Siman 16

The Rambam, of blessed memory, wrote in the twelfth chapter of Issurei Biah: An Israelite who has relations with a gentile woman from the other nations by way of marriage, or an Israelite woman who has relations with a gentile man by way of marriage—these are lashed according to the Torah, as it is said: "You shall not intermarry with them; your daughter you shall not give to his son, and his daughter you shall not take for your son" (Deuteronomy 7:3). Both the seven nations and the other peoples are included in this prohibition, and it is likewise explicitly stated by Ezra: "And that we would not give our daughters to the peoples of the land, nor take their daughters for our sons" (Nehemiah 10:31). Thus far his words. And we have already explained in siman 4, section 3, that the opinion of the Rambam is that the verse "You shall not intermarry with them" refers to all nations in their state of gentility; however, many of our teachers disagree with him and hold that the verse refers to the seven nations and in their state of conversion, but in their state of gentility they have no legal status of marriage at all. Consequently, according to the Rambam, one is lashed only for marriage and relations as he holds regarding all those liable for negative commandments, while according to those who disagree with him, one is liable for the seven nations in their state of gentility for relations alone, and in their state of conversion one is liable because of "You shall not intermarry with them" for marriage alone, and regarding other nations in their state of conversion it is entirely permitted, and in their state of gentility they have no legal status of marriage and relations are merely licentiousness. And it must be said according to the opinion of the Rambam that even though they have no kiddushin, nevertheless they have nissuin [Bach], and the other poskim do not hold of this reasoning. [See the Gra, subsection 2, who wrote that according to those who disagree, one is not liable for the seven nations in their state of gentility except when he betrothed and had relations, since the language of "taking" is written; and this requires further study, for they have no "taking," and the explanation of the verse is as the Tosafot wrote at the end of the chapter "HaOmer"].

Nevertheless, it appears to me that even according to those who disagree with the Rambam, in any event, if she is in his house and he has relations with her constantly in the manner of a man and his wife – he is liable for it according to the Torah. For behold, it is stated explicitly in the Gemara [Avodah Zarah 36b]: According to the Torah, marriage is by way of a wedding. It is difficult to say that this is not according to the halakhah. Therefore, even though they do not have a wedding, nevertheless, since it is in the manner of marriage, he is lashed for it according to the Torah [as mentioned above, and examine this].

The Rambam wrote that one who has relations with a gentile woman by way of casual zenut—he is liable for her by rabbinic law on account of her being a gentile [and some say also on account of her being a zonah] and they strike him with makat mardut; and if he designated her for himself for zenut—he is liable for her by rabbinic law on account of niddah, and on account of a maidservant, and on account of a gentile, and on account of a zonah. And if he was a kohen—even if he had relations with her by way of a casual occurrence, he is liable for her by Torah law on account of a zonah and is lashed for it. And a gentile woman who has a husband—there is a Torah prohibition, for she is like a married woman, as it is written, "and he shall cleave to his wife" (Genesis 2:24)—and not to the wife of his fellow [Beit Shmuel]. And some say that by Torah law there is no prohibition at all [Rashba, Kiddushin 21b]. And regarding that which the Rambam wrote that regarding a kohen he is liable on account of a zonah, there are poskim who hold that specifically when she has had relations once—then he is liable by Torah law on account of a zonah, but if she has not yet had relations—the name zonah is not upon her. And even though in siman 6 it was explained that regarding a female convert he is liable on account of a zonah, and a kohen who married her is judged like one who married a zonah—this is because "taking" and marriage apply to her, which is more severe [ibid.] as we read regarding it "a zonah he shall not take." And regarding that which the Rambam divides between one who had relations with her casually and one who designated her for himself—this is according to his version of the text in the Shas [ibid.], but according to our version of the text there is no such distinction, and even if he came upon her casually he is liable on account of the four things that were explained. And in the case where he designated her for himself—according to what I wrote in section 2, it is a Torah prohibition. [Regarding the Rambam, it appears that his version of the text was that when the beit din of the Hasmoneans decreed, they decreed regarding yichud, meaning she is designated for him. But "bi'ah" no, meaning in a casual occurrence. And see there in Rashi s.v. "De'oraita" etc., and "by way of marriage" the Rambam would interpret as when he married her by way of actual matrimony, see there and examine carefully].

