SHIUR BEKIYUT #2: 66b - 67a

  • Yeshiva Staff
     Most of the issues raised in the opening discussion of the gemara will be discussed separately and more extensively later in the rest of this and the next perek, so we will limit this week's shiur to several points which will be further developed later.
     There are four rules in the mishna:
A. "Yesh kiddushin ve-ein aveira."  These are cases where there is no psul.  The question involves the familial identity of the child.  "Ha-vlad holekh achar ha-zakhar" - A child belongs to his father's family.  Rashi makes this interpretation clear by quoting the source - "le-mishpechotam le-veit avotam" - "according to their families and their fathers' houses."  A family is equivalent to "beit av," one's father's house.  It should be noted that this verse does not refer to the laws of yuchsin per se.  The context is the census taken at the beginning of sefer Bamidbar.  Both the general census of the Jews and the separate one of the Levi'im are done "le-mishpechotam le-veit avotam."  The verse basically defines family, tribe, and household and we simply apply it to the identity of kohen, levi and yisrael, which are understood to be questions of family identity.  It is therefore no surprise that the gemara (Bava Batra 109b) derives the rule that inheritance remains within the father's family from the same verse - since inheritance is defined by family and family means beit av, only the father's house can inherit the property.  (See also Nazir 49a for another application of this principle).
     The gemara points out that there appears to be an exception to the rule of the mishna.  A ger is permitted, according to R. Yehuda, to marry a mamzeret (hence, ein aveira ve-yesh kiddushin); yet the child is a mamzer like her.  The gemara's answer is either to assign the mishna to R. Yossi, who prohibits the marriage of a ger and a mamzeret (hence removing this case from the first rule of the mishna), or to claim that the mishna itself refers obliquely to this exception.  The gemara then proceeds to utilize this method of explaining the mishna - that the enumeration of examples implies that other cases which appear to meet the rule are in fact exceptions - a number of times (67a).  Although this accounts for the language of the mishna, it undoubtedly strikes you as strange that the mishna promulgates a rule which doesn't appear to be intrinsically correct.  However, our understanding of the rule clears this up.  The first rule, phrased as "yesh kiddushin ve-ein aveira" is meant to give the rule for familial identity.  That is not the question in the case of a ger who married a mamzeret - mamzeirut is a personal status, not a family identity.  (Whether ger is a status, and what sort it is, will be discussed in the fourth perek).  In order that the language of the mishna be technically correct, the gemara has to account for ger-mamzeret, but in principle, the first rule, relating to normal marriages without any special psul, is inclusive and complete, and a mamzeret, even when married to a ger, clearly does not belong in this category.
2.  "Yesh kiddushin ve-yesh aveira."  The child assumes the status of the disqualified parent (holekh achar ha-pagum).  In the case of one parent who is a mamzer, this simply means that the status is hereditary.  The child of a mamzer or a mamzeret is a mamzer.  The principle - yesh kiddushin ve-yesh aveira - means that we are dealing with a disqualification (yesh aveira) but not a total exclusion of the individual from marriage (yesh kiddushin).  Hence, once the technical textual question is solved by the gemara, we understand that the child of a ger-mamzeret union is a mamzer.  The union is in fact permitted according to R. Yehuda ("ein aveira"), but the real principle meant to be invoked by the phrase "yesh aveira" is that there be a disqualification in one of the parents - psulei kahal - the mamzeret is "assur" - although this prohibition doesn't apply to a ger.  Since the mamzerut of the child is not a result of the TRANSGRESSION of his parents (that is the next principle in the mishna) but is a result of HEREDITY, a ger-mamzeret union results in mamzerut as well.
     The problem with this rule is in the first set of examples.  A kohen-divorcee union results in challal.  This is called "ha-vlad holekh achar ha-pagum."  This appears to be a case, not of heredity - the child is not a garush, but of transgression.  It is generally assumed that the aveira of the kohen is the cause of the child's status.  Should this be called "holekh achar ha-pagum?"  Does the child "follow," ("follow" refers to the transmission of a psul, whereas here there appears to be the generation of a psul) i.e., assume the status of the disqualified parent?
