The Coming Week’s Daf Yomi by Rabbi Adin Steinsaltz
This essay is based upon the insights and chidushim (original ideas) of Talmudic scholar Rabbi Adin Steinsaltz, as published in the Hebrew version of the Steinsaltz Edition of the Talmud.
The Mishnah on our daf discusses cases where someone claims to have married another person and the alleged spouse denies that the marriage had taken place. In cases where it is one person’s word against the other, the ruling is that the person who claims that the marriage took place cannot marry any of the other person’s immediate relatives (e.g. their alleged brother-in-law or sister-in-law), while the person who denies that the marriage took place can marry anyone – including immediate relatives of the alleged spouse.
The simple reason for this is because a Jewish marriage can only take place if there are appropriate witnesses who watch the exchange of money or contract that creates the marriage. Thus, even if both the husband and the wife agree that there was an exchange of a ring and that the woman accepted it with the full intention of getting married, according to Jewish law nothing of significance has taken place.
The reason for this is because halacha recognizes two distinct types of witnesses –
- an ordinary situation where the witnesses come to offer the information that they are privy to, and
- a unique situation, like marriage, where the witnesses are integral to the event.
Our Gemara does suggest that if there is a single witness and both parties agree that a marriage had taken place, that there is room to suggest that we must treat the kiddushin as marriage. The explanation for this possibility is that we do view business laws as one of the sources from which we derive the laws of marriage. In cases of business, a single witness is not ignored totally – as is the case in criminal law – in fact, while a single witness will not be relied upon to force someone to pay, his testimony will be enough to force the defendant to take an oath that he is telling the truth.
Our Gemara relates a story about King Yannai, who, during the second Temple period returned from a successful war and called to the Sages of the Mishnah to join him in a celebratory feast. During that banquet, someone named Elazar ben Po’irah stepped forward and told King Yannai that the Sages were not really his supporters, suggesting to him that he appear clothed as the High Priest (as one of the Hasmonean kings, Yannai came from priestly lineage) by adorning himself with the tzitz (the head-plate) when he came before them. When he appeared wearing the tzitz, one of the Sages called out to him that his position as king should suffice, and that he should not claim the High Priesthood as well. This claim was made based on an unsubstantiated rumor that Yannai’s mother had been a captive in the siege in Modi’in and that he was not truly a kohen.
The celebration ended with tension on both sides, and Elazar ben Po’irah continued his attack on the sages, goading King Yannai into having them killed for their attack on the king’s honor. (The Gemara reports that in response to the king’s question “with the sages gone, who will teach Torah to the masses?” Elazar ben Po’irah responded that the Torah was available to anyone who was interested in opening it and studying, an answer that may have satisfied the need to study the written Torah but not the oral Torah.) According to the Gemara, with the murder of the sages, Torah study came to a standstill until Shimon ben Shetah – whose sister, who was married to Yannai, helped him hide from the massacre – returned to activity and reestablished Torah study.
Josephus recounts a similar story in Antiquities (Book XIII: Chapter 10) where it is told about John Hyrcanus (although the Talmudic sages often refer to John Hyrcanus as Yannai) as the explanation of the break in the relationship between the king and the sages. According to Josephus, at the party the king suggested that anyone who had a critique or comment about the monarchy should share it. Someone named Elazar rose to say that there were rumors that he could not serve as High Priest because his mother had been taken captive by the Greek King Antiochus. When the rumor was checked and found to be untrue the sages punished the man who suggested it with lashes, but that was seen as a mild punishment and the king was encouraged to believe that the sages played a role in the incident. This led to a breakdown in the relationship between the king and the sages.
The Mishnah (66b) offers guidelines for determining the family and legal status of a child. If a child is born from a union of two people who can marry each other, the child’s status follows the father (e.g. if he is a kohen or a levi). If the relationship that produced the child is a forbidden relationship, sometimes the child is defined by the relationship itself (e.g. a kohen who marries a divorcee, where the child is a halal – he is not a kohen and cannot marry into a priestly family), sometimes it follows the status of the mother (e.g. a shifha kena’anit – a non-Jewish maidservant’s child would be a slave), and sometimes the child is a mamzer.
The case of a mamzer, according to the Mishnah occurs when a normal Jewish woman, who could have married any Jewish person, has sexual relations with one of the people forbidden by the Torah in parshat arayot (see Vayikra chapter 18) – i.e. incestuous relationships. A mamzer is not allowed to marry into the normative Jewish community.
