimension of mamzerut. For a free man who engages in relations with a married woman conceives a mamzer.

19.

For when a servant engages in relations with a married woman, the offspring are acceptable.

20.

This is forbidden to him as to other acceptable Jews, because of the dimension of his being that shares that status.

Rashi differs with this approach and maintains that he should be permitted to engage in relations with a maid-servant. See Chelkat Mechokek 4:19, Beit Shmuel 4:28.

21.

He may marry a convert or a freed servant, but their offspring share his status as stated in the Halachah 7.

22.

The Beit Shmuel 4:35 emphasizes that although such marriages are permitted, there is a certain unadvisable dimension to it, for it is undesirable to increase the number of mamzerim among the Jewish people.

23.

I.e., although he and his parents are considered as full Jews with regard to all matters, the prohibition against marrying a mamzer does not apply to him.

24.

The Shulchan Aruch (Even HaEzer 4:22) quotes the Rambam's view, but also that of Rabbenu Asher which states that after ten generations a convert is forbidden to marry a female mamzer.

25.

See Chapter 13, Halachah 11.

26.

Although there are some Rishonim who differ with the Rambam, the Shulchan Aruch (loc. cit.) quotes the Rambam's view.

27.

In Halachah 1 of this chapter.

28.

See Hilchot Ishut 4:21-22 for examples of such questionable consecrations.

29.

See Hilchot Gerushin 5:13 for examples of such questionable divorces.

30.

See Hilchot Gerushin 10:7 which explains this situation. Although the marriage of the second husband is not valid, for a married woman cannot be married to another man, our Sages decreed that the second marriage be considered binding with regard to this point: That a child fathered by her first husband be considered a mamzer.

31.

The Maggid Mishneh quotes an opinion that maintains that this ruling applies only after the fact. As an initial and preferred option, a native-born Jewess should not marry such a person. The Shulchan Aruch (Even HaEzer 4:26) quotes the Rambam's ruling. See also Chapter 18, Halachot 13-15.

Despite the fact that we have no existing presumption regarding the child's lineage, we rule that he or she is acceptable. The rationale is that the child has no alternative; its status depends on this ruling (Maggid Mishneh).

32.

E.g., they are mamzerim.

33.

For we have no way of determining the status of the father and it is possible that the father was a mamzer.

34.

I.e., her word is not effective in conclusively determining the child's status as a mamzer for the reason the Rambam proceeds to state. Her word is accepted in having the child deemed as legitimate, but not in having him deemed as a mamzer. See also Halachah 14 and Chapter 18, Halachah 14.

35.

We assume that she was promiscuous with more than one person and thus we have no way of determining the identity of the child's father. Thus the presumed father has no way of knowing whether or not the child was actually his (Maggid Mishneh).

The Rambam maintains that this rule applies even when the woman does not have a reputation for promiscuity. See Chelkat Mechokek 4:25 and Beit Shmuel 4:40 which discuss this issue.

36.

Shituki means "one who is silenced." Rashi, Yevamot 37a, explains that this name is given because the child will call out for his father and his mother will silence him.

37.

The term asufi means "one who was gathered in," i.e., the child was taken in from the street.

38.

Halachah 31 qualifies this ruling, stating that it applies only when it appears that the parents abandoned the child to die. If it is evident that the parents desired the child to live, e.g., they circumcised it, they gave it medical treatment, and/or placed it in a location where it was likely to be found, we assume that it was of acceptable lineage and was abandoned only because its parents were unable to provide for it.

39.

I.e., he does not inherit the named person's property, nor is his wife freed from the obligation of chalitzah if he dies childless (Maggid Mishneh). See Hilchot Yibbum ViChalitzah 3:4 where the latter law is discussed.

40.

See Halachah 12.

41.

I.e., he is not my son, but born from an adulterous relationship.

42.

Note Hilchot Nachalot 4:3 which states that once a father acknowledges a child as his son, he cannot declare him as illegitimate afterwards.

43.

For by invalidating the legitimacy of the son, he would automatically be invalidating the lineage of his offspring and the Torah did not give him that power as the Rambam continues to explain. See also Hilchot Nachalot 4:2.

44.

The verse speaks of a father recognizing his heirs in connection with the division of his estate. If the father states that he did not father a son that was presumed to be his, that son is thus identified as a mamzer, for he will have been conceived through adultery.

45.

The latter two concepts are relevant with regard to the sons of priests as will be explained in Chapter 19.

46.

His statement is not accepted as testimony, for a person may not testify against himself. Nevertheless, the restrictions he placed against himself are binding. It is as if he took a vow, forbidding himself to marry a native-born Jewess (Beit Shmuel 4:53)

47.

For we fear that he made these statements in order to be granted this leniency.

48.

According to Jewish Law, marriage is a two-staged process involving: a) consecration, kiddushin or erusin, and b) marriage, nissuin, when the couple begin living together as man and wife. From the time of consecration onward, however, the woman is forbidden to engage in relations with other men.

49.

These laws differ from those applying to a married woman, as stated in Halachot 19-20. The rationale is that we do not assume that a couple that is merely consecrated share intimacy with the same degree of consistency as a married couple. Nor is a consecrated woman likely to the same degree of fidelity as a married woman.

50.

He is forbidden to marry a native-born Jewess for it is possible that he is a mamzer. He is forbidden to marry a female mamzer, because it is possible that he is an acceptable Jewish male.

51.

As in Halachah 11. In this instance, since a bond has already been established between the couple, it is even more reasonable to accept her statements. This is speaking about a situation where the husband is not present to be questioned (Shulchan Aruch (Even HaEzer 4:27). The Rama states that the child is also considered as the presumed father's son with regard to receiving a share in the inheritance.

52.

As stated in Halachah 15. In contrast to a situation where the presumed father could not be asked, this child is definitely a mamzer and is forbidden to marry a native-born Jew or Jewess (ibid.).

53.

The term literally means "promiscuous woman," but has a specific halachic meaning, as the Rambam states in Chapter 18, Halachah 1: "A woman who entered into relations with a man who she is forbidden to marry." After consecration, every man would be prohibited to this woman.

The Torah gave the husband the right to determine his son's status. He does not, however, have the right to determine that of the woman (Ketubot 13a).

54.

After her first husband died.

55.

Nevertheless, since the man who consecrated her contradicts her statements, the initial and preferred option is for her not to marry a priest (Beit Shmuel 4:47). Similarly, if the person who consecrated her is a priest, he is forbidden to marry her.

56.

If the woman had been forbidden to the priesthood, her offspring would not be considered priests, as stated in Chapter 19.

57.

This is speaking about an instance when we cannot clarify the child's status by asking the mother.

58.

We have translated the term according to the prevalent understanding of the Rambam's ruling. Note, however, the Rama (Even HaEzer 4:29) who questions whether these laws also apply with regard to a woman who was only consecrated.

59.

And thus could not have fathered the child.

60.

The Beit Shmuel 4:52 interprets the Rambam's words as meaning "the child is a mamzer of questionable status," for the possibility exists that he was conceived by a gentile.

61.

As indicated by Halachah 11, the woman's word is accepted with regard to defining the legitimacy of her child's lineage.

62.

He does not know with how many people and with whom she was promiscuous.

63.

Although a full-term pregnancy is nine months, our Sages spoke of the possibility of a woman carrying a baby for twelve months. Although this is abnormal, when a man left his home between nine and twelve months before a child was born, they desired to consider that possibility rather than deem the child as a mamzer. See Yevamot 80b.

Rama (Even HaEzer 4:14) states that the above leniency is granted only when we do not see moral lapses in the woman's conduct. If, however, she conducts herself in an unbecoming manner, we suspect the child's lineage.

64.

Rashi (Yevamot 27b) states that one should marry the offspring only when there is no other alternative.

65.

And hence may not marry a priest. Even an Israelite should refrain from marrying such a woman (Maggid Mishneh). After the fact, if she marries a priest, we do not require a divorce (Beit Shmuel 4:24).

66.

Sotah 27b raises this question, but leaves the matter unresolved. Accordingly, it is appropriate to be stringent (Maggid Mishneh).

67.

According to the Rambam, the general principle is that according to Scriptural Law, whenever there is a doubt whether an act is forbidden, there is no prohibition. Our Rabbis, however, decreed that when there is a doubt with regard to a Scriptural prohibition, we are stringent. Others differ and maintain that according to Scriptural Law, if there is a doubt concerning a prohibition, it must be observed. There is a special leniency, stemming from a verse from the Torah, when a doubt arises whether a person is a mamzer or not. See Chapter 18, Halachah 17.

68.

See Halachah 10.

69.

See Halachah 12.

70.

See Halachah 13.

71.

For there is no Scriptural prohibition involved.

72.

