015 - הִלְכוֹת אִסּוּרֵי בִּיאָה פֵּרֶק טו

Laws of Issurei Bi'ah, Chapter 15

1. Who is the "מַמְזֵר" (mamzer, Devarim 23:3) mentioned in the Torah? One who comes from any of the arayos, except a niddah—for a son from her is blemished (pagum) but is not a mamzer. But one who has relations with any of the other arayos, whether under duress or willingly, whether deliberately or unintentionally—the child is a mamzer. Males and females alike are forbidden forever, as it says, "גַּם דּוֹר עֲשִׂירִי, לֹא-יָבֹא" ("even the tenth generation shall not enter," ibid.), that is, forever.

2. Whether a mamzer married a Jewish woman or a Jew married a mamzeres, once they have relations after the kiddushin they receive lashes. If he betrothed her but did not have relations, he does not receive lashes. If he had relations but did not betroth her, they do not receive lashes on account of mamzeres—for among all those liable for negative commandments there is none who receives lashes for relations without kiddushin except a kohen gadol with a widow, as will be explained. One who takes back his divorced wife after she had married another—the child is fit, since she is not an ervah.

3. A non-Jew or a slave who has relations with a Jewish woman—the child is fit, whether she is unmarried or married, whether under duress or willingly. A non-Jew or a slave who has relations with a mamzeres—the child is a mamzer. A mamzer who has relations with a non-Jewish woman—the child is a non-Jew; if he converts, he is fit like other converts. If a mamzer has relations with a shifchah, the child is a slave; if he freed him, the child is fit like other freed slaves and is permitted to a Jewish woman.

4. This is the general rule: a child born of a slave, a non-Jew, a shifchah or a non-Jewish woman follows his mother, and no regard is paid to the father. On this basis they permitted a mamzer to marry a shifchah in order to purify his children—for he frees them, and they turn out to be free men. They did not decree against a shifchah for a mamzer, for the sake of the children's welfare.

5. One who is half slave and half free who has relations with a married woman—that son has no remedy, because the aspect of mamzerus and the aspect of servitude are mixed in him. Therefore he is forbidden to a shifchah, and his children will be like him forever.

6. A non-Jew who has relations with a shifchah who has immersed—the child is a slave; and a slave who has immersed who has relations with a non-Jewish woman—the child is a non-Jew: follow the mother. But a non-Jew who has relations with a non-Jewish maidservant, or a non-Jewish slave who has relations with a free non-Jewish woman—follow the male.

7. A mamzer is permitted to marry a convert woman, and likewise a mamzeres is permitted to a convert; and the children of both are mamzerim, for the child follows the blemished parent, as it says, "בִּקְהַל ה'" ("into the congregation of Hashem," Devarim 23:3), and the congregation of converts is not called the congregation of Hashem.

8. A convert woman who married a convert and they had a son—even though he was conceived and born in holiness, he is permitted to a mamzeres. So too his son's son, until the name of his non-Jewish origin is forgotten from him and it is not known that he is a convert; after that he is forbidden to a mamzeres. Converts and freed slaves alike—one law for all of them.

9. A convert who married a Jewish woman, or a Jew who married a convert woman—the child is a Jew in every respect and is forbidden to a mamzeres.

10. There are three kinds of mamzerim: a definite mamzer, a doubtful mamzer, and a mamzer by the words of the Sofrim. Who is a definite mamzer? One who comes from a definite ervah, as we have explained. A doubtful mamzer is one who comes from a doubtful ervah—for example, one who had relations with a woman whose kiddushin was doubtful, or whose divorce was doubtful, and the like. A woman who heard that her husband had died, and remarried, and her husband was in fact alive, and her husband had relations with her while she was with the second—the son is a mamzer by the words of the Sofrim.

11. An unmarried woman who became pregnant through promiscuity, and they asked her, "What is this fetus" or "this child?"—if she said, "It is a fit child; I had relations with a Jew," she is believed and the child is fit, even if most of the city in which she was promiscuous are disqualified.

