Siman 7

In the time of the Talmud, there were several nations wild in their conduct, such as the Arabs and their like, as is found even now in the edges of Africa, and they would plunder and take souls captive and take ransom money for them. Therefore, a woman captive in their hands is under the presumption that they committed harlotry with her, and she is forbidden to a kohen; for since she is in their hands, who would prevent them from raping her? Therefore, even though a woman is not forbidden to her husband except by way of witnesses who testify that she committed harlotry or by way of kinui and stirah, nevertheless, the captive woman is forbidden to a kohen but not to a Yisrael. For certainly she did not commit harlotry willingly, and even though when she is delivered into their hands to be killed it is possible that she would consent to them, as will be explained, and this is not considered an ones—for it is only called ones when she is coerced regarding the act of cohabitation itself, but not when she is coerced by means of another matter and consents to the cohabitation, for that is complete will—yet why is she not forbidden to her husband who is a Yisrael? It is because the captors, almost all of them, their primary intent is for the ransom money, and the women know this and do not fear that perhaps they will kill them; therefore, to a Yisrael they are permitted, but to a kohen she is forbidden. And any woman who is older than three years and one day is under the presumption that she was cohabited with, and if she is unmarried, she is forbidden to marry a kohen, and if she is the wife of a kohen, she is forbidden to her husband unless she has witnesses that she was not cohabited with. And the sages were very lenient regarding their testimony, as will be explained. And the reason was written by the Rambam, of blessed memory, in chapter 18 of Hilkhot Issurei Biah: since it is only a doubt whether she was cohabited with, and all doubts are permitted by the Torah, and only by rabbinic decree is a doubt regarding a Torah matter treated stringently, therefore they were lenient regarding it. And he follows his reasoning that a doubt regarding a Torah matter is by the Torah treated leniently. And according to the poskim who hold that by the Torah it is treated stringently, there is another reason why they were lenient regarding it: because the upright daughters of Israel strive even at the time of their captivity to escape so that they are not cohabited with, and they perform every tactic and make themselves repulsive to the captors so that they do not set their eyes upon them; therefore, they were lenient regarding their testimony. And know, that in our times in all the kingdoms, when a woman sits in the government prison because of some sin, there is no concern regarding them that they will be cohabited with by the empty ones who dwell there, because the government supervises this so that no mishap occurs to them, and they punish with harsh punishments one who wants to afflict them, and at night they lock the women in a room by themselves—therefore they are permitted to their husbands who are kohanim [it appears to me].

There is one who wrote that since a woman is not forbidden to her husband except by witnesses or by kinui and stirah, this which the sages forbade the captive woman to a kohen is because they applied a higher standard to lineage [Beit Shmuel subsection 1 and subsection 34 in the name of Maharik 160]. However, this does not seem so from the Talmud and the poskim, for in the Gemara [Kiddushin 12b] they said that they were lenient regarding a captive woman because she makes herself repulsive, and the Rambam says the reason is because all cases of doubt are permitted by the Torah. Furthermore, it is explicit in the Gemara [Ketubot 13b] that a captive woman is as if there are witnesses that she was raped, for they are licentious in forbidden relations and we are all witnesses that she was raped [Rashi]. This shows explicitly that it is a Torah prohibition, except that they were lenient regarding their testimony because of the reasons we explained, and so it is proven from several places [and Rabbi Dosa ibid. 36 holds so, and this is the approach of the Yerushalmi there which ruled like Rabbi Dosa and not the approach of our Talmud; and the Maharik wrote the essence of the matter regarding yichud, but a captive woman is like witnesses; and the Beit Shmuel himself in subsection 23 wrote that the poskim do not hold like him, and only according to the explanation of the "there are those who say" in Tosafot Kiddushin there are his words correct, but all the poskim disagree on this, and examine this well].

A captive woman who married an Israelite and he found her to have virginity and he died—she is permitted to a kohen, for the matter has been revealed that she is pure [ibid.]. And there are those who were concerned that perhaps the captor performed initial contact with her and she became forbidden to a kohen while her virginity remained intact [Taz]—but this does not seem correct, for why should we be concerned for an uncommon matter such as this, for who would have hindered him if he were to complete his act of intercourse? And presumably he would have fulfilled his desire; rather, she is certainly pure [Noda BiYehudah Tinyana 29]. However, regarding this itself, who testifies to this? For if we rely on the Israelite husband, behold, his wife is like his own body, and just as she is not believed, so too her husband is not believed, as will be explained. And one cannot say that specifically regarding himself he is not believed but regarding after his death he is believed, for if so, a husband and his wife who were captured and he is an Israelite, he should be believed to testify that she was not defiled and she would be permitted to a kohen after his death, and we have not found this in the Gemara or the poskim [ibid.]. Nevertheless, it seems to me that even though from the law of testimony he is not believed—nevertheless, in this he is believed to say that she was a virgin since for him there is no practical difference in this and she was established as a complete virgin, and automatically she is permitted afterwards to a kohen by power of a hazakah. Furthermore, it is possible that women saw her virginity on the sheet and they are believed to testify regarding a captive woman, as will be explained with the help of Heaven.

Everyone is believed to testify that she is pure—even one witness, even a woman, even a relative. And even the five women who may not testify for her that her husband died, as written in siman 17—her mother-in-law, her mother-in-law's daughter, her co-wife, her sister-in-law, and her husband's daughter—may testify regarding a captive woman. For there we fear that due to their hatred, their intention is to ruin her so that she will marry another, and when her husband arrives, she will be forbidden to both; but here, when they testify that she is pure, how would they ruin her? On the contrary—previously she was forbidden to her husband the kohen, and based on their testimony she will be permitted. And one cannot say that they know there are two witnesses that she was defiled, and therefore they testify so that she will be with her husband, and when the witnesses arrive she will be forbidden to her husband and also the children will be chalalim; for if so, why should they testify? For without their testimony she is forbidden to her husband. And to suspect them that their intention is to also ruin the children she will bear—we do not suspect them to such an extent. Furthermore, regarding children who are chalalim, the ruin is only for the father the kohen, but for her there is no practical difference in this, for the chalal is a fit Israelite like all the Children of Israel, and is only disqualified from the priesthood [for a captive woman is not similar to an agunah, for regarding an agunah she herself is believed to say her husband died, which is not the case regarding a captive woman].