As the Rambam continues to explain in the following halachah.

73.

For the marriage, though forbidden, is binding according to Jewish Law.

74.

As stated in Halachah 7.

75.

We treat him as neither a Jew nor a gentile as the Rambam continues to illustrate. The Maggid Mishneh explains that the ruling follows the principle: Whenever a doubt arises and the permitted and the forbidden entities are fixed, we do not follow the majority, but instead, considered the situation as equally balanced.

76.

I.e., the couple are not allowed to remain married for perhaps he is a gentile, but a formal divorce is necessary, for perhaps he is a Jew and the consecration is binding.

77.

For perhaps he is a gentile.

78.

As is the law which applies with regard to any child convert (Chapter 13, Halachah 7).

79.

He is bound by the restrictions applying to a mamzer whose status is doubtful despite the possibility that they might not apply because he is a convert.

The Ra'avad rules that in such a situation, he is considered as any other convert and allowed to marry a native-born Jewesses The Maggid Mishneh explains the rationale for the Ra'avad's position, stating that there is a multiple doubt involved: Maybe he is not of Jewish origin, and if he is of Jewish origin, maybe he is not a mamzer. Moreover, the entire prohibition against an asufi is Rabbinic in origin. (For according to Scriptural Law, only a mamzer whose status is definite is forbidden). The Shulchan Aruch (Even HaEzer 4:33) quotes the Rambam's view. The Chelkat Mechokek 4:31 questions why the Ra'avad's view is not cited, but the Beit Shmuel 4:54 explains that according to the Rambam, with regard to questions of lineage, we are stringent even in such situations.

80.

This and the following laws apply when the person did not convert (Maggid Mishneh). For the principle that we consider the populations as equally balanced applies only with regard to questions of lineage.

81.

The Kessef Mishneh notes that Ketubot 16b, the source for the Rambam's ruling, could be interpreted as making such a statement only in a situation where the majority of the inhabitants are Jewish. He, however, offers an interpretation of the passage which conforms to the Rambam's ruling.

82.

I.e., we must support him in situations of need.

83.

To save his life even though doing so involves violation of the Sabbath laws.

The Maggid Mishneh cites opinions which maintain that this ruling applies even if the majority of the inhabitants are gentiles. For when a question of life and death is involved, we do not require a majority. See Hilchot Shabbat 2:20-21 and notes for an explanation of the matter.

84.

There are certain situations where the laws applying to gentiles are more severe than those applying to a Jew. For example, if an ox belonging to a gentile that is not known to gore does in fact gore an ox belonging to a Jew, the gentile is required to pay full damages. A Jew, by contrast, would be required to pay only partial damages. If such a situation would arise with regard to a person's whose identity in doubt, he could tell the plaintiff: "If you prove I am not a Jew, I will pay full damages."

85.

Halachah 23. I.e., if he marries without undergoing conversion (Chelkat Mechokek 4:36).

86.

For perhaps he is a gentile or a servant. Just as he could have been born by a Jewish mother, he could have been born by one of these. We do not consider the degree of probability involved.

87.

Needless to say, such relations are forbidden. The Rambam is emphasizing that punishment is not meted out. Because punishment is not given unless we are certain there is a prohibition involved.

The Ra'avad differs with the Rambam's view and maintains that even with regard to capital punishment, we follow the probability. Hence if the majority of the inhabitants of the city are Jewish, we assume that the asufi is Jewish and his consecration of the woman is binding. The Maggid Mishneh justifies the Rambam's ruling, explaining that in all instances, the asufi is not considered as definitely Jewish.

88.

A woman who could be a close relative with whom relations are forbidden. See the following halachah.

89.

For perhaps the woman he marries is his sister (since he does not know the identity of his father, it is possible that her father was also his father) or the sister of his father.

90.

I.e., before she was divorced or widowed her husband (or her husband's brother) fathered the shituki.

91.

The license the Rambam speaks about applies according to Scriptural Law. According to Rabbinic Law, a shituki is forbidden to marry a native-born Jew or Jewess (Halachot 21-23).

92.

See Halachah 11.

93.

Yevamot 37b. The verse refers to a situation where a father allows his daughter to act promiscuously and thus it will not be known who is the father of her child. If this would happen in numerous instances, there would be many children who did not know the identity of their fathers and it would be possible for a brother to marry his sister.

94.

For if a man who did not know the identity of his father were restricted in the above manner, there would be no room for our Sages' concern, for he would be prohibited against marrying any woman whose ties could in any way be incestuous.

95.

I.e., from the fact that our Sages did not enforce such a restriction.

96.

Before the child was brought home.

97.

It was customary in the Talmudic era to apply salt to newborn babies to strengthen their limbs.

98.

This substance was used in the Talmudic era for both medicinal and cosmetic purposes.

99.

I.e., the mystical writing in the amulet was intended to protect the child.

100.

We assume that a mother may want to abandon a child who is a mamzer so that it will die and there will be no sign of her sin. If, however, she and/or the father performed acts which indicate that they desired the child to live - even though they did not desire to care for it themselves - we assume that the child was of legitimate origin.

101.

I.e., in a place where it would most likely die or be killed.

102.

See Chapter 12, Halachot 22-23.

103.

The Beit Shmuel 4:60 explains that generally, the protest of one witness is not accepted against testimony which was previously accepted. In this instance, however, the child's identity is not known at all and there is no existing presumption regarding his status. Hence the protest cancels out the original testimony.

104.

Even though the midwidfe said that he was a mamzer.

105.

If the midwife said he was of this lineage.

106.

I.e., it is possible that one of them will be acceptable and one illegitimate.

107.

For the child takes on the blemished identity, as stated in Halachah 7.

Issurei Biah - Chapter Sixteen

1

A man with maimed testicles or a severed member who married a native-born Jewess and engaged in sexual relations1 is punished by lashes, as [Deuteronomy 23:2] states: "A person with maimed testicles or a severed member may not enter the congregation of God."

Such a man may marry a female convert or a freed maid-servant. Even a priest with maimed testicles may marry a female convert or a freed maid-servant, because the holiness [of the priesthood] does not rest upon him. He is permitted to marry even a female netin2 or a woman whose status is in doubt.

א

פְּצוּעַ דַּכָּא וּכְרוּת שָׁפְכָה שֶׁנָּשְׂאוּ בַּת יִשִׂרָאֵל וּבָעֲלוּ לוֹקִין שֶׁנֶּאֱמַר (דברים כג ב) "לֹא יָבֹא פְצוּעַ דַּכָּא וּכְרוּת שָׁפְכָה בִּקְהַל ה'". וּמֻתָּרִין לִשָּׂא גִּיֹּרֶת וּמְשֻׁחְרֶרֶת. וַאֲפִלּוּ כֹּהֵן שֶׁהוּא פְּצוּעַ דַּכָּא מֻתָּר לִשָּׂא גִּיֹּרֶת וּמְשֻׁחְרֶרֶת לְפִי שֶׁאֵינוֹ בִּקְדֻשָּׁתוֹ. וַאֲפִלּוּ נְתִינָה אוֹ אֶחָד מִן הַסְּפֵקוֹת מֻתֶּרֶת לוֹ:

2

Since a man with a maimed organ is forbidden to marry among the Jewish people, [our Sages] did not decree against his marrying a female netin or a woman whose status is in doubt.3 A man with maimed testicles or a severed member is, however, forbidden to [marry] a female mamzer4 whose status is definite, because this prohibition is of Scriptural origin.

ב

הוֹאִיל וּפְצוּעַ דַּכָּא אָסוּר לָבוֹא בַּקָּהָל לֹא גָּזְרוּ בּוֹ עַל הַנְּתִינִים וְלֹא עַל הַסְּפֵקוֹת. אֲבָל פְּצוּעַ דַּכָּא וּכְרוּת שָׁפְכָה אָסוּר בְּמַמְזֶרֶת וַדָּאִית שֶׁהֲרֵי אֲסוּרָה מִן הַתּוֹרָה:

3

What is meant by maimed testicles? Anyone whose testicles have been wounded. What is meant by a severed member? Anyone whose shaft has been cut off.

