Introduction to the Study of Talmud
by Rav Michael Siev
Kiddushin 13 - Daf 74a continued
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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
Within the quoted texts, my explanations and additions are also noted in red.
Last week, we learned the gemara on 74a which quotes the end of the introductory mishna of our chapter: "Abba Shaul would call a shetuki, beduki." The gemara suggested that the significance of Abba Shaul's comment was to hint to the fact that we can interview the mother of a shetuki (a child born to an unmarried mother and considered a possible mamzer) and rely on her claim regarding the genealogical status of the child's father. Thus, if she claims that her child was fathered by someone of acceptable lineage, the child is not considered a shetuki, and he may marry into the general community. The word beduki literally means "one whom we check." Of course, in the absence of real evidence, the only investigation we can do is to ask the mother, and if we are asking, it must be that we take her word for it. The gemara questioned whether this could be the intent of our mishna: after all, the mishna in Ketuvot has already taught us that, according to the accepted opinion of Rabban Gamliel, we trust the woman's account of her son's lineage! The gemara answered that we need both mishnayot: the mishna in Ketuvot teaches that we trust the woman regarding her own status; if she had cohabited with someone of tainted lineage, she herself would become unable to marry a kohen. Our mishna goes further and teaches that we believe the woman regarding her child's lineage as well.
We resume the gemara, seven lines above the next mishna on 74a.
It is well for the one who says that [even] according to the [opinion] that she is fit, her daughter is not fit,
but for the one who says that the according to the opinion that she is fit, her daughter is fit,
what does Abba Shaul come to teach us?
The [teaching] of Abba Shaul is more inclusive than Rabban Gamliel's,
for if [we learn] from there, I would have thought that [the ruling only applies] there, where most are fit for her,
but [in a situation] where most are unfit for her -
I would say not. It (the teaching) is [therefore] needed.
Rava said: "The halakha is like Abba Shaul."
הניחא למאן דאמר לדברי המכשיר בה פוסל בבתה,
אלא למ"ד (=למאן דאמר) לדברי המכשיר בה מכשיר בבתה,
אבא שאול מאי אתא לאשמועינן?
דאבא שאול עדיפא מדרבן גמליאל,
דאי מהתם, ה"א (=הוה אמינא) התם דרוב כשרין אצלה,
אבל היכא דרוב פסולין אצלה -
אימא לא. צריכא.
אמר רבא: הלכה כאבא שאול.
The gemara does not settle for the answer that we quoted above. Regarding the machloket (argument) in Ketuvot, there is a disagreement as to the opinion of Rabban Gamliel. One view claims that Rabban Gamliel allows us to trust the woman regarding all implications of the father's identity. This includes the ramifications regarding the woman herself - for example, if she can marry a kohen - and those regarding the status of her children. If the father is a Jew of acceptable lineage, the fact that the child was conceived out of wedlock does not impact upon the child's genealogical status. If the father's status is tainted, however, there will be ramifications regarding the child: if the father is a chalal, his daugher will be a chalala, prohibited from marrying a kohen, and if the father is a mamzer, his child will also have this status.
With this in mind, the gemara questions its explanation of the need for Abba Shaul's opinion. If Rabban Gamliel's ruling instructs us to trust the woman's statement only regarding herself but not regarding her child, we understand why Abba Shaul's teaching is significant: to extend the mother's credibility to include her child as well. However, if Rabban Gamliel's statement is understood as being more inclusive and granting the woman credibility regarding the status of her child as well, there would seem not to be any reason to repeat this point via Abba Shaul's statement in our mishna.
The gemara answers that even if we take a more inclusive view of Rabban Gamliel's opinion, Abba Shaul's statement is still necessary to expand the ruling. If we only had the mishna in Ketuvot, one might have thought that we trust the woman only when most of the men are fit for her, meaning that they would not disqualify her or her child. This is the case if the woman is not married and most of the men in town are of acceptable lineage. In such a case, we would feel more comfortable trusting the woman due to the principle of rov, which assumes that something that has separated from a group is similar to the majority of that group (see 73a and our shiurim on that page). However, if most are unfit for her, such as if she is married (such as a betrothed woman, who is considered legally married even though she does not yet live with her husband) or if most of the men in town are of tainted lineage, she would not be believed. Abba Shaul's statement teaches us that even if most are unfit for her, we still believe the woman's assertion that her child has been fathered by someone of acceptable lineage. The gemara concludes by quoting Rava, who rules that the halakha is in accordance with Abba Shaul.
