Babylonian Talmud: Tractate Yebamoth

Folio 101a

IF THE TWO [HUSBANDS] WERE PRIESTS etc. Our Rabbis taught: If he¹  struck one²  and then struck the other, or if he cursed one²  and then cursed the other, or cursed them both simultaneously or struck them both simultaneously, he is guilty.³  R. Judah. however, said: If⁴  simultaneously, he is guilty;⁵  if⁴  successively he is exonerated.⁶  But, surely, it was taught: R. Judah stated that he⁷  is exonerated [even if his offences were] simultaneous! — Two Tannaim differ as to what was the opinion of R. Judah.

What is the reason of him who exonerated?⁸  R. Hanina replied: 'Blessing'⁹  is spoken of in Scripture [in respect of parents] on earth¹⁰  and blessing⁹  is spoken of [in respect of God] above.¹¹  As there is no association above so must there be no association below;¹²  and striking has been compared to cursing.¹³

HE MAY GO UP [TO SERVE] IN THE MISHMAR etc. Since, however, HE DOES NOT RECEIVE A SHARE why should he go up? — [You ask] 'Why should he go up'; surely. he might say: I wish to perform a commandment!¹⁴  — But [this is the difficulty]: It does not say. '[If] he went up'¹⁵  but HE GOES up, implying even against his will!¹⁶  — R. Aha b. Hanina in the name of Abaye in the name of R. Assi in the name of R. Johanan replied: In order [to avert any possible] reflection on his family.¹⁷

IF, HOWEVER, BOTH SERVED IN THE SAME MISHMAR etc. In what respect do two mishmaroth¹⁸  differ [from one] that [in the former case] he should not [receive a share]? [Is it] because when he comes to the one mishmar he is driven away and when he comes to the other mishmar he is again driven away?¹⁹  Then, even in the case of one mishmar also, when he comes to one beth ab²⁰  he is driven away and²¹  when he comes to the other beth ab he is also driven away! — R. Papa replied: It is this that was meant: IF, HOWEVER, BOTH SERVED IN THE SAME MISHMAR and in the same beth ab, HE RECEIVES A SINGLE PORTION.

CHAPTER XII

MISHNAH. THE COMMANDMENT OF HALIZAH MUST BE PERFORMED IN THE PRESENCE OF THREE JUDGES, EVEN THOUGH ALL THE THREE ARE LAYMEN.²²  IF THE WOMAN PERFORMED THE HALIZAH WITH A SHOE,²³  HER HALIZAH IS VALID,²⁴  [BUT IF] WITH A SOCK²⁵  IT IS INVALID; IF WITH A SANDAL²⁶  TO WHICH A HEEL IS ATTACHED IT IS VALID, BUT [IF WITH ONE] THAT HAS NO HEEL IT IS INVALID. [IF THE SHOE WAS WORN]²⁷  BELOW THE KNEE²⁸  THE HALIZAH IS VALID, BUT IF ABOVE THE KNEE²⁸  IT IS INVALID. IF THE WOMAN PERFORMED THE HALIZAH WITH A SANDAL²⁶  THAT DID NOT BELONG TO HIM,²⁹  OR WITH A WOODEN SANDAL, OR WITH THE ONE OF THE LEFT FOOT [WHICH HE²⁹  WAS WEARING] ON HIS RIGHT FOOT, THE HALIZAH IS VALID.

IF SHE PERFORMED THE HALIZAH WITH A SANDAL TOO LARGE [FOR HIM],²⁹  IN WHICH, HOWEVER, HE IS ABLE TO WALK, OR WITH ONE TOO SMALL WHICH, HOWEVER, COVERS THE GREATER PART OF HIS FOOT, HER HALIZAH IS VALID.

