Kiddushin, Daf Ayin Heh, Part 4
Introduction
Our sugya discusses who the halakhah follows in the mishnah. For ease of reference, here is the mishnah again:
1) All who are forbidden to enter into the assembly may intermarry with each other.
2) Rabbi Judah forbids it.
3) Rabbi Elazar says: those who are certain [may marry] those who are certain, but those who are certain with those who are doubtful and those who are doubtful with those who are certain and those who are doubtful with others who are doubtful this is prohibited.
4) Who are those who are doubtful ? The shtuki, the asufi and the Samaritan.
ודאן בודאן מותר אמר רב יהודה אמר רב הלכה כרבי אליעזר
כי אמריתה קמיה דשמואל אמר לי הלל שונה עשרה יוחסים עלו מבבל וכולם מותרים לבא זה בזה ואת אמרת הלכה כרבי אליעזר
Those who are certain [may marry] those who are certain: Rav Yehudah said in the name of Rav: The halakhah follows R. Elazar. When I stated it before Shmuel, he said to me, Hillel taught: Ten genealogical classes went up from Babylon and all are permitted to intermarry; yet you say that the halachah is as R. Elazar!
R. Yehudah says in the name of Rav that the halakhah follows R. Elazar who limits the permission to intermarry to cases in which both parties are certain of their lineages. In cases of doubtful lineage, such as the Shtuki, Asufi and Samaritan, marriage is prohibited.
But Shmuel objects Hillel himself taught that all ten lineages are allowed to intermarry with each other, which seems to mean that those with uncertain lineages can still marry those with certain lineages. A shetuki should be able to marry a mamzer.
ורמי דרב אדרב ורמי דשמואל אדשמואל
דאיתמר ארוסה שעיברה רב אמר הולד ממזר ושמואל אמר הולד שתוקי
רב אמר הולד ממזר ומותר בממזרת ושמואל אמר הולד שתוקי ואסור בממזרת
And raise a contradiction of Rav against his own opinion and Shmuel against his own opinion. For it was stated: If a betrothed woman becomes pregnant: Rav holds: The child is a mamzer; while Shmuel says: The child is shethuki. Rav holds: The child is a mamzer and is allowed to marry a mamzeret; while Shmuel says: The child is shethuki and is not allowed to marry a mamzeret.
The Talmud notes that Shmuel and Rav s halakhic ruling concerning this mishnah contradicts their ruling in another case, that of a betrothed woman who becomes pregnant. Betrothed couples should not be having sex, and therefore there is a possibility that this child is from another man. Rav seems quite certain about this and therefore says the child is a mamzer. Shmuel holds that the child is a shetuki and cannot marry a mamzer. So here Shmuel says a child of doubtful status cannot marry a mamzer, whereas above he said he could. Rav s position is also opposite. Here he says the doubtful child may marry a mamzer whereas above he said he may not.
איפוך רב אמר הולד שתוקי ושמואל אמר הולד ממזר
תרתי למה לי צריכא דאי איתמר בהא בהא קאמר רב משום דרוב כשרים אצלה אבל התם דרוב פסולים אצלה אימא מודי לשמואל ואי איתמר בהך בהא קאמר רב משום דאיכא למיתלה בארוס אבל בהא אימא מודי לשמואל צריכא
Reverse the positions: Rav holds: The child is shethuki; and Shmuel holds: The child is mamzer.
Why do I need two rulings? It is necessary. For if it were stated in this case [of our Mishnah, I would say, only] here does Rav rule thus, because the majority are fit for her; but there, where the majority are unfit for her, I might argue that he agrees with Shmuel.
Again, if it were stated in the latter case, [only] there does Rav rule thus, because he [the offspring] may be attributed to her betrothed husband; but in this [the former], I would say that he agrees with Shmuel. Hence both are necessary.
The Talmud reverses the positions so that they are consistent. Rav always rules that people of doubtful status may not marry those with certain status, whereas Shmuel holds that they may. The Talmud now asks why we need the same opinions twice.
If we had only the case of the Mishnah, which refers to children of unmarried women, we might have thought that in this case, where the majority of men are fit for her, the child is only a doubtful mamzer, a shetuki. But in the case of the betrothed woman, where all men in the world except her fianc e are prohibited to her, I might have thought that the child is a certain mamzer and could marry other mamzerim.
