Babylonian Talmud: Tractate Yebamoth

Folio 109a

MISHNAH. IF A MAN DIVORCED HIS WIFE AND REMARRIED HER, SHE IS PERMITTED TO MARRY THE LEVIR;¹  R. ELEAZAR²  HOWEVER, FORBIDS.³  SIMILARLY, IF A MAN DIVORCED AN ORPHAN⁴  AND REMARRIED HER,⁵  SHE IS PERMITTED TO MARRY THE LEVIR;⁶  R. ELEAZAR, HOWEVER, FORBIDS.

IF A MINOR WAS GIVEN IN MARRIAGE BY HER FATHER AND WAS DIVORCED,⁷  [SO THAT SHE IS REGARDED] AS AN 'ORPHAN' IN HER FATHER'S LIFETIME,⁸  AND THEN HER HUSBAND REMARRIED HER,⁹  ALL AGREE THAT SHE IS FORBIDDEN TO MARRY THE LEVIR.¹⁰

GEMARA. 'Efa stated: What is R. Eleazar's reason?¹¹  Because there was a period when she was forbidden to him.¹²  Said the Rabbis to 'Efa: If so, halizah also should not be required!¹³  And should you reply that the law is so indeed; surely [it may be pointed out] it was taught: In the name of R. Eleazar it was stated that she does perform halizah! — In truth, said 'Efa, the reason of R. Eleazar is unknown to me.

Abaye said, This is the reason of R. Eleazar:¹¹  He was in doubt whether it was death¹⁴  that subjects [the widow to the levirate marriage] or whether it was the marriage that preceded it¹⁵  that subjects her to it. If it is death that subjects her to it, she should be subject to the¹⁶  levirate marriage; and if it is the marriage preceding it¹⁵  that subjects her to it, then there was a period when she was forbidden to him.¹⁷

Raba said: It was in fact obvious to R. Eleazar that it is death¹⁴  that subjects [the widow to the levirate marriage], but while all well know of the divorce, not all are aware of the remarriage.¹⁸  On the contrary! Remarriage gets noised abroad since the woman dwells with him! — Do we not, however, deal here [even with such a case as] where he remarried her in the evening and died in the morning?¹⁹

R. Ashi said, This is the reason of R. Eleazar:²⁰  He forbade [the levirate marriage of] these²¹  as a preventive measure against the remarriage of an 'orphan' [minor] in her father's lifetime.²²  This²³  may also be logically supported; for in the final clause it was stated, IF A MINOR WAS GIVEN IN MARRIAGE BY HER FATHER AND SHE WAS DIVORCED [SO THAT SHE IS REGARDED] AS AN 'ORPHAN' IN HER FATHER'S LIFETIME, AND THEN REMARRIED HER HUSBAND, ALL AGREE THAT SHE IS FORBIDDEN TO MARRY THE LEVIR. Now what [need was there] to state [this when it is so] obvious!²⁴  Consequently it must be²⁵  this that was taught: R. Eleazar's reason²⁰  is because he forbade [the levirate marriages of] those as a preventive measure against [the levirate marriage of] this one. Thus our case has been proved.

It was taught in agreement with R. Ashi: The Sages agree with R. Eleazar in respect of a minor whom her father had given in marriage and who was divorced [so that she is regarded] as an 'orphan' in her father's lifetime, and who then remarried [her husband], that she is forbidden to [contract the levirate marriage with] the levir, because her divorce was a perfectly legal divorce, whereas her remarriage was not a perfectly legal remarriage. This,²⁶  however, applies only where he²⁷  divorced her while she was a minor²⁸  and remarried her while she was still a minor;²⁹  but if he²⁷  divorced her while she was a minor and remarried her when she was of age, and also if he remarried her while she was still a minor and she became of age while she was with him, and then he died,³⁰  she may either perform halizah or contract the levirate marriage.³¹  In the name of R. Eleazar, however, it was stated: She must perform halizah but may not contract the levirate marriage.³²

Raba enquired of R. Nahman: What is [the law³³  in respect of] her³⁴  rival?³⁵  — The other replied: [The prohibition against] herself is a preventive measure;³⁶  shall we then go so far³⁷  as to enact a preventive measure³⁸  against a preventive measure?³⁹  But, surely, it was taught: It was stated in the name of R. Eleazar, 'She and her rival perform halizah'; Now can it possibly be imagined that she and her rival [are to perform halizah]? Consequently it must mean,⁴⁰  'either she or her rival performs halizah'!⁴¹  — Are you not [in any case obliged to] offer an explanation?⁴²  Explain, then,⁴²  as follows: She performs halizah while her rival may either perform halizah or contract the levirate marriage.

