1. What is meant by the Torah's prohibition against relations with a mamzer? [The term refers to a person conceived from] a forbidden sexual relationship.¹These refer to a variety of incestuous and adulterous relationships as listed in the beginning of this text. A niddah is an exception. A son conceived from such relationships is blemished,²I.e., he has a spiritual taint to his character. but is not a mamzer. When, however, a man enters into any other forbidden sexual relationships, whether through rape, or willingly, whether conscious of the prohibition or not,³The difference between whether relations were willful, forced, or inadvertent is relevant only with regard to the punishment received by the man and woman. The child born of the offspring is considered as a mamzer regardless. This law teaches us an important lesson with regard to sexual morality. The effects of our deeds on our offspring is binding, regardless of whether we repent and/or seek to refine ourselves afterwards. the offspring produced is a mamzer. Both male and female [mamzerim] are forbidden forever, as [Deuteronomy 23:3] states: "[A mamzer shall not enter God's congregation.] Also the tenth generation...," i.e., [the prohibition is] everlasting.

2. When a mamzer marries a Jewish women or a Jewish man marries a female mamzer, once they enter into relations after consecration, they are punished by lashes.⁴As is the punishment for the violation of any Scriptural commandment. If the man consecrates the woman, but does not enter into relations, he does not receive lashes.⁵For the consecration alone does not involve the violation of a Scriptural commandment. If they enter into relations without consecration, they⁶Here the Rambam mentions both the man and the woman, for both are forbidden to engage in relations. In the former clause, he refers to the man, because the consecration is his responsibility. do not receive lashes because of relations with a mamzer.⁷The Rambam's wording implies that the couple do receive lashes for their relations, for they have violated the prohibition: "There shall not be a promiscuous woman" (Deuteronomy 23:18 which forbids relations that are not carried out for the sake of marriage (Maggid Mishneh, based on Hilchot Ishut 1:4).

The Rambam's opinion is that the prohibition against relations with a mamzer applies only within the context of marriage - depends on the prooftext cited above: "A mamzer shall not enter the congregation of God," i.e., shall not marry among the Jewish people. According to the Rambam, the implication is that the prohibition must involve marriage (Rav Avraham, the son of the Rambam, as quoted in the Kessef Mishneh).

The Ra'avad, the Ramban, Rav Moshe HaCohen, and others do not agree with the Rambam's ruling and maintain that this prohibition applies even if there was no consecration. Relations alone are sufficient to establish liability. See the discussion of the issue in the Maggid Mishneh and Kessef Mishneh. For the only instance where relations that involve a negative prohibition incur the punishment of lashes without the woman being consecrated is relations between a High Priest and a widow, as will be explained.⁸Chapter 17, Halachah 3.

When a man remarries his divorcee after she married another person, ⁹I.e., and her second husband died or divorced her. The Rambam describes the prohibition against a man remarrying his divorcee after she was consecrated by another man in Hilchot Gerushin 11:12. The Maggid Mishneh states that the Rambam feels it necessary to emphasize that the offspring of such relations are not mamzerim even though the prohibition is not punishable by kereit, because Deuteronomy 24:4, the source for the prohibition describes such relations as "an abomination." That term is often used with regard to the ariot, the more severe sexual prohibitions. the offspring are acceptable. For she is not considered an ervah.

3. When a gentile or a servant enter into relations with a Jewish woman, the child is acceptable. [This applies] whether the woman is unmarried or married, whether she was raped or engaged in relations willingly.¹⁰Thus although the woman committed adultery and is forbidden to her husband, the child is not considered as a mamzer. The rationale is that we pay no attention to the seed of the gentile or the servant, as stated in Halachah 4. Halachicly, it is as if the woman conceived the child independently. When a gentile or a servant enter into relations with a female mamzer, the offspring is a mamzer.¹¹This law is based on the same rationale. Since we pay no attention to the seed of the servant or the gentile, the child takes on the same quality as the mother. Just as she is disqualified, so, too, is he. When a mamzer enters into relations with a female gentile, the offspring is a gentile. If [the child] converts, he is fit to marry within the Jewish people like other converts.¹²For there is no difference between him and other gentiles. See the following halachah. If [a mamzer] enters into relations with a maid-servant, the offspring is a servant. If he is freed, the offspring is acceptable like other freed servants. He may marry a Jewish woman.

