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Kidushin, 77

1) THE DAUGHTER OF A YISRAEL MARRIED TO A "CHALALAH"

QUESTION: The Mishnah states that the daughter of a Yisrael who married a Chalalah (a woman who is prohibited from marrying a Kohen) is permitted to marry a Kohen. The Gemara quotes Rebbi Yochanan in the name of Rebbi Shimon (or Rebbi Yishmael) who says that the source for this is a Gezeirah Shavah between the verse, "v'Lo Yechalel Zar'o b'Amav" (Vayikra 21:15), and the verse, "Lo Yitama Ba'al b'Amav" (Vayikra 21:4).

The Gemara, at the end of the previous Perek, taught certain guidelines with regard to establishing one's Yichus. The Mishnah there (66b) states the rule that, "Wherever [a marriage is performed in which] Kidushin takes effect and there is no transgression involved, the status of the offspring follows the status of the father." Since the case of the Mishnah here -- a Jewish man marrying a Chalalah -- involves no transgression, it should be obvious that the child will have the status of the father (and will be a full-fledged Yisrael, and not a Chalalah)! Why, then, is it necessary to have a special source in the Torah to teach us this Halachah?

ANSWERS:

(a) The PNEI YEHOSHUA offers two explanations. First, he says that the verse that teaches us that a child is a Chalal when born from a union involving an Isur Kehunah is "v'Lo Yechalel Zar'o b'Amav." This verse teaches that the child of a Kohen who married someone prohibited to him is a Chalal. Since the Torah states, "Zar'o" -- "his offspring," with no modifying conditions, it implies that *all* of his offspring -- even future generations that will be born from this Chalal -- are invalidated from the Kehunah. Therefore, we need a special source to teach that his grandchildren are not necessarily invalidated from the Kehunah.

(b) The Pnei Yehoshua answers further and says that, indeed, the source of the rule of the Mishnah earlier (66b) is our Gemara. We might have limited the rule that "the status of the offspring follows the status of the father" to a case where *both* parents are completely Kosher, such as where the father is a Kohen and the mother a Yisraelis, or where the father is a Yisrael and the mother is a Kohenes. Only in such cases would we give the child the status of the father, based on the verse, "l'Mishpechosam l'Veis Avosam" (Bamidbar 4:2; Rashi 66a, DH Kohenes). Only after our Gemara proves that even when one side is Pasul, as long as there is no Isur involved in the marriage the child's status follows that of the father.

77b

QUESTION: It was taught before Rav Sheshes in the name of a Tana that "Kol she'Hu b'Yikach, Harei Hu b'Lo Yikach..." -- the Isurim of the prohibited marriages of a Kohen Gadol -- Almanah, Gerushah, Chalalah, or Zonah -- apply only to a woman who would otherwise be permitted to him (if she were not an Almanah, etc.). Thus, if a Kohen Gadol has relations with his sister who is an Almanah, he does not receive Malkus for the Isur of marrying an Almanah.

The Gemara concludes that the reason these Isurim do not apply when the Kohen would, anyway, be prohibited from marrying the woman, is because of the principle, "Ein Isur Chal Al Isur" -- one Isur cannot take effect on a pre-existing Isur.

Later (at the end of the Daf), Rav Ashi states that a Kohen who has prohibited relations with his unmarried sister makes her a Zonah, but he does not make her a Chalalah (and thus if another Kohen marries her, he receives only one set of Malkus -- for the Isur of marrying a Zonah). But if the Kohen has prohibited relations with his sister a second time, then he makes her a Chalalah.

The principle that the Gemara established is that when a woman is prohibited to a Kohen even when she is a Besulah, then he does not transgress the special Isurei Kehunah when he marries her when she is not a Besulah. Why, then, does a Kohen who has relations with his sister who is a Zonah give her the status of a Chalalah? The Gemara earlier taught that a woman becomes a Chalalah only through transgressing a prohibition of Isurei Kehunah, but not through any other act of forbidden relations. The prohibition of having relations with a Zonah does not apply to this Kohen, since he would be prohibited to his sister even if she were not a Zonah; the only Isur that he is transgressing is that of having relations with his sister, and he is not transgressing any Isur Kehunah. Therefore, she should not become a Chalalah!

ANSWER: RASHI (DH Prat l'Kohen Gadol) writes that the Kohen "does not receive Malkus for [transgressing] an Isur Kehunah, but only for [transgressing] the Isur of having relations with one's sister." We can infer from Rashi's words that the principle of "Kol she'Hu b'Yikach..." was said only with regard to Malkus, but not with regard to whether or not there is an Isur altogether. There certainly is an Isur; it is just not considered to be within the normal category of a Lav to make the Kohen liable for Malkus if he transgresses it.

The status of "Chalalah" is dependent on there being an Isur, and not on the Kohen's liability for Malkus.

QUESTION: The Gemara earlier states that "Ein Isur Chal Al Isur" -- an Isur cannot take effect on a pre-existing Isur -- except where the second Isur is a more severe Isur than the first ("Isur Mosif"). According to this rule, how does a Kohen's sister who is a Zonah become a Chalalah through relations with the Kohen? The Gemara states clearly that only when the woman was first a Chalalah, can she then acquire the additional Isur of Zonah. If, however, she was first a Zonah, the Isur of Chalalah cannot take effect! How, then, can the Gemara say that the Kohen's sister who is a Zonah now becomes a Chalalah when the Kohen has relations with her a second time?

ANSWER: The SHA'AR HA'MELECH (17:8) quotes the MAHARIT who introduces a new way of understanding the Halachah of "Ein Isur Chal Al Isur," based on our question above. The generally accepted meaning of the principle of "Ein Isur Chal Al Isur" is that the second Isur cannot take effect at all, since there already exists an Isur. The Maharit proposes that, actually, *both* Isurim take effect. The principle of "Ein Isur Chal Al Isur" tells us only that one cannot receive *punishment* for a second Isur when there is a pre-existing Isur. In contrast, when two Isurim take effect simultaneously, then one *would* receive two punishments for transgressing them. "Ein Isur Chal Al Isur" teaches that when one Isur takes effect after another one has already taken effect, one can only receive punishment for one transgressing one of them. Both Isurim, however, are in force. Hence, if witnesses would give Hasra'ah and warn the person not to transgress the *second* Isur, then Malkus could be given for that Isur.

This explains why the woman can be considered a Chalalah. The Isur of Chalalah takes effect, even though one cannot receive Malkus for that Isur, unless the witnesses specifically give Hasra'ah for that Isur. (See RASHASH for a different approach; see also Insights to Sotah 27b.)