According to the opinion of the Rambam, of blessed memory, every relative is trustworthy to testify, even her adult son and daughter, and every minor, even if he is not a relative, is not trustworthy to testify, except when speaking inadvertently [mesiach lefi tumo] he is trustworthy, like the incident brought in the Gemara [Ketubot 27b] regarding one who was taken captive, he and his wife and their son, and the son spoke inadvertently and said: "We were taken captive among the Arabs, I and my mother; I went out to draw water, my mind was on my mother; I went out to gather wood, and my mind was on my mother," and the sages married her to a kohen based on his word. And according to the opinion of the Rambam, this son was a minor, and therefore they required him to speak inadvertently, and not because of his kinship. But most of the poskim disagree with him and hold that a minor can testify when he is not her son even without speaking inadvertently, but her son and daughter, even if they are adults, are not trustworthy to testify—only when speaking inadvertently are they trustworthy; and the incident we cited, he was not a minor, but rather because he was her son, therefore they did not believe him unless he spoke inadvertently. And in the Yerushalmi there [Chapter 2, Halacha 9] it implies explicitly that even her minor son can testify, see there, but this is not the way of our Talmud. And similarly, a male slave and a female slave are trustworthy to testify, and even the husband's female slave, but her own female slave is not trustworthy except when speaking inadvertently, for her female slave is attached to her and is not trustworthy without speaking inadvertently. And the husband is not trustworthy in any case, even when speaking inadvertently, just like she herself, for his wife is considered like his own body. And even with an oath he is not trustworthy [as is proven from Rabbi Zechariah in Halacha 9 there], for the fact that they believed a woman to say that her husband died is because she is afraid to ruin herself if she marries and the first husband comes, as I wrote in siman 17, but regarding a captive woman who has no fear that she will ruin herself, she is not trustworthy even when speaking inadvertently, for regarding the interested party themselves, "inadvertently" is not applicable, and similarly the husband, who is considered like her own body. And two captive women who testified, each for her fellow—they are trustworthy, and we do not fear reciprocal testimony [gomlin], for they were lenient regarding the testimony of a captive woman for the reasons we explained in section 1. Nevertheless, some say that a gentile is not trustworthy to testify, and even when speaking inadvertently he is not trustworthy. And even though to testify that her husband died he is trustworthy when speaking inadvertently, as I wrote there, but to testify regarding a captive woman that she is pure, his testimony is nothing. And the reason seems to me to be that the testimony of a captive woman is when he testifies that his hand almost did not move from her hand, and if so, if he was secluded with her constantly, there is no greater disqualification than this; and according to this, a gentile woman would be trustworthy. And there are those who are lenient regarding a gentile speaking inadvertently, and thus the great Acharonim ruled. And his testimony can be that he spoke inadvertently that all the time he and other men and women were with her constantly, and she was not secluded with him alone for a long time. And hearsay testimony [ed mipi ed] is also valid regarding a captive woman. [The dispute between the Rambam and the poskim I wrote according to the Gra, subsection 2, and with what I wrote the difficulty of the Chelkat Mechokek, subsection 2, is answered, and the words of the Beit Shmuel are not sufficient, and examine it well].

Our teacher, the Rema, wrote in section 2 that a masiah lefi tumo is only believed to be lenient and not to be stringent. Thus far his words. The explanation of his words: when a Gentile comes and is masiah lefi tumo and says that she is tamei—we do not establish her as certainly tamei, but rather she remains as she was before. And so too regarding an agunah, when he said as a masiah lefi tumo that her husband is alive—it is as if he said nothing and she remains in doubt. And the practical difference is when one valid witness comes to testify on this and testifies that she is tahorah, or regarding an agunah that her husband died—we permit her. But if one Gentile is masiah lefi tumo that she is tamei and one is masiah lefi tumo that she is tahorah—we do not permit her, for so our teacher, the Rema, explicitly ruled in siman 17 regarding an agunah. And even though there are those who are lenient there—we do not hold accordingly. Nevertheless, some say that regarding a captive woman, even in such a case she is permitted, and it is not similar to an agunah who stands in the hazakah of a married woman and we establish the husband in the hazakah of being alive, and this Gentile who is masiah lefi tumo that her husband is alive establishes her in her hazakah; and how could we permit her by means of the masiah lefi tumo who said her husband died and remove her from her hazakah in a place where there is a contradiction against him? But regarding a captive woman, does she not have a hazakah of kashrut except that we forbid her? Therefore, this one who is masiah lefi tumo that she is tahorah establishes her in her hazakah, and this one who is masiah lefi tumo that she is tamei, there is nothing in his words to remove her from her hazakah. And it is a logical reason, for behold, all those disqualified from testimony are not believed to be stringent, and even one witness is not believed to be stringent when there is a contradiction against him as will be explained, for behold, one witness in a case of contradiction is nothing, and here she says she is tahorah, and granted that she is not believed—nevertheless, when there is a masiah lefi tumo who supports her, behold she is believed, and this one who contradicts her, there is nothing in his words.

There are some of our teachers who wrote that even though they validated all those who are disqualified for the testimony of a captive woman, nevertheless, one who is a robber by Torah law and all those disqualified due to a transgression from the Torah—are disqualified just as in the testimony of an agunah, as is written in siman 17 [the Maggid Mishneh, chapter 18 of Hilkhot Issurei Biah, and the Shittah Mekubetzet in the name of the Ritva], for since he is brazen enough to publicly transgress the words of the Torah, they did not validate him for the testimony of a woman [Rashi at the end of the first chapter of Rosh Hashanah], and the same applies to a captive woman.