MISHNAH. WHERE TWO BROTHERS WERE MARRIED TO TWO SISTERS WHO WERE MINORS⁴³  AND ORPHANS,⁴⁴  AND THE HUSBAND OF ONE OF THEM DIED,⁴⁵  [THE WIDOW]⁴⁶  IS FREE⁴⁷  AS BEING [THE LEVIR'S] WIFE'S SISTER. SIMILARLY IN THE CASE OF TWO DEAF⁴⁸  [SISTERS ONE OF WHOM WAS] OF AGE AND [THE OTHER] A MINOR, IF THE HUSBAND OF THE MINOR DIED, THE MINOR IS FREE⁴⁷  AS BEING [THE LEVIR'S] WIFE'S SISTER. IF THE HUSBAND OF THE ELDER SISTER DIED, THE MINOR IS TO BE INSTRUCTED, R. ELIEZER⁴⁹  STATED, TO EXERCISE HER RIGHT OF MI'UN AGAINST HIM.⁵⁰  R. GAMALIEL SAID: IF SHE⁵¹  EXERCISED HER RIGHT OF MI'UN WELL AND GOOD;⁵²  BUT IF [SHE DID] NOT, LET HER WAIT⁵³  UNTIL SHE IS OF AGE⁵⁴  WHEN THE OTHER BECOMES FREE⁴⁷  AS BEING [THE LEVIR'S] WIFE'S SISTER. R. JOSHUA SAID: WOE TO HIM⁵⁵  BECAUSE OF HIS WIFE AND WOE TO HIM BECAUSE OF HIS BROTHER'S WIFE! HE MUST ALLOW HIS WIFE TO GO⁵⁶  BY [GIVING HER] A LETTER OF DIVORCE,⁵⁷  AND HIS BROTHER'S WIFE⁵⁸  BY [SUBMITTING TO HER] HALIZAH.

GEMARA. But is this is permitted?⁵⁹  Surely. Bar Kappara taught: A man should always cling to three things and keep away from three things. 'A man should cling to the following three things': Halizah, the making of peace and the annulment of vows; 'and keep away from three things': — From mi'un, from [receiving] deposits and from acting as surety!⁶⁰  Mi'un [involving the fulfilment] of a commandment⁶¹  is different.⁶²

[Reverting to our] previous text, 'Bar Kappara taught: A man should always cling to three things … Halizah', in accordance with [a statement of] Abba Saul. For it was taught: Abba Saul said, 'If [a levir] married his sister-in-law on account of her beauty, or in order to gratify his sexual desires 'or with any other ulterior motive, it is as if he has infringed [the law of] incest; and I am even inclined to think that the child [from such a union] is a bastard'.⁶³

