Siman 44

**[The laws of the kiddushin of a deaf-mute, an imbecile, a drunkard, a saris, an ailonit, a tumtum, an androgynos, forbidden relations, secondary prohibitions, those liable for negative commandments, a Cuthean, an inverted person, and one who is half-slave or half-maidservant; and it contains 17 seifim]** A deaf-mute man and a deaf-mute woman are not capable of kiddushin according to the Torah, for they are not of sound mind, as their intellect is weak and not clear. Therefore, whether they married their like, or a deaf-mute man married a woman of sound senses, or a deaf-mute woman married a man of sound senses—they have no kiddushin or marriage according to the Torah. However, the sages instituted marriage for them. Consequently, if a deaf-mute man married a woman of sound senses and a man of sound senses came and performed kiddushin with her—she is betrothed to the man of sound senses with complete kiddushin. And if the man of sound senses had relations with her, she becomes forbidden to both of them according to the law of a married woman who committed adultery, who is forbidden to the husband and to the paramour. And even though her prohibition to the man of sound senses is only rabbinic, nevertheless she is a rabbinic zonah and he has had relations with a rabbinic married woman. However, since in any event according to the Torah the kiddushin takes effect with the man of sound senses—he must perforce divorce her. And since she is also forbidden to the deaf-mute man, he too is forced to divorce her. And even though it was explained in siman 28, section 61, that a rabbinic acquisition is effective even according to the Torah, that is regarding money where the acquisition is rabbinic and it becomes like his actual money; this is not the case regarding a deaf-mute man, who has no power of acquisition at all according to the Torah.

Specifically when the person of sound senses had relations with her, but if he only betrothed her – he gives her a get and she is permitted to the deaf-mute, and we are not concerned lest they say that the deaf-mute divorced her and she was betrothed to the person of sound senses who divorced her and the first one took her back, for we do not decree this decree regarding the marriage of a deaf-mute which is only rabbinic. And similarly, if a person of sound senses betrothed a deaf-mute woman and another person of sound senses came and betrothed her – the betrothals of both of them take effect, and even though the second one's is also only a rabbinic betrothal, nevertheless the betrothal takes effect as written in siman 42, section 44 regarding two who betrothed before witnesses disqualified by rabbinic law, see there; and even according to the one who disagrees there, he concedes in this case that the acquisition of the deaf-mute woman is a partial acquisition and partially remains, and since there is a remainder in her acquisition, it follows that the betrothal of the second takes effect in her as well by rabbinic law, as written similarly in siman 40, section 18, see there. And even though regarding two deaf-mute yevamot it will be explained in siman 171 that the relations of the second does not disqualify the first, this is because the acquisition of both of them is equal from the deceased brother, but here in betrothal, since there is a remainder in her, it is obvious that the betrothal of the second also takes effect by rabbinic law. And similarly in the case of a deaf-mute who married a deaf-mute woman and another deaf-mute betrothed her, she requires a get from the second and is permitted to the first for the reason that has been explained. And there is one who wishes to forbid her to the first in such a case, and similarly in the case of a person of sound senses who betrothed a deaf-mute woman and another person of sound senses came and betrothed her, for the reason lest they say he is taking back his divorcee after she was betrothed to another; and it is not similar to a deaf-mute who married a woman of sound senses and another person of sound senses betrothed her where she is permitted to the deaf-mute, for there everyone knows that the second is a Torah betrothal and the first is a rabbinic betrothal, which is not the case when both are rabbinic betrothals where we certainly decree. Nevertheless, the first opinion appears primary, and so it is found in the Yerushalmi.

