Siman 4

The Rambam, of blessed memory, wrote in the first chapter of Ishut, halacha 7: Before the giving of the Torah, a man would meet a woman in the marketplace; if he and she desired, he would give her her payment, engage in relations with her by the road, and depart, and this is the one called a kadeshah. Once the Torah was given, the kadeshah was forbidden, as it is said: "There shall not be a kadeshah from the daughters of Israel." Therefore, anyone who has relations with a woman for the sake of zanit without kiddushin receives lashes from the Torah, because he had relations with a kadeshah. Thus far his words. And this is not related to one who rapes or seduces, for whom the Torah obligated the payment of a fine, and in a case where there is an obligation of lashes, there is no monetary obligation, for the Rambam already explained this in the second chapter of Na'arah and in the Sefer HaMitzvot [mitzvah 355], that rape and seduction occur by chance when he seduced her with words, and she is not included in the category of kadeshah and he does not receive lashes for this. For a kadeshah is one who prepared herself of her own will or the will of her father for anyone who comes to have relations with her, and in this there is no fine but rather lashes, and regarding this it is said: "Do not profane your daughter to make her a harlot," and it will be explained with the help of Heaven in siman 177. And so it is explained in the Sifrei, and most of the poskim agree with him in this. And so must be explained that which is written, "And there shall not be a kadesh from the sons of Israel"—meaning that the male shall not prepare himself for any woman who seeks him to have relations with her. However, Onkelos interprets this verse as referring to a bondsman and bondwoman, and such is the opinion of the Sefer Mitzvot Gadol, the Ramban, and the Rashba, of blessed memory. And the Rambam, of blessed memory, holds that the prohibition of a bondsman and bondwoman is by the words of the scribes, as he wrote in the twelfth chapter of Issurei Biah [see there chapter 15 regarding what the Kesef Mishneh wrote in the name of Rabbi Avraham the son of the Rambam, and it requires great study, and examine it closely].

He further wrote there in chapter 15 that all those liable for violating negative commandments—whether among those disqualified from the congregation or those disqualified from the priesthood—are not liable for lashes unless he betrothed and cohabited, but if he betrothed and did not cohabit or cohabited and did not betroth—he does not receive lashes, except for a Kohen Gadol with a widow, see there. The language of the Torah proves this, for regarding all those liable for negative commandments it is written "he shall not enter the congregation of Hashem," and entering the congregation is only through kiddushin [Kesef Mishneh in the name of the Ra'ah]. And the proof for this: for regarding arayot it is written "do not draw near to uncover nakedness" because with arayot kiddushin does not take effect, and if the Torah's intent also regarding those liable for negative commandments was without kiddushin, it should have also written the language of uncovering nakedness which implies mere cohabitation. Nevertheless, most of the poskim disagree with him, for the language of "taking" is not written as it is regarding kiddushin, and "shall not enter" is a language of cohabitation. And so it is proven from the sugyot of the Shas, and also the Rambam himself in chapter 1 of Na'arah is proven to hold so [for the answer of the Kesef Mishneh in the name of the Ra'ah is astonishing as I wrote in section 1].

<b>The prohibitions of intercourse are of five types:</b> arayot subject to karet, those subject to death by beit din, those subject to negative commandments, those subject to positive commandments, and those prohibited by the words of the scribes. The prohibitions of arayot will be explained in siman 15. <b>And those subject to negative commandments are:</b> a mamzeret to a male Israelite, and a female Israelite to a mamzer, and a female Israelite to an Ammonite or Moabite, and a female Israelite to one with crushed testicles or a severed member. And a divorcee who married another—she is prohibited to return to her first husband, and a yevama to a stranger when she has not yet performed chalitzah or yibbum. And Netinim—according to the opinion of the Rambam their prohibition is by the words of the scribes, and some say their prohibition is from the Torah, and it will be explained before us what Netinim are. And an Israelite who comes upon a gentile woman by way of marriage, or a gentile who comes upon a female Israelite by way of marriage—according to the opinion of the Rambam in chapter 12 of Issurei Biah it is from the Torah and regarding this it is said "you shall not intermarry with them," and according to the opinion of the Tur this is only regarding the seven nations when they have converted. And an Israelite who comes upon a gentile woman—it is a law given to Moses at Sinai that zealots may strike him as will be explained in siman 16, and there are further prohibitions in this as written there. And a slave who comes upon a female Israelite or an Israelite who comes upon a maidservant—according to the opinion of Onkelos and several of our teachers they are liable for lashes, and regarding this it is said "there shall not be a kadesh... and there shall not be a kedeshah," and according to the opinion of the Rambam there their prohibition is by the words of the scribes. And an Israelite who comes upon an unmarried female Israelite in zanat—according to the Rambam it is from the Torah as written in section 1. And regarding kohanim there are four more prohibitions of negative commandments and they are: a widow to a Kohen Gadol, and a divorcee or a zonah or a challalah even to an ordinary Kohen, and it will be explained in siman 6. And a chalutzah is prohibited to a Kohen by the words of the scribes. <b>And these are those subject to positive commandments:</b> an Egyptian and an Edomite of the first generation and second generation, both males and females, and a non-virgin to a Kohen Gadol, for regarding an Egyptian and an Edomite it is written "the third generation shall enter for them into the congregation of Hashem"—by implication the first and second generation shall not, and a negative commandment derived from a positive commandment is a positive commandment. And so too a non-virgin to a Kohen Gadol is a negative commandment derived from a positive commandment, as it is written "and he shall take a woman in her virginity"—a virgin and not a non-virgin. And so too one who marries his yevama, if he or one of the brothers comes upon the co-wife they transgress a positive commandment, as the Rambam wrote in chapter 1 of Yibbum. And so too a woman whose husband warned her and she was secluded and afterwards her husband came upon her—he transgresses a positive commandment, and if she certainly committed adultery—he transgresses a negative commandment, and so too she is prohibited to the paramour as the Rambam wrote in chapter 2 of Sotah. [And the Rambam in chapter 1 of Ishut did not count several of those that have been explained, and see there in Lechem Mishneh and Mishneh LaMelech].

Who is the mamzer mentioned in the Torah? This is one born from a prohibited relationship of those liable for karet or execution by beit din, except for one born from a niddah—even though she is among those liable for karet—nevertheless the offspring is flawed but is not a mamzer even rabbinically. And his flaw is only that his family is flawed and corrupted and brazen-faced, but there is no disqualification in him even for the priesthood [Acharonim], and if it is a daughter—she is permitted to marry a kohen. But other prohibited relationships—whether he had relations with her unintentionally or intentionally, or by coercion or by will—the offspring is a mamzer, and both males and females are forbidden forever, as it is said: "Even to the tenth generation shall they not enter among them," meaning: forever—and not specifically the tenth generation, and the proof for this matter is that regarding an Ammonite and a Moabite it is also written "tenth generation" and the verse concludes "forever" [Rashi Yevamot 78b]. And see in siman 159 regarding the law of one born from a yevama to an outsider.

What are Netinim? The Rambam, of blessed memory, wrote at the end of chapter 12 of Issurei Biah: One who converts from the seven nations is not forbidden by the Torah from entering the congregation. And the matter is known that none of them converted except for the Gibeonites, and Yehoshua decreed upon them that they be forbidden from entering the congregation, both males and females, and he only forbade them during the time that the Temple exists, etc., and they are called "Netinim" because he gave them over to the service of the Temple. David came and decreed upon them that they shall never enter the congregation, even during the time when there is no Temple, etc. And why did he and his beit din decree upon them? Because he saw the insolence and cruelty that was within them at the time they requested the seven sons of Saul, the chosen of Hashem, to hang them, and they killed them and did not have mercy on them. Thus far his words. And the Rambam, of blessed memory, holds that the primary prohibition of Netinim is not from the Torah, and such is the opinion of Rashi, of blessed memory, and the Meor, and the Rambam also holds that the seven nations after their conversion are permitted to enter the congregation, [for he ruled according to the first resolution of Rava (ibid. 76a) because the sugya (ibid. 78b) disagrees with the latter version of Rava].

But many of our teachers disagree with him and hold that the seven nations are forbidden by the Torah even in their conversion, and regarding them it was said, "You shall not intermarry with them"; and only those who were present at the time Israel entered the Land of Israel were forbidden by the Torah, but their descendants are permitted by the Torah in their conversion, for the Scripture did not forbid them forever nor did it count generations for them, and Yehoshua and David decreed upon them forever. According to this, the prohibition of Netinim from the Torah applies to those nations who converted at the time of their entry into the Land, and for future generations their prohibition is by words of the Scribes from Yehoshua and David and their beit din, and this is the opinion of the Ramban and the Rashba, of blessed memory [the Maggid Mishneh]. And there are some of our teachers who hold that by the Torah they are forbidden forever, and David decreed servitude upon them, and that which he decreed upon them more than upon all other disqualified individuals was because they are an entire nation [Tosafot at the beginning of chapter "Almanah L'Kohen Gadol" and the Ran]. In any event, according to all the poskim they are forbidden, and their prohibition is a perpetual prohibition, whether males or females, and therefore throughout the entire Shas we learn of mamzerim and Netinim because they are equal in their prohibition.

Ammonites and Moabites are forbidden, and their prohibition is an eternal prohibition. And it is a Halacha LeMoshe MiSinai that only the males were forbidden, but their females are permitted upon their conversion, and thus the tradition arrived: "Ammonite" and not an Ammonitess, "Moabite" and not a Moabitess, for the Torah forbade them "because they did not meet you with bread and with water," and it is the way of a man to meet and not the way of a woman. And it is also written that they hired Balaam to curse Israel, and the males did this and not the females. However, the essence of this law is a Halacha LeMoshe MiSinai, and therefore we do not expound "mamzer" and not a female mamzer, "Egyptian" and not a female Egyptian, for one could cast doubt upon the reasons, as they should have met Israel with bread and water, men toward men and women toward women, and the daughters of Moab caused the children of Israel to stumble in harlotry; but thus the tradition arrived to Moshe our teacher from Sinai [see there in Yevamot 76b and in the Rambam chapter 12 of Issurei Biah].