4. This is the general principle: When a child is born from a servant, a gentile, a maid-servant, or a female gentile, he is like his mother.¹³Whether Jewish, gentile, or a servant.

The Maggid Mishneh and Shulchan Aruch (Even HaEzer 7:17) quote views which state that if the offspring is female, she may not marry into the priesthood. We are not concerned with the father. For this reason, [the Sages] permitted a mamzer to marry a maid-servant to purify the lineage of his descendants. For he can free them and they will be free men.¹⁴The mamzer will purchase the servant and treat her as his wife. The children she bears him will be his property and they will not be mamzerim. If he desires, he may free them, at which point, their status is the same as other converts. If, by contrast, a mamzer would marry a convert, although there is no prohibition involved, the offspring would be mamzerim (Halachah 7). [Our Sages] did not ordain a decree forbidding a maid-servant to a mamzer,¹⁵As she is forbidden to an ordinary Jewish male by Rabbinic decree (Chapter 12, Halachah 11). so that he can legitimize his sons.¹⁶There are Rabbis today who advise that this practice should be followed by mamzerim. They should meet gentile woman, have them convert as servants, and live with them.

5. When a person who is half a servant and half a freed man¹⁷E.g., a slave was owned by two partners, one of whom freed him and one did not. See Hilchot Avadim 5:4. engages in relations with a married woman, a son born of that relationship has no way of legitimizing [his marriage relationships], because the dimension of him which is a mamzer¹⁸The dimension of the father which was free causes him to have a dimension of mamzerut. For a free man who engages in relations with a married woman conceives a mamzer. and the dimension of him which is an acceptable Jew¹⁹For when a servant engages in relations with a married woman, the offspring are acceptable. are intermingled. Therefore he is forbidden to engage in relations with a maid-servant.²⁰This is forbidden to him as to other acceptable Jews, because of the dimension of his being that shares that status.

Rashi differs with this approach and maintains that he should be permitted to engage in relations with a maid-servant. See Chelkat Mechokek 4:19, Beit Shmuel 4:28. and his offspring share his status forever.²¹He may marry a convert or a freed servant, but their offspring share his status as stated in the Halachah 7.

6. When a gentile engages in relations with a maid-servant who immersed herself, the offspring are servants. When a servant who immersed himself engages in relations with a female gentile, the offspring are gentile. He is given his mother's status. When, however, a gentile engages relations with a gentile maid-servant or a gentile servant engages relations with a gentile woman, the status of the offspring follows that of the father.

7. A mamzer may marry a female convert and a female mamzer may marry a male convert, the offspring of both relationships are mamzerim.²²The Beit Shmuel 4:35 emphasizes that although such marriages are permitted, there is a certain unadvisable dimension to it, for it is undesirable to increase the number of mamzerim among the Jewish people. For the status of the offspring follows that of the blemished one. [The license for such a marriage is derived from] the verse: "[A mamzer shall not enter] God's congregation." The congregation of converts is not considered as "God's congregation."

8. When a female convert marries a male convert and gives birth to a son, he is permitted to marry a female mamzer even though he was both conceived and born in holiness.²³I.e., although he and his parents are considered as full Jews with regard to all matters, the prohibition against marrying a mamzer does not apply to him. This also applies to the son of his grandson [- or any other descendant -] until his connection with conversion is forgotten and it is not known that he [descends from] converts.²⁴The Shulchan Aruch (Even HaEzer 4:22) quotes the Rambam's view, but also that of Rabbenu Asher which states that after ten generations a convert is forbidden to marry a female mamzer. Afterwards, he will be forbidden to marry a female mamzer. Converts and freed servants are bound by the same laws.²⁵See Chapter 13, Halachah 11.

9. When a convert marries a native-born Jewess²⁶Although there are some Rishonim who differ with the Rambam, the Shulchan Aruch (loc. cit.) quotes the Rambam's view. or a native-born Jew marries a convert, the son is a Jew in all contexts and is forbidden to marry a female mamzer.

