Babylonian Talmud: Tractate Yebamoth

Folio 10a

And your mnemonic is, 'Died, born, and performed the levirate marriage; died, born, and performed the levirate marriage'!¹  — Rabbi²  does not accept these rules.³

R. Adda Karhina stated before R. Kahana in the name of Raba: Rabbi, in fact, does accept these rules,⁴  but it was this that he meant to say to [Levi]:⁵  [The application of the statement⁴  to] a woman outraged by one's father is possible only in one [of its parts]; it is impossible, however, to apply it in [both its parts], for if Jacob outraged his two sisters,⁶  it is possible [to apply that part of the statement relating to] 'her sister who is her sister-in-law',⁷  but not that of 'she who is forbidden to one brother may be permitted to the other';⁸  and if be outraged two strangers,⁹  it is possible [to apply the statement], 'she who is forbidden to one brother may be permitted to the other'¹⁰  but not that of 'her sister who is her sister-in-law'.¹¹

R. Ashi said: Rabbi, in fact, does not accept these rules¹²  and [our Mishnah] does deal with matters in dispute, and as to the meaning¹³  of 'It seems to me that this man has no brains in his head' which he¹⁴  addressed to him,¹⁵  what he meant was this: 'Why did you not carefully consider our Mishnah? For our Mishnah represents the view of R. Judah who forbids the marriage of a woman that was outraged by one's father,¹⁶  as it was taught: Six forbidden relatives come under greater restrictions,¹⁷  since they are to be married to strangers only,¹⁸  and their rivals are permitted.¹⁹  [These are:] his mother, his father's wife and his father's sister [etc.].²⁰  Now, what is meant by "his mother"? If it be assumed to mean one who was legally married to his father, such a woman surely is "his father's wife".²¹  Must it not consequently mean one who was outraged by his father? And yet it was stated, "since they are to be married to strangers only", implying "to strangers only but not to the brothers". Now, who has been heard to hold such an opinion? Surely it was R. Judah who forbids marriage with a woman who was outraged by one's father.²²  Hence²³  it was not included in our Mishnah.'²⁴

Said Rabina to R. Ashi: [Such a levirate relationship]²⁵  is possible even according to R. Judah if and when one had married²⁶  illegally!²⁷  — The author of the Mishnah is not concerned with an 'if'.²⁸  Said R. Ashi to R. Kahana: This²⁹  is also possible without the 'if',³⁰  where Jacob³¹  outraged his daughter-in-law, begat from her a son, and then Reuben³²  died without issue, and she thus came into levirate relationship with her son;³³  and since she is forbidden to him,³⁴  her rival also is likewise forbidden!³⁵  — The other replied: [The author of our Mishnah] deals only with lawful brotherhood but not with brotherhood which is due to a forbidden act.

Levi nevertheless³⁶  inserted it³⁷  in his Mishnah. For Levi taught: One's mother sometimes exempts her rival³⁸  and sometimes she does not exempt her. If his mother, for instance,³⁹  was lawfully married to his father, and then she was married⁴⁰  to his paternal brother⁴¹  who subsequently died, such a mother does not exempt her rival.⁴²

