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When it comes to the question of who is a mamzer, numerous conflicting theories abound in the early rabbinic literature. The opinion presented anonymously in Qiddushin 3:12, which appears to be halakhically authoritative (Rambam, Hilkhot Issurei Biah 15:1) follows the opinion given in the name of Shimon haTeimani in Yevamot 4:13, which is concluded with the parenthetical aside: והלכה כדבריו. This is the opinion that a mamzer is one born of a union that merits karet (in the words of Yevamot 4:13; in Qiddushin 3:12 - זה הבא על אחת מכל העריות שבתורה).

It appears that these mishnayot are referring to every sexual union prohibited in Leviticus 18, with the exception of sexual intercourse with a menstruating woman (as per the Bartenura on Yevamot 4:13). Opinions to the contrary include those of Rabbi Akiva (who defines a mamzer as the offspring of any prohibited union) and Rabbi Yehoshua (who defines a mamzer as the offspring of any union that merits death at the hands of a bet din).

In Yevamot 4:13, R' Shimon ben Azzai provides a proof for the opinion of Rabbi Yehoshua:

אמר רבי שמעון בן עזאי: מצאתי מגלת יֹחסין בירושלים וכתוב בה: איש פלוני ממזר מאשת איש לקים דברי רבי יהושע

Rabbi Shimon ben Azzai says, "I found a genealogical scroll in Jerusalem, in which was written: So-and-so is a mamzer born of adultery - which substantiates the opinion of Rabbi Yehoshua [who says that a mamzer is one born of any union that merits death at the hands of a bet din]!"

An adulterous union does indeed merit the death penalty (Leviticus 20:8, Sanhedrin 11:1), but it also merits karet (Leviticus 18:20, Keritot 1:1)! I appreciate how the Tur and the Shulchan Arukh have combined the two opinions (Even haEzer 4:13), but I'm specifically interested in understanding this mishna in Yevamot. How did Rabbi Shimon ben Azzai think that his example was a support for the opinion of Rabbi Yehoshua over the opinion of Shimon haTeimani?

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+1, a very well-laid-out and -explained question. I hope that that leads to your getting a correct and equally well written answer. –  msh210 Jul 14 '13 at 4:32
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Tosfot (Yevamot 49a s.v. Ish) gives an unsatisfying answer. –  Double AA Jul 14 '13 at 8:37
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@DoubleAA - can you explain it? I saw that quoted in the Tosafot Yom-Tov (and possibly also Tiferet Yisrael), but am not sure that I understand it... Is it just that cheneq is the lesser of the four capital punishments, so we can make a qal v'chomer to the others and include in that category everything that merits death at the hands of the bet din, whether it also merits karet or not? –  Shimon bM Jul 14 '13 at 13:40

1 Answer 1

The Tosfos quoted by Double AA answers (as far as I understand it):

The point of אשת איש is not to specify the specific case involved, but rather to say it was from a capital case and emphasize that this Mamzer is a Mamzer according to the requirement that the relationship be a capital one (so don't think that we are being overly strict, we think it takes a capital-case to make a Mamzer). So Tosfos asks - why didn't it say that outright and more generally, why specify a married woman?

If the answer is that this was just the actual story (this person was the result of adultery), then [as you are asking] how does that support Rabbi Yehoshua's opinion at all? It is just an historical artifact.

Tosfos answers that indeed the point is to emphasize the halacha, not the specific events, and the emphasis of a married woman is that it shows the extent to which a capital-crime relationship still creates a Mamzer, thus emphasizing that all capital-crime relationships are forbidden, even a married woman. This is because there are two more lenient aspects about a married woman over other capital-crime relationships.

  1. The punishment is Chenek, the most lenient of the four capital punishments in the Torah.
  2. A married woman can become permitted during the lifetime of the one who forbids her (in other words, unlike a woman to her brother-in-law where her sister has to die in order to permit the relationship, no one needs to die in order to permit the relationship - she could have just gotten divorced).

[Thus we see from here the answer to your underlying question of why not focus on the Kares aspect - as far as issues of Kares go, this is far from the most lenient, in fact, it is one of the most strict (as it also has a capital-crime aspect). Thus referencing a married woman over the general principle has no place if the general principle is one of Kares and not death by Beis Din, it is a case where it is questionable if the point would be Kares at all, so it would be much better to specify the general principle.]

I heard from Rabbi Zalman Labkowski, in the name of his father, that there are three languages that Tosfos uses when it asks a question: קשה, ואם תאמר and תימה.

קשה means the question isn't a strong question in Tosfos view, and if there is an answer, it completely removes the question and with the new understanding, you can learn the suggia without having the question.

ואם תאמר is a strong question, but with an answer it is answered. So learning the suggia raises the question, which is properly answered (whereas in the first instance, once you know the answer, you can just learn it without raising the question).

תימה means that the question is a very strong question, and the answer (if there is one) doesn't fully satisfy it.

In this case it is a תימה, and as Double AA said, it doesn't fully satisfy.

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