Babylonian Talmud: Tractate Yebamoth

Folio 12a

— The other replied,¹  You have learned it: If one of them was a permitted wife and the other a forbidden one; if she submits to halizah he must submit to that of the forbidden one; and if he marries, he marries the permitted one. Now, what is meant by 'permitted' and 'forbidden'? If it be suggested that 'permitted' means permitted to all the world and 'forbidden' means forbidden to all the world, what practical difference, in view of the fact that she is in either case suitable for him, could this make to him? Consequently 'permitted' must mean permitted to him, and 'forbidden', forbidden to him; and this may happen where he remarries his divorced wife; and yet it was taught. 'If he marries he marries the permitted one'!²  — No; 'permitted' may still mean permitted to all the world, and 'forbidden', forbidden to all the world; and as to your question. 'What practical difference, in view of the fact that she is in either case suitable for him, could this make'? One must take into account the moral lesson of R. Joseph. For R. Joseph said: Here, Rabbi taught that a man shall not pour the water out of his cistern so long as others may require it.³

Come and hear: 'Where a man remarried his divorced wife after she had been married, she and her rival are to perform halizah.' Is it possible to say 'she and her rival'? Consequently it must mean, 'either she or her rival.'⁴  Did you not, however, have recourse to an interpretation? [You might as well] interpret thus: She is to perform halizah, while her rival may either perform halizah or be married by the levir.

R. Levi b. Memel said in the name of Mar 'Ukba in the name of Samuel: The rival of a mema'eneth⁵  is forbidden. To whom [is she forbidden]? If it be suggested, to the brothers,⁶  [it may be retort ed], now that she herself⁷  is permitted,⁸  for Samuel said, 'If she refused one brother she is permitted to marry the other',⁹  is there any question that her rival is permitted!⁸  Hence [it means] to himself.¹⁰  Wherein, however, does the mema'eneth¹¹  differ¹²  that she is in consequence permitted to the other brothers? Obviously, in that she had taken no action in relation to them;¹³  but her rival also had taken no action in relation to them!¹⁴  — It is an enactment made to prevent marriage with the rival of one's daughter¹⁵  who was a mema'eneth.¹⁶

Is, however, the rival of one's daughter who is a mema'eneth forbidden? Surely we learned, IF, HOWEVER, ANY AMONG THESE DIED, OR MADE A DECLARATION OF REFUSAL, OR WERE DIVORCED¹⁷  [etc.] THEIR RIVALS ARE PERMITTED. Now, against whom was the declaration of refusal made? If it be suggested that she refused the husband, then this case is identical with that of a divorced woman.¹⁸  Consequently it must refer to refusal of the levir!¹⁹  — No; it may, in fact, refer to the refusal of a husband, but there are two kinds of divorce.²⁰

Wherein, however, does the refusal of a husband differ?²¹  Obviously in that she thereby annuls the original marriage; but when she refused the levir she has also annulled the original marriage! — [It differs] in respect of what Rami b. Ezekiel had learnt. For Rami b. Ezekiel learnt: If she²²  declared her refusal against the husband she is permitted to marry his father;²³  if against the levir, she is forbidden to his father.²⁴  From this it clearly follows that from the moment she becomes subject to the levirate marriage²⁵  she is looked upon as his²⁶  daughter-in-law; similarly here also²⁷  she is looked upon as the rival of his daughter from the moment she²⁸  becomes subject to the levirate marriage.

Said R. Assi: The rival of a woman incapable of procreation is forbidden;²⁹  for it is said in the Scriptures, And it shall be that the firstborn that she beareth,³⁰  which excludes a woman incapable of procreation, since she does not bear.³¹  R. Shesheth raised an objection: In the case where three brothers were married to three women who were strangers to one another, and one of them having died, the second brother addressed to her³²  a ma'amar³³  and died, behold these³⁴  must perform the halizah but may not marry the levir; for it is said, And one of them die [etc.] her husband's brother shall go in unto her,³⁵  only she³⁶  who is tied to one levir³⁷  but not she who is tied to two levirs;³⁸  and concerning this it was taught: R. Joseph said, 'This is the rival of a paternal brother's wife whose prohibition³⁹  is due to her double subjection to the levirate marriage,⁴⁰  a case the like of which we do not find through out the Torah'.⁴¹  Now, what does the expression 'This is' exclude? Does it not exclude the rival of a woman incapable of procreation, who is permitted!⁴²  — No; it excludes the rival of a woman incapable of procreation who is forbidden. What, then, is meant by the expression, 'This is'?⁴³  — It is that in this case, where the subjection to the levirate marriage has caused the prohibition, her rival requires halizah; in the case, however, of a woman incapable of procreation even halizah is not required. What is the reason? — The prohibition of the one⁴⁴  is Pentateuchal;⁴⁵  that of the other only Rabbinical.⁴⁶

We learnt; IF, HOWEVER, ANY AMONG THESE DIED, OR MADE A DECLARATION OF REFUSAL, OR WERE DIVORCED, OR WERE FOUND INCAPABLE OF PROCREATION, THEIR RIVALS ARE PERMITTED!⁴⁷  — This is no difficulty; the one⁴⁸  is a case where he⁴⁹  knew her defect⁵⁰  while the other⁵¹  is a case where⁵²  he did not know of it.⁵³  The inference from our Mishnah also proves this; for it was stated WERE FOUND⁵⁴  and not 'were'. This proves it.

