Bartenura on Mishnah Kiddushin

Sefaria · Mishnah > Rishonim on Mishnah > Bartenura > Seder Nashim · 173 sections

3.4.1
כל תנאי – which is not a double [stipulation] (stating both alternatives) is not a [valid] condition, for even if the condition was not fulfilled, the words/matters were fulfilled.
3.4.2
אם יעברו ואם לא יעברו – and if he did not double the words, his condition would be fulfilled and they (i.e., Reuben, Gad, and one-half of the tribe of Manasseh would inherit the land of Gilead, even though they would not cross [the Jordan River to fight the battles in Canaan with their brethren]. And even though he (i.e., Moses) said, “If every shock-fighter among the Gadites and Reubenites crosses the Jordan with you…” we don’t have that it follows from the affirmation, we derive the negative by implication. And we learn from it also, that we require the condition before the action, for since he did not say, “give it to them if they will cross [the Jordan]” implies that if he had said such, its condition would not come and void the action of the gift that preceded it, and we also learn from it that we require the affirmative prior to the negative, for he (i.e., Moses) did not say, “if you will not cross, don’t give them, but if they do cross, give them.”
3.4.3
ר' חנינא כו' – He disputes the double condition, that there is no need to double, for it follows from the affirmation that we derive the negative by implication, and this is what Moses doubled, there was a need for that matter. And regarding the Halakhic decision, if he said, “on condition,” there is no need for the double stipulation, and neither the affirmation prior to the negative, nor the condition prior to the ac, but the condition stands. But, if he did not say, “on the condition,” he would need all of these things that we mentioned, “and if not,” the condition is void and the action is valid, and it doesn’t make a difference whether the condition was made in monetary matters or in [the realms] of Jewish divorce and betrothal – everything is equivalent in this matter.
3.5.1
והוכר עוברה דבריו קיימין – Maimonides wrote [in his commentary to the Mishnah] that he may not come upon her until he betroth her a second time, for a person does not ever give possession of (i.e., sell) what does not yet exist, and they did not say that his words are fulfilled other than to be stringent upon her so that she cannot marry anyone else.
3.6.1
ואעשה עמך כפועל – with the labor of one day [as the betrothal monies], and not that he is betrothing her with the salary of the work for since we hold that there regarding hiring there is from the beginning to the end, hence it is found that when he completes his work, his hire is like a loan to her, and one who betroths with a loan is not betrothed, but he betroths her now with a Perutah/penny , on the condition that afterward, he will act with her like a [day] laborer.
3.6.2
ע"מ שירצה אבא – In the Gemara (Kiddushin 63b), it explains that the father will not protest, and when they established the time for his protest, such as if he (i.e. the potential husband) said if the father will not protest all thirty days. Therefore, the father desired it, if the thirty days passed and he did not protest, then she is betrothed. If he didn’t want it (i.e., the betrothal to take place), that he protested within the thirty day [period], she is not betrothed.
3.6.3
מת האב – within the thirty day [period], she is betrothed, for as we said, who is protesting?
3.6.4
מת הבן – within the thirty day [period], we teach the father that he should protest so that she would not be in need of her brother-in-law (i.e., the husband’s brother – in the case of his dying without issue, enters his estate and marries his wife).
3.7.1
אני קדשתיה נאמן – to wed her, that he would not be arrogant before the father that who received the betrothal [monies] to say, “I am he,” for if it was not the truth, he would be afraid, as perhaps he would contradict him.
3.8.1
וגרשתיה – I received her Jewish bill of divorce.
3.8.2
והרי היא קטנה – now when I said this about her.
3.8.3
נאמן – to make her disqualified from the priesthood [through marriage]. He is believed about his daughter all the time that she is a minor, as it is written (Deuteronomy 22:16): “[And the girl’s father shall say to the elders,] ‘I gave this man my daughter to wife…” When he said “[this] man, he prohibited her to everyone else, for we do not know to whom [it was that he was talking about], and when he returned and said to this one, he made her permissible to him.
3.8.4
והרי היא גדולה – and if he said this after she had grown [into adulthood], but did not say this when she was still a minor, he is not believed.
3.8.5
נשבית ופדיתיה וכו' אינו נאמן – to disqualify her from the priesthood, for regarding marriage, the All-Merciful (i.e., the Torah) believes the father; regarding her being taken captive, he is not believed.
3.8.6
יש לי בנים – and my wife will not be dependent upon her brother-in-law (who in the case of his brother dying without issue enters into his estate and marries his wife).
