Wednesday, February 24, 2010

Raavan's Shita

I now see that my answer for the Raavan has some holes, which include:
If the mamzerus comes from the isur of goy, why isn't there mamzeirus from a pnuyah?
Why does the issue of the act making her asurah libaalah play any role here? In other words, why is vlad pnuyah and eishes ish be'ones not a mamzer?

Therefore, I will refine the last post to say a slightly different pshat in the Raavan. The main points are:
1) His girsa is goy v'eved haba al bas yisrael havlad kasher, but he holds that that doesn't apply to 100% of the situations, only 75%; for the remaining 25% he holds it is vlad mamzer.
2) The mamzeirus does not come from the isur of cohabitation with a goy, it comes from the isur of eishes ish! (Bnei Noach are also muzharim on eishes ish). And more specifically, the mamzeirus comes from the woman violating this isur. A pnuyah does not violate the isur of eishes ish because she is not an eishes ish, and be'ones a married woman does not violate the isur.
3) When we say there is no Mamzeirus for a goy, that is for a complete goy. But the Raavan will hold that when the mother is Jewish, the child has enough yichus to have a psul of mamzeirus (somewhat connected to the last paragraph in the previous post).

So: when there is a rape, an eishes ish did not commit any isur, so a child from a goy who raped her will not be a mamzer. Only if she willfully cohabited with the goy will the child be a mamzer. Also, because by definition a pnuyah is not an eishes ish, her child cannot be a mamzer, even beratzon.

Thursday, February 18, 2010

69a Akum Sheba al bas Yisrael, Part 4 - Raavan's shita

Rav Gedalya Felder in Nachalas Tzvi I p. 115 brings a strange shita: the Raavan on Yevamos 45 says: "Hilchesa, a goy and eved haba al bas yisrael, bein pnuyah bein eishes ish havlad kasher. Vehani mili be'ones, aval beratzon lo b'eishes ish, aval pnuyah afilu beratzon." Then he discusses Rav Mari bar Rachel. It is on p. 242b in the standard Raavan. This Raavan is very difficult because no Gemara makes such a distinction between goy haba al pnuyah and goy haba al eishes ish.

I think we can understand this shita. First of all, there is a very important machlokes rishonim about the proper girsa in the gemara about "goy v'eved haba al bas yisrael" if the girsa is "havlad mamzer" or "havlad kasher." (Most rishonim who say havlad kasher say there is a psul in the child, but the term kasher is used to mean 'not a mamzer.') The second thing to keep in mind is the halacha of Shvuya. (See Kesuvos 3b and 26b). A married woman who was captive can return to her husband, because even if she was raped, a rape does not disqualify her from her husband, but the wife of a kohen may not return to her husband because rape makes her a zona and thus asura l'kohen. For pnuyos it depends if they may still eat trumah (if they are kohanim) or if they can marry a kohen (no). But a married woman who committed adultery cannot return to her husband (nor can she return to the adulterer; there is a halacha kesheim she'asurah lebaal, kach asurah le'boel).

It seems the Raavan had the girsa "goy v'eved haba al bas yisrael havlad mamazer. He also holds there is mamzeirus from a non-Jewish father, but mamzeirus (at least in this case) happens where the woman becomes asurah libaalah (note: there are cases where there is mamzeirus but no isur to the husband, like rape). Hence it's only mamzer to an eishes ish biratzon.

Why might Raavan hold mamzeirus is possible with a non-Jewish man and a Jewish woman? There is a chakira - what causes mamzeirus? Is it the forbidden act, or incompatible yichus of a married woman with a strange man? When a non-Jewish man is involved it is difficult to say there is incompatible yichus, but we can discuss the isur of the act. Tosfos Yevamos 16b s.v. kasavar holds it's not asur midioraissa, but I've discussed that to many opinions there is an isur dioraissa. If Raavan holds that the forbidden act causes mamzeirus, and like Rambam that cohabitation with a non-Jew is an isur dioraissa or even chiyuvei kareis, there might be mamzeirus. (There is a big Machlokes Rabbeinu Tam & Rivam in Tos, Kesuvos 3b & Sanhedrin 74b about bi'as goy, very huge topic, I can't discuss it now).