Raba said:

1. This reply applies to both versions of the inquiry.
2. Which shews that for the rival levirate marriage is permitted while for the remarried woman herself it is forbidden. For further notes v. supra p. 56.
3. For notes v. supra p. 56f.
4. Which supplies answers to the enquiries raised by R. Johanan in both versions.
5. A minor who declared her refusal to marry the levir. V. Glos. s.v. mi'un.
6. Of the levir.
7. The minor who refused to marry the levir.
8. To marry the other brothers.
9. Infra 107b.
10. To the levir whom the minor had refused. The refusal removes the precept of the levirate marriage and in respect of the rival the prohibition of marrying a brother's wife comes again into force.
11. V. p. 58, n. 6.
12. From her rival.
13. Her refusal having been confined to one of the brothers only.
14. Not even against one of them. Why then is she forbidden to the levir?
15. Who comes in the category of forbidden relatives whose rivals also are forbidden. On the possibility of mi'un during a father's lifetime, v. supra p. 2, n. 6.
16. If the one were permitted the other also might erroneously be married.
17. So BaH. Cur. edd. omit.
18. Which was already mentioned.
19. And yet, as our Mishnah shews, her rival is permitted in all cases enumerated, i.e., even in that of one's daughter.
20. Actual divorce and one by mi'un.
21. From that of the levir.
22. A minor who was married to a stranger.
23. Her declaration of refusal having completely annulled the original betrothal, she is no more his daughter-in-law.
24. Her former marriage having once subjected her to levirate relationship, she must be regarded as the levir's father's daughter-in-law. V. infra 13a.
25. Lit., 'falling'.
26. The levir's father's.
27. In the case of the rival of one's daughter who made the declaration of refusal.
28. The daughter.
29. I.e., if one of the widows of the brother who died without issue is such the other also is forbidden.
30. Deut. XXV, 6.
31. Hence she herself is forbidden as a brother's wife, and her rival as the rival of a forbidden relative.
32. The widow of the deceased.
33. V. Glos.
34. The widows of the two dead brothers.
35. Deut. XXV, 5.
36. May marry the levir.
37. I.e., where the second brother had actually married her and has thus severed all her connections with the first. In such a case as in that of the usual levirate she would stand in relation to the third brother as the widow of one brother only.
38. The formula of betrothal or ma'amar addressed to her by the second brother has only partially attached her to him and has not completely severed her connection with her husband, the first brother. She thus remains tied to the two, and consequently entirely forbidden the levirate marriage.
39. Of the levirate marriage.
40. Lit., 'falling'. Her levirate relationship with the third brother being due to her partial connection with each of the two dead brothers.
41. The widow not being one of the relatives forbidden by the Torah. The prohibition of the levirate marriage in her case is only Rabbinical, the Biblical text cited being a mere asmakta.
42. How, then, could R. Assi state that a rival of one incapable of procreation is forbidden?
43. Which seems to imply that only this case is forbidden but not the other.
44. A woman incapable of procreation.
45. The prohibition being derived from Deut. XXV, 6 supra.
46. V. supra n. 1.
47. V. supra n. 2.
48. Lit., 'here', in R. Assi's statement.
49. The husband now deceased.
50. At the time their marriage took place. Having known her defect he was not in any way misled, and the marriage, therefore, is valid. Her rival is consequently the rival of a legally married wife who is incapable of procreation and is forbidden by the deduction from Deut. XXV, 6.
51. Our Mishnah.
52. The husband now deceased.
53. At the time he married her. Since her defect was unknown to him the marriage which had taken place under a misapprehension is invalid. The woman, therefore, is not his lawful wife, and her rival cannot be regarded as a legal rival. Hence the statement in our Mishnah that such a rival is permitted.
54. Implying discovery after the event, i.e., after the marriage.

The law is that the rival of a woman incapable of procreation is permitted, even though he¹  knew her

When Rabin came⁵  he stated in the name of R. Johanan: The rival of a mema'eneth,⁶  the rival of a woman incapable of procreation, as well as the rival of a divorced woman who had been remarried to her former husband,⁷  are all permitted.