A male shoteh or a female shotit have no kiddushin, neither from the Torah nor from the legislation of the sages. For only regarding deaf-mutes did they institute marriage, as they possess some measure of understanding and it is possible for there to be peace in the home; but for shotim, who possess no understanding at all, why would they institute marriage for them? Therefore, whether it is a shoteh who married a woman of sound mind or a man of sound mind who married a shotit, they are not betrothed or married at all. Consequently, this applies specifically to a complete shoteh, such as those who are insane, possessing no understanding at all, and who run in the marketplaces and streets and the like. However, if his mind is clear, even if it is very weak and thin—it is kiddushin. And if he is sometimes a shoteh and sometimes healthy and we do not know the state of his mind at that time—we are concerned for his kiddushin. And if his mind is muddled and he does not grasp a matter clearly, some say there is a concern of kiddushin, for even though regarding testimony and shechitah we consider such a person a shoteh, nevertheless regarding kiddushin one is not called a shoteh unless he is a complete shoteh. According to this, even one whose mind is deranged and his mind is found to be muddled in one matter but in other matters he asks and answers to the point, and similarly those who are extreme simpletons who do not recognize things that contradict one another, and similarly those who are agitated and hurried in their minds—even though regarding testimony their law is like shotim as the Rambam wrote in chapter 9 of Edut—nevertheless regarding kiddushin it is a case of doubtful kiddushin. For behold, regarding names, the deaf-mute and the shoteh are equal, yet regarding kiddushin the deaf-mute is distinct from the shoteh as has been explained; therefore, regarding kiddushin, a complete shoteh is required so that his kiddushin do not take effect at all. And certainly the shotim whom the sages enumerated in Chagigah [3b]: one who goes out alone at night, and one who sleeps in a cemetery, and one who tears his garment—even though they do this in a way of foolishness, nevertheless regarding the matter of kiddushin they are not called shotim. However, they are still not certainly kiddushin but rather a doubt, and if she received kiddushin from another, she requires a get from both of them.

A drunkard who performed kiddushin – his kiddushin are valid even if he became very drunk, and likewise if she was a drunkard, for a drunkard's purchase is a purchase and his sale is a sale. However, if he reached the drunkenness of Lot – his kiddushin are not kiddushin, for he has no intellect whatsoever when he is at this level. One must deliberate much in this matter to investigate this, whether he was as the drunkenness of Lot, for sometimes it appears that it is so and it is not so after investigation. And all this is ex post facto, but ab initio it is proper that the groom and the bride should not drink any intoxicating beverage before the kiddushin, even a little, and for this reason they practiced fasting on the day of the chuppah as I wrote in siman 61, so that they will be completely of sound mind. And in siman 121 it will be explained that we do not rely on our own discernment, see there.

A saris who performed kiddushin, whether a saris chamah, which is from birth, or a saris adam, which is a petzuah dakah—it is kiddushin; and even though a saris adam is among those subject to a negative commandment, kiddushin is effective for those subject to negative commandments. Similarly, an ailonit who was betrothed—it is kiddushin even though she is not fit for children. And it is not only necessary to state this when he knew she was an ailonit, but even if he did not know and it was a mistaken transaction, nevertheless it is kiddushin and she requires a get. And there are those who say that if he did not recognize it in her and she was found to be a certain ailonit, it is not kiddushin even rabbinically, and it is worse than other blemishes, for regarding such a blemish a man does not forgive. Her signs are that she has no breasts, or that cohabitation is difficult for her, or that her voice is deep like the voice of a man, or that she does not have high and rounded flesh like a spoon above that place—for with one of these she is considered an ailonit [Tur]. However, from the words of the Rambam in chapter 2 of Ishut, it appears that he holds she must have all of these signs, and then she is a certain ailonit; and if she is a doubtful ailonit, even according to this opinion she requires a get. And regarding a saris, even if she did not know and he is a certain saris—according to everyone she requires a get, for a woman is satisfied with any [husband]. The opinion of the Rambam is like the first opinion, that even with a certain ailonit where he did not recognize it in her, she requires a get [see Lechem Mishneh chapter 4, halakhah 10].