GEMARA. Since even THREE LAYMEN [are sufficient],³⁰  what need is there for JUDGES? — It is this that we were taught: That three men are required, who are capable of dictating [the prescribed texts]³¹  like judges.³²  Thus we have learned here what the Rabbis taught: The commandment of halizah is performed in the presence of three men who are able to dictate [the prescribed texts]³¹  like judges.³²  R. Judah said: In the presence of five.³³

What is the first Tanna's reason? — Because it was taught: Elders³⁴  [implies] two; but as no court may be evenly balanced,³⁵  one man more is added to them; behold here three. And R. Judah?³⁶  — The elders of³⁷  [implies] two; and elders³⁸  [implies another] two; but since no court may be evenly balanced,³⁵  one man more is added to them; behold here five.

As to the first Tanna, what deduction does he make [from the expression] the elders of?³⁷  — He requires it for the purpose of including³⁹  even three laymen. Whence, then, does R. Judah deduce the eligibility of laymen?³⁹  — He deduces it from Before the eyes of;⁴⁰  a Master having said: 'Before the eyes of', excludes blind men. Now, since the expression 'Before the eyes of' is required to exclude blind men it follows that even laymen [are eligible]. For should it be suggested [that only members of] the Sanhedrin⁴¹  are required. what need was there to exclude blind men, [an exclusion which could have been] deduced from that which R. Joseph learnt! For R. Joseph learnt: As the Beth din⁴²  must be clean⁴³  in respect of righteousness so must they be clear from all physical defects,⁴⁴

1. The son concerning whom it is unknown, as in our Mishnah, which of his mother's two husbands was his father.
2. Lit., 'this', one of his mother's two husbands.
3. Since one of the two is certainly his father. As to the necessary caution v. infra nn. 12 and 13.
4. He struck or cursed.
5. The specific caution that must precede any forbidden act that is punishable by a court is here effected when the witnesses cautioned the offender by one statement against the striking or the cursing of the two, e.g., 'do not strike them'.
6. Though he may have been duly cautioned in each particular case, no penalty can be imposed upon him by any court, since each caution was of a doubtful character, it being unknown in each case whether the particular man he was about to strike or curse was his father or not. A caution of a doubtful character is, in the opinion of R. Judah, of no validity. while in the opinion of the first Tanna it is valid.
7. V. supra note 8.
8. If the offender struck or cursed simultaneously. One of the victims must surely have been his father!
9. Euph. for 'cursing'.
10. Lit., 'below'. V. Ex. XXI. 17.
11. V. Lev. XXIV, 15.
12. Only when the curse referred to a single individual is the offender subject to punishment.
13. Since both acts, in the case of parents. appear in Ex. XXI, in close proximity. vv. 15 (striking) and 17 (cursing). Such proximity, according to the opinion here expressed, serves the purpose of an analogy. According to another opinion, the analogy is disturbed by the intervening v. 16. Cf. Sanh. 85a.
14. To take part in the Temple service, even though he derives no material benefit from it.
15. The past tense, implying contingency.
16. Why should he be compelled?
17. Should he abstain from the Temple service, rumour might attribute his abstention to some serious disqualification which would bring discredit upon all his family. Its members, therefore, may compel him to join in the service.
18. Plur. of mishmar.
19. Each mishmar asserting that he does not belong to them.
20. V. Glos. A mishmar consisted of six families each of which was described as beth ab, performing service on a different day in the week.
21. Cf. MS.M. and BaH. Cur. edd. omit to the end of the sentence.
22. Not professional judges.
23. Made of soft leather and covering the upper part of the foot (cf. Rashi and Jast.) opp. to sandal (v. infra n. 3).
24. Though the shoe required for halizah purposes should properly be a sandal made of hard leather and consisting of a sole with straps attached for fastening it to the foot.
25. [H] Cf. infilia, [G], shoes or socks made of felt.
26. [H], [G].
27. Cf. Rashi. According to others the law refers not to the shoe itself but to the sandal straps.
28. Where, for instance, the levir (according to Rashi) had his foot amputated. According to the other interpretation 'below', and 'above' the knee refers to the position of the straps on the leg.
29. The levir.
30. To constitute a tribunal for halizah.
31. Deut. XXV, 7-9.
32. The appropriate texts in the original Hebrew are dictated by members of the court to the levir and his sister-in-law, respectively, who must repeat them precisely as they hear them. Cf. Sot. 32a.
33. Tosef. Yeb. XII. Our Mishnah is in agreement with the first Tanna of this Baraitha.
34. Deut. XXV, 7.
35. An even number of judges might, when a difference of opinion arose, be equally divided and this would make a decision by majority impossible.
36. Why does he require five?
37. Deut. XXV, 8.
38. Ibid. 9.
39. As eligible members of the tribunal.
40. Deut. XXV, 9 (E.V., In the presence of).
41. I.e., professional judges.
42. [H], lit., 'house of law' 'court', applied also to the members of the Sanhedrin or of any court engaged in legal decisions or in the administration of the law.
43. In their character, free from all possible suspicion.
44. Heb, mum, 'blemish'.