'The making of peace', for it is written, Seek peace and pursue it⁶⁴

1. Though at the time his brother had divorced her she was forbidden to him as 'his brother's divorcee'.
2. Mishnah edd.: R. Eliezer.
3. The reason is given infra.
4. A minor who was given to him in marriage by her mother or brothers, and who is entitled, therefore, to exercise mi'un.
5. Whether during her minority or after she had attained her majority.
6. It is the death of her husband, not his marriage with her, that subjects her to the levir; and at the hour of his death she was no longer his divorcee but his wife.
7. While she was still in her minority, the letter of divorce having been accepted on her behalf by her father (Rashi). (Cf. Keth. 46b) Rashi s.v. [H] and Sonc. ed. p. 266, n. 6.
8. A father, in accordance with Pentateuchal law, is entitled to give his minor daughter in marriage only once. After she has been divorced, therefore, a father has no more right to give her away in marriage than her mother or brothers in the case where the father is dead. As in the latter case mi'un cancels marriage so it does in the former. The minor thus assumes the status of 'orphan' while her father is still alive.
9. During her minority.
10. If her husband died during her minority. She has the status of a divorcee because her letter of divorce, having been accepted by her father, is valid, Her subsequent marriage has no validity since her father can no longer act for her (cf. supra p. 756, n. 12) and her own act has no legal force.
11. For forbidding to the levir his brother's divorced wife despite the fact that at the time of his brother's death she was married to him again.
12. Lit., 'she stood for him one hour in prohibition'; i.e., at the time she was divorced she was forbidden to him under the penalty of kareth as his 'brother's divorcee'. Her subsequent remarriage does not alter her status.
13. As any other 'brother's divorcee'.
14. Of the childless husband,
15. Lit.,'the first'.
16. Lit., 'behold she is thrust before him'.
17. Cf. supra n. 4. Hence levirate marriage is forbidden (owing to the second possibility), and halizah is necessary (owing to the first).
18. Should the levir, therefore, be permitted to contract with her the levirate marriage, it might be assumed by those who knew of the divorce and not of the remarriage that he married his brother's divorcee. Hence R. Eleazar's prohibition.
19. Certainly we do, since the Mishnah applies to all possible cases. In such a case as the one mentioned the remarriage remains unknown.
20. v. supra p. 757, n. 3.
21. The remarried women spoken of in our Mishnah.
22. Who, as stated in our Mishnah, may not be married by the levir because she retains the status of a divorcee.
23. R. Ashi's explanation.
24. As her father has no legal authority to give her in marriage, and as the remarriage that has been contracted by herself (a minor) has no validity, it is obvious that her previous legal status of divorcee remains in force and that she is, therefore, forbidden to the levir as 'his brother's divorcee'.
25. Lit. 'but not'?
26. That the Sages admit that the minor may not contract the levirate marriage.
27. Her first husband.
28. Her father having accepted on her behalf the letter of divorce which is thus valid.
29. When neither she nor her father had the right to contract the marriage (cf. supra p. 756, n. 12); and where the death of the husband occurred while she was still in her minority, so that there was no cohabitation at all when she was of age.
30. So that cohabitation between them could take place while she was of age.
31. Since the final act of cohabitation after she becomes of age constitutes a legal kinyan of marriage.
32. Keth. 73bf. Since it was stated that 'the Sages agree with R. Eleazar in respect of a minor … in her father's lifetime', it is obvious that R. Eleazar himself spoke of this case and presumably made it the cause of the prohibition of the levirate marriages with the others mentioned.
33. According to R. Eleazar.
34. A divorced minor whom the husband remarried when she was of age.
35. Is her rival permitted levirate marriage?
36. Against the possibility of contracting levirate marriage with an 'orphan' in her father's lifetime.
37. Lit., 'rise'.
38. Prohibition of the levirate marriage of the rival.
39. Cf. supra note 5. Obviously not.
40. Lit., 'but no?'
41. How then could it be said supra that, according to R. Eleazar, the rival may contract the levirate marriage?
42. The statement being obscure, and an explanation being required in any case.
43. And given in marriage by their mother or brothers.
44. So in accordance with the separate edd. of the Mishnah. The last two words are wanting in cur. edd.
45. Without issue.
46. Cur. edd., [H] 'that', is here omitted, in accordance with the reading of the separate edd. of the Mishnah, and the Palestinian Talmud, Cf. Wilna Gaon.
47. From levirate marriage and halizah.
48. Deaf and dumb, whose marriage is valid according to Rabbinic law only.
49. Others, 'Eleazar'.
50. Her husband. His marriage with her (a minor) being only Rabbinically valid, his levirate bond with the elder sister renders her forbidden to him. By the mi'un of the minor the levir is able to perform the Pentateuchal law.
51. The minor.
52. Lit., 'she refused' and the elder sister is then enabled to contract the levirate marriage.
53. I.e., she is not forbidden to her husband, despite his levirate bond with her elder sister which his brother's death had created, (Cf. supra 51a).
54. And her marriage with her husband becomes Pentateuchally binding.
55. The surviving brother,
56. He may not retain her owing to the levirate bond (cf. supra note ); R. Joshua, contrary to the opinion of R. Gamaliel, holding the view that a levirate bond does cause the prohibition of the widow's minor sister; and since the levirate bond is the result of a Pentateuchally binding marriage, the marriage with the minor, which is only Rabbinically valid, must be dissolved,
57. Not by mi'un for the reason given in the Gemara infra.
58. Who is forbidden as the sister of his divorcee.
59. To instruct a minor to exercise her right of refusal.
60. The reasons are given infra. From this then it is obvious that mi'un is not to be encouraged. Why then is THE MINOR TO BE INSTRUCTED TO EXERCISE HER RIGHT OF MI'UN?
61. As is the case in our Mishnah, where the exercise of mi'un enables the levir to observe the Pentateuchal commandment of the levirate marriage.
62. From ordinary mi'un; while the latter is to be avoided the former is to be encouraged.
63. Supra 39b.
64. Ps. XXXIV, 15. Pursue it [H] (rt. [H]).

