The third Mishnah in chapter eight of Masechet Yevamot discusses various individuals that are invalid to marry into the Jewish people, or more specifically, kehal Hashem. The Mishnah specifically highlights the cases of a mamzerin and netinim1 as those that are forbidden. With regard to Mamzerim there is a specific pasuk (Devarim 23:3) that invalidates them. What is unclear, however, is the source for the prohibition against Netinim.
The Gemara (Yevamot 79a) seems to imply that the source of this prohibition was based on a decree and not assur from the Torah. Yehoshua made the first decree and then David HaMelech made a subsequent one. This however, is in contrast to the beginning of the third perek of Makkot, where the Mishnah states that one is chayav malkut for marrying a Netin. The Bartenura comments there that the reason one is chayav is due to the prohibition of marrying one from the seven Canaanite nations “lo titchaten bam” - “you shall not marry them” (Devarim 7:3) - which implies that the prohibition is assur m’do’oraysa.\ \ There are mefarshim who dispute the Bartenura’s opinion. They explain that this prohibition of marrying the seven Canaanite nations does not apply in the case of the Netinim. This is because the prohibition only applies to those who remain idol worshippers. The Netinim in fact, did convert and should be allowed to enter into the Jewish people on a d’Oraysa level. Nevertheless, due to the decrees of Yehoshua and then David HaMelech they remain forbidden rabbinically.
The Ritva however agrees with the Bartenura and states that the Mishnah in Makkot teaches us that one receives lashes for a relationship with Netinim because they are prohibited on a d’Oraysa level. This is proven from the fact that the issur of marrying a Netin is mentioned in the same Mishnah as other Torah prohibitions. In fact, the Ritva continues by saying that this Mishnah proves that Netinim are proper converts and once they have converted they have “ishut”, which implies they are able to complete an effective marriage, even though it is prohibited2. This is because the Mishnah lists them with other relationships such as a widow for the Kohen Gadol, or a divorcee for a regular kohen, whose marriages are halachically effective even though they are forbidden on a d’Oraysa level.
The question remains however with the Ritva in explaining the earlier Gemara that states that Yehoshua and David HaMelech instituted the decree against Netinim. How could the prohibition be De’Oraysa, as the Ritva maintains, if the decree was instituted after the Torah was given?
Rabbeinu Tamanswers that the prohibition against marrying Netinim is covered by the pasuk in Devarim and the prohibition against them is from the Torah. He explains that the gezeira made subsequently was not on forbidding marriage, but rather as extending their period of servitude to the Jewish people. Therefore, according to this opinion, they were already forbidden to marry into the Jewish people from the Torah - however the rabbinic decrees ensured that they would remain in a position of servitude, as woodchoppers and water bearers for the Jewish people.
1 The Netinim was a name given to the Givonites who converted during the times of Yehoshua Bin Nun. This nation tricked Yehoshua into accepting them as converts during the conquest of the Land of Israel. They are referred to in the Mishnah as Netinin based on the language of the pasuk in Yehoshua (9:27).
2 This is the opinion of Rava in Yevamot (76a).
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