There are three organs to which wounds can disqualify a male: the shaft, the testicles, and the tract in which the semen develops. If one of these three was wounded or crushed, the man is disqualifed.5

ג

ואֵי זֶהוּ פְּצוּעַ דַּכָּא. כָּל שֶׁנִּפְצְעוּ הַבֵּיצִים שֶׁלּוֹ. וּכְרוּת שָׁפְכָה כָּל שֶׁנִּכְרַת הַגִּיד שֶׁלּוֹ. וּבִשְׁלֹשָׁה אֵיבָרִין אֶפְשָׁר שֶׁיִּפָּסֵל הַזָּכָר בַּגִּיד וּבַבֵּיצִים וּבַשְּׁבִילִין שֶׁבָּהֶן תִּתְבַּשֵּׁל שִׁכְבַת זֶרַע וְהֵן הַנִּקְרָאִין חוּטֵי בֵּיצִים. וְכֵיוָן שֶׁנִּפְצַע אֶחָד מִשְּׁלֹשָׁה אֵיבָרִין אֵלּוּ אוֹ נִדָּךְ הֲרֵי זֶה פָּסוּל:

4

What is implied? If the shaft is wounded, crushed, or cut off from the corona or above the corona,6 he is disqualified. If a portion at the top of the corona is cut off, but even a hairsbreadth [of the corona] remains which surrounds the entire shaft, he is acceptable. If the shaft was cut like a pen is sharpened or like a funnel above the corona,7 he is acceptable.8

ד

כֵּיצַד. נִפְצַע הַגִּיד אוֹ נִדָּךְ אוֹ שֶׁנִּכְרַת הָעֲטָרָה אוֹ לְמַעְלָה מֵעֲטָרָה פָּסוּל. וְאִם נִכְרַת מֵרֹאשׁ הָעֲטָרָה וְנִשְׁתַּיֵּר מִמֶּנָּה אֲפִלּוּ כְּחוּט הַשַּׂעֲרָה מֻקָּף לְכָל הַגִּיד כָּשֵׁר. נִכְרַת הַגִּיד לְמַעְלָה מֵעֲטָרָה כְּקֻלְמוֹס אוֹ כְּמַרְזֵב כָּשֵׁר:

5

If the shaft is perforated below the corona, he is acceptable. [The following rules apply if] the corona itself is perforated. If when the person ejaculates, semen emerges from the hole, he is unacceptable. If the hole becomes closed, he returns to acceptable status. If the shaft is perforated below the corona when the portion above is in the midst of corona, he is disqualified. For the entire corona must be intact [for the person to be acceptable].

ה

נִקַּב לְמַטָּה מֵעֲטָרָה כָּשֵׁר. נִקְּבָה הָעֲטָרָה עַצְמָהּ אִם כְּשֶׁיִּרְאֶה קֶרִי תֵּצֵא שִׁכְבַת זֶרַע מִן הַנֶּקֶב פָּסוּל. נִסְתַּם הַנֶּקֶב חָזַר לְהֶכְשֵׁרוֹ. נִקַּב לְמַטָּה מֵעֲטָרָה שֶׁכְּנֶגְדּוֹ לְמַעְלָה בְּתוֹךְ הָעֲטָרָה פָּסוּל שֶׁהָעֲטָרָה כֻּלָּהּ מְעַכֶּבֶת:

6

If the seminal tract becomes obstructed and the semen emerges from the urinary tract, he is unacceptable.

ו

נִסְתַּם שְׁבִיל שִׁכְבַת זֶרַע וְחָזַר לִרְאוֹת שִׁכְבַת זֶרַע מִשְּׁבִיל שֶׁמַּשְׁתִּין בּוֹ הֲרֵי זֶה פָּסוּל:

7

If both or one of the testicles9 were severed, wounded, or crushed or one was lacking or pierced by a hole, he is unacceptable. If both or one of the seminal tracts are severed, crushed, or wounded, he is unacceptable.

ז

נִכְרְתוּ הַבֵּיצִים אוֹ אַחַת מֵהֶן אוֹ שֶׁנִּפְצְעָה אַחַת מֵהֶן אוֹ שֶׁנִּדּוֹכָה אַחַת מֵהֶן אוֹ שֶׁחָסְרָה אוֹ שֶׁנִּקְּבָה הֲרֵי זֶה פָּסוּל. נִכְרְתוּ חוּטֵי בֵּיצִים אוֹ אַחַת אוֹ שֶׁנִּדָּךְ אוֹ נִפְצַע הֲרֵי זֶה פָּסוּל:

8

If one of the seminal tracts was perforated into the urinary tract and the person urinates from two sources - the seminal tract and the urinary tract - he is acceptable.10

ח

נִקַּב חוּט מִחוּטֵי הַבֵּיצִים לִשְׁבִיל מֵי רַגְלַיִם וַהֲרֵי הוּא מַטִּיל מַיִם מִשְּׁנֵי מְקוֹמוֹת מִשְּׁבִיל הַמַּיִם וּמִשְּׁבִיל שִׁכְבַת זֶרַע הֲרֵי זֶה כָּשֵׁר:

9

Whenever we have used the term "unacceptable" in this context, the implication is that [the malady] was not caused by the hand of heaven, e.g., [his testicles] were severed by a man or a dog, he was struck by a sharp end, or the like. If, however, he was born with maimed testicles or a severed member, or without testicles, he became ill because of a bodily ailment and these organs ceased to function, or an ulcer arose in them that caused them to waste away or be severed,11 he is permitted to marry among the Jewish people. For all of these blemishes are caused by the hand of heaven.

ט

כָּל פָּסוּל שֶׁאָמַרְנוּ בְּעִנְיָן זֶה כְּשֶׁלֹּא הָיוּ בִּידֵי שָׁמַיִם כְּגוֹן שֶׁכְּרָתוֹ אָדָם אוֹ כֶּלֶב אוֹ הִכָּהוּ קוֹץ וְכַיּוֹצֵא בִּדְבָרִים אֵלּוּ. אֲבָל אִם נוֹלַד כְּרוּת שָׁפְכָה אוֹ פְּצוּעַ דַּכָּא אוֹ שֶׁנּוֹלַד בְּלֹא בֵּיצִים אוֹ שֶׁחָלָה מֵחֲמַת גּוּפוֹ וּבָטְלוּ מִמֶּנּוּ אֵיבָרִים אֵלּוּ אוֹ שֶׁנּוֹלַד בָּהֶם שְׁחִין וְהֵמֵסָּה אוֹתָן אוֹ כְּרָתָן הֲרֵי זֶה כָּשֵׁר לָבֹא בַּקָּהָל שֶׁכָּל אֵלּוּ בִּידֵי שָׁמַיִם:

10

It is forbidden to destroy a male's reproductive organs. This applies to humans and also to animals, beasts, and fowl, both from a kosher species and from a non-kosher species, in Eretz Yisrael and in the Diaspora. Although [Leviticus 22:24] states: "And you shall not do this in your land,"12 According to the Oral Tradition,13 we learned that this [prohibition] is applicable in every place. The verse teaches that one should not act in this manner among the Jewish people, not with their own bodies, nor with the bodies of others.

Whoever castrates [a person or an animal] should be lashed14 according to Scriptural Law everywhere. Even a person who castrates a person who has been castrated should be lashed.

י

אָסוּר לְהַפְסִיד אֵיבְרֵי זֶרַע בֵּין בְּאָדָם בֵּין בִּבְהֵמָה חַיָּה וְעוֹף. אֶחָד טְמֵאִים וְאֶחָד טְהוֹרִים. בֵּין בְּאֶרֶץ יִשְׂרָאֵל בֵּין בְּחוּצָה לָאָרֶץ. אַף עַל פִּי שֶׁנֶּאֱמַר (ויקרא כב כד) "וּבְאַרְצְכֶם לֹא תַעֲשׂוּ" מִפִּי הַשְּׁמוּעָה לָמְדוּ שֶׁדָּבָר זֶה נוֹהֵג בְּכָל מָקוֹם. וְעִנְיַן הַכָּתוּב לֹא יֵעָשֶׂה זֹאת בְּיִשְׂרָאֵל בֵּין בְּגוּפָן בֵּין בְּגוּף אֲחֵרִים. וְכָל הַמְסָרֵס לוֹקֶה מִן הַתּוֹרָה בְּכָל מָקוֹם. וַאֲפִלּוּ מְסָרֵס אַחַר מְסָרֵס לוֹקֶה:

11

What is implied? One came and severed a person's member, another cut off or pulled away his testicles and a third cut his seminal tract; all receive lashes. Similarly, if one crushed a person's member, another pulled it away, and a third cut it off, all receive lashes. [This applies] although the last person castrated a person - or an animal, beast, or fowl - who had already been castrated.

