Introduction to the Study of Talmud
by Rav Michael Siev

Kiddushin 07-Daf 72b

A scan of the classic printed daf can be found at: http://dafyomi.org/index.php?masechta=kiddushin&daf=72b&go=Go Key words and phrases in Hebrew and Aramaic are marked in blue, and their translation/explanation can be seen by placing the cursor over them.  From time to time, the shiur will include instructions to stop reading and do some task on your own. This will be marked by a red pause box  It is highly recommended that you follow those instructions. I am still working on a way to have your computer melt if you don't, but as of yet, the technical details are still beyond me. Within the quoted texts, my explanations and additions are also noted in red.

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 mamzeret.' Whether a convert, a freed slave or a chalal - they are permitted to a kohenet."

ת"ר (תנו רבנן): גר נושא ממזרת; דברי ר' יוסי. ר' יהודה אומר: גר לא ישא ממזרת. אחד גר, אחד עבד משוחרר, וחלל - מותרים בכהנת.

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 chalal.

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.

מ"ט (מאי טעמא) דרבי יוסי? חמשה קהלי כתיבי: חד לכהנים, וחד ללוים, וחד לישראלים, וחד למישרי ממזר בשתוקי, וחד למישרי שתוקי בישראל; קהל גרים לא איקרי קהל. ורבי יהודה? כהנים ולוים מחד קהל נפקי, 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 mamzer. 

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 "congregations;" 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 נפקא: לא יבא ממזר בקהל ה' - ממזר ודאי הוא דלא יבא, הא ממזר ספק יבא, בקהל ודאי הוא דלא יבא, הא בקהל ספק יבא. ואיבעית אימא: הני נמי תרי קהלי נינהו; וטעמיה דרבי יהודה מהכא:  הקהל חוקה אחת לכם ולגר הגר. ולרבי יוסי? חוקה אחת הפסיק הענין.

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.