This sugya, which establishes the credibility of a parent vis-à-vis his child's lineage, must be taken together with the mishna and gemara later in our chapter on 78b. Let us take a look at that sugya, which completes the picture presented here in ours.
We begin from the mishna, halfway down the page on 78b.
Mishna: One who says this son of mine is a mamzer - is not believed;
and even if both of them agree about the fetus in her womb that he is a mamzer - they are not believed.
Rabbi Yehuda says: they are believed.
Gemara: What is [the meaning of the phrase] "even both of them?"
It states [first] 'that which is not necessary:'
it is not necessary to say that he (the father), who cannot be certain, [is not believed],
but even she, who is certain - is not believed;
and it is not necessary to say where he (the child) has a presumption of legitimacy that they are not believed,
but even a fetus also, that does not have a presumption of legitimacy - they are not believed.
מתני' האומר בני זה ממזר - אינו נאמן;
ואפילו שניהם מודים על העובר שבמעיה ממזר הוא - אינם נאמנים.
רבי יהודה אומר: נאמנים.
גמ'. מאי ואפילו שניהם?
לא מיבעיא קאמר:
לא מיבעיא איהו דלא קים ליה,
אלא אפילו איהי דקים לה - לא מהימנא;
ולא מיבעיא היכא דאית ליה חזקה דכשרות דלא מהימני,
אלא אפילו עובר נמי דלית ליה חזקה דכשרות - לא מהימני.
We have already seen our gemara (74a) discuss the issue of a parent's credibility regarding which of his children is the firstborn; this mishna addresses the issue of a parent's credibility regarding the mamzerut status of his child. The first statement of the mishna states that a parent does not have credibility if he claims that his child is a mamzer. Even if both the husband and wife agree that she is pregnant from someone other than her husband, thus rendering the fetus a mamzer, they are not believed. Rabbi Yehuda disagrees and claims that they are believed.
The gemara questions the intent of the mishna's second line - even if both of them agree. What is added by this line that was not understood based on the mishna's first statement? The gemara explains that our mishna follows the style of presentation of "It states [first] that which is not necessary." This means that the mishna first presents a case that demonstrates the halakha at hand, and then presents another case which extends that same principle to situations in which it is less obvious to come to that conclusion. In other words, not only is there a need for the second statement, it actually implies everything taught in the first part of the mishna and more.
The gemara now explains why it is that the second statement is a greater chiddush (novelty) than the first.
|Take a moment to review the gemara: which factors make the second case a greater chiddush than the first?|
There are two differences between the cases:
1) The first case speaks of a parent that makes a claim, apparently a reference to the father. The second case applies to a situation in which the mother agrees to the father's assertion.
2) In the first case, the father comments on the lineage of a child that has already been born. In the second, the discussion is about an unborn fetus.
According to the gemara, both of these factors are significant. It is one thing to limit the credibility of a father, who, after all, can not necessarily be absolutely certain whether his wife conceived from him or from someone else; it is a much greater chiddush to say that even the mother, who can be more certain than anyone else of her child's ancestry, is also not believed. The second issue is also important: it is one thing to say that parents are not believed when it comes to disqualifying a child of theirs who already has a chazaka, a presumption of acceptable lineage; a chazaka cannot be overturned without hard evidence. It is a further chiddush that even when it comes to an unborn child, who does not yet have a chazaka that he is of of acceptable lineage, the parents are not believed if they claim that the child is a mamzer.
We continue in the gemara on 78b, at the "two-dots," about two-thirds of the way down the page.
