The Mishnah (9:3) discusses the law regarding a marriage that was prohibited yet binding. In other words, if the relationship is prohibited by way of a rabbinic prohibition or a negative biblical prohibition that is punishable with lashes, then the marriage is still binding and a divorce would be required. The Mishnah however list further rabbinic "fines" that are placed on such a union, e.g. the base financial obligation of a ketubah does not apply. The Mishnah however differentiates between cases as to when these fines apply. In cases where the union involved "shniyot" – rabbinically prohibited familial relationships – the fines are listed. In the following cases however, the fines do not apply: where a kohen gadol marries a widow, a kohen marries a divorcee or a chalutzah1, a mamzer or netin marries a bat Yisrael or an Yisrael marries a netina or mamzeret.
The Bartenura explains that the difference between shniyot and the second group is that shniyot are prohibited rabbinically whereas the rest are prohibited on a biblical level. Why should the two groups be treated differently? The Bartenura explains that this is because "divrei sofrim tzrichim chizuk" - rabbinic laws require strengthening. Consequently, in the case of shniyot, they are reinforced with these fines if violated. The difficulty with this explanation is that the odd case in the second list, those that do not have the fines applied, is where a kohen marries a chalutzah, which is prohibited rabbinically.
The Bartenura explains that despite the fact that a kohen marrying a chalutzah is prohibited rabbinically, in this case it is treated like those that are prohibited on a biblical level. The Tosfot Yom Tov however finds this explanation difficult. Why should this case be treated than shniyot? Furthermore, the Gemara (85b) points to the case of a chalutzah to reject the rabbinic-biblical distinction in search for a different explanation.
Instead the Tofsot Yom Tov cites the Beit Yosef who explains that really the case of chalutzah should not be included in the second list and is treated the same as shniyot. Why then does it appear in our text? He explains that in general, throughout Mishnayot that cases of a gerusha and chalutza are mentioned together. The Mishnah happened to follow this pattern as well.
Perhaps however, we can defend the Bartunera based on the Ritva that differentiates between the prohibition of chalutzah and shniyot. When the Gemara (24a) mentions that the prohibition of a kohen marrying a chalutzah is rabbinic, the Gemara follows by citing a Beraita that suggest that prohibition is biblical. The Torah (Vayikra 21:7) writes: "…and a woman divorced from her husband, [a kohen] shall not take...". The Beraita explains that had the pasuk written "isha" we would have learnt the prohibition of a kohen marrying a divorcee. We learn the prohibition of a kohen marrying a chalutza since it is written "*ve'isha". The Gemara answers that the Beraita should not be understood as the source for the prohibition. Instead the pasuk is to be understood as an asmachta. In other words, the source is rabbinic, and the pasuk* is used a hint or a mark used for memory.
The Ritva reasons that this is the basis for why the prohibition of chalutzah is treated that same as other biblical prohibitions. Recall that the fines apply to rabbinic prohibitions since they require strengthening. As we have seen the prohibition of chalutzah is different. Since there is an asmachta, it is less likely that one will mistakenly err and no further strengthening is required.
1 This refers to a woman whose husband died without them having any children. The brother is required to before either yibum , effectively marrying her, or chaliztah , a process through which she is free to marry someone else. A chalutzah refers to a woman who has performed chalitzah.
Receive our publication with an in depth article and revision questions.
Listen to the Mishnah Shiurim by Yisrael Bankier