Commentary for Kiddushin 135:17

The list in Leviticus 18 includes the prohibition of having sex with a woman while she is menstruating (18:19). So if she is compared to all the other prohibitions, why would Abaye say that all tannaim agree that kiddushin with her (and with a woman suspected of adultery) is valid?
To solve this problem, Hezekiah cites a verse that uses the Hebrew word “will be” which is the same word used at times to signify kiddushin. While this is certainly not the simple meaning of the word, he reads it as teaching that kiddushin with a niddah (a menstruant) is valid.

Other incestuous relationships are compared with a wife’s sister, with whom kiddushin is not possible, and not with a niddah, with whom kiddushin is possible, because in cases where an unknown can be compared with two knowns, we compare to the more stringent case, in this case a wife’s sister.

R. Aha b. Ya’akov derives the rule that betrothal is ineffective with incest prohibitions from the rule with regard to a yevamah. A yevamah is prohibited to all men except the yavam by a negative commandment, a transgression considered lesser than that prohibited by penalty of death or karet. So if kiddushin is ineffective with her (note that this is not the post-talmudic halakhah) then kiddushin should also be ineffective with those more prohibited, namely incestuous relationships.

The problem with R. Aha b. Ya’akov’s proof is that we could use the yevamah to prove that kiddushin are ineffective with marriages prohibited by a negative commandment such as a divorcee to a priest. Such marriages are effective. But we could say that just as a yevamah is prohibited by a negative commandment and kiddushin are not effective with her, so too all women prohibited by a negative commandment, kiddushin are ineffective with her.
R. Papa cites a midrash that interprets “beloved” and “hated” not to mean the woman is actually beloved or hated—God does not play favorites (although human beings clearly do). Rather, the word “beloved” means that her marriage is permitted. “Hated” means it is forbidden. Thus there must be a category of women with whom marriage is prohibited but with whom kiddushis is nevertheless effective. This category is women prohibited by a negative commandment (widow to high priest, divorcee to priest).

The problem with R. Aha b. Ya’akov’s proof is that we could use the yevamah to prove that kiddushin are ineffective with marriages prohibited by a negative commandment such as a divorcee to a priest. Such marriages are effective. But we could say that just as a yevamah is prohibited by a negative commandment and kiddushin are not effective with her, so too all women prohibited by a negative commandment, kiddushin are ineffective with her.
R. Papa cites a midrash that interprets “beloved” and “hated” not to mean the woman is actually beloved or hated—God does not play favorites (although human beings clearly do). Rather, the word “beloved” means that her marriage is permitted. “Hated” means it is forbidden. Thus there must be a category of women with whom marriage is prohibited but with whom kiddushis is nevertheless effective. This category is women prohibited by a negative commandment (widow to high priest, divorcee to priest).

According to R. Simai, there is one marriage prohibited by a negative commandment that R. Akiva does not declare a mamzer—a widow married to a high priest.

According to R. Simai, there is one marriage prohibited by a negative commandment that R. Akiva does not declare a mamzer—a widow married to a high priest.

R. Yeshvav laments R. Akiva’s overly strict position. However, it is unclear what R. Yeshvav thinks R. Akiva’s position actually is. If he thinks it is the same as R. Simai does, then we understand how R. Akiva interprets the words “beloved” and “hated.” But if he thinks R. Akiva rules even more strictly, that the offspring of all women prohibited by negative commandments and even those prohibited by positive commandments are mamzerim, then how would R. Akiva understand the verse?
The answer is that R. Akiva could read the verse as referring to a non-virgin who may not marry a High Priest. This is considered a positive commandment for the Torah says that the High Priest must marry a virgin—the rule is phrased in the positive and not the negative. It is different from other positive commandments in that it applies only to a High Priest and not to other Jews, even other priests. Only in this case would the offspring not be a mamzer according to a very expansive reading of R. Akiva.
Note that according to this R. Akiva reads the verse, “If a man has two wives, one beloved and one hated” as referring only to the Kohen Hagadol who has two wives, one he married as a virgin and one as a non-virgin. Yes, this is weird. But you’ve been reading Talmud for a while now—lots of stuff gets weird. As I’ve said, as long as it’s possible, an interpretation can be offered, even if it seems remarkably unlikely.