3.8.7
יש לי אחים – and my wife will be dependent upon her brother-in-law, but up until now, she was in the status that she would not be dependent.
3.8.8
אין הבוגרות בכלל – because they are not in the domain of the father to become betrothed, and even though he had made the adult daughter an agent to receive her betrothal, we say (Kiddushin 64b) that a person does not put aside a Mitzvah which [primarily] rests on him [to see to the betrothal of his daughter] and perform one which is not incumbent upon him [concerning his adult daughter]. But minors and girls between the ages of twelve and twelve-and-one-half require a Jewish bill of divorce, out of doubt, for we don’t know which of them he (i.e., the father) had betrothed.
3.9.1
קדשתי את בתי גדולה – it was necessary for the Tanna [of our Mishnah] to teach us of the dispute of Rabbi Meir and Rabbi Yosi in the case of: “I betrothed the eldest” and “I betrothed the youngest.” For had [the Mishnah] only taught us regarding “I betrothed the eldest,” I would think that on this which Rabbi Meir is commenting upon, and since there is a younger [daughter] than her, it is to this one, “the elder” that he calls her, for it is praiseworthy for a person to call his daughter with the language of “older” even though she is “younger,” when there is younger sister younger than her. But, regarding a minor, I would say that he (i.e., Rabbi Meir) would agree with Rabbi Yosi, that all the while that he can call her “elder,” he would not call her “younger.” But if [the Mishnah only taught] that alone (i.e., the statement of Rabbi Meir), it is on that alone which Rabbi Meir is commenting upon but on this one (“I betrothed the younger”), I would say that Rabbi Yosi agrees with Rabbi Meir. Therefore, it was necessary to teach both of them. And the Halakha is according to Rabbi Yosi in both cases.
3.10.1
האומר לאשה קדשתיך וכו' – it is necessary for us to mention the case of when he says, “I have betrothed you,” and [the case] when she says, “you have betrothed me.” For if it (i.e., the Mishnah) [only] taught when he says to the woman: “I have betrothed you,” he is forbidden to her relatives while she is permitted to his relatives, I would think that the law is that she does not make herself forbidden to his relatives, for if he were to tell a lie, as a man doesn’t care [and hence speaks thus] if he forbids himself to her relatives for no reason, and he lies when he says, “I have betrothed you,” even though he has not [in reality] betrothed her, but she, when she states “You have betrothed me,” prohibits herself to the entire world until he gives her a Jewish bill of divorce, for if he had not established this for her, she would not have said it, and through her mouth he would be forbidden to all of her relatives, and even if he gave her a Jewish bill of divorce; this is what it comes to tell us, [that this is not the case]. (see Kiddushin 65a)
3.10.2
קדשתיך והיא אומרת לא קדשת אלא בתי וכו' – because you might think to say that since according to the Torah, the father is believed about his daughter, that the mother would be believed about her daughter, according to the Rabbis, but what it comes to tell us is that she is not believed.
3.11.1
קדשתי את בתך וכו' – Since the [Mishnah] taught above these clauses above [in the previous Mishnah], it (i.e., the Mishnah) also teaches this, and even though it is a Mishnah that is not necessary, and in all of these [sections] when she says: “You have betrothed me,” we request from him that he give [her] a Jewish bill of divorce in order that it will permit her [to marry others]. And if he gave a Jewish bill of divorce on his own accord, we force him to give [her] the Ketubah [settlement].
3.12.1
כל מקום שיש קדושין ואין עבירה – that the betrothal takes effect, and there is no sin [associated] with her marriage. And this principle is not exact, for a male convert who marries an illegitimately born female, the betrothal is valid but there is no sin [associated] with it, for a community/congregation of converts is not called a community. And even though any child-born goes after the [status] of the male, [in this case] the child is illegitimate (i.e., a Mamzer), both whether a convert married an illegitimately born female or whether a Mamzer married a woman convert.
3.12.2
וכל מי שאין לה עליו קדושין וכו' הולד ממזר – In [Tractate] Yevamot (49a) we derive it from Scripture, as it is written (Deuteronomy 23:1): “No man shall marry his father’s former wife, [so as to remove his father’s garment],” and near it (verse 3), [it states]: “No one misbegotten [shall be admitted into the congregation of the LORD; none of his descendants, even in the tenth generation, shall be admitted into the congregation of the LORD].” And we maintain her as a widow whose husband died childless waiting for her brother-in-law to act (i.e., either to marry her or to absolve her of the obligation through the Halitzah/refusal ceremony) of his father, as she is the wife of the brother of his father and she is liable to Divine extirpation through him.
