Kiddushin, Daf Samekh Tet, Part 1

 

Introduction

This mishnah is a continuation of the last one about lineage.

 

מתני׳ ר’ טרפון אומר יכולין ממזרין ליטהר כיצד ממזר שנשא שפחה הולד עבד שיחררו נמצא הבן בן חורין רבי אליעזר אומר הרי זה עבד ממזר

 

Rabbi Tarfon says: mamzerim can be purified.

How is this so? If a mamzer marries a slave woman, her son is a slave; if he frees him, it is found that the son is a free man.

Rabbi Eliezer says: behold, he is a slave mamzer.

 

Rabbi Tarfon uses the rules in the previous mishnah to find a means by which a mamzer can have a child that is not a mamzer. A mamzer is allowed to marry a slave woman, even though a non-mamzer cannot. If the mamzer owns the slave woman, then he owns the child. If he frees the child the child loses his mamzer status and becomes a regular Israelite.

Rabbi Eliezer, however, holds that such a trick does not work. The status of the child is slave mamzer. When his father/master frees him, he is no longer a slave but he is still a mamzer.

 

גמ׳ איבעיא להו רבי טרפון לכתחילה קאמר או דיעבד קאמר

תא שמע אמרו לו לרבי טרפון טיהרת את הזכרים ולא טיהרת את הנקיבות ואי אמרת לכתחילה קאמר ממזרת נמי תינסיב לעבדא עבד אין לו חייס

 

GEMARA. The rabbis asked: Does R. Tarfon say this as an ab initio rule, or is it only ex post facto?

Come and hear: They [the Sages] said to R. Tarfon: You have purified the males, but you have not purified the females.

Now, if you say that he means it as an ab initio rule, let a mamzeret be married to a slave? A slave has no paternity.

 

The question about R. Tarfon is is his rule something that one can do, meaning he was giving advice, or was it a case of if a mamzer married a slave, then the mamzer can be purified? Is one allowed ab initio to have a child with a slave woman in order to purify one s line? Or is this only a case of ex post facto he had a child with a slave woman against the rules but now his lineage is rid of the stigma?

In the baraita the sages say to R. Tarfon that he has found a way to purify male mamzerim but not female mamzerim. This seems to reflect that R. Tarfon s rule was only ex post facto, for if it were ab initio permitted to do so, he would have said that a mamzeret can also marry a male slave and when the child is freed, the child s lineage would be non-mamzer.

The problem is that male slaves have no lineage. Meaning that according to halakhah, their children are not even considered theirs. Thus there is no solution for a mamzeret.

 

תא שמע דאושפזיכניה דרבי שמלאי ממזר הוה ואמר ליה אי אקדמתך טהרתינהו לבנך

אי אמרת בשלמא לכתחילה שפיר אלא אי אמרת דיעבד מאי ניהו

 

Come and hear: For R. Simlai’s host was a mamzer, and he [R. Simlai] said to him, Had I known you earlier, I would have purified your sons.

Now, if you say that [R. Tarfon was speaking ab initio] is at the very outset, it is well: but if you say, only ex post facto, what is it [that he could have advised him]?

 

R. Simlai seems to have advice he could give his host on how to purify the lineage of his children. This implies that R. Tarfon was giving an ab initio rule a way for mamzerim to purify their lines intentionally. Not just a way to purify them if they did something unintentionally and against the rules.

 

דמנסיב ליה עצה ואמר ליה זיל גנוב ואיזדבן

He could have advised him by saying to him, Go and steal, and then be sold as a Hebrew slave.

 

Even if the rule was only ex post facto, R. Simlai could have found a way to purify his host s line. First the host would have to steal something and then be sold in order to recover the debt. Then he could marry a Canaanite slave and if his master frees the children, they would no longer be mamzerim. Yes, you do have a case here where the Talmud imagines a rabbi advising someone to steal.

בעבד עברי ובשני דר’ שמלאי עבד עברי מי הוה והאמר מר אין עבד עברי נוהג אלא בזמן שהיובל נוהג אלא לאו שמע מינה רבי טרפון לכתחילה קאמר שמע מינה

אמר רב יהודה אמר שמואל הלכה כר’ טרפון

 

Were there then Hebrew slaves in R. Simlai’s time? Surely a Master said: [The institution of] a Hebrew slave is practiced only when Jubilee is practiced?

Hence it surely follows that R. Tarfon means ab initio. This proves it.

Rav Judah said in the name of Shmuel: The halakhah follows R. Tarfon.

 

The problem is that by R. Simlai s time, there was no such thing as a Hebrew slave. That practice was not observed already by mishnaic times. So the only advice R. Simlai could have given him was to have a child with a slave woman (this is prohibited) and then free the slave. This means that R. Tarfon s rule is ab initio. He would allow one to have a child with a slave woman in order to get rid of the stigma on his lineage.

And indeed the halakhah follows R. Tarfon. Thus there is actually a way for mamzerim to remove the stigma from their lineage. However, it is a drastic one, one that could not be observed in a time in which slavery has been outlawed.