A kohen who testified regarding a captive woman that she is pure—he may not marry her, lest he set his eyes upon her. And if he did marry her, it is explicitly stated in the Tosefta [Yevamot ch. 4] that he need not divorce her, as this is merely a general concern. Another kohen is permitted to marry her initially, and we do not say that because he wanted to marry her he testified falsely [Chelkat Mechokek and Beit Shmuel], since regarding himself it is only a general concern. And if he ransomed her with money and testified regarding her that she is pure—he is permitted to marry her initially, for had he not known clearly that she is pure, he would not have spent his money on her. Similarly, if it is not known at all that she was in captivity, and only this kohen knew and knows that she is pure—he is permitted to marry her [Beit Shmuel]. And similarly, the wife of a kohen who became forbidden to her husband—this is when it is known that she was in captivity, but if it is known only to the husband and he knows that she is pure—he is permitted to dwell with her. And similarly, even if there are witnesses that she was a captive, but it is not known that he is a kohen—he is permitted to marry her by way of a migo, as he could have said that he is not a kohen [see Beit Shmuel]. And if two kohanim testify about her—one of them may take her, for two are not suspected [Birkei Yosef]. And similarly, if one kohen testified regarding a married woman that she is pure—he is permitted to marry her after the death of the husband, for it is not relevant to suspect him since she had a husband. And similarly, if the kohen had a wife in a place where they do not marry two women and afterwards his wife died, he is permitted to marry her for this reason [ibid.].

This fact that a captive woman is not believed regarding herself that she is pure—this is specifically when she has no migo, such as when witnesses know that she was taken captive; but if she said, "I was taken captive and I am pure," she is believed, for "the mouth that prohibited is the mouth that permitted." And even if there is one witness that she was taken captive, and even if he testifies that she was defiled, for one witness regarding defilement is nothing except regarding a sotah alone [Rashi, Ketubot 23]. And even though regarding monetary matters we do not say migo to contradict a witness, as is written in Choshen Mishpat siman 75, this is because in monetary matters one witness establishes the requirement for an oath, which is not the case regarding a matter of prohibition [Beit Meir].

If there were two witnesses there that she was taken captive, and one witness testifies that she was defiled and one contradicts him and testifies that she is pure, that she was not secluded with a gentile until she was ransomed, even if the witness who testifies to her purity is a slave or a maidservant—she is permitted. We do not say in this case that wherever the Torah believed one witness he is as two, and we also do not say place witness against witness and she remains in the status of a captive, for the sages were very lenient regarding a captive, even though regarding an agunah it is not so, as I wrote in siman 17. And if two say that she was taken captive and is defiled and two say she was taken captive and is pure—she shall not marry, but if she married she shall not leave.

The woman herself who said "I am impure," and one witness testifies that she is pure – she is believed to forbid herself to her husband, and we do not fear that perhaps she set her eyes on another, since in any event she is a captive, and the presumption of the Arabs being licentious in forbidden relations is no less than "grounds for the matter" such that she is believed. But if two valid witnesses testify that she is pure – she is not believed to forbid herself to her husband, and it is not within her power to remove herself from him. However, if she is unmarried – she is believed to forbid herself to a kohen, for she has made herself a "forbidden piece," and likewise she is forbidden from terumah if she is the daughter of a kohen. And if she subsequently gives a justification for her words regarding what she said, "I am impure," and now she retracts – she is believed if the beit din sees that it is a proper justification.

One who said, "I was taken captive but I am pure," and the beit din permitted her to marry, and afterwards two witnesses came [and testified] that she was taken captive—she may marry ab initio and she does not lose her permitted status. And even if the captor entered after her and she is a captive before us in the hand of her master, but she used artifice to request of the captor that he not enter the beit din with her so that they would believe her by law when she has a migo, nevertheless she does not lose her permitted status. For the sages did not go in these matters to be stringent. And this is not considered artifice, for she acted well since she knows that she is pure, and since the matter emerged with permission—it has emerged, and we guard her from now on until she is redeemed. And even though until now they did not guard her—nevertheless, from now on the obligation is cast [upon us] to guard her. And it is not only necessary [to say] when she emerged with permission that we must guard her, but even if she entered together with the captor, in which case it is like witnesses of captivity since she is held in the hand of the captor and is forbidden to a kohen—nevertheless, the obligation is upon us to guard her from now on. And even if they defiled her—we are obligated to guard that she not be defiled further [Maharsha, Ketubot 23a]. However, if afterwards two witnesses came [and testified] that she was defiled, even if she married a kohen and had children from him—she must leave, and the children are challalim. And if one witness testifies that she is defiled—it is nothing, as I have written that one witness regarding defilement is nothing. And if two testify that she is defiled and two testify that she is pure, it appears to me that we establish two against two and establish the woman upon her presumption of purity. And even though in every [case of] two against two we are stringent—nevertheless, regarding a captive woman one may be lenient. And it is not only necessary [to say] that if she married a kohen she does not leave, but even ab initio she is permitted to marry, and the proof is from the law that was explained in section 10. And it is possible that ab initio she should not marry when there are two witnesses of defilement.

Just as we said regarding one who says "I was taken captive and I am pure" and the beit din permitted her, she does not leave her permitted status even if witnesses of captivity came afterward, so too even if the beit din had not yet permitted her, but she married a kohen in the presence of a beit din and the beit din did not protest against her because they were not required to protest according to the law since she has a migo, and afterward witnesses of captivity came – she does not leave, for the fact that they did not protest is as if they permitted her. But if she married a kohen privately and afterward witnesses of captivity came – she must leave, just as with the wife of a kohen when two witnesses came that she was taken captive, that she must leave since she had no permission from a beit din. And some say that even in this case she does not leave, for it is not similar to the wife of a kohen, because here since she was unmarried and was able to marry an Israelite – she is certainly pure, for she would not leave that which is permitted and consume that which is forbidden. And so too some say that if there are no witnesses that she was taken captive, and she did not come to a beit din so that they would permit her, and one kohen knows she was taken captive and she says to him "I am pure" – that he may marry her with the migo that she could have married an Israelite. And there are those who hesitate regarding this, and so it appears, for what migo is it, perhaps she set her eyes upon him, and so too one should hesitate for this reason regarding the previous permission. However, this is certainly according to everyone – regarding the wife of a kohen where the husband knew she was taken captive and does not know if she is pure or not – it is forbidden for him to dwell with her even though besides him it is not known to any person that she was taken captive; nevertheless, since he knows and she has no migo whereby she could have said to him "I was not taken captive," by what can he believe her. However, when it is clear to him that she was not defiled, she is permitted to him as I wrote in section 8.

