The Mishnah in the third perek of Masechet Kiddushin discusses the ability of a Mamzer to purify their children from the pesul of mamzerut. Rabbi Tarfon is of the opinion that a Mamzer is able to purify his offspring. This can be done through marriage to a Shifcha. The offspring of the Mamzer and Shifcha has the status of a slave (see 3:12), who can be freed by his master (in this case his father who is a Mamzer). In this way, this child who was born to a Mamzer is able to become a fully-fledged Jew.
Rabbi Eliezer disagrees with R’ Tarfon’s view. He states that the child of a Mamzer and a Shifcha Canaanit receives its status from both parents and therefore has the dual status as a mamzer-servant. The Gemara explains R’ Eliezer’s rationale. This is because the law is that a person’s yichus follows the pegum. Since in this case there is a deficiency on both sides – the child receives its ‘blemish’ from both parents and becomes a mamzer-slave.
The Tosafot in Yevamot (23a) seem to take exception to R’ Elazar’srationale. This is because Tosafot there states that a non-Jew cannot become a mamzer. This is a challenge to the opinion of R’ Eliezerwho states that this non-Jewish child is a servant as well as a mamzer.
The Avnei Miluim attempts to answer this question using the same law that was used by the Gemara as the rationale for R’ Eliezer’s*opinion. The law has been established that we follow the pegum in all cases, and applies to this case as well. By this law, the child is deemed to be like the mother and the father when they are tainted on both sides. Therefore, just as the father who is a Mamzer, is a Jew – this same yichus will be passed on to the child. The child has the status, not of a non-Jewish slave who becomes a mamzer, but rather that of a Jewish mamzer* (from his paternal side), who is also a slave (from his maternal side).1
The Keren Orah takes exception to the Avnei Miluim’s interpretation for a number of reasons. Firstly, he states that it is not practically possible for this child to be a half Jew / half canaanit. Additionally, he states, this opinion gives rise to a counter-intuitive law which is if a Jew has offspring with a shifcha, that child has the status of a shifcha, however if a shifcha and a mamzer reproduced, that child should be half-Jewish!
The Imrei Moshe also questions the Avnei Miluim by looking at this child’s status vis-a-vis monetary matters. The Imrei Moshe states that the law of following after a parent’s pegum, does not override the fact that for monetary matters this child is deemed a slave. Therefore it is impossible that this child could be half Jewish-half slave considering the child’s status as a slave for monetary matters. Therefore both the Keren Orah and Imrei Moshe conclude that although a non-Jew cannot be made a mamzer, however a slave can become a mamzer. This slave obviously has some quasi-status between that of a non-Jew and a fully-fledged Jew.
There is also debate amongst the achronim regarding the shita of R’ Tarfon, that the child becomes a slave who can become Jewish upon being released. The Chazon Ish and Kovetz Ha’arot explain that R’ Tarfonwas of the opinion that a slave cannot become a mamzer.
The Avnei Miluim states that there is a unique law in the case of the child of a slave that this child does not gain his yichus from his father, and therefore does not have the law of receiving the mamzerut blemish from his father’s side. The Gemara in Kiddushin (68a) seems to support this theory by stating that deriving from a limud that slaves are an ‘am hadomeh l’chamor’ in terms of their legal status. Rashi seems to imply that just as an animal clings to its mother and does not associate with its father at all, the offspring of a slave should have the status of a slave by virtue of its close association with its mother and have no legal association with its father..
1 Interestingly, according to this Avnei Miluim, this child would be a half slave/half free-man and therefore would be able to effect kiddushin due to his free half.
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