and [in connection with this] R. Abbahu stated that deduction is made¹  by a comparison between the two expressions of 'pursuit':²  Here it is written, Seek peace and pursue it and elsewhere it is written, He that pursueth³  after righteousness and mercy findeth life, prosperity and honour.⁴

'The annulment of vows', in accordance with [a statement of] R. Nathan. For it was taught: R. Nathan said, 'If a man makes a vow it is as if he has built a high place⁵  and if he fulfils it,⁶  it is as if he has offered up a sacrifice upon it'.⁷

'And keep away from three things: From mi'un', since it is possible that when she becomes of age she will change her mind.

'From [receiving] deposits' [applies to deposits made by] his fellow townsman who [regards] his house as his own house.⁸

'From acting as surety [refers to would-be] sureties in Shalzion.⁹  For R. Isaac said, 'What was meant by the Scriptural text, He that is surety for a stranger shall smart for it?¹⁰  Evil after evil¹¹  comes upon those who receive proselytes,¹²  and upon the sureties¹³  of Shalzion and upon him who rivets¹⁴  himself to the word of the halachah.¹⁵

That 'those who receive proselytes', [bring evil upon themselves, is deduced] in accordance with [a statement of] R. Helbo. For R. Helbo stated: Proselytes are hurtful to Israel as a sore on the skin.¹⁶

'The sureties of Shalzion [bring evil upon themselves]' because [in that place] they practice 'pull out and thrust in'.¹⁷

'Who rivets himself to the word of the halachah', [brings evil upon himself], for it was taught: R. Jose said, 'Whosoever says that he has no [desire to study the] Torah, has no [reward for the study of the] Torah'. Is not this obvious? — But [this must be the meaning]: 'Whosoever says that he has only [an interest in the study of the] Torah¹⁸  has only [reward for the study of the] Torah'. This, however, is also obvious! — But [the meaning really is] that he has no [reward] even [for the study of the] Torah. What is the reason? — R. Papa replied: Scripture said, That ye may learn them and observe to do them,¹⁹  whosoever is [engaged] in observance²⁰  is [also regarded as engaged] in study, but whosoever is not [engaged] in observance is not [regarded as engaged] in study. And if you wish I may say: [The reading is] in fact, as was said before: 'Whosoever says that he has only [an interest in the study of the] Torah has only [reward for the study of the] Torah', yet [the statement] was necessary [in the case] where he teaches others and these go and do observe [the laws of the Torah]. Since it might have been assumed that he also receives reward,²¹  hence we were taught [that he does not]. And if you wish I may say [that the statement] 'who rivets himself to the word of the halachah' [applies] to a judge who, when a lawsuit is brought before him, and he knows of an halachah [relating to a similar case], compares one case with the other²²  and, though he has a teacher, he does not go to him to inquire.²³  [Such a judge brings evil upon himself] for R. Samuel b. Nahmani stated in the name of R. Jonathan: A judge should always imagine himself as if [he had] a sword lying between his thighs, and Gehenna was open beneath him; as it is said in Scripture, Behold, it is the couch²⁴  of Solomon; threescore mighty men²⁵  are about it, of the mighty men of Israel etc. because of the dread in the night:²⁶  'because of the dread of' Gehenna²⁷  which is like 'the night'.

R. GAMALIEL SAID: IF SHE EXERCISED HER RIGHT OF MI'UN etc. R. Eleazar inquired of Rab: What is R. Gamaliel's reason?²⁸  Is it because he holds the opinion that the betrothal of a minor remains in a suspended condition²⁹  and as she grows up it grows with her³⁰  even though no cohabitation has taken place;³¹  or is the reason because he is of the opinion that when a man betroths the sister of his sister-in-law the latter procures her exemption thereby, but thereby only,³²  [and consequently] only if cohabitation has taken place is the elder sister exempt,³³  but if no cohabitation has taken place she is not? — The other replied, This is R. Gamaliel's reason: Because he is of the opinion that when a man betroths the sister of his sister-in-law the latter procures her exemption thereby but thereby only³²  [and consequently] only if cohabitation has taken place is the elder sister exempt,³³  but if no cohabitation has taken place she is not.