3.12.3
על אחת מכל העריות – of those liable for Divine extirpation.
3.12.4
ולד שפחה ונכרית – as it is written [regarding] a female maidservant (Exodus 21:4): “the wife and her children shall belong to the master…” and [regarding] a heathen woman, it is written (Deuteronomy 7:4): “For they will turn your children away from Me [to worship other gods]…,” and because it is not written, “and she will turn [your children] away [from Me], we learn from it that this is how it should be understood: “do not give your daughters to their sons [or take their daughters for your sons]” (Deuteronomy 7:3), for the husband of your daughter will turn away your son that your daughter will give birth to through him from Me, but, it does not repeat “his daughter you shall not take for your son,” for the child (literally “male,”) that comes from the heathen is not called “your son,” but rather, “her son.”
3.13.1
ממזר שנשא שפחה – and even ab initio, a Mamzer can marry a maid-servant in order to purify his children. And the Halakah is according to Rabbi Tarfon. But Rabbi Tarfon admits that a slave who married a Mamzeret, the child is a Mamzer, for the slave has no pedigree
4.1.1
עשרה יוחסין עלו מבבל – that Ezra set aside all of the ineligibles who were in Babylonia and they were brought up with him, in order that she shouldn’t be mixed with traced genealogies, because there was no Jewish court there.
4.1.2
חללי – Kohanim who were born from those who had been ineligible for the priesthood, such as a widow [married to] to a High Priest or a divorcee, the female issue of a Kohen’s illegitimate connection (or a Kohen’s wife illegitimately married to him), and/or a harlot to a common Kohen.
4.1.3
חרורי – freed slaves.
4.1.4
נתיני – Gibeonites who were circumcised in the days of Joshua, and were prohibited from marrying into the community [but would serve as water drawers and hewers of wood].
4.1.5
שתוקי ואסופי – we will explain them further on (Mishnah 2).
4.1.6
גיורי וחרורי ממזרין כו' כולם מותרים לבא זה בזה – for a community of converts is not considered a community, and Mamzerim are not warned about that they should not enter the community of converts, but Levites, and Israelites cannot [marry] with a Mamzer. And the illegitimate child of unknown fatherhood and the foundling, whose father and mother are unknown, are doubtful Mamzerim (i.e., illegitimate) and are permitted to be mixed with certain Mamzerim, for we say that into a clear congregation he may not enter, but into a doubtful congregation he may enter.
4.2.1
שתוקי. כל שהוא מכיר את אמו – that he calls, “Daddy,” but his mother silences him.
4.2.2
בדוקי – that they examine the mother. If she said that she was impregnated by an appropriate individual, the child is appropriate. And the Halakha is according to Abba Shaul.
4.3.1
כל האסורים לבא בקהל – even though we have taught in the beginning (Mishnah 1), that illegitimate children and Gibeonites who were circumcised at the time of Joshua are permitted to marry each other, it comes to tell us, for example, that an Ammonite or Moabite convert may marry an illegitimate child, an illegitimate child of unknown fatherhood and a foundling whose mother and father are unknown.
4.3.2
ר"י אוסר – It explains in the Gemara (Kiddushin 74a-b) that this is how it should understood. Rabbi Yehuda who prohibits a convert [marrying] an illegitimately-born woman, that these words refer to a convert of all the other heathens who is permitted to enter the congregation [of Israel], he is the one who is prohibited to marry an illegitimately-born woman, according to Rabbi Yehuda who holds that a congregation of converts is a congregation. But an Ammonite or Moabite convert who is prohibited from entering the congregation [of the LORD], Rabbi Yehuda would admit that he is permitted to [marry] an illegitimately-born woman.
4.3.3
ודאן בודאן מותר – such as an illegitimately-born child with a Gibeonite.
4.3.4
ודאן בספיקן – An illegitimately born child and a Gibeonite with an illegitimate child of unknown fatherhood and a foundling whose mother and father are unknown.
4.3.5
ספיקן בספיקן – an illegitimate male child of unknown fatherhood with an illegitimate female child of unknown fatherhood and a male foundling whose mother and father are unknown with a female foundling whose mother and father are unknown and [the case of] a male foundling whose mother and father are unknown with an illegitimate female child of unknown fatherhood. Even though each of these contains a doubt, it is prohibited, lest one was really “kosher/fit” and the other was unfit. And the Halakha is according to Rabbi Eliezer.
4.3.6
וכותי – this is its doubt, since they are not expert in the laws of Jewish divorce and betrothal. And nowadays, they (i.e., the Rabbis) made them to be like complete heathens for all their matters.