The Rambam, of blessed memory, wrote in chapter 4: A tumtum and an androgyne who betrothed a woman or whom a man betrothed – these are cases of doubtful kiddushin and they require a get due to the doubt. Thus far his words. And even though in chapter 1 of Issurei Biah he ruled that for an androgyne one is liable for stoning for lying with him like a male, it is not because he is a certain male, but rather because the Torah included it from the verse "And with a male you shall not lie" (Leviticus 18:22), that from the place of his maleness one is liable for lying with him like a male, as I wrote in siman 24, section 2, see there; but in truth, he is a doubtful male and a doubtful female. And regarding that which he wrote that when a man betrothed them they require a get, and similarly a tumtum requires a get, there is one who disagrees with him, for why do they require a get, behold they are not fit to be married, and some say that the reason of the Rambam is so that he should not later be liable when he comes upon the androgyne by way of his femaleness as one who comes upon a doubtful married woman, and similarly with a tumtum. And I wonder, for shall we require a get in order not to cause one who commits a transgression that the transgression should not be greater? Behold, one who comes upon them commits a severe transgression and they strike him with lashes of rebellion as is written there. Therefore, it appears to me that on the contrary, for this reason we require a get, so that they should not think that the kiddushin are valid and he will come upon them; therefore we require a get to separate them so they will know it is a great prohibition to come upon them. And know, that there are some of our teachers who hold that an androgyne is a certain male as the Tur wrote, but the poskim in many places stated anonymously like the first opinion, and certainly a tumtum who was torn open and found to be a male – he is a certain male, and similarly the opposite, but an androgyne has maleness and femaleness and is forever as a doubt.

One who betroths one of any of the arayot has done nothing, for kiddushin does not take effect with them and they do not require a get. This is not similar to a tumtum or an androgyne when one betrothed them, where the Rambam required a get as explained, for they are a case of doubtful kiddushin; however, regarding arayot, everyone knows that kiddushin does not take effect with them. And a niddah, even though she is an ervah, nevertheless when one betroths her it is a complete kiddushin, as it is written: "and her niddah status shall be upon him" (Leviticus 15:24), meaning that even during the time of her niddah status, kiddushin takes effect with her, for "shall be" is a term of hovayah [Yevamot 49b]. And one may even betroth a niddah ab initio, only the Rambam, of blessed memory, wrote in chapter 4 that it is not proper to do so, and he follows his own reasoning where he forbids a chuppat niddah, therefore it is not proper to perform kiddushin that would not be fit for a chuppah. But we do not rule accordingly, as has been explained in siman 61, see there; nevertheless, those who are meticulous are meticulous to perform it in purity according to the opinion of the Rambam, of blessed memory, as has been explained there. And so too, one who betroths one of the sheniyot or those subject to negative commandments or positive commandments—she is betrothed with a complete kiddushin, for kiddushin takes effect with those subject to negative commandments and those subject to positive commandments. And all the more so regarding one who betroths a woman in addition to his wife, for even though he violates the cherem of Rabbeinu Gershom, they are nevertheless a complete kiddushin. However, a yevamah who was betrothed to a stranger, even though this is among those subject to negative commandments, there is nevertheless a doubt whether kiddushin takes effect with her, since it is written: "The wife of the deceased shall not be [tehiyeh] outside to a stranger" (Deuteronomy 25:5), and perhaps the intent of the Torah is that there shall be no hovayah with a stranger. And regarding the rival wife of a yevamah, kiddushin certainly takes effect, as has been explained in siman 162, but the rival wife of an ervah is like the ervah herself and kiddushin does not take effect with her.

One who betroths a gentile woman or a maidservant, it is nothing, as they are not subject to kiddushin; and likewise, a gentile or a slave who betrothed an Israelite woman, it is nothing. For regarding a slave it is written, "Stay here with the donkey"—a people similar to a donkey, and the same law applies to a maidservant. Regarding gentiles it is written, "And you shall not intermarry with them." And likewise it is stated regarding a woman of beautiful form, "And after that you may come to her and possess her, and she shall be a wife to you," implying that initially she is not subject to "becoming" [kiddushin]. Furthermore, they only have the status of being possessed by a husband, but not kiddushin or chuppah.