10. There are three categories of mamzerim: one that is definitely a mamzer, a mamzer whose status is a matter of doubt, and a mamzer by Rabbinic decree. What is meant by one who is definitely a mamzer? The offspring of a relationship that is definitely incestuous or adulterous, as we explained.²⁷In Halachah 1 of this chapter.

A mamzer whose status is a matter of doubt is the offspring of a relationship that we are unsure whether it is adulterous or incestuous. For example, a man engaged in relations with a woman who was consecrated, but we are unsure if the consecration was effective,²⁸See Hilchot Ishut 4:21-22 for examples of such questionable consecrations. or who was divorced, but we are unsure whether the divorce was effective,²⁹See Hilchot Gerushin 5:13 for examples of such questionable divorces. or a similar situation.

A mamzer by Rabbinic decree: for example, a woman who heard that her husband died and remarried and then discovered that her husband was alive. Afterwards, her [first] husband engaged in relations with her while she was still married with her second husband, the offspring is a mamzer by Rabbinic decree.³⁰See Hilchot Gerushin 10:7 which explains this situation. Although the marriage of the second husband is not valid, for a married woman cannot be married to another man, our Sages decreed that the second marriage be considered binding with regard to this point: That a child fathered by her first husband be considered a mamzer.

11. When an unmarried woman becomes pregnant through a promiscuous relationship, we ask her: "What is [the status of] this fetus" or "...this child"? If she replies: "It is the child of a man of acceptable lineage; I entered into relations with an Israelite," her word is accepted and the son is acceptable.³¹The Maggid Mishneh quotes an opinion that maintains that this ruling applies only after the fact. As an initial and preferred option, a native-born Jewess should not marry such a person. The Shulchan Aruch (Even HaEzer 4:26) quotes the Rambam's ruling. See also Chapter 18, Halachot 13-15.

Despite the fact that we have no existing presumption regarding the child's lineage, we rule that he or she is acceptable. The rationale is that the child has no alternative; its status depends on this ruling (Maggid Mishneh). [This applies] even if most of the inhabitants of the city in which she engaged in relations are of unacceptable lineage.³²E.g., they are mamzerim.

12. If the child's mother was not questioned until she died, or she was a deaf-mute, mute, or intellectually or emotionally unstable, we consider the child as a mamzer whose status is questionable.³³For we have no way of determining the status of the father and it is possible that the father was a mamzer. [This ruling applies even] if she said: "I engaged in relations with so-and-so, the mamzer" or "...with so-and-so, the netin."³⁴I.e., her word is not effective in conclusively determining the child's status as a mamzer for the reason the Rambam proceeds to state. Her word is accepted in having the child deemed as legitimate, but not in having him deemed as a mamzer. See also Halachah 14 and Chapter 18, Halachah 14. Even if that person agrees with her statement, [the child's status is only doubtful. The rationale is:] Just as she engaged in relations with the person who admitted to her statement; so, too, she engaged in relations with others.³⁵We assume that she was promiscuous with more than one person and thus we have no way of determining the identity of the child's father. Thus the presumed father has no way of knowing whether or not the child was actually his (Maggid Mishneh).

The Rambam maintains that this rule applies even when the woman does not have a reputation for promiscuity. See Chelkat Mechokek 4:25 and Beit Shmuel 4:40 which discuss this issue.

This [child] is called a shituki.³⁶Shituki means "one who is silenced." Rashi, Yevamot 37a, explains that this name is given because the child will call out for his father and his mother will silence him. He knows the identity of his mother, but does not definitely know the identity of his father.

13. Similarly, a child that is found in the marketplace - he is called an asufi³⁷The term asufi means "one who was gathered in," i.e., the child was taken in from the street. - is considered as a mamzer whose status is questionable.³⁸Halachah 31 qualifies this ruling, stating that it applies only when it appears that the parents abandoned the child to die. If it is evident that the parents desired the child to live, e.g., they circumcised it, they gave it medical treatment, and/or placed it in a location where it was likely to be found, we assume that it was of acceptable lineage and was abandoned only because its parents were unable to provide for it. for we do not know his [lineage].

