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Kidushin, 67

67b

QUESTION: Ravin says in the name of Rebbi Yochanan that "with regard to the other nations, the status follows the male." The Gemara explains that this refers to the Halachah of the Beraisa that discusses the status of a child born from a union between a member of one of the seven nations and a member of another foreign nation.

RASHI (DH Minayin l'Echad) explains that the subject of this Halachah is the commandment of "Lo Sechayeh Kol Neshamah" (Devarim 20:16). Upon their entry into Eretz Yisrael, the Jews were commanded to destroy the seven idolatrous nations that inhabited the land. The Gemara is discussing *who* is considered a member of those nations. If a Nochri comes from a marriage between a Kena'ani man and a woman from another nation, is he included in the Jewish people's prohibition of "Lo Sechayeh?" The Gemara differentiates between a Nochri from a normal foreign nation who marries a Kena'ani woman (in which case the child's status follow that of his father and, therefore, "Lo Sechayeh" does not apply to that child, just like it does not apply to his father), and a Kena'ani man who marries a woman from a normal foreign nation (in which case the child's status follows that of his father and, therefore, "Lo Sechayeh" *does* apply to the child).

The Beraisa, however, discusses two cases. The first is the case of a member of a foreign nation who bears a child with a Kena'ani woman. The second is the case of an Eved Kena'ani who bears a child with a Shifchah (maidservant) from another foreign nation. According to Rashi, why does the Beraisa discuss the case of an Eved and Shifchah? According to Rashi, the Gemara's question is not whether the child is an Eved, but whether he is a Kena'ani! The Gemara should have given the simple case of a Kena'ani man who bears a child with a woman from another nation. (Indeed, the Mesores ha'Shas cites a variant Girsa which reads "Kena'ani" in place of "Eved." How, though, can we reconcile Rashi's explanation with the Girsa of our Gemara?)

ANSWER: The YOSEF DA'AS explains that the word "Eved" here does not refer specifically to a servant, but rather the word "Eved" means "Kena'ani." "Eved" is an appellation for a member of the Kena'ani nation, since the Torah refers to the nation of Kena'an as an "Eved," as it says, "Vihi Chena'an Eved Lamo" -- "And Kena'an shall be an Eved to him" (Bereishis 9:27).

Perhaps the fact that the Beraisa refers to an "Eved" and not to a "Kena'ani" is the source for the RAMBAM's way of explaining our Gemara. The Rambam (Hilchos Avadim 9:3) writes that "a member of a foreign nation who had relations with a Shifchah Kena'anis of ours, the son is an Eved Kena'ani.... But an Eved of ours who has relations with a member of a foreign nation, the son is not an Eved." The Rambam makes no mention of the Halachah of "Lo Sechayeh Kol Neshamah," nor does he stress the point of whether the child that is born is a Kena'ani or not. The Rambam seems to understand the Gemara to be discussing the question whether the child is an Eved or not. This would explain why the Gemara chose specifically a case of an *Eved* who lived with a Shifchah from another nation, and not just a case of a Kena'ani who lived with a woman from another nation. (Although we might have to alter the Girsa in the first case of the Beraisa according to the Rambam, it seems that the question that the Beraisa is discussing is the one that the Rambam discusses.)

QUESTION: The Mishnah states that when a man lives with a woman with whom he cannot have Kidushin, but with whom others can have Kidushin (i.e. when he marries this woman, the Kidushin does not take effect, such as a man with his sister, but when others marry this woman, the Kidushin does take effect), the child born from the union is a Mamzer. The Gemara asks, "From where is this learned?"

What is the Gemara's questions when it asks, "Mena Hani Mili" -- "from where is this learned?" The Gemara in Yevamos (49a) states clearly that any child born from a union that involves a Chiyuv Kares is a Mamzer. The Gemara, therefore, is not looking for a source for the fact that the child is a Mamzer. Rather, it must be that the Gemara is looking for a source to teach whether the Kidushin takes effect or not. However, there is another principle that states that a child is a Mamzer only if the union from which he was born was a union with which Kidushin could not take effect! Since we know that the child is a Mamzer (since he was born through a union of a Chiyuv Kares), it must be that the Kidushin did not take effect. Why, then, does our Gemara need a special verse to teach us that the Kidushin did not take effect?