An Israelite who turned into an Ishmaelite who betrothed an Israelite woman or an apostate woman—his betrothal is a complete betrothal, for even though they have sinned, they are Israelites and their entire law is like an Israelite, and she requires a get from him. Not only this, but even his offspring that he fathered after he apostatized, their law is like complete Israelites; and if that offspring betrothed an Israelite woman, or an Israelite betrothed a female from that offspring—behold, they are complete betrothals. And so too the offspring of his offspring until the end of all generations, their law is like an Israelite. And specifically the offspring they fathered from an Israelite woman or from an apostate woman, but if they fathered from a gentile woman or from a maidservant—the offspring is not an Israelite but a gentile or a slave, for even a complete Israelite who comes upon a gentile woman or a maidservant—the offspring is like her. And an apostate woman who has offspring from a gentile or a slave—the offspring is a complete Israelite, as written in siman 4, and if he betrothed a woman, it is a complete betrothal. And it is written in the Maimonic Responsa [Nashim, siman 12], a response to our teacher Nathan, author of the Aruch, and this is his wording: That which you asked, an apostate Israelite who has a minor or a young daughter, whether her father can receive her betrothal or not, this was an incident in the days of the early ones and they said she is betrothed, and he who received the betrothal can receive the divorce; but if he received the betrothal while he was an Israelite—it is obvious to us that he cannot receive the divorce while he is an apostate. Thus far his words. And see what I wrote in section 11.

The Kutim whom Sancheriv settled in the Land of Israel and who converted out of fear of the lions, as written in the Book of Kings—even though our Sages, of blessed memory, treated them as absolute Kutim for all matters, nevertheless, if one betrothed a woman, she requires a get, for perhaps they only treated them as such as a stringency and not as a leniency. And even though we find that our Sages, of blessed memory, [at the end of the first chapter of Yevamot] regarding the ten tribes who were assimilated among the nations, treated them as absolute star-worshipers even regarding kiddushin, nevertheless, since regarding the Kutim we do not find this explicitly in the Shas, we are concerned for their kiddushin. And so wrote the Tur in the name of Rav Yehudai Gaon and Rav Shmuel at the beginning of Kallah, that they required a get; see there. And it is a simple matter that if afterward an Israelite betrothed her, she also requires a get from the Israelite, for perhaps even as a leniency their status is not like an Israelite. But one Kuti after another Kuti who betrothed—she does not require a get from the second, whichever way you look at it: for either the kiddushin of the first take effect, or the kiddushin of both of them do not take effect [it appears to me].

There is one who says that that which we have said, that even his offspring born after he turned away, when they were born from a Jewish woman or the like, their law is as a Jew and if he betrothed her his betrothal is valid, this is only when it was under duress as in ancient times during the periods of decrees; but if it was by his will, the name of Israel is not upon his offspring, and there is no foundation for these words, for by what means was the name of Israel nullified from them? And even though the betrothal of their father was not according to the laws of Israel, nevertheless the offspring is a Jew who was born without betrothal. And there is one who says further that regarding the one who turned away himself, when he betrothed a woman, his betrothal does not take effect except rabbinically, and there is no reason for this—if he betrothed her before valid witnesses, why should his betrothal not take effect from the Torah when she knew that he had turned away? And explicitly they said in the Shas that if he betrothed her, his betrothal is valid. And it is true that there are some among the early authorities who wrote that that which the sages, of blessed memory, said, "his betrothal is valid," is only as a stringency and not as a leniency, but from the words of most of our teachers it is explicitly implied to the contrary. And also the Tur wrote that some say that one who desecrates the Shabbat publicly and an idolater, his law is as a complete idolater and his betrothal is not valid—"and it is not clear," thus far his words. And so it is explained from the Rambam and all the poskim, and so our teachers the authors of the Shulchan Aruch wrote without qualification in section 9.

