חַיָּיבֵי עֲשֵׂה מִצְרִי וַאֲדוֹמִי intercourse with women for which one is liable for violating a positive mitzva, e.g., an Egyptian convert and an Edomite convert (see Deuteronomy 23:8–9). If he raped a first- or second-generation Egyptian or Edomite convert, even Rabbi Yeshevav agrees that the child is not a mamzer, as the betrothal takes effect. On the other hand, it is prohibited for him to sustain her as a wife.
הָנִיחָא לְרַבִּי יְשֵׁבָב אִי לְאַפּוֹקֵי מִטַּעְמָא דְּרַבִּי סִימַאי קָאָתֵי שַׁפִּיר אֶלָּא אִי טַעְמָא דְנַפְשֵׁיהּ קָאָמַר כֹּל שֶׁאֵין לוֹ בִּיאָה בְּיִשְׂרָאֵל הַוָּלָד מַמְזֵר וַאֲפִילּוּ חַיָּיבֵי עֲשֵׂה מַאי בֵּינַיְיהוּ The Gemara asks: This works out well according to Rabbi Yeshevav if he is coming to reject the opinion of Rabbi Simai. If Rabbi Yeshevav merely takes issue with Rabbi Simai, who said that all offspring of forbidden relations are mamzerim according to Rabbi Akiva except for those resulting from relations between a widow and a High Priest, then it may well be explained that Rabbi Yeshevav holds that Rabbi Akiva rules that betrothal does not take effect and that there is mamzerut when one violates the prohibitions of the priesthood. However, if he is stating his own opinion, independent of Rabbi Simai’s statement, his ruling is more comprehensive and leads to the conclusion that in the case of relations with anyone who does not have the possibility of permitted relations among the Jewish people, the child is a mamzer, and this is true even of women for relations with whom one is liable for violating positive mitzvot, e.g., Egyptian or Edomite converts. In that case, what is the difference between the opinions of Shimon HaTimni and Rabbi Shimon ben Menasya?
אִיכָּא בֵּינַיְיהוּ בְּעוּלָה לְכֹהֵן גָּדוֹל וּמַאי שְׁנָא דְּהָוֵה לֵיהּ עֲשֵׂה שֶׁאֵינוֹ שָׁוֶה בַּכֹּל The Gemara answers: There is a difference between them in the case of a non-virgin raped by a High Priest. And the Gemara asks: Here, too, she is a woman for relations with whom one is liable for violating a positive mitzva, as the High Priest fails to fulfill the mitzva “But a virgin of his own people shall he take to wife” (Leviticus 21:14). If Rabbi Akiva rules that betrothal does not take effect when a positive mitzva is violated, what is different about this case? The Gemara answers: It is different because it is a positive mitzva whose application is not equal for all. There are two lenient aspects to this mitzva: It is a positive mitzva and not a prohibition, and it applies only to the High Priest and not to all Jews. Even Rabbi Yeshevav would agree that according to Rabbi Akiva, a child born from relations between a High Priest and a non-virgin is not a mamzer. However, the High Priest may not sustain the woman as his wife. Therefore, this case is the practical difference between the statements of Shimon HaTimni and Rabbi Shimon ben Menasya.
אָמַר רַב חִסְדָּא הַכֹּל מוֹדִים בְּבָא עַל הַנִּדָּה שֶׁמְּשַׁלֵּם קְנָס לְמַאן דְּאָמַר יֵשׁ בָּהּ הֲוָיָה הָא נָמֵי יֵשׁ בָּהּ הֲוָיָה לְמַאן דְּאָמַר רְאוּיָה לְקַיְּימָהּ הָא נָמֵי רְאוּיָה לְקַיְּימָהּ § Rav Ḥisda said: Everyone agrees with regard to one who engaged in forced intercourse with a menstruating woman that he pays the fine. He elaborates: According to the one who says that the criterion is whether there is betrothal, for this woman too there is betrothal. According to the one who says that the criterion is whether the woman is suitable for him to sustain, this woman is suitable for him to sustain.
וּלְאַפּוֹקֵי מִדְּרַבִּי נְחוּנְיָא בֶּן הַקָּנָה דְּתַנְיָא רַבִּי נְחוּנְיָא בֶּן הַקָּנָה הָיָה עוֹשֶׂה אֶת יוֹם הַכִּפּוּרִים כַּשַּׁבָּת לְתַשְׁלוּמִין מָה שַׁבָּת מִתְחַיֵּיב בְּנַפְשׁוֹ וּפָטוּר מִן הַתַּשְׁלוּמִין אַף יוֹם הַכִּפּוּרִים מִתְחַיֵּיב בְּנַפְשׁוֹ וּפָטוּר מִן הַתַּשְׁלוּמִין § The Gemara comments: And the mishna’s ruling that one who has relations with his sister is liable to pay the fine comes to exclude the opinion of Rabbi Neḥunya ben HaKana, as it is taught in a baraita: Rabbi Neḥunya ben HaKana would render Yom Kippur like Shabbat with regard to payment for damages. Just as one who intentionally desecrates Shabbat is liable to receive the death penalty and is therefore exempt from the obligation of payment for damages caused while desecrating Shabbat, so too, one who intentionally desecrates Yom Kippur is liable to receive the death penalty and is therefore exempt from the obligation of payment for damages caused while desecrating Yom Kippur.