A Kuti who cohabits with a daughter of Israel—if she is a married woman, he is executed for her, as an Israelite is also liable for the death penalty for a married woman. But if she is unmarried, he is not executed. However, an Israelite who cohabits with a Kuti woman, whether she is a minor of three years and one day or an adult, and whether she is unmarried or a married woman, and even if the one cohabiting is a minor, provided he is nine years and one day old and fit for cohabitation—if he cohabits with her intentionally, she is executed because a stumbling block came to an Israelite through her. This matter is explicit in the Torah, as it is said: "Behold, these caused the children of Israel, through the counsel of Balaam" (Numbers 31:16), and it is said: "And every woman who has known a man by lying with a male, kill" (ibid. 17) [the Rambam]. And even though there is no proof from this verse, for there even those who had not been cohabited with were killed, provided they were fit for cohabitation, because the collective of Israel stumbled in Peor through them, and the reason of "stumbling block" is only found regarding an animal, as it is written: "and the animal you shall kill" (Leviticus 20:15); nevertheless, it seemed to the Rambam that we learned from the war of Midian that when one cohabits with her, her law is as it is there [the Maggid Mishneh], and it is an a fortiori argument from there, for there they judged them so because of the stumbling block of others, and all the more so for her own stumbling block.

Anyone who has relations with a gentile woman in public before the eyes of ten Jewish men—and not specifically that the act of intercourse itself is literally before their eyes, for this is impossible, but rather that he secludes himself with her in one room for the purpose of intercourse—if zealots who are zealous for the honor of the Omnipresent encounter him, they are considered diligent and praiseworthy. This matter is a Halacha LeMoshe MiSinai, and the proof for this is the act of Phinehas with Zimri. Zealots are only permitted to strike them at the time of the act, as with Zimri, but if he separated from her, they may not strike him, and if one killed him, he is executed for it. If the zealot comes to take permission from a beit din to kill him, they do not instruct him to do so even though it is at the time of the act; furthermore, if the zealot comes to kill the one having relations, and the one having relations evaded him and killed the zealot in order to save himself from his hand, the one having relations is not executed for it. Regarding one who has relations with the daughter of a ger toshav, the Rambam wrote that zealots do not strike him, but they strike them with makat mardut. Thus far his words. There is no source for this in the Shas, and it appears his reasoning is that since the essence of this law is learned from Zimri with Cozbi, and there they worshipped Peor as is explicit in the verse, therefore regarding a ger toshav who is not an idolater, zealots do not strike him, and they strike him with makat mardut, and he violates the matters that were explained in section 3.

If zealots did not encounter him and the beit din did not lash him, or if it was in private such that no person knew—his punishment is explicit in the Tradition that it is with kareth, as it is said: "For Judah has profaned the holiness of Hashem which He loved, and has cohabited with the daughter of a foreign god. Hashem will cut off the man who does this, him who is awake and him who answers, from the tents of Jacob, and him who offers an offering to Hashem of Hosts" (Malachi 2:11-12). If he is an Israelite—he shall not have one awake among the sages nor one who answers among the students; and if he is a kohen—he shall not have one who offers an offering to Hashem of Hosts. Behold, you have learned that one who cohabits with her is as if he intermarried with idolatry, as it is said, "and has cohabited with the daughter of a foreign god," and he is called a profaner of the holiness of Hashem [the Rambam]. And our sages, of blessed memory, said that Abraham our forefather stands at the entrance of Gehenna and anyone who is sealed with his covenant, he does not allow him to enter Gehenna; but this one who damaged the holy covenant, he does not recognize him, and he falls into Gehenna [Eruvin 19a].

The Rambam, of blessed memory, wrote: Even though this transgression does not carry a death penalty of the beit din, let it not be light in your eyes; rather, it contains a loss unlike any of the other arayot, for a son from an ervah is his son in every respect and is considered among the community of Israel even though he is a mamzer, but a son from a gentile woman is not his son, as it is said: "For he will turn away your son from following Me" (Deuteronomy 7:4), he removes him from being after Hashem, and this matter causes one to cling to idol worship from which the Holy One, Blessed be He, separated us, and to turn away from following Hashem and to be treacherous against Him. Thus far his words. And this is among the category of arayot, and its law is that he should be killed rather than transgress if it is in public.

