QUESTION: Ravin says in the name of Rebbi Yochanan that "with regard to the other nations, the status follows the male." The Gemara explains that this statement refers to the Beraisa which discusses the status of a child born from a union between a member of one of the seven nations that inhabited Eretz Yisrael and a member of another foreign nation.

RASHI (DH Minayin l'Echad) explains that the subject of this Halachah is the commandment of "Lo Sechayeh Kol Neshamah" (Devarim 20:16). Upon their entry into Eretz Yisrael, the Jews were commanded to destroy the seven idolatrous nations that inhabited the land. The Gemara discusses who is considered a member of those nations. If a Nochri comes from a union between a Kena'ani man and a woman from another nation, does the prohibition of "Lo Sechayeh" apply to him? The Gemara differentiates between a Nochri from a foreign nation who marries a Kena'ani woman (in which case the child's status follow that of the father and, therefore, "Lo Sechayeh" does not apply to that child just as it does not apply to his father), and a Kena'ani man who marries a woman from a foreign nation (in which case the child's status follows that of the father and, therefore, "Lo Sechayeh" does apply to the child).

The Beraisa, however, discusses two cases. In the first case, a member of a foreign nation bears a child with a Kena'ani woman. In the second case, an Eved Kena'ani bears a child with a Shifchah (maidservant) from another foreign nation. Why does the Beraisa discuss the case of an Eved and Shifchah? According to Rashi's understanding, the Gemara's question is not whether the child is an Eved, but whether he is a Kena'ani! The Gemara should discuss the simple case of a Kena'ani man who bears a child with a woman from another nation. (Indeed, the Mesores ha'Shas cites an alternative Girsa which reads "Kena'ani" in place of "Eved.") How is Rashi's explanation to be reconciled with the words of the Gemara (according to the Girsa of our texts)?

ANSWER: The YOSEF DA'AS explains that the word "Eved" here does not refer specifically to a servant, but it means "Kena'ani." "Eved" is an appellation for a member of the Kena'ani nation since the Torah refers to the nation of Kena'an as an "Eved" in the verse, "Vihi Chena'an Eved Lamo" -- "And Kena'an shall be an Eved to him" (Bereishis 9:27).

Perhaps the fact that the Beraisa refers to him as an "Eved" and not as a "Kena'ani" is the source for the RAMBAM's interpretation of the Gemara. The Rambam (Hilchos Avadim 9:3) writes that "a member of a foreign nation who has relations with a Shifchah Kena'anis of ours, the son is an Eved Kena'ani.... But an Eved of ours who has relations with a member of a foreign nation, the son is not an Eved." The Rambam makes no mention of the Halachah of "Lo Sechayeh Kol Neshamah," and he does not stress the point of whether the child is a Kena'ani or not. The Rambam seems to understand that the Gemara is discussing the question of whether the child is an Eved or not. This explains why the Gemara chooses to discuss specifically a case of an Eved who lives with a Shifchah from another nation, and not just a case of a Kena'ani who lives with a woman from another nation. (Although a slight change in the Girsa in the first case of the Beraisa may need to be made according to the Rambam, it seems that the question which the Beraisa discusses indeed is the one which the Rambam discusses.)

QUESTION: The Mishnah states that when a man lives with a woman whom he cannot betroth with Kidushin but with whom others can betroth with Kidushin (such as his sister, with whom his Kidushin does not take effect, but with whom the Kidushin of others does take effect), the child born from the union is a Mamzer. The Gemara asks, "Mena Hani Mili" -- "from where is this learned?"

What is the Gemara's question? The Gemara in Yevamos (49a) explicitly states that any child born from a union which involves a Chiyuv Kares is a Mamzer. Clearly, the Gemara here is not seeking a source that the child is a Mamzer. Rather, the Gemara must be asking for a source that the Kidushin does not take effect. However, this question, too, is problematic, because another principle clearly states that a child is a Mamzer only when the union from which he was born was a union for which Kidushin cannot take effect. Since the child in this case is a Mamzer (he was born through a union of a Chiyuv Kares), it must be that the Kidushin does not take effect. Why does the Gemara need to seek a special source to teach that the Kidushin in this case does not take effect?

