Introduction to the Study of Talmud
Kiddushin 07-Daf 72b
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Last week, we discussed the machloket (disagreement) in
the Gemara about the status of mamzerim in the time of
Mashiach. Today, we move back to the details of the laws governing a
mamzer nowadays. Just to review, a mamzer is a child born
of certain types of unions that are prohibited by halakha,
including adultery and incest. The Torah (Devarim 23:3) prohibits a
mamzer from entering the Jewish community, which means that they are
not allowed to marry most Jewish people.
We begin three lines from the end of 72b, at the end of the line:
The rabbis taught: "'A convert may marry a
mamzeret;' the words of Rabbi Yossi.
Rabbi Yehuda says: 'A convert may not marry a
Whether a convert, a freed slave or a chalal - they
are permitted to a kohenet."
רבנן): גר נושא ממזרת; דברי ר' יוסי.
ר' יהודה אומר: גר לא ישא ממזרת.
אחד גר, אחד עבד משוחרר, וחלל -
The gemara presents a beraita - remember, Tanu
rabbanan, "the rabbis taught," always introduces a beraita. Rabbi
Yossi is quoted as teaching that a convert may marry a mamzeret (a
female mamzer). Rabbi Yehuda argues that just as a mamzer (or
in this case, a mamzeret) may not marry other Jews, he or she may not
marry a convert either. The beraita concludes by teaching an additional
law, that a convert or freed Canaanite slave - who is also considered a convert
- and a chalal (born of the union between a kohen and a women
he may not marry, such as a divorcee) may all marry a kohenet, meaning
the daughter of a kohen. Although a male kohen may not marry a
convert or a chalala (female chalal), the reverse is not
the case, and the female "kohen" may marry a convert or a
The gemara now moves on to analyze the statements quoted in the
beraita. We are up to the last line of 72b.
What is the reason of Rabbi Yossi?
Five "congregations" are written: One for kohanim,
and one for Levites, and one for Israelites,
and one to permit a mamzer to a shetuki,
and one to permit a shetuki to an Israelite;
the congregation of converts is not called a congregation.
And Rabbi Yehuda? Kohanim and Levites are derived
from one "congregation,"
[so] he has a "congregation" left
over for converts.
טעמא) דרבי יוסי?
חמשה קהלי כתיבי: חד לכהנים, וחד
ללוים, וחד לישראלים,
וחד למישרי ממזר בשתוקי, וחד למישרי
קהל גרים לא איקרי קהל.
ורבי יהודה? כהנים ולוים מחד קהל
אייתר ליה לקהל גרים.
The gemara begins its analysis of the beraita by
questioning the reasoning behind Rabbi Yossi's position. The gemara
explains that, in the context of those who are genealogically unfit to marry
into the broad Jewish community, the Torah (Devarim 23:3-9) employs the
term "congregation" (for example, a mamzer may not "enter the
congregation of God") five times. Since the Torah could have simply listed all
the different categories (mamzerim and converts of Amonite, Moabite or
Egyptian descent) and stated once that they may not enter the congregation, the
gemara assumes that the word "congregation" must have been used extra
times in order to teach further details about these prohibitions. This is quite
characteristic of Talmudic methodology. Since there are no unnecessary words in
the Torah, words that appear extra must be there in order to teach some detail
that we would not have known otherwise.
What do we learn from the multiple uses of the word congregation?
If it had been used only once, one might have thought that the
exclusive term "congregation of God" refers to the kohanim; the second
usage teaches that even Levites are included in these prohibitions. The third
usage of the term includes regular Jews, "Israelites," in the prohibition.
The fourth and fifth usages of the term "congregation" in this general
context are used to teach us the laws regarding a shetuki. To review, a
shetuki is someone who knows the identity of his mother but not his
father. Since we cannot be sure who his father is, we cannot be certain whether
or not he is a mamzer, as the possibility exists that his father
was a close relative of his mother or was himself a mamzer,
in which case the child will be a mamzer as well. The Torah,
through the extra usages of the term "congregation," teaches that a
shetuki is permitted to marry both a mamzer and a regular Jew.
The basis of this policy will be explored shortly. Either way, there is no extra
usage of the term "congregation" to teach that a convert is included in the
prohibition against marrying a mamzer; thus, we can conclude that a
"congregation of converts is not called a congregation," in that converts are
not part of the "congregation" that a mamzer is prevented from
joining. Thus, there is no reason a convert cannot marry a
Having explained the basis of Rabbi Yossi's view, the gemara now
moves on to question the view of Rabbi Yehuda; what is the basis of his
opinion? He considers kohanim and Levites to constitute a single
congregation, as they are from the same tribe. Therefore, both groups are
included in the prohibitions based on one usage of the term "congregation," and
there is an extra usage left over - to include converts in these prohibitions.
The gemara offers alternate explanations of Rabbi Yehuda's opinion.
We are up to the fifth line of 73a.
And if you want, say: these, too, are two
a mamzer to a shetuki and a
shetuki to an Israelite are derived from one "congregation:"
"A mamzer may not enter the congregation of God" -
a definite mamzer may not enter, [but] a questionable mamzer may enter,
he may not enter a definite congregation, [but] he may enter a questionable congregation.
And if you want, say: these, too, are two "congregations,"
and the reason for Rabbi Yehuda is from here:
"The congregation: a single statute shall be for you and for
the convert who dwells [among you]."
And for Rabbi Yossi? "One statute" interrupts the matter.
ואיבעית אימא: ה"נ (הני
נמי) תרי קהלי נינהו;
ממזר בשתוקי ושתוקי בישראל מחד קהל
לא יבא ממזר בקהל ה' -
ממזר ודאי הוא דלא יבא, הא ממזר ספק
בקהל ודאי הוא דלא יבא, הא בקהל ספק
ואיבעית אימא: הני נמי תרי קהלי נינהו;
וטעמיה דרבי יהודה מהכא:
הקהל חוקה אחת לכם ולגר הגר.