A person who castrates a female - whether a human or other species - is not liable.15

יא

כֵּיצַד. הֲרֵי שֶׁבָּא אֶחָד וְכָרַת אֶת הַגִּיד וּבָא אַחֵר וְכָרַת אֶת הַבֵּיצִים אוֹ נִתְּקָן וּבָא אַחֵר וְכָרַת חוּטֵי בֵּיצִים. אוֹ שֶׁבָּא אֶחָד וּמָעַךְ אֶת הַגִּיד וּבָא אַחֵר וְנִתְּקוֹ וּבָא אַחֵר וּכְרָתוֹ כֻּלָּן לוֹקִין. וְאַף עַל פִּי שֶׁלֹּא סֵרֵס הָאַחֲרוֹן אֶלָּא מְסֹרָס. בֵּין בָּאָדָם בֵּין בִּבְהֵמָה חַיָּה וָעוֹף. וְהַמְסָרֵס אֶת הַנְּקֵבָה בֵּין בְּאָדָם בֵּין בִּשְׁאָר מִינִים פָּטוּר:

12

It is forbidden to have a man or a male of another species drink a potion that causes him to lose his sexual potency. Lashes are not given, however. A woman is permitted to drink a potion to cause her to lose her sexual potency so that she will not conceive.16

If a person bound a man and set a dog or other animal upon him until his sexual organs were maimed or he made him sit in water or snow until his sexual organs lost their potency, he is not given lashes unless he castrates him by hand. It is, however, fitting to subject him to stripes for rebellious conduct.17

יב

הַמַּשְׁקֶה עִקָּרִין לְאָדָם אוֹ לִשְׁאָר מִינִים כְּדֵי לְסָרְסוֹ הֲרֵי זֶה אָסוּר וְאֵין לוֹקִין עָלָיו. וְאִשָּׁה מֻתֶּרֶת לִשְׁתּוֹת עִקָּרִין כְּדֵי לְסָרְסָהּ עַד שֶׁלֹּא תֵּלֵד. הֲרֵי שֶׁכָּפָה אֶת הָאָדָם וְשִׁסָּה בּוֹ כֶּלֶב אוֹ שְׁאָר חַיּוֹת עַד שֶׁעֲשָׂאוּהוּ כְּרוּת שָׁפְכָה אוֹ שֶׁהוֹשִׁיבוֹ בַּמַּיִם אוֹ בַּשֶּׁלֶג עַד שֶׁבִּטֵּל מִמֶּנּוּ אֵיבְרֵי תַּשְׁמִישׁ אֵינוֹ לוֹקֶה עַד שֶׁיְּסָרֵס בְּיָדוֹ. וְרָאוּי לְהַכּוֹתוֹ מַכַּת מַרְדּוּת:

13

It is forbidden to tell a gentile to castrate one of our animals. If the gentile took the animal and castrated it on his own initiative, it is permitted.18If a Jew acts deceitfully in this context,19 he should be punished and required to sell the animal to another Jew. He may [sell it] to his son who is past majority, but not to his son who is below majority, nor may he give it to him.20

יג

אָסוּר לוֹמַר לְעַכּוּ''ם לְסָרֵס בְּהֵמָה שֶׁלָּנוּ. וְאִם לְקָחָהּ הוּא מֵעַצְמוֹ וְסֵרְסָהּ מֻתָּר. וְאִם הֶעֱרִים יִשְׂרָאֵל בְּדָבָר זֶה קוֹנְסִין אוֹתוֹ וּמוֹכְרָהּ לְיִשְׂרָאֵל אַחֵר. וַאֲפִלּוּ לִבְנוֹ הַגָּדוֹל מֻתָּר לְמָכְרָהּ. אֲבָל לִבְנוֹ הַקָּטָן אֵינוֹ מוֹכְרָהּ לוֹ וְלֹא נוֹתְנָה לוֹ:

Footnotes
1.

As explained in Chapter 15, Halachah 2, all of the prohibitions against sexual relations that involve the violation of a negative commandment alone involve a situation where the woman has been consecrated. As mentioned in the notes to that halachah, there are other authorities who differ with the Rambam on this matter.

2.

See Chapter 12, Halachot 22-23.

3.

To anyone other than a halachic authority, the Rambam's ruling appears problematic: A woman whose status is in doubt is either a female mamzer or an acceptable native-born Jewess. In either case, this man would be forbidden to marry her. Why then is he permitted when her status is not clarified?

Halachically, however, Kiddushin 73a interprets the phrase "He shall not enter God's congregation," as forbidding one from marrying only a person whose lineage is definite. The Rambam maintains that even the Sages did not enforce a decree in this instance. (See Beit Shmuel 5:2.)

4.

The Rambam's position is that although having a maimed organ disqualifies a priest from the holiness of the priesthood, it does not disqualify an Israelite from the holiness with which he is endowed. The Ra'avad differs with this ruling and states that a man with a maimed organ may marry a female mamzer. The Maggid Mishneh mentions other authorities who follow both of these views. The Shulchan Aruch (Even HaEzer 5:1) follows the position of the Rambam, while the Rama mentions the other view.

5.

In his Commentary to the Mishnah (Yevamot 8:2), the Rambam states that any difficulty which renders a man sterile according to medical knowledge disqualifies him from marriage.

6.

I.e., any portion of the shaft between the corona and the body that is cut off disqualifies the person.

7.

I.e., any portion of the shaft between the corona and the body that is cut off disqualifies the person.

8.

Rashi (Yevamot 75b) differs and disqualifies such a person. The Shulchan Aruch (Even HaEzer 5:3) quotes both views without stating which should be followed.

9.

The Rama (Even HaEzer 5:7) states that there are authorities who do not disqualify a person if one testicle is intact. He states, however, that since a Scriptural prohibition is involved, it is preferable to follow the more stringent view.

10.

For this difficulty will not prevent him from conceiving a child.

11.

Rabbenu Asher differs with regard to the latter two instances and does not consider illness and the like as "by the hand of heaven." Shulchan Aruch (Even HaEzer 5:10) quotes both views without stating which one should be followed. [See also Rav Kappach's notes to the Rambam's Commentary to the Mishnah (Yevamot 8:2) which discuss whether or not this ruling involved a change of mind for the Rambam.]

12.

Which could be understood as implying that the prohibition applies only in Eretz Yisrael.

13.

Sifra to the above verse.

14.

The punishment given for the violation of a Scriptural commandment.

15.

The Maggid Mishneh and the Shulchan Aruch (Even HaEzer 5:11 interpret the Rambam's statements as meaning that although there is a prohibition against doing so, lashes are not given.

16.

This ruling serves as the basis for contemporary Rabbis to permit women to take oral contraceptives.

17.

The punishment given for violating a Rabbinic commandment.

18.

As long as the gentile acted on his own initiative, the Jew is not obligated to suffer a loss.

19.

I.e., encouraging a gentile to castrate the animal without actually telling him to do so.

20.

For a son below majority is not considered as having an independent financial domain. See the Rama (Even HaEzer 5:14) who mentions more particulars concerning this issue.

Issurei Biah - Chapter Seventeen

1

There are three women who are forbidden to all priests [by Scriptural Law]: a divorcee, a zonah,1 and a challalah.2 There are four [forbidden to] a High Priest. These three and a widow.

Bound by [the prohibitions applying to a High Priest] are one anointed with the oil of anointment3 or one who assumed his position by wearing the additional garments,4 one serving in that capacity, a High Priest who was appointed and then removed from the office, and a priest anointed to lead a war.5 All of these are commanded [to marry] a virgin and are forbidden to marry a widow.6

א

שָׁלֹשׁ נָשִׁים נֶאֶסְרוּ עַל כָּל הַכֹּהֲנִים. גְּרוּשָׁה זוֹנָה וַחְללָה. וִעַל כֹּהֵן גָּדוֹל אַרְבַּע. אֵלּוּ הַשָּׁלֹשׁ וְהָאַלְמָנָה. אֶחָד כֹּהֵן גָּדוֹל מָשׁוּחַ בְּשֶׁמֶן הַמִּשְׁחָה אוֹ הַמְרֻבֶּה בְּגָדִים. וְאֶחָד כֹּהֵן הָעוֹבֵד וְאֶחָד כֹּהֵן גָּדוֹל שֶׁמִּנּוּהוּ וְעָבַר. וְכֵן כֹּהֵן מְשׁוּחַ מִלְחָמָה. כֻּלָּן מְצֻוִּין עַל הַבְּתוּלָה וַאֲסוּרִין בְּאַלְמָנָה:

2

Any priest who marries7 one of these three women - whether a High Priest or an ordinary priest - and engages in relations is punished by lashes. If he enters into promiscuous relations with her, he does not receive lashes for [violating the prohibitions against] a zonah, a divorcee, and a challalah.8 [This is derived from the fact that Leviticus 21:7 states the prohibition using the term:] "They shall not take." [Implied is that the prohibition does not apply] unless he takes - marries - [the woman] and enters into relations with her.9

ב

כָּל כֹּהֵן שֶׁנָּשָׂא אַחַת מֵהַשָּׁלֹשׁ נָשִׁים אֵלּוּ בֵּין גָּדוֹל בֵּין הֶדְיוֹט וּבָעַל לוֹקֶה. וְאִם בָּא עָלֶיהָ דֶּרֶךְ זְנוּת אֵינוֹ לוֹקֶה מִשּׁוּם זוֹנָה אוֹ גְּרוּשָׁה אוֹ חֲלָלָה שֶׁנֶּאֱמַר (ויקרא כא ז) "לֹא יִקָּחוּ" עַד שֶׁיִּקַּח וְיִבְעל:

3

When, by contrast, a High Priest enters into relations with a widow, he receives lashes even though he did not consecrate her. [This is derived from ibid.:15 which states]: "And he shall not desecrate...." As soon as he engages in relations with her, he desecrates her and disqualifies her from the priesthood.10A zonah, challalah, and divorcee, by contrast, are disqualified from the priesthood before one enters into relations with them.11 Therefore a High Priest alone receives lashes for merely entering into relations with a widow even though she was not consecrated. For he desecrates her and he is warned against desecrating people of acceptable lineage, [other] women and his offspring.