The Rambam, of blessed memory, wrote in chapter 4: One who betroths a woman who is half-maidservant and half-free woman, she is not fully betrothed until she is emancipated; and once she is emancipated, her betrothal is completed like the betrothal of a minor who reached maturity, and he does not need to betroth her with another betrothal. If another man came and betrothed her after she was emancipated, she is in a state of doubtful betrothal to both of them. And who is the "shifcha charufa" mentioned in the Torah? This is one who is half-maidservant and half-free woman who was betrothed by a Hebrew slave; and one who is half-slave and half-free man who betrothed a free woman, this is a doubtful betrothal. Thus far his words. And they wondered about him: since after the emancipation her betrothal is completed, if so, why when another comes and betroths her is she doubtfully betrothed to both of them? And there are those who wish to say that according to the Rambam, he is in doubt whether the betrothal of the first is completed or if it lapses, because in the Gemara there is a dispute regarding this [Gittin 43b]; but it does not appear so from his wording, for if so, he should have said that it is a doubt as he wrote regarding a half-slave. However, the explanation of his words is as follows: he ruled like the one who says the betrothal of the first is completed, and the intention is not that they are completed without any action, for without any action, even after the emancipation, she remains as before—that she is betrothed but not as a complete married woman such that one who comes upon her is liable for death, but rather only with a mere prohibition, for this is the "shifcha charufa" mentioned in the Torah, where she is liable for lashes and the one who cohabits brings a guilt offering whether unwittingly or intentionally. And when is a complete betrothal finished? When he remained with her after the emancipation for some time as husband and wife and it is known to all that he cohabited with her; and even though there are no witnesses of seclusion, nevertheless, since they live as husband and wife, she becomes a complete married woman. And this is why it is similar to a minor, as was written in siman 43, section 2 regarding a minor, see there. And this is the opinion of the Rambam also regarding a minor, as he wrote there in law 8 [and see there in the Maggid Mishneh]. Therefore, if another came and betrothed her immediately after she was emancipated, she is in a state of doubtful betrothal to both of them. And the doubt is: do we say that since the betrothal of the first is only for a mere prohibition as mentioned, the betrothal of the second takes effect; or perhaps since, after all, half of her is betrothed to the first for a negative prohibition, the betrothal of the second no longer takes effect for this half, and consequently it does not take effect for the second half either, for there is no betrothal for half a woman [and he explains the doubt of Rav Chisda there not like Rashi and not like Tosafot s.v. "Mah Nafshach," but as I have written. And according to what I have written, the difficulty of Tosafot s.v. "Gamru" is also answered, and the difficulty of the Ran brought by the Kesef Mishneh is answered, and likewise the objection of the Ra'avad is answered, and see there in the Maggid Mishneh and Kesef Mishneh. And the Tur made a dispute between the Rambam and the Rosh, but according to what I have written, it is one and the same; and this is the intention of the Beit Shmuel in subsection 15, but what he wrote in subsection 16 that we are in doubt whether they are completed or lapsed, see there, according to what I have written this is not necessary, and examine it closely].

From what has been explained, we have learned that one who betroths a woman who is half-bondwoman and half-freewoman—she requires a get, for she is betrothed as a prohibition of a negative commandment, and to make him liable for a sacrifice for cohabiting with her. And if before he gave her a get she was emancipated, and afterwards another betrothed her before the first lived with her in the manner of a husband and wife—she requires a get from both of them, for there is a doubt whether the betrothal of the second took effect or not as has been written, or that one of them shall divorce and the second shall marry her with complete betrothal. And even the second is permitted to divorce her and the first shall marry her, and we do not fear lest they say that the first took back his divorcee after she was betrothed to another, for everyone knows that the betrothal of the first is not complete like all general betrothals as has been written [Chelkat Mechokek and Beit Shmuel], and so it is clarified from the wording of the Tur. However, our teacher, the Beit Yosef, wrote that the first divorces and the second marries. And if both died—the brother of one performs chalitzah and the brother of the second either performs chalitzah or performs yibbum. But the first shall not perform yibbum for perhaps she is the yevamah of the second, but the second performs yibbum in any case—if she is his yevamah, he performs yibbum properly, and if not, she has already received chalitzah from the first and is permitted to the public. And this is not a case of a wife of two deceased men which will be explained in the laws of yibbum that she is forbidden from yibbum, for in any case only the betrothal of one of them takes effect. Therefore, even if the brother of the first betrothed her after the emancipation and they died—she is permitted to their third brother, for she is not a wife of two deceased men [Gemara].

And all this is when the second man betrothed her immediately after she was manumitted before they stayed together, but if the first man lived with her after the manumission as husband and wife, the first kiddushin were completed. For he knows that he betrothed only half of her, and automatically his intention is that his kiddushin should be completed by his intercourse with the whole of her. And also, he surely knows that even regarding the kiddushin of the free half, she was not previously subject to complete kiddushin, but only to a negative commandment and not to death by a beit din like all other kiddushin, and now he completes the kiddushin as with all kiddushin in the world.