R. Yeshvav laments R. Akiva’s overly strict position. However, it is unclear what R. Yeshvav thinks R. Akiva’s position actually is. If he thinks it is the same as R. Simai does, then we understand how R. Akiva interprets the words “beloved” and “hated.” But if he thinks R. Akiva rules even more strictly, that the offspring of all women prohibited by negative commandments and even those prohibited by positive commandments are mamzerim, then how would R. Akiva understand the verse?
The answer is that R. Akiva could read the verse as referring to a non-virgin who may not marry a High Priest. This is considered a positive commandment for the Torah says that the High Priest must marry a virgin—the rule is phrased in the positive and not the negative. It is different from other positive commandments in that it applies only to a High Priest and not to other Jews, even other priests. Only in this case would the offspring not be a mamzer according to a very expansive reading of R. Akiva.
Note that according to this R. Akiva reads the verse, “If a man has two wives, one beloved and one hated” as referring only to the Kohen Hagadol who has two wives, one he married as a virgin and one as a non-virgin. Yes, this is weird. But you’ve been reading Talmud for a while now—lots of stuff gets weird. As I’ve said, as long as it’s possible, an interpretation can be offered, even if it seems remarkably unlikely.

R. Yeshvav laments R. Akiva’s overly strict position. However, it is unclear what R. Yeshvav thinks R. Akiva’s position actually is. If he thinks it is the same as R. Simai does, then we understand how R. Akiva interprets the words “beloved” and “hated.” But if he thinks R. Akiva rules even more strictly, that the offspring of all women prohibited by negative commandments and even those prohibited by positive commandments are mamzerim, then how would R. Akiva understand the verse?
The answer is that R. Akiva could read the verse as referring to a non-virgin who may not marry a High Priest. This is considered a positive commandment for the Torah says that the High Priest must marry a virgin—the rule is phrased in the positive and not the negative. It is different from other positive commandments in that it applies only to a High Priest and not to other Jews, even other priests. Only in this case would the offspring not be a mamzer according to a very expansive reading of R. Akiva.
Note that according to this R. Akiva reads the verse, “If a man has two wives, one beloved and one hated” as referring only to the Kohen Hagadol who has two wives, one he married as a virgin and one as a non-virgin. Yes, this is weird. But you’ve been reading Talmud for a while now—lots of stuff gets weird. As I’ve said, as long as it’s possible, an interpretation can be offered, even if it seems remarkably unlikely.

The rabbis don’t interpret the two wives as being prohibited by positive commandments because this would not fit the verse. If both are Egyptian (a positive commandment prohibition) then both are hated. If one is Egyptian and one a Jew, then both need to be from the same nation. And if the verse refers to the prohibition of a non-virgin to a High Priest, well the verse says “man” not “priest.”

The rabbis don’t interpret the two wives as being prohibited by positive commandments because this would not fit the verse. If both are Egyptian (a positive commandment prohibition) then both are hated. If one is Egyptian and one a Jew, then both need to be from the same nation. And if the verse refers to the prohibition of a non-virgin to a High Priest, well the verse says “man” not “priest.”

R. Akiva, who reads the verse as referring either to a non-virgin married to a high priest or an Egyptian married to a Jew is forced to just read the verse in a difficult manner. Sometimes there is nothing else you can do, even if you’re R. Akiva.

When leaving to sacrifice Isaac, Abraham tells his servants “stay here with the donkey.” There really is no reason for Abraham to add in “with the donkey.” These are extraneous words so the rabbis see this as an opportunity for midrash. They play on the word “עם” and read it as “am.” Essentially, Abraham says, “Stay here, you people like a donkey.” Just as a Jew cannot marry a donkey (although some have married an ass [couldn’t help it]), so a Jew cannot marry a slave woman. The kiddushin would be invalid.
Yes, this is not the piece of Talmud you want to be shouting about in the streets. But it does represent the way people in the ancient world most likely thought—slaves do not have marriage or genealogical lineage in the same way that free people do.

Exodus 21 says that if a master gives a slave woman to his Hebrew slave the offspring belong to the master. This shows that the offspring of a Jew and a slave woman follow the status of the slave.