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Kidushin, 68

1) KIDUSHIN WITH A NIDAH

QUESTION: The Gemara asks that if the source that Kidushin with an Ervah does not take effect is the Hekesh that compares all of the Arayos (Vayikra 18:29) to the Ervah of Achos Ishah (Vayikra 18:18), then Kidushin performed with a Nidah should also not take effect, and a child born through a union with a Nidah should be a Mamzer, since the Isur of having relations with a Nidah (which is an Isur Kares) is also mentioned in the Parshah of Arayos! We have learned, though, that everyone agrees that the Kidushin takes effect when one marries a woman who is a Nidah, and that a child born from such a union is not a Mamzer. The Gemara answers that a verse (Vayikra 15:24) explicitly teaches that Kidushin takes effect with a Nidah.

The RAMBAM (Hilchos Ishus 4:12) writes that "one who is Mekadesh any of the Arayos has not done anything, for Kidushin with an Ervah cannot take effect, except for Kidushin with a Nidah -- when one is Mekadesh a Nidah, she is Mekudeshes with complete Kidushin, but it is not appropriate to do so."

The commentaries on the Rambam point out that there is no clear source in the Gemara that states the Rambam's ruling that "it is not appropriate" to perform Kidushin with a woman while she is a Nidah. What is the source for the Rambam's ruling?

ANSWERS:

(a) The MINCHAS CHINUCH (Hashmatos to 206) suggests that our Gemara is the source for the Rambam's ruling. Our Gemara states that there are two Isurim involved with marrying an Ervah: the first is an Isur "l'Chatchilah," and the second is an Isur "b'Di'eved." The Gemara compares Nidah to the other Arayos, and it needs a special verse to prove that Kidushin with a Nidah takes effect. The verse that it cites, though, only proves that *b'Di'eved* the Kidushin takes effect; it does not prove that one may, l'Chatchilah, be Mekadesh a woman while she is a Nidah! When the Rambam says that "it is not appropriate" to be Mekadesh a Nidah, he is referring to the Isur l'Chatchilah that is implied by our Gemara!

The Minchas Chinuch asks, however, why the Rambam chooses to express this Isur specifically with regard to being Mekadesh a Nidah, and not with regard to any other Ervah.

According to the logic mentioned earlier (see Insights to Kidushin 67:3), we can understand why the Rambam mentions this Isur only with regard to Nidah. Indeed, the Rambam will hold that this Halachah does not apply to other Arayos. We explained earlier that it is not possible to have an Isur against performing an act of Kidushin if the act would have no validity and is, Halachically, not an act of Kidushin at all. Only if the act takes effect would the Kidushin be prohibited to perform, l'Chatchilah. Hence, Kidushin with a Nidah differs from Kidushin with other Arayos. Since the Kidushin does take effect, there can exist an Isur l'Chatchilah to be Mekadesh her, as mentioned by our Gemara. In the case of other Arayos, the Kidushin does not take effect, and thus there can be no Isur against performing an act of "Kidushin" with them. The Rambam, therefore, rules that there is an Isur to perform Kidushin only in the case of marrying a Nidah, where the Kidushin actually takes effect.

(b) Other Acharonim point out that the phrase that the Rambam uses with regard to performing Kidushin with a Nidah -- "it is not appropriate" -- has the connotation of an Isur d'Rabanan, and not that of an Isur Lo Ta'aseh (moreover, the Rambam should have written explicitly that it is "*Asur*" if indeed he holds that there is a Lo Ta'aseh that prohibits performing Kidushin l'Chatchilah with a Nidah). The Magid Mishnah cites an explanation that says that the Rambam is concerned that when a man marries a woman while she is a Nidah perhaps they will transgress the Isur of contact with a Nidah, and therefore the Rambam advises against performing such a marriage (as a "Seyag l'Isur Nidah d'Oraisa").

OPINIONS: The Mishnah (66b) states that the Kidushin does not take effect at all when one attempts to perform Kidushin with anyone who is Asur to him as an Ervah. Does this Halachah apply to a Nochri as well? That is, we know that one of the seven Mitzvos of B'nei Noach is the prohibition to live with one's close relatives. What is the Halachah in the case of a Nochri who performs Kidushin (through Bi'ah, since that is the only method of Kidushin for Nochrim) with, for example, his sister. If the Kidushin takes effect, then if she commits adultery with another Nochri, the other Nochri is Chayav Misah for having relations with an Eshes Ish. If, on the other hand, the Kidushin does not take effect, then another Nochri may marry her.

(a) The MINCHAS CHINUCH (191:2) quotes the MISHNAH L'MELECH (in Parashas Derachim) who discusses this question (Hilchos Melachim 9:10). He seems to assume that a Ben Noach has the same Halachos as a Jew in this regard, and the Kidushin does not take effect.

(b) The Minchas Chinuch argues based on our Sugya. The Gemara has a lengthy discussion as it searches for the source for the rule that Kidushin does not take effect with an Ervah. The verses that the Gemara cites are all referring to Jews, and not to Nochrim. We should assume, therefore, that for a Nochri, Kidushin with an Ervah *does* take effect, if there is no explicit verse stating otherwise.

QUESTION: The Gemara asks why do we compare all of the Arayos to Achos Ishah, and learn that the Kidushin does not take effect (and that a child born from a union with an Ervah is a Mamzer), when we could instead compare all of the Arayos to *Nidah*, and learn that the Kidushin *does* take effect (and that the child is not a Mamzer). The Gemara answers that when there is a choice between two possible ways of making a Hekesh, and one Hekesh is a Kula and the other is a Chumra, we make the Hekesh which is a Chumra.

The Gemara is saying that when Kidushin does not take effect, it is a Chumra, and when Kidushin does take effect, it is a Kula. The Rishonim ask that the opposite should be true. When the Kidushin takes effect, then the woman is considered an Eshes Ish and is forbidden to the rest of the world (a Chumra), and when the Kidushin does not take effect, she is permitted to marry anyone she wants (a Kula)! Why is it a Chumra when the Kidushin does not take effect?

ANSWERS:

(a) TOSFOS and other Rishonim answer that the Chumra to which the Gemara refers does not involve the actual Kidushin itself. Rather, the Chumra refers to the *consequences* that the Kidushin (or lack thereof) has on other Halachos. Since the child born from a union in which Kidushin does not take effect will be a Mamzer, the Halachah that the Kidushin does not take effect is indeed a Chumra.

(b) The RITVA explains that the Gemara is indeed referring to the Kidushin itself (i.e. whether or not it takes effect) when it refers to "Chumra" and "Kula." If the Kidushin does not take effect, then it must be that it is the Isur Arayos (that is, the Isur for one person to live with another who is an Ervah to him) involved that prevents the Kidushin from taking effect. We can measure the severity of the Isur by checking whether or not the Kidushin takes effect when one transgresses that Isur -- does the Kidushin take effect or not? If the Kidushin does not take effect, then it is a sign that the Isur is very severe.

While it is true that if the Kidushin takes effect, then a new Isur of Eshes Ish has been created (which is a "Chumra"), nevertheless, when judging the gravity of the act itself, we gauge its severity by the act's inability to take effect.

68b