Komentarz do Nidda 5:4
בַּת שָׁלשׁ שָׁנִים וְיוֹם אֶחָד, מִתְקַדֶּשֶׁת בְּבִיאָה. וְאִם בָּא עָלֶיהָ יָבָם, קְנָאָהּ. וְחַיָּבִין עָלֶיהָ מִשּׁוּם אֵשֶׁת אִישׁ, וּמְטַמְּאָה אֶת בּוֹעֲלָהּ לְטַמֵּא מִשְׁכָּב תַּחְתּוֹן כָּעֶלְיוֹן. נִשֵּׂאת לְכֹהֵן, תֹּאכַל בַּתְּרוּמָה. בָּא עָלֶיהָ אַחַד מִן הַפְּסוּלִים, פְּסָלָהּ מִן הַכְּהֻנָּה. בָּא עָלֶיהָ אַחַד מִכָּל הָעֲרָיוֹת הָאֲמוּרוֹת בַּתּוֹרָה, מוּמָתִין עַל יָדָהּ, וְהִיא פְטוּרָה. פָּחוֹת מִכָּן, כְּנוֹתֵן אֶצְבַּע בָּעָיִן:
Dziewczynka w wieku trzech i jednego dnia może zostać uświęcona [do małżeństwa, tj. Zaręczona] poprzez stosunek; a jeśli miała związek z yavamem [tym, który był zobowiązany do zawarcia małżeństwa lewitowego], on ją nabył [jako swoją żonę]; i jeden jest odpowiedzialny za [utrzymywanie stosunków] z zamężną kobietą na jej koncie [jeśli jest mężatką]; a ona czyni tego, kto śpi z nią nieczystą [jeśli jest niddah ] tak, że czyni nieczystym to, na czym siedzi, dolną [warstwę pościeli, nawet jeśli nie dotyka jej bezpośrednio], tak jak górną [warstwę pościeli]. Jeśli poślubi księdza, może jeść terumah . Jeśli ktoś nieważny [do kapłaństwa] miał z nią stosunki, staje się on nieważny do kapłaństwa. Jeśli któryś z nielegalnych krewnych wymienionych w Torze miał z nią stosunki, są oni skazani na śmierć z jej powodu, ale ona jest zwolniona. Jeśli jest młodsza, to jak wkładanie palca w oko.
Bartenura on Mishnah Niddah
מתקדשת בביאה – if her father handed her over for this.
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English Explanation of Mishnah Niddah
Introduction
This mishnah teaches that in a legal sense, sexual relations with a girl over the age of three counts as sexual relations.
I should emphasize that this mishnah in no way condones such an act (which is certainly rape) it just teaches that this counts as an act of intercourse. At the core of this notion is their understanding of the physical consequences of intercourse for the first time namely the breaking of the woman's hymen. As we can see at the end of the mishnah, if a girl has intercourse (i.e. is raped) before the age of three her hymen will repair itself. After the age of three, it will not. This, to the rabbis, means that after the age of three, intercourse "counts" in a legal sense. Before the age of three, it does not.
Having taught this mishnah (and others like it) many times, I realize that this is a very sensitive issue. To talk about sex with young girls is very troubling. I certainly don't want people to read this and think that the rabbis thought that it was okay for men to have relations with little girls. As usual, the mishnah uses a clinical, emotionally distant tone. That's just the way the rabbis composed much of the mishnah.
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Bartenura on Mishnah Niddah
ואם בא עליה יבם קנאה – to be his wife for every matter, and he inherits her and defiles her and takes possession of the property of his brother.
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English Explanation of Mishnah Niddah
A girl of the age of three years and one day may be betrothed by intercourse and if a yavam had intercourse with her, he acquires her thereby. As stated above, intercourse with a girl over the age of three years counts as intercourse. Therefore, since betrothal may be performed by intercourse, she may also be betrothed in this way. If she is liable for yibbum (meaning her previous husband died without any offspring) and the yavam (her dead husband's brother) had intercourse with her, she becomes his wife. Again, this means that intercourse with her creates legal obligations and a legal relationship.
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Bartenura on Mishnah Niddah
וחייבין עליה משום אשת איש – if her father received her betrothal for her from one, and another person came upon her [through an act of sexual intercourse], he is put to death on her account, for her act of sexual intercourse is sexual intercourse.
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English Explanation of Mishnah Niddah
One can be liable for adultery with her; If her father marries her off to someone (this can be done even before three years old) and then another man has intercourse with her, he is liable for adultery and he would get the death penalty.
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Bartenura on Mishnah Niddah
ומטמאה את בועלה – if she was a menstruating woman/Niddah. But less than this (i.e., three-years and one-day old), even though she dies through contact, she does not defile the person who had intercourse with her because of [the transgression of] a person who has intercourse with a menstruating woman would lead to seven-days of defilement [which does not apply], but because of contact it is defilement for an evening.
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English Explanation of Mishnah Niddah
And she defiles the one who had intercourse with her so that he in turn conveys uncleanness to a couch underneath as to a cover above. If she is a niddah, she defiles one who has intercourse with her such that he would defile any number of couches or cushions upon which he sat. This was explained in 4:1.
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Bartenura on Mishnah Niddah
תחתון – of a person who has intercourse with a menstruating woman.
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English Explanation of Mishnah Niddah
If she was married to a priest, she may eat terumah. An Israelite woman married to a priest can eat terumah. Since this marriage counts, she can eat terumah.
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Bartenura on Mishnah Niddah
כעליונו – of a person who has gonorrhea, which defiles food and liquids, but not persons or utensils.
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English Explanation of Mishnah Niddah
If any of the disqualified men have relations with her he disqualifies her from the priesthood. If someone who is disqualified from the priesthood, such as a halal (a disqualified priest) or a non-Jew, has relations with her, he disqualifies her from subsequently marrying a priest. This is true of all women.
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Bartenura on Mishnah Niddah
מן הפסולין – as for example, a heathen and a slave and a descendant of the Gibeonites (see Joshua 9:27) and a Mamzer or the child of a Kohen who married a divorcee.
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English Explanation of Mishnah Niddah
If any of the forbidden relatives found in the Torah had relations with her he is to be executed on her account, but she is exempt [from the penalty]. If a man forbidden to her because of incest has relations with her, he gets the death penalty (as long as the incest was punishable by death). She, of course, is not punished because little children cannot be held accountable for their actions. Obviously, this was an act of rape.
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Bartenura on Mishnah Niddah
פסלה – from [consuming] the heave-offering of her father, if she is the daughter of a Kohen.
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English Explanation of Mishnah Niddah
If she was younger than this age, intercourse with her is like putting a finger in the eye. This is the concept I mentioned in the introduction. If one pokes someone in the eye, the eye tears up but returns to normal. So too, the rabbis believed that if one had intercourse with a girl younger than three, her hymen would repair itself. She would remain a "virgin" and therefore there are no legal consequences to relations with her.
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Bartenura on Mishnah Niddah
מכל העריות – such as her father or her father-in-law.
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Bartenura on Mishnah Niddah
והיא פטורה – because she is a minor and is not liable for punishments.
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Bartenura on Mishnah Niddah
כנותן אצבע בעין – that he sheds tears and returns to the status that he was, even here, she returns to being a virgin like she was.
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