R. Yose says a convert may marry a mamzer. So what does he “include” in the second clause of the mishnah?
This is a bit confusing, I admit. But the short of it is—sometimes you cannot read something into a word like “in any case” or “this is the case.” Sometimes the former does not come to include anything and sometimes the latter does not exclude anything. They’re just there because that’s the style of the mishnah.
I should note that the Talmud never derives new halakhot from words like “in any case” or “this is the case.” The Talmud uses these little words as an opportunity to add known halakhot to the Mishnah. This type of “midrash” on the mishnah is not “generative,” meaning generating new halakhot. It simply supports existing ones.
Today’s section discusses Ravin’s statement from yesterday.
The Talmud now will more fully explain Ravin’s statement, that in the case of other nations, we follow the male. The main issue is what ramifications genealogical status of non-Jews might have on Jews. In other words, when would it be relevant for Jews to know the genealogical status of non-Jews?
The Torah prohibits Canaanites from residing in the land of Israel (there are no Canaanites anymore). According to this baraita, the child of a non-Canaanite man and a Canaanite woman is considered a non-Canaanite. The verse proves that there are people in your land you can buy—i.e. not everyone in your land is considered a Canaanite.
The second half of the verse proves that you can buy slaves from those just born in your land, meaning not from your land. This would refer to the child of a slave (one who belongs to a Jew) who has a child with a non-Jewish (and non-Canaanite) woman. Such a child is considered a slave. But you cannot buy slaves from those who dwell in your land, i.e. those whose fathers are Canaanite.
If the two non-Jews convert, we follow the inferior status. The statuses compared here are Egyptian—one can marry an Israelite after the third generation, and Ammonite, one can never marry into Israel (again, these statuses no longer exist). But the prohibition of Ammonite is only against Ammonite men, not women. Therefore, it must refer to an Ammonite man who marries an Egyptian woman and not an Egyptian man who marries an Ammonite woman. If the child is male, then he is considered an Ammonite who may never marry an Israelite. If the child is female, the Ammonite prohibition would be meaningless. Therefore the child is considered a second generation Egyptian. This girl’s child will be able to able to marry an Israelite.
Today’s sugya begins to deal with the next part of the mishnah, referring to a woman who cannot marry this man but can marry others—the child of such a union is a mamzer. This refers to incest or adultery.
The rabbis read the second half of Deuteronomy 24:2 as proving that a woman can marry “another man” meaning one who is not her relative. Otherwise, the verse could have just said “man.” The word “another” is the source of the rule that betrothal is ineffective with someone prohibited because of incest.
Why not say that “another man” excludes marrying her husband’s son—with him betrothal would be ineffective, but not with other prohibited relations.
The answer is that there is a specific verse that states that a man cannot marry his father’s wife. Thus we would not need the word “another” to teach this. The word “another” can teach that other incest relations also cannot betroth her.
The Talmud continues to try to say that the word “another” refers only to the husband’s son. Perhaps one verse teaches that she shouldn’t be betrothed to him ab initio and the other that if he tries to betroth her, the betrothal is invalid, ex post facto.
But this is rejected because we know the ab initio prohibition by comparing it with the prohibition of marrying one’s wife’s sister. We know this because it specifically states “do not take” which is interpreted to mean that marriage does not work. If this is prohibited even though the penalty is only karet, all the more so it is prohibited (and impossible) to marry one’s father’s wife, for which the penalty is death. Therefore the verse is free to learn that kiddushin is invalid with any incestual prohibition.
The Talmud now concedes that both verses could be referring only to a wife’s sister. Thus we would know that it is both prohibited ab initio and ex post facto to marry one’s wife’s sister. This will now need to serve as a paradigm for other prohibited sexual relationships. How do we know that in those cases as well, the kiddushin are invalid. Stay tuned!
Yesterday’s sugya ended by saying that kiddushin are both ab initio prohibited and ex post facto ineffective with one’s wife’s sister. The Talmud now tries to expand this to all incestual relations. In other words, we know that one cannot have sex with someone prohibited because of incest. But how do we know that if a man tries to betroth such a woman, the betrothal is ineffective.
This is a simple comparison. One who has sex intentionally with his wife’s sister is punished with karet (being cut off). If unwittingly (either he did not know that this is prohibited or he did not know she was his wife’s sister) they must both bring a sin-offering. In this case, kiddushin is not possible. So too with other incest prohibitions kiddushin is impossible.
The Talmud raises a difficulty concerning the analogy of a wife’s sister to the case of a brother’s wife. If the brother dies without children, then there is a mitzvah to marry her. So maybe in this, the kiddushin would be valid (even not in a case of yibbum) for she is not like a wife’s sister, who is never permitted. There is never a mitzvah to marry one’s wife’s sister.
The analogy between a married woman and a wife’s sister is also difficult. The wife’s sister is prohibited as long as the wife is alive. It does not change at divorce. But a married woman is prohibited only while married. Once she is divorced, she is permitted. So maybe kiddushin is possible with a married woman but not with a wife’s sister. I know, this sounds absurd (that a man could betroth an already married woman), but sometimes arguments are made out of the necessities of logic and not because they make real sense.
In tomorrow’s exciting conclusion to this week’s daf we will finally learn how we know that betrothal with incestuous relations is not possible.
This sugya finally resolves how we know that kiddushin are invalid with all incestuous relationships, just as they are with one’s wife’s sister.
The verse “any of these abominations” means that the same rules apply to all of the incestuous relationships referred to in Leviticus 18. Just as kiddushin are ineffective with one’s wife’s sister, so too they are ineffective with all incestuous relationships.
The list in Leviticus 18 includes the prohibition of having sex with a woman while she is menstruating (18:19). So if she is compared to all the other prohibitions, why would Abaye say that all tannaim agree that kiddushin with her (and with a woman suspected of adultery) is valid?
To solve this problem, Hezekiah cites a verse that uses the Hebrew word “will be” which is the same word used at times to signify kiddushin. While this is certainly not the simple meaning of the word, he reads it as teaching that kiddushin with a niddah (a menstruant) is valid.