One-Page Learn · The Halachos at a glance
הלכות איסורי ביאה
Issurei Biah 15
Sefer Kedushah · Forbidden Intercourse · what establishes blemished lineage, the three grades of mamzer status, whose testimony a court accepts about a child's origin, and the laws of the foundling
10
Generations, meaning without end
7
Signs of care that clear a foundling
1
Objection silences the midwife
Part 1What Establishes the Status, and What Does Not
- From the ariot, and niddah is excepted. A mamzer is the offspring of the incestuous and adulterous unions listed at the opening of the treatise. The child of a niddah is blemished but is not a mamzer. Force, consent, knowledge and ignorance change only the liability of the adults, never the child's status, and the prohibition is everlasting, as Scripture says of the tenth generation (15:1)
- The Rambam confines the lashes to marriage. A mamzer and a Jewish woman who consecrate and then come together are liable to lashes; consecration without relations is not punished, and relations without consecration carry no lashes on this count, since the verse speaks of entering the congregation. The Ra'avad, the Ramban and Rav Moshe HaCohen hold that relations alone establish liability (15:2)
- Status follows the mother. The child of a gentile or a servant with a Jewish woman is acceptable, married or unmarried, forced or willing, since such seed is disregarded. A child born of a servant, a gentile, a maidservant or a gentile woman takes the mother's status and the father is not considered. A man who remarries his divorcee after she married another has transgressed, yet the offspring are acceptable, since she is not an ervah (15:2-4, 15:6)
- The blemish carries to a convert's children. A mamzer may marry a female convert and a female mamzer a male convert, and the offspring of both are mamzerim, because the status follows the blemished parent and the congregation of converts is not what the verse calls God's congregation. A convert's son born of a convert may marry a female mamzer until the family's origin is forgotten (15:7-9)
RememberThe Sages permitted a mamzer to marry a maidservant so that he could purify the lineage of his descendants: the children take her status, he frees them, and they stand as other freed servants, able to marry within Israel (15:4)
Part 2Three Grades of Doubt, and Who May Marry Whom
- Definite, doubtful, and by Rabbinic decree. Definite is the child of a union known to be adulterous or incestuous. Doubtful arises where a consecration or a divorce may or may not have taken effect. By decree: a woman told her husband had died remarried, he proved to be alive and then came to her, and the Sages gave her void second marriage standing for this one consequence (15:10)
- Scripture permits the doubtful case, the Sages forbade him. The verse bars "a mamzer," meaning one whose status is certain, so by Scriptural law a man of doubtful status could marry into Israel. The Sages raised the standard of lineage and forbade a doubtful mamzer, a shituki and an asufi from marrying native-born Jewesses (15:21)
- Certainty may marry certainty; doubt may marry neither. A definite mamzer may marry a definite mamzeret, and a mamzer by Rabbinic decree may marry a mamzeret by Rabbinic decree. A man of doubtful status is forbidden even a female mamzer of doubtful status, since perhaps one of them is not a mamzer while the other certainly is (15:21-22)
- And they may not marry each other. Shitukim, asufim and those of indefinite status are forbidden to one another; a marriage already made is not maintained and they are separated with a formal bill of divorce. Their one remaining option is to marry converts or freed servants, and the offspring carry the same blemish (15:23-24)
RememberA foundling in a gentile city is treated as a doubtful gentile, yet the doubt is split by subject: where most are gentile he may be fed unslaughtered meat, where most are Jewish his lost property is returned, and where the populations are even it is a mitzvah to sustain his life and to dig him out of a collapse on Shabbat (15:25-26)
Part 3Whose Word the Court Will Take
- Ask the mother, and believe her when she clears him. An unmarried woman who becomes pregnant is questioned; if she says the father was of acceptable lineage her word is accepted and the child is acceptable, even where most of that city is of unacceptable lineage, because the child's standing depends entirely on the ruling (Maggid Mishneh) (15:11)
- Her word does not disqualify. If she was never questioned, or cannot answer, the child is a doubtful mamzer, a shituki, one who is silenced. If she names a mamzer or a netin as the father the child is still only doubtful, even when that man confirms her account, since just as she was with him she could have been with others (15:12, 15:14)
- The father's word disqualifies, for one generation. A father is believed when he says of a presumed son that he is a mamzer, or the son of a divorcee, or even of a fetus that it is not his, from the verse that he shall recognize the firstborn. Once that son has children the father is not believed, and a man who declares himself a mamzer disqualifies himself and his son but not his grandchildren (15:15-16)
- Rumor is not evidence about the children. Though a rumor circulates that a married woman was unfaithful and everyone is gossiping, her children are not suspected of being mamzerim, because the one most frequently with her is her husband, and her daughter may be married even as a preferred option; only her own status is suspected. A midwife is believed about the lineage of a child never established, unless one person objects that she testifies falsely, and then the child is acceptable but not a priest or Levite (15:20, 15:32)
RememberThe Rambam reasons in his own voice that doubt alone does not create an ervah: were a man of unknown father forbidden every possible relative, the Torah's warning against desecrating a daughter would guard against nothing, and every orphan who did not know his father could never marry (15:29)
Part 4The Child Who Was Gathered In
- The asufi and the categorization. A child found in the marketplace is called an asufi, one who was gathered in, and is treated as a doubtful mamzer, because his lineage is unknown. The name is a legal status, not a description of where he now lives (15:13)
- Care is read as testimony. Found circumcised, bundled, salted, with eye-paint applied, with an amulet at his neck, laid under a tree too dense for a beast and close to the city, or in a synagogue beside the public domain: the laws of an asufi do not apply and his lineage is assumed acceptable, since the parents were acting to keep him alive (15:31)
- Abandonment without those signs. Left in the middle of the road, far from a city even under a tree, or hanging where a wild beast can reach him, he is an asufi (15:31)
- Parents reclaiming him, and the famine exception. A child abandoned on the road may be reclaimed on a parent's word, but once he has been taken in from the marketplace and categorized as an asufi the parents' claim is not accepted. In years of famine it is accepted, because the famine explains both the abandonment and their silence (15:30)
RememberA woman who sought to hide a transgression would not salt an infant, paint his eyes and tie an amulet at his neck; the acts of protection are themselves the evidence that the child's origin was legitimate (15:31)