1. Now, since in the case of 'the wife of a brother who was not his contemporary' the application of Rab's statement is only possible according to the view of R. Simeon but not according to that of the Rabbis, and since the statement is based on our Mishnah, it is obvious that our Mishnah deals also with a case which is in dispute.
2. Cf. BaH. Cur. edd. insert, 'but'.
3. Of Rab and R. Hiyya. Our Mishnah consequently deals only with that case in which R. Simeon and the Rabbis are in agreement. (V. supra 9b top).
4. Of Rab and R. Hiyya, supra 9b.
5. Whom he addressed supra 9a.
6. And after one of them had given birth to a child, C, and the other to one, D, the first was married by A and the second by B, two of Jacob's sons from another wife.
7. For should A and B die childless their wives who are sisters as well as sisters-in-law come under the law of the levirate marriage in relation to C and D the brothers of A and B.
8. Both being forbidden to C as well as to D. The mother of C is forbidden to C as mother and to D as mother's sister, and the mother of D is similarly forbidden to D and C.
9. Cf. n. 8.
10. Since the women are strangers and the restrictions mentioned in note 10 do not apply.
11. The women being sisters-in-law only but not sisters. Thus it has been shewn that the statement could not be applied in its entirety to the case of an outraged woman. Hence it was excluded from the enumeration in our Mishnah.
12. Of Rab and Hiyya.
13. Lit., 'and what'.
14. Rabbi.
15. Levi, supra 9a.
16. Hence it is impossible for a mother, whether legally married or outraged, ever to come into levirate relationship with her son. (Cf. supra p. 45, n. 8.)
17. Than those relating to the fifteen enumerated in our Mishnah.
18. No paternal brother of the person concerned may ever marry them.
19. To marry the brother of their deceased husband who had been married to their rival (one of the six relatives) illegally (Maimonides). If the marriage was with a stranger the permissibility of marriage is obvious since the laws of rivals apply only to a brother's widow.
20. Infra 13a.
21. Who was specifically mentioned.
22. So that it is impossible for one ever to be subject to levirate marriage with his brother's wife whose legitimate or illegitimate son he is.
23. Since R. Judah holds such an opinion and the Mishnah represents his view.
24. Lit., 'he did not teach it'.
25. Cf. supra p. 46, n. 13.
26. The woman his father had outraged and who is also the mother of his brother.
27. Infra 78a. In such a case it is surely possible for a mother to come into the levirate relationship with her son.
28. Lit., 'when if he does not teach', i.e., he is not concerned with a levirate relationship that may arise out of a possible and unlikely breach of the law.
29. Levitate relationship with a mother. Cf. supra p. 46, n. 13.
30. I.e., even if the deceased brothers did not transgress the law.
31. The father of the deceased.
32. Her husband, Jacob's son.
33. Lit., 'and she fell before her son', who is the paternal brother of her deceased husband, Reuben.
34. As his mother.
35. Why then was not this case included in our Mishnah?
36. Despite Rabbi's abusive reply, supra 9a.
37. [H] lit., 'examined it', i.e., revised our Mishnah and added the case under discussion. [Levi drew up a collection of teachings like those of R. Hiyya and R. Oshaia, v. B.B., Sonc. ed. p. 216].
38. From halizah and the levirate marriage.
39. Lit., 'how so?'.
40. Unlawfully.
41. Which is a marriage forbidden under the penalty of kareth and is, therefore, illegal and invalid.
42. The marriage having been invalid, the woman is not regarded as his brother's wife.

If his mother, however, was a woman that had been outraged by his father and was then married to his paternal brother who subsequently died, such a mother does exempt her rival.¹  And though the Sages taught in our Mishnah FIFTEEN we must add a case like this as a sixteenth.

Resh Lakish said to R. Johanan: According to Levi who maintains that an 'if'²  is also included,³  let our Mishnah also include⁴  the case of a levir who gave halizah to his sister-in-law⁵  and later betrothed⁶  her and died without issue, for since [the widow of such a one] is forbidden,⁷  her rival also is forbidden!⁸  — The other replied: Because in this case the law of the rival of the rival⁹  cannot be applied.¹⁰  But could he¹¹  not have answered¹²  him¹³  [that the brothers] are only subject to the penalties of a negative precept,¹⁴  and that those who are subject to the penalties of a negative precept are¹⁵  under the obligations of halizah and the levirate marriage?¹⁶  — He¹⁷  answered him¹⁸  in accordance with the view he¹⁸  holds. 'According to my view,' he¹⁹  argued, [the brothers] are only subject to the penalties of a negative precept,²⁰  and those who are subject to the penalties of a negative precept are²¹  under the obligations of halizah and the levirate marriage,²²  but even according to your view that they are subject to the penalty of kareth [the case could not have been included in our Mishnah] because the law of the rival's rival cannot be applied'.²³

It has been stated: Where [a levir] had performed the ceremonial of halizah with his sister-in-law, and then betrothed her, Resh Lakish holds that he is not subject to the penalty of kareth for the haluzah,²⁴  but the other brothers are subject to kareth for the haluzah.²⁵  In the case of the rival,²⁶  both he²⁷  and the other brothers are subject to kareth for a rival.²⁸  R. Johanan, however, holds that neither he²⁷  nor the other brothers are subject to kareth either for the haluzah or for her rival.²⁹  What is the reason of Resh Lakish? — Scripture stated, That doth not build,³⁰  since he has not built he must never again build.³¹  He himself is thus placed under the prohibition of building no more,³²  but his brothers remain in the same position in which they were before.³³  Furthermore, the prohibition to build no more applies only to herself,³⁴  her rival, however, remains under the same prohibition as before.³³  And R. Johanan?³⁵  — Is it inconceivable³⁶  that at first halizah should be allowed to be performed by any one of the brothers³⁷  and with either of the widows of the deceased brother³⁸  and that now one or other of these persons should³⁹  be involved in kareth!⁴⁰  But [in point of fact] he⁴¹  merely acts as agent for the brothers while she⁴²  acts as agent for her rival.⁴³