A woman who has no witnesses that she was taken captive, and she said before a beit din, "I was taken captive and I am pure, and I have witnesses that I am pure"—we do not say we shall wait until the witnesses arrive, but rather we permit her immediately, for regarding a captive woman they were lenient. Furthermore, even if the witnesses arrived later and said, "We do not know"—this woman shall not be removed from her permitted status, and even if they know she was taken captive. Furthermore, even if a rumor spread about her that there are witnesses of defilement against her—we do not pay attention to this and we permit her until the witnesses arrive and we hear what is in their mouths, for regarding a captive woman the sages were lenient. And one should not say: how can we permit her to a kohen when perhaps the rumor is true? For it can be said that we permit her on the basis that if she knows she was defiled, they will remove her from her husband when the witnesses arrive, and if she was not concerned, why should we be concerned, for according to the law a mere rumor has no substance. However, a rumor that was substantiated in a beit din—it is certainly proper to be concerned and to wait for the witnesses. And there are those who are lenient even in this, but it is a great leniency, and it requires further study for the law.

A father who said, "My daughter was taken captive and I ransomed her, and she is forbidden to a kohen," whether she is an adult or whether she is a minor – he is not believed to forbid her to the priesthood. And even though the Torah gave credibility to a father to say "I betrothed my daughter to so-and-so" or "I betrothed my daughter" without specification and she is forbidden to the whole world, as is written in siman 37, nevertheless, regarding a captive woman, the Torah did not believe him. And similarly, if he says she had an illicit sexual encounter – he is not believed, for it only believed him regarding kiddushin. And even though through kiddushin he has a migo to disqualify her from the priesthood when he says "I betrothed her and divorced her," and why should he not be believed to disqualify her through captivity or through an illicit sexual encounter? For it is not comparable, since through divorce he only disqualifies her from the priesthood and not from terumah, whereas in these cases he disqualifies her also from terumah [Beit Shmuel]. And even though if she is the daughter of an Israelite there is no practical difference in this, nevertheless, this is not a migo that we should believe him since in this there is more stringency. And not only that, but he does not even join as a witness when another comes and testifies that she was taken captive [ibid. and Be'er Mayim], unlike the one who differs in this; and he is not believed at all to disqualify his daughter or his wife, and he is believed only in that which the Torah believed him.

The wife of a kohen who became forbidden to him because of being a captive, since the matter is a doubt—she is permitted to dwell with him in the same courtyard, provided that his sons and the members of his household are always with him to guard him. But if she is certainly defiled—it is forbidden to dwell with her in the same courtyard, and even in the same alleyway, as with a divorcee, which will be explained in siman 119. And even according to the poskim there that when she committed adultery willingly she is permitted to be even in his house because she is repulsive to him, nevertheless, in the case of a captive it is forbidden, for she was defiled by compulsion and is not repulsive to him. And regarding that which they were lenient in the case of a captive, even though in the Gemara it implies that the permission was because the husband knew she was not defiled, nevertheless, the Rambam, the Tur, and the Shulchan Aruch did not distinguish in this, since ultimately the husband is not believed and she is forbidden to him by the law; if so, there is no difference between whether he knows she is pure or whether he does not know.

A city that comes under siege and was conquered, if there were gentiles surrounding the city from all its sides so that not one woman could escape without them seeing her and her being in their domain—behold, all the women within it are disqualified as captives, lest they were cohabited with, except for one who is three years old or younger. And if it were possible for a woman to escape without them knowing of her, or if there was one hiding place in the city, even if it only holds one woman—behold, this saves everyone. How does it save? For every woman who comes to beit din and says "I am pure"—she is believed even though she has no witness, because she has a migo, since she could have said "I escaped when the city was conquered" or "I was in a hiding place and was saved," therefore she can say "I did not escape and I did not hide and I was not defiled." But every woman who did not come to beit din to say "I am pure"—she is in the presumptive status of being defiled due to doubt. And some say that she does not need to come to beit din at all, for since there is a place that saves, they are no longer in the presumptive status of captives. And all this is regarding a troop of that same kingdom who settle in the city and are not afraid—therefore we are concerned regarding them lest they cohabited, but a troop of another kingdom that spread out, flooded, and passed through—the women were not forbidden, because they do not have leisure to cohabit as they are occupied with plunder and are fleeing. However, if they were quiet and secure and were not hurrying to flee—the women are forbidden. And if in their flight they captured women and they became in their domain, even though Israel pursued them and saved them from their hand—behold, they are forbidden. And even though they were preoccupied with their flight, nevertheless, since they were actually in their hands, you have no greater captives than these, and in their flight they defiled them since they were in their hands, and this is the method of the Rambam, of blessed memory, in chapter 18 of Issurei Biah and the Shulchan Aruch.

And some say that, on the contrary, in a siege of another kingdom the women are forbidden because there is no protection from the kingdom over the city, but in a siege of that same kingdom the women are permitted, for the kingdom supervises that no incident should occur to any of the city's inhabitants, and specifically when the protection around the city is good, such as with many troops who guard so that robbers and looters do not enter the city; but without this they are forbidden, for a time of war is like ownerless property [Rashi Ketubot 27a]. And that we should suspect perhaps the troops themselves committed a wicked act – we are not concerned, because the fear of the kingdom is upon the troops. And it appears to me that in the law these opinions do not disagree, for certainly in a siege of that same kingdom where there is a command from the king to protect the people of the city, even the Rambam admits, and on the contrary, according to the Rambam we would not require the protection to be so good, and even without it we are not concerned for her [see there in Tosafot and examine carefully]. And if the kingdom left the city as ownerless property, in the manner they do to cities that rebelled against the kingdom, even this opinion admits that they are forbidden. And some say that in all cases they are forbidden – whether in a siege of that same kingdom or of another kingdom, because the evil inclination for transgression is strong and we are concerned that they raped them [the Rif and the Rosh and the Ramban and the Rashba who ruled like Rabbi Meir there]. And there are those who are even more stringent, that even when there is a place to flee they are forbidden, for we are concerned that due to the fear of the troops they were terrified to flee; however, we do not rule accordingly [Beit Shmuel]. However, even according to these opinions – if there is fear of the king and the ministers upon the people that they should not commit an injustice against the people of the city and they punish whoever does something improper – there is no concern for the women, and therefore in all the wars in our times we are not concerned for the women who come under siege, because all the kingdoms in our times supervise this extensively so that no disaster should occur to the people of the city, and if one rapes a woman his punishment is very great.