14. [The following rules apply when] an unmarried woman engages in promiscuous relations says: "This child is the son of so-and-so." If that person is of acceptable lineage, the son is considered acceptable. Nevertheless, her word is not accepted for the child to be considered as the man's son.³⁹I.e., he does not inherit the named person's property, nor is his wife freed from the obligation of chalitzah if he dies childless (Maggid Mishneh). See Hilchot Yibbum ViChalitzah 3:4 where the latter law is discussed. It appears to me, however, that we give consideration to her words and because of the doubt, that child is forbidden to marry the relatives of the [named] person.

If the [named] person is a mamzer, we do not accept her word to definitely deem the offspring as a mamzer on this basis, as we explained.⁴⁰See Halachah 12. Instead, we consider the child as a mamzer whose status is questionable.

15. [Different laws apply with regard to] a father who [makes statements with regard to] a child who is presumed to be his son. If he says: "This son of mine is a mamzer,"⁴¹I.e., he is not my son, but born from an adulterous relationship. his word is accepted.⁴²Note Hilchot Nachalot 4:3 which states that once a father acknowledges a child as his son, he cannot declare him as illegitimate afterwards. If the son himself has children, his word is not accepted.⁴³For by invalidating the legitimacy of the son, he would automatically be invalidating the lineage of his offspring and the Torah did not give him that power as the Rambam continues to explain. See also Hilchot Nachalot 4:2. For the Torah accepted his word with regard to his son alone. [This is derived from Deuteronomy 21:17:] "He will recognize the firstborn, the son of the hated." [Implied is that] he makes his identity known to others.⁴⁴The verse speaks of a father recognizing his heirs in connection with the division of his estate. If the father states that he did not father a son that was presumed to be his, that son is thus identified as a mamzer, for he will have been conceived through adultery.

16. Just as a father's word is accepted when he says: "This son of mine is my firstborn," so, too, his word is accepted if he says: "This son of mine is a mamzer," or "...the son of a divorced woman" or "...the son of a woman who performed chalitzah."⁴⁵The latter two concepts are relevant with regard to the sons of priests as will be explained in Chapter 19. Similarly, if his wife was pregnant, his word is accepted if he says: "This fetus is not my child. It is a mamzer." The child is definitely deemed as a mamzer.

If a person says that he himself is a mamzer, his word is accepted with regard to the prohibition against him marrying a native-born Jewess.⁴⁶His statement is not accepted as testimony, for a person may not testify against himself. Nevertheless, the restrictions he placed against himself are binding. It is as if he took a vow, forbidding himself to marry a native-born Jewess (Beit Shmuel 4:53) He is, however, forbidden to marry a female mamzer⁴⁷For we fear that he made these statements in order to be granted this leniency. until it is definitely known that he is a mamzer. The same laws apply to his son. If he has grandchildren, his word is not accepted with regard to the disqualification of his grandchildren. He can disqualify only himself.

17. [The following laws apply when] a woman who was consecrated⁴⁸According to Jewish Law, marriage is a two-staged process involving: a) consecration, kiddushin or erusin, and b) marriage, nissuin, when the couple begin living together as man and wife. From the time of consecration onward, however, the woman is forbidden to engage in relations with other men. becomes pregnant in her father's home. The offspring is assumed to be a mamzer.⁴⁹These laws differ from those applying to a married woman, as stated in Halachot 19-20. The rationale is that we do not assume that a couple that is merely consecrated share intimacy with the same degree of consistency as a married couple. Nor is a consecrated woman likely to the same degree of fidelity as a married woman. He is forbidden to marry both a native-born Jewess and a female mamzer.⁵⁰He is forbidden to marry a native-born Jewess for it is possible that he is a mamzer. He is forbidden to marry a female mamzer, because it is possible that he is an acceptable Jewish male.