R. Johanan pointed out to Resh Lakish the following objection: 'If a levir who submitted to halizah from his sister-in-law, later betrothed her and died,⁴⁴  [the widow] requires halizah from the surviving brothers'. Now, according to me who maintains that [the surviving brothers]⁴⁵  are subject to the penalties of a negative precept only, one can well understand why she requires halizah from the other brothers.⁴⁶  According to you, however, why should she require halizah?⁴⁷  — Explain, then, on the lines of your reasoning, the final clause, 'If one of the brothers⁴⁸  actually⁴⁹  betrothed her, she has no claim upon him'!⁵⁰  R. Shesheth replied: The final clause represents the opinion of R. Akiba who holds that a betrothal with those who are subject thereby to the penalties of a negative precept is of no validity.⁵¹  Should it not then have been stated, 'according to the view of R. Akiba she⁵²  has no claim upon him'!⁵³

1. Since her marriage with the deceased brother was not unlawful, her rival (any other wife of her husband) is subject to the same laws as any other rival in the case of the fifteen relatives of our Mishnah.
2. Cf. p. 47, n. 4, supra.
3. By R. Judah who, as has been shewn supra, is the author of our Mishnah. Though he prohibits the marriage of a woman that was outraged by one's father, he nevertheless, according to Levi's recital, included the case in our Mishnah.
4. Lit., 'teach'.
5. Whom he is in consequence forbidden to marry.
6. Since the marriage in such a case is forbidden under a negative precept the transgression of which does not involve the penalty of kareth, the betrothal is legally valid.
7. To the brothers of the levir who gave the halizah: this prohibition, according to Resh Lakish infra involving the penalty of kareth.
8. To the brothers. Why then was not this case also added to the fifteen?
9. V. our Mishnah.
10. Her rival (as well as herself), being forbidden to all the other brothers (as brother's wife or as the haluzah of one of the brothers), can never have any of the wives of the brothers as her rival. In the case of the forbidden relatives in our Mishnah, they are forbidden to one of the brothers only, hence they or their rivals are not otherwise precluded from marrying one of the other brothers.
11. R. Johanan.
12. Lit., 'and he should say'.
13. Resh Lakish.
14. If they married the haluzah, their deceased brother's widow, with whom halizah had been performed by one of them. According to R. Johanan, infra, contrary to the view of Resh Lakish, no penalty of kareth is involved in such a marriage, whether the transgressor be the brother who performed the halizah or any of the other brothers.
15. Unlike those subject to the penalty of kareth who are exempt from halizah and from the levirate marriage.
16. I.e., though the marriage with them is forbidden by a negative precept, they remain nevertheless under the obligations of the levirate relationship and must, therefore, undergo the ceremonial of halizah. Why, then, did not R. Johanan give Resh Lakish this reply which would well account for the omission from our Mishnah of the case he mentioned?
17. R. Johanan.
18. Resh Lakish.
19. R. Johanan.
20. V. p. 48, n. 13.
21. V. p. 48, n. 14.
22. Cf. previous note.
23. Cf. supra p. 48, n. 9.
24. V. Glos. I.e., for having intercourse with her. Consequently the betrothal is valid.
25. Consequently should any of the other brothers betroth the haluzah, the betrothal is invalid.
26. Of a haluzah (v. previous note). A rival is exempt from halizah and the levirate marriage by the action of the haluzah.
27. The levir who participated in the halizah.
28. V. infra 53a.
29. Infra 40b and l.c.
30. Deut. XXV, 9.
31. The imperfect [H] may be rendered as a present as well as a future.
32. I.e., under a negative precept only which involves no kareth.
33. I.e., under the prohibition to marry a brother's wife, which involves the penalty of kareth.
34. The haluzah.
35. What reason does he advance for his opinions?
36. Lit., 'is there (such) a thing'?
37. Lit., 'if he prefers, this one participates in the halizah and if he prefers etc.'
38. Lit., 'and if he prefers he performs the halizah with that one and if he prefers etc'.
39. In case of a betrothal.
40. Though the others are not.
41. The brother who participated in the halizah.
42. The widow who performed the halizah ceremonial.
43. Hence all the brothers as well as all the rivals are in this respect in exactly the same position. As the brother and the widow who between them carried out the halizah ceremonial are in a case of subsequent marriage exempt from kareth and are subject only to the penalties of a negative precept, so also are all the others on whose behalf they acted.
44. Without issue.
45. In subsequently marrying the haluzah.
46. Since the negative precept which bars them from the levirate marriage does not supersede halizah.
47. Marriage with them would involve the penalty of kareth, and whenever such a penalty is involved the parties are not subject to the laws of halizah!
48. Other than the one who participated in the halizah.
49. Lit., 'stood'.
50. I.e., the betrothal is invalid, she receives no kethubah, and no divorce is needed. This obviously proves that the penalty for such an ensuing marriage is kareth, as Resh Lakish maintains; for had it been, as R. Johanan asserts, that of a negative precept only, the betrothal should have been valid.
51. Keth. 29b, Kid. 64a, 68a, Sot. 18b, infra 52b, 69a.
52. So BaH, a.l. Cur. edd., 'he'.
53. Since it is the general opinion that such a betrothal is valid.