The Rambam, of blessed memory, wrote: A woman who was imprisoned by gentiles on account of money matters—she is permitted. On account of capital matters—she is forbidden to the kehunah, and therefore if her husband was a kohen—she is forbidden to him. In what case does this apply? When the hand of Israel is powerful over them and they are afraid of them, but when their hand is powerful, even on account of money matters—since she has come under their authority she is forbidden, unless one witness testifies for her as a captive. Thus far his words. And the Rambam holds that even if she was imprisoned on account of capital matters she is only forbidden to a kohen, but we do not fear that perhaps she consented to them willingly and would be forbidden also to her Israelite husband, for the majority of Israelite women are modest and would not consent to this. And on account of money matters—she is permitted even to a kohen, for they are afraid that if they defile her they will lose their money since the hand of Israel is powerful. And specifically when the Israelite owes them money, for then they are afraid lest they lose from their own pocket, but if money is not owed to them but rather they seized her so that they might ransom her for money—she is forbidden to her husband who is a kohen, for this is the essence of a captive, as in this case they do not fear a loss since they are not losing from their own pocket.

And some say that even if they seized her in order to ransom her for money—she is permitted post facto to her husband who is a kohen, just as in the case of seclusion with a gentile where it is initially forbidden to be secluded, but post facto we do not remove her because of the seclusion, and this view has supporting evidence in the Gemara. And a captive woman who is forbidden to a kohen is different, since they acted with the conduct of bandits it is certainly a near certainty that they will come upon her, but in a manner of seizure we do not forbid post facto just as in seclusion, and even if their hand is powerful she is permitted according to this view.

And even according to the first opinion which forbids even post facto, nevertheless, this is all when they seized her and she is delivered into their hands. But if she was secluded with him even for a long time, and even if their hand is powerful and even if she owes them money – we do not forbid based on the seclusion, even though she acted not according to the law. And even if a rumor of promiscuity went out about her, we do not concern ourselves with any rumor that arises after marriage to forbid her to her husband. The reason is that since she is not delivered into their hands, if he wants to rape her, she will cry out and they will save her. And although some wish to say that if she remained for a long time she is forbidden even post facto, nevertheless, the primary ruling is as I have written [ibid.]. The general rule of the matter: even according to the first opinion she is not forbidden to her kohen husband unless she is delivered into their hands and remained for a long time, but with only one flaw – she is permitted post facto [ibid. subsection 33]. And for this reason, one can find merit for the practice of several of the upright daughters of Israel who travel to estates and are secluded with them for a long time, and travel to fairs without a guard; for as long as she is not delivered into their hands by way of seizure, we do not fear that they will rape her, for she would cry out and be saved [Chavat Yair]. However, this is all post facto and so as not to remove her from her kohen husband, but initially, one who guards his soul should distance himself from this, unless she entered his house for a brief moment, for this is permitted even initially, for if not so, you have not left a daughter of our father Abraham who is the wife of a kohen remaining under her husband, as it is impossible that she would not be secluded with a gentile for a brief moment [Tosafot ibid.]. And know that this reasoning that we wrote, that since she has the ability to cry out she is not forbidden, is found in the Yerushalmi there; and even a deaf-mute has the ability to gesture and be saved [ibid.].

Our teacher, the Rema, wrote at the end of section 11: However, if she secluded herself for the purpose of prostitution—one should be stringent. Thus far his words. Some say that his intention refers to an unmarried woman who secluded herself for the purpose of prostitution, such that they forbid her to a kohen; for it cannot be explained as referring to a married woman, since they do not forbid based on seclusion even if they secluded themselves for the purpose of prostitution, as is written in siman 175, see there. And some explained his words as referring to a married woman, and that which was explained in siman 175—that they do not forbid even in such a case—that is where she secluded herself with an Israelite, but here it deals with one who secluded herself with an Arab, or that there it deals with the wife of an Israelite while here it stands regarding the wife of a kohen; and even though regarding seclusion of her own will there is no difference between an Israelite and a kohen, nevertheless one should be more stringent regarding a kohen because they made a higher standard for the lineage of the priesthood. And some also explained that it deals with a married woman, and certainly by the letter of the law they do not compel him to divorce her, as is written in siman 175, but rather that our teacher, the Rema, said that the husband himself should be concerned and be stringent. And it appears to me that our teacher, the Rema, stated a law, and regarding a married woman below in siman 178 it deals with a case where a rumor of prostitution did not emerge about her, but here it deals with a case where a rumor of prostitution did emerge about her, as is proven from his previous words; therefore it is like "feet to the matter" [circumstantial evidence] such that they forbid based on seclusion in this case even for the wife of an Israelite, if the seclusion was for a long time. And similarly, an unmarried woman who secluded herself for the purpose of prostitution—certainly ab initio they forbid her to a kohen; however, if she married—she does not leave when she says "it is clear to me that I was not cohabited with," for it is no worse than one who says "I was cohabited with by a fit person," where she is believed. However, if a rumor also emerged and the rumor was established in beit din—she must leave if she married a kohen. And a wife of an Israelite who secluded herself and said "I was raped," this was an incident in the times of the early authorities—and there were those who forbade her, saying that she is not believed with a migo of "I was not cohabited with" to say "I was cohabited with by rape," since she transgressed the law and secluded herself; but the Raviah permitted her, for on account of seclusion she did not lose her migo, for do all women know the law? And furthermore, a woman is not forbidden to her husband except through a warning and seclusion—and such is the primary ruling.