Rabbi Yehuda says: They are believed:
As it states in a beraita: "'He shall recognize' - he shall identify to others;
from here Rabbi Yehduda said: 'A person is believed to say, "this is my firstborn son;"
and just as a person is believed to say, "this is my firstborn son,"
he is believed to say, "this is the son of a divorcee or a chalutza.'
And the Sages say: 'He is not believed.'"
רבי יהודה אומר: נאמנים:
כדתניא: יכיר - יכירנו לאחרים;
מכאן אמר רבי יהודה: נאמן אדם לומר זה בני בכור;
וכשם שנאמן אדם לומר זה בני בכור,
כך נאמן אדם לומר זה בן גרושה וזה בן חלוצה.
וחכמים אומרים: אינו נאמן.
The gemara here begins with a quote from the mishna, as usual - in this case, the last line of the mishna, which quotes Rabbi Yehuda's dissenting view that claims that parents are believed regarding the genealogical status of their children. The gemara quotes a beraita that explains the basis of Rabbi Yehuda's ruling. This beraita should sound very familiar to us, as it was quoted earlier in our gemara on 74a as well. The Torah states (Devarim 21:17) that a man must "recognize" (yakir) his firstborn son with regard to the extra share of inheritance that is due him, even if one favors a different son. The beraita understands that inherent in this command is that the man must make known (yakirenu) to others that this is his firstborn; otherwise, the man's recognition will not have the desired effect of ensuring that the real firstborn son receives his due share of the inheritance. Based on this, Rabbi Yehuda claims that just as a father is believed when he identifies his firstborn, he is believed if he asserts that his son is a chalal. This would be the case if the man was a kohen and married a woman whom kohanim are not permitted to marry, such as a divorcee or a woman who has undergone chalitza. (Chalitza applies when a man dies childless; his wife must either marry one of his brothers (yibbum) or perform the chalitza ceremony - see Devarim 25:5-10.) Thus, we see that a father has credibility even to de-legitimize his son's lineage; the same should hold true if he identifies his son as a mamzer. The Sages dispute Rabbi Yehuda's ruling and claim that the father is not believed. As Rashi explains (s.v. Eino ne'eman) they admit to the father's ability to identify his firstborn; this does follow rather directly from the Torah's presentation itself. They simply dispute the extension of this principle to situations in which the father identifies his son as being of somewhat illegitimate status.
Taken together with our sugya, this gemara rounds out our picture of the extent of parents' credibility vis-à-vis their children's lineage. Our sugya teaches that a mother is believed if she claims that her child is of acceptable lineage, even if the child is born out of wedlock and most people in town are forbidden to the woman. When it comes to a claim that one's child is illegitimate, however, there is a debate. Rabbi Yehuda argues that just as a father has a special level of credibility regarding the identity of his firstborn son, he is believed when it comes to his children's lineage as well. The Sages argue that parents are not believed when they identify their children as illegitimate.
It is important to note that there are many cases of parallel sugyot that complement each other; often, one gets a very incomplete picture of a topic when one simply learns the isolated presentation of the Gemara in one location. Parallel sugyot may even appear in separate tractates! One can strive toward a level of expertise at which one would be familiar with the entirety of Talmudic literature and not have this problem, but until then there are important tools that one can use to make sure that one does get a full picture. Firstly, the classic commentators did achieve an impressive mastery of Talmud, and generally quote parallel sugyot when they are relevant. There is another important tool, though, that appears on the page of the Talmud itself: the Mesorat ha-Shas, which is found on the inside margin of the page, next to the commentary of Rashi (farther from the text of the Gemara). In our sugya, on 74a, note that when the gemara quotes the beraita about the halakha of "yakir," there is an asterisk next to the word כדתניא (about a quarter of the way down the page). Directly across from this asterisk (in newer editions, it may be located on the top of the inside margin), the Mesorat ha-Shas gives several references to other places where the Talmud quotes this beraita. The first citation is לקמן עח, which literally translates as "in front of us," meaning later in our masekhet, on page 78 (the numerical value of עח). The two dots next to the page indicate that it is on 78b (a single dot would indicate 78a). A thorough examination of a topic must include looking up parallel sugyot.