ג

אֲבָל כֹּהֵן גָּדוֹל שֶׁבָּא עַל אַלְמָנָה לוֹקֶה אַחַת אַף עַל פִּי שֶׁלֹּא קִדֵּשׁ שֶׁנֶּאֱמַר (ויקרא כא טו) "לֹא יְחַלֵּל" כֵּיוָן שֶׁבְּעָלָהּ חִלְּלָהּ וּפְסָלָהּ לִכְהֻנָּה. אֲבָל זוֹנָה וַחֲלָלָה וּגְרוּשָׁה הֲרֵי הֵן מְחֻלָּלוֹת וְעוֹמְדוֹת קֹדֶם בְּעִילָתוֹ. וּלְפִיכָךְ לוֹקֶה כֹּהֵן גָּדוֹל לְבַדּוֹ עַל בְּעִילַת אַלְמָנָה לְבַדָּהּ אַף עַל פִּי שֶׁאֵין שָׁם קִדּוּשִׁין שֶׁהֲרֵי חִלְּלָהּ וְהוּא מֻזְהָר שֶׁלֹּא יְחַלֵּל כְּשֵׁרִים לֹא אִשָּׁה וְלֹא זַרְעוֹ:

4

When a High Priest consecrates a widow and enters into relations with her, he receives two sets of lashes: one because of the prohibition: "He shall not take a widow," and one because of the prohibition: "He shall not desecrate." Whether a High Priest or an ordinary priest marries one of these four, but does not engage in relations, he does not receive lashes.

ד

קִדֵּשׁ כֹּהֵן גָּדוֹל אַלְמָנָה וּבְעָלָהּ לוֹקֶה שְׁתַּיִם. אַחַת מִשּׁוּם (ויקרא כא יד) "אַלְמָנָה לֹא יִקָּח". וְאַחַת מִשּׁוּם (ויקרא כא טו) "לֹא יְחַלֵּל". וּבֵין כֹּהֵן גָּדוֹל וּבֵין כֹּהֵן הֶדְיוֹט שֶׁנָּשָׂא אִשָּׁה מִן הָאַרְבַּע וְלֹא בָּעַל אֵינוֹ לוֹקֶה:

5

Whenever [the priest] receives lashes, the woman [with whom he engages in relations] is given lashes.12 Whenever he does not receive lashes, she does not receive lashes. For there is no difference between a man and a woman with regard to punishments with the exception of a designated maidservant as explained.13

ה

וְכָל מָקוֹם שֶׁהוּא לוֹקֶה הִיא לוֹקָה. וְכָל מָקוֹם שֶׁהוּא אֵינוֹ לוֹקֶה הִיא אֵינָהּ לוֹקָה. שֶׁאֵין הֶפְרֵשׁ בֵּין אִישׁ לְאִשָּׁה לָעֳנָשִׁין זוּלָתִי בְּשִׁפְחָה חֲרוּפָה בִּלְבַד כְּמוֹ שֶׁבֵּאַרְנוּ:

6

Any priest - whether a High Priest or an ordinary priest - who enters into relations with a gentile woman receives lashes for relations with a zonah.14 [There is a difference between her and a Jewish woman,]15 because she cannot be consecrated. He is forbidden to enter into relations with any zonah, whether a Jewess or a gentile.

ו

כָּל כֹּהֵן הַבָּא עַל הַכּוּתִית בֵּין גָּדוֹל בֵּין הֶדְיוֹט לוֹקֶה מִשּׁוּם זוֹנָה. שֶׁהֲרֵי אֵינָהּ בַּת קִדּוּשִׁין וְהוּא אָסוּר בִּבְעִילַת זוֹנָה בֵּין יִשְׂרְאֵלִית בֵּין כּוּתִית:

7

A woman who has undergone the rite of chalitzah (a chalutzah)16 is forbidden to a priest according to the Rabbinic tradition, for she resembles a divorcee.17 [If he engages in relations with such a woman,] he is given "stripes for rebellious conduct."18

When a priest marries a woman whose status as a chalutzah is doubtful,19 he is not compelled to divorce her.20 She is acceptable21 and her child is acceptable.22 For our Sages did not decree against a woman whose status as a chalutzah is doubtful, only against one who is definitely in that category. When it is questionable if a woman is a divorcee,23 a widow,24 a zonah,25 or a challalah,26 [a priest who marries her] is given "stripes for rebellious conduct" and required to divorce her with a get.27

ז

הַחֲלוּצָה אֲסוּרָה לְכֹהֵן מִדִּבְרֵי סוֹפְרִים מִפְּנֵי שֶׁהִיא כִּגְרוּשָׁה וּמַכִּין אוֹתוֹ מַכַּת מַרְדּוּת מִדִּבְרֵיהֶם. כֹּהֵן שֶׁנָּשָׂא סְפֵק חֲלוּצָה אֵין מוֹצִיאִין אוֹתָהּ מִתַּחְתָּיו וְהִיא כְּשֵׁרָה וּוְלָדָהּ כָּשֵׁר. מִפְּנֵי שֶׁלֹּא גָּזְרוּ עַל סְפֵק חֲלוּצָה אֶלָּא עַל חֲלוּצָה וַדָּאִית. וְכֵן מִי שֶׁהָיְתָה סְפֵק גְּרוּשָׁה אוֹ סְפֵק אַלְמָנָה אוֹ סְפֵק זוֹנָה וּסְפֵק חֲלָלָה מַכִּין אוֹתוֹ מַכַּת מַרְדּוּת וּמוֹצִיא בְּגֵט:

8

There is a major general principle that applies with regard to all of the Torah's prohibitions. One prohibition does not take effect when another prohibition is in effect unless:

a) both of the prohibitions take effect at the same time;28

b) the latter prohibition forbids additional entities besides [the entity that was originally] prohibited;29

c) when the scope of the [latter] prohibition encompasses other entities together with [the entity that was originally] prohibited.30

ח

כְּלָל גָּדוֹל הוּא בְּכָל אִסּוּרִים שֶׁבַּתּוֹרָה שֶׁאֵין אִסּוּר חָל עַל אִסּוּר אֶלָּא אִם כֵּן הָיוּ שְׁנֵי אִסּוּרִין בָּאִין כְּאַחַת. אוֹ שֶׁהָיָה הָאִסּוּר הָאֶחָד מוֹסִיף דְּבָרִים אֲחֵרִים עַל אוֹתוֹ הָאִסּוּר. אוֹ אִם הָיָה כּוֹלֵל דְּבָרִים אֲחֵרִים עִם אִסּוּר זֶה:

9

Accordingly,31 When a woman was a widow and then she became a divorcee,32 and then she became a challalah,33 and then she became a zonah,34 should a High Priest engage in relations with her afterwards, he receives four sets of lashes for engaging in relations once. For a widow is forbidden to a High Priest, but permitted to an ordinary priest.

ט

לְפִיכָךְ אִשָּׁה שֶׁהָיְתָה אַלְמָנָה וְנַעֲשֵׂית גְּרוּשָׁה וְנַעֲשֵׂית חֲלָלָה וְנַעֲשֵׂית זוֹנָה וּבָא עָלֶיהָ כֹּהֵן גָּדוֹל אַחַר כָּךְ לוֹקֶה אַרְבַּע מַלְקִיּוֹת עַל בִּיאָה אַחַת. לְפִי שֶׁהָאַלְמָנָה אֲסוּרָה לְכֹהֵן גָּדוֹל וּמֻתֶּרֶת לְהֶדְיוֹט.

10

When she becomes a divorcee, she becomes forbidden by an additional prohibition [for] she is also forbidden to an ordinary priest. Therefore, [even for the High Priest,] another prohibition aside from that against relations with a widow is added to her. She is, nevertheless, still permitted to partake of terumah.35 If she becomes a challalah, another prohibition is added to her, for she is forbidden to partake of terumah. She is, nevertheless, still permitted to marry an Israelite.