Regarding that which the Rambam, of blessed memory, wrote, that when she was imprisoned by those who deal with capital cases she is forbidden to the kehunah, there are some of our teachers who hold that she is forbidden even to her husband who is a Yisrael. For it is a near certainty that she consented due to the fear of death and imagined that through this she would be saved from death. According to the law, we are concerned for this because such is human nature, that from the fear of death one's mind becomes confused—unless she is a completely modest woman who surrenders herself to death, and this is not common [see Tosafot ibid. 26b; and that which Rashi and Tosafot wrote, that we are concerned lest she consented, their intention was not a mere apprehension, but rather that according to the law we must be concerned as the Hagahot Mordechai wrote, and the words of the Beit Shmuel, subsection 23, require further study]. And if it is known that the woman is completely modest, she is permitted to a Yisrael and we are not concerned that she consented [Yam Shel Shlomo ibid. in the name of the Sefer Mitzvot Katan]. And there were those who wished to permit a completely modest woman even to a kohen, because she would surrender her life to be killed before they would rape her; however, one should not permit based on this reason unless there are other combinations of factors for a permissive ruling [ibid. in the name of Terumat HaDeshen].

And there are some of our teachers who raised a difficulty regarding this, for since the consent is due to fear, is this not duress? And how could they forbid her to an Israelite? [Rashba ibid.] And a proof for this is from what our sages, of blessed memory, said [ibid. 91b] regarding women whom thieves kidnap, that even though they see that the women assist them in their work and bring them bread and arrows—nevertheless, they are permitted to their Israelite husbands, for we say that everything they do is due to fear. Consequently, anything done due to fear is not called consent. And furthermore, if so, why should a captive woman not be forbidden to an Israelite? Let us be concerned that perhaps due to fear of death she consented [ibid.].

It appears to me that they do not disagree at all regarding the law. Behold, it is certainly so that everyone admits that when she consents to the act of intercourse in order to save her life from death, she becomes forbidden to her Israelite husband; for whenever the duress is not upon the act of intercourse itself, this is not considered duress, as I wrote in section 1. For if it were not so, you would never find complete will in a get or in other matters. However, this is specifically when she exerts effort so that he will come upon her, such as by adorning herself before him or enticing him with words. But if she does nothing at all, rather he comes upon her and out of fear she remains silent and does not stand against him—this is called duress. For duress and will depend upon the heart regarding the transgression itself, and when she does not consent in her heart, even though she remains silent, it is nevertheless called duress; for what is there for her to do? And the proof is from Esther. According to this, the Rashba, who raises a difficulty against the opinion of our teachers who forbid her, thought that they interpret that the murderers come upon them and they remain silent, and even so our teachers forbade them; and he rightly raised the difficulty. But in truth, their intention is that because of the fear of death, she will exert effort so that he will come upon her, so that perhaps through this she will be saved from death; and so they wrote explicitly. And so it is regarding women whom thieves kidnap and take out to the forests, and the women do out of fear everything they are commanded—and this is complete duress. And so too regarding a captive woman, why would she exert effort so that the captor comes upon her, for is it not so that most captors intend to obtain money? And if his inclination overcomes him to come upon her, even if she remains silent out of fear that he might kill her—nevertheless, this is duress as I wrote. But here, in the case of one imprisoned by them and facing death, we concern ourselves that out of the faintness of her heart she will exert effort so that he will come upon her, perhaps she will be saved from death through this. And only the Rambam and his faction hold that we do not need to concern ourselves with this, that she will exert effort, but regarding the fundamental law, everyone is equal.

And proof for this is from the words of our teacher, the Rema, who wrote that there are those who say that in any case where she expects to be released through ransom and return, she is not forbidden to her husband who is a Yisrael, for she does not consent even though she is imprisoned on her own account. Thus far his words. And behold, we are witnesses that even though she expects to go out through ransom, nevertheless, if the captor comes upon her, she will let him and not stand against him because she will fear to anger him; rather, the permission is that she will not strive for him to come upon her since she has another means of rescue through ransom.

And what is called "on account of lives"? Either when she sits [in prison] on account of her own matter where there is a fear of death, or when they sit imprisoned on account of their husbands, for such was the custom in ancient times that even though there was a death sentence for the man alone, they placed his wife and all his household in prison as well, and they were abandoned to anyone who desired, whether to kill them or to violate them. However, when they sit imprisoned on account of their husbands—they are not forbidden unless the judgment of their husbands for death was finalized, for then they abandon their wives and all that they have. And in our kingdoms, this law is not relevant at all, for they are kings of kindness and do not have these ugly laws. Our teacher, the Rema, wrote that in ancient times during a period of wrath and great slaughter, may the Merciful One save us, our rabbis permitted the women to their Israelite husbands, in accordance with the opinion of the Rambam; and even according to those who disagree, consent would not have availed then since there was great slaughter.

An incident occurred involving the wife of a kohen who was imprisoned, and Jews were entering and exiting her presence, and Maharam of Rothenburg permitted her to her husband, for in such a case it is not considered a place of seclusion. And it is possible that even if she was imprisoned for a capital offense – she is permitted to her husband when she says that she was not defiled, and so it is implied from the arrangement of the wording of our teacher, the Rema, in section 11, and it appears that this depends on the perception of the beit din according to the nature of the place.

A Yisrael who converted to the religion of the Ishmaelites, he and his wife, and they returned—his wife is permitted to him, and we do not fear that perhaps she committed adultery while under him, for they do not treat their women as common property and they guard them; and even if her husband is a kohen, she is permitted to him. But if she alone converted, she is forbidden to her husband even if he is a Yisrael, for she certainly committed adultery, and she requires witnesses or one witness. And one may be lenient regarding her testimony as with a captive woman, since it is not certain that she committed adultery. But she herself is not believed, and it appears that the testimony of her maidservant, her son, or her daughter is not accepted except when speaking in innocence, for it is no better than a captive woman. And even though there are those who wish to be lenient and say that we do not fear that perhaps she committed adultery—we do not rule accordingly, and so all the great Acharonim agreed. However, during times of decrees when they converted due to duress, after the duress has passed, they are permitted to their Yisrael husbands, for they certainly did not commit adultery willfully. And even to kohanim, if according to the matter they were not delivered into their hands to do with them as they pleased, they are permitted. Our teacher, the Rema, permits them even to kohanim, and the Acharonim cast doubt on this. And a woman whom they incite and she promised to convert and then retracted—she is permitted because of this even to her husband who is a kohen. But if there was seclusion for a long time, in this one must look according to the nature of the seclusion.

