I had previously read, in English translation, the famous response given by Ya'avetz and also, concerning the position taken by Ramban, what Rashba reports in his work "Teshuvot haRashba Meyuchas LehaRamban"- No. 284.
Now, I can't understand two specific points:
1) Both Ya'avetz and Ramban point out that neither the Written Torah (and more generally the whole Tanakh) nor the Talmud (except for my mistake, the two sources of knowledge of the Jewish Law) report a specific prohibition of pilegesh for the commoner: if this is true, on what detailed and identifiable halachic source Rambam relied to assert in a peremptory and absolute way, in Melachim uMilchamot 4: 4, that "A commoner is forbidden to have a pilegesh"?
2) Ramban says in Teshuvot haRashba Meyuchas LehaRamban (Nachmanides) No. 284 (Translation into English by Rabbi Gershon Winkler):
(...) "And also in regard to the words of Rambam (Rabbi Moshe ben Maimon), of Blessed Memory, they are not intended to forbid the Pilegesh relationship to a commoner and permit it only to a king. Rather, this is what he said: "And anyone who has relations with a woman for the sake of lust, without Kiddushin, is whipped, because he has had sex with a harlot; and "for the sake of lust" means when he contacted and engaged in sex with her but he did not render the relationshpip exclusive to him for the purpose of establishing a Pilegesh form of relationship, which thus rendered her a harlot. And Rabbi Moshe of Blessed Memory did not say that anyone who has sex without marriage is flogged. And likewise, in his Laws of Kings, when he mentions the issue of Pilegesh as it pertains to a king, he does not at all mention that its acceptability applies solely to a king."
I ask myself: but if Ramban says that Rambam did not forbid the pilegesh to a commoner in his Mishneh Torah, what would be the meaning of Melachim uMilchamot 4: 4?I am very confused in this regard, also because I read in an article written by Rabbi Dovid Eidensohn that even according to the authoritative Vilna Gaon Rambam would allow the pilegesh also to a commoner (this Vilna Gaon's comment should be present at the link below ;forgive me if I use the conditional, man I don't know Hebrew ):
Shulchan Aruch, Even HaEzer 26:1:6-7
How to reconcile the opinions of Ramban and the Vilna Gaon about Rambam's position with what we literally read in Melachim uMilchamot 4:4?
I trust in your help to understand.
Best regards
Dr. Riccardo F. Gioviale-Italy
Dear Dr. Gioviale,
It seems that most authorities agree that the Rambam forbids a Pilegesh to a Hedyot, and this is how his opinion is recorded in Shulchan Aruch (EH 26:1, Rema). The Kesef Mishneh (Hilchos Ishus 1:4) says that the Ramban perhaps had an alternative Girsa (text) of the Rambam that left out the key words "ha'Hedyot Asur b'Pilegesh." I was not able to find a statement of the Vilna Gaon that supports the Ramban's assertion that the Rambam did not forbid a Pilegesh to a Hedyot. Just the opposite, in his comment that you quote above, he says that the Rambam forbids it and the Ramban argues on him.
The Kesef Mishneh (Hilchos Melachim 4:4) says that the source for the Rambam that a Hedyot is forbidden to a Pilegesh comes from his statement in Hilchos Ishus 1:4 that it is forbidden for a man to be intimate with an unmarried woman without Kidushin. The Rambam's wording is, "Anyone who is intimate with a woman, for the sake of lust, without Kidushin, is flogged." It seems that the Kesef Mishneh understood the Rambam to be saying that if a man is intimate with a woman without Kidushin it is, ipso facto, "for the sake of lust." Therefore, even if the man is Meyached her (designates her as his partner, i.e. a Pilegesh), it is still forbidden. The Ramban, of course, disagrees and holds that if the man is Meyached her, then even without Kidushin it is permitted.
Kol Tuv,
Yonasan Sigler
This is not a Psak Halachah