If she becomes a zonah, another prohibition is added to her, since there is a type of promiscuous relations that would cause her to be forbidden to an Israelite, e.g., a married woman engaged in adultery voluntarily.

The same principle applies36 to an ordinary priest who engaged in relations with a divorcee who became a challalah and then a zonah. He receives three sets of lashes for engaging in relations once. If this order is altered,37 she only receives one set of lashes.38

י

חָזְרָה לִהְיוֹת גְּרוּשָׁה נוֹסָף בָּהּ אִסּוּר וְנֶאֱסֶרֶת לְכֹהֵן הֶדְיוֹט. לְפִיכָךְ נוֹסָף בָּהּ אִסּוּר אַחֵר עַל אִסּוּר הָאַלְמָנָה וַעֲדַיִן הִיא מֻתֶּרֶת לֶאֱכל בִּתְרוּמָה. נַעֲשֵׂית חֲלָלָה נוֹסָף בָּהּ אִסּוּר שֶׁהֲרֵי נֶאֱסֶרֶת בִּתְרוּמָה וַעֲדַיִן הִיא מֻתֶּרֶת לְיִשְׂרָאֵל. נַעֲשֵׂית זוֹנָה הוֹאִיל וְיֵשׁ שֵׁם זְנוּת שֶׁאוֹסְרָהּ עַל יִשְׂרָאֵל אִם זִנְּתָה אִשְׁתּוֹ בְּרָצוֹן נוֹסָף בָּהּ אִסּוּר אַחֵר. וְהוּא הַדִּין לְכֹהֵן הֶדְיוֹט שֶׁבָּא עַל הַגְּרוּשָׁה שֶׁנַּעֲשֵׂית חֲלָלָה וְאַחַר כָּךְ זוֹנָה שֶׁהוּא לוֹקֶה שָׁלֹשׁ עַל בִּיאָה אַחַת. אֲבָל אִם נִשְׁתַּנָּה סֵדֶר זֶה אֵינוֹ לוֹקֶה אֶלָּא אַחַת:

11

When a woman is widowed from several men or divorced from several men, [a High Priest or a priest] receive only one set of lashes for each time they engage in relations.39 A woman is forbidden as a widow whether she was widowed after [only] consecration or after marriage.

יא

מִי שֶׁנִּתְאַלְמְנָה מֵאֲנָשִׁים הַרְבֵּה אוֹ נִתְגָּרְשָׁה מֵאֲנָשִׁים הַרְבֵּה אֵין לוֹקִין עָלֶיהָ אֶלָּא אַחַת עַל כָּל בִּיאָה. אַלְמָנָה בֵּין מִן הָאֵרוּסִין בֵּין מִן הַנִּשּׂוּאִין אֲסוּרָה:

12

When the brother of a High Priest dies, even if the deceased had [merely] consecrated his wife,40 [the High Priest] should not perform the rite of yibbum. Instead, he should perform chalitzah.41

If a woman became his yevamah while he was an ordinary priest and he was then appointed as the High Priest, he should not perform yibbum once he has been appointed.42 [This applies] even if he already gave his word43 [that he would marry] her while he was an ordinary priest.44 If, however, he consecrated a widow and was then appointed as a High Priest, he should marry her.45

If she was consecrated, but the status of the consecration was questionable and then the person who consecrated her died, she is considered a widow of questionable status.46

יב

כֹּהֵן גָּדוֹל שֶׁמֵּת אָחִיו אַף עַל פִּי שֶׁהוּא מִן הָאֵרוּסִין הֲרֵי זֶה לֹא יְיַבֵּם אֶלָּא חוֹלֵץ. נָפְלָה לוֹ יְבָמָה וְהוּא כֹּהֵן הֶדְיוֹט וְנִתְמַנָּה לִהְיוֹת כֹּהֵן גָּדוֹל אַף עַל פִּי שֶׁעָשָׂה בָּהּ מַאֲמָר כְּשֶׁהוּא כֹּהֵן הֶדְיוֹט הֲרֵי זֶה לֹא יְיַבֵּם אַחַר שֶׁנִּתְמַנָּה. אֲבָל אִם אֵרֵס אֶת הָאַלְמָנָה וְנִתְמַנָּה לִהְיוֹת כֹּהֵן גָּדוֹל הֲרֵי זֶה יִכְנֹס אַחַר שֶׁנִּתְמַנָּה. הָיְתָה מְקֻדֶּשֶׁת סְפֵק קִדּוּשִׁין וּמֵת אֲרוּסָהּ הֲרֵי זוֹ סְפֵק אַלְמָנָה:

13

It is a positive commandment for a High Priest to marry a virgin maiden.47 When she reaches the age of maturity,48 she becomes forbidden to him,49 as [Leviticus 21:13] states: "He shall marry a virgin woman." "Woman" implies that she is not a minor. "Virgin" implies that she has not reached maturity. What is implied? She has departed from the category of a minor, but has not fully reached maturity, i.e., a maiden. He may never be married to two women at the same time.50 [This is derived from the singular form of the term] "woman," i.e., one, but not two.

יג

מִצְוַת עֲשֵׂה עַל כֹּהֵן גָּדוֹל שֶׁיִּשָּׂא נַעֲרָה בְּתוּלָה. וּמִשֶּׁתִּבְגֹּר תֵּאָסֵר עָלָיו שֶׁנֶּאֱמַר (ויקרא כא יג) "וְהוּא אִשָּׁה בִבְתוּלֶיהָ יִקָּח". אִשָּׁה לֹא קְטַנָּה. בִּבְתוּלֶיהָ וְלֹא בּוֹגֶרֶת. הָא כֵּיצַד. יָצָאת מִכְּלַל קַטְנוּת וְלִכְלַל בַּגְרוּת לֹא בָּאָה זוֹ נַעֲרָה. וְאֵינוֹ נוֹשֵׂא שְׁתֵּי נָשִׁים לְעוֹלָם כְּאַחַת שֶׁנֶּאֱמַר אִשָּׁה אַחַת וְלֹא שְׁתַּיִם:

14

A High Priest may not marry a woman who has lost her virginity even if she never engaged in relations.51 If she engaged in anal intercourse, it is as if she engaged in vaginal intercourse.52 If she engaged in [anal]53 intercourse with an animal, she is permitted.

יד

כֹּהֵן גָּדוֹל לֹא יִשָּׂא מֻכַּת עֵץ אַף עַל פִּי שֶׁלֹּא נִבְעֲלָה. [נִבְעֲלָה שֶׁלֹּא כְּדַרְכָּהּ הֲרֵי זוֹ כְּנִבְעֲלָה כְּדַרְכָּהּ. נִבְעֲלָה לִבְהֵמָה הֲרֵי זוֹ מֻתֶּרֶת]:

15

A High Priest who married a woman who had engaged in relations previously is not punished by lashes.54 He must, however, divorce her with a get.55 If he married a woman past the age of maturity or one who lost her virginity for reasons other than relations, he may remain married to her.

If he consecrated a woman who had previously engaged in relations and then he was appointed as the High Priest, he may marry her after his appointment.56

טו

כֹּהֵן גָּדוֹל שֶׁנָּשָׂא בְּעוּלָה אֵינוֹ לוֹקֶה אֲבָל מוֹצִיא בְּגֵט. נָשָׂא בּוֹגֶרֶת אוֹ מֻכַּת עֵץ הֲרֵי זֶה יְקַיֵּם. אֵרֵס בְּעוּלָה וְנִתְמַנָּה כֹּהֵן גָּדוֹל הֲרֵי זֶה יִכְנֹס אַחַר שֶׁנִּתְמַנָּה:

16

If he raped or seduced a virgin maiden, he may not marry her.57[This applies] even if he raped or seduced her while he was an ordinary priest and was appointed as the High Priest before he married her. If he married her, he must divorce her.

טז

אָנַס נַעֲרָה בְּתוּלָה אוֹ פִּתָּה אוֹתָהּ אֲפִלּוּ אֲנָסָהּ אוֹ פִּתָּה אוֹתָהּ כְּשֶׁהוּא כֹּהֵן הֶדְיוֹט וְנִתְמַנָּה כֹּהֵן גָּדוֹל קֹדֶם שֶׁיִּכְנֹס הֲרֵי זֶה לֹא יִכְנֹס. וְאִם כָּנַס מוֹצִיא:

17

If he consecrates a girl while she was a minor and she reaches full maturity while [consecrated] to him before he marries her, he should not marry her.58 [The rationale is that] her body underwent a change.59 If he married her, he need not divorce her.60

יז

אֵרֵס אֶת הַקְּטַנָּה וּבָגְרָה תַּחְתָּיו קֹדֶם נִשּׂוּאִין הֲרֵי זֶה לֹא יִכְנֹס מִפְּנֵי שֶׁנִּשְׁתַּנָּה גּוּפָהּ. וְאִם כָּנַס לֹא יוֹצִיא:

18

[The prohibition against marrying a divorcee applies] whether she was divorced after consecration or after marriage. If, however, a girl is released from marriage through the rite of mi'un, she is permitted to a priest, as we explained in Hilchot Gerushin.61 [This applies even if] her husband first divorced her with a get, then remarried her, and then she was released through mi'un.62

Any woman who is not fit to perform the rite of chalitzah,63 but nevertheless performs it is not disqualified from [marrying] a priest.

