Issurei Biah - Chapter Three

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

But not married.

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

I.e., completed the marriage ceremony.

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

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

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

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

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

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

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

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

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

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

An ordinary case of adultery.

The daughter of a priest who committed adultery.

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

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

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

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

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

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

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

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

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

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

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

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

Chapter 4, Halachah 2.

Chapter 17, Halachot 9-10.

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

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

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

Chapter 4, Halachah 16.

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

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

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

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

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

And that is significant only with regard to vaginal intercourse.

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

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

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

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

In Halachah 15.