An Egyptian and an Edomite, both males and females, the first generation and the second generation—are forbidden to enter into the congregation of Israel, and the third generation—is permitted, as it is said: "The children that are born unto them shall enter into the congregation of the Lord in the third generation." Since it is written, "The children that are born unto them," we count the generations from themselves; that is, the one who converted is the first, his offspring is the second, and his offspring's offspring is the third and they are permitted in the congregation. Therefore, even though in the context of generations the person himself is generally not counted in the generations—as was said to our father Abraham regarding those who descended to Egypt, "And the fourth generation shall return hither," and Jacob was among those who descended and the generations were counted from his offspring: Judah, Perez, Hezron, and Caleb his son was among those who entered the land, for there the term "generation" refers to those who emerge from them, as it is written in Joshua (22): "And it shall be, when they say so to us and to our generations in time to come," etc., and likewise it is written at the end of Job: "And he saw his sons and his sons' sons, four generations"—nevertheless, since it is written "unto them," they themselves are also included in the generation, and such is the language of the Gemara in Gittin 88. An Egyptian woman who was pregnant and converted—her son is the second generation. An Egyptian of the second generation who married an Egyptian woman of the first generation, or an Egyptian of the first generation who married an Egyptian woman of the second generation—the offspring is the second generation, for we follow the inferior of the two of them. Since it is written, "The children that are born unto them," the verse makes it dependent upon birth, and there is no birth without a father and a mother; therefore, we require that from both sides it shall be the third generation. This is the opinion of the Rambam, of blessed memory. However, there are some of our teachers who hold that we follow the mother, for the Merciful One made it dependent upon birth and the mother is the one who gives birth; therefore, if an Egyptian of the first generation married an Egyptian woman of the second generation—the offspring is permitted to enter the congregation. And that which will be explained, that we follow the more flawed of the two of them—that is regarding two different nations and not within one nation. And in the Yerushalmi it is implied like the Rambam.

An Ammonite convert who married an Egyptian woman and she gave birth to a male—the offspring is an Ammonite and is forbidden from the congregation forever. And if she gave birth to a female—she is an Egyptian and is forbidden until three generations. And an Egyptian convert who married an Ammonite female convert, the offspring—whether male or female—is an Egyptian and is forbidden until the third generation. And why do we not say that when the offspring is male, he is an Ammonite like his mother and forbidden forever? For in any case—if we follow after his mother, behold he is completely fit, for she is not flawed at all and is like an Israelite woman. But when she is an Ammonite gentile and gave birth to a son—he is an Ammonite and forbidden forever. If she gave birth to a daughter—she is permitted, for the offspring of a gentile woman is like her, as will be explained. And some say that the daughter is an Egyptian, and she is not similar to every gentile woman, and we follow after the flawed one. And the main point is according to the first opinion. And all other nations after they have converted—their law is like an Israelite immediately. And a great rule the sages, of blessed memory, said: that regarding the nations, follow after the male, meaning: seed that was born from two nations in their gentility—the seed follows after the male, and therefore Egyptian and Edomite gentiles who married an Ammonite gentile woman and she gave birth to a son or daughter—the offspring is Egyptian and Edomite, and when he converts he will be permitted in the third generation. And an Ammonite gentile who married an Egyptian or Edomite gentile woman—the offspring is an Ammonite, for when he is male he shall be forbidden forever, and a female is permitted immediately when she enters the religion of Israel. And when they converted and gave birth—we follow after the flawed one of the two of them, as has been explained. And one should not say why is it so, for is there not kiddushin and no transgression? However, it is a decree of the Torah, for it is written "to them"—follow after their disqualification.

A kohen or a Levi who married an Israelite woman—the offspring is a kohen or a Levi. And an Israelite who married a daughter of a kohen or a daughter of a Levi—the offspring is an Israelite, for the offspring follows the father, as it is written: "by their families, by their fathers' houses." And a fit Israelite who married an Israelite mamzeret, or an Israelite mamzer who married a fit Israelite woman—kiddushin takes effect with them, for with those liable for negative commandments kiddushin takes effect and the offspring is a mamzer, for in a place where there is kiddushin and there is a transgression—the offspring follows the flawed party, even if only his mother is flawed, as it is written regarding a mamzer: "even to the tenth generation shall none enter for him into the congregation of Hashem," and this word "for him" is superfluous, and we expound that he follows his disqualification even after his mother [Tosafot Yom Tov], and from this we learn for other those liable for negative commandments. And from where do we know that kiddushin takes effect with those liable for negative commandments? As it is written: "If a man has two wives, the one beloved and the other hated," and is there one who is hated before the Omnipresent? And what does it matter to us if the husband does not love her? Rather, what is "hated"—that she is hated in her marriage, for they committed a transgression, and the verse says "if there be" [ki tehiyena], a language of havayah. And all the more so that with those liable for positive commandments kiddushin takes effect, but with those liable for karet and deaths by beit din kiddushin does not take effect, and one who has relations with one of these liabilities—the offspring is a mamzer. But from those liable for negative commandments and those liable for positive commandments—the offspring is not a mamzer unless the father was a mamzer or the mother was a mamzeret. And a ger [in ancient days]—is permitted to a mamzeret, for regarding a mamzer it is written "shall none enter for him into the congregation of Hashem" and the congregation of gerim is not called a "congregation," and nevertheless, even though she was married permissibly, nevertheless the offspring is a mamzer, for he follows the flawed party. And all the more so a mamzer who married a giyoret that the offspring is a mamzer, and such is the law regarding a Netin and a Netinah and other disqualified persons.

A convert who married a daughter of Israel, or an Israelite who married a female convert—the offspring is fit as a complete Israelite, and is forbidden to a female mamzer. And a mamzer may marry a female mamzer, and likewise a mamzer may marry a female Netinah, or a Netin may marry a female mamzer—and the offspring are mamzerim, for a mamzer and a Netin have the same law. In what case is this said? When both of them are certain, but if one is certain and the second is a doubtful mamzer—they are forbidden to marry one another. And likewise the doubtful ones are forbidden to fit Israelites, and even if both of them are doubtful—they are forbidden to marry one another, lest one of them is fit and the second is disqualified. And even though from the Torah the doubtful ones are permitted in everything, as it is written: "A mamzer shall not enter the congregation of Hashem," and we expound: a certain mamzer—he shall not enter, but a doubtful mamzer—may enter the congregation. And likewise, it is into a certain congregation that a mamzer shall not enter, but into a doubtful congregation—he may enter. Nevertheless, from the authority of the rabbis they forbade them, for they made a higher standard in matters of lineage, and the offspring are mamzerim from the authority of the rabbis. And how is one a doubtful mamzer? For example, one who was born from a doubtful mixture, where his father cohabited with a woman who was betrothed with doubtful kiddushin or who was divorced with a doubtful get, and she is a doubtful married woman. And likewise a yevamah who did not wait three months after her husband and underwent yibbum and gave birth at seven months, and it is not known if the offspring is a nine-month child of the first or a seven-month child of the latter, and this offspring is fit in any case; however, if afterwards the yavam returned and cohabited with her and she gave birth—the offspring is a doubtful mamzer, for perhaps the first offspring was a nine-month child of the first, and the yavam married the wife of a brother who has children and she is subject to karet, such that the offspring from her is a mamzer. And a doubtful mamzer is forbidden to an Israelite woman and forbidden to a female mamzer, and he shall marry a female convert or a maidservant who was liberated, for a liberated slave has the law of a convert in every matter. And likewise there is another mamzer from the authority of the rabbis: for example, a woman who heard that her husband died and married another and the husband was alive, and her first husband cohabited with her; even though she is permitted to him by the law and the kiddushin of the second are not kiddushin at all since she was a married woman—nevertheless the rabbis decreed that she must leave the first as well, and the offspring even from him is a mamzer. And nevertheless, from secondary prohibited relations the offspring is not a mamzer even from the authority of the rabbis, and see what I wrote in siman 6, section 21.

And know, that this which has been explained, that a ger who married a daughter of Israel, the offspring is forbidden to a mamzeret—this is the opinion of the Rambam and the Tur. And some say that since there is kiddushin and there is no transgression, the offspring follows his father and is permitted to a mamzeret. And even though this is not a fixed rule, for behold, a ger who married a mamzeret, where there is kiddushin and no transgression, and nevertheless the offspring is a mamzer, it is different there because the Torah included that he follows his disqualification, as I wrote in section 10; but in this case, from where do we know it? And there is one who says the reason is that it is no worse than a Cuthite who had relations with a daughter of Israel, where the offspring is kosher, as will be explained, and is forbidden to a mamzeret [the Maggid Mishneh], and this is not a sufficient reason, for behold, a Cuthite who has relations with a married woman, the offspring is kosher as will be explained, while if he [an Israelite] has relations with a married woman, the offspring is a mamzer. Furthermore, the Rambam himself ruled regarding a ger who married a giyoret and they fathered a son, that he is permitted to a mamzeret, and so too his son's son until the name of his geryut is forgotten from him, and afterwards he will be forbidden to a mamzeret; if so, what difference is there between one who married a giyoret and one who married an Israelite? And it appears to me that their reason is that we see that regarding matters of entering the congregation, the Torah was stringent to follow the mother as well, such as an Israelite who married a mamzeret, where the offspring is a mamzer and is forbidden to enter the congregation; and all the more so to be stringent upon him that he should not marry a mamzeret when his mother is an Israelite, for we also follow the mother. And in this, it is not relevant to say "follow their disqualification," for behold, he is not disqualified and is like a complete Israelite, except that he is not called "congregation," and therefore when his mother is an Israelite, he is called "congregation" and is forbidden to a mamzeret. [And see the Sha'ar HaMelech and the Avnei Miluim and the Yam Shel Shelomo, Kiddushin, chapter 4, siman 6.]

The sages taught in the Mishnah: [Kiddushin 66] Anyone with whom she cannot have kiddushin, but she can have kiddushin with others—the offspring is a mamzer. And who is this? One who comes upon any of the arayot mentioned in the Torah. And anyone with whom she can have kiddushin neither with him nor with others—the offspring is like her. And who is this? The offspring of a maidservant or a gentile woman; for an Israelite who comes upon a maidservant or a gentile woman—the offspring is like her and is not an Israelite, but rather a gentile or a slave. And a gentile or a slave who comes upon a daughter of Israel, whether she is unmarried or a married woman—the child is kosher, but is blemished for the priesthood. This means that if the offspring is a female—she is disqualified from the priesthood, for it is a kal v'chomer from a widow to a Kohen Gadol, whose daughter is disqualified from the priesthood, and certainly in such a case. And there are some of our rabbis who are uncertain about this, as prohibitions of the priesthood are different. And the Rambam qualifies her for the priesthood, and therefore, as a matter of law, if she married a Kohen—we do not remove her from him [Beit Shmuel], and the offspring is a safek challal [Chelkat Mechokek]. And do not wonder: why is it that for an Israelite who comes upon a married woman the offspring is a mamzer, yet for a gentile or a slave the offspring is not a mamzer? For thus the Torah decreed, as it is written, "A man shall not take his father's wife," and adjacent to it, "A mamzer shall not enter," and it was received through tradition: just as a father's wife is one with whom kiddushin does not take hold for him but kiddushin does take hold for others, so too all the arayot; this excludes a gentile and a slave, with whom kiddushin does not take hold at all [Yevamot 45b]. And since the offspring is attributed only after her and not after him, his cohabitation is not considered at all such that it should be judged with the law of mamzerut because he came upon a married woman.

