If there is no inyan of kiddushin gitin among gentiles Gitin9b) with regard to marriages, how can they be held accountable for adultery?
Joseph Neustein, MD, El Paso, Texas USA
There is no Kidushin for a non-Jew, but there is Nisu'in. Nisu'in is defined the way the Rambam defines Nisu'in of a Jew before the Torah was given (Hilchos Ishus 1:1): "A man meets a woman in the market, if they both agree to get married he takes her into his house [i.e. on a permanent basis] and lives with her, and she becomes his wife."
Divorce is similar, as the Rambam writes in Hilchos Melachim 9:8, "When is a non-Jew's wife considered to be divorced? When he sends her out of his house to be on her own, or else when she decides to leave his house and goes out on her own."
The Gemara says that when a non-Jew lives with a the wife of another man that he has taken captive in war ("Yefas To'ar"), it is a form of Gezel, theft (Sanhedrin 57a). The obvious question is why it is only theft and not adultery? The answer would seem to be that once she has been captured, she has *permanently* left the house of her husband. This is tantamount to divorce (since even though it is against their will, she acknowledges that she is no longer living with her former husband), making it only "theft" and not "adultery."
M. Kornfeld
Shalom Rabbi Kornfeld:
Thank you for your prompt and thorough reply. Given that there is Nisuin by
nonJews, is there a difference in punishments when a nonJew commits adultery
with a married nonJewess as opposed to a Jew committing adultery with a
married nonJewess? Are there different punishments for the respective adulterer and adulteress?
Joseph Neustein, MD, El Paso, Texas USA
Since there is no Kidushin, a Jew is not Chayav Mishah for adultery. The act is nevertheless prohibited (Sanhedrin 82a), and like any relations with a woman who is not Jewish it carries a punishment of Misah ("Kana'im Pog'im Bo") if done in an unconcealed manner. It is in the category of "Giluy Arayos," for which we are told "Give up your life rather than transgress this sin." (Me'or and Milchamos, 75a).
Best wishes,
M. Kornfeld
Kollel Iyun Hadaf
(a) With regard to why the Gemara doesn't say he is Chayav because of Eshes Ish, it might be because the Yefas To'ar may not have been married at all, or her husband may have been killed in the war. Nonetheless Gezel would apply. (See at length Minchas Chinuch Mitzvah #35 DH v'Da d'Ben Noach).
Note that in the case of Ben No'ach she'Yiched Shifchah l'Avdo, while Rashi holds he is Chayav for Gezel, the Rambam (Hil. Melachim 9:8) holds it is Eshes Chaveiro. (The Rambam l'Am explains that in this case the Rambam holds that since there is no Gezel, it is only prohibited because of Arayos.)
Actually, in the Gemara it doesn't say "v'Shachav Imah" (even though some of the commentaries to say so, and in some cases when these words appear in the Gemara it does mean that). If so, the kidnapping itself, even without Bi'ah, could be Gezel.
(b) With regard to whether taking by force would uproot the marriage, note Encyclopedia Talmudis Vol. 3 page 354, "O she'Ein Lahem Kivush... Lehafkia Es ha'Ishus." One case where there could be a Nafka Mina is where she managed to escape with intent to return to her former husband and she was Mefutah by another Ben No'ach. If the captivity stopped her marriage she is not married, otherwise she still is.
Kol Tuv,
Yitzchok Zirkind