If his mother was questioned and said: "I became pregnant from the man who consecrated me," her word is accepted and the child is considered acceptable.⁵¹As in Halachah 11. In this instance, since a bond has already been established between the couple, it is even more reasonable to accept her statements. This is speaking about a situation where the husband is not present to be questioned (Shulchan Aruch (Even HaEzer 4:27). The Rama states that the child is also considered as the presumed father's son with regard to receiving a share in the inheritance. If, however, that man contravenes her and says: "I never engaged in relations with her," the child is considered a mamzer. For even if the child was assumed to be his son, his word is accepted if he says: "My son is a mamzer."⁵²As stated in Halachah 15. In contrast to a situation where the presumed father could not be asked, this child is definitely a mamzer and is forbidden to marry a native-born Jew or Jewess (ibid.).

[Even in the latter situation,] the woman is not assumed to be a zonah.⁵³The term literally means "promiscuous woman," but has a specific halachic meaning, as the Rambam states in Chapter 18, Halachah 1: "A woman who entered into relations with a man who she is forbidden to marry." After consecration, every man would be prohibited to this woman.

The Torah gave the husband the right to determine his son's status. He does not, however, have the right to determine that of the woman (Ketubot 13a). Instead, her word is accepted if she says: "I engaged in relations with the man who consecrated me." [Since] she is not a zonah, if she married a priest,⁵⁴After her first husband died. she need not be divorced⁵⁵Nevertheless, since the man who consecrated her contradicts her statements, the initial and preferred option is for her not to marry a priest (Beit Shmuel 4:47). Similarly, if the person who consecrated her is a priest, he is forbidden to marry her. and offspring which she bears him are acceptable [as priests].⁵⁶If the woman had been forbidden to the priesthood, her offspring would not be considered priests, as stated in Chapter 19.

18. If people at large gossip about her while she is consecrated, [saying that] she was promiscuous with the man to whom she was consecrated and with others, the child is a mamzer whose status is questionable.⁵⁷This is speaking about an instance when we cannot clarify the child's status by asking the mother. [This applies] even if the man to whom she was consecrated was intimate with her in her father's home. For just as she acted loosely with the man to whom she was consecrated, she could have acted loosely with others. If she was questioned and said: "This fetus was conceived by the man to whom I am consecrated," the child is acceptable as explained [above].

19. When a married woman⁵⁸We have translated the term according to the prevalent understanding of the Rambam's ruling. Note, however, the Rama (Even HaEzer 4:29) who questions whether these laws also apply with regard to a woman who was only consecrated. is pregnant and says: "This fetus is not my husband's," her word is not accepted to render the child illegitimate. [Instead,] we assume that the child is acceptable. For the Torah accepted only the word of the father. If the father says that it is not his son or he is overseas,⁵⁹And thus could not have fathered the child. we assume that the son is a mamzer.⁶⁰The Beit Shmuel 4:52 interprets the Rambam's words as meaning "the child is a mamzer of questionable status," for the possibility exists that he was conceived by a gentile.

If the woman said: "I was impregnated by a gentile," or "...by a servant," the child is acceptable.⁶¹As indicated by Halachah 11, the woman's word is accepted with regard to defining the legitimacy of her child's lineage. For the husband cannot deny her words.⁶²He does not know with how many people and with whom she was promiscuous. A fetus will not remain in its mother's womb for more than twelve months.⁶³Although a full-term pregnancy is nine months, our Sages spoke of the possibility of a woman carrying a baby for twelve months. Although this is abnormal, when a man left his home between nine and twelve months before a child was born, they desired to consider that possibility rather than deem the child as a mamzer. See Yevamot 80b.

Rama (Even HaEzer 4:14) states that the above leniency is granted only when we do not see moral lapses in the woman's conduct. If, however, she conducts herself in an unbecoming manner, we suspect the child's lineage.

20. Although there is a rumor circulating to the fact that a woman has committed adultery and everyone is gossiping about her, we do not suspect that her children are mamzerim. [The rationale is that] the person who most frequently has relations with her is her husband. It is permitted to marry her daughter, even as an initial and preferred option.⁶⁴Rashi (Yevamot 27b) states that one should marry the offspring only when there is no other alternative. With regard to her own status, we suspect that she is a zonah.⁶⁵And hence may not marry a priest. Even an Israelite should refrain from marrying such a woman (Maggid Mishneh). After the fact, if she marries a priest, we do not require a divorce (Beit Shmuel 4:24). If her conduct was very lewd, we also suspect the lineage of her children.⁶⁶Sotah 27b raises this question, but leaves the matter unresolved. Accordingly, it is appropriate to be stringent (Maggid Mishneh).