And from where do we know that the offspring follows her? For it is written regarding a Hebrew slave when his master gives him a Canaanite handmaid, "the woman and her children shall belong to her master" – consequently the offspring is attributed after her. And a slave who comes upon a daughter of Israel – the offspring is like her, for a slave has no lineage. And so too with a Cuthean and an Israelite woman or an Israelite and a Cuthean woman, for it is written, "And 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, for he will turn away your son from following Me," and since it is not written "for she will turn away," learn from this that this is what it means: your daughter you shall not give to his son, for the husband of your daughter will turn away your son whom your daughter shall bear to him from following Me, but it does not refer to "his daughter you shall not take for your son," for one who comes from a Cuthean woman is not called your son but her son, and therefore regarding her son there is no concern of turning away, and the entire prohibition is committed at the initial moment when he removes his seed from the wings of the Shekhinah, but after he is born his turning away is nothing for he is a complete Cuthean [Ran, end of chapter 3 of Kiddushin]. And that which is written, "and you take of their daughters for your sons, and their daughters go astray after their gods and make your sons go astray after their gods" – this refers to the Israelite husband who marries her [Tosafot Yom Tov, chapter 2 of Yevamot].

Therefore, a gentile or a slave who cohabited with a mamzeret—the offspring is a mamzer; and a mamzer who cohabits with a gentile woman—the offspring is like her, and when he converts, he is a complete Israelite. Similarly, if he cohabited with a maidservant—the offspring is a slave; once emancipated, he is a freeman. Consequently, they permitted a mamzer to marry a maidservant ab initio, provided she accepted the commandments and immersed for the sake of servitude, in order to permit his children, who shall be emancipated and then permitted to an Israelite woman. However, a mamzeret is forbidden to a slave, for the children would still be mamzerim [Beit Shmuel]. And some say she is permitted [Tosafot Gittin 41a]. Therefore, a gentile who cohabited with his mother or his sister and fathered a son from her, and he converted—that son is permitted to enter the congregation, for while he was a gentile the status of mamzer did not apply to him, as I have written. And if he did not convert and cohabited with a daughter of Israel—the offspring is kosher, for he is no worse than other gentiles [Chelkat Mechokek]. And an Ammonite convert who married a mamzeret—we follow the defect of both of them, and the offspring is an Ammonite mamzer [ibid.]. And we have already written that a convert and an emancipated slave are permitted to a mamzeret, but nevertheless, it is forbidden to increase mamzerim in Israel, for his children will be mamzerim. And a maidservant is forbidden to a convert, for he is warned regarding all the commandments [Beit Shmuel], and that which we permitted a mamzer to marry her—this is because of the remedy for the offspring, but the convert should marry a free woman. And an Ammonite convert—it is possible that it is permitted for him to take a maidservant [see Beit Shmuel]. And that which we wrote, that a convert who married a female convert, the offspring is permitted to a mamzeret until the name of his conversion is forgotten from him—this is according to the opinion of the Rambam. And some say that the measure is ten generations, and from here onwards it is forbidden, for the name of his conversion has already been forgotten from him, and they might come to say that an Israelite may marry a mamzeret.

A kouti who comes upon a shifcha who immersed for the sake of servitude—the offspring is like her and is a slave, for she is obligated in mitzvot like a woman, and the law is like a kouti who comes upon a daughter of Israel. And similarly, a slave who immersed for the sake of servitude and comes upon a koutit—the offspring is like her. But a kouti who comes upon a koutit shifcha before she immersed, or a kouti slave who comes upon a free koutit—the offspring follows him, for among the nations one follows the male as has been written, and as long as they have not immersed, they are like koutim.

One who is half-slave and half-free who cohabits with a married Jewish woman—that offspring has no remedy, because there is mixed within him a side of mamzerut and a side of fitness; therefore, he is forbidden even to a maidservant, and his children are like him forever, and he may only marry a female convert. And if it was a daughter—she may marry a male convert, and the children are mamzerim as has been explained. And there are those who say that he is a complete mamzer and is permitted to a maidservant. And if she was unmarried—the offspring is fit, for even from the side of his half-servitude the offspring is like her as I have written. And it appears to me that according to what the Tur and the Shulchan Aruch wrote in Yoreh Deah siman 267, section 62, that regarding one who is half-slave and half-free, according to that which we hold that we compel his master to manumit him, the status of slave is not upon him and his law is like one who is withheld a writ of manumission—that offspring is a certain mamzer. And I am wondered at the Tur and the Shulchan Aruch who wrote this law here, but the Rambam, of blessed memory, who wrote this law, it is well, for he follows his reasoning in the fourth chapter of Chovel that as long as he has not been manumitted his law is like a complete slave in his half, and we have already explained this in Choshen Mishpat siman 424, section 6, see there; however, for the Tur and Shulchan Aruch it is difficult. And it is possible that they hold that regarding the matter of prohibition he is like a complete slave in his half and not regarding the matter of money, and according to what will be explained that a manumitted slave before they have written for him a writ of manumission is forbidden to a Jewish woman, it is explicitly proven so, that regarding the matter of prohibition he is like a complete slave.

A slave who was immersed for the sake of slavery is forbidden to a Jewish woman. And a Jewish man is forbidden to a female slave—whether she is his own or whether she belongs to another; and according to Onkelos and several poskim, it is a Torah prohibition derived from "There shall not be a kadesh," while according to the Rambam its prohibition is by words of the scribes, as has been written. But after he has freed him and written him a get shichrur and immersed him [the Gra]—he is like a Jew in every regard, except that he is permitted to a mamzeret and other disqualified members of the congregation. If his master declared him ownerless—he has gone out to freedom but requires a get shichrur, as has been written in Yoreh Deah there. And as long as he has not written him a get shichrur—he is not permitted to a daughter of Israel. And if his master placed tefillin on him, or if he was a shaliach tzibbur and he called the slave to ascend to the Torah, or if he married him to a Jewish woman, for all these things are not the way to do for a slave and are a sign that he released him to freedom—nevertheless, he is not permitted to the daughter of Israel until he writes him a get shichrur. And nevertheless, in all these cases, if he betrothed a woman—we are concerned for his kiddushin as a stringency and not as a leniency, for we are concerned that since he released him to freedom, perhaps he granted him a get shichrur through another. And some say that even if his master did not marry him off, but he himself married her before his master—we are concerned for the kiddushin, and all the more so if he married his own female slave that we are concerned for the kiddushin, and in Yoreh Deah there this was explained, see there. And the law of one who is half female slave and half free woman who was betrothed—is explained in siman 44, see there.

As has been explained, there are four nations that are forbidden from entering the congregation of Israel: the Egyptian, the Edomite, the Ammonite, and the Moabite. And all other nations, when they convert and take upon themselves all the mitzvot in the Torah—they are like Israel, as it is said, "As for the congregation, there shall be one statute for you and for the stranger who sojourns with you." And our Sages, of blessed memory, said that from the time Sennacherib arose and confounded all the nations, and these four nations were also nullified, and it is not known where they are—all nations were permitted. This is the wording of the Rambam, of blessed memory, at the end of chapter 12 of Issurei Biah: When Sennacherib king of Assyria arose, he confounded all the nations and mixed them with one another, and exiled them from their places, and these Egyptians in the land of Egypt are other people, and likewise the Edomites in the field of Edom, and since the four forbidden nations were mixed among all the nations of the world who are permitted—everything was permitted, for anyone who separates from them to convert is presumed to have separated from the majority. Therefore, when a convert converts in this time [in a place where there is royal permission] in any location, whether an Edomite, an Egyptian, an Ammonite, a Moabite, a Cushite, or from the rest of the nations—both males and females—they are permitted to enter the congregation immediately. Thus far his words. And the Rosh, of blessed memory, holds that an Egyptian is forbidden even now, for the Egyptians returned to their place, as the verse gave them a set time, as it is written in Ezekiel: "At the end of forty years I will gather the Egyptians" etc. [see the Gra, subsection 18].

And one must ask regarding this, since the permission regarding these four nations is because "whatever separates, separates from the majority," this is well enough when he uproots from his home and marries the Israelite woman, but when she comes to his home and he marries her – let us say "whatever is fixed is considered as half and half" and she should be forbidden to him? For it can be said that from the Torah, since all the nations have become mixed with one another and each one of them is a doubt – they are completely permitted, and the doubts are permitted like the case of a doubtful mamzer that we have written, and they are only forbidden rabbinically, and therefore they were not concerned for this [and so wrote the Sha'ar HaMelekh that from the Torah they are completely permitted, and see in the Avnei Miluim]. And perforce one must say so, for if not so, regarding a person it is not relevant to say "whatever separates, separates from the majority," for behold he returns to his home, and for each and every act of intimacy in his home it would be "fixed" and considered as half and half [see Tosafot Ketubot 15a s.v. "dilma" and in Nazir 12a]. And that which they separated from the Ammonites in the days of Ezra as is written at the end of Nehemiah – this is because in the days of Ezra they were still known, as is written there "Tuviah the Ammonite" [see the Rash at the end of Yadayim].

Our teacher, the Beit Yosef, wrote in section 14: A woman whose husband was in the provinces overseas, and he remained there for more than twelve months, and she gave birth after twelve months – the child is a mamzer, for the fetus does not remain in its mother's womb for more than twelve months. And there is one who says that he does not have the status of a mamzer, and since it is a dispute – he is a doubtful mamzer. Thus far his words. And our teacher, the Rema, wrote on this: But within twelve months there is no concern, for we say that it remained that long in its mother's womb. And specifically when they did not see an unseemly thing in her, but if they saw an unseemly thing in her – we do not say that it remained that long and we are concerned for it. Thus far his words. And the first opinion is the opinion of the Rambam, of blessed memory, and the "one who says" is the opinion of the Ba'al HaHalachot Gedolot which the Rosh brought in the fourth chapter of Kiddushin, see there.

And behold, this is certain: when the husband is before us and says that the child is not his, he is believed in every case, as will be explained, for the father is believed. And if the husband says that he came to her on one night, certainly even the Rambam admits that he is believed in every case. And even regarding this, it can be said that they do not disagree, for the Rambam is dealing with a case where we did not examine her as to what she says; in that case, after twelve months, we do not attribute it to a remote occurrence that he came during the night and no man knew of it. And the Bahag is dealing with a case where she says so, that he came to her; in that case, because of the presumption of her fitness and so as not to disqualify the child, we attribute it even to a remote reality. And within twelve months there is no concern at all to such an extent; nevertheless, since we find in the Gemara that they performed an act to declare it kosher at twelve months, we learn from this that it can be so, and therefore it is not in our power to be concerned about this. However, if they saw in her an ugly matter and the presumption of her fitness was weakened, we do not attribute it even at twelve months, since this too is an uncommon matter, and especially since there are some of our teachers who ruled not like that passage in Yevamot, and even though most of the poskim rule so, nevertheless, in a place where the presumption of her fitness was weakened, we certainly are concerned. And nevertheless, it appears to me that to make the child a doubtful mamzer we should not be concerned when she says that he is kosher; and from the source of the law of our teacher, the Rema, it is only to forbid her to her husband, but to disqualify the child, from where do we have that she should not be believed? For behold, regarding the child there is a double doubt: perhaps it is from her husband, and if you say it is not from her husband, perhaps it is from a gentile and the child is kosher. And so it appears to me is the opinion of the great later authorities; and that which our teacher, the Rema, wrote, that we are concerned for it—that is only not to establish him as certainly his son, but not to make him a doubtful mamzer. And it is a simple matter that at ten months and slightly more, there is no concern at all even without her statement, for this matter is common.