מַאי טַעְמָא דְּרַבִּי נְחוּנְיָא בֶּן הַקָּנָה אָמַר אַבָּיֵי נֶאֱמַר אָסוֹן בִּידֵי אָדָם וְנֶאֱמַר אָסוֹן בִּידֵי שָׁמַיִם מָה אָסוֹן הָאָמוּר בִּידֵי אָדָם פָּטוּר מִן הַתַּשְׁלוּמִין אַף אָסוֹן הָאָמוּר בִּידֵי שָׁמַיִם פָּטוּר מִן הַתַּשְׁלוּמִין The Gemara asks: What is the rationale for the opinion of Rabbi Neḥunya ben HaKana? Abaye said: It states the word harm at the hands of man, in the verse “But if any harm follow, then you shall give a soul for a soul” (Exodus 21:23) and it states the word harm at the hand of Heaven, in the verse in which Jacob states: “My son shall not descend with you…and harm befalls him on the way” (Genesis 42:38). Just as with regard to harm that is stated at the hands of man, e.g., one who kills and is liable to be executed, one is exempt from the associated payment, so too, with regard to harm that is stated at the hand of Heaven, one is exempt from the associated payment.
מַתְקֵיף לַהּ רַב אַדָּא בַּר אַהֲבָה מִמַּאי דְּכִי קָא מַזְהַר לְהוּ יַעֲקֹב לִבְנֵיהּ עַל צִינִּים וּפַחִים דְּבִידֵי שָׁמַיִם נִינְהוּ דִּלְמָא עַל אַרְיָא וְגַנָּבֵי דְּבִידֵי אָדָם נִינְהוּ אַטּוּ יַעֲקֹב אַהָא אַזְהַר אַהָא לָא אַזְהַר יַעֲקֹב עַל כֹּל מִילֵּי אַזְהַר Rav Adda bar Ahava strongly objects to this: From where is it derived that when Jacob is warning his sons he is warning them about cold and heat [tzinim paḥim], which are at the hand of Heaven? Perhaps he was warning them about a lion and thieves, which are harm at the hands of man, meaning that unlike heat and cold, these dangers are not calibrated by God. The Gemara refutes this: Is that to say that Jacob warned them about this harm at the hand of man, but about that harm at the hand of Heaven he did not warn them? Jacob warned them about all potentially harmful matters that might befall Benjamin, not merely one particular form of catastrophe.
וְצִינִּים פַּחִים בִּידֵי שָׁמַיִם נִינְהוּ וְהָתַנְיָא הַכֹּל בִּידֵי שָׁמַיִם חוּץ מִצִּינִּים פַּחִים שֶׁנֶּאֱמַר צִינִּים פַּחִים בְּדֶרֶךְ עִיקֵּשׁ שׁוֹמֵר נַפְשׁוֹ יִרְחַק מֵהֶם וְתוּ אַרְיָא וְגַנָּבֵי בִּידֵי אָדָם נִינְהוּ וְהָאָמַר רַב יוֹסֵף וְכֵן תָּנֵי רַבִּי חִיָּיא מִיּוֹם שֶׁחָרַב בֵּית הַמִּקְדָּשׁ אַף עַל פִּי שֶׁבָּטְלוּ סַנְהֶדְרִין אַרְבַּע מִיתוֹת לֹא בָּטְלוּ לֹא בָּטְלוּ הָא בָּטְלוּ לְהוּ אֶלָּא The Gemara asks: And are cold and heat at the hand of Heaven? Isn’t it taught in a baraita: All matters are at the hand of Heaven except for cold and heat, as it is stated: “Cold and heat are on the path of the crooked, he who guards his soul shall keep far from them” (Proverbs 22:5)? This indicates that cold and heat are forms of harm caused by man, from which one can protect himself. And furthermore, are a lion and thieves forms of harm at the hands of man? But didn’t Rav Yosef say, and similarly, didn’t Rabbi Ḥiyya teach a baraita: From the day that the Temple was destroyed, although the Sanhedrin was abolished the four death penalties were not abolished? The Gemara asks: Were they not abolished? It is clear that they were abolished, as today there is neither Sanhedrin nor capital punishment. Rather, it means that although there are no court-imposed executions,