21. According to Scriptural Law, a person suspected of being a mamzer is permitted to marry among the Jewish people.⁶⁷According to the Rambam, the general principle is that according to Scriptural Law, whenever there is a doubt whether an act is forbidden, there is no prohibition. Our Rabbis, however, decreed that when there is a doubt with regard to a Scriptural prohibition, we are stringent. Others differ and maintain that according to Scriptural Law, if there is a doubt concerning a prohibition, it must be observed. There is a special leniency, stemming from a verse from the Torah, when a doubt arises whether a person is a mamzer or not. See Chapter 18, Halachah 17. [Deuteronomy 23:3] states: "A mamzer shall not enter God's congregation." [Implied is that] one who is definitively a mamzer may not marry among the Jewish people, not one whose status is questionable. Nevertheless, our Sages raised the level [of purity required] with regard to lineage and forbade those of questionable status from marrying among the Jewish people.

Accordingly, a male and a female who are definitely mamzerim may marry. A mamzer whose status is a matter of doubt,⁶⁸See Halachah 10. a shituki,⁶⁹See Halachah 12. or an asufi⁷⁰See Halachah 13. are forbidden to marry native-born Jewesses.

22. [A man of the latter status] is forbidden to marry a female mamzer. Even a female mamzer whose status is questionable is forbidden to him. For perhaps one of them is not a mamzer, but the other is definitely a mamzer. A mamzer by Rabbinic decree may marry a female mamzer by Rabbinic decree.⁷¹For there is no Scriptural prohibition involved. Similarly, in any other instances [where a person is forbidden to marry] because of a doubt, one person of this status may not marry another.⁷²As the Rambam continues to explain in the following halachah.

23. What is implied? Shitukim, asufim, and those whose status as mamzerim is indefinite are forbidden to marry each other. If they married, the union may not be maintained. Instead, they must divorce with a formal bill of divorce.⁷³For the marriage, though forbidden, is binding according to Jewish Law. The offspring of such relationships are [mamzerim of] indefinite status like their parents.

Individuals of indefinite status like this have no option except to marry converts.⁷⁴As stated in Halachah 7. The status of their offspring follows their blemish.

24. What is implied? When a shituki or an asufi marries a female convert or a freed maid-servant, a convert, or a freed servant marries a female shituki or asufi, the offspring are shitukim or asufim.

25. When an asufi is found in a city inhabited by gentiles, whether the majority are gentiles or the majority are Jews, the child is considered as a gentile of indefinite status with regard to his lineage.⁷⁵We treat him as neither a Jew nor a gentile as the Rambam continues to illustrate. The Maggid Mishneh explains that the ruling follows the principle: Whenever a doubt arises and the permitted and the forbidden entities are fixed, we do not follow the majority, but instead, consider the situation as equally balanced. If he consecrates a woman, she needs a bill of divorce because of the doubt.⁷⁶I.e., the couple are not allowed to remain married for perhaps he is a gentile, but a formal divorce is necessary, for perhaps he is a Jew and the consecration is binding. If someone kills him, he is not executed for doing so.⁷⁷For perhaps he is a gentile.

26. If the court had him immersed for the sake of conversion⁷⁸As is the law which applies with regard to any child convert (Chapter 13, Halachah 7). or he immersed on his own initiative after he attained majority, his status is the same as any asufi that is found in Jewish cities.⁷⁹He is bound by the restrictions applying to a mamzer whose status is doubtful despite the possibility that they might not apply because he is a convert.

The Ra'avad rules that in such a situation, he is considered as any other convert and allowed to marry a native-born Jewesses The Maggid Mishneh explains the rationale for the Ra'avad's position, stating that there is a multiple doubt involved: Maybe he is not of Jewish origin, and if he is of Jewish origin, maybe he is not a mamzer. Moreover, the entire prohibition against an asufi is Rabbinic in origin. (For according to Scriptural Law, only a mamzer whose status is definite is forbidden). The Shulchan Aruch (Even HaEzer 4:33) quotes the Rambam's view. The Chelkat Mechokek 4:31 questions why the Ra'avad's view is not cited, but the Beit Shmuel 4:54 explains that according to the Rambam, with regard to questions of lineage, we are stringent even in such situations.