However, our teacher, the Beit Yosef, holds that the Bahag validates even without her statement, and according to this, the primary ruling is like the opinion of the Rambam, and we do not suspend judgment based on a remote reality that is not common at all. Nevertheless, he was concerned for the stringency that he is not a certain mamzer to permit him to a female mamzer, but rather a doubtful mamzer; and also without this, it is impossible to make him a certain mamzer, for perhaps he is from a Cuthean, as I have written. And according to this, in a case where "they saw an unseemly matter in her," it is possible to be concerned for the offspring as a doubtful mamzer when she does not say that he is fit, and the words of our teacher, the Rema, are settled according to their plain meaning. Nevertheless, in a place where the majority are Cutheans, it appears to me that he is not a doubtful mamzer in such a case and we follow the majority, and only if the offspring is a daughter is she forbidden to the priesthood, as I have written in section 13; but at ten months and slightly more—there is no concern at all, for this matter is common, as I have written].

Our teacher, the Rema, wrote: A woman who became pregnant from her husband at the end of Sivan and gave birth at the beginning of Kislev, even though there are only five months between them – we are not concerned regarding her son to say that she was pregnant prior to this, for the months are the cause and he is a seven-month birth. And even if she miscarried in Tishrei and they heard the fetus crying – we are not concerned that she was pregnant prior to this, for it is possible for it to cry at five months, but it is a miscarriage and is not fit to be viable. Thus far his words.

According to this, one day at the end of a month when she conceived and one day at the beginning of a month when she gave birth are considered as two months. And even though it is implied from the Rambam in several places (such as in the first chapter of Yibum, and in the second chapter of Rotzeach, and in the first chapter of Evel) that nine full months from day to day are required for it to be a viable birth, and according to the words of our teacher, the Rema, seven months and two days are sufficient—nevertheless, it can be said that even though regarding several laws we are concerned for stringency to say it is not viable except in full months, and sometimes even for leniency in matters of rabbinic law such as mourning and the like, nonetheless, to remove a child from the presumption of his father's status and to remove a woman from her status of fitness, we stand upon the essential law. Furthermore, it is explicitly stated in the Gemara that even if we say that one who gives birth at nine months does not give birth in partial months but only in nine full months, nonetheless, one who gives birth at seven months gives birth in partial months; and since one who gives birth at seven months may do so in partial months, it is sufficient even with one day at its beginning at the end of a month and one day at its end at the beginning of a month, and the Rambam was speaking of one who gives birth at nine months. However, for us, even at nine months in such a case—for instance, if she conceived one day at the end of the month of Nissan, and at the beginning of Kislev she gave birth to a viable child—behold, she and the child remain in their status of fitness even if we say that at nine months she does not give birth in partial months, because we say this child is a seven-month child who delayed, as in the case of one who gave birth at twelve months in section 21. And even if we say that for other laws we do not concern ourselves with the possibility of delay, nonetheless, to maintain the woman and the child in their status of fitness, everyone agrees to this as is written there. Therefore, as a matter of law—even though there are some of the great authorities who hesitate regarding this law—nonetheless, many of the great later authorities took as the primary view the ruling of our teacher, the Rema. And it is a clear matter that to establish the woman and the child in their presumption of fitness, we attribute it to such a factor even if we would not attribute it to this regarding other matters, and the proof is from the case of delay in section 21, and from several other laws that will be explained in this siman. Therefore, it is not only necessary to say so when the mother says she is clean and pure, but even if she died and said nothing, we maintain the presumption that the son is the son of this man for all matters. However, that which he wrote that if she miscarried in Tishrei and they heard the child cry we are not concerned that she was pregnant prior to that, and according to this it is possible for it to cry at three months and some days—regarding this many disagreed, for certainly this is far from reality, and therefore if it happened in such a case, certainly there is reason to be concerned for the woman's breach of conduct, and specifically if her husband is a kohen who must be concerned not to profane his seed. And so too with a woman who is extremely loose, there is reason to be concerned also for the child in the previous law as well, and everything is according to the perception of the eyes of the beit din. And know, that the great authorities agreed that this which our teacher, the Rema, validated at five months and two days—this is even if she were a virgin. And even though a woman does not conceive from the first act of intercourse—this is when immediately upon approaching her, her husband performed a complete act of intercourse and separated from her; but not according to the habit in this time when they draw close together before the complete act of intercourse, and perhaps he had initial contact with her beforehand and removed her virginity without her realizing, and afterwards had intercourse and she conceived. Furthermore, this is only according to the majority, but there is a minority who conceive from the first act of intercourse, and if so, it is not possible to remove her and her son from their presumption of fitness, and specifically if she claims with certainty.

The Rambam, of blessed memory, wrote in chapter 15 of Hilkhot Issurei Biah, halakha 20: An eshet ish about whom a rumor spread that she is a zona under her husband and everyone gossips about her—we do not concern ourselves regarding her children that perhaps they are mamzerim, for most acts of cohabitation are with the husband, and it is permitted to marry her daughter ab initio; however, regarding her herself, we concern ourselves with her as a zona. And if she was excessively licentious—we concern ourselves even regarding her children. Thus far his words. And at the end of chapter 17 he wrote: If a rumor spread about a virgin that she has had intercourse—we do not concern ourselves with her, and she may marry a Kohen Gadol. If she gained a reputation as a zona in the city—we do not concern ourselves with her. And even if her husband divorced her because she transgressed Dat Yehudit, or with witnesses of an unseemly matter, and he died before giving her a get—she is permitted to a Kohen, for we do not forbid any of these women except by clear testimony or by her own admission. Thus far his words. And the Tur and the Shulchan Aruch wrote the first law in this siman, section 15, and the second law in siman 6, section 16, see there.

It appears to me that regarding the second law, he is stating the law, for by law one should not forbid her except with clear testimony or by her own confession. For even regarding the one suspected of adultery with a married woman, the Rambam is of the opinion that we do not remove her from him except specifically with witnesses of an unseemly matter and a rumor that does not cease, and without this, she shall not go out even from the one suspected. And to the husband, even in such a case, we do not forbid her, as he wrote in the twenty-fourth chapter of Ishut and in the second chapter of Sotah. And regarding the first law—it is not the law, but merely good advice for one who wishes to be concerned with marrying a purified woman. Therefore, he said that regarding the daughter there is no concern at all because most acts of intercourse are after the husband, but regarding her herself, there is reason to be concerned because of the status of a zonah, and it is not fitting for a kohen to take her [Mishneh LaMelech]. And even an Israelite who straightens his ways, it is not fitting for him to take her, lest she corrupt him to cohabit with him after she has become forbidden to him [Rashi, Sotah 27]. And when she is exceedingly promiscuous, for then it is possible that most acts of intercourse were not from the husband, it is fitting for one who considers his ways to distance himself even from her offspring, and this is the language of "concern" but not by law. [And so it appears from Rashi there, that it is not by law, and so wrote the Be'er Mayim].

But the great later authorities maintained that the text is stating the law, and therefore some distinguished between a rumor regarding an unmarried woman—where we are not concerned—and here, regarding a rumor about a married woman, where we are concerned [Bach], but they rejected his words [Beit Shmuel subsection 51 and Chelkat Mechokek siman 6 subsection 14]. And regarding the essence of the matter, it appears on the contrary that we are not more stringent with a married woman than with an unmarried woman, so as not to strengthen the rumor and cause a blemish to be cast upon the children, as is written in siman 22 [see Kiddushin chapter 1]. And some distinguished between one rumor and another, that here, where everyone is gossiping about her, it is worse than the "issuing of a rumor" mentioned there [Chelkat Mechokek and Beit Shmuel], but I do not know a limit to these matters. Furthermore, for the Rambam concludes there that we do not forbid a woman except with clear testimony or her own confession, and not with any rumor or any gossip. Furthermore, it is proven in chapter 24 of Ishut and in chapter 2 of Sotah that gossip, even the greatest, without witnesses of unseemly conduct, is nothing even regarding the one suspected with her, and certainly regarding another; therefore, it appears as I have written. And so it appears was the understanding of the Maggid Mishneh and also our teachers, the authors of the Shulchan Aruch, and this is why they wrote that "regarding herself, we are concerned for her as a zonah, and a kohen is concerned for her by Torah law, and an Israelite if he wishes to distance himself from unseemliness" thus far his words—meaning that a kohen must be more concerned because a zonah is forbidden to him by the Torah, but to an Israelite she is permitted; however, from unseemliness, when he wishes to distance himself so that she does not cause him to stumble in his relations—he too should properly distance himself. And this is why he wrote, "and if she is exceedingly licentious, we are concerned even for the children," meaning—a mere concern, and this is why our teacher, the Rema, concluded: "And nevertheless, she is believed to say of her children that they are fit" thus far his words, meaning—that by the core of the law, there is no reason to forbid them when she says they are fit, even if she is exceedingly licentious. And that which he wrote also regarding one who is not exceedingly licentious, that if her husband is a kohen we are concerned for her children that they are chalalim—this is also a mere concern, just as the kohen is concerned for her as a zonah, and after the fact, it is obvious that there is nothing to this [Beit Shmuel subsection 24]. And that which he wrote that in the case of one who is exceedingly licentious we are concerned also for her children, he means also for the concern of mamzerut, for to be concerned—certainly one must be concerned even for mamzerut, but by the law, one may not forbid, unlike one who wishes to forbid by the law [ibid.]. And that which he wrote: "If she was licentious when she was unmarried or betrothed but was not licentious after marriage, even though they saw her commit adultery once, her children are fit" thus far his words—meaning even for a mere concern there is no need to be concerned, for since she was not licentious after marriage, it is obvious that the vast majority of relations are with the husband, and in the entire Torah we follow the majority, and therefore it is a great principle that most relations are after the husband, and we follow this in all laws of the Torah, even regarding inheritance [Pitchei Teshuvah in the name of Chiddushei HaRashba], and let it not be difficult for you why we attribute the majority of relations to the husband and not to the betrothed as will be explained? For certainly it is so, that she is with the husband constantly and in a permitted manner, which is not the case with the betrothed [Beit Shmuel]. And know, that one of the great authorities ruled regarding a woman who was living under her husband and a non-ceasing rumor emerged about her that she committed adultery under him, and she was widowed and married a kohen—that we compel him to divorce her because it is a rumor that preceded the marriage. And there is no basis for these words, for certainly the kohen should be concerned, but not that we compel him by law, and this is not related to a rumor prior to marriage—for that only applies to a rumor of kiddushin and divorce when explicit things were said that there was kiddushin there, as the Rambam wrote in chapter 9 of Ishut and as will be explained in siman 6 with the help of Heaven, but regarding a rumor of zenut—you have no woman who would be forbidden to the world and to her husband, and even to the one suspected with her it is only with witnesses of unseemly conduct and a non-ceasing rumor as has been explained.