Our Gemara asks for a source for the fact that incestuous relationships are the ones that create the status of mamzeirut, and launches into a lengthy search to prove this halacha based on pesukim (verses). Tosafot ask why the Gemara needs to find a source for the connection between arayot and mamzeirut, arguing that it seems to be obvious and self-explanatory that forbidden sexual relationships that do not even allow for marriage to take place – as opposed to relationships that are forbidden, but if they are done, halacha recognizes their existence (e.g. a kohen who marries a divorcee) – would produce offspring who are mamzerim.
Tosafot answer that this Gemara follows the opinion of Rabbi Yehoshua who believes that only some of the arayot will produce mamzerim. He distinguishes between those sexual relationships that are capital crimes, punished by the courts and those whose punishment is karet – a heavenly punishment, even though he agrees that Halacha will not recognize marriages in either of these kinds of cases.
We have already seen the position taken by Rabbi Akiva (see daf, or page, 64) who rules that any sexual relationship that is forbidden by the Torah – even a simple prohibition that will not carry with it the punishment of karet or mitat bet din – will preclude the possibility of marriage (i.e. not only is marriage forbidden, but if it is attempted it will have no meaning or significance – like a brother who tries to marry his sister – and there will be no need to end the marriage with a divorce) and children born from such a relationship would be mamzerim. Rabbi Akiva’s position is not accepted as the halacha, and we distinguish between the more serious cases of incest and adultery, where the punishment is karet or mitat bet din and a simple prohibition (e.g. a kohen who marries a divorcee), where the couple is recognized by the halacha as being married, and the children will not be mamzerim.
The source offered by Rav Papa for the rule that people who are not allowed to get married because of a lav (a simple prohibition) will still have their marriage recognized by the halacha is a passage that deals with inheritance laws. The pasuk says (Devarim 21:15) that if a man has two wives, one who is loved and one who is hated, and that each have sons, the man cannot offer a preferred inheritance to the son of the beloved wife, passing over the unloved wife’s son if he is the first-born. Our Gemara notes that the wives are referred to as “loved” and “hated.” Since the Torah cannot possibly assume that God loves one wife more than the other, it must mean that one wife is from a permitted relationship and one is from a forbidden relationship. Nevertheless, the Torah views them both as being married to the man.
The obvious problem with this source is that the simple meaning of the Torah is that the wives are ahuvah – “loved” – and senu’ah – “hated” by their husband, not by God. Rashi explains that we would not have thought that the husband could change the laws of inheritance based on his own preferences, so the only explanation is that this is a reference to a status based on some outside factor. The She’iltot suggests that it is the Torah’s use of ahuvah and senu’ah without reference to the husband that indicates that there is something objectively different about the wives having nothing to do with their husband’s likes or dislikes.
The previous Mishnah (66b) taught that a mamzer – a child born as the result of an incestuous or adulterous relationship – is not allowed to marry into the normative Jewish community, and that furthermore, any child born to a mamzer will also have that same status. This leads Rabbi Tarfon in the Mishnah on our daf to teach that there is a way for a mamzer to arrange that his children will not be mamzerim. Rabbi Tarfon suggests that a mamzer can purchase a shifchah kena’anit – a non-Jewish maidservant – and marry her. In such a case, the children will get her status and will be considered avadim kena’anim – non-Jewish slaves. At that point he can release them to freedom and they will become full-fledged members of the Jewish community without the stigma (and concomitant personal halakhic problems) of being a mamzer.
According to the conclusion of the Gemara, this arrangement works not only ex-post facto, but it is recommended as a valid plan for someone who finds that he is a mamzer. This leads rishonim to question how Rabbi Tarfon can permit a mamzer to marry a shifchah kena’anit – after all, despite his difficult marital situation, a mamzer is considered by Jewish law to be obligated in all the commandments. How can we permit him to marry a non-Jewish slave girl?
Tosafot Ri”d suggests that we must distinguish between the prohibition against marrying a non-Jewish woman, whose source ve-lo tit’haten bam (Devarim 7:3) is a general prohibition for all Jews, and the source forbidding marriage to a shifchah kena’anit – ve-lo yehiyeh kadesh be-venei Yisrael (Devarim 23:18) – which is understood to forbid sexual promiscuity among the Jewish people. This may not apply to someone who was, himself, the product of a promiscuous, forbidden relationship.
