INTRODUCTION TO SEDER NASHIM
[page xxvii] The name 'Nashim', 'Women', given to the third 'Order' of the Babylonian Talmud is of ancient origin. This 'Order' was so known in the early Talmudic period when it had been also aptly designated 'Hosen'1 'Strength'. As the 'Order' devoted to regulating the relations between husband and wife, its fundamental teachings of the sanctity of marriage, moral sobriety and purity of family life, invested the Jewish home with the 'beauty of holiness', which enabled it to resist the disruptive influences and disintegrating force of centuries, thus proving the saving strength of the Jewish people throughout the long and chequered history of their existence.
With woman as its principal theme, the appelation Nashim as applied to this 'Order', is self-explanatory. It may, however, be noted that in the Cambridge MS. of the Mishnah the opening tractate is entitled Nashim instead of Yebamoth, the title evidently having been derived from the third Hebrew word in the tractate: [H] 'Fifteen women'. Consequently, it has been suggested that Nashim was the name by which the first tractate was originally known and to which tractate it was originally restricted, and that this name was finally used to describe the whole of this 'Order', even as a whole is often made to bear the name of a part.2
The above sequence has been followed in this publication, the tractates in the eight volume first edition appearing for practical reasons as follows:
For the edition de luxe it was found expedient to follow another arrangement:
The inclusion of Nedarim in this 'Order', although it has no particular bearing on the subject of 'Women', is because the Scriptural basis of the tractate is Numbers XXX, 3ff which treats of vows made by women — wives and unmarried daughters. The resemblance of Nazir to Nedarim, both dealing with vows, is responsible for the inclusion of the former in this 'Order' instead of Kodashim to which it properly belongs (v. Sot. 2a). Another reason is given in the Talmud for the inclusion of Nazir. Assuming the order of the tractates to be Gittin, Nazir, Sotah, it is explained that Nazir has been included as an antidote to Gittin and Sotah (v. Naz. 2a). Yet in another place (Sot. 2a) the order of the tractates is assumed to be Nedarim, Nazir, Sotah. In view of this divergence it is idle to seek any definite logical sequence in the arrangement of the several tractates within the 'Order'. There is, however, common agreement about Yebamoth being assigned the pride of place at the head of this 'Order'. It is said to owe its position to the number of its chapters which is greater than that of any other tractate in Nashim. The opinion may, however, be hazarded that it is because of the fundamental purpose of marriage which under-lies the Levirate laws dealt with in this tractate that it was selected as a fitting introduction to this 'Order'. The primary object of Levirate Marriage was to provide an heir to succeed in the [page xxx] name of the deceased (Deut. XXV, 6). Marriage having been regarded in Judaism as a divine institution ordained primarily for the purpose of the propagation of the human species, a childless marriage was deemed to have been, in a large sense, a failure. To redeem the deceased brother's failure, it was the duty of the eldest surviving brother to marry his widow and raise, so to speak, a son for him. Where the brother was so churlish as to refuse to redeem his brother's memory from failure, he had to submit to Halizah.
SOME FUNDAMENTAL PRINCIPLES OF THE LAWS OF
The marriage laws as developed by the Rabbis in the Talmud only served to confirm and deepen the elevated view of married life. Already from time immemorial, a Jewish marriage was contracted by two stages (v. Deut. XX, 7). In the Talmudic period these were designated respectively: erusin and nissu'in. The erusin was an act of betrothal effected by the bridegroom in the presence of two eligible witnesses before whom he declared, 'Be thou consecrated unto me …', [H]. This phrase is explained in the Talmud (Kid. 2b) as 'a setting aside of the woman like a consecrated object'. The bridegroom, that is to say, by the act of erusin imposes upon the woman the character of a sanctified object whereby she becomes prohibited to the world. That, however, does not imply that she is forthwith permitted to him without the need of any further rites; just as the mere consecration of an object for the sanctuary does not complete the process of making it acceptable as an offering. The bridegroom still stands to her in a prenuptial relation in which all marital connections are forbidden. The erusin is thus but a legal contract whereby the woman reserves herself for her husband, without however yet becoming permitted to him. In other words, she binds herself to give herself in marriage to him at the nuptials; otherwise neither he nor she has any claim on the other: He neither inherits from her in case of her death, nor has he any title to use her income or earnings; nor has she claim to sustenance or to any other obligation of a Jewish husband to his wife. This undertaking is, however, indissoluble save by divorce or death, and any act of infidelity on her part is treated as adultery.
On the elapse of a certain period after the erusin, twelve months [page xxxii] in the case of a maiden, and thirty days in that of a widow, there followed the fulfilment of the contract — the nissu'in, at which the bride came to her husband for the consummation of the marriage. But for this consummation, as well as for the contract that preceded it, the consent of both parties was demanded. Indispensable when they had both become of age, consent was deemed an essential factor of marriage; and thus the Rabbis forbade a man to give his daughter in betrothal before she was old enough to express her own feelings on the subject of matrimony, although legally he had the right to contract a marriage on her behalf until she had reached adolescence — twelve years and six months plus one day. For this reason, too, the Rabbis insisted on every betrothal being preceded by shiddukin, a proposal of marriage, the disregard of which involved the infliction of disciplinary measures — flogging.7 It is this consideration too that lies behind the institution of mi'un which enabled an orphan girl, who had been given in marriage as a minor by her mother or brother, to have her marriage dissolved by a mere declaration of refusal. Whilst anxious to make provision for the marriage of an orphan girl, should circumstances demand it, the Sages refused to bind her against her own wish to the husband who had been chosen for her while she was not yet in a position to make her own choice, but reserved for her the right to regain her freedom without subjecting her to the necessity of a bill of divorce.