12. If his mother was not questioned before she died, or she was deaf-mute, mute or mentally incompetent, or she said, "I had relations with so-and-so the mamzer" or "with so-and-so the nasin," even if that so-and-so admits that the child is from him—this child is a doubtful mamzer, for just as she was promiscuous with this one who admitted it, so she was promiscuous with another. This is the one called a shesuki (a "silenced one")—who knows his mother but does not know his father with certainty.

13. Likewise a child found in the marketplace, who is called an asufi (a foundling), is a doubtful mamzer, for we do not know what he is.

14. An unmarried woman who was promiscuous and said, "This son is the son of so-and-so"—if that so-and-so is fit, the son is fit; but she is not believed that this is the son of so-and-so. And it appears to me that we take her words into account, and the son is forbidden to the relatives of that so-and-so out of doubt. If that so-and-so is a mamzer, she is not believed to make the son a definite mamzer by her word, as we have explained; rather, he is a doubtful mamzer.

15. But a father who is established as the father of this son, and who says, "This son of mine is a mamzer," is believed. If the son has children, he is not believed, for the Torah believed him only regarding his son, as it says, "כִּי אֶת-הַבְּכֹר בֶּן-הַשְּׂנוּאָה יַכִּיר" ("but he shall acknowledge the firstborn, the son of the hated one," Devarim 21:17)—he shall make him recognized to others.

16. Just as he is believed to say, "This son of mine is a firstborn," so he is believed to say that he is a mamzer, or the son of a divorcee, or the son of a chalutzah. Likewise, if his wife was pregnant, he is believed to say, "This fetus is not my son, and he is a mamzer," and he is a definite mamzer. One who says of himself that he is a mamzer is believed to forbid himself to a Jewish woman, but he is forbidden to a mamzeres until it becomes known that he is a mamzer. His son is like him; but if he has grandchildren, he is not believed to disqualify his grandchildren, and he disqualifies only himself.

17. A betrothed woman (arusah) who became pregnant while in her father's house—the child is presumed to be a mamzer; he is forbidden to a Jewish woman and forbidden to a mamzeres. If his mother was questioned and said, "I became pregnant from my arus (betrothed husband)," she is believed and the child is fit. If the arus contradicts her and says, "I never had relations with her," the child is a mamzer—for even if he were established as his son and said, "This son of mine is a mamzer," he would be believed. The woman is not presumed to be a zonah; rather, she is believed to say, "I had relations with my arus," and she is not a zonah. If she married a kohen, she does not have to leave him, and her child from him is fit.

18. If people were spreading rumors about her, while she was betrothed, with her arus and with other men—even though her arus had relations with her in his father-in-law's house, this child is a doubtful mamzer: just as she made herself available to her arus, she made herself available to others. If she was questioned and said, "This fetus is from my arus," he is fit, as we have explained.

19. A married woman who was pregnant and said, "This fetus is not from my husband," is not believed to disqualify him, and the son is presumed fit, for the Torah believed only the father. If the father said, "He is not my son," or her husband was overseas, the child is presumed to be a mamzer. If she said, "I became pregnant from a non-Jew or a slave," the child is fit, for the husband cannot contradict her in this. A fetus does not remain in its mother's womb more than twelve months.

20. A married woman about whom a rumor went out that she is promiscuous while with her husband, and everyone is talking about her—we do not suspect that her children are mamzerim, for most acts of relations are with the husband; and one may marry her daughter even at the outset. But regarding herself, we suspect her on account of zonah; and if she was exceedingly licentious, we suspect even her children.

21. By Torah law a doubtful mamzer is permitted to enter the kahal, as it says, "לֹא-יָבֹא מַמְזֵר, בִּקְהַל ה'" ("a mamzer shall not enter the congregation of Hashem," Devarim 23:3)—a definite mamzer is forbidden to enter the kahal, but not a doubtful one. But the Sages made a stringency regarding lineage and forbade all the doubtful cases to enter the kahal. Therefore a definite mamzer is permitted to marry a definite mamzeres. But a doubtful mamzer, a shesuki or an asufi is forbidden to marry a Jewish woman,

22. and is forbidden to marry a mamzeres; even a doubtful mamzeres is forbidden to him, lest one of them is not a mamzer and the other is a definite mamzer. A mamzer by their words is permitted to marry a mamzeres by their words. Likewise, the other doubtful cases are forbidden to marry one another.