ANSWERS:

(a) TOSFOS explains that the Gemara is asking its question according to the view of Rebbi Yehoshua. Rebbi Yehoshua maintains that a child born from a union of Chiyuv Kares is *not* a Mamzer. A child is a Mamzer only when born from a union of a Chiyuv Misas Beis Din. Therefore, according to his opinion, we need a special verse to teach that Kidushin does not take effect.

(b) RASHI explains that the rule that Kidushin does not take effect in a union of a Chiyuv Kares is based on our Gemara. Since our Gemara shows that Kidushin does not take effect in a union of a Chiyuv Kares, and the Gemara in Yevamos states that a child born from a union of a Chiyuv Kares is a Mamzer, we extrapolate the rule that whenever Kidushin does not take effect, the child is a Mamzer. We would not have known this without our Gemara. Hence, the Gemara is asking from where, indeed, do we know that Kidushin does not take effect in a case of Chiyuv Kares.

OPINIONS: The Gemara inquires as to the source that Kidushin does not take effect between two people who are forbidden to each other with a Chiyuv Kares. The Gemara answers that the verse, "And she will leave his house (of her first husband) and she will be a wife to another man (v'Hayesah l'Ish Acher)" (Devarim 24:2), teaches that Kidushin takes effect "with another man" but not with relatives.

The Gemara asks that perhaps the verse means "with another man" but not with *her son*. How do we know to infer that Kidushin with *any* relative does not take effect? The Gemara answers that there is already a verse (Devarim 23:1) that teaches that a son and his mother may not marry. The Gemara asks that perhaps the two verses are necessary to teach that it is prohibited for a son and his mother to marry each other "l'Chatchilah," and, second, that if they marry each other, the Kidushin does not take effect "b'Di'eved."

"L'Chatchilah" means that it is prohibited to perform an act of Kidushin with an Ervah, but if it is performed, it nevertheless takes effect. "B'Di'eved" means that if Kidushin is performed, it does not take effect at all. The Gemara seems to be saying that there exists an Isur to do an act of Kidushin with an Ervah, even if one does not have relations with the Ervah. Can we indeed make such an inference from our Gemara?

(a) The SEFER HA'CHINUCH (Mitzvah 206) indeed writes that it is forbidden to perform an act of Kidushin with any of the Isurei Arayos. That is, not only are relations forbidden, but even merely doing an act of Kidushin through Kesef or Shtar is also forbidden.

(b) The MINCHAS CHINUCH there notes that this Halachah is not mentioned anywhere by the RAMBAM. In addition, the Minchas Chinuch (206:12) discusses this Halachah at length and cites a number of proofs against the ruling of the Sefer ha'Chinuch.

How, though, does the Minchas Chinuch understand our Gemara? It seems that our Gemara is clearly stating, like the Sefer ha'Chinuch, that there is an Isur in merely being Mekadesh one of the Arayos.

ANSWER: Perhaps it is only *before* we have established that Kidushin with an Ervah does not take effect at all that the Gemara implies that performing an act of Kidushin with an Ervah is prohibited. Once we have proven that the Kidushin does not take effect, we no longer have any proof that the act of Kidushin itself is prohibited. The reasoning is as follows. If an effectual act of Kidushin is being performed, through which the woman becomes Mekudeshes to the man, we can question whether the act is permitted or prohibited. However, if the act has no validity whatsoever, we cannot view it as an act of Kidushin at all, and therefore no prohibition can be attributed to that act. It becomes merely an act of giving a Perutah or a ring to a woman, and not an act of Kidushin.

The Gemara mentions the possibility of the act being prohibited l'Chatchilah only before it knows that the Kidushin does not take effect at all. At that point, there indeed could have been a valid Kidushin, and a prohibition to do that act of Kidushin could apply to it. However, once we have established that the Kidushin does *not* take effect, it is not possible for an Isur to apply to an attempted act of Kidushin. (A. Kronengold)