Who is a challalah? Our sages, of blessed memory, stated a great principle [Kiddushin 77a]: There is no challalah except from prohibitions of the priesthood, whether a kohen who had relations with a woman forbidden to him by the law of the priesthood—she becomes a challalah, or the offspring born from prohibitions of the priesthood—he is a challal, for even if this offspring married a woman permitted to him, such as a challal who married the daughter of an Israelite, she becomes a challalah and the offspring born is a challal until the end of all generations. However, from a prohibition common to all, such as arayot, or those liable for a negative commandment or a positive commandment, such as a mamzeret, an Egyptian woman, or an Edomite woman, even if a kohen has relations with them—they do not become a challalah but rather a zonah. And upon the second act of relations she becomes a challalah, for he has had relations with a zonah, and a zonah is among the prohibitions of the priesthood. Furthermore, even from a prohibition of karem where she does not become a zonah, such as one who has relations with a niddah, who does not become a zonah as I wrote in siman 6, I would have said: when does she not become a challalah? When she becomes a zonah, but in a case where she does not become a zonah, let her at least be a challalah? Nevertheless, it is a decree of the Torah that there is no challalah except from prohibitions of the priesthood alone [and the difficulty of the Beit Shmuel, subsection 35, is answered].

Therefore, a kohen who has relations with a zonah or a divorcee, and a Kohen Gadol who has relations with them or with a widow, or who married a non-virgin and had relations with her—behold, these are profaned forever; and if he fathered a child from her, whether it was this one who profaned her or another kohen, the offspring is a chalal, whether male or female. She herself becomes profaned by his act of relations once he has performed initial penetration, whether he had relations with her inadvertently, or willfully, or by coercion, or by will. This is provided that the kohen is nine years of age or older and she is three years of age or older. However, a kohen who betrothed one of those forbidden to the priesthood and she was widowed or divorced from the betrothal—she is not profaned. But from marriage—the Rambam, of blessed memory, wrote in chapter 19 of Issurei Biah that even though she did not have relations, she is profaned, for every married woman is presumed to have had relations even though she is found to be a virgin. Thus far his words. It is implied from his wording that even though it is known that she did not have relations, she is profaned. However, in the Yerushalmi Yevamot it is stated explicitly that if he did not have relations with her, she is not profaned. Also from his wording it is implied so, since he wrote that she is presumed to have had relations, implying that if it is known that she did not have relations, she is not profaned; and that which he wrote "even though she is found to be a virgin"—he means that we concern ourselves that perhaps he performed initial penetration and her virginity remains. To this the great later authorities agreed. And there are those who wrote that we follow the stringent view in this, that she becomes a chalalah and her children are questionable chalalim, but it is difficult to rule against the Yerushalmi. (And they did not cite it; and that which the Gra wrote, that he ruled like Rav in Yevamot 57b and according to the explanation of Rabbeinu Tam, requires further study from what the Rambam wrote in chapter 7 of Terumot, see there; and also in the Tosefta it is explicit as I have written; and also according to Rabbeinu Tam and Rav, it seems to me that it is only regarding terumah, but how could she become a chalalah without relations, as the Chelkat Mechokek wrote? And it is not comparable to a ketubah or a claim regarding virginity as the Beit Shmuel wrote, and examine this carefully.)

The kohen himself who transgressed and cohabited with one of the prohibitions of the priesthood is not profaned. The reason is that the Torah sanctified the kohanim, and anyone who violates his sanctity through his cohabitation, the sanctity of the priesthood is profaned from the woman and her offspring so that they shall not enter the sanctity of the priesthood; but how is it possible that this kohen, who was born in the sanctity of his priesthood, should descend from his sanctity because of a transgression he committed? For if so, an Israelite who committed a transgression, we should also say that he has left the collective of Israel; rather, even though he has sinned, he is an Israelite, and a kohen as well, even though he has sinned, he is a kohen, for behold, he was born a kohen [it appears to me].

A kohen who married a bogeret or a mukat etz—he has not made her a chalalah; and likewise, if he had relations with a beulah without marriage—he has not made her a chalalah. And even though there is a chalal from positive commandments, as I wrote in siman 6, nevertheless, since the positive commandment is from the verse "he shall take in her virginity"—a virgin and not a beulah—it excluded her from "taking" (marriage), but from mere relations without marriage she does not become a chalalah. And know, that a kohen who married a chalalah who became disqualified through a positive commandment—he is lashed for her because of "a chalalah he shall not take," however there are some of our teachers who are uncertain about this. And all other disqualified persons for the priesthood become chalalim through relations even without marriage. And a woman who committed adultery while under her husband, a kohen—her children become chalalim, for behold she becomes a zonah, and when she subsequently gave birth from the kohen, it follows that they are chalalim as I wrote.

A kohen who has relations with any of the arayot, or with a yevamah to an outsider where kiddushin do not take effect as with an ervah, and she conceived from the first act of relations—the offspring is not a challal, but he has made her a zonah. However, regarding arayot there is no practical difference, for behold the offspring is a mamzer and there is no practical difference unless the offspring is a female and a kohen wishes to marry her, for he must be warned on account of her being a mamzeret and not on account of her being a challalah. The essence of the matter concerns a yevamah to an outsider, for the offspring is not a mamzer even according to Rabbinic law as I wrote in siman 159, and even according to the one who holds there that the offspring is a mamzer according to Rabbinic law—this is only in the case of marriage as I wrote there [Chelkat Mechokek]. And if this kohen returned to have relations with her in a permitted manner, such as with his wife's sister after the death of his wife, or with a yevamah to an outsider, or another kohen for whom she is not an ervah—the offspring is a challal, for behold he had relations with a zonah, which is among the prohibitions of the priesthood. But one who has relations with a freed maidservant, even if she conceived from the first act of relations—the offspring is a challal. And similarly, one who has relations with a niddah—the offspring is kosher and is not a challal, as I have written.