A woman whose husband went to a country overseas and she heard that he died, and she married another and it became known that her husband is alive—the offspring from the second is a complete mamzer from the Torah and is permitted to a mamzeret. And if the first returned and had relations with her, even though from the Torah she is permitted to him, nevertheless the sages penalized her so that she is forbidden even to the first, for they penalized her for not being meticulous to know that he was alive. And they penalized her such that the offspring from the first is a mamzer rabbinically, and is forbidden to a mamzeret and to a daughter of Israel, but is permitted to a rabbinic mamzeret like him. And according to the opinion of the Rambam—the offspring is not a mamzer from the first except as long as she has not been divorced from the second, but after she has been divorced—the offspring is no longer a mamzer from the first. And even though the divorce of the second is nothing, since his betrothal was also nothing, nevertheless since this is merely a penalty, they only penalized her as long as her actions appear standing, but when she nullified her actions by receiving a get from him—the offspring is no longer a mamzer from the first. And there are those who disagree on this. And the primary view is like the opinion of the Rambam, for we have not found explicitly in the Rishonim to the contrary. And so it is implied in the Yerushalmi there where they said that therefore she requires a get from the second in order to clarify the prohibition of the first, meaning that they give standing to the betrothal of the second in order to forbid her to the first, and automatically when he divorced her his actions were removed, and his get should not be more stringent than a complete get of the second when he married her after the first divorced her and he divorced her and the first took her back, where the offspring from her is not a mamzer, for it is only the negative commandment of returning his divorcee after she married another, and certainly so with a get such as this. But from the second—the offspring is a mamzer, even after the first divorced her he is a rabbinic mamzer, for against the second she should always be penalized and even after the death of the first. And all this is when she married another, but if she committed adultery with another and afterwards her husband came—the offspring from him is not a mamzer, for she was only forbidden to him by a negative commandment like a sotah, and those liable for negative commandments do not produce mamzerim, and only in marriage did they decree because she appears like a married woman, but not in adultery.

The Rambam, of blessed memory, wrote [ibid.]: An unmarried woman who became pregnant through promiscuity, they said to her, "What is this fetus or this newborn?" If she said, "It is a fit son and I had relations with an Israelite," behold, she is believed and the son is fit, even though the majority of the city in which she committed the promiscuity are unfit. And if his mother was not examined until she died, or if she was deaf-mute or mute or insane, or if she said, "I had relations with so-and-so the mamzer" or "with so-and-so the Natin," even if that so-and-so admits that it is from him—behold, this newborn is a safek mamzer; just as she had relations with this one who admitted to her, so too she had relations with another. And this is what is called a "shetuki," who knows his mother but does not know his father with certainty. And so too a son found in the marketplace, who is called an "asufi"—behold, he is a safek mamzer, for we do not know what he is. Thus far his words.

The explanation of his words: that the woman is believed to validate him, but she is not believed to disqualify him for the offspring, and many of the Rishonim agreed to this. And the reason for the matter is that the Torah did not grant credibility to the mother, only to the father, as will be explained. And to validate him—she is believed, because she has a chazakah of kashrut [Nimukei Yosef, end of chapter 7 of Yevamot], and furthermore, a woman who commits adultery—checks and commits adultery [Tosafot Ketubot 13b, and there on 14a it is according to Ri, see there], for certainly a woman does not want to disqualify her offspring even when her inclination overcomes her to commit adultery and she finds a valid person for it, and we do not say that disqualified people run more toward adultery, for even regarding valid people there is no guardian for forbidden relations [Yerushalmi there, halacha 8]. And even though regarding herself we do not validate her for kehunah except with two majorities as I wrote in siman 6—this is an extra stringency in lineage and because she has a remedy to marry an Israelite, but regarding the offspring so that he does not remain disqualified—we validate him even with a majority of disqualified people when she says "I was intimate with a valid person" [Ran]. And according to this, we should have said that when the offspring is a daughter she should not marry a kohen, for she is able to marry an Israelite [Pnei Moshe there], however we have not found this in the poskim and it is impossible to say so to validate her halfway [it appears to me]. And to disqualify him she is not believed, for since from the Torah without her speech he would be a doubtful mamzer and permitted from the Torah to marry the daughter of an Israelite, and only by rabbinic law is it forbidden as I wrote in section 11, and they believed her in rabbinic law to permit but not to create a definite mamzer and to permit him to a female mamzer; even though it is permitted from the Torah, nevertheless it is not proper to increase mamzerim [Perisha], and therefore even with a majority of disqualified people she is believed to validate and not to disqualify, because this is only by rabbinic law, and she has two chazakot in her validation—the chazakah of her kashrut and the chazakah that she checks and commits adultery. And to disqualify they did not believe her even if the disqualified paramour also says that it is from him, and even if there is no rumor about her that she committed adultery with other men, for nevertheless we say just as she committed adultery with this one, so too she committed adultery with others, and automatically he is a doubtful mamzer, and the paramour is not the husband of this promiscuous woman such that he would be believed with the law of a father. And it is not similar to what I wrote in siman 3 section 20 that a kohen who committed adultery with an unmarried woman and admits that he is his son, that we do not suspect her of others, see there, for to validate certainly we do not suspect and we establish her in the chazakah of her kashrut, but when she disqualifies herself and her offspring—with what credibility do we have to believe her that she did not commit adultery with others since according to her words she is loose and committed adultery with a mamzer. [And the difficulty of the Chelkat Mechokek at the end of section 25 is answered, and the difficulties of the Beit Shmuel in subsection 40 from Terumah, and delve into it] [See Tosafot Gittin 89].

And if she says that the fetus belongs to a certain kosher man—even though she is believed to validate the status of the fetus—nevertheless, she is not believed to establish him as his son regarding inheritance and other matters, for we have no basis to establish him as his son as long as he does not admit that he is his son. And even if he is not present—we have no basis to establish him as his son, and all the more so when he explicitly says that he is not his son and contradicts her—for she is not believed to establish him as his son, and he does not even need an oath to contradict her. And even if she claims maintenance for the child, this is not like any other monetary claim where the claimant subjects the defendant to an oath, and the reason is—that if we did not say so, all promiscuous women would sue the kosher men of Israel in order to subject them to an oath [Rivash]. And even if she was designated for this man, such that if he did not contradict her and she was not suspected of being with others we would have established him as his son [Chelkat Mechokek], nevertheless, when he contradicts her we do not establish him as his son for any matter, and only to forbid this newborn to the relatives of this man did the Rambam write that we are concerned for her words, and he is forbidden to the relatives of that certain man. And even if one witness testifies that he is his son—nevertheless, he is not believed when he contradicts him, and he is not even obligated in an oath to contradict him, for this is not a monetary claim. However, if she claims maintenance for the fetus based on the witness—he is obligated to contradict him as in any monetary claim [it appears to me].

And that which we said, that we are concerned for her words to forbid him to the relatives of this certain person—this is specifically regarding an unmarried woman. However, a married woman who committed adultery and says that the child belongs to another, even if that other person is a mamzer—we are not concerned for her words at all, for we attribute the majority of acts of intercourse to the husband, and he is kosher and permitted to the relatives of that certain person about whom she speaks. And specifically when the husband is present with her, but if the husband is not frequently in his home, even though he comes occasionally—certainly we are concerned to forbid the child to the relatives of this certain person, even though she is not believed to disqualify the child.

That which has been explained, that a single woman who gave birth and her mother was not investigated the offspring is a doubtfully mamzer – this is specifically when there are mamzerim in the city, even if they are a minority and the majority of the city is fit for her; nevertheless, it is a doubtfully mamzer. And why do we not follow the majority? Because perhaps she went to the one who cohabited with her, and it is considered fixed and like half and half. Therefore, if it is known that the one who cohabited went to her, it appears to me that he is fit, and there is proof for this from what the Tur wrote at the end of siman 6, see there. And according to what he wrote there, even when it is not known who went to whom – one should declare him fit; however, from the discussion of the Gemara it is explained that in such a case it is a doubtfully mamzer, and the Tur only said there regarding two majorities, see there. But if it is known that they went to her – certainly he is fit. And in a place where there is no mamzer in the city – the offspring is fit in all manners, for even if she became pregnant from a Cuthean the offspring is fit, as I wrote in section 13. And why do we not fear that she committed adultery with her relatives, from whom the offspring would be a mamzer? It appears to me because it is a matter that is not common at all to commit adultery with relatives from whom the offspring is a mamzer, and furthermore, since they are people known to us, we establish them in their presumption of fitness; however, when she is suspected of them, there is reason to fear this if there is a doubt that she went to the adulterers. However, regarding the primary reason of "fixed," it is nothing but a mere stringency, for ultimately there is a majority for permission, and when she went it is half and half, and perhaps he went to her and automatically there is a majority for permission.

A betrothed woman who became pregnant while still in her father's house, if she says she became pregnant from the betrothed man, if he admits it—even if he does not admit it explicitly but rather does not deny her and says "I do not remember," or if he is not before us—the child is kosher and is his complete son to inherit from him, and also regarding the matter of yibum, when the betrothed man dies, he exempts his mother from chalitzah, for since she claims with certainty that the child is from the betrothed man, and from the betrothed man it is permitted—we establish her in her status of kashrut and we are not concerned at all that perhaps she committed adultery with another, as I wrote in section 31 that to validate the child we are not concerned that perhaps she committed adultery with another. And even regarding the matter of inheritance—the other certain heirs cannot say "bring proof that you are our brother," for since we attribute the child to him regarding the matter that he is not a mamzer, it is impossible to make a distinction in anything and he is his son for all matters. Furthermore, even if she was widowed from the betrothed man, and he was not before us, and we did not hear that he admitted it—she is permitted to the priesthood, for since the child marries an Israelite woman and shares with his brothers, if so, regarding herself it is also considered like an ex post facto case and she is kosher for the priesthood; since she was permitted, she is permitted, not like the one who disagrees on this.