Said R. Shesheth: It seems³⁴  that Rab made this statement while he was sleepy and about to doze off;³⁵  for it was taught: If a man betrothed a minor, her betrothal remains in a suspended condition. Now, what [is meant by] 'a suspended condition'? Obviously³⁶  that as she grows up it grows up with her³⁷  even though there was no cohabitation.³⁸  Said Rabin the son of R. Nahman to him: The matter of the betrothal of a minor³⁹  remains in a suspended condition. If cohabitation had taken place⁴⁰  it is valid, but if no cohabitation had taken place⁴⁰  it is not; for [in the absence of such cohabitation] she thinks 'He has an advantage over me⁴¹  and I have an advantage over him'.⁴²

Is Rab, however, of the opinion that only if cohabitation had taken place is the betrothal valid,⁴³  but if there was no cohabitation it is not? Surely it was stated: Where a minor did not exercise her right of mi'un and, when she became of age, actually⁴⁴  married [another man], Rab ruled: She requires no letter of divorce from her second husband, and Samuel ruled: She requires a letter of divorce from her second husband.⁴⁵

1. As to the greatness of the reward for the propagation of peace. Lit., 'comes'.
2. Lit., 'pursuing' (bis) rt. [H].
3. [H] (rt. [H]), E.V., 'followeth'.
4. Prov. XXI, 21; the reward for the pursuit of the latter will also be enjoyed by him who pursues the former. Cf. Kid. 40a.
5. At the time when the erection of such was forbidden; i.e., after the setting up of the Central Sanctuary in Palestine.
6. I.e., he does not go to the expert Sage to have it annulled.
7. Git. 46b, Ned. 22a.
8. Being a constant visitor at his house he may sometimes help himself to the deposited object and, losing or forgetting about it, would claim it again.
9. Where debts were collected from the guarantors and not from the creditors. [H] is a place name (Rashi); perhaps Seleucia, or an abbreviation of [H], v. note 10.
10. Prov. XI, 15.
11. The inference is based on the expression [H] (in which the rt. [H] which is also that of [H] 'evil' is repeated).
12. The original for He that … stranger (ibid.) is [H] which is interpreted as the mixing of proselytes with Israel. The rt. [H] may bear both meanings.
13. The E V. reading of the text.
14. I.e., to the word but not to its practice.
15. This is deduced from [H] (E.V., that strike hands) in the concluding clause of the verse cited. [H] may also bear the meaning of 'stick to', 'nail oneself to'. This will be further explained anon.
16. In speaking of proselytes (Isa. XIV, 1) the word used is that of [H] (E.V., shall join) which is of the same rt. as [H] (a sore). V. supra 47b.
17. They 'pull out' the debtor from his obligation and 'thrust in' the creditor.
18. Not in its observance.
19. Deut. V, 1.
20. Of the laws of the Torah.
21. As if he had himself observed the laws of the Torah.
22. Following his own conclusions.
23. In order to obtain definite guidance on the case under consideration. It is a judge of such a character who is described as one 'who rivets himself to the word of the halachah'.
24. E.V., litter, the seat from which he dispensed justice.
25. Judges.
26. Cant. III, 7f.
27. Should justice be perverted.
28. For allowing the exemption of the elder when the minor becomes of age.
29. During her minority.
30. I.e., becomes retrospectively effective as soon as she attains her majority.
31. After her majority. As the validity of the original betrothal is thus made retrospective, the provisional levirate bond between the levir and the elder sister may be regarded as never having existed.
32. Lit.,'and she goes for herself'. Only by the 'betrothal' (i.e., the cohabitation) that took place when the minor bad attained her majority does the elder procure her exemptions not by the original betrothal of the minor which is ineffective.
33. Lit., 'yes'. Because it is the 'betrothal' that severs the levirate bond which existed between the levir and the elder sister from the moment his brother died.
34. Lit., 'I would say'.
35. Lit., 'while dozing and lying'.
36. Lit., 'not?'
37. V. supra p. 763 n, 12.
38. V. supra p. 63, n. 13.
39. Lit., 'this matter of a minor'.
40. After her majority was attained.
41. He can divorce her at any time against her will.
42. She may, according to Pentateuchal law, exercise against him her right of mi'un at any moment. Though she cannot do so according to-Rabbinic law after she produces two pubic hairs, (cf. Mid. 52a and Tosaf. s.v. [H] a.l.), the uncertainty in her mind as to the durability of the union causes it to remain in a suspended condition until kinyan by cohabitation, after she becomes of age, has been effected.
43. Lit., 'yes'.
44. Lit., 'and stood up'.
45. Keth. 73a.