Kiddushin, Daf Tet, Part 6
Introduction
Today s section is a direct continuation of yesterday s. Rabbi [Yehudah Hanasi] now needs to explain from where he derives the halakhah that a Hebrew female slave cannot be acquired through intercourse. From this point on, we ll continue with a lot more midrashim.
ורבי האי סברא מנא ליה א"כ לכתוב רחמנא ובעל מאי ובעלה שמע מינה תרתי
And Rabbi: how does he know this halakhah? If so, the verse should have written; and has intercourse : why [state] and has intercourse with her? Learn from this both.
Rabbi uses the extra word her which the verse could have skipped to derive both laws a woman is betrothed through intercourse but a Hebrew female slave is not.
ולרבא דאמר בר אהינא אסברה לי (דברים כד, א) כי יקח איש אשה ובעלה קידושין המסורין לביאה הוו קידושין קידושין שאין מסורין לביאה לא הוו קידושין מאי איכא למימר?
But according to Rava, who said: Bar Ahina explained to me: When a man takes a woman and has intercourse with her : [this teaches:] kiddushin that can be followed by intercourse are [valid] kiddushin, but those which cannot be followed by intercourse are not [valid] kiddushin; what is there to say?
Rava uses this same verse for yet another halakhah. For kiddushin to be valid, they must be able to be followed by legal intercourse. This is a case which we will learn later in the tractate in which a man married one of two sisters but does not know which one. He cannot have sex with either of them because either of them might be his sister s wife. Therefore, the kiddushin are not valid.
But now we return to our midrashic question how can Rava learn all three things from one verse.
אם כן נכתוב קרא או בעלה מאי ובעלה שמע מינה כולהו
If so, the verse should have written, or has intercourse with her : why [state], and has intercourse with her? Learn from this all [three halakhot].
Rava learns another halakhah from the fact that the verse states and and not or. The betrothal ( when a man takes a woman ) must be inextricably connected with the legality of having intercourse.
ורבי האי בעולת בעל מאי עביד ליה האי מיבעי ליה בעל עושה אותה בעולה שלא כדרכה ואין אחר עושה אותה בעולה שלא כדרכה
And Rabbi: how does he use this phrase, who had intercourse [be’ulat] with a husband?
He uses it [to teach:] her husband renders her a non-virgin through unnatural intercourse, but a stranger does not.
Now we have to ask the other question—how does Rabbi use the verse that R. Yohanan used to prove that betrothal can be done through intercourse?
He uses it to prove that if the husband has unnatural intercourse with her, she is now considered a non-virgin. But if another man has unnatural intercourse with her, she is still considered a virgin.
ומי אית ליה לרב האי סברא והתניא באו עליה י’ אנשים ועדיין היא בתולה כולם בסקילה רבי אומר אומר אני הראשון בסקילה וכולם בחנק
But does Rabbi hold this view? Has it not been taught: If ten men had intercourse [unnaturally] with her [a betrothed virgin] and she is still a virgin, all are stoned. Rabbi said: I say the first is stoned, but the rest are strangled.
But Rabbi earlier said that he does posit that unnatural intercourse renders her a non-virgin. This baraita was explained in yesterday s section.
אמר רבי זירא מודה רבי לענין קנס דכולהו משלמי
מאי שנא מקטלא שאני התם דאמר קרא (דברים כב, כה) ומת האיש אשר שכב עמה לבדו
R. Zera said: Rabbi agrees with respect to the fine, that they must all pay.
Why does this differ from the death penalty?
There it is different, because the verse says, then the man alone that lay with her shall die (Deuteronomy 22:25).
Rabbi distinguishes between the fine, paid by a man who rapes a virgin, and the death penalty given to a man who sex with a betrothed virgin.
When it comes to defining a virgin vis a vis the fine, she is a virgin even if she already had unnatural intercourse. However, when it comes to the death penalty, if she had unnatural intercourse, she is not considered a virgin. A man who has sex with her will be executed by strangulation. Lucky him. Rabbi derives this from the word alone which seems to be unnecessary.
ורבנן האי לבדו מאי עבדי ליה מיבעי להו לכדתני’ (דברים כב, כב) ומתו גם שניהם עד שיהיו שוין כאחד דברי ר’ אושעיא רבי יונתן אומר ומת האיש אשר שכב עמה לבדו
And the Rabbis: what do they do with this word alone ? They need it as it was taught: [If a man is found lying with a woman married to a husband], then they shall both of them die (Deuteronomy 22:22): [this implies,] they must both be equal as one, the words of R. Yoshaya.
R. Yonatan said: then the man alone that lay with her shall die.
Rabbi used the world alone as above, so now we need to know what the other rabbis do with this word. The answer is that they would use it for the same derashah as R. Yoshaya. If two people commit adultery (man and woman) they need to both be equal for either to be punished. If one of them for instance is a minor, who cannot be punished, then neither are executed. R. Yonatan disagrees and holds that if the male is an adult, he can be punished alone.
ורבי יוחנן האי סברא מנא ליה אם כן נכתוב קרא בעולת איש מאי בעולת בעל ש"מ תרתי:
And R. Yohanan: how does he know this ruling? If so, the verse should have written, who had intercourse with a man what does it mean by saying who had intercourse with a husband ? Hence both are inferred.
The last piece of the sugya is that we need a verse from which R. Yohanan can hold that a husband renders his wife a non-virgin through unnatural intercourse whereas another man does not. He derives that from the use of the word husband in the verse, as opposed to man. Intercourse with the husband has a different effect on her from intercourse with another man.
I do realize that it s been difficulty to follow this long midrashic chain. I m not sure every detail here is so crucial (I know, this is heresy). The overall picture is that every sage must give a midrash for every unusual phrase or word. And no one can use the same verse twice. That s an ideology held to by the anonymous voice of the Talmud consistently throughout the entire work. But it s not an ideology shared by the named sages themselves.