23. How so? Shesukim, asufim and doubtful mamzerim are forbidden to marry one another; and if they married, they may not remain together but must separate with a get, and the child is doubtful like his parents. These doubtful cases have no remedy except to marry converts, and the child follows the blemished parent.

24. How so? A shesuki or an asufi who married a convert or a freed woman, or a convert or freed slave who married a shesukis or an asufis—the child is a shesuki or an asufi.

25. An asufi found in a city in which there are non-Jews, whether the majority were non-Jews or the majority were Jews, is a doubtful non-Jew with regard to lineage. If he betrothed a woman, she requires a get out of doubt. One who killed him is not executed for it.

26. If the beis din immersed him for the sake of conversion, or he immersed after he grew up, he is like other asufim found in Jewish cities. If most of the city were non-Jews, one may feed him neveilos and tereifos; if most of them were Jews, his lost object is returned to him as to a Jew. If it is half and half, it is a mitzvah to sustain him as a Jew, and one clears a heap of rubble off him on Shabbos; and regarding damages he is like any case of monetary doubt—the one who seeks to extract from his fellow bears the burden of proof.

27. It appears to me that in any country in which there is a shifchah or a non-Jewish woman capable of bearing a child—since the asufi found there is a doubtful non-Jew or a doubtful slave, when he marries a convert woman as we have explained, she is a doubtful married woman, and one who has relations with her is exempt, for we do not execute on a doubt. Likewise it appears to me that a shesuki who married a woman who may possibly be an ervah to him—she is a doubtful married woman, for kiddushin does not take effect with the arayos.

28. Which is the woman who may possibly be an ervah to him? Any woman whose father or brother was alive when his mother conceived him; and any woman who was divorced or widowed—perhaps she is his father's wife or his father's brother's wife.

29. From where do I say that a shesuki or an asufi is not forbidden to every woman who may possibly be an ervah to him? For a fit person whose mother was questioned is not forbidden to every woman who may possibly be an ervah to him. And it says in the Torah, "אַל-תְּחַלֵּל אֶת-בִּתְּךָ, לְהַזְנוֹתָהּ" ("do not profane your daughter by making her a harlot," Vayikra 19:29), and the Sages said that if one does this, a father will end up marrying his daughter and a brother marrying his sister. If the law were that anyone who does not know his father with certainty is forbidden to every woman who may possibly be an ervah to him, we would never come to this measure, and the land would not become full of lewdness. You have thus learned that we do not forbid arayos, nor presume people to be blood relatives, on the basis of doubt, until it is known with certainty that this woman is an ervah to him. For if you were to say so, all the orphans in the world who did not know their fathers would be forbidden to marry anywhere, lest they come upon an ervah.

30. A child who was abandoned on the road, and someone came and said, "He is my son, and I abandoned him," is believed; and likewise his mother is believed. If he was taken in from the marketplace, and afterwards his father and mother came and said, "He is our son," they are not believed, since he has acquired the name of asufi. In years of famine they are believed, for they abandoned him because of the famine and wanted others to sustain him, and therefore they were silent until he was taken in.

31. If the child was found circumcised, or salted, or swaddled, or with kohl in his eyes, or with amulets on his neck; or he was found under a tangled tree that no animal can enter and it was near the city; or he was found in a synagogue near the city, or at the sides of a public thoroughfare—he does not have the status of an asufi. Since they took care that he not die, he is presumed fit. But if he was found abandoned in the middle of the road, or far from the city—even under a tree or in a synagogue—or he was found hanging on a tree in a place the hand can reach, he is an asufi.

32. A midwife is believed to say, "This child is a kohen," or "a Levi," or "a nasin," or "a mamzer," because his status has not been established and we do not know his lineage. When does this apply? When she is established as trustworthy and no one challenged her. But if even one person challenged her and said, "She testifies falsely," she is not believed; the child is presumed fit, and he has no lineage.

33. It is clear that a shesuki is forbidden to marry a shesukis, and an asufi is forbidden to an asufis, because they are doubtful cases. But definite mamzerim and Nesinim are permitted to marry one another, and the child is a mamzer. A shesuki and an asufi are permitted to Nesinim like other converts, and the child is a doubtful mamzer.