Marriage by consent also explains the signification of huppah which forms one of the distinctive ceremonies at the nuptials. Whatever may be the origin of this ceremony, the huppah, which denotes the baldachin or canopy wherein the bridegroom receives the bride, came to signify in the Talmud the voluntary entrance of the bride upon the final stage in her consecration to the task of womanhood begun at the erusin, and her free surrender to her husband for the consummation of marriage.8 Thus is the real significance of the term Kiddushin revealed. It has two aspects: a negative aspect and a positive one. The erusin, in rendering the [page xxxiii] woman forbidden to the world, discloses only its negative side; whereas the positive side is released at the nissu'in, which completes the kiddushin and thus perfects it. Both the erusin and nissu'in together constitute the kiddushin, sanctifying the union.9
There is still another requisite for the consecration of the union. The kethubah — the deed of marriage settlement10 instituted primarily with the object of protecting a wife against hasty divorce, had to be drawn up and duly completed before the consummation of marriage. In view of the right vested by the Bible in the husband to divorce the wife at his pleasure — a theoretical right which the Rabbis could not entirely set aside11 — it was felt that no woman could enter upon matrimony with a free and easy mind without being in possession of this safeguard to her marital security. The Sages accordingly forbade marital relations as long as the kethubah had not been completed. Furthermore, they declared that it was forbidden for husband and wife to live together for a single moment without a kethubah (B.K. 89a); and where the kethubah was lost, they had to abstain from intercourse until another kethubah had been made out. [page xxxiv]
Closely related to the attitude of the Talmud on remarriage after divorce is its attitude of remarriage on widowhood. The strong voice of disapproval of second marriages heard in the Church never found an echo in the Beth Hamidrash. 'If a man married in his youth, let him also marry (if necessary) in his old age'.15 Widows likewise were encouraged to remarry, though they were not likely to find a suitor for a third marriage owing to the popular belief that a widow who had been unfortunate in the loss of two husbands was ill-starred and apt to bring death on him who might venture to marry her.
In the case of a childless marriage, the widow could find a home in the house of her deceased husband's brother by contracting levitate marriage (yibbum), or she could marry a stranger after having secured her freedom by halizah.16 Where she married the brother-in-law, the Rabbis enacted, as a safeguard against divorce, that his estate, in the event of divorce, was to be charged with the payment of the kethubah, if the first husband's estate was insufficient for the payment thereof,17 although according to the earlier law the widow had no claim on the levir beyond the ordinary marital obligations of a husband to a wife.18
'Of all expositions by the Sages of the commandments in the Torah, none redounds more to their praise than their exposition of the marriage laws'.19 Such was the verdict of past generations; and such it is confidently anticipated will be the verdict of every diligent student who will endeavour to penetrate the spirit that animated the discussions in the Babylonian and Palestinian schools presented in this 'Order'. [page xxxvi]
METHOD AND SCOPE
TEXT. The Text used for this edition is in the main that of the Wilna Romm Edition. Note has, however, been taken of the most important variants of manuscript and printed editions some of which have been adopted in the main body of the translation, the reason for such preference being generally explained or indicated in the Notes. All the censored passages appear either in the text or in the Notes.
TRANSLATION. The translation aims at reproducing in clear and lucid English the central meaning of the original text. It is true some translators will be found to have been less literal than others, but in checking and controlling every line of the work, the Editor has endeavoured not to lose sight of the main aim of the translation. Words and passages not occurring in the original are placed in square brackets.
NOTES. The main purpose of these is to elucidate the translation by making clear the course of the arguments, explaining allusions and technical expressions, thus providing a running commentary on the text. With this in view resort has been made to the standard Hebrew commentators, Rashi, the Tosafists, Asheri, Alfasi, Maimonides, Maharsha, the glosses of BaH, Rashal, Strashun, the Wilna Gaon, etc.20 Advantage has also been taken of the results of modern scholarship, such as represented by the names of Graetz, Bacher, Weiss, Halevy, Levy, Kohut, Jastrow, Obermeyer, and — happily still with us — Krauss, Buchler, Gmzberg, Klein and Herford among others, in dealing with matters of general cultural interest with which the Talmud teems — historical, geographical, archaeological, philological and social.
GLOSSARY AND INDICES. Each Tractate is equipped with a Glossary wherein recurring technical terms are fully explained, thus obviating the necessity of explaining them afresh each time they appear in the text. To this have been added a Scriptural Index and a General Index of contents. [page xxxvii]
In the presentation of the tractates the following principles have also been adopted:
I desire again to express my grateful appreciation of the scholarship and diligence shewn by all the collaborators of Seder Nashim. My special thanks are due to Mr Maurice Simon, M.A., who has assisted in many respects, and to my dear wife for her invaluable help to me in many ways whilst engaged in this work.
I am deeply grateful to Mr J. Davidson, the Governing Director of the Soncino Press, for the infinite patience and care with which he has seen these volumes of Nashim through the Press.
In conclusion, I must tender my humble thanks to the Almighty God for having given me the strength to carry through, amidst other labours, this exacting and strenuous task. And on behalf of all those of us who have been closely concerned with this publication, [page xxxix] I offer the traditional prayer:
May it be Thy will, O Lord our God, even as Thou hast helped us to complete the Seder Nashim so to help us to begin the other Sedarim, 'Orders', and complete them.