for it is said in Scripture, Thou art all fair, my love; and there is no spot in thee.¹

As to the former,²  however, what deduction does he make from the expression. 'Before the eyes of'? — That expression serves the purpose of a deduction like that of Raba, Raba having stated: The judges must see the spittle issuing from the mouth of the sister-in-law, because it is written in Scripture, Before the eyes of the elders … and spit.³  But does not the other⁴  also require the text⁵  for a deduction like that of Raba! — This is so indeed. Whence, then,⁶  does he deduce [the eligibility of] laymen?⁷  — He deduces it from in Israel⁸  [implying] any Israelite whatsoever. As to the former,⁹  however, what deduction does he make from 'In Israel'?¹⁰  — He requires it for a deduction like that which R. Samuel b. Judah taught: 'In Israel' [implies that halizah must be performed] at a Beth din of Israelites but not at a Beth din of proselytes.¹¹  And the other?⁴  — 'In Israel' is written a second time.¹²  And the former?⁹  — He requires it¹³  for another deduction in accordance with what was taught: R. Judah stated, 'We were once sitting before R. Tarfon when a sister-in-law came to perform halizah, and he said to us, "Exclaim all of you: The man that had his shoe drawn off"'.¹⁴  And the other? — This is deduced from And [his name] shall be called.¹⁴  If this is so'¹⁵  And they shall call¹⁶  [implies] two;¹⁷  And they shall speak¹⁶  [also implies] two,¹⁷  [so that] here also [one might deduce]: According to R. Judah,¹⁸  behold there are here nine; and according to the Rabbis,¹⁹  behold there are here seven! — That text¹⁶  is required for a deduction in accordance with what was taught: And they²⁰  shall call him¹⁶  but not their representative; And they shall speak unto him¹⁶  teaches that they give him suitable advice. If he,²¹  for instance, was young and she²²  old, or if he was old and she was young, he is told, 'What would you with²³  a young woman?' Or 'What would you²³  with an old woman? Go to one who [is of the same age] as yourself, and introduce no quarrels into your home'.²⁴

Raba stated in the name of R. Nahman: The halachah is that halizah is to be performed in the presence of three men, since the Tanna²⁵  has taught us so²⁶  anonymously.²⁷  Said Raba to R. Nahman: If so [the same ruling should apply to] mi'un²⁸  also, for we learned:²⁹  Mi'un and halizah [must be witnessed] by three men!³⁰  And should you reply [that the halachah] is so indeed, surely [It may be retorted] it was taught: Mi'un,³¹  Beth Shammai ruled, [must be declared before] a Beth din of experts;³²  and Beth Hillel ruled: [It may be performed] either before a Beth din or not before a Beth din. Both, however, agree that a quorum of three is required. R. Jose son of R. Judah and R. Eleazar son of R. Jose³³  ruled: [The mi'un is] valid [even if it was declared] before two.³⁴  And R. Joseph b. Manyumi reported in the name of R Nahman³⁴  that the halachah is in agreement with this pair!³⁵  — There,³⁶  only one anonymous [teaching] is available while here³⁷  two anonymous [teachings]³⁸  are available.

