Kiddushin, Daf Samekh Daled, Part 2
Introduction
Today s section continues to ask how we can be so sure that a father does not have the possibility of marrying his daughter off to someone who would disqualify her from subsequently marrying a priest. To recall, this was the explanation for why the father is not believed to say that she was taken captive, but was believed to say that he married his daughter off and then accepted her divorce.
והרי בידו להשיאה לממזר כרבי עקיבא דאמר אין קדושין תופסין בחייבי לאוין
But it is in his power to marry her to a mamzer?
This agrees with R. Akiva, who maintained, Kiddushin has no validity with those [marriages forbidden by] negative commandments.
An Israelite woman who has sex with a mamzer is disqualified from marrying a priest. So the father could give her in marriage to a mamzer and thereby disqualify her from the priesthood.
The Talmud answers that the mishnah accords with R. Akiva who holds that marriage cannot be contracted between two people prohibited by a negative commandment such as that which prohibits a mamzer from marrying an Israelite woman. Most other tannaim hold that while it is prohibited for a mamzer to marry an Israelite, should the marriage occur, it is valid.
הרי בידו להשיאה אלמנה לכהן גדול וכר’ סימאי דתניא ר’ סימאי אומר מן הכל עושה ר’ עקיבא ממזר חוץ מאלמנה לכהן גדול שהרי אמרה תורה (ויקרא כא, ז) לא יקח (ויקרא כא, ו) ולא יחלל חלולים עושה ואין עושה ממזרים
But it is in his power to marry her, if a widow, to a High Priest, and in accordance with R. Simai; for it was taught: R. Simai said: R. Akiva declares any [offspring of a prohibited marriage] to be a mamzer, except that of a widow [married] to a High Priest, since the Torah said, He shall not take, and he shall not profane [his seed] (Leviticus 21:6): he renders [his seed] profane, but not a mamzer!
Another difficulty perhaps the father could marry off his widowed daughter to a high priest, and according to R. Simai, R. Akiva would say that in this case the marriage is valid but that she, and her child, are disqualified from marrying priests.
כר’ ישבב דאמר בואו ונצווח על עקיבא בן יוסף שהיה אומר כל שאין לו ביאה בישראל הולד ממזר
This is according to R. Yeshvav, who said: Come, let us cry out against Akiva son of Joseph who declared: Anyone who has no entry into Israel, the child is a mamzer.
The Talmud resolves that our mishnah accords with R. Yeshvav, according to whom R. Akiva says that all forbidden marriages, even that of a widow to a high priest create mamzerim. Thus the father cannot marry her off to anyone prohibited to her, because such marriages are not valid.
הניחא לר’ ישבב אי לטעמיה דנפשיה שפיר אלא אי לאפוקי מטעמא דר’ סימאי קאתי הרי בידו להשיאה לחייבי עשה
Now, this works according to R. Yeshvav s opinion, if he states his own independent opinion [of R. Akiva’s ruling].
But if he [merely] comes to contradict R. Simai, then it is [still] in his [the father’s] power to marry her to a person forbidden by a positive commandment?
It is unclear whether R. Yeshvav means to say that even if a man marries a woman who is prohibited by a positive commandment, (such as the prohibition of marrying an Egyptian or Edomite for the first three generation) the child is a mamzer, then our problem is solved. But if all he meant to say is that a widow married to a high priest is a mamzer, then it is still possible for the father to disqualify his daughter by marrying her to someone prohibited by a positive commandment. Such a marriage would be valid and yet she would be disqualified from the priesthood.
אמר רב אשי ותסברא רישא משום דבידו הוא נהי דבידו לקדשה בידו לגרשה
ועוד אילו אמר האי דלא ניחא בגוה מי מצי מקדש ניהליה בעל כרחיה
R. Ashi answered: Is it really logical, that the first clause [states that he is believed] because it is in his power?
Granted that it is in his power to betroth her, is it in his power to divorce her?
Moreover, if this person [to whom he desires to betroth her] says that he does not want her, can he then betroth her against his will?
R. Ashi now raises a difficulty against the whole interpretation of the mishnah that a father is believed when he says something happened that he has the power to make happen. A father generally does have the power to betroth his daughter while a minor, but not to divorce her. Furthermore, while he has the power to betroth her, he might not have the power to betroth to a specific man. The other man can always say no, after all. Thus we need another reason why the father is believed or not believed.
אלא אמר רב אשי רישא רחמנא הימניה כרב הונא דאמר רב הונא אמר רב מנין לאב שנאמן לאסור את בתו מן התורה שנאמר (דברים כב, טז) את בתי נתתי לאיש הזה לאיש אסרה הזה התירה בנישואין הימניה רחמנא לאב בשבוייה לא הימניה
Rather R. Ashi said: in the first clause the Torah declared him trustworthy, as R. Huna [said]. For R. Huna said in the name of Rav: How do we know that a father is believed to prohibit his daughter by Biblical law? Because it is said: I gave my daughter to this man [as a wife] (Deuteronomy 22:16): by to a man, he renders her forbidden [to all]; by this , he frees her.
The Torah believed the father in regard to marriage but in regard to captivity it did not believe him.
R. Ashi uses a verse to prove that a father has the right to prohibit a daughter by making a statement concerning her marriage. The words I gave my daughter to a man would prohibit her to everyone. After all, we would not know who married her. The word this frees her to be with that man (and after his death or divorce, with any other). This is all accomplished by a mere statement.
However, the father does not have any power to forbid his daughter to the priesthood by declaring that she was taken captive. Therefore, he is not believed.