Some suggest that according to those opinions (e.g. the Rambam) who view marriage with a shifchah kena’anit as being forbidden only on a Rabbinic level, the sages permitted the mamzer to disregard that law in order to save his children from being mamzerim. That position is disputed, however, by Rashi, Tosafot and other rishonim.
The fourth chapter of Masechet Kiddushin, Perek Asarah Yuchsin, began on daf 69a with a Mishnah that discussed the levels and characteristics of the families that returned to Israel from Bavel at the beginning of the second Temple period. Specifically, the Mishnah focused on which types of families were permitted to marry other families, and which were limited regarding the families that they were allowed to marry.
Our daf tells a lengthy story that describes an incident where someone from Neharda’ah who was visiting Pumbedita acted in an inappropriate manner, insulting Rav Yehudah bar Yehezkel, who excommunicated him. Upon hearing that the visitor also habitually accused others of being from a family of slaves, Rav Yehuda bar Yechezkel ruled that that person should be given the status of a slave. Following this incident, the man from Neharda invited Rav Yehuda bar Yechezkel to a din Torah – a court hearing – in the court of Rav Nachman in Neharda.
After some introductory conversation, Rav Nachman asked Rav Yehuda bar Yechezkel to explain why he had declared this man to be an eved (slave). Rav Yehuda bar Yechezkel explained that it was a teaching of Shmuel that kol haposel, be-mumo posel, that someone who makes accusations about others, will invariably project his own problem on others. Rav Nachman objected that Shmuel only said that as a matter of psychology and suspicion; he did not mean that the person should be declared as such.
At that point, the person himself announced that his ancestry was impeccable – he was from the family of the Hasmonean kings! At that point, Rav Yehuda bar Yechezkel declared that he was certainly a slave, since Shmuel’s tradition was that all who claimed to be descendants of the Hasmonean dynasty were slaves.
King Herod, who married Miriam the Hasmonean, was himself from a family of slaves. He murdered all of the other Hasmoneans (and eventually Miriam, as well) so that he would have no challengers to the throne. While Herod’s grandson, King Agrippas also married a woman from the Hasmonean family, his children either intermarried, or married within the family, leading to the tradition that all descendants of the Hasmoneans were slaves.
How can someone tell if their perspective husband or wife is from a Jewish family?
That is the focus of today’s daf. Somewhat surprisingly, the sages considered the families in Bavel to have the most reliable ancestry, and everyone was accepted to be from a Jewish family unless proven otherwise, while in Israel it depended on what was known about each specific family, and in other countries families were expected to show proof that they were Jewish.
Based on this, the Gemara tells stories about rabbinic figures who refused to marry into the families of other sages, apparently because they did not consider their family ancestry reliable enough. The Gemara relates that Ze’iri, who came to study in Israel from Bavel, would try to avoid Rabbi Yochanan – who headed the academy in Israel – because he knew that Rabbi Yochanan wanted him to marry his daughter. After he showed him great honor (nearing a large puddle, Ze’iri put Rabbi Yochanan on his shoulders and carried him across), Rabbi Yochanan asked him why he honored the Torah of Israel but not the daughters of Israel, claiming that there were families of questionable background in both Bavel and Israel and that all families should be considered equally reliable or suspect.
While the Gemara responds that Rabbi Yochanan had apparently forgotten the teaching of Rabbi Elazar that Ezra the Scribe had “sifted” the families in Bavel until they were “fine flour” (i.e. that Bavel’s Jewish community really was more “pure” as far as family background was concerned), the conclusion of the Gemara is that the most reliable indicator of Jewish ancestry is the behavior of a family. According to the Gemara, a family that is known to be a quiet family that does not get involved in quarrels is likely a Jewish family. Rashi explains that a problematic family probably honed their talents in verbal battles defending themselves against accusations against their backgrounds.
In addition to his monumental translation and commentary on the Talmud, Rabbi Steinsaltz has authored dozens of books and hundreds of articles on a variety of topics, both Jewish and secular. For more information about Rabbi Steinsaltz’s groundbreaking work in Jewish education, visit www.steinsaltz.org or contact the Aleph Society at 212-840-1166.
The words of this author reflect his/her own opinions and do not necessarily represent the official position of the Orthodox Union.