If we had only the case of the betrothed woman, we might think that only in this case Rav does not consider the child a mamzer because it might be the child of her fianc e. But in the case of the mishnah, where we have no particular man to whom to ascribe paternity, he would agree that the child is a mamzer.
Thus we need both cases to realize that Rav is entirely consistent the child of doubtful status may not marry a child whose flawed lineage is certain.
ואי בעית אימא לעולם לא תיפוך ומאי ממזר דקאמר רב לאו מותר בממזרת אלא דאסור בבת ישראל ושמואל אמר הולד שתוקי דאסור בבת ישראל
אי הכי היינו דרב אלא מאי שתוקי שמשתקין אותו מדין כהונה
If you want you can say that you need not reverse it after all, and what does Rav mean by mamzer? Not that he may marry a mamzeret, but that he is forbidden to a daughter of Israel.
And when Shmuel rules: The child is shetuki [it means] that he is forbidden to a daughter of Israel.
If so, that is the same as Rav!
Rather what is meant by shetuki? That we silence him from the rights of priesthood.
The Talmud now offers an alternative resolution such that we do not need to reverse the positions. When Rav said that the child of a betrothed woman is a mamzer he did not mean that we are certain that the child is a mamzer and therefore may marry a mamzeret. All he meant is that the child cannot marry an Israelite.
But the problem is that this is now the same as Shmuel. Shmuel said that the child is a shetuki, which means that the child cannot marry the daughter of an Israelite.
To solve this, we now reinterpret Shmuel. The child of a betrothed woman may marry an Israelite, but if the betrothed man was a priest, the child is not considered a priest.
פשיטא השתא מדין ישראל משתקינן ליה מדין כהונה מיבעי
אלא מאי שתוקי שמשתקין אותו מנכסי אביו
פשיטא מי ידעינן אבוה מנו לא צריכא דתפס
This is obvious? If we silence him from the rights of an Israelite, do we need to say he is silenced from the rights of priesthood!
Rather what is meant by shetuki? We silence him from his father’s estate.
But this too is obvious; do we even know who his father is?
This arises only where he has seized [the inheritance].
If the child cannot marry an Israelite, then obviously he cannot be treated like a priest. Therefore, the Talmud suggests yet another meaning to shetuki he does not get to inherit from his father. But this too is obvious we do not even know who his father is! There is a principle in halakhah when one comes to take money from his fellow, he must prove he is owed the money. The other inheritors can prove that this man is their father, but he cannot.
However, this changes if he preemptively seized the inheritance. Now, they would be coming to take from him. Since they cannot prove that he is not their father s son, he gets to keep the inheritance.
ואי בעית אימא מאי שתוקי בדוקי שבודקים את אמו ואומרת לכשר נבעלתי נאמנת כמאן כר"ג האמר שמואל חדא זימנא דתנן היתה מעוברת ואמרו לה מה טיבו של עובר זה מאיש פלוני וכהן הוא ר"ג ורבי אליעזר אומרים נאמנת רבי יהושע אומר אינה נאמנת ואמר רב יהודה אמר שמואל הלכה כרבן גמליאל
Alternatively, what is meant by shetuki? Beduki [examined], that we examine his mother, and if she says, I had relations with a fit person she is believed.
Then with whom does he agree? With R. Gamaliel! But we already taught this once. For we taught: If she [an unmarried woman] is pregnant and is asked: What is the nature of this child? and she replies, He is from So-and-so, who is a priest : R. Gamaliel and R. Eliezer say: She is believed; R. Yehoshua say: We do not live by her words.
And Rav Yehudah said in the name of Shmuel: The halakhah agrees with R. Gamaliel!
If beduki implies that we examine the mother and ask her who the father is and if she says that he is genealogically fit we believe her, this halakhah was already stated when we ruled like Rabban Gamaliel in a Mishnah in the first chapter of Ketubot. So why would Shmuel need to teach the same teaching again here?
צריכא דאי מהתם הוה אמינא התם רוב כשירים אצלה אבל הכא דרוב פסולים אצלה אימא לא צריכא
It is necessary. For if [I were to deduce] from there, I would argue, There, most men are fit for her; but here, where most men are unfit for her, I would say [she is] not [believed]. Hence both are necessary.
Shmuel goes one step further than Rabban Gamaliel. Rabban Gamaliel may have been referring to a situation where the woman was unmarried and most men in the town were fit. But Shmuel refers even to a betrothed woman where most men are not fit for her (only one is, her fianc e). The woman is believed in any case.