     The Rambam (Commentary to the Mishna) states that the principle of ha-vlad holekh achar ha-pagum does not properly apply to these cases.  It was merely convenient for the mishna to include them since they meet the criteria of yesh kiddushin ve-yesh aveira and the conclusion is that the child is pagum.  Rashi, on the other hand, seems to be claiming that there is a continuum of identity between the mother and the child.  A divorcee is pasul kehuna and the child is pasul kehuna.  Is Rashi making this point merely to account for the language of the mishna - ha-vlad holekh achar ha-pagum - or is he advancing a novel thesis - that challal is not the result of the kohen's transgression but is a hereditary transfer of the mother's kohen-disqualification (called gerusha) to the child (called challal)?  This second possibility appears rather strange - after all, a yisrael-challala or yisrael-gerusha union does not result in the transfer of any disqualification to the child, so that challalut, unlike mamzeirut, is not simply hereditary.
     The Yerushalmi calls a challal-yisraelit union, where the child is a challal, a case of ha-vlad holekh achar ha-pagum.  (Our gemara, 67a, calls this ha-vlad holekh achar ha-zakhar.)  Rav Chayim Soloveitchik (Issurei Bia 17:2) suggests the following explanation.  Basically, yisrael-challala should also pass on challalut.  Any disqualification whether psulei kahal (mamzer) or psulei kehuna (challal) should be hereditary, from either parent.  The problem is that challalut, as a personal status, is properly only a state of kehuna.  Challalut is defined as desecration of kedushat kehuna.  Only a member of a kohen family can be a challal.  Hence, in the case of yisrael-challala, although the child SHOULD be a challal, this is inapplicable, since the child is not a kohen.  However, where a challal (who is a kohen) marries a challala, the child is a challal not because of the aveira, but because of the mother's status, inherited by the child who is a kohen.
     Since the daughter of a kohen-gerusha union is a challala, without being a kohen herself, Rav Chayim must accept that the daughter of a kohen has some sort of kohen status (although she does not serve in the beit ha-mikdash).  This possibility is discussed by the commentators in regard to her ability to eat teruma.  Here, in respect to yuchsin, this possibility is more acceptable than elsewhere.  Her "yichus," i.e. her family, is kohen - and that status can be "desecrated" by the nature of her parents' union.  (The question remains whether the Bavli disagrees with the Yerushalmi on this point).
     According to this explanation based on the Yerushalmi, there is no difference, in principle, between the transmission of mamzerut and challalut.  Rav Chayim suggests another explanation of challalut which recognizes a distinction in principle between the two.  Challalut belongs to the first rule - it follows the male, while mamzerut belongs to the second - it is transmitted by either parent.  The reason is that there are two aspects to challalut:
1) It is a status, a psul.
2) It is a family identity.  Challalut is a kind of familial, or tribal, identification, based on a pgam, a taint, in the familial identification of kohen.  (This differs from the first explanation offered above.  There it was claimed that challalut was a personal status, which was relevant only to kohanim, much in the same way that mamzerut is relevant only to Jews.  Here the claim is that challalut is a kind of family, as levi or kohen is.)  This second aspect logically follows the first rule.  One is a member of a challal family if one's father is a challal, in the same way that one is a levi if one's father is a levi.  The first aspect of challalut SHOULD have been transmitted by the mother as well as the father - there is a gezeirat ha-katuv (77a) which cancels that.  In this way, Rav Chayim explains the Rambam (Hilkhot Issurei Bia 19:14) who explicitly includes yisrael-challala in the category of le-mishpechotam le-veit avotam.  (There are two versions of the Rambam - one that excludes this line entirely - look it up).
     As an example of the application of this distinction between two aspects of challalut, Rav Chayim cites the opinion of R. Dostai (67a), who states that challal-yisraelit does not produce challalut.  Rav Chayim claims this means that a DAUGHTER will not be a challala - however, a son is clearly a challal in the sense that he doesn't serve in the beit ha-mikdash.  His father is not a kohen (at least not a full kohen), so how could he be?  The family aspect of challalut follows the father even according to R. Dostai.  The personal aspect of challalut, according to R. Dostai, is eliminated if either parent is not a challal.
     To return to Rashi: R. Chayim raises the possibility that according to the Yerushalmi, challalut is hereditary in a comparable manner to mamzerut, at least in principle.  That, however, refers to the case of the child of a challal.  Rashi seems to be referring to the child of a gerusha.  If we are to understand Rashi's reading of the mishna to be explanatory and not merely formal; that is, that the child of a gerusha is a challal because he inherits the status (psul kehuna) of the mother, this could follow the direction outlined by Rav Chayim.  If the child is a kohen (in other words, if the father is a kohen), then the child will be a challal if either parent is a pasul kehuna - either a challal/challala or, in the case of the mother, any other sort of pasul kehuna.  This produces a radically new definition of challal.  A challal is not the child of a kohen-prohibited relation.  Rather, a challal is the child of any psul kehuna.  In other words, "challal" is the general name given to a pasul kehuna when the original specific name (e.g., Gerusha - divorcee) is inapplicable in its specificity.  We shall see that most Rishonim explicitly reject this definition and it is not at all clear that Rashi means to advance it.