A maidservant who was immersed for the sake of servitude is forbidden to a freeman, whether his own maidservant or the maidservant of his fellow. And one who has relations with her, according to the opinion of the Rambam, they strike him with lashes of rebellion, and according to many of the Rishonim, it is a Torah prohibition because of "There shall not be a harlot of the daughters of Israel, neither shall there be a kadesh" etc. (Deuteronomy 23:18), and as I wrote in siman 4, section 3, that the Rambam holds that this prohibition refers to an unmarried Israelite woman, and Onkelos translated it regarding a manservant and maidservant, see there. The early Geonim wrote: One who is caught with his maidservant—they remove her from him, and sell her and distribute her proceeds to the poor of Israel, and they lash him and shave his hair and excommunicate him for thirty days. Thus far his words. And do not wonder, according to the opinion of the Rambam, of blessed memory, how it is possible that one who has relations with an unmarried Israelite woman is lashed by Torah law and one who has relations with a maidservant or a gentile woman is only by decree? For the matter of forbidden relations is a decree of the Torah and we have no revealed reason for all the details. You should know that it is so—for the mother of his mother-in-law is punished by burning, yet the mother of his mother is of the secondary prohibitions of forbidden relations.

The Rambam wrote: Let the transgression of one who comes upon a maidservant not be light in your eyes, for this too causes the son to turn away from after Hashem, as a son from a maidservant is a slave and is not of Israel, and he is found causing the holy seed to be profaned and to be slaves. Thus far his words. And the law of "zealots may strike him" does not apply to him with a maidservant even in public, but with a shifcha charufa—even according to the Rambam there are malkot for this. And who is a shifcha charufa? This is one who is half maidservant and half a free woman and is betrothed to a Hebrew slave—and she receives malkot and he brings a korban whether unintentionally or intentionally.

If the offspring of an Israelite was mixed with the offspring of a maidservant—both are slaves due to doubt and are forbidden to an Israelite woman and to a maidservant. Therefore, we compel the owner of the maidservant and he releases both of them, and he receives a document for their value from both of them. And neither one can say, "Based on doubt, you cannot extract money from me," for the master can say, "If so, I will not give you a release, and why should I lose for nothing" [it appears to me]. And if the father and the master are one—when they grow up they shall release one another, and the father gives the slave as a gift to the son [it appears to me], and we compel them to do so in order that they may be permitted to enter the congregation. And if those born were females—both are doubtful maidservants, and one who comes upon them and they give birth—the offspring are doubtful slaves and we compel their release. But we do not compel the release of the females, for they are not commanded regarding procreation, unless people treat them with licentiousness as is written in Yoreh Deah siman 267. However, to subjugate them is not possible, for each one will say, "I am a free woman," and the burden of proof is upon the one who seeks to extract from his fellow. And if both were his daughters, such as a father who came upon his maidservant and she gave birth to a daughter and his daughter was mixed with her—he has the rights in them that a father has in any case [the Maggid Mishneh]. And if one was a male and one was a female—their law is like two males, for the male is commanded regarding procreation, and consequently, it is necessary to release the female as well [it appears to me].

The wife of a kohen whose offspring was mixed with the offspring of her maidservant—all the laws that have been explained apply to them, and in addition to this, both of them eat terumah, for even the slave of a kohen eats terumah, and they divide one portion at the threshing floor—when both of them come together, but to this one without that one—they do not give. And it is a simple matter that if the slave belongs to another master who is a Yisrael—both of them are forbidden to eat terumah [it appears to me] and both of them are forbidden to become impure to the dead due to the doubt of kehunah. And when they are emancipated, they marry women who are fit for kehunah and they do not become impure to the dead, and if they made themselves impure—they do not receive lashes due to the doubt. And they do not eat terumah, for the slave of a kohen when he is emancipated is like a Yisrael, and if they ate—they do not pay the principal and the added fifth like a Yisrael, for out of doubt we do not extract money, and all the more so they do not take a portion at the threshing floor, and the terumah from their own fields—they sell to certain kohanim and the money is theirs for the reason that has been explained. And regarding the sanctified items of the Temple they have no connection, except regarding the matter that when they offer a sacrifice they can give it to any kohen they wish even if he is not from the fixed watch, according to the law of a kohen who offers his own sacrifices, and therefore even though they cannot offer it themselves—nevertheless the men of the watch cannot compel them to give it to them to offer for the reason that has been explained. And so too the bechor in their herd does not need to be given to a kohen, but rather it shall graze until it becomes blemished and they eat it in its blemish, and they are exempt from giving the foreleg, the cheeks, and the abomasum for the reason that has been explained, and we impose upon them all the stringencies of kohanim and all the stringencies of Yisraelim. And all the laws that were explained regarding the mixture of a son and a slave—such is the law regarding the mixture of the offspring of a Yisrael with the offspring of a Cuthite in all the laws pertaining to this, and we immerse both of them for the sake of conversion and each of them is a doubtful convert and they are forbidden to a mamzeret, and if they are females—they are forbidden to a kohen, and also regarding a maidservant the law is so.