But if he contradicts her and says that the offspring is not from him—the offspring is a definite mamzer, for even regarding a married woman the Torah gave credibility to the father to say of his son that he is a mamzer, as will be explained, and all the more so regarding a betrothed woman. However, this is only regarding the offspring, for which the Torah believed the father, but he is not believed to establish the woman in the status of a zonah and to forbid her to the priesthood when he dies, for in what way is he believed regarding her more than she is? On the contrary—every person is believed regarding themselves more. And granted that initially she should be forbidden to the priesthood because we establish the offspring in the status of a mamzer, but nevertheless, ex post facto if she married—she shall not leave, for the Torah did not give him credibility regarding her. And even though we wrote that it is impossible to make a distinction in the matter—that was regarding the matters of the son himself, but between the son and her, one must necessarily make a distinction ex post facto, because the father is believed regarding the son. And it is a simple matter that when the betrothed man is a kohen—she is forbidden to him, for he has made her upon himself a forbidden object.

And if the arus is before us and says that the child is not from him, and she is not here—the child is a safek mamzer. For while it is true that he is believed that it is not his son, nevertheless, how can we make him a definite mamzer? Perhaps she became pregnant from a kutite. And specifically when she is before us and she contradicts him and does not say that she became pregnant from a kutite, and the Torah believed the father, it follows automatically that he remains a definite mamzer. But when she is not before us, how can we make him a definite mamzer? Perhaps she would have said that it is from a kutite? And there is one who says that we do not say she became pregnant from a kutite, but there is no basis for these words [Perishah]. And even a married woman whose husband is far away in a manner that there is no concern to say he came and she gave birth to a child, in a manner that he is a definite mamzer, if she says it is from a kutite—the child is kosher. And if she says nothing and there are kutites in the city—he is a safek mamzer. [And what the Beit Shmuel wrote in subsection 52 to infer from the Tur that we do not say it is from a kutite, it can be answered simply; see there and examine carefully.] And if she says that it is not from the arus and he is silent—the child is a safek mamzer based on her word. And the reason is because with a married woman she is not believed at all to disqualify the child, as will be explained, but with an arusah, where the arus is not found with her constantly and also by rabbinic law she is forbidden to him until the marriage, although she is not believed to make him a definite mamzer, nevertheless he is at least a safek mamzer. And if she says that the child is a mamzer and the arus contradicts her and says that the child is from him—some say that in this the law is like a married woman, and he is believed and there is nothing in her words, for behold the Torah believed the father and not the mother. And some say that it is not similar to a married woman, and he is a safek mamzer. And the primary view is like the first opinion [Chelkat Mechokek], for is an arus not a father? And the Torah believed him. And all the more so if it is known that the arus came upon her one time and she is not suspected of others, that the arus is believed to establish him as his son for all matters [Beit Shmuel]. However, even in such a case, when the arus is not here and she says it is not from the arus—she is believed to make him a safek mamzer [ibid.].

And know that all that has been explained in the three previous sections—this is when she is not suspected by others, where the people do not gossip about her that she committed adultery with others. But if they gossip about her that she committed adultery, even if they say she also committed adultery with the betrothed, since they also gossip about others, even if it is known that the betrothed came upon her in her father's house—the opinion of the Rambam, of blessed memory, is that the child is a doubtful mamzer when we have not heard from her mouth that the child is from the betrothed, and also from the mouth of the betrothed we have heard nothing. And even though regarding a married woman in such a case we are not concerned for anything because the majority of acts of intercourse are after the husband, but regarding a betrothed woman it is not relevant to say so, and we say just as she made herself available to the betrothed, so she made herself available to others. And if we asked her and she said, "I had intercourse with the betrothed and from him it is"—the child is kosher. And all the more so if it is known that the betrothed came upon her and there is no rumor about her that she committed adultery with others—that the child is kosher even without her statement. And there are some of our teachers who disagree with the Rambam, for even with gossip and a rumor that she committed adultery with others, since it is known that the betrothed came upon her—the child is kosher even without their statement, and such is the primary ruling, and even the Rambam, of blessed memory, who was stringent in this, it is only with gossip that is close to a certainty and not with a mere rumor. And if it is not known that the betrothed came upon her, and also they do not slander her that she committed adultery with the betrothed, but rather they slander and gossip that she committed adultery with others, certainly everyone agrees with the Rambam that ordinarily, without her statement and his statement, it is a doubtful mamzer. And if she was suspected regarding the betrothed and not regarding others, and we did not know that he came upon her—the child is kosher even without their statement, and according to the Rambam it is possible that one should be stringent in this.

A married woman who says regarding her fetus that it is not from her husband—she is not believed at all to disqualify it, even if the husband is not before us, and even if it is known that she committed adultery, because the majority of acts of intercourse are attributed to the husband when he is present with her in the manner of a man and his wife, and the Torah did not believe the mother, but rather the father. And all the more so regarding a child who was already born with a presumption of fitness, that the mother is not believed to disqualify him. And regarding a betrothed woman, it has already been explained.

The Rambam, of blessed memory, wrote ibid.: A father who was established as the father of this son, and said, "This son of mine is a mamzer"—is believed. But if the son has children, he is not believed, for the Torah only believed him regarding his son, as it is said: "For he shall acknowledge the firstborn, the son of the hated woman"—he shall acknowledge him to others; and just as he is believed to say, "This is my firstborn son," so too he is believed to say, "This son of mine is a mamzer," or "the son of a divorcee," or "the son of a chalutzah." And so too if his wife was pregnant, he is believed to say, "This fetus is not my son and is a mamzer," and he shall be a definite mamzer. Thus far his words. And afterwards he wrote: A married woman who was pregnant, etc., and the father said, "He is not my son," or if her husband was in the provinces overseas—he is in the status of a presumptive mamzer. But if she said, "I became pregnant from a gentile or a slave"—the offspring is kosher, for the husband cannot contradict her in her words. Thus far his words. And that which he wrote in the first law "definite mamzer," and in the second law "presumptive mamzer," which implies a doubtful mamzer—it is because the first law deals with a case where she claims it is from the husband, and since she does not claim it is from a gentile and the Torah believed the father, therefore he is a definite mamzer; and the second law deals with a case where she claims nothing, then the offspring is a doubtful mamzer. And the opinion of the Tur is also thus. And so too when the husband says that the offspring is a mamzer, because he knows that she committed adultery with an Israelite—he is a definite mamzer, since the Torah believed him. But if he only says that the offspring is not from him, it is impossible to make him a definite mamzer, for perhaps she became pregnant from a gentile. However, this is certainly so—in a case where the majority of the city are Israelites, and it is known that the adulterers went to her—whatever separates, separates from the majority, and he would be a definite mamzer, unless she says she became pregnant from a gentile, for she is believed. And see what I wrote in section 22. And this requires further study as a matter of law, for it is possible that since she is licentious and committed adultery while under her husband, she is not believed to render the offspring kosher against the majority, and she is not similar to the unmarried woman in section 30, for there she has a presumption of fitness as I wrote in section 31, see there. And there is one who says that the father is only believed to say "This is not my son," but he is not believed to say "He is from so-and-so," for once he says "He is from so-and-so"—behold, he is not his son, and the Torah did not believe him regarding him. And these matters are not clear to me, for certainly he is not believed to establish him as the son of so-and-so based on his words, but since the Torah believed him to say he is a mamzer according to most poskim, how can he make him a mamzer if he is not believed to say that she committed adultery with someone from whom the offspring is a mamzer, and perhaps she committed adultery with a gentile? And thus the Torah said, that a man and his wife who had a child, the man is believed to say regarding the one established as his son that he is not his son and that he is a mamzer or the son of a divorcee, and so it is explained explicitly from the words of our teacher, the Rema, section 29, see there. However, when she claims that it is from a gentile, and there is room to say so as we explained—certainly she is believed for this, for he cannot contradict her in this. But when she is silent or she died—certainly he is believed.

And this matter of a father being believed regarding his son—this is specifically where he did not have a presumption of fitness based on the father; but if he had a presumption of fitness based on the father, he is no longer believed regarding him, except by way of witnesses. For since he established the presumption for his son himself, how can he remove him from the presumption that he himself established? And specifically when he established it for his son himself, but others who established it for his son—this is nothing [the Gra]. And so, even if he said of his son that he is a mamzer, and later retracted and gave a good justification for his previous words—he is believed to retract, for with a proper justification one is believed in every matter to retract, as is written in Yoreh Deah siman 1, 127, and 185; see there. And know, that this matter of the father being believed—this is specifically regarding his wife, whether married or betrothed; but an unmarried woman who says "this is the son of so-and-so" and he says that she became pregnant from a mamzer—he is not believed to disqualify him. And she—even though she is not believed to establish him as the son of this man—nevertheless, she is believed to validate the fitness of the child, as has been explained.

One who says of himself that he is a mamzer is believed to forbid himself to a daughter of Israel, and not by the law of testimony, but because he has established for himself a forbidden status regarding all the daughters of Israel. And if he had relations with the daughter of a kohen, he does not disqualify her through his relations, for he is not believed regarding others. He is also forbidden to a mamzeret until the matter is clarified by witnesses, for he is not believed to permit a prohibition for himself, just as one who is presumed to be a kohen is not believed to say he is not a kohen for the purpose of marrying a divorcee or a chalutzah, as was written in siman 3. However, regarding his sons, he is believed, for even without this the Torah has believed the father as has been written. And even though he himself had presumed them to be fit, and how is he believed to disqualify them? Nevertheless, since he is believed to forbid himself, automatically they too are forbidden. But when the sons have offspring, he is not believed even regarding the sons, as will be explained.

This fact that the Torah trusted a father—it is specifically regarding his sons, but not regarding his grandsons. Therefore, if his sons have offspring—he is not trusted even regarding his sons, for it is impossible to disqualify his son and validate his offspring, and since he is not trusted regarding them, it follows that the Torah did not trust him regarding his son either. For the essence of this law we learned from "he shall acknowledge" regarding a firstborn, and there it refers to those born recently who do not yet have offspring, and the Torah did not trust him when there are offspring to his offspring.

Our Sages, of blessed memory, said [Kiddushin 73b] that if four women gave birth in one house—the wife of a kohen, the wife of a levi, the wife of a yisrael, and the wife of a mamzer—and no person had yet identified the newborns, the midwife is believed to say: "This is the son of the kohen, this is the levi, this is the yisrael, and this is the mamzer." This reliability is not by the letter of the law, but rather the Sages believed her because, according to the majority of cases, it is impossible otherwise [Ran ibid.]. According to this, her reliability is only as long as the mothers themselves have not yet identified their sons; but if each woman took the newborn and established a chazakah that he is her son, the midwife is not believed to remove them from their chazakah [it appears to me]. And if there is a contradiction among the women, it appears to me that the midwife is not believed when they do not agree with her, and the status of the sons is like cases of doubt. However, when the women did not establish a chazakah themselves, the midwife is believed. And even though regarding a bechor she is only believed immediately, as is written in Choshen Mishpat siman 277 section 13—this is specifically for primogeniture to say that this one emerged first, for since he was hidden from her sight they did not rely on her to know and identify who is the bechor; but regarding family lineage, she is believed as long as a chazakah has not been established [Mishneh LaMelech chapter 15 of Hilkhot Issurei Biah in the name of the Ritva], and we have already explained this with the help of Heaven in Choshen Mishpat there.