     There is one other way to become a challala - the wife of a challal becomes a challala.  This will be discussed when we reach the sugyot of challal in the fourth perek.  At this point, it is sufficient to note that this fact is the basis for the question of Tosafot (62a s.v. Ve-harei).  Tosafot demonstrate that challal is not caused by a mother challala alone (Yisrael-challala does not result in a challal child).  Hence, since a father challal does result in challalut, even though the mother is also always a challal, it must be because of the father alone - "holekh achar ha-zakhar."  It should be noted that Tosafot do not consider the possibility that for challalut it is necessary that both parents be challalim; in other words, that challalut is what we would call a recessive trait.  The only possibilities for the transmission of psul are father, mother, or either.
3.  Mamzer
     A mamzer is the child of a erva relationship.  Our mishna states that the relationship has to be not only prohibited, but also one where kiddushin cannot take effect.  The difference between the third and fourth rules is that a woman who is precluded from kiddushin in principle is not included - this refers to non-Jews and slaves.  A woman whose particular status doesn't allow kiddushin for a particular man, either because she is his relative or because she is already married to another, is an erva and included in the third rule.
     How mamzerut is generated, and the relationship between mamzerut of the children and the non-chalut of kiddushin between the parents, will be the subject of next week's shiur.
4.  Shifcha ve-nokhrit.  We will discuss these cases on 68a-b (67a).
5.  Ger-mamzeret.  We will discuss this issue on 72a.
6.  Mitzri-mitzrit.  Rava bar bar Chana states that for the purposes of determining the generation count of a ger mitzri ,we follow the father.  Rashi states that this is an application of the first rule of the mishna (ein aveira).  According to our explanation, that means that "mitzri" status (remember the mitzri is a convert) is a family status; hence it follows the father.  Rashi points out, based on the gemara in Yevamot 78a, that if a yisrael marries a mitzrit, the child is a mitzri.  Technically, this meets the definition of the second rule, since it is a case of "yesh aveira."  Nonetheless, according to our explanation, this implies that being a mitzri is a psul, a personal status, and not a family identity, which contradicts the previous case.  Rashi answers that this is a gezeirat ha-katuv: "ve-yaldu lahem" - "the children born to THEM" - implying that THEY convey their status to their children.  What this means is that both rules apply.  Vis a vis a yisrael, being a mitzri is a psul; between themselves, in other words, what sort of a mitzri you are, is a question of family identity.
     Rav Dimi disagrees with Rava bar bar Chama and maintains that mitzri-mitzrit depends on the mother.  There is no other case of maternal determination of the status of a Jew.  Since we know that matrilineal lineage determines Jewish identity (Goy-Jewess and Jew-Goya), this would seem to imply that R. Dimi holds that the prohibition of a mitzri sheni is a kind of residual non-Jewish identity.  In regards to marriage, the conversion isn't completely effective.  The child, then, has a status as though the mother wasn't Jewish - hence, he is a mitzri like her (but we count generations and this residual quality wears off for the third generation).
Next week:
a) 67b "Gufa: Ki ata rabin ..."  This short sugya deals with assigning a particular national background to the children of "mixed" marriages (not including Jew - non-Jew intermarriage).  In certain cases, it is halakhically important to know the particular national origin of a non-Jew (the case in the gemara refers to the special status accorded to members of the seven Canaanite nations) or a ger (male Ammonite or Moabite converts, and their male descendants are prohibited; both male and female Egyptian and Edomite converts for two generations only are prohibited).  According to most poskim, these national categories do not exist today.
b) "Mena honi mili ..." until 68a, at the bottom "...u-muki anefshei."  The issue here is primarily when does issur result in non-chalut of kiddushin.  Some prohibited marriages are legally valid, though prohibited; some are invalid.  A secondary issue concerns the relationship between the non-chalut of kiddushin and the mamzerut of children.  This will be the primary topic discussed in the shiur.
     The definition of mamzerut: See Yevamot 49a, the mishna (first half, "... divrei R. Yehoshua) and the gemara (until 49b "...Ee ke-Rav ee ke-Shmuel"); mishna Yevamot 44a.