Kiddushin, Daf Ayin Het, Part 5

 

Introduction

In this mishnah we learn that parents are not believed if they say that their child is a mamzer.

 

מתני׳ האומר בני זה ממזר אינו נאמן

 

If a man declares, this son of mine is a mamzer, he is not believed.

 

There are two explanations given for why a father is not believed to say that his child is a mamzer. The first is that the father is related to the child and relatives may not testify. The second is that by saying that the child is a mamzer, the father is testifying against himself and halakhah does not allow self-incrimination.

 

ואפילו שניהם מודים על העובר שבמעיה ממזר הוא אינם נאמנים

 

And even if both [the husband and wife] say about the fetus inside her, it s a mamzer they are not believed.

 

Even if both parents say that their child is a mamzer, which means that they are saying that the child is not from the husband but from an adulterous affair, they are not believed.

 

רבי יהודה אומר נאמנים

 

Rabbi Judah says: they are believed.

 

Rabbi Judah disagrees with both of the previous clauses. In the Talmud Rabbi Judah s ruling is based on a midrash. That is to say his halakhah is not necessarily logical; rather it is based on his interpretation of Scripture.

 

גמ׳ מאי ואפילו שניהם לא מיבעיא קאמר לא מיבעיא איהו דלא קים ליה אלא אפילו איהי דקים לה לא מהימנא

ולא מיבעיא היכא דאית ליה חזקה דכשרות דלא מהימני אלא אפילו עובר נמי דלית ליה חזקה דכשרות לא מהימני

GEMARA. Why [state], even if both [etc.]?

It wasn t even necessary to state. It wasn t necessary to state that he [the father], who cannot be certain [whose child it is, is not believed] but even she [the mother], who is certain, is not believed.

And it was not necessary to state that they are not believed when he [the child] enjoys the presumption of fitness; but even [in the case of] a fetus, who does not enjoy the presumption of fitness, they are [still] not believed.

 

The Talmud here essentially explains why it is not so obvious that the father and mother are not both believed. We might have thought to believe the mother because she would know better than her husband if the child was from a man other than her husband (she certainly would know if it was possibly from another man). Nevertheless, we do not believe her to say that the child is a mamzer.

Second, we might have believed the mother to say that the fetus in her womb is a mamzer because such a fetus, unlike a child already born, does not have a presumption of fitness. The child was not born, assumed to be fit, and then declared by his/her parents a mamzer. But the mishnah rules that we do not believe the mother even about a fetus. In order for this child to be deemed a mamzer, we need proof.