And this fact that the midwife is believed—in what case does this apply? When she was established as being believed and no person challenged her, for then, since the children have not yet been established and we do not know their lineage, she is therefore believed even though by law we should not have believed her, for she is not similar to a single witness who is believed in a matter where neither a prohibition nor a permission has been established as written in Yoreh Deah siman 127, for behold she is a woman and is disqualified from testimony. But if there is a challenge against her even from one person, and even if the challenge is from a relative or one who is disqualified, who says that the midwife testifies falsely—she is not believed. And even if the challenge came after she testified in beit din, and even though there is no challenge with fewer than two witnesses, nevertheless here, where the children do not yet have a presumption of fitness, even the challenge of one is considered a challenge. And even though in every place where the Torah believed one witness, he is like two and one is not believed to contradict him, it is different here, for her credibility is not by law as has been written. And there is no difference regarding the challenge whether it is from fitness to disqualification or from disqualification to fitness, since the child does not yet have a presumption. And all the more so if the mothers themselves contradict her, that her words are nothing as has been written.

And what is the law of these offspring when there is a challenge against them? The Rambam, of blessed memory, wrote that the son is in the status of fitness but has no lineage. Thus far his words. The explanation of his words appears to me: that each of the sons is fit to enter the congregation, but they do not have the lineage of Kehunah or Leviyah. And the reason is, that regarding the son whom the midwife said is a mamzer and he says he is not a mamzer—certainly he is believed; and conversely, regarding the son whom the midwife says is fit and he says he is a mamzer—he is also not believed to establish him as a certain mamzer. For since they gave credibility to the midwife, granted that in the case of a challenge she is not believed, nevertheless, to establish him as a mamzer based on one witness who contradicts her is not logical at all, and the law of all the offspring is like a mixture of a mamzer among three fit individuals. And even if we judge them as fixed and equivalent to half-and-half, nevertheless, from the Torah they are fit to enter the congregation. Therefore, even though the rabbis forbade them, nevertheless, in such a case where the majority are fit, and even if the mixture is only one to one, since there is one who renders him fit—either the witness or the midwife—the rabbis did not decree in this case. But to establish them for Kehunah or Leviyah is certainly impossible, and therefore if there is a Kohen among them—we impose upon all of them also the stringencies of Kohanim [and see Be'er Sheva]. And regarding the credibility of the midwife, I saw one who says that when she is a relative to the offspring she is not believed. And it does not appear so, for since it is an enactment of the sages because it is impossible otherwise in most instances, if so, what difference does it make to me if she is a relative or what difference does it make to me if she is a stranger [and see Mishneh LaMelech there who also hesitated regarding this, and from the Maggid Mishneh there is no proof, see there and examine closely].

It has already been explained in section 30 that a shetuki is a doubtfully-born mamzer, and similarly a son found in the marketplace, who is called an "asufi" – he is a doubtfully-born mamzer because we do not know what he is. And it has already been explained that according to the Torah they are fit to enter the congregation, for a doubtfully-born mamzer is fit according to the Torah, but the sages forbade them and established a higher standard for lineage. Furthermore, this asufi is not a certain mamzer – it is unnecessary to state in years of famine, for it is possible they cast him away due to the distress of hunger, but even without years of famine – we do not say he is certainly a mamzer and therefore they cast him away. And thus our sages, of blessed memory, said [Kiddushin 73a]: According to the word of the Torah an asufi is fit; what is the reason? A married woman attributes [the child] to her husband and would not have cast him away. What is there? A minority of betrothed women and a minority whose husbands went to a distant land and they cannot attribute [the child] to their husbands? Since there are unmarried women and there are also those who [cast them away] due to hunger, it is half and half, and the Torah said it is a certain mamzer who shall not enter, but a doubtfully-born mamzer shall enter; rather, they established a higher standard for lineage. And let it not be difficult for you – for even with betrothed and married women there is a doubt to render him fit, for perhaps she became pregnant from a gentile, and why do I need this regarding unmarried women and due to hunger? For it can be said that perforce we are dealing in a place where the entire city is Jewish, for if it were in a place where there are Jews and gentiles, there is a doubt regarding this foundling that perhaps he is not a Jew and a gentile woman cast him away. And this will be further explained with the help of Heaven.

The sages, of blessed memory, stated another great principle regarding an asufi: specifically when there is no proof that he was not cast away for the purpose of death—for then he is a doubtful mamzer. However, if there is proof that he was not cast away for the purpose of death, in that his mother performed for him the actions of a kosher child, showing that she had pity on him as a kosher child—he does not have the status of an asufi and he is a kosher child, and it is a sign that he was only cast away due to famine. And even if the year is not a year of famine, nevertheless the needy shall not cease and his parents are hungry, and they cast him away and made a sign on him that he is a kosher child so that people would have mercy on him—and he is a kosher child, except that he has no lineage of father and mother.

And what is the proof that it is a valid child? Whether the proof is in its body, such as that it is circumcised, or that its limbs are set and straightened as they do for infants, or that it is anointed with oil, or that they put blue eye-paint in its eyes, or hung an amulet on it, for all these are signs on its body that they had pity on it as a valid child. And likewise if the proof is in the location, that they cast it in such a place that it would be protected from wild animals and that people would find it, such as if it was found in a place where many people are present, or if it is hanging from a tree in a vessel in a place where an animal cannot reach and it is near the city, or if it was found in a beit knesset or in another well-known place near the city, and all the more so in the city itself, or if it was found at the sides of the public domain – in all these cases it does not have the status of an asufi, for it is a sign that they were concerned to protect it and it was only cast away because of famine, or an unmarried woman gave birth to it and had pity on it since it is a valid child, and because of the shame she cast it in a place where they would find it and have pity on it and it would remain alive.

An infant who was cast away on the road in the manner of an asufi, and another came and said, "He is my son and I cast him away"—he is believed; and likewise his mother is believed. This is so even in a place where the majority of the city are gentiles, for this is like a clear matter, as if he were not his son, he would not take this child to maintain him as a son. Therefore, he or she is believed to maintain him as a son for all matters, whether for leniency or for stringency [it appears to me]. All this is while he is still cast away on the road; but once he has been gathered from the marketplace and his father and mother came and said, "He is our son"—they are not believed without witnesses, since the reputation of an asufi has been established for him. And it appears to me that we are concerned for their words to be stringent in all his matters, such as that his mother shall not perform yibum and the like, but not to be lenient, such as to exempt his mother from yibum and the like. For it is impossible to say that they would not be concerned for their words at all—for behold, by the letter of the law they are believed, rather it is only because the reputation of an asufi was called upon him that the sages of blessed memory said they are not believed. And in years of famine—they are believed even afterwards, for we say that because of the hunger they cast him away and they want others to sustain them, and therefore they remained silent until he was gathered from the marketplace [the Rambam], and the reputation of an asufi shall not be called upon him. Furthermore, in years of famine, since many are cast away then, the sages did not wish to disqualify them because of the emergence of a rumor [Rashi].

And know, that in the Yerushalmi Kiddushin chapter 4 [halacha 2] it is stated: A child, as long as he is cast out in the market—either his father or his mother may testify regarding him. If he was gathered from the market—he requires two witnesses, and his father and his mother are as two witnesses. Thus far his words. It appears then that only the father alone or the mother alone are not believed, but both of them together are believed. However, all the poskim wrote that they are not believed as I have written, and it is possible that it seems our Shas disagrees with this, for in our Shas the reason was explained because the name asufi has been called upon him, implying explicitly that even though by the law he should have been kosher, nevertheless, because of the calling of the name the sages did not want to declare him kosher. Nevertheless, we wrote that two witnesses are believed, for there is no logic to say that two witnesses would not be effective to remove a rumor, and regarding this we have not found explicitly that our Shas disagrees. It is further stated there to distinguish between a child who moves himself from his place and one who cannot move himself—and this too is not the halacha, for behold, the credibility according to our Shas is only immediately while he is still in the market, and then this distinction is not relevant, and in the Yerushalmi itself it appears there that it rejects this [see there in the Mareh HaPanim who did not write so, but it seems to me that according to what I wrote so is the primary point, and delve into it].

There are some of our teachers who wrote that this fact that an asufi is a doubtful mamzer and is fit according to the Torah—this is only in a place where half are fit and half are unfit, or a majority are fit and a minority are unfit. However, in a place where a majority are unfit and a minority are fit—he is a definite mamzer, for we follow the majority [Rashba]. And even though there is a doubt that perhaps the halacha is with them and it would be considered kava and like half and half, nevertheless, there is still a majority for prohibition, as I wrote in section 34. [And that which the Sages, of blessed memory, said there "what do you say etc."—it means even if you want to say so as a stringency, see there and examine it closely].

The Rambam, of blessed memory, wrote: An asufi found in a city that has Cutheans—whether the majority were Cutheans or the majority were Israel—he is a doubtful Cuthean regarding matters of lineage. If he betrothed a woman, she requires a get due to doubt, etc. If the beit din immersed him for the sake of conversion, or if he immersed after he reached adulthood, he is like other asufim found in the cities of Israel. If the majority of the city were Cutheans, it is permitted to feed him nevelot. If the majority were Israel, one returns his lost object to him. If it was half and half, it is a mitzvah to sustain him and one removes debris for him on Shabbat, and regarding damages he is like any case of doubtful money and the burden of proof is on the claimant. Thus far his words.

And this is because he holds that even after he has immersed and there is a majority of Cutheans, nevertheless, he is like an asufi—due to the concern of a doubtful mamzer. Even though regarding a shetuki, when his mother says he is fit, she is believed even amidst a majority of unfit people, nevertheless, here where there is no statement regarding him and he has no presumption of fitness, they made a stringency regarding lineage even in a majority and concern themselves with him for a doubtful mamzer. This is similar to how they made a stringency regarding the lineage of the priesthood concerning the woman herself when she says "I was intimate with a fit man," for she is not believed even amidst a majority of fit people unless there are two majorities, as I have written in siman 6. So too here, regarding Israelite lineage, when there is no statement at all, they were concerned even in a majority, even regarding the infant. However, when there are two majorities, he is certainly fit, for it is no worse than there. And if he has signs that he is not an asufi and the concern is only whether he is a Cuthean or an Israelite—when he has immersed, he is rendered completely fit, and only if it is a female may she not marry a kohen even in a majority of Israelites. And one cannot say that the reason of the Rambam for not following the majority was due to the principle of "kavuah," for behold, this infant separated from the majority and is not "kavuah," and therefore there are indeed those who disagree with him and hold that in a majority of Cutheans we follow the majority when he has immersed and he is like an Israelite, and only when it is a female is she forbidden to a kohen as I have written. (And according to the Rambam, this is what Rav said at the end of the first chapter of Ketubot, "but for lineage, no," and the Ra'avad explains according to Rashi's explanation there).