This chakira I heard from my rebbi shlit"a when he discussed artificial insemination; he feels the two sides to the chakira correspond to the two explanations the Rambam gives in Moreh Nevuchim (III:49) for mamzeirus.

Let's make another chakira: does the non-Jewish father have no yichus in regard to his Jewish child, or do we say the mother's yichus eclipses this non-Jewish father's small yichus?) From Bechoros 47, Levi Pasul mikrei, he has some pgam from the father, so there must be at least a little yichus from the father. But we can make another chakira: does the pgam come from the little Yichus from his non-Jewish father, or is it that because he has no yichus at all of mishpachas av, and that itself is a pgam? In other words, if goy haba al bas yisrael havlad pagum - commonly we say the pgam is that the daughter is asurah to a kohen. But is there any psul to the son? Recall the machlokes Ran/Rambam about daughter of ger & yisraelis. Ran says without mishpachas av is there nothing. Or we can say there's some type of nebulous category (which one amora calls khal geirim), which we call "pgam."

Wednesday, February 17, 2010

69a Akum Sheba al bas Yisrael, Part 3 - Rashi's shita continued

I would be remiss if I did not mention the probably most famous explanation in this Rashi, offered by R' Naftoli Trop. He says there are two parts to Yisrael - shem yisrael and kedushas yisrael. Rashi holds this child has shem yisrael from birth, but lacks kedushas yisrael until geirus.

Rabi Akiva Eiger seems to pasken like Rashi, whom he references several times in Kiddushin and Yevamos; for example, see Gilyon Hashas Kiddushin 68b, and in his comments to Yoreh De'ah 266:12, that toRashi's opinion, we would not to bris milah of a goy sheba al bas yisrael on Shabbos, instead we'd push it off to Sunday. This implies he held to Rashi the kid is a full goy, not like Rav Ahron explained. What I don't understand is that in a Teshuva (#91) he says the opinion that the vlad is pagum (i.e., like Shulchan Aruch paskens), it may only be a problem dirabanan, but midioraissa she may marry a kohen. He makes no mention of his strict shita. After looking in Chiddushei R' Akiva Eiger to Yevamos 45 we see he held like Yam Shel Shlomo that goy haba al bas yisrael is only pagum midirabanan. So Rabi Akiva Eiger himself does not pasken like Rashi! He just feels that when Rashi says havlad kasher after geirus, means before geirus the child is a complete non-Jew.

Pischei Teshuva EH 4:1 has a decently sized discussion on this matter using completely different sources (except the Shaar Hamelech), and says this opinion is not accepted l'Halacha. Also see Otzar Haposkim 4:10.

Or Sameiach (IB 15:3) views the matter from a slightly different perspective. He says there are shitos which differentiate between thegoy or eved being boel a pnuyah, or an eishes ish Shulchan Aruch paskens they are the same). If the din applies to a pnuyah only, that the child is kosher, we see the mother's status is involved: this unmarried mother does not produce a mamzer (an unmarried woman could produce a mamzer through a case of incest, but that's not our case). But for a married woman the child would be a mamzer because the woman's status of married means this relationship was adulterous and the child is thus a mamzer. However, to the opinion (like which we pasken) that it doesn't matter if the mother is unmarried or married,the child is not a mamzer, we see the paternity is important. Non-Jews have no mamzeirus. Since this child is not a mamzer, the father's non-Jewish status must be passed down to the child in some way.

