Kiddushin, Daf Samekh Het, Part 4

 

Introduction

Today s sugya begins to explain the next section of the mishnah:

And any [woman] who cannot contract kiddushin with that particular person or with others, the child follows her status.

And what case is this? The child of a female slave or a gentile woman.

 

וכל מי שאין לה עליו וכו’

שפחה כנענית מנלן אמר רב הונא אמר קרא (בראשית כב, ה) שבו לכם פה עם החמור עם הדומה לחמור

 

And any [woman] who cannot contract kiddushin etc.

How do we know [this of] a Canaanite slave woman?

R. Huna said: The verse says, Stay here with [im] the donkey (Genesis 22:5) it is a people [am] like a donkey.

 

When leaving to sacrifice Isaac, Abraham tells his servants stay here with the donkey. There really is no reason for Abraham to add in with the donkey. These are extraneous words so the rabbis see this as an opportunity for midrash. They play on the word עם and read it as am. Essentially, Abraham says, Stay here, you people like a donkey. Just as a Jew cannot marry a donkey (although some have married an ass [couldn t help it]), so a Jew cannot marry a slave woman. The kiddushin would be invalid.

Yes, this is not the piece of Talmud you want to be shouting about in the streets. But it does represent the way people in the ancient world most likely thought slaves do not have marriage or genealogical lineage in the same way that free people do.

 

אשכחן דלא תפסי בה קדושי ולדה כמותה מנלן דאמר קרא (שמות כא, ד) האשה וילדיה תהיה לאדוניה

 

We have thus found that kiddushin with her is invalid: how do we know that her offspring has her status? For the verse says, The wife and her children shall be her master’s (Exodus 21:4).

 

Exodus 21 says that if a master gives a slave woman to his Hebrew slave the offspring belong to the master. This shows that the offspring of a Jew and a slave woman follow the status of the slave.

 

נכרית מנלן אמר קרא (דברים ז, ג) לא תתחתן בם

אשכחנא דלא תפסי בה קידושי ולדה כמותה מנלן א"ר יוחנן משום ר"ש בן יוחי דאמר קרא (דברים ז, ד) כי יסיר את בנך מאחרי בנך הבא מישראלית קרוי בנך ואין בנך הבא מן העובדת כוכבים קרוי בנך אלא בנה

אמר רבינא ש"מ בן בתך הבא מן העובד כוכבים קרוי בנך

 

How do we know [this of a free] Gentile woman?

The verse says, You shall not make marriages with them (Deuteronomy 7:3).

We thus find that kiddushin with them is invalid. How do we know that her offspring has her status?

R. Yohanan said in the name of R. Shimon b. Yohai: The verse says, For he will turn away your son from following me (Deuteronomy 7:4): you son by an Israelite woman is called your son, but your son by a Gentile woman is not called your son.

Ravina said: This proves that your daughter’s son by a non-Jew is called your son.

 

The Talmud now explains how we know that kiddushin is invalid with a non-Jewish woman and that her offspring is not Jewish. First of all, the Torah says Do not marry them.

As to the second question, the verse warns that if a non-Jewish man marries a Jewish woman, the son will be turned away from God. Thus the child of a Jewish woman is called your son meaning an Israelite. By deduction, we can conclude that the child of a Gentile woman is not your son.

Note that all of these explanations are clearly derashot interpretations of the verse meant to accord with known halakhah. As I said in my intro to the mishnah, in the Torah there is little doubt that genealogy goes through the father. None of these verses actually means that it goes through the mother. This is the rabbis reading their own halakhah into these verses. Indeed, later in this passage, the Talmud will basically admit that.

 

נימא קסבר רבינא עובד כוכבים ועבד הבא על בת ישראל הולד ממזר

נהי דכשר לא הוי ממזר לא הוי פסול מיקרי

 

Shall we say that Ravina holds that if a non-Jew or a [non-Jewish] slave has relations with a Jewish woman the offspring is mamzer?

[No.] Granted that he is not [regarded as] fit, he is not mamzer either, but merely as unfit.

 

Since the Jewish woman cannot have kiddushin with this man, because he is not Jewish, but she can have it with other men, if they are Jewish, this case should fit into the category of the mishnah that says the child of such a union is a mamzer. This would mean that the child of a non-Jewish man and a Jewish woman is a mamzer, and would not be allowed to marry an Israelite.

The Talmud rejects this this child is not fit which means she cannot marry a Kohen. This is because there was a transgression in the union. But she/he is not considered a mamzer. She/he is Jewish and can marry an Israelite.