The Torah explicitly states one may not marry one’s wife’s sister. The rabbis say that this is true of all incestuous relationships punishable by karet—kiddushin is ineffective with them. But kiddushin is effective with a menstruating woman, even though sex with her is prohibited by karet. So why are all other incestuous relationships compared with a wife’s sister (kiddushin is ineffective) and not with a niddah (kiddushin is effective).
Other incestuous relationships are compared with a wife’s sister, with whom kiddushin is not possible, and not with a niddah, with whom kiddushin is possible, because in cases where an unknown can be compared with two knowns, we compare to the more stringent case, in this case a wife’s sister.
R. Aha b. Ya’akov derives the rule that betrothal is ineffective with incest prohibitions from the rule with regard to a yevamah. A yevamah is prohibited to all men except the yavam by a negative commandment, a transgression considered lesser than that prohibited by penalty of death or karet. So if kiddushin is ineffective with her (note that this is not the post-talmudic halakhah) then kiddushin should also be ineffective with those more prohibited, namely incestuous relationships.
The problem with R. Aha b. Ya’akov’s proof is that we could use the yevamah to prove that kiddushin are ineffective with marriages prohibited by a negative commandment such as a divorcee to a priest. Such marriages are effective. But we could say that just as a yevamah is prohibited by a negative commandment and kiddushin are not effective with her, so too all women prohibited by a negative commandment, kiddushin are ineffective with her.
R. Papa cites a midrash that interprets “beloved” and “hated” not to mean the woman is actually beloved or hated—God does not play favorites (although human beings clearly do). Rather, the word “beloved” means that her marriage is permitted. “Hated” means it is forbidden. Thus there must be a category of women with whom marriage is prohibited but with whom kiddushis is nevertheless effective. This category is women prohibited by a negative commandment (widow to high priest, divorcee to priest).
Yesterday’s section ended with a midrash explaining the words “beloved” and “hated” to refer to women prohibited in marriage by a negative commandment. Marriage is effective with such women and their children are not considered mamzerim. But R. Akiva holds that they are, and he holds that kiddushin are ineffective with such women. So how does he read the verse?
According to R. Simai, there is one marriage prohibited by a negative commandment that R. Akiva does not declare a mamzer—a widow married to a high priest.
R. Yeshvav laments R. Akiva’s overly strict position. However, it is unclear what R. Yeshvav thinks R. Akiva’s position actually is. If he thinks it is the same as R. Simai does, then we understand how R. Akiva interprets the words “beloved” and “hated.” But if he thinks R. Akiva rules even more strictly, that the offspring of all women prohibited by negative commandments and even those prohibited by positive commandments are mamzerim, then how would R. Akiva understand the verse?
The answer is that R. Akiva could read the verse as referring to a non-virgin who may not marry a High Priest. This is considered a positive commandment for the Torah says that the High Priest must marry a virgin—the rule is phrased in the positive and not the negative. It is different from other positive commandments in that it applies only to a High Priest and not to other Jews, even other priests. Only in this case would the offspring not be a mamzer according to a very expansive reading of R. Akiva.
Note that according to this R. Akiva reads the verse, “If a man has two wives, one beloved and one hated” as referring only to the Kohen Hagadol who has two wives, one he married as a virgin and one as a non-virgin. Yes, this is weird. But you’ve been reading Talmud for a while now—lots of stuff gets weird. As I’ve said, as long as it’s possible, an interpretation can be offered, even if it seems remarkably unlikely.
The Talmud continues to discuss the explanation of “beloved” and “hated” in the verse about a man married to two wives. The rabbis who disagree with R. Akiva and hold that kiddushin are effective with women prohibited by a negative commandment explain this verse as referring to such women. But why—why not explain the verse as referring to women prohibited by positive commandments? In other words, why do they hold like they do and not like R. Akiva?
The rabbis don’t interpret the two wives as being prohibited by positive commandments because this would not fit the verse. If both are Egyptian (a positive commandment prohibition) then both are hated. If one is Egyptian and one a Jew, then both need to be from the same nation. And if the verse refers to the prohibition of a non-virgin to a High Priest, well the verse says “man” not “priest.”
R. Akiva, who reads the verse as referring either to a non-virgin married to a high priest or an Egyptian married to a Jew is forced to just read the verse in a difficult manner. Sometimes there is nothing else you can do, even if you’re R. Akiva.
Today’s sugya begins to explain the next section of the mishnah:
And any [woman] who cannot contract kiddushin with that particular person or with others, the child follows her status.
And what case is this? The child of a female slave or a gentile woman.
When leaving to sacrifice Isaac, Abraham tells his servants “stay here with the donkey.” There really is no reason for Abraham to add in “with the donkey.” These are extraneous words so the rabbis see this as an opportunity for midrash. They play on the word “עם” and read it as “am.” Essentially, Abraham says, “Stay here, you people like a donkey.” Just as a Jew cannot marry a donkey (although some have married an ass [couldn’t help it]), so a Jew cannot marry a slave woman. The kiddushin would be invalid.
Yes, this is not the piece of Talmud you want to be shouting about in the streets. But it does represent the way people in the ancient world most likely thought—slaves do not have marriage or genealogical lineage in the same way that free people do.
Exodus 21 says that if a master gives a slave woman to his Hebrew slave the offspring belong to the master. This shows that the offspring of a Jew and a slave woman follow the status of the slave.