And if another betrothed her before she was emancipated, it seems simple that the betrothal of the other does not take effect, for whatever capacity there was for betrothal to take effect in her, the first has already taken effect. And there is one who says that the betrothal of the second takes effect in her, and the reason is that regarding every married woman betrothal does not take effect because there is a liability of the death penalty, but regarding this woman, who is only under a negative commandment, betrothal takes effect in her as with all those liable for negative commandments. And it appears to me that the primary view is like the first opinion, for we do not find a status of marriage after a status of marriage; for since the Torah decreed that betrothal does not take effect in a married woman, there is no longer a distinction between a married woman of those liable for the death penalty and those liable for negative commandments. Furthermore, in the Gemara they were in doubt regarding after the emancipation whether the first betrothal is completed or whether it is voided; and if we say that before the emancipation there is betrothal after betrothal, let us say that also after the emancipation the first betrothal remains as it stands and also the betrothal of the second shall take effect, and it would not be worse than before emancipation. Rather, it is certainly simple to our sages, of blessed memory, that in any case betrothal does not take effect after betrothal, and therefore before emancipation it is certain that the betrothal of the second does not take effect, and only regarding after emancipation were they in doubt, because the betrothal of the second is more powerful than that of the first, therefore there is a reason to say that those of the first are voided.

This which the Rambam, of blessed memory, wrote, that regarding one who is half slave and half free man who betrothed a woman it is a case of uncertain kiddushin, and the uncertainty is that perhaps just as we establish that one who says to a woman "be betrothed to my half" she is betrothed, as written in siman 31, so too here he betroths her with his half that is a free man; or perhaps it is different there because he is fit in his entire body, and that which he said "to my half" his intention was that he would take another, which is not the case here where he is not fit in his entire body since the half slave is not subject to kiddushin. And why regarding a half maidservant did we say that it is definite kiddushin regarding lashes? This is because the Torah decreed so, as it is written, "and she is a maidservant designated for a man" (Leviticus 19:20), and the tradition came that it speaks of a half maidservant and half free woman [Ran]. And why do we not learn slave from maidservant? Because it is a novelty, for these kiddushin are different from all kiddushin in the world, for kiddushin in the world lead to a liability of death and these kiddushin are only for a negative prohibition, and we do not derive from a novelty [it appears to me]. And there is one who says the reason is since the primary acquisition is from the side of the man, and therefore we require that he shall betroth her and not that she shall be betrothed to him; therefore, in a half slave the side of slavery does not come and betroth for the side of freedom, just as with a shofar where one does not fulfill the obligation with his own blowing for this reason, as written in Orach Chaim siman 589. However, in a half maidservant, he only betroths the half that is a free woman and she is nullified to him, and also the side of her slavery can be nullified since this is not an acquisition [Avnei Miluim]. And this is not a sufficient reason, for it is not comparable to a shofar where a man must blow and here a half man blows; but in kiddushin it is not an obligation that he must betroth her, and in the other half the kiddushin take effect and we do not need his side of slavery at all. And if it is because when he cohabits with her the side of slavery will utilize a married woman—behold, it is certainly so, and so the sages, of blessed memory, said in Yevamot [45b], but behold we see that because of this the sages, of blessed memory, did not have an uncertainty [Gittin 43a] to nullify the kiddushin for this reason, for they are not related to one another, and the main point is as I have written.

And there is a question regarding these laws: why did the Rambam, the Tur, and the Shulchan Aruch write them? For we maintain that we compel his master to set him free, as is written in Yoreh Deah siman 267, and he is then like one who is entirely a ben chorin; so how can these laws be found? And the answer is that it can be found where the second half belonged to minor orphans whom it is not possible to compel. Furthermore, even though we compel his master, nevertheless, as long as he has not written him a shtar shichrur, his status is not that of a complete ben chorin, for regarding one who is delayed by a get shichrur, there is a doubt in the Gemara whether his status is like a ben chorin or not, and above in siman 4, section 17, we explained this; see there.