4.4.1
ארבע אמהות – two from the side of the father and two from the side of the mother.
4.4.2
שהם שמונה – four from [the side of] the father and four from [the side of] the mother. And what are they? Her mother, her mother’s mother, the mother of her father’s mother, the mother of the mother of her father’s mother, the mother of her father, the mother of her father’s mother, the mother of her father’s father, the mother of the mother of her father’s father. We examine them so that there was not among one of them a disqualification/blemish.
4.4.3
ואם היתה לויה וישראלית – And a Kohen comes to marry her.
4.4.4
מוסיפין עליהן עוד אחת – one mother for each and every pair, such as her mother, and her mother’s mother, and the mother of her mother’s mother, and similarly for all of them, and that we examine the mothers, but we don’t examine the fathers, lest there is a disqualification in her father or in her father’s father, because it is the manner of people, when they put each other to shame through a dispute, they put each other to shame through traced genealogy for if there was any disqualification from the side of the fathers, it was known. But the women do not put each other to shame with disqualification of genealogy but rather through unchastity, and if there is within them a matter of disqualification of genealogy, it has no voice. And this obligatory examination is not mentioned, other than with a family that raises a protest against her legitimacy, but a family that does not have an suspicion about he, does not require an examination, for all families stand under a presumption of fitness, and the man alone must check when he comes to marry a woman from a family where there is a doubt, but the daughter of Kohen who comes to marry does not have to check upon the man [and his family], for there is no specific law prohibiting women of legitimate birth to marry men of illegitimate birth (see Talmud Yevamot 84b), and the daughter of a Kohen is permitted, ab initio, to marry a convert and a man unfit for the priesthood because of his father’s illegitimate connection, and the same law, all the more so, applies for the daughter of a Levite and an Israelite woman.
4.5.1
אין בודקין מן המזבח ולמעלה – He began to examine the mothers, and found that her father’s father served at the Altar, there is no need to examine after the mother of her father’s father, since her son served at the Altar, it is known that he is of legitimate descent.
4.5.2
ולא מן הדוכן ולמעלה – if he found that he as a singer on the platform.
4.5.3
ולא מן הסנהדרין ולמעלה – and especially from the Sanhedrin/Jewish court that was in Jerusalem, and even from those who adjudicated only monetary cases, for they would not place anyone from the Sanhedrin other than a Kohen, Levite or Israelite of legitimate descent, as it is states (Numbers 11:16): “And let them take their place there with you,” those that are similar to you in descent and in wisdom.
4.5.4
וגבאי צדקה – since they would quarrel with these people, they would seize the Tzedakah, and even on Fridays, if they had with them a matter, it would have a voice.
4.5.5
בערכי ישנה של צפורי – In the Sanhedrins of the city whose name is Yeshanah, which is near to Sepphoris.
4.5.6
ערכי – Sanhedrins where they would arrange and establish the genealogies.
4.5.7
אסטרטיא של מלך – in the monthly division of each month to go out to the wars of the House of David, a particular family in a certain month. And they would not go out to war other than those with legitimate descent , so that their merit and the merit of their ancestors would help them.
4.6.1
בת חלל זכר פסולה מן הכהונה לעולם – the daughter of his son or the daughter of his son’s son, until the end of all the generations, but the daughter of his daughter from an Israelite [father] is fit for [marriage into] the priesthood.
4.6.2
בת גר זכר – even from an Israelites woman, is ineligible for [marriage into] the priesthood, just like the daughter of one unfit for the priesthood on account of his father’s illegitimate connection.
4.7.1
ור"א בן יעקב אומר וכו' – We bring to a conclusion in the Gemara (Kiddushin 78b) that he (i.e., a Kohen) who comes to take counsel, we give him a ruling in accordance with Rabbi Eliezer ben Yaakov, that a Kohen should not marry the daughter of a male and female convert, but if he marry [the daughter of converts], the Halakha is according to Rabbi Yosi, and we do not compel him to divorce her (literally: “we do not withdraw her from his hand), and his seed from her is fit [for the priesthood].
4.8.1
האומר בני זה ממזר הוא אינו נאמן – for he is a relative in relation to him, and a relative is not fit to testify.
4.8.2
ואפילו שמיהם – the husband and his wife, and it is not necessary that the father alone testifies that he is an illegitimate child, for he is not believed, who is not certain [of the child’s paternity], but even the mother who is certain [of the child’s paternity], she is [also] not believed (see Kiddushin 78b).
4.8.3
אפילו על עובר שבמעיה – who does not enjoy the presumption of fitness.
