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Kidushin, 75

1) THE "S'FEK S'FEIKA" OF AN "ALMANAS ISAH"

QUESTION: Rebbi Yehudah ben Beseira holds that the daughter of an "Isah" is Pesulah l'Kehunah, while the Almanah of an "Isah" is permitted to marry a Kohen. The reason why the Almanah is permitted to marry a Kohen is because of the S'fek S'feika regarding her status. Why does this S'fek S'feika not apply to the *daughter* of an "Isah" as well?

ANSWERS: The answer to this question depends on the two opinions in the Rishonim regarding what the Gemara means here by the "S'fek S'feika."

(a) RASHI explains the "S'fek S'feika" of our Gemara differently than the normal concept of S'fek S'feika. He explains that the husband is a normal Safek Chalal (i.e. a Safek Ben Gerushah). The woman "acquired" this Safek when she married the Safek Chalal. Since she did not acquire the Safek due to a question about her own Kashrus, but rather she "inherited" this problem from her husband, the Gemara refers to it as a S'fek S'feika (because her status is a secondary source of Safek and not a primary source).

According to this explanation, we can understand the difference between the daughter of an "Isah" and the Almanah of an "Isah." The man's offspring is not a secondary source of Safek, but is an *extension* of the man's own Safek, since his offspring is an extension of him. Hence, the daughter has the same degree of Safek as her father. The Almanah, though, is not an extension of her husband, and thus she is more removed from the primary source of the Safek.

(b) TOSFOS in Kesuvos (14a) and the RAMBAM explain the S'fek S'feika as referring to the following case. There is a family of Kohanim which has in it a Safek Chalal, but we do not know who that Safek Chalal is. When a woman marries any man from that family, she is faced with a S'fek S'feika: perhaps the man she is marrying is the Safek Chalal and perhaps he is not the Safek Chalal, and even if he is the Safek Chalal, perhaps he is really Kasher.

This is the meaning of the S'fek S'feika in our Gemara (and it is the normal type of S'fek S'feika, in contrast to the explanation of Rashi).

Tosfos in Kesuvos explains that the S'fek S'feika should indeed apply to the daughter as well, but due to the principle of "Ma'aleh Asu b'Yuchsin" we are more stringent with regard to the daughter. The reason for this stringency is that the Almanah has a Chezkas Kashrus, because she was permitted to marry a Kohen before she married this man. The daughter, in contrast, was born into a state of Safek and never had a Chazakah prior to the Safek. Even though, normally, a Chazakah is not needed to rule leniently in the case of a S'fek S'feika, due to "Ma'aleh Asu b'Yuchsin" we are stringent with regard to the Safek of the daughter's status.

The Acharonim raise a number of questions on the explanation of Tosfos.

First, the SEFER HA'MIKNAH asks that just as we apply the concept of S'fek S'feika to the woman, we should apply it to the man whom she is marrying: Perhaps he is the Safek Chalal, and perhaps he is not, and even if he is the Safek Chalal, perhaps he is really Kasher! Hence, in a case where a Safek Chalal became mixed into a family of Kohanim, we should use the concept of S'fek S'feika to determine that there is no Pesul at all in the family!

The answer is that in the laws of S'fek S'feika, there is a rule that both of the S'feikos must take effect together. If one Safek takes effect before the other, we cannot apply the principle of S'fek S'feika in order to be lenient, but rather we must view it as a regular Safek (see Shulchan Aruch, Yoreh Deah 110).

With regard to the Almanah, both S'feikos occurred simultaneously. At the moment that she married the man, both S'feikos took effect. In contrast, with regard to the Safek Chalal himself, the two S'feikos took effect at different times. The Safek whether he is a Chalal or Kasher occurred first. Afterwards, when the identity of the Safek Chalal became unknown, the new Safek -- *who* the Safek Chalal is -- occurred. This cannot be considered a valid S'fek S'feika.

The second question on the explanation of Tosfos is that of REBBI AKIVA EIGER in Kesuvos. Rebbi Akiva Eiger asks why we cannot use the Chazakah of the *mother* to validate the status of her daughter. Tosfos earlier in Kidushin (66a, DH Mai) discusses the concept of "Chezkas ha'Em Mehani l'Bas" -- the Chazakah that exists for the mother can be applied to her offspring. How, then, can we differentiate between the Almanah and her daughter on the basis of the lack of a Chazakah? On the contrary -- let the same Chazakah apply to both of them!

Rebbi Akiva Eiger answers this question as follows. The daughter, in this case, has two opposing Chazakos from her two parents. Although she has a Chezkas Kashrus from her mother, her father is a Safek Chalal. Since there are two opposing Chazakos to follow, we cannot choose one over the other. (A. Kronengold.)

75b

QUESTION: The Gemara (75a) cites a Beraisa in which Rebbi Elazar states that a Kusi may not marry a Kusis. The Gemara here explains that Rebbi Elazar holds like Rebbi Yishmael, who holds that Kusim are "Geiri Arayos" who converted with impure motives and are thus considered like Nochrim, and Rebbi Yishmael holds like Rebbi Akiva, who rules that the child of a Nochri and Jewess is a Mamzer. Hence, Rebbi Elazar says that a Kusi may not marry a Kusis, because one of them might be a Mamzer and one might be Kasher.

RASHI explains that the Safek is that one of the two Kusim might come from a Kusi who married a Jewess and is thus a Mamzer, while the other might come from a pure family of Kusim who married Kusim and is not a Mamzer, but rather is a Nochri, and it is prohibited for a Jewish Mamzer to marry a Nochri.

It seems from Rashi's explanation that the problem of a Kusi, born to a Nochri who married a Bas Yisrael, who marries another Kusi is that he is a Jewish Mamzer who might be marrying a full-fledged Nochri. If that is the problem, though, then why does the Gemara need to say that he might be a Mamzer? Even if the offspring of a Nochri and a Bas Yisrael is a *Kosher* Jew, he is not allowed to marry a Nochri! Why does the Gemara need to say that Rebbi Yishmael holds like Rebbi Akiva who says that the child of a union between a Nochri and a Jewess is a Mamzer? Even if he is a full-fledged Jew, the same concern exists!

ANSWERS:

(a) The RITVA quotes "Yesh she'Tirzu" who explain that the Gemara is not discussing the first generation of Kusim, who were not real Gerim. Rather, it is referring to subsequent generations of Kusim who *are* real Gerim. Thus, if both of the Kusi's parents were Nochrim (since they did not convert sincerely), and he converts properly, then he becomes a fully valid Ger. If, however, the Kusi comes from a union between a Nochri (an insincere Kusi) and a Bas Yisrael, then if we hold like Rebbi Akiva, the Kusi is a Mamzer and may not marry another Kusi (who has the status of a proper Ger).

The Beraisa earlier (74b) cites a Machlokes between Rebbi Yosi and Rebbi Yehudah regarding whether a Ger may marry a Mamzer or not. Our Gemara is following the view of Rebbi Yehudah, who prohibits a Ger from marrying a Mamzer. Hence, the Kusi who is a proper Ger may not marry another Kusi because the other Kusi might be a Jewish Mamzer. (See MAHARSHA to Tosfos, 75a, DH Kusi, and PNEI YEHOSHUA to Rashi here.)

(b) TOSFOS cites the RI who offers an alternative explanation of the Gemara. Just as we are concerned that Jewish women married into and became mixed with the Kusim, we are concerned that Jewish *men* also became mixed with them. Consequently, there might be a full-fledged Jew among the Kusim, and if he marries another Kusi, then a Jew will be marrying a Kusi who is a Mamzer, and everyone agrees that a Jew may not marry a Mamzer.