And regarding that which he ruled that specifically in a case of half and half we clear the debris for him—many disagree with him and hold that in matters of pikuach nefesh we do not follow the majority. The Rambam, of blessed memory, follows his own reasoning in the second chapter of Shabbat, that specifically when one separated from the place of fixed status we do not follow the majority, but when all of them separated from the place of fixed status and at the time they moved one of them separated and debris fell upon him—we follow the majority. And here, regarding the found infant, presumably the entire city moved, and therefore we follow the majority. And also regarding that which he ruled that in a case of half and half we are commanded to sustain him—they disagree with him and hold that in a case of half and half we are not commanded. Thus far his words.

The general rule of a shetuki and an asufi: Regarding a shetuki, when his mother was examined and she said, "I was impregnated by a fit man," she is believed even if the majority are unfit when she is an unmarried woman, as I wrote in section 31; however, to disqualify him, she is not believed, as I wrote there. And even when she says, "I was impregnated by a fit man," she is not believed to establish him as his son, and he does not even require an oath when he denies it, as I wrote in section 32. And when she was not examined, he is a safek mamzer when there is a minority of mamzerim in the city, and we do not follow the majority, as I wrote in section 34; but when there is no mamzer in the city, the offspring is fit, and we are not concerned for relatives unless she is suspected of them, as I wrote. And an asufi, in a city that is entirely Israel, when there are no signs on him that he was not cast away to die—he is a safek mamzer, and when there are signs on him—he is completely fit. And why is his law not like a shetuki, such that he would be a safek mamzer? For a shetuki is different, as we recognize his mother, that she is an unmarried woman, and perforce she committed harlotry and we do not know from whom, and therefore when there is even a minority of mamzerim in the city, he is a safek mamzer; but this asufi, when there are signs on him that he was not cast away to die, we say that he is not from an unmarried woman at all, but rather the father and the mother cast him away because of famine. And in a city where there are also gentiles—the one found is a safek gentile, safek Israel, unless he is circumcised. And any shetuki and asufi who are fit—they are permitted to marry a woman from all the daughters of Israel, and we are not concerned that the shetuki might marry his sister from his father, or the asufi from his father or his mother, because the vast majority are permitted to marry him; only regarding a shetuki, when the mother says that she became pregnant from so-and-so, even though she is not believed to establish him as his son as I wrote, nevertheless, his relatives are forbidden to him based on her word.

And from where did we learn that they are not forbidden to every woman? For behold, it is written, "Do not profane your daughter to make her a harlot," and the sages said that if one does this, it will result in a father marrying his daughter and a brother marrying his sister. Now, if the law were that anyone who does not certainly know his father is forbidden to every woman who could possibly be a relative forbidden to him, we would never arrive at this situation and the land would not be filled with lewdness. Thus you have learned that we do not forbid those forbidden by relation by maintaining them as kin based on a doubt until it is certainly known that this one is forbidden to him. For if you do not say so—all the orphans in the world who did not know their fathers would be forbidden to marry anywhere, lest they encounter a forbidden relation [the Rambam].

There is one who wrote that even though according to the Torah they are permitted to marry whomever they wish, nevertheless, by rabbinic enactment they are forbidden to marry until it is clarified that in this woman it is impossible for there to be an aspect of kinship [the Gra, subsection 199]. And there is a proof for this from one who says to his agent, "Go and betroth a woman for me," and the agent went and died, where he is forbidden to all women in the world due to the concern that perhaps the agent betrothed a woman on his behalf and this woman is her relative, as is written in siman 35 [ibid.]. However, it does not appear so from all the poskim; for granted that they were concerned for lineage even in a complete minority, nevertheless, here it is like a minority of a minority which has no substance at all, that we should suspect that the woman he wishes to marry is the daughter or sister of the adulterer who committed adultery with the mother of this man, and in the Gemara there is this reasoning [Kiddushin 73a, "all these are cast," see there]. Furthermore, behold we see that regarding the matter of not disqualifying him, the mother is believed even in a case of a majority of disqualified men because of the presumption of her fitness, as is written in section 31, and the primary reason we explained there is that it is in order not to disqualify him. And now, if we say that the shetuki and the asufi who are fit according to the law—such as where they checked his mother, and in the asufi there are signs as was written—lack the ability to marry any woman for whom it is possible to suspect, behold you are forbidding to him almost all women. For every woman whose father or brother was alive when his mother conceived, there is reason to suspect an ervah, perhaps her father or her brother is the father of this man; and likewise, he would be forbidden to every widow and divorcee, for perhaps she is the wife of the father of this man or the wife of the brother of the father of this man, and this is not a reasonable logic at all. And that case where he sent to betroth via an agent where he is forbidden to all women, in truth it is not according to the law but merely a penalty [Tosafot Nazir 12a] because he sent to betroth for himself an unspecified woman and not a specific woman. And a proof for this—for behold we do not forbid all female minors whose fathers died from marrying due to the concern that perhaps their father received betrothal on their behalf from the agent of this man; rather, certainly it is only a penalty, and here this shetuki or asufi did not sin at all that we should penalize him. Furthermore, in the Gemara there, when they wanted to state the reason why the sages forbade a shetuki whose mother was not checked from entering the congregation because of the concern of encountering an ervah when he marries a woman, they rejected this reason and only because of the "elevation of lineage" did they distance him. But when there is no "elevation of lineage" here, as his mother was checked and the asufi has signs in him—there is no "elevation" here. [And one should not say that for us, where the doubtful cases are forbidden to one another, the difficulty does not exist, see there in Tosafot; for behold the poskim wrote the reason of "elevation," and delve into this].

All cases of doubt are forbidden to marry one another because they established a higher standard in matters of lineage. Therefore, a shetuki may not marry a shetukit or an asufit, and an asufi may not marry a shetukit or an asufit, for perhaps one of them is of fit lineage and the second is unfit. And if they married—they may not remain together, but rather they must divorce with a get, and the offspring is a doubt like its parents. And there is no remedy for these cases of doubt except that they marry from among converts [in ancient times] or from among those emancipated, and the offspring follows the flawed parent. How so? A shetuki or an asufi who married a female convert or an emancipated woman, or a male convert or an emancipated man who married a shetukit or an asufit—the offspring is a shetuki or an asufi, for in all matters of mamzer, even though the kiddushin were permitted, nevertheless, it does not leave the concern of mamzerut, for the Torah included more in the category of mamzer as I wrote in section 10, see there. And definite mamzerim and Netinim are permitted to marry one another and the offspring is a mamzer, and a shetuki and an asufi are permitted to marry Netinim and the offspring is a doubtful mamzer [the Rambam]. And there are those who forbid cases of doubt to marry Netinim [see Beit Shmuel]. And a Netin is forbidden to marry a maidservant [Tosafot Gittin 41a]. However, according to the Rambam that a maidservant is not from the Torah as I wrote in section 1, one could say that he is permitted to marry a maidservant [see Beit Shmuel].

The Rambam, of blessed memory, wrote: It appears to me that in any province [city] where there is a maidservant or a gentile woman capable of giving birth, since the asufi found there is a doubtful gentile or a doubtful slave when he marries a female convert as we have explained—this is a case of a doubtful married woman, and one who comes upon her is exempt, for we do not execute based on a doubt. And so it appears to me regarding a shetuki who married a woman who is a forbidden relation to him, that she is a doubtful married woman, for betrothal does not take effect with forbidden relations. And who is the woman who could possibly be a forbidden relation to him? Any woman whose father or brother was alive when his mother conceived him, and any woman who was divorced or widowed, for perhaps she is his father's wife or the wife of his father's brother. Thus far his words. And they transcribed it in the Tur and Shulchan Aruch, section 37. And that which he wrote regarding an asufi, that she is a doubtful married woman—this is when he married and did not immerse himself and did not undergo milah [Chelkat Mechokek], for if not so, in any case he is a complete Israelite. And that which he wrote regarding a shetuki—some say this is a shetuki whose mother was not examined and he is a doubtful mamzer by rabbinic law and married in prohibition [Beit Shmuel], and some say it deals even with a case where his mother was examined and he married her in permission [Chelkat Mechokek]. And it appears to me that the primary view is like the first opinion, as will be explained with the help of Heaven.

And some of our teachers disagree with the Rambam, for in all capital cases we follow the majority, so why should we not follow the majority here? And the Tur and the Shulchan Aruch did not bring this opinion at all, and it appears to me that their reason is that since we see regarding matters of lineage that even though by Torah law we follow the majority, nevertheless the sages established a higher standard not to follow the majority, and if so, how can we stone one who cohabits with the wife of this [shetuki] based on the majority? And even though by Torah law he is liable for death, nevertheless in such a case there is certainly power in the hands of the sages not to execute him, since they themselves regarding matters of lineage did not follow the majority, and certainly so regarding death. And even though regarding a shetuki, in any case the one who cohabits with her is liable for death—for even if he is a mamzer and forbidden to a daughter of Israel by the enactment of the sages, behold, kiddushin is effective for those liable for negative commandments, and the sages were not concerned for it being an ervah, for behold, when his mother was examined they permitted him to marry whomever he wishes—nevertheless, ultimately, since for this shetuki whose mother was not examined, the sages did not permit it and he married in prohibition, and since he transgressed their words where they said not to follow the majority in this, how can we execute this one who cohabited with her based on the majority? And according to this, the Rambam is only dealing with a case where his mother was not examined, and perhaps in truth according to this there is no one who disagrees with the Rambam, and therefore the Tur and the Shulchan Aruch did not bring the disagreeing opinion.

Our teacher, the Rema, wrote: The Karaites – it is forbidden to intermarry with them, and they are all doubtful mamzerim, and we do not accept them if they wish to return. But the forced converts who return to the religion of Israel – it appears to me that it is permitted to intermarry with them. Thus far his words. For they betroth their wives with money or through cohabitation and divorce not according to the law, and they deviate from the formula established by the sages for gittin, and they marry others during the lifetimes of the husbands; thus the children are found to be mamzerim from a married woman [Beit Yosef]. And the early Geonim wrote regarding heretics who separated from the ways of Israel and are profligate in forbidden relations and do not write ketubot or gittin and do not perform chalitzah or yibbum – their children are mamzerim, and it is impossible to accept them and bring them into the congregation of Israel lest they mingle and mamzerim increase in Israel. But if the fathers come and repent and take upon themselves the yoke of commandments like the rest of Israel – accept them, for they were born from a holy drop and were born in fitness, and regarding their offspring they were meticulous, and anyone who had a trace of disqualification they separated [ibid.]; however, the forced converts are under the presumption that they always guarded the fitness of their lineage, though this too depends on the matter of their conduct [see Taz].