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Kidushin, 69

1) REMOVING A MAMZER'S STATUS THROUGH MARRIAGE WITH A "SHIFCHAH"

QUESTION: Rebbi Tarfon, in the Mishnah, says that it is possible to remove the status of illegitimacy from the offspring of a Mamzer. If a Mamzer marries a Shifchah (non-Jewish maidservant), the child to them is an Eved Kena'ani, and when he is freed he becomes a full-fledged Jew, without the status of a Mamzer. The Gemara concludes that Rebbi Tarfon was giving advice for what a Mamzer may do even l'Chatchilah -- he may marry a Shifchah even l'Chatchilah in order to remove the status of Mamzer from his offspring.

Rashi (DH O Di'eved) explains that the prohibition against marrying a Shifchah is derived from the verse, "Lo Yiheyeh Kadesh" (Devarim 23:18). We know that a Mamzer is obligated to observe all of the prohibitions of the Torah, included prohibitions regarding marriage (such as the prohibition against marrying a Nochris, as the Gemara (68b) derives from "Lo Sischaten Bam" (Devarim 7:3)). Why, then, is the Isur of "Lo Yiheyeh Kadesh" different? Why do we permit the Mamzer to transgress that Isur?

ANSWER: The RASHBA here quotes RABEINU TAM (see also TOSFOS in Yevamos 79b) who answers that the Isur of marrying a Shifchah differs from other Isurei Lav. The other prohibitions involving marriage state that the *marriage* is prohibited. The Isur of marrying a Shifchah states that *being a Kadesh* is prohibited. The Isur does not prohibit performing an act of marriage per se with a Shifchah, but rather it prohibits the outcome that such a marriage causes -- making the man a Kadesh. Hence, although a Mamzer is considered a normal Jew with regard to all of the Mitzvos, nevertheless his origin was through an act of sin and he is thus lacking the element of Kedushah, holiness, that should exist in all of the Jewish people. He was born through an act of "harlotry" ("Kedeishus"), an act that involved the opposite of holiness. Since he has already been blemished with an element of a "Kadesh," there is no need for him to refrain from marrying a Shifchah; the Isur of marrying a Shifchah is in order to prevent Jewish men from losing their holiness by becoming a "Kadesh," but this man already has that blemish, and thus he may marry a Shifchah.

QUESTION: Rebbi Tarfon, in the Mishnah, says that it is possible to remove the status of illegitimacy from the offspring of a Mamzer. If a Mamzer marries a Shifchah (non-Jewish maidservant), the child to them is an Eved Kena'ani, and when he is freed he becomes a full-fledged Jew, without the status of a Mamzer. The Gemara concludes that Rebbi Tarfon was giving advice for what a Mamzer may do even l'Chatchilah -- he may marry a Shifchah even l'Chatchilah in order to remove the status of Mamzer from his offspring.

However, we know that there is an Isur to free an Eved Kena'ani (Gitin 38b). How, then, can Rebbi Tarfon permit the Mamzer to free his son, the Eved? Even though there is no Isur involved in the Mamzer marrying a Shifchah, why does the Gemara say that this method of removing the status of Mamzer from his offspring is permitted l'Chatchilah? He still needs to transgress an Isur of freeing his son, the Eved!

ANSWER: The RAN in Gitin (38b) explains that the Isur to free an Eved Kena'ani is part of the Isur of "Lo Sechanem" (Devarim 7:2), the prohibition against giving a gift to a Nochri. By freeing one's Eved Kena'ani, one is thereby giving him a "gift" of freedom.

However, the Isur of "Lo Sechanem" does not include giving a gift to a Nochri for one's own personal gain. Hence, in our case, when the master frees the Eved (his son), he is doing so for his own personal gain -- to remove the status of Mamzer from his family's lineage. (See MAHARSHA on the Gemara of "Ushpezichnei d'Rebbi Simla'i," and HA'MIKNAH there.)

QUESTION: The Mishnah lists "Nesini" as one of the ten levels of lineage that came up from Bavel. The Rishonim explain that Nesinim are converts who come from the seven nations (specifically the Giv'onim, who were part of the Chivi nation) that occupied Eretz Yisrael during the time the Jewish people entered the land. The Gemara in Yevamos (76a) discusses whether or not the Isur of marrying a member of the seven nations applies even after they convert. The conclusion of the Gemara there (according to Rava, according to some of the Rishonim) is that there is an Isur for a Jew to marry a member of the seven nations even after that person converts. (This Isur applies only to the Ger himself. It is permitted to marry his children who are born after he converts.)

The Mishnah here states that a Mamzer is permitted to marry a Nesin. However, the prohibition against marrying a Nochri ("Lo Sischaten Bam;" see 68b) applies to a Mamzer just like it applies to every other Jew! How, then, is it permitted for a Mamzer to marry a Nesin, if a Nesin is a convert from one of the seven nations?

ANSWER: The RAN differentiates between the prohibition against marrying a Nochri before he or she has converted, and the prohibition against marrying a Nochri from the seven nations after he or she has converted. The Gemara earlier (68b) states that the Isur of "Lo Sischaten Bam," which prohibits marriage to a Nochri, has a reason for it, as the verse says: "For he will turn your son away from Me." Since the Nochri worships idols, the Torah warns that children born to a union with a Nochri will follow the Nochri's sinful ways.

In contrast, the Isur that exists after the Nochri has converted (as mentioned in Yevamos there) is of a different nature. Since the Nochri has converted and is now a Jew, there is no need to be concerned that he "will turn your son away from Me," since he has accepted upon himself to observe the Torah and all of the Mitzvos. Rather, the Isur against marrying a convert from the seven nations is an Isur of "Pesul Yuchsin" -- it is in order to prevent the Jewish people from mingling with the seven nations.

Since a Mamzer is a Pesul, he is not commanded to avoid marrying a Pesul (this is similar to the logic of the RASHBA, cited above (Insights 69:1)). He *is*, however, commanded to avoid a marriage that is prohibited because of idolatry. Therefore, the Isur of marrying a Nochri applies to a Mamzer, since there is a fear that the Nochri will turn away the child from the ways of the Torah. Once that concern no longer exists, though, such as when the Nochri has converted, the Isur that applies after conversion is an Isur of Yuchsin, lineage, which does not apply to a Mamzer.

69b