יח

אַחַת גְּרוּשָׁה מִן הָאֵרוּסִין אוֹ מִן הַנִּשּׂוּאִין. אֲבָל הַמְמָאֶנֶת אֲפִלּוּ גֵּרְשָׁהּ בְּגֵט וְהֶחֱזִירָהּ וּמֵאֲנָה בּוֹ הֲרֵי זוֹ מֻתֶּרֶת לְכֹהֵן כְּמוֹ שֶׁבֵּאַרְנוּ בְּהִלְכוֹת גֵּרוּשִׁין. וְכָל מִי שֶׁאֵינָהּ רְאוּיָה לַחֲלִיצָה אִם נֶחְלְצָה לֹא נִפְסְלָה לִכְהֻנָּה:

19

[The following rules apply if] a rumor begins to circulate: "So-and-so, the priest wrote..." or "...gave a get for his wife," and she lives with him and serves him.64 She is not forced to be divorced from her husband.65If she married another priest,66 she should be forced to be divorced.67

יט

יָצָא עָלֶיהָ קוֹל אִישׁ פְּלוֹנִי כֹּהֵן כָּתַב גֵּט לְאִשְׁתּוֹ אוֹ נָתַן גֵּט לְאִשְׁתּוֹ וַהֲרֵי הִיא יוֹשֶׁבֶת תַּחְתָּיו וּמְשַׁמַּשְׁתּוֹ. אֵין מוֹצִיאִין אוֹתָהּ מִתַּחַת בַּעְלָהּ. וְאִם נִשֵּׂאת לְכֹהֵן אַחֵר תֵּצֵא מִן הַשֵּׁנִי:

20

If a rumor circulated in a city68 that a woman was consecrated and then divorced after consecration, her [status] becomes suspect, as explained in Hilchot Gerushin.69 If, however, a rumor is circulated that she is a chalutzah, her [status] does not become suspect.70

כ

יָצָא שְׁמָהּ בָּעִיר שֶׁנִּתְקַדְּשָׁה וְנִתְגָּרְשָׁה מִן הַקִּדּוּשִׁין חוֹשְׁשִׁין לָהּ כְּמוֹ שֶׁבֵּאַרְנוּ בְּהִלְכוֹת גֵּרוּשִׁין. אֲבָל אִם יָצָא עָלֶיהָ קוֹל שֶׁהִיא חֲלוּצָה אֵין חוֹשְׁשִׁין לָהּ:

21

If a rumor is circulated that a virgin has engaged in relation, her [status] does not become suspect and she may marry a High Priest. If a rumor is circulated that she is a maid-servant, her [status] does not become suspect and she may marry a priest.71

If a rumor72 circulates in a city that she is acting promiscuously,73 her [status] does not become suspect. Even if her husband separated from her because she violated [the practices of modesty required by] the Jewish faith74 or because [of the testimony] of witnesses [concerning] unseemly conduct,75 but he died before giving her a get, she is permitted [to marry] a priest. For a woman like the above should not be forbidden [to a priest] unless there is definite testimony [that she acted promiscuously] or she admits [doing so] herself.76

כא

יָצָא קוֹל עַל הַבְּתוּלָה שֶׁהִיא בְּעוּלָה אֵין חוֹשְׁשִׁין לָהּ וְתִנָּשֵׂא לְכֹהֵן גָּדוֹל. יָצָא עָלֶיהָ קוֹל שֶׁהִיא שִׁפְחָה אֵין חוֹשְׁשִׁין לָהּ וְתִנָּשֵׂא אֲפִלּוּ לְכֹהֵן. יָצָא לָהּ שֵׁם מְזַנָּה בָּעִיר אֵין חוֹשְׁשִׁין לָהּ. וַאֲפִלּוּ הוֹצִיאָהּ בַּעְלָהּ מִשּׁוּם שֶׁעָבְרָה עַל דַּת יְהוּדִית אוֹ בְּעֵדֵי דָּבָר מְכֹעָר וּמֵת קֹדֶם שֶׁיִּתֵּן לָהּ גֵּט הֲרֵי זוֹ מֻתֶּרֶת לְכֹהֵן. שֶׁאֵין אוֹסְרִין אִשָּׁה מֵאֵלּוּ אֶלָּא בְּעֵדוּת בְּרוּרָה אוֹ בִּהוֹדָאַת פִּיהָ:

Footnotes
1.

This term is defined in depth in the following chapter.

2.

This term is defined in Chapter 19.

3.

As was the practice until the later years of the First Temple.

4.

I.e., in the later years of the First Temple, the oil of anointment was entombed together with the Holy Ark. From that time onward, the High Priests assumed their position by wearing the eight garments of the High Priest. [See the Rambam's Commentary to the Mishnah (Megilah 1:9).]

5.

See Hilchot Melachim 7:1 which states:

In both a milchemet mitzvah (a war that it is a mitzvah to wage) and a milchemet hareshut (a war that we have license to wage), a priest is appointed to address the nation before the battle. He is anointed with the oil of anointment and is called, the meshuach milchamah.

Although this individual is not a High Priest with regard to the Temple service, since he was anointed, certain of the dimensions of the High Priesthood are incumbent upon him.

6.

I.e., a High Priest - and the others mentioned - are bound by a positive commandment to marry a virgin and a negative commandment to marry a widow.

7.

The Rambam's wording is somewhat inexact. For the prohibition applies even if the priest merely consecrated the woman and entered into relations with her. Marriage (nissuin) is not required (Kiddushin 78a).

8.

He does, however, receive lashes for violating the prohibition against promiscuous relations, as the Rambam states in Hilchot Ishut 1:4).

9.

According to the Rambam's understanding of Kiddushin 78a,b for the prohibition to apply both marriage and intimate relations are necessary. If the priest performs one of these acts without the other, the Scriptural prohibition does not apply. The Ra'avad takes issue with the Rambam and maintains that the prohibition applies even when consecration is not involved.

10.

According to the literal meaning of the verse, the object of the verb "desecrate" is "his offspring." If a priest enters into a relationship with one of these women, his offspring are challalim, "desecrated," and are not considered as members of the priestly family. Nevertheless, Kiddushin, loc. cit., interprets the phrase non-literally, explaining that the verb refers to the woman. By entering into relations with the priest, she becomes "desecrated" from the priesthood, i.e., forbidden to marry a priest. Moreover, the fact that the prohibition against a High Priest entering into relations with a widow mentions that term implies that causing the woman to be placed in such a status is prohibited. Since she is given that status even if the relations are held outside of marriage, marriage is not a fundamental element of the prohibition.

11.

As stated in Halachah 1.

12.

For the prohibition against these relations involve the woman as well as the man. See Keritot 10b, Yevamot 84b.

13.

Chapter 3, Halachah 14.

14.

See Chapter 18, Halachah 1.

15.

In which instance, the prohibition applies only if she was consecrated (Halachah 2).

16.

When a man dies childless, her widow is required to marry her deceased husband's brother in the rite called yibbum. She is forbidden to marry anyone else. If he does not desire to marry her, he must release her through the ritual called chalitzah. See Deuteronomy, ch. 25, Hilchot Yibbum ViChalitzah.

17.

Just as a divorcee is released from her connection to her husband through a get, a childless widow is released from her obligation to her brother-in-law through chalitzah.

18.

The punishment given for the violation of a Rabbinic commandment.

19.

E.g., her brother-in-law performed the chalitzah rite, it was, however, questionable if he was obligated to do so or not, or if he was in fact her brother-in-law or not.

20.

If, however, she was definitely a chalutzah, we would compel him to divorce. For a person should be compelled to observe a Rabbinic prohibition. Similarly, before he marries her, he should be prevented for doing so. Since there is a possibility that a Rabbinic prohibition is involved, we should prevent him from risking its violation. If, however, the couple are already married, we follow the principle "When there is a question of a Rabbinic prohibition involved, we rule leniently."

21.

I.e., she is not considered as a challalah, a woman who entered into forbidden relations with a priest.

22.

I.e., he or she is not considered as a challah.

23.

A woman was divorced in a manner whether it was questionable whether the divorce was effective or not and afterwards, here husband died.

24.