And know that all this is the system of the Rambam, of blessed memory, for he holds that in every place where the Sages said that the offspring is kosher—such as a slave who has relations with a daughter of Israel, where the offspring, even if it is a daughter, is not disqualified from the priesthood, as written in siman 4, section 13, and likewise in all other prohibitions of negative commandments, and likewise with a yevama to an outsider. However, some say that it is true that in all these the offspring is kosher and is not a challal; nevertheless, if the offspring is a female, she is disqualified from the priesthood. And likewise regarding prohibitions of negative commandments where she becomes a zonah—the offspring, when it is a daughter, is disqualified from the priesthood [and this depends on the dispute of the Rambam with the poskim whether she becomes a zonah from prohibitions of negative commandments, as written in siman 6, section 19], except for a niddah. For the reason the daughter is disqualified from the priesthood is that we learn from a kal vachomer from a widow to a High Priest, whose prohibition is not equal in everyone; nevertheless, since she was profaned by his relations, the offspring is disqualified from the priesthood. And all the more so regarding prohibitions that are equal in all of Israel—when she becomes a zonah by his relations, the daughter remains disqualified from the priesthood [Yevamot 45b]. But a niddah does not become a zonah. And according to this, what the Tur and the Shulchan Aruch wrote in section 17: "A gentile or a slave who has relations with a daughter of Israel and she bore a daughter from him, that daughter is disqualified from the priesthood," thus far his words, is not according to the opinion of the Rambam. And even according to their opinion—if she married, she does not go out [Chelkat Mechokek and Beit Shmuel]. And so wrote Rashi in a responsum, that it is only a disqualification ab initio [ibid., and the dispute of the Rambam with the poskim is that the Rambam rejects those in Yevamot 45b because in the conclusion there they ruled that a slave who has relations with a daughter of Israel, the offspring is kosher, and it did not say "disqualified from the priesthood," from which we see that he rejects that sugya; and the Rif is in doubt about this, see there. And the Gra in sub-sections 53, 54, and 57, and in siman 6, subsection 23, elaborated on this, and the system of the Ramban is a singular opinion; and examine this carefully].

A challal who married a kosher woman—the offspring from her is a challal, and likewise his son's son—all of them are challalim until the end of all generations, and even she herself becomes a challalah through his cohabitation, and according to the Rambam in chapter 18, she is a zonah, as has been written in siman 6, section 19. But a kosher man who married a challalah—the child is kosher for the priesthood, for the Children of Israel are a mikveh of purity for challalim, because since there are kiddushin and there is no transgression—the offspring follows the male and he is not a challal, and therefore this challal who married a kosher woman and she gave birth to a daughter—when the daughter marries an Israelite, their offspring become kosher.

A kohen who has relations with a chalutzah – she and her offspring are chalalim by rabbinic decree, for the prohibition of a chalutzah to a kohen is not from the Torah. But a kohen who has relations with one of the sheniyot – she is kosher and his seed from her are kosher, and the rabbis did not decree that they should be chalalim, for there is no chalalah except from a prohibition of the priesthood. And they also did not decree upon the sons that they should be mamzerim by rabbinic decree as they decreed regarding a woman who married based on a witness who testified to her that her husband died and afterwards her husband arrived, where the offspring even from him is a mamzer as I wrote in siman 4, for it is impossible for them to decree upon the sons that they are mamzerim except when their mother has relations through a Torah prohibition, and not when there is only a rabbinic prohibition upon her – it is impossible for the sons to be mamzerim [it appears to me]. But a kohen who married a pregnant divorcee, whether from him or from another, and she gave birth while she was a chalalah – the offspring is kosher, for he did not come from a drop of transgression.

A kohen who had relations with a safek zonah or a safek gerushah—this woman is a safek chalalah and her offspring is a safek chalal, and we impose upon him the stringencies of kohanim and the stringencies of Yisraelim—he does not eat terumah and he may not become tamei from the dead, and he marries a woman fit for a kohen. And if he ate or became tamei or married a gerushah—they strike him with makat mardut. And the same applies to a chalal by their words—they do not allow him to eat terumah, but they lash him with forty lashes when he becomes tamei or marries a gerushah, for according to the Torah he is a complete kohen [Beit Shmuel]. And there are those who say that they were also stringent regarding a safek chalutzah, but it is not clear, for they did not decree regarding a safek chalutzah, as if he married her he does not divorce her as written in siman 6, section 6, and how can we say that the offspring is a safek chalal, and we have already written there that an error fell into the book of the Tur, see there. But a chalal according to the Torah—he is like a zar, and he marries a gerushah and becomes tamei from the dead, for he is a complete zar, as it is said, "Speak to the kohanim, the sons of Aaron," even though they are the sons of Aaron—only when they are in their priesthood. Thus it is found that there are three types of chalalim: a chalal of the Torah, a chalal by their words, and a safek chalal of the Torah.

A convert in ancient times who married a female convert and she gave birth to a daughter—she should not be married ab initio to a kohen, even her daughter's daughter for several generations, even though her conception and birth were in sanctity. And if she married—she shall not depart, for according to the law she is permitted to a kohen since her "virginity was sown in Israel," that is, her conception and birth were in sanctity, but the kohanim conducted themselves with extra refinement, therefore if she married she shall not depart. But when their conception was not in sanctity even though their birth was in sanctity—she shall depart. And if she has one side from Israel—the father or the mother—the daughter is permitted to a kohen ab initio, since one side is Israel and their conception and birth were in sanctity.

The primary sanctity of the priesthood is upon the male kohanim and not upon their females, as it is said, "the sons of Aaron" – and not the daughters of Aaron, and they were not warned when fit to marry those disqualified from the priesthood. Therefore, the kohenet is permitted to marry a challal, a convert, and a freed slave. And even though the daughter of a kohen eats terumah and kodashim kalim, nevertheless, regarding the sanctity of lineage, they are not like the males. And the proof is that even if they marry fit Israelites, their offspring are not kohanim, for they follow the father. However, in any place where he is warned regarding her – she is warned regarding him as well.

A family in which a doubtful challal or a doubtful mamzer or certain ones became intermingled – their law was explained in siman 2.