R. Bebai recited before R. Nahman: Three [categories of] women may⁸  use an absorbent⁹  in their marital intercourse:¹⁰  A minor, a pregnant woman and a nursing woman. The minor,¹¹  because [otherwise] she might¹²  become pregnant, and as a result¹³  might die. A pregnant woman,¹¹  because [otherwise]. she might¹²  cause her foetus to degenerate into a sandal.¹³  A nursing woman,¹¹  because [otherwise] she might¹²  have to wean her child prematurely¹⁴  and this would result in his death. And what is the age of such a minor?¹⁵  From the age of eleven years and one day until the age of twelve years and one day. One who is under,¹⁶  or over this age¹⁷  must carry on her marital intercourse in the usual manner. This is the opinion of R. Meir. The Sages, however, say: The one as well as the other carries on her marital intercourse in the usual manner, and mercy will be vouchsafed from heaven,¹⁸  for it is said in the Scriptures The Lord preserveth the simple.¹⁹

Since it has been stated, 'because she might become pregnant and as a result might die' it may be implied that it is possible for²⁰  a minor to be pregnant and not die. But, if so, one could imagine a case where²¹  a mother-in-law should be in a position to make a declaration of refusal,²²  whereas we learned, ONE CANNOT SAY OF A MAN'S MOTHER-IN-LAW, THE MOTHER OF HIS MOTHER-IN-LAW AND THE MOTHER OF HIS FATHER-IN-LAW THAT THEY WERE FOUND INCAPABLE OF PROCREATION OR THAT THEY MADE A DECLARATION OF REFUSAL! — Read, 'because she might become pregnant and die';²³  for Rabbah b. Liwai said: She²⁴  is subject to an age limitation. Prior to that period²⁵  she does not conceive at all; during that period²⁵  she dies and her embryo dies; after that period²⁵  both she and her embryo survive. But is it really so? Surely, Rabbah b. Samuel recited: One cannot say of a man's mother-in-law, the mother of his mother-in-law and the mother of his father-in-law that they were found incapable of procreation or that they made a declaration of refusal, since they have already given birth to children!²⁶  — But [the reading], in fact, is, 'because she might become pregnant and as a result might die'. But, [then, the previously mentioned] difficulty remains!²⁷  — R. Safra replied: Children are like marks of puberty.²⁸  Others Say: Children are

1. The deceased brother, at the time when he married.
2. And nevertheless consented to the marriage, which is consequently valid, and the woman is his lawful wife.
3. The rival of a forbidden relative is forbidden only where the latter would have been subject to the precept of the levirate marriage if she had been no relative. In the case of a wife incapable of procreation, however, since she is not subject to the levirate marriage even where she is no relative at all, her rival even where she (the wife) is a forbidden relative, is regarded as the rival of one in relation to whom the precept of levirate marriage is not applicable at all. Cf. [H] quoted by Rashi.
4. V. p. 61, n. 14.
5. From Palestine to Babylon.
6. V. Glos. s.v. mi'un. In this case it refers to one who refused the levir (V. Rashi a.l.).
7. After she had been married by a second husband who divorced her or died.
8. [So Rashi. R. Tam: Should use, v. Tosaf s.v. [H]
9. [H], hackled wool or flax.
10. To prevent conception.
11. May use the absorbent.
12. Lit., 'perhaps'.
13. [H] lit., 'a flat fish', i.e., a flat, fish-shaped abortion due to superfetation.
14. Owing to her second conception.
15. Who is capable of conception but exposed thereby to the danger of death.
16. When no conception is possible.
17. When pregnancy involves no fatal consequences.
18. To save her from danger.
19. Ps. CXVI, 6; those who are unable to protect themselves.
20. Lit., 'there is'.
21. Lit., 'we found'.
22. In the case, for instance, where the minor gave birth to a child in her twelfth year and that child was betrothed before the year was over. The minor who thus becomes a mother-in-law is entitled to make a declaration of refusal before, and until she enters her thirteenth year.
23. I.e., while conception is a matter of doubt, death is a certainty whenever conception happened to take place.
24. A minor.
25. The age of eleven years and one day to the age of twelve and one day.
26. Rabbah does not state, 'since they already grew up' but 'gave birth', which proves that even a minor (not yet grown up) is capable of bearing living children.
27. From here it appears that a minor can bear children while from our Mishnah it follows that she cannot.
28. As soon, therefore, as she gave birth to a child the minor is assumed to have passed out of the age of minority into that of puberty. Hence it is impossible for a mother, whatever her age, ever to make a declaration of refusal to which a minor only is entitled.
29. I.e., the pubic hair.
30. The growth of two hairs which the Rabbis regard as a definite mark of puberty not being considered by R. Judah as conclusive proof. Keth. 36a, B.B. 156a, Nid. 52a.
31. That they provide definite proof of puberty irrespective of the state of the hair.