If the majority of the inhabitants of the city are gentile, it is permitted to feed him meat from animals that were not ritually slaughtered.⁸⁰This and the following laws apply when the person did not convert (Maggid Mishneh). For the principle that we consider the populations as equally balanced applies only with regard to questions of lineage. If the majority were Jewish, we return his lost articles as is the law with regard to Jews. If the populations are equally balanced,⁸¹The Kessef Mishneh notes that Ketubot 15b, the source for the Rambam's ruling, could be interpreted as making such a statement only in a situation where the majority of the inhabitants are Jewish. He, however, offers an interpretation of the passage which conforms to the Rambam's ruling. it is a mitzvah to maintain his life⁸²I.e., we must support him in situations of need. and we remove an avalanche from him on the Sabbath.⁸³To save his life even though doing so involves violation of the Sabbath laws.

The Maggid Mishneh cites opinions which maintain that this ruling applies even if the majority of the inhabitants are gentiles. For when a question of life and death is involved, we do not require a majority. See Hilchot Shabbat 2:20-21 and notes for an explanation of the matter. With regard to damages, we follow the same principle that applies in all cases of doubt in financial law: When a person who seeks to expropriate [money] from a colleague, the burden of proof is upon him.⁸⁴There are certain situations where the laws applying to gentiles are more severe than those applying to a Jew. For example, if an ox belonging to a gentile that is not known to gore does in fact gore an ox belonging to a Jew, the gentile is required to pay full damages. A Jew, by contrast, would be required to pay only partial damages. If such a situation would arise with regard to a person whose identity is in doubt, he could tell the plaintiff: "If you prove I am not a Jew, I will pay full damages."

27. It appears to me that whenever there is a gentile woman or a maid-servant who is fit to give birth in a city, since an asufi that is discovered there is considered to possibly have the status of a gentile or a servant, if he marries a female convert as we stated,⁸⁵Halachah 23. I.e., if he marries without undergoing conversion (Chelkat Mechokek 4:36). there is a doubt whether his wife is a married woman.⁸⁶For perhaps he is a gentile or a servant. Just as he could have been born by a Jewish mother, he could have been born by one of these. We do not consider the degree of probability involved. One who enters into relations with her is not liable, because we do not execute individuals when there is a doubt involved.⁸⁷Needless to say, such relations are forbidden. The Rambam is emphasizing that punishment is not meted out. Because punishment is not given unless we are certain there is a prohibition involved.

The Ra'avad differs with the Rambam's view and maintains that even with regard to capital punishment, we follow the probability. Hence if the majority of the inhabitants of the city are Jewish, we assume that the asufi is Jewish and his consecration of the woman is binding. The Maggid Mishneh justifies the Rambam's ruling, explaining that in all instances, the asufi is not considered as definitely Jewish.

Similarly, it appears to me that when a shituki marries a woman who could be forbidden to him as an ervah,⁸⁸A woman who could be a close relative with whom relations are forbidden. See the following halachah. there is a doubt whether she is a married woman, for consecration is not effective with regard to the ariot.

28. What is meant by "a woman who could be forbidden to him as an ervah"? Any woman whose father or brother was alive when his mother became pregnant⁸⁹For perhaps the woman he marries is his sister (since he does not know the identity of his father, it is possible that her father was also his father) or the sister of his father. or any woman who was divorced or widowed. For it is possible that she is his father's wife or the wife of his father's brother.⁹⁰I.e., before she was divorced or widowed her husband (or her husband's brother) fathered the shituki.