As related in Halachah 12, this applies to a situation in which there is a question whether a man consecrated a woman in an effective manner or not and then dies. Hence, there is a question whether she is a widow.

25.

See Chapter 18, Halachah 12.

26.

The offspring of a priest who had relations with a woman concerning whom a doubt existed whether she was forbidden to him or not (Chapter 19, Halachah 9).

27.

He is required to divorce her, based on the principle "When a doubt concerning a Scriptural prohibition is involved, we take the more stringent view" (Maggid Mishneh). In this instance, since there is a possibility that a Scriptural prohibition is involved in the marriage to each of these women, we rule stringently and require a divorce. A get is required, for even if there is a prohibition involved - and certainly if there is no prohibition involved - the consecration is binding. For the woman to be able to remarry, she must be divorced.

28.

Hilchot Ma'achalot Assurot 5:5 gives an example of this concept. When a person rips a limb from a living animal which causes the animal to become trefe, he is considered to have transgressed two prohibitions: the prohibition against eating flesh from a living animal and the prohibition against partaking of an animal that is trefe, for both prohibitions take effect at the same time.

29.

This concept is exemplified in the following two halachot. See also Hilchot Ma'achalot Assurot 7:2.

30.

This principle is exemplified by Hilchot Ma'achalot Assurot 8:6 which relates that a person who partakes of a gid hanesheh, a sciatic nerve, of an animal which is trefe is liable for two transgressions. Since when the animal became trefe, its entire body became encompassed in the prohibition, that prohibition also encompasses the gid even though it was prohibited beforehand.

31.

I.e., on the basis of the principle that a prohibition that includes additional factors takes effect.

32.

I.e., her second husband divorced her.

33.

By having relations with a priest.

34.

By engaging in relations with a person whom she is forbidden to marry.

35.

I.e., if her father was a priest, after her marriages, she returns to his home and may partake of terumah. Alternatively, if her second husband was an ordinary priest and she gave birth to a child, she may partake of terumah because of her child.

36.

I.e., the priest is liable for additional sets of lashes.

37.

I.e., she becomes a zonah first. If other prohibitions precede her becoming a zonah, she receives the appropriate number of lashes (Maggid Mishneh).

38.

For the other prohibitions would not add anything once she becomes forbidden in this manner.

39.

The fact the she was widowed or divorced several times does not increase the number of prohibitions involved.

40.

And thus she is still a virgin and fit to marry a High Priest.

41.

In Hilchot Yibbum ViChalitzah 6:10, the Rambam states that the woman must perform chalitzah, because were her yevam to perform yibbum, he would acquire her as his wife. Moreover, according to law, he should perform yibbum, because whenever the observance of a positive commandment conflicts with the observance of a negative commandment, the positive commandment takes precedence. Nevertheless, our Sages forbade yibbum lest he engage in relations with her a second time. In such an instance, relations with her are forbidden and there is no mitzvah. For the positive commandment of yibbum applies only the first time the couple engage in relations.

42.

For the reason mentioned in the previous note.

43.

The Hebrew term the Rambam uses maamar has a specific halachic meaning. As explained in Hilchot Yibbum ViChalitzah 2:1, although according to Scriptural Law, the yibbum relationship is established through intimate relations, our Sages ordained that before engaging in relations, a yevam declare his intent to his yevamah. They equated this declaration with consecration.

44.

For a maamar does not establish a relationship.

45.

Because she is already his wife.

46.

And because of the doubt, she is forbidden to a High Priest.

47.

The term "maiden" refers to a girl between the age of twelve and twelve and a half who has manifested signs of physical maturity (Hilchot Ishut 2:1).

48.

Twelve and a half. This is the meaning of the term throughout this chapter.

49.

Since he must marry a virgin, he is forbidden to marry anyone other than a virgin. Even if he consecrated the woman beforehand, if he has not married her and she attains maturity after he is appointed as a High Priest, he may not marry her as stated in Halachah 17.

50.

As stated in Hilchot K'lei HaMikdash 5:10, a High Priest may not have two wives while he is performing the Yom Kippur services. Here the Rambam is stating that the prohibition applies not only on Yom Kippur, but throughout the year.

The Ra'avad notes that II Chronicles 24:3 speaks of Yehoyeda the High Priest and the marriage of two women, seemingly contradicting the Rambam's ruling. The Ra'avad interprets the verse as stating that Yehoyeda married the women himself. (Similarly, Rav Moshe HaCohen and others question the Rambam's ruling.) Rambam LeAm, however, advances the interpretation that the verse is stating that Yehoyeda had Yoash marry the women.

51.

I.e., she lost her virginity through an accident of some sorts.

52.

And she is forbidden to a High Priest.

53.

This addition is necessary, for if she lost her virginity through relations with an animal, she is disqualified (Meiri).

54.

For he is guilty of transgressing merely a positive commandment and lashes are not given for such a transgression.

55.

Since a transgression is involved in engaging in relations with her, he is compelled to divorce her. Nevertheless, a bill of divorce is necessary for the consecration is binding.

56.

As stated in Halachah 12 with regard to a widow.

57.

For he is commanded to marry a virgin and she is not. Even though it is he himself who caused her to lose her virginity, she is not acceptable. Since she is not a virgin, a transgression is involved every time he enters into relations with her. Hence, he is obligated to divorce her.

In the instance mentioned in the previous halachah, he had already consecrated the woman, but in this instance, he did not consecrate her first (Maggid Mishneh).

58.

Because, as stated in Halachah 13, he must marry a maiden, a girl between twelve and twelve and a half.

59.

And thus she is considered as a different person and, in an abstract sense, not the same woman whom he consecrated. In this manner, the Rambam (based on Yevamot 59a) makes a distinction between this instance and one in which a priest consecrated a widow and then was appointed as High Priest, as mentioned in Halachah 12.

60.

For even if at the outset, she was passed the age of maturity when he married her, he is allowed to remain married to her, as stated in Halachah 15.

61.

As explained in Hilchot Gerushin, ch. 11, according to Scriptural Law, when a girl's father dies before she reaches the age of twelve, there is no way that she can marry until she reaches that age. Nevertheless, our Sages gave her mother and/or brothers the right to marry her off if they believe that it is to her advantage. Because this marriage does not have a basis in Scriptural Law, a get is not required to absolve it. Instead, the girl may simply leave her husband's house. To formalize the absolution of the relationship all that is necessary is for her to declare that she desires to leave the marriage in the presence of two witnesses. Since the relationship was never binding according to Scriptural Law, she is not disqualified from marrying into the priesthood.

62.

As stated in Hilchot Gerushin 11:16, even if at one point she was divorced with a get, since she was released through mi'un, the fact the she was divorced previously is not of consequence. For it is obvious that the divorce is unnecessary.

63.

E.g., a man who performed chalitzah with his deceased brother's widow without realizing that she was pregnant and hence, not required to perform this rite before remarrying.

64.

In the case of an Israelite, there would be no difficulty, for it is possible that he remarried his divorcee. In the case of a priest, however, this would be forbidden, for a priest is forbidden to marry any divorcee even his own.

65.

For a rumor that follows a marriage is not sufficient grounds to require a divorce.

66.

After being widowed from her first husband.

67.

Since the rumor preceded the second marriage, the second priest should not have married her, because of the doubt regarding the validity of the marriage that the rumor caused. And since he married her in possible violation of the law, he is forced to divorce her.

68.

As stated in Hilchot Ishut 9:22, we are speaking about a rumor that has been substantiated by a court. It is not conclusive evidence that a woman has been consecrated, but it is far from mere hearsay. If a rumor has not been substantiated in a court, it is of no substance.

69.

Chapter 10, Halachah 20.

70.

Since a chalutzah is forbidden only because of a Rabbinic ordinance, when we are not certain the woman performed this rite, there is no prohibition, as stated in Halachah 7. The Ra'avad, however, rules stringently and maintains that since we are speaking about a rumor with substance, even a rumor that she is a chalutzah can cause her to be forbidden.

71.

We do not disqualify a woman when there is a question about her lineage unless there is explicit testimony that she is not acceptable (Maggid Mishneh).

72.

This refers even to a rumor substantiated in court (Beit Shmuel 6:30).

73.

And committed adultery or engaged in relations that would cause her to be forbidden to the priesthood as explained in the following chapter.

74.

E.g., going out to the marketplace with her hair uncovered, spinning flax in the marketplace in a manner that shows her arms to men, playing frivolously with youths, as stated in Hilchot Ishut 24:12.

75.

I.e., testimony regarding conduct that leads to the conclusion that she committed adultery although the adulterous relations themselves were not observed, as mentioned in ibid.:15.

76.

For in such instance, she accepts the prohibition upon herself, as stated in Chapter 18, Halachah 9.

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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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