Kiddushin, Daf Samekh Het, Part 1

 

Introduction

The Torah explicitly states one may not marry one s wife s sister. The rabbis say that this is true of all incestuous relationships punishable by karet kiddushin is ineffective with them. But kiddushin is effective with a menstruating woman, even though sex with her is prohibited by karet. So why are all other incestuous relationships compared with a wife s sister (kiddushin is ineffective) and not with a niddah (kiddushin is effective).

 

מכדי איכא לאקושה לנדה ואיכא לאקושה לאחות אשה מאי חזית דמקשת להו לאחות אשה אקשה לנדה קולא וחומרא לחומרא מקשינן

 

Since [all other incestuous relations] can be compared to niddah, and they can be compared to a wife’s sister: what did you see to compare them to a wife’s sister, instead, compare them to niddah?

[In a choice between] leniency and stringency, we compare to the case of stringency.

 

Other incestuous relationships are compared with a wife s sister, with whom kiddushin is not possible, and not with a niddah, with whom kiddushin is possible, because in cases where an unknown can be compared with two knowns, we compare to the more stringent case, in this case a wife s sister.

 

רב אחא בר יעקב אמר אתיא בק"ו מיבמה ומה יבמה שהיא בלאו לא תפסי בה קידושין חייבי מיתות וחייבי כריתות לא כל שכן

 

R. Aha b. Ya akov said: It can be derived using a kal vehomer from the case of a yevamah: if kiddushin with a yevamah is invalid, though she is [prohibited only] by a negative commandment, how much the more so with those who are forbidden by penalty of death or kareth!

 

R. Aha b. Ya akov derives the rule that betrothal is ineffective with incest prohibitions from the rule with regard to a yevamah. A yevamah is prohibited to all men except the yavam by a negative commandment, a transgression considered lesser than that prohibited by penalty of death or karet. So if kiddushin is ineffective with her (note that this is not the post-talmudic halakhah) then kiddushin should also be ineffective with those more prohibited, namely incestuous relationships.

 

אי הכי שאר חייבי לאוין נמי אמר רב פפא חייבי לאוין בהדיא כתיב בהו (דברים כא, טו) כי תהיין לאיש שתי נשים האחת אהובה והאחת שנואה וכי יש שנואה לפני המקום ואהובה לפני המקום אלא אהובה אהובה בנישואיה שנואה שנוא’ בנישואיה וקאמר רחמנא כי תהיין

 

If so, should not others, prohibited [only] by negative commandments also be the same?

R. Papa said: Those prohibited by negative commandments are explicitly stated: If a man has two wives, the one beloved, and the other hated (Deuteronomy 21:15). Now is there before the God a hated [woman] or a beloved one!

Rather beloved means beloved in her marriage, and hated means hated in her marriage; yet the Torah states: and if there be.

 

The problem with R. Aha b. Ya akov s proof is that we could use the yevamah to prove that kiddushin are ineffective with marriages prohibited by a negative commandment such as a divorcee to a priest. Such marriages are effective. But we could say that just as a yevamah is prohibited by a negative commandment and kiddushin are not effective with her, so too all women prohibited by a negative commandment, kiddushin are ineffective with her.

R. Papa cites a midrash that interprets beloved and hated not to mean the woman is actually beloved or hated God does not play favorites (although human beings clearly do). Rather, the word beloved means that her marriage is permitted. Hated means it is forbidden. Thus there must be a category of women with whom marriage is prohibited but with whom kiddushis is nevertheless effective. This category is women prohibited by a negative commandment (widow to high priest, divorcee to priest).