29. What is the source on which I rely to say that a shituki or an asufi are not forbidden to marry any woman who could be forbidden to him as an ervah?⁹¹The license the Rambam speaks about applies according to Scriptural Law. According to Rabbinic Law, a shituki is forbidden to marry a native-born Jew or Jewess (Halachot 21-23). For an acceptable child whose mother was questioned⁹²See Halachah 11. is not forbidden to marry any woman who could be forbidden to him as an ervah. And it is written in the Torah [Leviticus 19:29]: "Do not desecrate your daughter to have her act promiscuously." [Commenting on this verse,] our Sages state:⁹³Yevamot 37b. The verse refers to a situation where a father allows his daughter to act promiscuously and thus it will not be known who is the father of her child. If this would happen in numerous instances, there would be many children who did not know the identity of their fathers and it would be possible for a brother to marry his sister. If this would happen, a father will marry his daughter and a brother will marry his sister.

If the law was that anyone who does not definitely know the identity of his father would be forbidden to marry any woman who could be forbidden to him as an ervah, this situation could not arise and the earth would never become filled with incestuous relations.⁹⁴For if a man who did not know the identity of his father were restricted in the above manner, there would be no room for our Sages' concern, for he would be prohibited against marrying any woman whose ties could in any way be incestuous. From this,⁹⁵I.e., from the fact that our Sages did not enforce such a restriction. we learn that we do not forbid ariot and consider them as relatives because of the doubt unless we definitely know that she is forbidden to him as an ervah. For were we to say this, all of the orphans in the world who did not know their fathers would be forbidden to marry in all situations lest they encounter a forbidden relationship.

30. When a child was abandoned on the road and afterwards,⁹⁶Before the child was brought home. one came and said: "He is my son and I abandoned him," his word is accepted. Similarly, the mother's word is accepted. If the child was taken in from the marketplace and afterwards, his father and mother came and said: "This is our son," their word is not accepted. [The rationale is that] he has already been categorized as an asufi.

In the years of famine, their word is accepted. It is because of the famine that they abandoned him, for they desire that others sustain them. Therefore they remained silent until the child was gathered in.

31. If the child was found circumcised, bundled, salted,⁹⁷It was customary in the Talmudic era to apply salt to newborn babies to strengthen their limbs. blue eye-paint⁹⁸This substance was used in the Talmudic era for both medicinal and cosmetic purposes. was applied to his eyes, an amulet was placed around his neck,⁹⁹I.e., the mystical writing in the amulet was intended to protect the child. it was placed under a interwoven tree that a wild beast could not enter and was close to the city, or it was found in a synagogue near the public domain or at the side of the public domain, the laws pertaining to an asufi do not apply. Since [the parents] are protecting the child so that it does not die, we can assume that it is acceptable.¹⁰⁰We assume that a mother may want to abandon a child who is a mamzer so that it will die and there will be no sign of her sin. If, however, she and/or the father performed acts which indicate that they desired the child to live - even though they did not desire to care for it themselves - we assume that the child was of legitimate origin.

If, however, it is abandoned in the midst of the road or far away from a city, even under a tree, or in a synagogue, or it is found hanging in a place accessible by a wild beast,¹⁰¹I.e., in a place where it would most likely die or be killed. it is considered as an asufi.

32. A mid-wife's word is accepted if she states: "This child is a priest," "...a Levite," "...a netin,"¹⁰²See Chapter 12, Halachot 22-23. or "...a mamzer," because the child's lineage has not been established and is not known.

When does the above apply? When her faithfulness has been established and an objection is not raised against her. If, however, an objection was raised against her and one person said: "She is testifying falsely," her word is not accepted.¹⁰³The Beit Shmuel 4:60 explains that generally, the protest of one witness is not accepted against testimony which was previously accepted. In this instance, however, the child's identity is not known at all and there is no existing presumption regarding his status. Hence the protest cancels out the original testimony. The child is considered as acceptable,¹⁰⁴Even though the midwidfe said that he was a mamzer. but is not considered as [a priest or Levite].¹⁰⁵If the midwife said he was of this lineage.

33. It is a clear matter that a shituki is forbidden to marry a shituki and an asufi is forbidden to marry an asufi, because their status is doubtful.¹⁰⁶I.e., it is possible that one of them will be acceptable and one illegitimate. Nevertheless, even mamzerim of a definite status and netinim may intermarry. The offspring is a mamzer.¹⁰⁷For the child takes on the blemished identity, as stated in Halachah 7. A shituki or an asufi are permitted to marry netinim and other converts. The offspring is considered as [a mamzer] of doubtful status.