4.8.4
ר' יהודה אומר נאמנים – The reason of Rabbi Yehuda is that it is written (Deuteronomy 21:17): “[Instead, he must accept [the first-born, the son of the unloved one, and allot to him a double portion of all that he possesses….” – he will be accepted/recognized to others. From here [we learn that] the father is believed to disqualify his son, but the mother is not believed to disqualify her son. And especially regarding his son he believed, but not on the son of his son, for if this son had children, he would not not believed to disqualify them. And the Halakha is according to Rabbi Yehuda.
4.9.1
וכן האשה שנתנה רשות לשלוחה – it was necessary for the Tanna [of our Mishnah] to inform us that the father that made [someone] his agent to betroth his daughter and a woman that made [someone] her agent to betroth herself, for had [the Mishnah] only mentioned [the case of] the father, I would think that the father that has established his traced genealogy, and when he found that he is of legitimate descent, he betrothed her to himself. And the case where say that he annulled his agent, but a woman who does not establish a traced genealogy, even though she betrothed herself, we don’t rely upon her betrothal, nor did she annul the agent, for she thought that perhaps, the agent would find a person of greater connection than this. And if we only mention about the woman, I would think that because the woman carefully investigates and marries, when she betroths herself, she voids the agent. But the man, who is not strict about his daughter, if she marries any husband, he has not voided the agency of the agent, and he who came first and betrothed her, though that perhaps he is not found. It is necessary. (See Tractate Kiddushin 79a)
4.10.1
אינו צריך להביא ראיה לא על האשה – for she is of distinguished birth/well-connected , for she was examined when she got married.
4.10.2
ולא על הבנים – the small children who are clinging to/running after their mother.
4.12.1
לא יתיחד איש אחד עם שתי נשים – because they are light-headed and they both enjoy being enticed.
4.12.2
אבל אשה אחת מתיחדת עם שני אנשים – for one is embarrassed from his fellow. And the Halakhic decision is that a woman should not be alone with two men, and all the more so, one man with two women, other than if there were two women who were rivals or sisters-in-law (i.e. widows of a brother who died without issue), or a woman and the daughter of her husband, or a woman and her mother-in-law, or a woman with a baby girl that knows the flavor of sexual intercourse and does not deliver herself to sexual intercourse, since these [pairs[ hate each other and are fearful one of the other, and similarly, she is afraid of the minor lest she see her and tell. And we whip on the private meeting of a free woman with a man, and on the private meeting with those [forbidden] because of incest , other than a married woman who is not whipped , in order that we would not cast suspicion on the legitimacy of her children (see Talmud Kiddushin 81a), but it is permitted to be alone with an animal and with a male, for Israelites were not suspected on pederasty and on relations with animals.
4.12.3
הגדילו זו ישנה בבסותה וכו' – and this is case where the daughter was from twelve years of age and the boy from thirteen years of age and one day. And at the time where she is embarrassed to stand before him unclothed, even younger than this, they sleep he with his clothes [on] and she with her clothes [on].
4.13.1
רווק – free, without a wife.
4.13.2
לא ילמד סופרים – he should not accustom himself to be one of the Scribes, that is to teach young children, because the mothers of these young children are found near him to bring their children to the school.
4.13.3
אף מי שאין לו אשה – even though he is not free, but rather, he has a wife who does not dwell with him, he should not teach young children. But the Halakha is not according to Rabbi Eliezer.
4.14.1
וחכמים מתירין – And the Halakha is according to the Sages, for Israelites were not suspected of pederasty.
4.14.2
כל שאומנותו בין הנשים – for the work of his craft is done for woman, and the women need him.
4.14.3
לא יתיחד עם הנשים – and even with many women, because they become intimate with him, and are partial with him. But if there was another man with the two women, the Mishnah would teach that he shouldn’t, [but] three or four are even better. But Maimonides interprets that we don’t permit it, even because of the needs of his life to be intimate with woman, since his livelihood is from them.
4.14.4
חמר גמל וספן – all these are the trades of robbery, when they sleep on the roads, they go in and collect wood and fruit from the vineyards, and furthermore, they have the advantage over other people and violate their conditions.
4.14.5
רועה – [his cattle] for he removes the cattle to graze in the field of others.
4.14.6
חנוני – is trained/experienced in fraud, to urinate water in wine and place pebbles in wheat, for a person is obligated to teach his son a clean craft.

Bartenura on Mishnah, trans. by Rabbi Robert Alpert, 2020. Via Sefaria (sefaria.org), Sefaria-Export. Version source: http://sefaria.org/ Licence: CC-BY. Source.