Wednesday, February 10, 2010

69a Akum Sheba al bas Yisrael, Part 2 - Rashi's shita

See Tosfos 75b s.v. v'Rabi Yishmael. (I already mentioned this shita in my very first post.) Rashi 68b s.v. leima - havlad mamzer and we don't say he's a goy. Implication is, if we say havlad kasher (which is what we do say) the vlad is a goy and if he converts he's kosher. Some (Maharsha 75b s.v. v'Rabi Yishmael) ask that Rashi contradicts
himself because on 76a s.v. u'parchinan he says goy v'eved haba al bas yisrael havlad kasher, ela shifcha vladah eved, which implies the child with a Jewish mother is Jewish, and does not need geirus. Rashi also seems to contradict himself on 70 s.v. kol that Herod probably did not marry Jewish wives. That implies had he married Jewish wives, his children (he was an eved) would be full Jews. But Rashi holds goy v'eved haba al bas yisrael havlad kosher but needs geirus! But the answer is a non-Jewish father is worse than an eved father. See Shaar Hamelech, Issurei Biah 15:3, and Rav Moshe Soloveichik zt"l in Chiddushei Hagram Halevi Issurei Biah 15:3. A non-Jewish father
passes on his psul of non-Jew to the child. But an eved has no yichus (pedigree) so he has no psul to pass on. So When Rashi says goy v'eved haba al bas yisrael havald kasher but needs geirus, he only means goy haba. But eved sheba is completely Jewish and needs no geirus. This shita is also brought in Piskei Tosfos, Asara Yuchsin, 142.

Rav Ahron Soloveichik zt"l explained that Rashi doesn't mean - in the case of goy haba - the child is a goy. The child is Jewish, but he has a psul kahal (he's not allowed to enter the community), but that psul is removed with tevila. It is similar to a ger who had kabalas mitzvos, milah and tevila but didn't bring his korban (in the time of the mikdash) that he is Jewish but may not marry a Jewish woman until he brings his korban, according to Shita Mekubetzes, Kerisus 9a. (See Perach Mateh Aharon, Milah 1:7. The application to this Rashi is not in that piece, but he said it in shiur on Bava Basra.)

An almost identical explanation like Rav Ahron was offered by Rav Itzele Ponovicher in Zecher Yitzchak, siman 4. His thesis is that all aspects of gerus - milah, tevila and korban - are to purify the ger from his previous state of non-Jewishness. He then says with this we can explain [Rashi's shita] that the child is Jewish but needs tevila because he has the psul of goy, that the psul is the psul of both of the parents, but the yichus is after the mother... He is a full Yisrael but needs tevila to marry a bas yisrael....

Thursday, February 4, 2010

Updated Guide to Chodosh

This is the third edition of the Chodosh guide. It is usually the last update of the season.


Wednesday, February 3, 2010

Mamzer & Mishpachas Av

The Mishna, Kiddushin 66b, states: "Whenever kiddushin would not take effect between she and he, but she would have kiddushin with another man, the offspring is a mamzer. What case is this? This is one who came upon one of the arayos in the Torah." That the offspring is a mamzer requires further elaboration: does the fatehr's lineage still exist (and if the father was a kohen, the offspring will be a kohen mamzer) or does the mamzerus uproot the mishpachas av?

Koveitz He'aros 44:2 says: "In Shu"t HaRashba...without the Rashba we could have said another thing regarding that which a mamzer does not have kehuna - the psul removes him from from the kedushas kahal, it certainly removes him from the status of kohen....and we see this in Gittin 59 and Tosefta Yevamos 8:1 a female Levi who was held captive.... It is simple from this that mamzeirus removes the mishpachas av.

This is also implied in Mishna Brurah 135:30: "Even if they know their father is a Levi, we must suspect that their father married a mamzeres or nesina and disqualified his children from the kedushas Leviyah, and as a mamzer he reads from the Torah (i.e., gets an aliya) like any other Yisrael.

Chidushei Hagram Halevi (p. 54) s.v. Yevamos 87 says: the din that the offspring follows the psul of either of them is only a status of psul. The offspring of a regular Yisrael and an Egyptian convert is in the khal Yosrael and not in khal geirim, because his family is his father's mishpachas av. Only, he also has a status of psul of Mitzri...

This is also the shita of Rav Chaim, Isurei Biah 15:9.

See Tosfos Kiddushin 68b s.v. vladah kimosah: He explains the question of the gemara that how do we know the vlad of a non-Jewish woman follows her - "what is the source that the offspring is like her, that it will not be called his offspring for anything, not even his son but [a son who is] a mamzer...." According to Koveitz He'aros, if mamzeirus removes mishpachas av, what is Tosfos saying? We see Tosfos holds like Rav Moshe and Rav Chaim that the offspring is a mamzer and has mishpachas av. But the son of a non-Jewish woman will not be considered the Jewish father's son at all.

--Heard from Rav Chaim Ilson