(a) TOSFOS explains that the Gemara's question applies only according to the view of Rebbi Yehoshua, who maintains that a child born from a union of Chiyuv Kares is not a Mamzer. A child is a Mamzer only when born from a union of Chiyuv Misas Beis Din. According to his opinion, a special verse is needed to teach that Kidushin does not take effect.

(b) RASHI explains that the law that Kidushin does not take effect for a union of Chiyuv Kares is based on the Gemara here. From the Gemara here which teaches that Kidushin does not take effect for a union of Chiyuv Kares, and from the Gemara in Yevamos which states that a child born from a union of Chiyuv Kares is a Mamzer, one may extrapolate the law that whenever Kidushin does not take effect the child is a Mamzer. One would not have known this law without the teaching of the Gemara here. Accordingly, the Gemara indeed is asking for the source for the law that Kidushin does not take effect in a case of Chiyuv Kares.

OPINIONS: The Gemara seeks the source for the law that Kidushin does not take effect between a man and a woman who are forbidden to each other with a Chiyuv Kares. The Gemara answers that the verse, "And she will leave his house (of her first husband) and she will be a wife to another man (v'Hayesah l'Ish Acher)" (Devarim 24:2), teaches that Kidushin takes effect only with "Ish Acher" -- "another man," but not with relatives.

The Gemara asks that perhaps the verse means with "another man" to the exclusion of her son, but Kidushin with any other relative does take effect. The Gemara answers that another verse (Devarim 23:1) already teaches that a son and his mother may not marry. The Gemara asks that perhaps the two verses are necessary to teach both that a son and his mother are prohibited from marrying each other "l'Chatchilah" and that if they marry each other the Kidushin does not take effect even "b'Di'eved."

"L'Chatchilah" means that the Torah forbids an act of Kidushin with an Ervah, but if one transgresses and performs such an act it nevertheless takes effect. "B'Di'eved" means that if one performs Kidushin, it does not take effect at all. The Gemara implies that the Torah forbids the very act of Kidushin with an Ervah, even when one does not have relations with the Ervah. Does the Torah indeed forbid one from performing an act of Kidushin with an Ervah?

(a) The SEFER HA'CHINUCH (#206) writes that the Torah indeed forbids one from performing an act of Kidushin with any of the Isurei Arayos. The Torah forbids not only an act of relations but even an act of Kidushin through giving money or a Shtar.

(b) The MINCHAS CHINUCH there discusses this Halachah at length. He notes that the RAMBAM makes no mention of this prohibition, and he cites a number of proofs against the ruling of the Sefer ha'Chinuch. (See Minchas Chinuch 206:12.)

How does the Minchas Chinuch understand the Gemara here which clearly implies that the Torah forbids merely performing an act of Kidushin with any of the Arayos, as the Sefer ha'Chinuch infers?

Perhaps the Gemara's implication applies only before it has established that Kidushin with an Ervah does not take effect at all. The Gemara implies that a mere act of Kidushin with an Ervah is forbidden only according to the assumption that such an act would take effect. Once the Gemara proves that the Kidushin does not take effect, the Gemara no longer has any proof that the act of Kidushin itself is forbidden.

If the act of Kidushin takes effect and the woman becomes Mekudeshes to the man, the question of whether or not the act itself is forbidden is relevant. If, however, the act has no validity whatsoever, it cannot be viewed as an act of Kidushin at all, and thus no prohibition can be attributed to that act. It becomes merely an act of giving a coin or a ring to a woman, and not an act of Kidushin.

The Gemara mentions the possibility that the act is prohibited l'Chatchilah only before it knows that the Kidushin does not take effect at all. At that point, the Gemara entertains the possibility that the Kidushin indeed could be valid, and a prohibition could apply to that act of Kidushin. Once the Gemara concludes that the Kidushin does not take effect, it no longer maintains that the Torah forbids an attempted act of Kidushin with an Ervah. (A. Kronengold)