There³⁶  also two anonymous [teachings] are available! For we learned: If, however, a woman made a declaration of refusal³⁹  or performed halizah in his presence, he⁴⁰  may marry her,⁴¹  since he [was but one of the] Beth din!⁴²  — But, [the fact is that while] there,⁴³  only two anonymous [teachings] are available; here,⁴⁴  three anonymous [teachings] are available.⁴⁵

Consider! The one⁴³  is an anonymous [teaching], and the other⁴⁴  is an anonymous [teaching]; what difference does it make to me whether the anonymous [teachings] are one, two or three? — Rather, said R. Nahman b. Isaac, [the reason⁴⁶  is] because the anonymity⁴⁷  occurs in a passage recording a dispute.⁴⁸  For we learned: 'The laying on of hands by the elders,⁴⁹  and the breaking of the heifer's neck⁵⁰  is performed by three elders; so R. Jose,⁵¹  while R. Judah stated: By five elders. Halizah and declarations of mi'un, [however, are witnessed] by three men';⁵²  and since R. Judah does not express disagreement,⁵³  it may be inferred that R. Judah changed his opinion.⁵⁴  This proves it.

Raba stated: The judges must appoint a place;⁵⁵  for it is written, Then his brother's wife shall go up to the gate⁵⁶  unto the elders.⁵⁷

R. Papa and R. Huna son of R. Joshua arranged a halizah'⁵⁸  in the presence of five. In accordance with whose view?⁵⁹  Was it in accordance with that of R. Judah? He, surely, had changed his opinion!⁶⁰  [Their object⁶¹  was] to give the matter due publicity.⁶²

R. Ashi once happened to be at R. Kahana's, when the latter said to him, 'The Master has come up to us [at an opportune moment] to complete a quorum of five'.⁶³

R. Kahana stated: I was once standing in the presence of Rab Judah, when he said to me, 'Come, get on to this bundle of reeds⁶⁴  that you may be included in a quorum of five'.⁶³  On being asked, 'What need is there for five?' he replied, 'In order that the matter be given due publicity'.⁶²

R. Samuel b. Judah once stood before Rab Judah when the latter said to him, 'Come, get on to this bundle of reeds⁶⁴  to be included in a quorum of five,⁶³  in order that the matter be thereby given due publicity'.⁶²  'We learned', the first remarked, 'In Israel [implies that halizah must be performed] at a Beth din of Israelites but not at a Beth din of proselytes⁶⁵  while I am, in fact, a proselyte'. 'On the word⁶⁶  [of a man] like R. Samuel b. Judah', Rab Judah said, 'I would withdraw money [from its possessor]'.⁶⁷  [You say] 'Withdraw'! Could this be imagined? Surely the All Merciful said, At the mouth of two witnesses!⁶⁸  — Rather [it is this that he meant]. 'I would on his word⁶⁶  impair the validity of a note of indebtedness.⁶⁹

Raba stated:

1. Cant. IV, 7.
2. The first Tanna.
3. Deut. XXV, 9. Cf. infra 106b.
4. R. Judah.
5. Deut. XXV, 9, (E.V., In the presence of).
6. Since the text of Deut. XXV, 9 is required for Rab's deduction.
7. As eligible members of the tribunal.
8. Deut. XXV, 7 (Rash). or ibid. 10 (Golds.).
9. The first Tanna.
10. Cf. BaH and supra n. 7.
11. Cf. Kid. 14a.
12. Cf. supra n. 7.
13. The second expression, In Israel.
14. V. Deut. XXV, 10.
15. Since deduction has been made from the expression of elders etc.
16. Deut. XXV, 9.
17. The plural representing no less than two.
18. Who deduced from the other texts the number of five judges.
19. Limiting the number of judges, as deduced supra, to three.
20. Emphasis on they.
21. The levir.
22. The sister-in-law.
23. Lit., 'what to thee at'.
24. Supra 44a.
25. Of our Mishnah.
26. Lit., 'like him', sc. like the first Tanna of the Baraitha cited, supra 101a.
27. The halachah is, as a rule, in agreement with the anonymous statements in a Mishnah.
28. A declaration of refusal to live with her husband made by a minor. V. Glos.
29. Anonymously.
30. Sanh. 2a. Cf. infra 107b.
31. V. supra note 6.
32. Mumhin, plur. of mumhe. v. Glos.
33. Or 'Simeon' (cf. marg. note in cur. edd. and infra 107b).
34. Sanh. 2a. Cf. infra 107b.
35. Who require a quorum of two only, contrary to the anonymous teachings supra which require a quorum of three!
36. Concerning mi'un.
37. On halizah.
38. One here (our Mishnah) and the other in Sanh. 2a.
39. Mi'un, v. Glos.
40. A Sage who, if he had previously pronounced the woman forbidden to her husband owing to a vow she had made, would not have been allowed to marry her in order to avoid any suspicion that his motive in forbidding her to her husband was his intention to marry her himself.
41. In these circumstances.
42. Bek. 31a, supra 25b. Mi'un and halizah, unlike disallowance and confirmation of vows, must be witnessed by a court, or quorum of three, and three persons would not be suspected of ulterior motives even though one of them subsequently married the woman concerned. This Mishnah, then, adds a second anonymous statement to the one previously mentioned, both requiring a quorum of three for mi'un.
43. Concerning mi'un.
44. On halizah.
45. The Mishnah cited last, which adds one anonymous teaching to the single one of mi'un, also adds one to the two anonymous teachings concerning halizah.
46. Why the halachah is in agreement with the anonymous teaching in respect of halizah and not with that in respect of mi'un.
47. In respect of halizah.
48. In which R. Judah participated.
49. On the head of a sin-offering of the congregation. V. Lev. IV, 15.
50. V. Deut. XXI, 4.
51. 'Simeon', according to a marg. note and Sanh. 2a.
52. Sanh. loc. cit.
53. With the ruling that a quorum of three only is required for halizah, though in a previous discussion (supra 102a) he maintained that a quorum of five was required.
54. And agreed with the anonymous teaching. Hence R. Nahman's ruling that as regards the quorum for halizah the halachah agrees with the anonymous teaching. In respect of mi'un, however, the anonymous teaching has not been mentioned in connection with a dispute in which R. Jose and R. Eleazar participated. Hence it must be assumed that they adhered to their first opinions contrary to the anonymous teaching, which consequently does not represent the halachah.
55. For the performance of the rite of halizah.
56. I.e., a specified place.
57. Deut. XXV, 7.
58. Lit., performed an act'.
59. Did they insist on a quorum of five.
60. Agreeing that only three are required for a halizah quorum.
61. In adding to the prescribed quorum.
62. That it should be widely known that the woman was a haluzah and so no priest would marry her; while prospective husbands, on hearing that she had been freed by halizah from her levirate bond, might begin to woo her (cf. Rashi). The question of R. Judah's first opinion did not at all enter into consideration.
63. At a halizah ceremonial.
64. The spot appointed for the performance of the halizah (cf. Raba's ruling supra).
65. V. supra p. 696.
66. Lit., 'mouth'.
67. Though in such lawsuits the evidence of two witnesses is required.
68. Deut. XIX, 15. The evidence of one witness is not sufficient. Cf. supra note 9. The numeral 'two' which in cur. edd. and some MSS. is given in the absolute form, [H], appears in M.T. in the construct, [H]. Cf. ibid. XVII, 6, which, however, refers to evidence in capital cases.
69. Should he declare that the note was already redeemed the debtor would not be ordered to pay the debt, though the creditor also could not be compelled to destroy the note (cf. Rashi, Keth. 85a). According to some of the Tosafists the debt may not be collected unless the creditor takes the prescribed oath, as is the case wherever one witness declares a debt recorded on a note of indebtedness to have been paid, v. Keth. 8a. R. Samuel's superiority over the ordinary witness is limited to the following only: While the latter, if a relative, is not believed, to enforce an oath on the creditor, R. Samuel would always be believed (v. Tosaf. s.v. [H]).