ולרבי יוסי? חוקה אחת הפסיק
The gemara's first explanation of Rabbi Yehuda's opinion focused on
the idea that kohanim and Levites are considered one congregation.
Alternatively, the gemara now says, Rabbi Yehuda admits that they are
two separate congregations, but holds that the last two laws derived by Rabbi
Yossi may be derived from one usage of the term congregation; thus, an extra
usage of the term is left to include converts in the prohibitions against
marrying those geneaologically unfit to enter the general Jewish community. The
last two laws derived by Rabbi Yossi both relate to the shetuki: that a
mamzer may marry a shetuki and that, at the same time, a
shetuki may also marry a regular Jew. The gemara explains how
both of these laws can be derived from a single usage of the term congregation -
and at the same time also explains the reason for these laws, which at first
glance seem contradictory: after all, if the shetuki is considered a
regular Jew he should not be allowed to marry a mamzer, while if he is
a mamzer he would be prohibited from marrying regular Jews. How is it
that he can marry both a regular Jew and a mamzer?
The gemara explains that the source of these halakhot is the verse
that introduces the prohibition of mamzer: "A mamzer may not
enter the congregation of God" (Devarim 23:3). The gemara
understands that when the pasuk mentions mamzer, it refers
specifically to someone who is definitely a mamzer; a safek
mamzer, someone who may or may not be a mamzer, such as a
shetuki, is not included in the prohibition. Similarly, when the
pasuk mentions "congregation," it refers to people who certainly have
the status of "congregation," meaning people who are definitely of pure lineage;
someone who is of questionable lineage, such as a shetuki, is not
included in this term, and it is therefore permissible for a mamzer to
marry a shetuki. Both of these halakhot are derived from a single usage
of the term congregation, that mentioned in the verse quoted above. Thus, there
is an additional usage of the term left over for converts.
It is important to note that although these halakhot refer to the
specific case of a shetuki, they would apply equally to any case of a
safek mamzer, and therefore their potential halakhic ramifications are
immense. This issue will be explored further, on the bottom of daf 73a.
The gemara gives a final possible source for Rabbi Yehuda's opinion:
perhaps Rabbi Yehuda admits that the two halakhot concerning the
shetuki must be derived from two separate usages of the term
congregation; thus, we will concede that there is no usage of the term
"congregation" left over to include converts in the prohibitions of marrying
mamzerim and others of similar status. Nevertheless, there is another
reason to equate converts with the rest of the Jewish community in this regard.
The pasuk states: "The congregation: a single statute shall be for you
and for the convert that dwells [among you]" (Bamidbar 15:15). The word
congregation is extraneous in this pasuk, and the gemara
infers that it appears in order to indicate that both "you" and "converts"
are included in the term "congregation." Therefore, when the Torah teaches that
a mamzer may not enter the congregation, it refers not just to natural
born Israelites but to converts as well.
The aforementioned discussion regarding shetuki - particularly the
suggestion that only a definite mamzer is prohibited from marrying into
the community, and at the same time that only a someone who is definitely of
pure lineage is prohibited from marrying a mamzer - is a focal point of
a major dispute among the commentators. We have a general principle regarding
cases of safek (doubt), in halakha: with regard to laws of Biblical
status, we are stringent - this is known as safek de-oraita le-chumra.
On the other hand, if the question relates to a Rabbinic law, we are lenient -
safek de-rabbanan le-kula. The commentators debate whether the
requirement to be stringent in cases of a doubt regarding a Biblical law is
itself a principle of Biblical status, or if Torah law allows one to be
lenient even in such cases, and the Rabbis required one to be stringent. Rambam
(Maimonides - Hilkhot Kilayim 10:27) rules that on a Torah level, one
has the right to be lenient even in a safek de-oraita, a doubt
regarding a Torah law. Rashba (Rav Shelomo ben Aderet, 13th century Spanish
scholar), in his commentary on our gemara, disagrees and rules that the
Torah itself requires one to be stringent.
Review our gemara -
which view do you think works best in our sugya? How would
each view explain our gemara?
The debate under discussion hinges upon a close reading of our
gemara. Rambam may assume that just as the gemara posits
that when the Torah says mamzer it means someone who is definitely a
mamzer, the same is true in all cases - one has a presumed right
to be lenient in situations of doubt. The Rashba, however, responds
convincingly that the gemara does not seem to be making a sweeping,
general statement; after all, it is only through the extra usage of the word
"congregation" that we are able, in our gemara, to assert that the
prohibition is limited to a definite mamzer. Apparently,
without a special source, we would have assumed that the prohibition applies
even to one who is only a questionable mamzer! Some commentators
defend the Rambam from this attack by claiming that even according to his
opinion the special source is necessary: without it, one would have the right to
take the risk of marrying the questionable mamzer; if he in fact is a
mamzer, one would be in violation of the prohibition. The special
source of our gemara allows us to be certain that there is no
violation for one who marries a questionable mamzer.
We have explored the machloket about whether or not a convert can
marry a mamzer, including the sources for each opinion: the
gemara suggested one source for Rabbi Yossi's opinion and three
possible sources for Rabbi Yehuda's opinion. Along the way, we have been
introduced to the concepts of safek de-oraita le-chumra and safek
de-rabbanan le-kula, which have wide application in halakha. The dispute
between the Rambam and Rashba is also significant in regard to whether there is
ever room to bend the rule of safke de-oraita le-chumra. We will
continue the Gemara's treatment of this general topic next week.